1. All the three appeals involve a similar dispute and are accordingly taken up together for decision. The appellants are engaged in Dredging, Reclamation of Seaports and allied activities. They are registered with the service tax department and are discharging service tax wherever applicable. The officers of service tax conducted verification of accounts of the appellant and examined the agreement dated 11-7-2007 entered into by the appellant with M/s. The Dharmra Port Co. Ltd., for execution of certain work mainly relating to dredging of access channel in connection with construction of Dhamra Port, Orissa. The appellants hired dredgers/vessels from various companies who do not have any permanent establishment in India. The dispute in the present appeal is on two issues:-
(a) The liability of the appellant to pay service tax on hiring of dredgers/vessels from the foreign company under the category of 'Supply of Tangible Goods Service' on reverse charge basis in terms of Section 66A of the Finance Act, 1994.
(b) Inclusion of customs duty, entry tax etc. on the import of materials used for dredging services, which were paid by the clients on actual basis, in the taxable value for dredging services at the hands of appellant.
2. The proceedings initiated against the appellant concluded by issue of the impugned order dated 31-1-2013 of Commissioner of Service Tax, Chennai.
3. The original authority concluded that the appellant did receive services under the category of 'Supply of Tangible Goods' and is liable to tax on reverse charge basis under Section 66A. He also held that the value for taxable service in respect of dredging should include the customs duty, entry tax, etc. paid by the clients as these are expenditure to be incurred by the appellant for rendering the taxable service. A service tax liability of Rs. 43,18,70,163/- was confirmed on reverse charge basis with a further tax of Rs. 11,27,82,493/- on the differential tax for dredging service. He also imposed penalties equivalent to the first demand under Section 78 and further penalties under Sections 76 and 77 of t
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he Finance Act, 1994.
4. The Ld. Counsel appearing for the appellant contested the impugned order on the following grounds:-
a. The demand for service tax under 'Supply of Tangible Goods' is not sustainable.
b. The Charter Party Agreement entered into by the appellant with the owners of the vessel/dredgers transferred their right to use of the vessels to the appellant and hence the transaction cannot be taxed as service. The requirement that there should be no transfer of right of possession and effective control is not fulfilled for tax liability.
c. The dredgers and vessels are in fact in possession and effective control as per a Bareboat Charter/demise charter.
d. He referred to various clauses of the Charter Party Agreement now under consideration, to emphasise the above point.
e. The agreement specifically provides for standard Bare Boat Charter. The delivery and redelivery of the vessels involving inventory of all goods include samples and stores, control and possession of the vessels during the period of charter; maintenance and full responsibilities for completion of all legal obligations are with the appellant only. The Master, officers and crew of the vessels shall be the services of the charterer (appellant) for all purposes.
f. Specifically referring to clauses 9, 12, 14, 20 and 21 of the Charter Agreement, the Ld. Counsel submitted that there is a transfer of right of possession and effective control of such vessels fully with the appellant. As such, the transaction is excluded from tax liability under Section 65(105)(zzzzj) of the Finance Act, 1994.
g. The findings of the original authority that the appellants do not have the legal right and effective control of the vessels is factually incorrect. The inference of the original authority is based on the condition regarding lack of freedom for sub-charter arrangement and usage of the vessels in an identified area. These in no way affect the right to possession and effective control exercised by the appellant. As an owner of the vessel, the supplier had property interest on the vessel and that the transaction is not a pure sale transaction. It is only a transfer of right of possession and effective control which is a deemed sale.
h. On the second issue, it is submitted that the customs duty, entry tax etc. are statutory levies on the import and movement of goods/vessels which are later used for providing taxable service of dredging. These duties and taxes were borne by the appellant but fully reimbursed on actual basis by the clients. This is as per the contractual arrangement. These statutory levies cannot be considered as part of consideration for dredging service. Reliance was placed on the Circular issued by the Board as well as various decided cases.
i. Alternatively even if the customs duties on vessels/equipment etc. are to be included in the taxable value of dredging, then the credit on CVD will be substantially higher than the service tax payable on such value. The denial of credit by the original authority stating that the vessels are not capital goods in terms of Rule 2(a) of Cenvat Credit Rules, 2004 is misplaced and not factual.
j. The demand for extended period and the penalties imposed are not sustainable as the appellants have entered into agreement and all transactions are fully reflected in their records and books. There is no suppression or willful misstatement in the whole process. Revenue conducted audit and based on certain interpretation, initiated the present proceedings. This is not a case for extended period or for penalty.
