2009 (7) TMI 85 - AT - Service Tax

Lease / Rent Financial Lease machinery leased out applicability of service tax 65(105(zm) read with 65(12) - the Legislature intended to broaden the tax base bringing transfer of right to use tangible goods to the fold of law. This is appearing in Section 65(10)(zm) of Finance Act 1994 which came into force w.e.f. 16.5.2008. Finding that there was no law to tax the transfer of right to use movables before 16.5.2008 even on such count also the appellant is excluded from the purview of law Leasing of machinery prior to 16-5-2008 was not taxable.

Summary

Issues:
1. Whether the lease of land, building, and machinery constitutes a financial lease for the purpose of service tax under the Finance Act, 1994.

Analysis:
The appeal before the Appellate Tribunal CESTAT, New Delhi revolved around determining whether the lease of land, building, and machinery by one company to another qualified as a financial lease, thus attracting service tax liability under the Finance Act, 1994. The appellant had leased its factory with plant and machinery for a specified period, leading to a dispute regarding the classification of this transaction. Both lower authorities had categorized the appellant as a body corporate providing financial services through leasing, based on the definition of 'body corporate' under Section 65(14) of the Finance Act, 1994, and the Companies Act, 1956. The contention centered on whether the lease arrangement fell under the scope of financial leasing services as defined in Section 65(12) of the Act.

The appellant, represented by Counsel Shri Bipin Garg, argued against the classification of the lease as financial services, citing precedents from the Ahmedabad Bench of the Tribunal and a decision by the Commissioner (Appeals) in a related case. Conversely, the Departmental Representative, Shri Vijay Kumar, contended that the lease should be considered under Banking and other Financial Services, as clarified by a Board notification. The Board's clarification encompassed not only banking and financial institutions but also body corporates engaging in such activities, thereby asserting the appellant's liability to pay service tax on the leasing activity.

Upon hearing both parties and examining the provisions of the Finance Act, 1994, the Tribunal delved into the definition of 'other financial services' under Section 65(12) and the implications for body corporates providing such services. The Tribunal emphasized that the appellant, Banswara Syntex Ltd, was not involved in lease finance activities to be deemed a corporate body offering financial services. Citing the decision in the case of CCE Vadodara Vs GE India Industries (P) Ltd and the Board's 2001 letter, the Tribunal concluded that the appellant did not meet the criteria for taxation under Section 65(12)(zm) of the Act.

Furthermore, the Tribunal noted legislative intent to expand the tax base by including the transfer of right to use tangible goods under Section 65(10)(zm) of the Finance Act, 1994, effective from 16.5.2008. Given the absence of a legal framework to tax such transfers before this date, the appellant was deemed outside the ambit of the law. Consequently, the Tribunal allowed the appeal of the appellants, ruling in their favor and negating the service tax liability.

The Tribunal addressed the potential refund implications for the appellant in the event of a successful appeal outcome, emphasizing that any refund should adhere to the principle of unjust enrichment and be handled in accordance with refund laws. The order was pronounced in open court, concluding the judgment.