2018 (6) TMI 331 - AT - Service Tax

Sale of service - hiring of furniture on rent - Supply of Tangible Goods Service - appellant hire furniture on rent to visitors or participants in business exhibitions as per the requirement of the organizers and exhibitors and they are treating the same as deemed sale and paying VAT on the same - whether the respondent has provided service under the category of Supply of Tangible Goods ? Held that - It is an admitted fact in the Show Cause Notice, that the respondent-assessee has paid VAT on the disputed transaction. Further, the Show Cause Notice is presumptive in nature, as there is no finding and/or allegation that effective control of the goods/furniture was not given by the respondent to its customers. The definition of Supply of Tangible Goods as given in Section 65 (105) (zzzzj) of the Finance Act, 1994, provides that such services are for use, without transferring right of possession and effective control of such machinery, equipment and appliances. There is neither allegation nor any finding by the courts below that the right of possession and/or effective control of the furniture/equipment was not given by the respondent to its customers. Thus, the essential facts for levy of Service Tax under the category of Supply of Tangible Goods are wanting. SCN is vague - demand set aside - appeal dismissed - decided against Revenue.

Summary

Issues:
Whether the respondent has provided service under the category of "Supply of Tangible Goods."

Analysis:
The appellant alleged that the respondent provided service under the category of "Supply of Tangible Goods" based on the audit conducted by Central Excise Officers. The respondent was observed to have booked income under "Hiring of Office Furniture," which was deemed leviable to Service Tax. The appellant argued that the transaction was chargeable to Service Tax as the respondent failed to provide a written contract and did not transfer effective control of the furniture to customers. The Show Cause Notice invoked a demand of Service Tax for the period 2010-11, 2011-12 & 2012-13. The Additional Commissioner confirmed the demand, but the Commissioner (Appeals) set aside the order.

The Revenue appealed to the Tribunal, contending that the Commissioner (Appeals) erred in setting aside the order without sufficient reason. The Commissioner (Appeals) noted that although the title in the goods was not transferred, the right to use the goods was transferred to customers. The Tribunal considered the Board instruction and emphasized that the transfer of possession and effective control is a factual determination based on the contract terms and other material facts.

After hearing both parties, the Tribunal found that the respondent had paid VAT on the disputed transaction, indicating that the Show Cause Notice was presumptive. There was no finding or allegation that effective control was not transferred to customers. The definition of "Supply of Tangible Goods" requires services for use without transferring right of possession and effective control, which was not contested in this case. The Tribunal held that essential facts for levying Service Tax under this category were lacking, deeming the Show Cause Notice vague and not maintainable. The Tribunal upheld the Commissioner (Appeals) order, dismissing the Revenue's appeal and granting consequential benefits to the respondent in accordance with the law.

This judgment clarifies the criteria for determining "Supply of Tangible Goods" and emphasizes the importance of factual findings in tax disputes. The decision highlights the necessity of establishing the transfer of effective control and possession in such transactions to levy Service Tax accurately.