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2017 (2) TMI 262 - AT - Service TaxRenting of machinery - Computer Colour Display Machines along with software for matching of shades - whether the rent received will be taxable under the category of Banking & Other Financial Services or not? - Held that - Applying the definition of Banking and other Financial Services and the definition of other taxable service, it is found that the amount received by appellant in the case in hand would not be covered for taxing under Banking and other Financial Services. The Tribunal in the case of Banswara Syntex 2009 (7) TMI 85 - CESTAT, NEW DELHI while considering a similar issue of whether leasing of land, building as well as machinery would fall under Banking and other Financial Services or otherwise, held that such amount received as lease rent would not be covered under Section 65 (105) of Banking and other Financial Services in the Finance Act, 1994. Service not taxable - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Classification of services under Banking & Other Financial Services. 2. Applicability of service tax on rent received for Computer Colour Display Machines. 3. Nature of the leasing arrangement (financial vs. operating lease). 4. Validity of the show-cause notice in terms of limitation period. Issue-wise Detailed Analysis: 1. Classification of Services under Banking & Other Financial Services: The core issue revolves around whether the rent received by the appellant for providing Computer Colour Display Machines (CCDM) to dealers falls under the category of "Banking & Other Financial Services" as defined under Section 65(12) of the Finance Act, 1994. The department argued that the service provided should be classified under this category, thereby attracting service tax. However, the appellant contended that they are a manufacturing company and not a banking or financial institution, and thus, the services provided do not fall under the specified category. The Tribunal referenced several cases, including Banswara Syntex and Inox Air Products Ltd., where it was held that similar services did not qualify as "Banking & Other Financial Services." 2. Applicability of Service Tax on Rent Received: The Tribunal examined whether the rent received for CCDM provided to dealers should be subject to service tax. The appellant's stance was supported by CBEC Circular No. 83/1/2006-ST, stating that service tax is not payable under "Banking & Other Financial Services" for such transactions. The Tribunal concluded that the amount received by the appellant would not be covered for taxing under this category, aligning with the precedents set in previous Tribunal decisions. 3. Nature of the Leasing Arrangement (Financial vs. Operating Lease): The appellant argued that the arrangement constituted an operating lease rather than a financial lease. The Tribunal referred to the Supreme Court's decision in Asea Brown Boveri Ltd., which delineates the characteristics of a financial lease. The Tribunal found that the appellant's agreement did not meet the criteria for a financial lease, as the ownership of the leased equipment was not transferred to the lessee, and the risks and rewards incidental to ownership were not transferred. This distinction was crucial in determining the tax liability. 4. Validity of the Show-Cause Notice in Terms of Limitation Period: The appellant contended that the show-cause notice issued for the period 2002-03 to 2005-06 was time-barred as it was served on 20.06.2007, exceeding the statutory limitation period. The Tribunal did not find any evidence of suppression of facts by the appellant, which could have justified the extended limitation period. Therefore, the notice was deemed time-barred. Conclusion: The Tribunal concluded that the services provided by the appellant did not fall under "Banking & Other Financial Services" as per Section 65(12) of the Finance Act, 1994. Consequently, the rent received for CCDM was not subject to service tax. The nature of the lease was determined to be an operating lease, not a financial lease, further supporting the appellant's case. Additionally, the show-cause notice was found to be time-barred. The Tribunal set aside the impugned order and allowed the appeal, thereby ruling in favor of the appellant. Order: The impugned order is set aside, and the appeal is allowed. (Order pronounced in Court on 18.01.2017)
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