2022 (3) TMI 1105 - AT - Service Tax

Tribunal upholds Business Auxiliary Service classification over Works Contract Service, affirms service tax liability

The Tribunal upheld the classification of the appellant's activity under Business Auxiliary Service (BAS) and dismissed the appeal. The appellant's ... Levy of service tax - Business Auxiliary Service (BAS) or Works Contract Service (WCS) - activity of providing powder coating and anodising of aluminium goods supplied by their client on job work basis - HELD THAT:- The appellant has admittedly carried out the job work of powder coating and anodizing on the aluminium goods supplied by their client. The appellant is doing the job work against the job work charges mutually decided by the appellant and the client. The activity of powder coating and anodizing is clearly an activity of production or processing on behalf of the client since the same is carried out on the basis of job work. This Tribunal has considered the issue in similar facts in various judgments and came to conclusion that the similar activity is classifiable as ‘production or processing of goods on behalf of the client’ under the main head of service viz. BAS and accordingly the same is liable to service tax. From the judgment in M/S MR & SONS VERSUS C.C. - AHMEDABAD [2018 (8) TMI 32 - CESTAT AHMEDABAD], it can be seen that out of various activities, one activity was of painting on job work basis, which is akin to powder coating and anodizing - Following the said judgment, in the present case also being the similar activity, the process of Powder Coating and Anodizing being production on behalf of client clearly falls under BAS and hence the same is liable for service tax. The appellant’s main plea is the activity of job work since with material such as chemicals will fall under the “Works Contract Service” on the ground that on the said activity the appellant has discharged the VAT - the activity of the job work in the present case does not fall under Explanation clause (ii). As regard the clause (i), the necessary limb of the definition is the property in the goods must be transferred. In this case, claim of the appellant is that the property in the chemicals used for the job work stand transferred to the service recipient. Undisputedly the chemicals used for Powder Coating and anodizing is part of the service as the same gets consumed during the job work and lost its existence. Moreover the main aluminium goods is supplied by the client and it’s property remains with the client before and after the job work. The cost of chemicals gets subsumed in the job work charges. For this reason also, it cannot be said that there is any transfer of property in goods from the hands of the appellant to his client. Appeal dismissed. Issues Involved:1. Classification of the appellant's activity under Business Auxiliary Service (BAS) or Works Contract Service (WCS).2. Taxability of the activity during the relevant period.3. Applicability of VAT payment to classify the service under WCS.4. Transfer of property in goods involved in the execution of the contract.Detailed Analysis:1. Classification of the Appellant's Activity:The appellant is engaged in powder coating and anodizing aluminum goods supplied by their clients on a job work basis. The Department classified this activity under Business Auxiliary Service (BAS), arguing that it falls under 'production or processing on behalf of the client' and is thus chargeable to service tax. The Tribunal found that the appellant’s activity of powder coating and anodizing is indeed an activity of production or processing on behalf of the client, which falls under BAS and is liable to service tax. This conclusion was supported by various judgments, including PSL Corrosion Control Services Ltd., where similar activities were classified under BAS.2. Taxability of the Activity During the Relevant Period:The appellant argued that since they were paying VAT on the chemicals used for job work, their activity should be classified as Works Contract Service (WCS), which was not taxable during the relevant period (16/06/2005 to 13/03/2006). However, the Tribunal emphasized that the activity of powder coating and anodizing is classified under BAS as it involves production or processing on behalf of the client, making it taxable during the impugned period.3. Applicability of VAT Payment to Classify the Service Under WCS:The appellant contended that their activity should be classified under WCS due to the payment of VAT on the chemicals used. The Tribunal examined the definition of Works Contract Service under Section 65(105)(zzzza) and concluded that the appellant’s job work does not fall under the specified categories of WCS. The Tribunal noted that the chemicals used in powder coating and anodizing are consumed and lose their existence, and the main aluminum goods remain the property of the client. Therefore, the mere use of consumables does not qualify the activity as WCS.4. Transfer of Property in Goods:The Tribunal analyzed whether there was a transfer of property in goods from the appellant to the client. It was determined that the chemicals used in the job work are consumed and do not constitute a transfer of property. The cost of chemicals is subsumed in the job work charges, and the aluminum goods supplied by the client do not change ownership. Consequently, the activity does not meet the criteria for WCS, which requires a transfer of property in goods involved in the execution of the contract.Conclusion:The Tribunal upheld the classification of the appellant’s activity under BAS and dismissed the appeal. The appellant’s argument for classification under WCS was rejected due to the lack of transfer of property in goods and the nature of the job work. The impugned order was affirmed, and the appeal was dismissed, confirming the liability to service tax under BAS.