2025 (8) TMI 935 - AT - Service Tax

Royalty and lease charges under BOT/lease deemed renting or JV receipts, not taxable as port service

Jawaharlal Nehru Port Versus Commissioner of Service Tax, Mumbai-VII

CESTAT MUMBAI - AT held that royalty/lease charges paid by terminal operators under BOT/lease arrangements constitute letting out of port premises or ... Levy of service tax - Port Service - royalty charges collected by the ports from the port terminal operators who have been awarded contracts on BOT basis etc - HELD THAT:- The issue have already been addressed by various Co-ordinate Benches of the Tribunal and the Hon’ble High Court. In various cases it has been held by the Tribunal that royalty received by the port, as a part of revenue earned from terminal operator as consideration for allowing such terminal operator to operate the port terminal is being in the nature of letting out port premises and shall not amount to rendering of ‘port service’. Therefore, it was held that no service tax is payable on such royalty charges received by the port. The present dispute is no more res integra, in view of the judgements relied upon by the appellants in the cases of Commissioner of Central Excise, Cochin Vs. Cochin Port Trust [2019 (2) TMI 760 - KERALA HIGH COURT]. The issue decided in those cases was that there is no liability to pay service tax on the ground that royalty charges received by the appellants from their container terminal operator is not in the nature of service provider and service recipient relationship and it is in the nature of joint- venture. Accordingly, it was held that no service tax would be payable on the royalty charges in respect of ports. In one another case of Gujarat Maritime Board [2015 (7) TMI 827 - SUPREME COURT], the Hon’ble Supreme Court have held that lease rent charged by the port for use of the waterfront facilities etc., does not include any service in relation to a vessel or goods and therefore such services cannot be described as “port service”. Furthermore, it is also found that in the Ministry of Finance, TRU’s explanatory notes to the changes brought out in the Union Budget 2010- 11 vide D.O.F. No.334/18/2010-TRU dated 26.02.2010, inter alia, it has been stated that the services provided in an port or airport, which were introduced in the past in 2001 and 2004 respectively, the taxable services referred to the phrase ‘any person authorised by port/airport’ and many persons were claiming exemption on the ground that they are not specifically authorized by the airport/port authority to provide a particular service. In order to clarify this anomaly, all services provided entirely within the port/airport premises was brought under the taxable net and there was no reference to rental charges/lease rentals being subjected to service tax under the category of ‘port services’ in the clarifications issued by CBIC and the Ministry of Finance. The impugned order dated 14.09.2016 passed by the Commissioner of Service Tax, Mumbai-VII, Mumbai is set aside - Appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether royalty, licence fees or similar payments received by a port authority/owner from private terminal operators under BOT/PPP/lease/licence arrangements constitute consideration for a taxable 'port service' or amount to letting out/lease/rental or the port authority's share of joint-venture revenue, and therefore not liable to service tax under the 'port services' rubric. 2. Whether arrangements under which a public port authority makes land/waterfront/terminal facilities available to private parties who construct, operate and maintain terminals amount to a principal-client (service provider-service recipient) relationship or instead constitute a joint-venture/partnership-like revenue-sharing model that negates the existence of a taxable service. 3. Whether general administrative circulars or explanatory notes that describe treatment of airport/port receipts alter the tax treatment of rent/lease/licence/royalty receipts where the substance of the contract indicates letting out or joint-venture rather than provision of port services. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Taxability of royalty/licence fees received by a port authority under BOT/PPP/lease/licence arrangements Legal framework: 1. The statutory definition of 'port service' requires a service rendered by a port (or person authorised by it) in relation to a vessel or goods. Service tax liability depends on existence of a service relationship and corresponding consideration (quid pro quo). Precedent Treatment (followed/distinguished/overruled): 2. Coordinate Tribunal benches, High Courts and the Supreme Court have held in multiple decisions that royalty/licence fees received by ports from terminal operators under BOT/PPP/lease arrangements are not taxable as 'port services' where the port has effectively transferred operational obligations to the private operator and the receipts represent rental/lease or revenue-sharing, or the port's share in a joint venture. Those authorities were followed. Interpretation and reasoning: 3. The Court examined the contractual substance: private operators design, finance, construct, equip, operate and maintain terminals; they collect terminal charges from users and pay an initial sum and periodic royalty to the port authority. The port's role is limited to granting rights and approvals; it does not itself render the port services to users in respect of those terminals during the licence/operation period. 