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TMI Blog2025 (1) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... ed based on the allegation that the trucks/trailers were not supplied to GTA. From the above discussion, it is clear that for activity of transfer of vehicles, the nature of transferee is not relevant neither for the activity to fall under 'Supply of Tangible Goods Service' not for the activity to be called as 'Hire'. The relevant criteria for the distinction is whether the right to use is transferred with possession and effective control. In case it is so transferred, the activity will that be of hire else only it shall fall under service of 'Supply of Tangible Goods' - the moment the right to use goods is transferred, the activity gets covered under the concept of 'deemed sale' and gets out of the scope of service tax net. In BUILDERS ASSOCIATION OF INDIA AND OTHERS VERSUS UNION OF INDIA AND OTHERS (AND CONNECTED WRIT PETITIONS AND APPEALS) [1989 (3) TMI 356 - SUPREME COURT], the validity of the Constitution (Forty-sixth Amendment) Act was upheld. But the Apex Court ruled that the States' power to levy tax on the goods involved in a works contract is subject to the restrictions in Article 286. As per the definition of Goods Transport Agency in Finance Act, 1994, the issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emselves, have used those trailers for transportation of goods by road. The appellant had not paid service tax due to the reason that their clients had paid the service tax in respect of their further supply/ activity. It was also noticed that during the period 2012-13 the appellant had paid service tax on full rate without claiming any abatement. The department was of the view that the appellant had provided impugned services of supplying their trailers under the taxable category of 'Supply of Tangible Goods'. Therefore, the Show Cause Notice dated 14.09.2018 was issued to the appellant for demanding service tax amounting to Rs. 9,19,397/- under section 73 along with interest and equal penalty under section 78 of the Act. 1.1 The adjudicating authority has confirmed the demand under section 73(2) along with interest under section 75 and imposed equal penalty vide order in original bearing no. 28/2020-21 dated 17.12.2020. The appeal against the said order has been rejected vide order in appeal (O-I-A) no. 15/2021 dated 31.01.2022. Being aggrieved with the said (O-I-A) order, the appellant has filed this appeal with request to set aside the impunged order (O-I-A). 2. We have heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y (GTA) under relevant Rule 4A ibid. The evidence on record clearly demonstrates that the appellant provided services of 'supply of tangible goods for use service', which does not qualify for the exemption under entry number 22(b) of notification 25/2012. The appellant has not submitted any documentary evidence for establishing their claim that they had provided vehicles on hire to GTA. In view of the foregoing, Ld. AR reiterated the findings of Commissioner (Appeals) and therefore it appears that the subject Service Tax Appeal filed by the appellant is not proper and legal and the same is liable to be rejected. 5. Having heard both the parties and perusing the entire records of the appeal memo, we observe that the appellant, the owner of the trucks, is providing those trucks to various clients including Goods Transport Agencies for transportation of goods. The appellants are doing so against certain remuneration from the said clients/ GTAs. The department formed the opinion that the said activity undertaken by the appellant merit classification under the category of 'Supply of Tangible Goods Services' and the appellant is held liable to pay service tax. However, we observe it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) There must be goods available for delivery; (b) There must be a consensus ad idemas to the identity of the goods; (c) The transferee should have a legal right to use the goods consequently all legal consequences of such use including any permissions or licenses required therefor should be available to the transferee; (d) For the period during which the transferee has such legal right, it has to be the exclusion to the transferee this is the necessary concomitant of the plain language of the statute - viz. a "transfer of the right to use" and not merely a licence to use the goods; (e) Having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others. 8. In the present case, all these conditions seems complied with. The above observed admitted facts clearly reveal that identified trailers were being supplied by the appellants. The transferre clients/GTA's had all legal rights to use the same exclusively during the period of agreement. There is no evidence produced by the department to show that the appellant had control on the movement of the trailers supplied nor during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er thereof for cash, deferred payment or other valuable consideration; (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. 12. The expression 'tax on sale or purchase of goods' is an inclusive definition. It must receive a wide and expansive meaning. The latter part of clause (29A) contemplates that 'such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods'. The sub-clauses (a) and (b) use "transfer"; subclause (c) uses "delivery"; sub-clause (d) uses "transfer of the right to use goods", and sub-clauses (e) and (f) use "supply" of goods while defining deemed sale. Thus under the sub-clause (d) there would be deemed sale if the right to use goods is transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a 'Goods Transport Agency'. (iii) The appellant has not submitted any documentary evidence for establishing the claim that they had provided vehicles on higher to GTAS. 15. We observe that to establish an activity to fall under 'Supply of Tangible Goods Service' is the right to use/exclusive possession of the goods as to whether the same has been in the control of the transferee or not, (as already discussed above). In the present case, appellant has been transferring the trailers/trucks owned by him to others who being GTA themselves or through other GTAs have been transporting goods by road. The certificate produced by one of the client of the appellant shows that the said client has already discharged the service tax liability, the client himself being the GTA. There is no denial of the department to the fact nor there is any other evidence produced by the department that during the period when appellant had transferred the right of use, the effective control and the possession was still retained with the appellant. In the absence thereof, the mere fact that the appellant was registered for rendering taxable service of 'Supply on Tangible Goods' is not sufficient to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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