Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2018 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (9) TMI 921 - CESTAT NEW DELHIClassification of Services - appellant own two Aircrafts/Helicopters, which are being provided by them on chartered hire basis - whether in the given facts and circumstances of the case, the services provided by the appellant are the Aircraft Operator Service as assumed by the appellant or, are the services for supply of tangible goods for use as alleged by the Department? Held that:- For an “Aircraft operator service”, the activity is regulated under strict observation of Aviation Industry subject to stringent regulatory controls, Director General of Civil Aviation grants permits to the scheduled aircraft transport service. Even a non-scheduled permit can be granted by DGCA and the fact remains is that any person in Aviation has at least to be a non-scheduled operator. As far as supply of tangible goods is concerned, it is apparent from the above definition that it is the transfer of the goods to be used without the transfer of its legal possession and effective control by one person to another - The invoice makes it clear that the Aircraft was given on hire for use of charterer on the terms and conditions of the permit in favour of the appellant. It is evident that the Aircraft was supplied alongwith the licensed / trained Pilot and necessary Engineering Crew to operate the Aircraft. Thus, the effective control and possession of the Aircraft was still with the appellant, who was charging the charterer on the basis of actual time consumed during the said flight. An identical issue regarding charter hire of helicopter came up before the Tribunal in the case of Global Vectra Helicorp Ltd. vs. CC (Import) Mumbai [2015 (2) TMI 974 - CESTAT MUMBAI (LB)], in that case the appellant therein claimed the classification of their service as Transportation of Passengers by Air Service. But, the Tribunal after very detailed discussion of the facts and various case laws on the subject as well as CBEC Circular No. 20/2009 dt. 09.02.2009 came to the conclusion that the services will be rightly classifiable under the category of “Supply to Tangible Goods Service” - the classification of the service under the category of STGS upheld. Time Limitation - Held that:- It is apparent from the show cause notice dated 21.12.2010 that a demand for the period w.e.f. May, 2008 to May, 2010 has been raised - It becomes apparently clear that while issuing the said show cause notice, Department has invoked the longer time limit as mentioned in proviso to Section 73 of the Act. The law for invoking extended period of limitation is stated that the onus heavily rest upon the Department to prove the alleged suppression of facts. Perusal of entire record shows no such discharge on part of the Department, except merely raising the oral allegation of suppression - the Department was not entitled to invoke the extended period of limitation - the demand falling beyond one year period preceding show cause notice dated 21.12.2010 is not sustainable and accordingly is set aside. Demand beyond normal period do not sustain - Appeal allowed in part.
|