2013 (3) TMI 522 - AT - Service Tax

Classification of service - supply to tangible goods service or transportation of passenger by air service - taxability - period from 2006-07 to 2008-09 - held that - the appellant in terms of the agreements were providing helicopters to the State Governments for transportation of their personnel as and when required, and for this purpose they were required to keep the helicopters in readiness at particular places, maintain the same and also provide the qualified and experienced crew for operation and maintenance. The expenses on fuel, maintenance, parking fee etc. are to be borne by the appellant in terms of the agreement. While the appellant was receive certain minimum fixed monthly charges on account of certain minimum flying hours per calendar month, in addition to this, they also receive remuneration on per hour basis during the period when the helicopter had been operated for transportation. The agreements are for transportation of personnel by air. This can not be treated as a case where the helicopters are place by the owner, with crew or without crew, at the disposal of another person for a specified period and that person is free to operate the same. Prima facie the appellant s activity is transportation or persons within India by air and not supply of tangible goods and as such during the period of dispute the same was not taxable. - stay grated.

Summary

Issues:
1. Whether the appellant's activities constitute "supply of tangible goods service" or "transportation of passengers by air within India" for the purpose of service tax liability.
2. Whether the service received from service providers abroad is subject to service tax.

Analysis:

Issue 1:
The appellant, holding a permit for non-scheduled air transport services, provided helicopters to State Governments for transportation of personnel. The Department claimed the activity as "supply of tangible goods service" taxable under the Finance Act '94. The Commissioner upheld the service tax demand, treating it as supply of tangible goods. However, the appellant argued that their activity was transportation of passengers by air, not supply of tangible goods. They emphasized their agreement terms, charging on a per hour basis for transportation services. The Tribunal analyzed the agreements and concluded that the appellant's activities were for transportation of personnel by air, evident from the terms requiring readiness, maintenance, and crew provision. The charges were based on flying hours, supporting the view that the activity was transportation, not supply of tangible goods. The Tribunal found in favor of the appellant, directing a deposit but waiving the balance pending appeal.

Issue 2:
Regarding the service received from foreign providers, the dispute centered on whether it constituted repair and maintenance or technical inspection services. The Tribunal noted that as the recipient, the appellant would be liable for service tax on either type of service received. Thus, the Tribunal found no prima facie case in favor of the appellant on this matter. The service tax demand related to this issue was Rs. 7,82,122. The Tribunal directed the appellant to deposit Rs. 8 Lakh within four weeks, with the waiver of the balance amount contingent on compliance by a specified date.

In conclusion, the Tribunal ruled in favor of the appellant regarding the classification of their activities for service tax liability, considering them as transportation of passengers by air within India. However, the Tribunal found the appellant liable for service tax on services received from foreign providers. The decision required a deposit by the appellant, with a waiver of the balance pending appeal.