2012 (7) TMI 287 - AT - Service Tax

Tribunal rules FPU not liable for service tax on foreign company payments

Aban Loyd Chiles Offshore Ltd. Versus Commissioner of Service Tax, Chennai

The Tribunal ruled in favor of the appellant, a Floating Production Unit (FPU), in a case concerning the applicability of service tax on payments made to ... Storage or warehouse keeper – recipient of service from foreign party i.e. PROSAFE – Held that:- In terms of the agreement, PROSAFE was responsible for maintaining floating storage and offloading unit system and was to operate the system efficiently to receive storage and deliver correctly in accordance with the specification and operating requirements. That does not bring the activity of PROSAFE squarely within the fold of Section 65 (105) (zza) as a storage or a warehouse keeper - Being an agent of the process of production, it was not a storage or warehouse keeper. Therefore, service was not provided by the foreign agency as storage or warehouse keeper - appellant shall not be liable to pay service tax as the recipient of service of the nature not falling within the purview of Section 65 (105) (zza) of Finance Act 1994 read with Section 65 (102) - appeal is allowed Issues:- Applicability of service tax on storage and warehouse services provided by a foreign company to an appellant.Analysis:The appellant, a Floating Production Unit (FPU), engaged in offshore activities for crude oil production, appealed against an order levying service tax and education cess on payments made to a foreign company, PROSAFE, for operations personnel and resources. The Revenue contended that the payments were for storage and warehouse services provided by PROSAFE, making the appellant liable for service tax. The appellant argued that PROSAFE did not provide any taxable service, and there was no storage or warehouse service involved. The Tribunal examined the nature of the services provided by PROSAFE to determine the applicability of service tax.The Tribunal referred to the definitions of storage and warehousing under Section 65 (102) of the Finance Act, 1994, which include services for goods but exclude services for agricultural produce or by a cold storage. The adjudication order stated that PROSAFE was responsible for maintaining the floating storage and offloading unit system, operating it efficiently, and delivering according to specifications. However, the Tribunal observed that PROSAFE's role was part of the production process, not that of a storage or warehouse keeper. Therefore, the services provided by PROSAFE did not fall under the purview of Section 65 (105) (zza) of the Finance Act, 1994, as a storage or warehouse keeper. Consequently, the Tribunal held that the appellant was not liable to pay service tax as the recipient of services outside the scope of the taxing entry.In conclusion, the Tribunal allowed the appeal, ruling in favor of the appellant and dismissing the Revenue's claim for service tax on the payments made to PROSAFE. The decision emphasized that PROSAFE's activities did not qualify as storage or warehouse services under the relevant provisions of the Finance Act, 1994. The application for an extension of the stay order was also disposed of as infructuous since the appeal was resolved on the same day.