4. The Court reasoned that where the arrangement vests primary responsibility for providing services to vessels and goods in the private operator, amounts paid to the port are not consideration for services rendered by the port but either (a) rent/lease/licence for use of premises/waterfront, or (b) the port authority's share of revenue in a joint-venture/revenue-sharing model. Key indicators include: transfer of operational obligations to the private party, absence of a principal-client service contract between port and operator, revenue-sharing phrasing of payments, and joint control/decision-making in certain PPPs. Ratio vs. Obiter: 5. Ratio: Where a contractual arrangement transfers the obligation to provide port services to the private operator and the port receives periodic royalty/licence fees as a share of revenue or for surrender of rights, such receipts do not constitute a taxable 'port service' because there is no service provider-service recipient relationship and no quid pro quo for a distinct service by the port. Conclusions: 6. Royalty/licence fees received under the described BOT/PPP/lease/licence contracts are not taxable as port services; the impugned demands based on treating such receipts as consideration for 'port services' are unsustainable and liable to be set aside. Issue 2: Nature of the contractual relationship - service relationship vs joint venture/partnership Legal framework: 7. Taxability depends on the presence of a contractual service (principal-client/contractor-contractee) where a specific consideration is paid for a specified service. In partnership/joint venture arrangements partners/co-venturers contribute resources to a common enterprise and share profits; contributions to a joint venture are not consideration for services between partners. Precedent Treatment (followed/distinguished/overruled): 8. Tribunals and higher courts have treated PPP/BOT arrangements as joint ventures or revenue sharing models rather than principal-client service relationships where characteristics of joint control, revenue sharing and common enterprise are present; those authorities were adopted. Interpretation and reasoning: 9. The Court analysed features of the agreements: joint objectives to exploit port assets commercially, contribution of land/waterfront by the port and of investment/expertise by the private party, shared revenue mechanisms, and absence of discrete quid pro quo for specific acts by the port to the operator. The Court emphasized that acts done by a partner/co-venturer for furtherance of the joint enterprise are not services rendered to the partnership for separate consideration. 10. The Court held that where a partner performs activities for the venture's success, those are in furtherance of its own interest; there is no intention to render a service to the other party for a separate consideration. Consequently, taxation as a service fails because the essential element of consideration for a service is absent. Ratio vs. Obiter: 11. Ratio: Transactions within a genuine joint venture/PPP where one party's payments represent its share or compensation for surrendering rights to exploit the resource are not taxable as services between the parties, absent a distinct service contract evidencing quid pro quo for specific services. Conclusions: 12. The contractual relationships under review are in substance joint venture/revenue-sharing/licence arrangements and not principal-client service relationships; therefore, payments characterised as royalty/licence/lease are not consideration for taxable services between the port and operator. Issue 3: Effect of administrative circulars and explanatory notes concerning airport/port receipts on taxability of rental/lease/royalty receipts Legal framework: 13. Administrative circulars and explanatory notes interpret the tax regime but cannot override the contractual substance and statutory definition of taxable services. Circulars addressing airports clarified that rental/lease charges are not service tax-able where the activity is letting out premises; other clarifications extended the taxable net to services provided entirely within port/airport premises but did not reclassify rent/lease as a taxable port service. Precedent Treatment (followed/distinguished/overruled): 14. The Court relied on prior administrative clarifications and explanatory notes which did not treat letting out premises/rent as port services; those clarifications supported the view that rental/lease/royalty for surrender of rights remains outside the taxable ambit of 'port services.' Interpretation and reasoning: 15. The Court observed that the circular expressly distinguished between service receipts and rental/lease receipts, indicating rental/lease is not rendering of a service. Furthermore, subsequent explanatory notes clarifying that all services entirely within port premises would be taxable did not indicate any intention to include rental/lease receipts within 'port services.' Therefore, administrative guidance supports the contractual-substance approach rather than automatic taxation of royalty/licence receipts. Ratio vs. Obiter: 16. Ratio: Administrative clarifications that rental/lease of premises is not a taxable 'port service' reinforce the requirement to look at substance over form; circulars do not convert pure rental/lease or joint-venture revenue sharing into taxable port services. Conclusions: 17. Circulars and explanatory notes do not sustain a tax demand where the contract's substance shows letting out, lease, licence or joint-venture revenue sharing; resort to such administrative guidance cannot alter the statutory requirement of a service relationship with quid pro quo. Overall Conclusion 18. Applying the statutory definition, contractual substance and authoritative precedent, the Court concluded that royalty/licence/lease receipts from private terminal operators under BOT/PPP/lease/licence arrangements are not taxable as 'port services.' The impugned order demanding service tax on such receipts was set aside. (Decision pronounced by The Tribunal.)