9911796707
TMI Blog2015 (8) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994. Coming to such conclusion, a show cause notice dt. 23.9.2008 was issued for demanding service tax liability for the payment made by the appellant during period July 2007 to September 2007 to the foreign parties. The appellant contested the show cause notice on merits inter alia contesting the duty liability as also the imposition of penalty on the ground that they are not service providers. The adjudicating authority after following the principles of natural justice held against the appellant and passed the following order: ORDER 5. 5.1. I confirm the amount of Rs. 6,03,94,143/- (Rupees Six Crores three Lakhs Ninety-four Thousand one Hundred and forty-three Only) as demanded in the Show cause notice dated 19th September 2008 issued by the Service Tax Mumbai Commissionerate under Section 73 of the Finance Act, 1994 read with Rule 14 of Cenvat Credit Rules 2004. 5.2. I order for payment of interest on delayed payment of service tax, at the appropriate rates prevalent during the material period, on service tax amount confirmed in (5.1) above, under Section 75 of the Act. 5.3. I hereby impose the penalty on the Noticees under Section 76 of the Act, which shall be Rs. 200/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission that the said amount is also paid by the appellant during hearing of the stay petition wherein the appellant was directed to deposit this amount. 3. Ld. DR on the other hand reads the contract entered by the appellant with ONGC and submits that the appellant is liable to discharge the service tax liability under the category of mining of mineral oil or gas service. It is his submission that the appellant had collected the amount of service tax from the ONGC and did not deposit with the Government which is evident from the fact that they have not paid Rs. 4.92.lakhs approximately. He would submit that the collection of service tax from ONGC under the category of mining and minerals service itself is enough for the Revenue to demand interest and penalty, as there is no dispute as to service tax liability on the appellants under the provisions of Section 66A of the Finance Act, 1994. He would submit that the judgment in the case of Indian National Shipowners Association is on different facts. He would submit that the claim of the appellant that the issue is of revenue neutral is also incorrect as they cannot avail the Cenvat Credit of the duty which is not paid. He would also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r use, without transferring right of possession and effective control of such machinery, equipment and appliance. The 2nd respondent by Circular bearing No. M.F. (DR) Letter D.O.F. No. 334/1/2008 TRU dated 28-2-08 clarified the scope of this entry as covering inter alia, the supply of vessels without giving legal right of possession and effective control, such as offered by the members of the 1st petitioner. We may quote the relevant paragraph of the said circular : 4.4.2. Excavators, wheel loaders, dump trucks, crawler carriers, compaction equipment, cranes etc., offshore construction vessels and barge flotillas, rigs & high value machineries are supplied for use, with no legal right of possession and effective control. Transaction of allowing another person to use the goods, without giving legal right of possession and effective control, not being treated as sale of goods, is treated as service . After considering the detailed submissions made by both sides; Hon ble High Court has held that the service tax liability under the category of supply of tangible goods would be effective from 16.5.2008 and prior to that the same was not taxable. The ratio is in para No. 34, 37, 38 & 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of what is covered by entry (zzzy). Introduction of new entry and inclusion of certain services in that entry would presuppose that there was no earlier entry covering the said services. Therefore, prior to introduction of entry (zzzzj), the services rendered by the members of the 1st petitioner were not taxable. Creation of new entry is not by way of amending the earlier entry. It is not a carve out of the earlier entry. Therefore, the services rendered by the members of the 1st petitioner cannot be brought to tax under that entry. 48. Applying the above conclusions to the instant case, we hold that the services rendered by the members of the 1st petitioner are either pre-mining or post-mining activities. They have no direct relation to mining. They were, therefore, rightly not brought to tax till entry (zzzzj) was introduced to cover transport of tangible goods by sea without transferring right of possession and effective control thereof. The services rendered by the members of the 1st petitioner are covered by entry (zzzzj) because they inter alia supply vessels offshore support vessels, barges, tugs etc. without transferring right of possession and effective control over the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
