2018 (11) TMI 1528 - AT - Service Tax

Appeals restored, appellant prevails on service tax issues. Penalties overturned. Specific reliefs granted.

The appeals were restored, and the Tribunal ruled in favor of the appellant on most issues. The demand for service tax under 'Banking and Other Financial ... Levy of service tax - Banking and other Financial Services - Maintenance or Repair Service - Storage and Warehousing Service - period August 2002 to July, 2005 - penalties. Banking and other Financial Services - Held that:- The agreement dated 11.07.2001 entered into by PIPL with their customer UML. The very same agreement was considered by the Bangalore Bench in the case of PRAXAIR INDIA LTD VERSUS THE COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX BANGALORE-I [2018 (10) TMI 217 - CESTAT BANGALORE] with reference to the service tax demand made against PIPL. The Tribunal held that there is no liability for payment of service tax since the agreement for lease was executed prior to the date of introduction of the Banking or Financial Services i.e. 16.07.2001. Since the very same agreement for an earlier period is before us, we find no reason to take a different view. Management, Maintenance or Repair service - Held that:- In terms of the agreement entered into by PIPL with UML dated 30.12.2006, PIPL was required to carry out operations and maintenance of the plant and by way of consideration, UML will pay PIPL the amounts as specified in Schedule 4 of the agreement - After careful consideration of the agreement the Bangalore Bench upheld the demand of service tax under the above category - Since the dispute in the present case is very same, we find no reason to take a different view. Storage and warehousing service - Held that:- After considering the agreement the Bangalore Bench has come to the conclusion that the service rendered by PIPL to UML will not come under storage and warehousing service and accordingly has set aside the demand for service tax - demand set asdie. Penalties set aside. Appeal allowed in part. Issues Involved:1. Restoration of the appeal dismissed for non-prosecution.2. Liability for service tax under 'Banking and Other Financial Services'.3. Demand for service tax under 'Management, Maintenance or Repair Service'.4. Demand for service tax under 'Storage and Warehousing Service'.5. Imposition of penalties on the appellant and its officials.Issue-wise Detailed Analysis:1. Restoration of the Appeal Dismissed for Non-Prosecution:The appeal was initially dismissed on 13.09.2012 for non-prosecution. The appellant filed a Miscellaneous Application for the restoration of the appeal, citing that the Authorized Representative was out of station and could not attend the proceedings. The respondent had no objection to the restoration. Consequently, the final order dated 13.09.2012 was recalled, and the appeals were restored to their original numbers.2. Liability for Service Tax under 'Banking and Other Financial Services':The dispute involved an agreement dated 11.07.2001 between the appellant and M/s. Usha Martin Ltd. (UML). The Revenue contended that the appellant was liable for service tax under 'Banking and Other Financial Services' as per Section 65(12) of the Finance Act, 1994. However, the appellant argued, relying on a decision by the Bangalore Bench of the Tribunal, that since the agreement was dated before 16.07.2001 and the goods were received prior to this date, there was no service tax liability. The Tribunal agreed with the appellant, noting that the agreement was indeed executed before the introduction of the service tax on 'Banking and Other Financial Services', and thus, no liability arose.3. Demand for Service Tax under 'Management, Maintenance or Repair Service':The appellant had an agreement with UML for the operation and maintenance of an oxygen plant. The appellant contended that they had already discharged service tax on the maintenance portion and that the demand for service tax on the entire consideration, including operation, was unjustified. The Tribunal, referencing the Bangalore Bench's decision, upheld the demand for service tax under this category, as the agreement clearly stipulated charges for operation and maintenance services provided by the appellant.4. Demand for Service Tax under 'Storage and Warehousing Service':The appellant had an agreement dated 01.08.1999 with UML, which involved delivering liquid oxygen into storage installations and allowing UML to use the storage facility. The appellant argued that this activity did not fall under 'Storage and Warehousing Service'. The Tribunal, again relying on the Bangalore Bench's decision, concluded that the service provided did not meet the definition of storage and warehousing service, as the appellant merely leased the storage tanks to UML without engaging in typical warehousing activities like maintaining accounts for stored goods. Thus, the demand for service tax under this category was set aside.5. Imposition of Penalties:Penalties were imposed on the appellant and its officials under various sections of the Finance Act, 1994. However, the Tribunal set aside these penalties, following the Bangalore Bench's rationale that the issues involved were related to the interpretation of service tax provisions.Conclusion:The appeals were restored, and the Tribunal ruled in favor of the appellant on most issues, setting aside the demands for service tax under 'Banking and Other Financial Services' and 'Storage and Warehousing Service', while upholding the demand under 'Management, Maintenance or Repair Service'. Penalties imposed were also set aside. The final outcome was that the appeals were allowed in part, with specific reliefs granted as per the detailed findings.