5. The Ld. AR opposed the appeal on the following grounds:-
a. The exclusion for tax entry under 'Supply of Tangible Goods Service' is available only when there is supply of tangible goods with transfer of right of possession and effective control of such machinery etc. In the present case, there is no transfer of legal right/possession to the appellants. Mere custody of the goods supplied by the foreign company will not exclude the appellant from tax liability.
b. The appellant have no unrestricted right to use, right to enjoy the supplied goods. There were effective restrictions regarding place of usage of the vessels and also for sub-leasing the same.
c. The case laws referred to by the original authority brings out the fact that delivery of goods cannot constitute the basis for the levy of sales tax as held by the Hon'ble Supreme Court in 20th Century Finance Corporation Ltd. - (2001) 119 STC 182.
d. The 'right to possession' and 'effective control' together are the key elements in understanding the tax liability in the present case. The vessels and dredgers have been supplied to the appellant but the effective control is with the owner. Accordingly, the service tax liability is correctly attracted.
e. Regarding valuation of dredging services, it is submitted that all the expenditure incurred by the appellant either by way of tax or duties on the goods used for dredging should form part of the gross value.
6. We have heard both sides and perused the appeal records.
7. The first major point for consideration is the service tax liability of the appellant on reverse charge basis in respect of vessels and dredgers chartered by them from foreign owners. The tax liability was sought to be upheld on reverse charge basis under the category of 'Supply of Tangible Goods Service'. The tax entry relevant is as below:-
"Section 65(105)(zzzzj) of the Finance Act, 1994 defines "supply of tangible goods services" as follows:-
"any services provided or to be provided to any person by any other person 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".
8. The whole dispute can be narrowed down to the interpretation of exclusion clause in the above entry. In other words, services in relation of supply of tangible goods for use, without transferring right of possession and effective control shall be liable to service tax. The appellant's case is that they have right of possession and effective control of the vessels/dredgers. In this connection, we have perused the Bareboat Charter, a copy of which was submitted by the Ld. Counsel. The charter talks about delivery of vessel to be taken over by the appellant at the designated place. After due survey and inventory, the vessel is to be delivered to the appellant. At the time of delivery the appellant shall pay for all the bunkers, lubricating oils and water. Clause 9 of the Charter states that the vessel shall during the charter period be in full possession and at the absolute control for all purposes of the charterers and under their complete control in every respect. The charterers shall maintain the vessel, her machinery, boilers, appurtenances and spare parts in a good state of repair in efficient operating conditions and in accordance with good commercial maintenance practice.
9. The appellants (charterers) are required to establish and maintain financial security or responsibilities in respect of oil or other policy damages as required by any Government, municipality etc. Clause 9(b) states that the dredgers shall at their own expenses and by their programme man, virtual, navigate, operate, supply fuel and repair the vessels whenever required during the Charter Period and they shall pay all charges and expenses of every account and nature whatsoever incidental to their usage and operation of the vessel under this charter, including foreign general municipality and/or taxes. It is the responsibility of the charterer to comply with all the regulations regarding officers and crew of the vessel as per the applicable law.
10. Clause 10(a) stipulates payment terms for charter. The appellants are to pay an agreed lump sum amount per calendar month till the vessel is redelivered by them to the owners. Clause 12(a) stipulates that the vessel shall be kept by the charterers at their expense against marine, war and protection and indemnity risks in such form as the owner shall in writing approve. Clause 14 talks about redelivery of the chartered vessel. On expiry of charter period, charterer shall redeliver the vessel at safe and ice-free port or place as per the approval.
11. On careful consideration of the terms of the above Bareboat Charter, we are of the considered view that in the present case, vessels/dredgers were transferred to the appellant with right of possession and effective control of such vessels/dredgers. The exclusion for tax liability as provided in the tax entry for supply of tangible goods is applicable to the present case.
