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TMI Blog2023 (8) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... evant contracts/ agreements, then only it can be determined whether there is a service or a sale . The clause 10 of the Charter states that the vessel shall during the charter period be in full possession and at the absolute control for all purposes of the charterers and under their complete control in every respect. The charterers shall maintain the vessel. In view of it is clear that during the charter period of vessels the right of possession of vessels and effective control have been transferred to service recipient, therefore the service does not fall under the Supply of Tangible Goods Service . On examining the scope of transfer of right to use, the Hon ble Karnataka High Court in THE GREAT EASTERN SHIPPING CO. LTD. VERSUS STATE OF KARNATAKA OTHERS [ 2019 (12) TMI 225 - SUPREME COURT] held that when the vessel during the charter period was for all purposes at the disposal of the charterer and under their control in every respect including maintenance, spare parts, efficient operation, fulfilment of legal obligations etc., the same should be considered as transfer of right to use. On careful consideration of the terms of the above Bareboat Charter agreement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on facts of four of these appeal are that the appellant is engaged in the providing cargo handling services, port handling services, business auxiliary services etc. During the course of audit, it was noticed that the appellant has shown in the balance sheet for the period 2010-11 to 2011-12, chartered hiring income where no service tax has been paid. On being asked the reason for nonpayment of service tax, the appellant stated that they have not paid service tax where the control and possession has been given to the charterer. Further appellant stated that they had provided the vehicles and vessels on bare charter to the charterer and as per the terms of the hiring the equipment were under the control and possession of the charterer/ hirer. Auditors observed that appellant was engaged in providing services in category Supply of Tangible Goods Services. The Finance Act, 2008 has introduced a new taxable service Supply of Tangible Goods service for levy of service tax w.e.f. 16.05.2008 vide Notification No. 18/2008-ST dated 10.05.2008. The gross amount charged or total consideration received for supply of tangible goods by the service provider shall be chargeable to service tax. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 2.3 He also submits that in terms of the bareboat charter agreement that appellant has entered with the charterer /transferee in the BIMCO format, it does not have effective control the right of possession of the vessels given to hire. The complete custody of the vessels will be with the lessee/ charterer/ transferee during the tenure of the lease and the lessee will be wholly liable for all the damages caused to vessels. The Charterer is required to confirm with all the rules and regulation associated with the operating of the vessels. The charterer is required to maintain the vessels in proper conditions and charterer shall be responsible for the maintenance and repairs of the vessels, and shall bear the expenses of the master, crew, driver, fuel and any other expenses that may accrue during the lease period. 2.4 He further submits that insofar as the vehicles are concerned, the same was given under charter basis to M/s ESIL, who use the same for transportation between its hypermarts and customers. The effective control and possession of these vehicles have been transferred to M/s ESIL, and this fact clearly comes out from the clauses of the contract. He produced the cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vehicle/vessels is borne by the lessee and not the appellant. 2.8 He further submits that the finding of impugned order regarding the trading restrictions, that under the Maritime Regulation in India the vessel is assigned as trading limits. Also, the Insurance companies specify the area only up to which they will cover the maritime claims. The stipulation of trading restriction is also reckoned in the classification issued by the Ministry of Finance vide F.No. 354/63/2008 as 18.06.2008. Therefore, restrictions under the law with regard to navigating the vessels in war zones, carrying explosives etc., or allowing movement only on west coast etc. cannot be reason to hold that there is no transfer of effective control and possession. 2.9 He also submits that Ld. Commissioner has drawn incorrect inference from the fact that as per the agreement dated 01.06.2010 between Essar Logistics Ltd. M/s Essar Steel Ltd., the term of payment is based on per month per vehicle or on pro rata to the number of days of usage which according to him means that the effective control was still with the appellant. However, both under time charter basis where the effective control and possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcavators, wheel loaders, dump trucks, crawler carriers, compaction equipment, cranes, etc., offshore construction vessels barges, geo-technical vessels, tug and barge flotillas, rigs and high value machineries are supplied for use, with no legal right of possession and effective control. Transaction of allowing another person to use the goods, without giving legal right of possession and effective control, not being treated as sale of goods, is treated as service. 4.4.3 Proposal is to levy Service Tax on such services provided in relation to supply of tangible goods, including machinery, equipment and appliances, for use, with no legal right of possession or effective control. 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 proposed service. 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. This could be ascertainable from the fact whether or not VAT is payable or paid. 4.3 The Circular clarified that wherever supply of tangible goods for use involves transfer of both posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above clause of the Charter states that the vessel shall during the charter period be in full possession and at the absolute control for all purposes of the charterers and under their complete control in every respect. The charterers shall maintain the vessel. In view of it is clear that during the charter period of vessels the right of possession of vessels and effective control have been transferred to service recipient, therefore the service does not fall under the Supply of Tangible Goods Service . 4.6 We also gone through the vehicle hire agreement entered between Appellant and M/s Eassr Steel India Ltd. The following fact comes outs from the clause 2 of the said agreement/ contracts- (1) M/s ESIL is responsible for risk of loss or damage to the vehicles; (2) At the end of the lease period, ESIL will be obligated to return the vehicles to the appellant in the same condition in which it was received, except for normal wear and tear; (3) ESIL shall maintain the vehicles in good repair and operating condition. (4) The return of vehicles will be at ESIL s expense; (5) The Appellant shall not be held responsible for failure of the vehicles to performs after initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and Bhima SSK 2015 (39) S.T.R. 440 , Kinetic Communications Ltd. v. Commissioner 2017 (3) G.S.T.L. 319 (Tribunal), Paul Merchants Limited v. Commissioner - 2013 (29) S.T.R. 257 (Tri.-Del.) and M/s. Gap International Sourcing (India) Pvt. Ltd. v. CST - 2014-TIOL-465-CESTAT-Del. = 2015 (37) S.T.R. 757 (Tribunal). 4.11 On the identical issue the Hon ble Apex Court while upholding the Tribunal Mumbai s order reported at 2018 (11) G.S.T.L. 391 (Tri. - Mumbai) in the case of COMMISSIONER OF SERVICE TAX-V, MUMBAI Versus UFO MOVIEZ INDIA LTD reported at 2022 (61) G.S.T.L. 4 (S.C.) given the following observation :- Delay condoned. 2. In the facts of the present case as it is not disputed that the respondent had regularly paid amount towards VAT liability in respect of the subject goods during the relevant period, the question of claiming service tax thereon does not arise. 3. Accordingly, in the facts of the present case, the civil appeal is dismissed. 4. Pending applications stand disposed of. 4.12 In the present case also since the appellant have admittedly paid the VAT to the state VAT department, following the above observation of the Apex Court, the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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