2023 (5) TMI 654

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....i Versus Shelf Drilling F G Mcclintock Ltd Commissioner of Central Tax , Vashi, Navi Mumbai Versus Shelf Drilling C E Thornton Ltd HON'BLE MR S. K. MOHANTY, MEMBER (JUDICIAL) And HON'BLE MR C J MATHEW, MEMBER (TECHNICAL) Shri Prasad Paranjape, Advocate and Shri Sanjeev Nair, Advocate for applicant appellant-assessee Shri Nitin M Tagade, Joint Commissioner (AR) for the Revenue ORDER PER : C J MATHEW These four appeals - two of Shelf Drilling group of companies and two of Revenue - requiring resolution of identical issue of demand confirmed, under section 73 of Finance Act, 1994, on consideration towards 'bare-boat charter' of 'offshore drilling unit' to M/s Transocean Drilling Services (India) Pvt Ltd for encroaching upon the con....

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....order-in-original no. 50-CGST-NM-Commr-KV-2020-21 dated 31st March 2021] of Commissioner of Central Tax (CGST & C.EX), Navi Mumbai, sought to be recovered from M/s Shelf Drilling FG McClintock Ltd [ST/86316/2021] and M/s Shelf Drilling CE Thornton Ltd [ST/86319/2021] for the period from December 2012 to April 2014, is under challenge by Revenue. 3. It is also on record that the four appellants/respondents, incorporated outside India, operate project offices domestically for entering into these charters and which hold registrations under Finance Act, 1994. The 'drilling units (rigs)', for which 'bareboat charter' agreements have been entered into, are deployed by the charterer, M/s Transocean Drilling Services (India) Pvt Limited at request....

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.... taxability under Finance Act, 1994 even if no tax is paid to, or levied by, any state of the Union. It is further contended that the scheme of taxation prior to introduction of the 'negative list' on 1st July 2007 also, confronted with a similar delineation insofar as 'supply of tangible goods' service, subject to levy under section 65 (105) (zzzzj) of Finance Act, 1994, was concerned, the test of distinction was elaborated upon in circular no. 198/2016-ST dated 17th August 2016 of Central Board of Excise & Customs (CBEC) to conform to the decision of the Hon'ble Supreme Court in Bharat Sanchar Ltd v. Union of India [2006 (2) STR 161 (SC)]. Reliance was also placed in the decision of the Tribunal in International Seaport Dredging Ltd v. Co....

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....ale, which are liable to tax only under the laws of the states comprising the Union, as well as service, taxable only under Finance Act, 1994, have been the subject of judicial determination. The plea of exclusion from 'sales tax' imposed by states or of exclusion from 'service tax' stemming from the consideration of the transaction being already subject to the other tax was elaborated at length in the decision of the Hon'ble Supreme Court in re Bharat Sanchar Nigam Ltd, in Tata Consultancy Services v. State of Andhra Pradesh [(2005) 1 SCC 308] and in several others thereafter. The 'five point' attribute comprising of 'a. There must be goods available for delivery; b. There must be consensus ad idem as to the identity of the goods; ....