2013 (11) TMI 400 - AT - Service Tax

Tribunal rules leasing industrial tanks not subject to service tax liability

INOX AIR PRODUCTS LTD Versus COMMISSIONER OF CENTRAL EXCISE

The Tribunal ruled in favor of the appellants, a company engaged in the manufacture of industrial gases, regarding the liability to pay service tax for ... Banking and Financial services Section 65(12) r.w. Section 65(105)(zm) of the Finance Act, 1994 - Fixed amount charged as lease of equipment - Revenue was of the view that the appellants are providing banking and other financial services which are taxable – Held that:-As per the agreement, the property, always remains the property of the appellants and the same was only loaned for use to their customers - The customers are not entitled to sell or offer for sale, mortgage and pledge the tanks - The Board circular relied upon by the appellants, clarified in respect of the activity covered under banking and financial services - the appellants are not a banking company or a financial institution including a non-banking financial company or any other body corporate or commercial concern in relation to banking and other financial services – Relying upon CCE, Vadodara-I vs. G.E. India, Industries (P) Ltd. [2008 (7) TMI 29 - CESTAT, AHMEDABAD] - after looking into the terms and conditions of the agreement demand is set aside – Decided in favour of Assessee. Issues:1. Whether the appellants are liable to pay service tax for providing banking and financial services.2. Whether the activity undertaken by the appellants falls under the definition of banking and other financial services as per the Finance Act.3. Whether the terms and conditions of the agreement between the appellants and their customers indicate a leasing arrangement.Analysis:1. The appellants, engaged in the manufacture of industrial gases, also supply vacuum insulated storage tanks on lease basis. The Revenue issued show cause notices demanding service tax, alleging the appellants provide banking and financial services. The adjudicating authority confirmed the demand, which was upheld by the Commissioner (Appeals), leading to the present appeals.2. The appellants argued they are not a banking company or financial institution, hence not liable for service tax under the Finance Act. They cited a Board circular and a Tribunal decision to support their contention. The Revenue claimed the fixed amount charged by the appellants for the tanks indicated a leasing arrangement, making them liable for service tax as providers of banking and financial services.3. Upon examining the agreement terms, it was found that the tanks remained the property of the appellants and were only loaned for use to customers for a fixed term of three years. The customers were not allowed to sell, mortgage, or pledge the tanks. The Tribunal referred to the Finance Act's definition of banking and financial services and the Board circular to conclude that the appellants did not fall under the category of banking companies or financial institutions. Citing a previous Tribunal decision with a similar scenario, the demand for service tax was set aside, and the appeals were allowed.This detailed analysis of the judgment highlights the key arguments, legal interpretations, and conclusions reached by the Tribunal in deciding the issues raised in the case.