2016 (5) TMI 375 - AT - Service Tax

Liability of service tax - Maintenance & Repair Services Business Auxiliary Services - Whether the activity of the appellant in supplying and maintenance with repairs the ATM machine are liable to be tax - period involved is July, 2003 to 31.03.2006 - Appellant contended that Service Tax liability in respect of ATM machines was brought into statute w.e.f. 01.05.2006 and hence no liability arises for the material period. Held that - the provisions of Section 65(9a) & (9b) clearly indicates that any services rendered in relation and respect of ATM machines are taxable from 01.05.2006. It is undisputed that the appellant had rendered the services of Installation and various services in respect of Automated Teller Machines. It is found that Tribunal s decision in the case of NCR Corporation India Pvt. Ltd. Vs. Bangalore 2008 (5) TMI 27 - CESTAT BANGALORE was considering the self same issue and held in favour of the assessee that services rendered in respect of Automated Teller Machines are taxable from 01.05.2006. The self same issue for the very same period was before the Tribunal in the appellant s case wherein, Revenue authorities wanted to tax these services under Erection, Commission and Installation Services or under Works Contract Services. The Tribunal held that the services rendered by the appellant in respect of Automated Teller Machines cannot be taxed prior to 01.05.2006. Therefore, now the issue is settled in favour of the appellant, and the impugned order holding the services rendered by the appellant in respect of Automated Teller Machines are taxable under any other category prior to 01.05.2006 is erroneous. Accordingly, that portion of the impugned order which confirms the Service Tax liability along with interest on this point is liable to be set aside. Liability of Service tax - Goods Transport Agency - Held that - agreement talks about movement of Automated Teller Machines by paying sum, which would mean the appellant had rendered services to do with movement of Goods during the material period. In our view the appellant had no case on merits, on holistic reading of clauses of agreement, leads to inevitable conclusion that the said agreement is for movement of ATM s to various locations, and appellant is paid for such movement of ATM s.Therefore, the services rendered by appellant would fall under category of Goods Transport Agency Servicesand accordingly liable to Service tax along with interest. Imposition of penalties - Section 76, 77 and 78 of the Finance Act, 1994- Goods Transport Agency - Held that - since majority of demand is set aside in respect of Automated Teller Machines, we hold that there is no reason for visiting appellant with penalty in respect of Goods Transport Agency as in our view appellant could have entertained a view that the movement of ATM s is not covered under Goods Transport Agency Services. Therefore, penalties imposed are set aside. Revenue s appeal seeking to the enhance penalty under Section 76 consequently fails. Appeal disposed of

Summary

Issues:
1. Taxability of services rendered in relation to Automated Teller Machines.
2. Service Tax liability under Goods Transport Agency.
3. Imposition of penalties under Section 76, 77, and 78 of the Finance Act, 1994.

Analysis:

Issue 1: Taxability of services rendered in relation to Automated Teller Machines
The case involved a dispute regarding the taxability of services provided by the appellant in relation to Automated Teller Machines (ATM). The Revenue authorities contended that these services fell under Maintenance & Repair Services and Business Auxiliary Services, thus attracting Service Tax liability. The appellant argued against the demand, citing the introduction of Service Tax liability for ATM services from 01.05.2006. The Tribunal examined Section 65(9a) & (9b) of the Finance Act, 1994, which clarified the taxability of services related to ATMs. Referring to precedents and the specific definitions provided, the Tribunal concluded that services rendered for ATMs were taxable only from 01.05.2006. Therefore, the Tribunal set aside the Service Tax liability along with interest imposed on the appellant for the period before 01.05.2006.

Issue 2: Service Tax liability under Goods Transport Agency
The Tribunal also considered the Service Tax liability under the Goods Transport Agency for the movement of ATMs. Upon reviewing the agreements between the appellant and service providers, it was determined that the appellant had indeed provided services related to the movement of goods, specifically ATMs, during the relevant period. The Tribunal found that the appellant's services fell under the category of Goods Transport Agency Services, thereby upholding the Service Tax liability along with interest in this regard.

Issue 3: Imposition of penalties
Regarding the imposition of penalties under Section 76, 77, and 78 of the Finance Act, 1994, the Tribunal ruled that since the demand for Service Tax liability concerning ATMs was set aside, there was no justification for imposing penalties related to the Goods Transport Agency services. As the main appellant's appeal was partially allowed on merits and penalties were set aside, the Revenue's appeal to enhance penalties under Section 76 was dismissed. Consequently, the cross objection filed by the main appellant was also disposed of accordingly.

In conclusion, the Tribunal resolved the issues by clarifying the taxability of services provided for ATMs, confirming the Service Tax liability under the Goods Transport Agency, and addressing the imposition of penalties under the Finance Act, 1994.