2013 (1) TMI 660 - AT - Service Tax

Waiver of demand Stat petition - Air Transport of Passenger service - Management, Maintenance or Repair service - Supply of tangible goods services - Assessee is providing chartered flights to various organizations Held that - The service is provided to various companies, who chartered the air craft for specific time or for specific journey. The payment is not based on number of passengers and the appellant is not concerned with travelling also. No tickets are issued to the passengers and no charges are collected from the passengers. Therefore, the service provided cannot be considered as transport of passengers, but has to be considered as charter of air craft. In the present system of taxation, the assessee himself classifies the service, quantifies the Service Tax liability and pays the same. There is no concept of assessment on a regular basis or acceptance of details in the returns as correct officially by the Department and therefore the claim of subsequent assessment have been accepted cannot be accepted unless documentary evidence is produced to show that the Department has accepted the assessment made by the assessee and has agreed that the classification of the service is not under SOTG service. No conclusive documentary evidence was produced for this purpose - pre deposit ordered partly.

Issues: Classification of services provided by the appellant under Service Tax - Whether services fall under Air Transport of Passenger service or Supply of Tangible Goods service.

Analysis:
1. The appellant provided chartered flights to organizations and claimed their services fell under Air Transport of Passenger service and Management, Maintenance, or Repair service. However, the impugned order classified the hiring of chartered aircraft as "supply of tangible goods services" subject to tax, demanding Rs.1,73,92,144/- with interest and a penalty. Additionally, smaller amounts were demanded for services received from abroad, which were paid by the appellant. The appellant argued they should only pay tax under the category of transport of passengers by air service and not supply of tangible goods service, citing the need for actual supply of aircraft for the latter classification.

2. The appellant's counsel contended that the transport of passengers by air service definition was amended in 2010 to include domestic journeys, emphasizing that service tax should only apply to services provided to passengers and not just for hiring aircraft. They relied on a previous case to support that tangible goods service requires the recipient to have possession and control over goods, which was not the case with chartered aircraft services. The appellant maintained that they provided transportation services, not the supply of aircraft.

3. The respondent argued that the appellant's services were akin to supplying tangible goods since they chartered aircraft based on usage and distance, not the number of passengers. They claimed the appellant cleverly disguised charges based on passengers to avoid the tangible goods service classification. Citing a tribunal decision, the respondent asserted that as the appellant retained possession and control of the aircraft, the levy was correctly applied. The respondent contended that the appellant's services did not fall under transport of passengers by air service due to the charging structure and lack of direct service to passengers.

4. The Tribunal analyzed both arguments and concluded that the appellant's services did not align with transport of passengers by air service, as the focus was on transporting passengers, not chartering aircraft. The appellant's services were characterized as chartering aircraft to companies for specific purposes, with charges based on usage and distance, not passenger count. The Tribunal noted the absence of passenger-related activities, such as ticketing or passenger charges, supporting the classification as charter of aircraft. Additionally, the appellant retained possession and control of the aircraft during usage, further supporting the tangible goods service classification.

5. The Tribunal highlighted that the appellant's payment method based on passengers did not alter the service tax liability, and the absence of VAT on transactions reinforced the service classification. The Tribunal rejected the appellant's claim of past assessments acceptance by the Department without conclusive evidence. The Tribunal emphasized the need for detailed consideration of agreements and transactions during the final hearing. Due to the lack of a prima facie case for complete waiver and financial difficulty plea, the Tribunal directed the appellant to deposit Rs.35 lakhs as pre-deposit within eight weeks, granting a stay on the balance amount recovery during the appeal.

6. In conclusion, the Tribunal upheld the classification of the appellant's services as supply of tangible goods, requiring a pre-deposit while granting a stay on the balance amount recovery pending the appeal, subject to compliance.

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