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2022 (1) TMI 1336 - AT - Service TaxLevy of Service tax - supply of Work-wear on rent/ lease basis as per the requirement of each customer - supply of tangible goods service or not - declared service or not - HELD THAT - From the decision in M/S LINDSTROM SERVICE INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE SERVICE TAX 2019 (8) TMI 427 - CESTAT CHANDIGARH , it is observed that the CESTAT s two benches have taken a consistent view that the service in question is not taxable under supply of tangible goods for use or under the declared service. Therefore, following the aforesaid decision in the present case also, the issue deserve to be decided in the favour of the assessee. As regard, the submission of learned Authorized Representative that against the aforesaid two Chennai Tribunal s order, the Revenue has filed appeal bearing No. Civil Appeal No. 6459 of 2021, we find that as of now either side could not produce any stay order staying the operation of the Chennai Tribunal s Order, therefore, mere filing of appeal before the Hon ble Supreme Court will not of any help to the Revenue. Appeal of assessee allowed.
Issues Involved:
1. Classification of the appellant's activity under "Supply of Tangible Goods Service" or as a "Declared Service." 2. Determination of whether the appellant transferred effective control of the workwear to the clients. 3. Applicability of service tax on the appellant's activity. Issue-wise Detailed Analysis: 1. Classification of the Appellant's Activity: The appellant, a subsidiary of Lindstrom OY Finland, engaged in leasing workwear to clients under specific agreements. The agreements included provisions for delivery, washing, servicing, and maintaining the workwear, which remained the property of the appellant. The adjudicating authority initially determined that the appellant's activity fell under "Supply of Tangible Goods Service" as per Section 65(105)(zzzzg) and later as a "Declared Service" under Section 65(B)(44) and Section 66 of the Finance Act, 1994. This classification was based on the premise that the appellant supplied workwear for use without transferring the rights of effective control to the clients. 2. Transfer of Effective Control: The core issue was whether the appellant transferred effective control of the workwear to its clients. The agreements stipulated that the appellant retained ownership and exclusive rights to wash and service the workwear. The clients could not avail these services from third parties, and the workwear had to be returned to the appellant for servicing. The Tribunal observed that similar cases had been decided in favor of the appellant by the CESTAT Chandigarh and Chennai Benches, which found that the appellant did not transfer effective control to the clients. The Tribunal referred to the Supreme Court's criteria in the Bharat Sanchar Nigam vs. Union of India case, which outlined that for a transaction to be considered a transfer of the right to use goods, there must be a transfer of possession and effective control. The Tribunal concluded that the appellant's retention of rights to wash and maintain the workwear did not constitute a transfer of effective control. 3. Applicability of Service Tax: The Tribunal examined whether the appellant's activity was subject to service tax. The adjudicating authority had dropped the demand for service tax, but the Commissioner (Appeals) reversed this decision. The Tribunal noted that similar issues had been resolved in favor of the appellant in previous cases, where it was held that the activity did not fall under "Supply of Tangible Goods Service" or "Declared Service." The Tribunal emphasized that the effective control of the workwear remained with the clients, and the appellant's activity was not taxable under the Finance Act, both before and after the introduction of the negative list regime. Conclusion: The Tribunal upheld the decisions of the CESTAT Chandigarh and Chennai Benches, which had consistently ruled that the appellant's activity was not taxable under "Supply of Tangible Goods Service" or "Declared Service." The Tribunal dismissed the Revenue's appeal and allowed the appellant's appeal, setting aside the impugned order. The Tribunal also noted that the Revenue's appeal to the Supreme Court against the Chennai Tribunal's order did not have a stay order, and thus, the Tribunal's decision remained in favor of the appellant. Final Orders: - In Appeal No. ST/11134/2019, the impugned order was upheld, and the Revenue's appeal was dismissed. - In Appeal No. ST/10718/2021, the impugned order was set aside, and the appellant's appeal was allowed. Pronouncement: The judgment was pronounced in the open court on 23.01.2023.
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