2017 (7) TMI 688 - AT - Service Tax

Classification of service - Site Formation & Clearance Excavation and Earthmoving and Demolition Service - the earth moving equipment was provided by the appellant to the recipient of services on monthly payment basis - whether the service fall under Site Formation & Clearance Excavation and Earthmoving and Demolition Service or under Supply of Tangible Goods Service? - Held that - On perusal of contract between the respondent and the recipient of services we find that the respondent have merely provided the earth moving equipment to M/s. Purti Sakhar Karkhana Ltd. on hire basis at a fixed monthly charges. The respondent is not under obligation to carry out the activity of Site Formation Services in the premises of the service recipient. In this fact it is clear that at the most the service is of supply of tangible goods for use and not fall under the service of Site Formation - the activity involved in the present case is of hiring of equipment on a monthly fixed rental. Therefore the learned Commissioner (Appeals) has correctly and legally held that the service does not fall under Site Formation Services - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Classification of services provided by the respondent under "Site Formation & Clearance, Excavation and Earthmoving and Demolition Services."
2. Determination of whether the services provided fall under "Supply of Tangible Goods Service."

Analysis:
1. The department contended that the respondent provided services of Site Formation & Clearance, Excavation, and Earthmoving and Demolition Services, leading to a demand and penalties. The Commissioner (Appeals) allowed the appeal filed by the appellant, prompting the Revenue to appeal. The Revenue argued that despite providing earth moving equipment on a monthly payment basis, the services did not change. The respondent's representative argued that the contract involved hiring equipment on a fixed monthly rental basis, emphasizing that their role was limited to supplying machinery, not carrying out the work of "erection, demolition, etc."

2. The Tribunal carefully examined the contract between the respondent and the service recipient, noting that the respondent provided earth moving equipment on hire at fixed monthly charges without the obligation to carry out Site Formation Services. The Commissioner (Appeals) analyzed the contract and bills raised, concluding that the service was a mere supply of tangible goods, not falling under Site Formation Services. The Commissioner highlighted that the consideration received was for allowing the client to use the equipment, not for carrying out Site Formation activities. Consequently, the Tribunal upheld the Commissioner's decision, stating that the services provided were correctly classified as "Supply of Tangible Goods Service," taxable from a specific date, and dismissed the Revenue's appeal.

This judgment clarifies the distinction between services involving Site Formation & Clearance, Excavation, and Earthmoving and Demolition, and the mere supply of tangible goods. It emphasizes the importance of analyzing the nature of the services provided based on contractual terms and obligations. The decision underscores the significance of considering the actual activities performed and the contractual arrangements to determine the appropriate classification for taxation purposes.