12. We have also examined various decisions of the Tribunal and Apex Court relied upon by the appellant as well as Revenue. We note that the facts of the case as appreciated in the present dispute are to be applied to the legal principle laid down in these decisions.
13. Black's Dictionary (Tenth Edition) defines Bareboat Charter as below:-
"Bareboat Charter - A charter under which the ship owner surrenders possession and control of the vessel to the charterer, who then succeeds to many of the shipowner's rights and obligations. The charterer, who provides the personnel, insurance and other materials necessary to operate the vessel, is known either as a demise charterer or as an owner pro hac vice. Also termed demise charter; demise charterparty; bareboat charterparty.
The 'demise' or 'bareboat' charter is conceptually the easiest to understand. The charterer takes possession and operates the ship during the period of the charter as though the vessel belonged to the charterer. The bareboat charter is thus analogous to the driver who leases a car for a specified period or a tenant who rents a house for a term of years. The charterer provides the vessel's master and crew (much as the lessee-driver personally drives the car) and pays, the operating expenses (much as the lessee-driver buys the gasoline. "David W. Robertson, Steven F. Friedell & Michael F. Shirley, Admiralty and Maritime Law in the United States 371 - 71 (2002)."
As against above, time charter is defined as a charter for a specified period under which the ship owner continues to manage and control the vessel but the charterer designates the port of call and the cargo to be carried.
14. We note that an identical dispute with reference to the very same tax entry came up before the Tribunal in Petronet LNG Ltd. v. Commissioner of Service Tax, New Delhi : 2013-TIOL-1700-CESTAT : 2016 (46) S.T.R. 513 Tribunal. The Tribunal elaborately examined the terms of charter agreement and various decisions of High Courts and Apex Court before arriving at the conclusion that the charter agreement, both long term and short term, conform to all substantive ingredients as would constitute the transactions as transfer of right to use goods. Therefore, the transactions fall within the exclusionary clause of Section 65(105)(zzzzj) of the Act, consequently outside the purview of taxable service. The Tribunal extensively referred to the following decisions:-
a. Avatar Singh and Others : (2002) 7 SCC 419,
b. H.L.S. Asia Ltd : (2003) 132 STC 217 (Guwahati),
c. Bharat Sanchar Nigam Ltd : 2006-TIOL-15-SC-CT-LB : 2006 (2) S.T.R. 161 (S.C.),
d. Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer : (1990) 77 STC 182 AP,
e. G.S. Lamba & Co. v. State of Andhra Pradesh : 2012-TIOL-49-HC-AP : 2015 (324) E.L.T. 316 (A.P.).
f. Great Eastern Shipping Company Ltd. v. State of Karnataka : (2004) 136 STC 519 (Kar.).
15. We note that the analysis of the Tribunal in the above said decisions in Petronet LNG (supra) is focussed on the terms "transferring right of possession and effective control". In the said case, the Revenue submitted that the Manager, Master and crew of the bunkers are employees of the owner and were paid overtime etc. by the owner. The owner is required to maintain the tanker for wear and tear and also expenses of stores, spares, water, survey, overhauling etc. Examining the said contention of the Revenue, the Tribunal held that the said activities on the part of the owner does not take away the right of possession and effective control of the hirer. Agreement should be considered as a whole and mere employment of the personnel does not derogative from the reality of transfer of possession to and effective control by the assessee over the tanker for their use.
16. We note that the analysis and reasoning adopted by the Tribunal in Petronet LNG are squarely applicable to the present dispute. In fact, in the present case, Manager, Master and crew of the vessel and are actually under control and employment of the appellants. The maintenance of the vessel for wear and tear and also expenses for lubricating, spare parts, water etc. are in fact met by the appellant only. This is not the case in the case of Petronet LNG (supra). Even then the Tribunal in the said case held that reading the charter agreement as a whole, it is clear that there is a transfer of right of possession and effective control of the vessel with the assessee.
