2018 (9) TMI 1723 - AT - Service Tax

Classification of Services - use of cranes and torex with operator, manpower and supervision, either on single use basis or on monthly or specified period basis - whether classified under Business Support Service or Supply of Tangible Goods service? Held that - Though the definition of BSS is no doubt an inclusive definition, it only means that the type of activities that would come within the fold of that category will necessarily have to be of the kith and kin or similar to the examples listed therein - Thus, for any other activity to find a fit within this definition of BSS‛ such activity should pertain to the same class or category or genus as the list of examples given in the definition. This is the basic all important maxim of ejusdem generis. By no stretch of imagination can renting of cranes be called an activity of the same genre as the other examples listed in the definition of Business Support Service‛ in Section 65 (104c) of the Act - appeal allowed - decided in favor of appellant.

Issues:
1. Whether the activity of renting cranes falls under 'Business Support Service' for the purpose of service tax liability.
2. Whether the introduction of a new service category affects the taxation of services provided before the introduction of the new category.
3. Interpretation of the definition of 'Business Support Service' under Section 65 (104c) of the Act.

Analysis:

Issue 1:
The case involved a dispute regarding the classification of the activity of renting cranes by the appellants under the category of 'Business Support Service' for service tax liability. The Department contended that the charges collected by the appellants for the use of cranes and related services attracted service tax under this category. The appellants argued that the activity should be classified under 'Supply of Tangible Goods Service' and was taxable only from a specific date. The Tribunal analyzed the definition of 'Business Support Service' under Section 65 (104c) of the Act, which includes various support services related to business or commerce. The Tribunal held that renting of cranes did not fall within the scope of activities listed in the definition of 'Business Support Service,' such as customer evaluation, telemarketing, and logistics management. Therefore, the attempt to categorize the renting of cranes under 'Business Support Service' was deemed unsustainable.

Issue 2:
The appellants argued that the introduction of a new service category, 'Supply of Tangible Goods Service,' meant that the activity of renting cranes should be taxed only from the date this new service category was introduced. They relied on precedents and legal principles to support their argument. The Tribunal considered the argument and held that the introduction of a new service category did not automatically tax activities that were not previously covered under any existing category. The Tribunal emphasized that for an activity to be taxed under a new service category, it must align with the nature of services specified in that category. Therefore, the Tribunal concluded that the appellants could not be taxed for the renting of cranes under 'Business Support Service' prior to the introduction of the new service category.

Issue 3:
The Tribunal delved into the interpretation of the definition of 'Business Support Service' under Section 65 (104c) of the Act. The definition encompassed various services related to business or commerce, including customer relationship management, logistics management, and transaction processing. The Tribunal applied the principle of ejusdem generis, which states that activities falling under an inclusive definition must be of the same kind or category as the examples listed therein. By applying this principle, the Tribunal determined that the activity of renting cranes did not align with the examples provided in the definition of 'Business Support Service.' Consequently, the Tribunal set aside the lower authorities' decision and allowed the appeal in favor of the appellants.

In conclusion, the Tribunal ruled in favor of the appellants, holding that the activity of renting cranes did not fall under 'Business Support Service' for service tax liability and could not be taxed under this category before the introduction of a new service category.

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