2024 (9) TMI 1793 - AT - Service Tax

Hiring out equipment is a deemed sale under Assam VAT Act; no service tax applies under Section 78 Finance Act

The CESTAT Kolkata held that the appellant's hiring out of equipment constituted a deemed sale under the Assam VAT Act, with VAT duly paid, thus service ... Levy of service tax - supply of tangible goods service - hiring out of equipment by the appellant - transfer of right to use - deemed sale or not - HELD THAT:- It is seen that the appellant is charging the total hire charges and adding VAT at the rate of 12.5 percent in the invoices. This shows that the appellant has treated this as deemed sale in terms of Assam VAT Act and charged and paid VAT on such transactions. Therefore as per the clarification given by the CBEC at para 4.4.3 of the Circular dated 29.2.2008, since the VAT has been discharged by the appellant, the same cannot be treated as exigible to Service Tax. From the Offer Letter dated 25-3-2006, issued by Oil India Ltd to Geo Enpro Petroleum Ltd, on going through the terms and conditions it is seen that the effective control for all purposes is given to the client. The appellant is not retaining any rights whatsoever including that of supplying manpower to operate such equipments. Under clause (iv) and (viii) it has been made very clear to the hirer that loss or damage would be to the account of the hirer only. Therefore from this Agreement there is nothing to suggest that the effective control was still remaining with the appellant. On this count itself we hold that the present confirmed demand legally does not sustain. The Sales Tax authorities have themselves conceded the position before High Court that no assessment of sales tax would be made on the sale value of SIM card supplied by the appellant to their customers, irrespective of the fact whether they have filed Returns and remitted tax or not, whereas in the present case no such facts have been brought in by the department to the effect that the appellant has paid the VAT erroneously which was not required to be paid as per the Assam VAT Tax Act. When the Revenue is not in a position to counter the VAT already paid by the appellant they cannot simply take the stand that the appellants have paid the VAT erroneously, without any corroborative evidence. The Calcutta Bench in the case of Mahanadi Coalfields Ltd Vs. CGST and CX, Bhuvaneswar-I [2023 (9) TMI 1700 - CESTAT KOLKATA] has held that 'However, we observe that there is no material evidence available on record to substantiate the allegation of suppression of facts with an intention to evade payment of tax. Accordingly, we hold that the demand confirmed in the impugned order, by invoking the extend period is bad in law and liable to be set aside. We also hold that the penalty imposed under Section 78 of the Finance Act, 1994, in the impugned order is not sustainable as no positive act of suppression coupled with an intent to evade payment of service tax has been brought on record by the Revenue.' The confirmed order in respect of the extended period demand is set aside - appeal is allowed on merits as well as on account of time bar. Appeal allowed. 1. ISSUES PRESENTED and CONSIDERED Whether the hiring out of equipment by the appellant amounts to 'supply of tangible goods service' liable to Service Tax under Section 65(105)(zzzzj) of the Finance Act. Whether the effective control and right of possession of the hired equipment remained with the appellant or was transferred to the hirer. Whether payment of VAT on the hiring transaction excludes the transaction from Service Tax liability as per Board Circular No. 334/1/2008 TRU dated 29.2.2008. Whether the Show Cause Notice issued invoking the extended period of limitation is valid or barred by time. Whether the appellant suppressed facts or had intent to evade Service Tax liability. Whether the case law cited by the parties supports the respective contentions regarding classification of the transaction and tax liability. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 & 2: Classification of the hiring transaction under Service Tax law and transfer of effective control Legal Framework and Precedents: Section 65(105)(zzzzj) of the Finance Act defines taxable service in relation to supply of tangible goods including machinery, equipment and appliances 'for use, without transferring right of possession and effective control of such machinery, equipment and appliances.' The Board Circular No. 334/1/2008 TRU dated 29.2.2008 clarifies that if VAT is payable or paid on a transaction, it is treated as a deemed sale and excluded from Service Tax. The question of transfer of possession and effective control is a question of fact determined by contract terms and other material facts. Case law relied upon by appellant includes