17. We note that the adjudicating authority observed that there is no legal transfer of right of possession or effective control of the vessels by the appellant. We note that such observation is contrary to the facts as revealed from the terms of charter agreement. It is relevant to note here that the transaction is not a sale simplicitor. But a transaction where there is transfer of right of possession and effective control of the goods transferred are considered as deemed sale. The clarification issued by the Board on 29-10-2008 explaining the scope of the present tax entry is relevant in this regard. It is clarified that transaction of allowing another person to use the goods without giving the legal right of possession and effective control, not being treated as sale of goods, is treated as service. As elaborately analysed above, in the present case, there is a transfer of possession and effective control of the vessels to the appellant under the various clauses of the charter agreement which clearly brings out that the appellant is having legal right of possession and effective control of the vessel.
18. We note that the restriction of use of vessel only for dredging operation and bar of sub-leasing without consent of the owner, area of operation of the vessel as stipulated by the owner is considered as restrictions which will make the arrangement as not amounting to transferring right of possession and effective control to the appellant. We are not in agreement with such inference. As noted already, there is no sale of vessel in the present transaction. The owner of the vessel continues to be the owner. It is necessary and legally permissible for the owner to put certain restrictions and obligations on the part of the appellant who uses the supplied vessel for the intended purposes. This by itself will not make the exclusion clause for tax inapplicable.
19. Examining the scope of transfer of right to use, the Hon'ble Karna-taka High Court in Great Eastern Shipping Company Ltd. (supra) held that when the vessel during the charter period was for all purposes at the disposal of the charterer and under their control in every respect including maintenance, spare parts, efficient operation, fulfillment of legal clarification etc., the same should be considered as transfer, of right to use.
20. The Tribunal in Reliance Industries Ltd. : 2016 (45) STR 341 (Tri.-Mum.) examined this issue as one of the disputes. Relying on the Circular dated 29-2-2008, of the Board and the decision of the Tribunal in Petronet LNG (supra.)., the Tribunal held that there is no supply of tangible goods in the said arrangement, which is under Bareboat Charter. Reference was made to Section 115(v)(a) and Section 197(1) of Income-tax Act, 1961.
21. The Hon'ble Supreme Court in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries and Others reported in : (1990) 3 SCC 481 held that a charter party has to be construed so as to give effect, as far as possible to the intention of the parties as expressed in the contract. The Supreme Court was examining the implication of Bill of Lading in the said case.
22. On a careful consideration of Bareboat Charter, involved in the present case, findings of the impugned order and the submissions of the appellant, we have arrived at the conclusion that in the present case there is a transfer of right of possession and effective control of the vessel/dredger to the appellant. This arrangement is outside the purview of service tax liability under a 'supply of tangible goods services'.
23. On the second issue, regarding demand of the service tax on customs duty and entry tax paid on imported equipment, which were reimbursed by the recipient of service, we note that the appellants were not contesting service tax on dredging operations. The clients paid consideration for such dredging work. To undertake such dredging the appellant imported certain goods and equipment and also incurred customs duty and certain entry tax on the same. The plea of the Revenue is that these taxes should form part of the consideration for taxable value. Reliance was placed on Rule 5(1) of Service Tax (Valuation) Rules, 2006. We note that the said provision has been struck down by the Hon'ble Delhi High Court in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. v. Union of India reported in : 2013 (29) S.T.R. 9 (Del.). Even otherwise, we note that these are on actual basis incurred by the appellant which are reimbursed/paid by the clients as per the contractual arrangements. These are not considerations received for rendering taxable services. These statutory levies are held not to be considered as part of taxable value. The Board vide Circular dated 13-4-2016 clarified that taxes, duties are not consideration for any particular services as such and accordingly excise duty, customs duty, octroi etc. cannot be subjected to service tax. As such, we note that customs duty reimbursed by the clients on actual basis cannot form part of taxable value for the services rendered by the appellant. We also note that the appellant have discharged service tax on the considerations received for such services. These reimbursable expenses are considered as expenditure to provide such services and are accordingly sought to be included in terms of Rule 5(1). As already noted, we find no justification for such course of action. We are not examining the alternate plea raised by the appellant regarding the CVD credit available to the appellant in case the customs duty paid is includible in the taxable value of service tax. In view of the above discussion and analysis, we find that the impugned order is not legally sustainable. Accordingly, the same is set aside and the appeals are allowed