2025 (4) TMI 1016 - AT - Service Tax

Levy of service tax - Supply of Tangible Goods service - leasing of machinery to the lessee - extended period of limitation - HELD THAT - Given that in this instance the appellant is leasing out certain machinery it is only when the right to use the machinery is provided to the service recipient without giving right of possession and right of effective control the service would come within the ambit of the aforementioned service of supply of tangible goods. What would constitute a transaction of the transfer of right to use goods was stated in the decision of Bharat Sanchar Nigam Ltd v. Union of India 2006 (3) TMI 1 - SUPREME COURT by the Honourable Supreme Court in the course of deciding the question of the nature of the transaction by which mobile phone connections are enjoyed whether is it a sale or is it a service or is it both? The Hon ble Apex Court has inter-alia dwelling on Article 366(29A) the legislative competence of the state to levy sales tax under Entry 54 List II of the Seventh Schedule and the powers of Central Government to levy service tax under Entry 97 of List I elaborated upon a transaction of the transfer of right to use goods. It is pertinent to note that while the SCN merely states that from the lease agreement it can be seen that the lessee has no legal right of possession and effective control of the machinery taken on lease from the taxpayer yet it fails to put the appellant to notice as to which term exactly is being interpreted by the SCN issuing authority in this fashion thereby rendering the charge vague and lacking in details. The Honourable Supreme Court in its decision in CCE Bangalore v. Brindavan Beverages 2007 (6) TMI 4 - SUPREME COURT has held that the show cause notice is the foundation on which the department has to build up its case and if the allegations in the show cause notice are not specific and are on the contrary vague lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. Extended period of limitation - HELD THAT - The appellant has consistently taken a plea before the lower authorities that the issue was that of interpretation and that the appellant was of the view that since they have paid VAT the transaction itself was not within the scope of service tax law. Therefore in such circumstances coupled with the fact that there has been no evidence let in of any positive act of willful suppression or misstatement of facts with intent to evade payment of duty that has been made by the appellant the SCN dated 27-04-2012 for the period from April 2008 to March 2010 is also barred by limitation having been issued beyond the normal period. Conclusion - i) Supply of tangible goods for use and leviable to VAT/sales tax as deemed sale of goods is not covered under the scope of the service of supply of tangible goods and whether a transaction involves transfer of possession and control is a question of facts and is to be decided based on the terms of the contract and other material facts. ii) The demand of duty along with appropriate interest thereon and penalty imposed by the original authority as upheld by the learned appellate authority are untenable and cannot sustain. Appeal allowed.

Summary

The core legal questions considered by the Tribunal in this appeal are:

1. Whether the demand of service tax on the appellant for the period April 2008 to March 2010, alleging provision of 'Supply of Tangible Goods' service under Section 65(105)(zzzzj) of the Finance Act, 1994, is tenable.

2. Whether the appellant's leasing of machinery to the lessee amounts to a taxable service of supply of tangible goods or a transfer of right to use goods attracting VAT instead of service tax.

3. Whether the demand raised by the Department is barred by limitation.

Issue-wise Detailed Analysis

Issue 1: Tenability of Service Tax Demand under Section 65(105)(zzzzj)

The relevant legal framework is Section 65(105)(zzzzj) of the Finance Act, 1994, which defines taxable service as any service provided in relation to supply of tangible goods including machinery for use, without transferring right of possession and effective control. The service tax notification No. 18/2008-ST dated 10.05.2008 introduced this taxable service with effect from 16.05.2008.

The Court referred to the authoritative interpretation in Bharat Sanchar Nigam Ltd v. Union of India, where the Supreme Court elucidated the attributes of a transaction constituting transfer of right to use goods. The key elements include availability of goods for delivery, consensus on identity, legal right to use with all consequences, exclusion of transferor's rights during the period, and exclusivity of such transfer.

Examining the lease agreement dated 25.03.2001, the Tribunal noted clauses where the lessee holds and retains possession and custody of the machinery at all times and acknowledges being a bailee without proprietary rights but with effective control over operation, maintenance, and repair of the machinery. The lessee must operate the machinery with competent personnel and maintain it in good working order, bearing repair costs if necessary.

The Department's show cause notice alleged that the lessee had no legal right of possession and effective control, thus attracting service tax. However, the Tribunal found this allegation vague and lacking specificity, violating principles established by the Supreme Court in CCE, Bangalore v. Brindavan Beverages, which requires show cause notices to clearly specify allegations to provide adequate opportunity to the noticee.

Further, the adjudicating authority's interpretation that retention of ownership equates to retention of effective control was rejected. The Tribunal emphasized that retention of title by the lessor does not negate transfer of possession and effective control to the lessee, consistent with the Supreme Court's explanation that title remains with the transferor even when right to use is transferred.

Therefore, on a plain reading of the lease terms, the lessee had possession and effective control, meaning the transaction does not fall under the taxable service of supply of tangible goods under Section 65(105)(zzzzj).

Issue 2: Applicability of VAT versus Service Tax

The Tribunal relied on the CBEC Letter D.O.F. No. 334/1/2008-TRU dated 29.02.2008, which clarifies that transfer of right to use goods involving transfer of possession and control is leviable to sales tax/VAT as a deemed sale under Article 366(29A)(d) of the Constitution. Conversely, supply of goods for use without legal possession and control is treated as a service and liable to service tax.

The appellant demonstrated payment of VAT on lease rentals, supported by a Chartered Accountant certificate and invoices. The Tribunal held that since VAT was paid, and the transaction involved transfer of possession and effective control, the transaction falls outside the scope of the service tax on supply of tangible goods. The Department failed to rebut this evidence or controvert the appellant's contention, rendering the service tax demand untenable.

Issue 3: Limitation on Demand

The show cause notice dated 27.04.2012 was issued for the period April 2008 to March 2010, invoking extended limitation. The appellant contended that since the demand arose from audit and there was no suppression or intent to evade tax, the extended period could not be invoked.

The Tribunal agreed, noting the appellant consistently maintained the transaction was subject to VAT and not service tax, indicating no willful suppression or misstatement. Consequently, the demand was barred by limitation.

Treatment of Competing Arguments

The Department relied on the lease agreement and the definition of taxable service but failed to specify which terms negated possession and control. The Tribunal found the Department's interpretation vague and based on a misconception equating ownership with effective control. The appellant's argument was supported by the lease terms, statutory provisions, CBEC circular, and judicial precedents.

The appellant's reliance on recent decisions from various Tribunals and the Supreme Court, including Shelf Drilling and MSPL Ltd, reinforced the principle that transactions involving transfer of possession and effective control attract VAT and not service tax under supply of tangible goods.

Significant Holdings

"It is only when the right to use the machinery is provided to the service recipient, without giving right of possession and right of effective control, the service would come within the ambit of the aforementioned service of supply of tangible goods."

"Retention of absolute and permanent ownership right and title with the appellant does not equate to retention of effective control."

"The show cause notice is the foundation on which the department has to build up its case and if the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations."

"Supply of tangible goods for use and leviable to VAT/sales tax as deemed sale of goods, is not covered under the scope of the service of supply of tangible goods and whether a transaction involves transfer of possession and control is a question of facts and is to be decided based on the terms of the contract and other material facts."

"The demand of duty along with appropriate interest thereon and penalty imposed by the original authority, as upheld by the learned appellate authority, are untenable and cannot sustain."

The Tribunal finally allowed the appeal, setting aside the impugned orders, holding that the appellant's leasing arrangement involved transfer of possession and effective control, attracting VAT and not service tax, and that the demand was also barred by limitation.