2013 (11) TMI 1011 - AT - Service Tax

Tribunal quashes service tax order, orders refund, and invalidates penalties under Finance Act.

PETRONET LNG LTD Versus COMMISSIONER OF SERVICE TAX

The Tribunal allowed the appeal, quashed the Order-in-Original, and ordered a refund of the amounts paid towards service tax and interest. It concluded ... Supply of tangible goods (STGU) - transfer of possession and effective control of the tankers - import of services - Levy of service tax on reverse charge basis - Section 65(105)(zzzzj) of the Finance Act, 1994 - extended period of limitation - Held that:- the transactions in issue (covered by the two long-term agreements both dated 31.3.01 for charter of the tankers 'Disha' and 'Raahi' and the short-term charter agreement dated 30.4.09, for charter of the tanker 'Trinity Glory') amount to transfer of the right to use tangible goods, with possession and effective control of such goods, in favour of the assessee by owners of the tankers. These transactions fall within the ambit of the exclusionary clause of Section 65(105) (zzzzj) of the Act and are therefore immune to the liability to service tax - Decided in favor of assessee. Import of service or not - Held that:- Since the tankers were not located during the entire duration of their use by the assessee, within the territory of India, the assessee is not liable to remit tax, under the reverse charge mechanism under Section 66A of the Act, in view of the provisions of the proviso to Rule 3(iii) of the Taxation of Service (provided outside India and received in India) Rules, 2006; Regarding agreements entered prior to 16.5.2008 - held that:- The transactions covered by long-term charter agreements - for the tankers 'Disha' and 'Raahi' are outside the purview of the taxable STGU, under Section 65 (105)(zzzzj); since the agreements and the delivery of these tankers pursuant to the agreements (the taxable event), occurred prior to 16.5.08, the date of introduction of this taxable service; and Penalty u/s 76 to 78 - Held that:- The facts and circumstances justify invocation of the provisions of Section 80, to delete imposition of penalties under Sections 76 to 78 of the Act. Consequently, the imposition of penalties is invalid. The amounts remitted by the appellant towards service tax and interest, under protest, shall be refunded forthwith - Decided in favor of assessee. Issues Involved:1. Levy of Service Tax under Section 66A of the Finance Act, 1994.2. Classification of the service under Section 65(105)(zzzzj) of the Finance Act, 1994.3. Transfer of possession and effective control of tangible goods.4. Applicability of the reverse charge mechanism.5. Limitation period for issuing show cause notices.6. Imposition of penalties under Sections 76 to 78 of the Finance Act, 1994.7. Validity of corrigenda amending the adjudication order.Issue-wise Detailed Analysis:1. Levy of Service Tax under Section 66A:The core issue was whether the charter of the tankers from foreign entities is subject to service tax under the category 'Supply of Tangible Goods for Use' (STGU) defined under Section 65(105)(zzzzj) of the Finance Act, 1994, on a reverse charge basis. The adjudicating authority concluded that the transaction falls within taxable STGU, but the assessee contested this conclusion.2. Classification under Section 65(105)(zzzzj):The adjudicating authority ruled that the transaction did not involve transfer of possession and control by the owner to the assessee, which is a pre-condition for the levy. This was based on the fact that statutory licenses, permissions, and insurances were in the name of the owners, and the legal right over the vessels was not completely extinguished in favor of the assessee.3. Transfer of Possession and Effective Control:The Tribunal analyzed the long-term and short-term charter agreements and concluded that the agreements conferred possession and effective control of the tankers to the assessee. Factors such as the right to appoint and control the crew, the right to issue instructions regarding voyages, and the obligation to maintain the tankers indicated transfer of possession and effective control, thus falling within the exclusionary clause of Section 65(105)(zzzzj).4. Applicability of Reverse Charge Mechanism:The Tribunal held that for the reverse charge mechanism to apply under Section 66A, the tangible goods must be located in India during the entire period of their use. Since the tankers were not located in India during their entire use, the transactions did not fall within the purview of the taxable service under the reverse charge mechanism.5. Limitation Period:The adjudicating authority rejected the assessee's defense on the bar of limitation, stating that there was no bona fide reason for failing to remit tax, and the alleged concealment would have gone undetected without Revenue's enquiry.6. Imposition of Penalties:The Tribunal concluded that the transactions did not fall within the taxable service, thus invalidating the assessed service tax liability, interest, and penalties. Even otherwise, the Tribunal held that the discretion under Section 80 ought to have been invoked to delete penalties under Sections 76 to 78.7. Validity of Corrigenda:The corrigenda issued without notice or opportunity to the assessee were held unsustainable. The Tribunal quashed the corrigenda since they substantively amended the adjudication order without following due process.Conclusion:The appeal was allowed, and the impugned Order-in-Original was quashed. The amounts remitted by the appellant towards service tax and interest, under protest, were ordered to be refunded. The Tribunal concluded that the transactions were outside the purview of the taxable service and immune to the levy and collection of service tax.