a Tribunal decision where hiring of equipment with VAT payment was held not liable for Service Tax. The respondent relied on a Supreme Court decision holding that erroneous payment of Sales Tax does not absolve Service Tax liability. Court's Interpretation and Reasoning: The Court examined the Agreement between the parties, noting clauses that placed responsibility for upkeep, loss, and damage on the hirer, and explicitly stated that the effective control and possession were transferred to the hirer. The appellant did not retain rights such as supplying manpower to operate the equipment, indicating no control was maintained. The Court reproduced the relevant portion of Section 65(105)(zzzzj) and the Board Circular, emphasizing that supply of tangible goods service is taxable only when possession and effective control are not transferred. Invoices produced showed VAT charged at 12.5% on the hiring charges, indicating the transaction was treated as deemed sale under the Assam VAT Act. The Court found the terms of the Agreement and payment of VAT consistent with transfer of possession and effective control to the hirer, thereby excluding the transaction from Service Tax liability. Treatment of Competing Arguments: The respondent's argument that the Agreements do not prove transfer of effective control was rejected on the basis of detailed contractual clauses. The Supreme Court decision cited by the respondent was distinguished on facts since the appellant had paid VAT legitimately and there was no evidence of erroneous VAT payment. Conclusions: The hiring out of equipment involved transfer of right of possession and effective control to the hirer, constituting a deemed sale under VAT law and not a taxable service under Service Tax law. Therefore, Service Tax demand was not sustainable. Issue 3: Effect of VAT payment on Service Tax liability Legal Framework: Board Circular No. 334/1/2008 TRU dated 29.2.2008 clarifies that transactions subject to VAT as deemed sales are excluded from Service Tax. Paragraph 4.4.3 states that if VAT is payable or paid, the transaction is not liable for Service Tax. Court's Reasoning: The appellant's invoices showed VAT charged and paid on the hiring transactions. The Court interpreted the circular to mean that even if VAT is payable (not necessarily paid), Service Tax exemption applies. Since VAT was discharged, Service Tax was not exigible. Conclusion: Payment of VAT on the hiring transactions excludes them from Service Tax liability. Issue 4 & 5: Validity of Show Cause Notice invoking extended period and allegation of suppression/intent to evade tax Legal Framework and Precedents: Extended period of limitation can be invoked only if there is suppression of facts or intent to evade tax. The Calcutta Bench in Mahanadi Coalfields Ltd's case held that no motive to evade tax can be attributed to a Public Sector Undertaking filing returns and discharging Service Tax regularly. Court's Reasoning: The appellant is a Government Enterprise, regularly filing returns and discharging Service Tax on other activities. The hiring transactions were properly recorded in books and reflected in financial statements. No evidence of suppression or intent to evade tax was found. The Court relied on the Mahanadi Coalfields Ltd decision to hold that invoking extended period was not justified and the demand confirmed on that basis was liable to be set aside. Conclusion: The Show Cause Notice invoking extended period was time barred and demand confirmed on that basis was invalid. Issue 6: Application and distinction of case law cited by parties Appellant's Case Law: The Tribunal decision in Gimmco Ltd's case involved similar facts where equipment hiring with VAT payment was held not liable for Service Tax. The Court found the reasoning in that case applicable, emphasizing that contractual clauses imposing responsibility on hirer indicated transfer of possession and effective control. Respondent's Case Law: The Supreme Court decision in Idea Mobile Communications Ltd held that erroneous payment of Sales Tax does not absolve Service Tax liability. The Court distinguished this case on facts, noting no evidence that VAT was erroneously paid by the appellant or that the VAT payment was contested by Revenue. Conclusion: The appellant's case law was found directly applicable and persuasive, while the respondent's case law was distinguished and not applicable. Final Conclusion: The appeal was allowed on merits and on the ground of time bar. The confirmed demand of Service Tax on hiring of equipment was set aside as the transaction constituted deemed sale under VAT law with transfer of possession and effective control, excluding it from Service Tax. The extended period invocation was also invalid due to lack of suppression or intent to evade tax.