2014 (12) TMI 548 - AT - Service Tax

Tribunal reclassifies Concession Agreement as Lease, resulting in tax demand. Applicant must pre-deposit to appeal.

Port Department, Govt. of Puducherry Versus Commissioner of Central Excise, Puducherry

The Tribunal determined that the Concession Agreement between the Port Department of Govt. of Puducherry and M/s. Karaikal Port Pvt. Ltd. should be ... Waiver of pre deposit - Business Support Service - applicant submits that it is a Concession Agreement, which should be treated as a ‘LEASE AGREEMENT’, if at all. - development of Karaikal Port - Held that:- Concession Agreement covers various services and some of the services are taxable services. The Adjudicating authority observed that the applicant had outsourced the activities which are necessarily provided by them. It appears that some portion of the consideration is related to Concession Fees/Royalty Fees. It is seen from the impugned order that the applicant received the amount under the head of Royalty Fees or Concession Fees or Lease Charges represents the consideration received by the Govt. of Puducherry from M/s. Karaikal Pvt. Ltd. for provision of Port Services. Both sides failed to produce the details of the amount received by the applicant in respect of the services clearly, which would be examined at the time of appeal hearing in detail. We have also considered the submissions of the learned Counsel that the demand is party barred by limitation. On a query from the Bench, the learned Counsel submits that the demand of tax for the normal period would be approximately ₹ 82,00,000/-. We noted that there is no dispute that the taxes are levied on the Lease Charges from 01.07.2010. It is not clear the services rendered by the applicant in respect of Royalty Fees/Concession Fees - partial stay granted. Issues involved:Interpretation of Concession Agreement as a Lease Agreement, classification under Business Support Service, applicability of tax, limitation period, pre-deposit amount determination.Analysis:1. Interpretation of Concession Agreement: The applicant, a Port Department of Govt. of Puducherry, entered into a Concession Agreement with M/s. Karaikal Port Pvt. Ltd. for the development of Karaikal Port. The Adjudicating authority treated the agreement as a Business Support Service, leading to a demand of tax amounting to Rs. 1,03,82,431 along with interest and penalty. The applicant argued that the agreement should be considered a Lease Agreement and not covered under Business Support Service.2. Classification under Business Support Service: The applicant contended that the collected amounts were for lease rent and concession fees, not related to the business of Karaikal Port. The Revenue argued that the collected charges, including Royalty Charges and Concession Fees, supported the services of Karaikal Port and thus fell under Business Support Service. The Tribunal examined the definition of Business Support Service under Section 65(104C) of the Finance Act to determine the applicability of tax.3. Applicability of Tax and Limitation Period: The Tribunal observed that the Concession Agreement encompassed various services, some of which were taxable. The lack of clarity regarding the specific services rendered by the applicant led to further scrutiny during the appeal hearing. The Tribunal also considered the limitation period for the demand of tax, with the applicant claiming that the demand was partly barred by limitation. The Tribunal directed the applicant to make a pre-deposit of Rs. 10,00,000 within six weeks, with a stay on the recovery of the balance dues pending the appeal's disposal.4. Pre-deposit Amount Determination: After evaluating the facts and circumstances of the case, the Tribunal determined the pre-deposit amount to be Rs. 10,00,000. The pre-deposit would enable the waiver of the balance dues and stay on the recovery process until the appeal's final resolution. The Tribunal set a compliance deadline for the pre-deposit and further proceedings to be reported by a specified date.This detailed analysis of the judgment highlights the key issues addressed, arguments presented by both parties, legal interpretations, and the Tribunal's decision regarding the tax demand, classification under Business Support Service, limitation period, and pre-deposit amount determination.