2018 (7) TMI 697 - AT - Service Tax

Classification of services - lease rent received for leasing out machineries - whether classified under Banking and Financial Service or under supply of tangible goods? - scope of SCN - Held that - The activity subjected to levy of service tax in the present case is the leasing of machineries. The said activity does not fall within the definition of Banking and Financial Service. Scope of SCN - Held that - the Commissioner (Appeals) has proceeded to confirm the demand after 16.5.2008 to 31.12.2008 holding that supply of tangible goods is taxable from 16.5.2008 - Since there is no SCN proposing to demand under supply of tangible goods, the Commissioner (Appeals) having travelled beyond the show cause notice and demand cannot sustain. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the demand for service tax under Banking and Financial Services for leasing out machineries is justified.
2. Whether the demand under supply of tangible goods service after 16.5.2008 is valid.
3. Whether the Commissioner (Appeals) exceeded the scope of the show cause notice by confirming the demand under supply of tangible goods service.

Analysis:
1. The appellants were issued a show cause notice for service tax under Banking and Financial Services for leasing out machineries. The original authority confirmed a demand of &8377; 5,91,840 along with penalties. In appeal, it was observed that the activity falls under supply of tangible goods, not Banking and Financial Services. The demand prior to 15.5.2008 was set aside, but the demand from 16.5.2008 to 31.12.2008 was confirmed under supply of tangible goods service. The appellant contested the demand for the latter period.

2. The appellant argued that since the show cause notice did not mention demand under supply of tangible goods service, the department cannot confirm such a demand post 16.5.2008. The Commissioner (Appeals) had exceeded the scope of the notice by confirming the demand for this period. The activity of leasing machineries does not fall under Banking and Financial Services, as rightly noted by the Commissioner (Appeals).

3. The Tribunal found that the activity in question, leasing of machineries, does not fall under Banking and Financial Services but under supply of tangible goods. The Commissioner (Appeals) erred in confirming the demand for the period post 16.5.2008 under supply of tangible goods service, as it was beyond the scope of the show cause notice. Consequently, the impugned order was set aside, and the appeal was allowed with any consequential relief.

This judgment clarifies the distinction between services falling under Banking and Financial Services and supply of tangible goods. It emphasizes the importance of adhering to the scope of show cause notices in tax demands and highlights the need for consistency in applying tax laws based on the nature of the activity in question.