2018 (4) TMI 673 - AT - Service Tax

Classification of service as 'Supply of Tangible Goods for use Service' upheld in transportation case

JSW Steel (Salav) Ltd. Versus Commissioner of Central Excise, Raigad

The case involved the classification of service as 'Supply of Tangible Goods for use Service' for the transportation of raw material. The Appellant's ... Demand of service tax - Supply of Tangible Goods for use Service - contract between the Appellant and the owner of different vessels was meant for transportation of coastal goods - Held that: - The fact that the Appellant before issuance of SCN were depositing service tax as directed by the revenue and were informing of the same goes on to show that there was no ground for alleging any malafide intention against them coupled with the fact that the issue if revenue neutrality is also involved - appeal allowed by way of remand. Issues:1. Classification of service as 'Supply of Tangible Goods for use Service' for transportation of raw material.2. Denial of credit of tax paid and allegations of malafide intention.3. Remand of the case back to the adjudicating authority for fresh consideration.Analysis:Issue 1: Classification of service as 'Supply of Tangible Goods for use Service' for transportation of raw material:The case involved the receipt of raw material, i.e., iron ore, by the Appellant at Revanda Port Alibaug from Vizag port through foreign vessels on coastal runs. The Appellant was issued a show cause notice demanding service tax on the basis that the vessels were supplied to the Appellant without transferring the right of possession and effective control. The Hon'ble Mumbai High Court had previously clarified that providing vessels on a time charter basis without transferring effective control constitutes a supply of tangible goods service. Despite the Appellant showing expenses as freight charges, documents such as time charter and hiring statements indicated subletting of vessels without transferring effective control. The classification of the service as 'supply of tangible goods for use' was deemed appropriate based on the facts and circumstances. The Appellant was alleged to have contravened several provisions of the Finance Act, 1994, leading to a demand for service tax, penalties, and interest. The adjudicating authority confirmed the demands, prompting the present appeal.Issue 2: Denial of credit of tax paid and allegations of malafide intention:The Appellant contended that the demand was illegally confirmed as the transportation of goods under time charter party agreements did not involve transferring control and possession of the vessels to them. They argued that the contract with the vessel owners was for the provision of transportation services using the dedicated vessel and crew, with remuneration quantified based on the time spent for carriage of goods. The Appellant had paid service tax as directed by the revenue under different categories, but the impugned order did not clarify how the services qualified as taxable. The Appellant emphasized that the vessel owners were providing transportation services, not liable to service tax, and challenged the denial of credit of tax paid. The case involved an interpretation of law and the nature of the charter arrangement, with the Appellant asserting that no service tax was payable under the category in question.Issue 3: Remand of the case back to the adjudicating authority for fresh consideration:Upon perusing the records and considering submissions from both sides, the Tribunal found that the impugned order lacked clarity on how the services fell under the category of 'Supply of Tangible Goods for use Service.' The adjudicating authority had not adequately considered the Appellant's submissions on the nature of the time charter and the control of the vessel. The denial of credit to the Appellants, not initially alleged in the show cause notice, raised questions of malafide intention. Given these factors and the issue of revenue neutrality, the Tribunal deemed it appropriate to remand the case back to the adjudicating authority for a fresh decision after considering all submissions and giving the Appellant an opportunity to be heard.The appeal was disposed of accordingly, with the case remanded back to the adjudicating authority for further consideration.