2015 (11) TMI 1042 - AT - Service Tax

Leviability of service tax - retreading of tyres - Manufacture or management. maintenance and repair service - Held that - Taxability of the said service had, between its introduction on 1st July 2003 and amendment on 16th June 2005, been restricted to such maintenance or repairs as were performed in accordance with an maintenance contract but which thereafter was not restricted by such a condition. Thereby, the status of the appellant as manufacturer is not relevant to determine taxability. - contract is not required to be in writing. At the same time, the existence of offer, acceptance, performance and consideration is sufficient to render even the most simple and rudimentary transaction to be a contract. The activity of retreading is an activity of repair for maintenance of used tyres and, considering the ingredients of the transaction, would fall well within the ambit of section 65(64)(i). Accordingly, we uphold the contention of Revenue that the activity of the appellant is taxable under Finance Act, 1994. Goods on which VAT has been discharged are not liable to be subject to tax again under Finance Act, 1994 by inclusion in value of taxable services. The tax amount due on the service component thereon will require to be computed. Accordingly, we set aside the demand of tax in the impugned orders and direct the original authority to re-compute the tax due after taking into account the goods on which VAT liability has been discharged. - Decided partly in favour of assessee.

Summary

Issues:
1. Leviability of service tax on the business of retreading of tyres.
2. Interpretation of the definition of taxable service under section 65(105)(zzg) of Finance Act, 1994.
3. Consideration of VAT obligations on raw materials used in the retreading process.

Analysis:

Issue 1: Leviability of service tax on the business of retreading of tyres
The appellant, engaged in the retreading of tyres, contested the imposition of service tax by the Revenue, arguing that their activity did not fall under the purview of service tax but was a manufacturing process. The Revenue contended that the activity constituted a maintenance and repair service, thus attracting service tax. The original authority had upheld the demands of service tax, interest, and penalties. The appellant disputed the classification of their activity as a taxable service.

Issue 2: Interpretation of the definition of taxable service under section 65(105)(zzg) of Finance Act, 1994
The appellant argued that the definition of taxable service under section 65(105)(zzg) required the existence of a contract for maintenance or repair to be liable to tax. They contended that their retreading business did not fit this definition as it involved discrete transactions with multiple beneficiaries. The Revenue, on the other hand, asserted that the appellant's activity fell within the ambit of taxable service as it constituted repair of old tyres. The Tribunal observed that the taxability of the service was not restricted by the appellant's status as a manufacturer and upheld the Revenue's contention.

Issue 3: Consideration of VAT obligations on raw materials used in the retreading process
The appellant highlighted that they had discharged VAT obligations on the raw materials used in the retreading process. They argued that these materials, on which VAT had already been paid, should not be subjected to double taxation under the Finance Act, 1994. The Tribunal directed the original authority to re-compute the tax due, considering the goods on which VAT liability had been discharged. The appellant was also instructed to pay interest on the tax amount due. The Tribunal invoked section 80 of the Finance Act, 1994, to set aside the penalties imposed in the impugned order due to the confusion surrounding the taxation of tyre retreading.

In conclusion, the Tribunal upheld the taxability of the appellant's retreading activity under the Finance Act, 1994, directed a re-computation of tax due, and set aside penalties while considering VAT obligations on raw materials used in the process.