2023 (5) TMI 654 - AT - Service Tax

Levy of service tax - consideration towards bare-boat charter of offshore drilling unit to M/s Transocean Drilling Services (India) Pvt Ltd - deemed sales/high seas sale - Revenue submitted that the liability to tax arises from rendering of declared service and the sole factor in immunising themselves from the tax is evidence of right to use having been transferred to the charterer - HELD THAT - Ever since the broadening of the tax net under Finance Act, 1994, controversy over composite transactions involving sale/deemed sale, which are liable to tax only under the laws of the states comprising the Union, as well as service, taxable only under Finance Act, 1994, have been the subject of judicial determination. The plea of exclusion from sales tax imposed by states or of exclusion from service tax stemming from the consideration of the transaction being already subject to the other tax was elaborated at length in the decision of the Hon ble Supreme Court in re Bharat Sanchar Nigam Ltd, in TATA CONSULTANCY SERVICES VERSUS STATE OF ANDHRA PRADESH 2004 (11) TMI 11 - SUPREME COURT where the five attributes stand settled as the determinants of exclusion from tax under Finance Act, 1994. It would appear from a scrutiny of the charter agreements that there is no reason to conclude otherwise. It was, therefore, the responsibility of the service tax authorities to base their claim to tax these transactions by demonstrating non-compliance insofar as the impugned agreements are concerned. A perusal of the show cause notices, as well as the impugned orders confirming the demand thereon, shows those to be based entirely on the presence of permanent establishment in India, nonpayment of tax on sale and the contractual right to resume control for failure to comply with terms of agreement and chargeability to tax of supply of tangible goods prior to 1 July 2012 - The test of right to use , as laid down by the Hon ble Supreme Court, has not been applied to the transaction by the adjudicating authority while deciding on upholding the demand in the show cause notices. Insofar as the orders impugned in appeal of Revenue are concerned, there is no ground for interference. The impugned order confirming the demand is not consistent with law and merits setting aside - Appeal of assessee allowed.

Summary

Issues Involved:
- Interpretation of demand confirmed under section 73 of Finance Act, 1994 on 'bare-boat charter' of 'offshore drilling unit' for transactions occurring on the 'high seas'.
- Determination of tax liability under the respective commercial tax laws for 'deemed sale' transactions.
- Examination of 'right to use' in 'bareboat charter' agreements involving separate legal entities owning 'drilling units (rigs)'.

The judgment addressed four appeals involving Shelf Drilling group of companies and Revenue, focusing on the demand confirmed under section 73 of Finance Act, 1994 for 'bare-boat charter' transactions of 'offshore drilling units'. The transactions were claimed to be 'deemed sale' liable to tax under commercial tax laws, despite occurring on the 'high seas'. The ownership of each 'drilling unit (rig)' was vested in separate legal entities, leading to distinct appeals for separate charter agreements.

The appeals revolved around four 'drilling units (rigs)': Ron Tappmeyer, Trident XII, FG McClintock, and CE Thornton Ltd, with demands challenged by Shelf Drilling companies and Revenue. The period of contention varied across the appeals, with challenges raised against demands and dropping of demands by the Commissioner of Central Tax, Navi Mumbai. The companies, incorporated outside India, operated project offices domestically for these charters and held registrations under Finance Act, 1994. The 'drilling units (rigs)' were deployed by M/s Transocean Drilling Services (India) Pvt Ltd at the request of their clients.

The contention focused on the interpretation of 'declared service' under section 66E(f) of Finance Act, 1994, limited to 'transfer of goods by way of hiring, leasing, licensing' without actual transfer of goods. The argument emphasized the absence of control by owners over the chartered equipment, with expenses and operations managed by the charterer. The distinction between 'bareboat charter' and other types of charters like 'time charter' and 'voyage charter' was highlighted, asserting the transactions' exclusion from taxability under Finance Act, 1994.

The judgment delved into the historical context of taxation schemes pre and post the introduction of the 'negative list' regime in 2007. It referenced legal precedents and circulars to support the exclusion of such transactions from tax liability. The Revenue's argument emphasized the transfer of 'right to use' as the basis for tax liability, underlining the absence of absolute transfer in the agreements. The judgment highlighted the evolving landscape of tax net expansion and the need for specific exclusions or exemptions under the 'negative list' regime.

The judgment underscored the judicial scrutiny of composite transactions involving sale/deemed sale and service tax under Finance Act, 1994. It referenced legal determinants for exclusion from tax, emphasizing the criteria of 'right to use' and legal consequences of such transfers. The authorities were tasked with demonstrating non-compliance to justify tax claims on the impugned agreements.

Ultimately, the judgment found the impugned orders confirming the demand inconsistent with the law and set them aside. The appeals of the assessees were allowed, while those of Revenue were dismissed, with cross-objections disposed of accordingly.