Whether service tax is payable on the transportation of effluent through pipeline or conduit?

PJ/Case Law /2013-14/2324

Case:-M/s GUJARAT STATE FERTILIZERS AND CHEMICALS LTD Vs COMMISSIONER OF CENTRAL EXCISE, VADODARA

Citation:-2014-TIOL-1729-CESTAT-AHM

Brief facts:-This appeal has been filed by appellant M/s Gujarat State Fertilizers & Chemicals Ltd Vadodara, against OIA No.SRP/500/VDR-I/2013, dt.27.02.2013. The issue involved in the present appeal is whether appellant is liable to payment of Service Tax on the services of transportation of effluent through pipeline or conduit to M/s Heavy Water Project (HWP) on some consideration under Section 65(105)(zzz) of the Finance Act, 1994.

Appellant’s contention:-Shri W. Christian (Advocate) appearing on behalf of the appellant argued that first appellate authority has wrongly held that the term 'goods' has not been defined under the Finance Act, 1994 or the Service Tax Rules. Ld. Advocate made the Bench go through Section 65(50) of the Finance Act, 1994 to drive home the point that 'goods' for the purpose of Service Tax law has been assigned the meaning as per Section 2(7) of the Sales of Goods Act 1930 where goods have been defined. It is the case of the appellant that effluent waste is not a movable property and is a hazardous waste which cannot be considered as a movable property as per the definition of 'goods' given in Section 2(7) of the Sales of Goods Act 1930 and cannot be treated as goods. He relied upon the following case-laws in support of his arguments:-

i) Neuland Lab. Ltd Vs CCE Hyderabad - [2010 (20) STR 802 (Tri-Bang)]
ii) South India Viscose Ltd Vs CCE Coimbatore - [1997 (22) RLT 135 (CEGAT)]
iii) Gwalior Rayon Silk Mfg. (WVG) Co. LTD Vs CCE Indore - [1985 (21) ELT 832 (Tribunal)
iv) Tata Consultancy Services Vs State of Andhra Pradesh - [2004 (178) ELT 22 (SC)] = 2004-TIOL-87-SC-CT-LB

It was also the case of the Ld. Advocate that the demand is clearly time barred in view of the correspondence exchanged between the appellant and the Department as brought out in Para 9(f) of the grounds of appeal.

Respondent’s contention:-Shri G.P. Thomas (AR) appearing on behalf of the Revenue argued that under the Service Tax law it is not necessary that an activity should be necessarily in relation to goods bought and sold in the market. Ld.A.R. thus defended the orders passed by the lower authorities.

Reasoning of judgment:-The relevant entry is reproduced below:-

"Section 65(105)(zzz)

(105) 'taxable service' means any service provided or to be provided
.....
.....
(zzz) to any person by any other person, in relation to transportation of goods other than water, through pipeline or other conduct,"

First appellate authority has held that a service provided by the appellant with a consideration amounts to providing of transportation services under Section 65(105)(zzz) of the Finance Act, 1994.

It is observed that for the purpose of Service Tax law the provisions contained in Section 2(7) of the Sales of Goods Act 1930 has been borrowed for defining 'goods' when read with Section 65 (50) of the Finance Act, 1994. The definition of 'goods' given in Section 2(7) of the Sales of Goods Act 1930 is as follows:-
" goods' means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be served before sale or under the contract of sale;"

As per definition of 'goods' given in Section 65 (50) of the Finance Act, 1994 the meaning of 'goods' for the purpose of Service Tax law has to be as assigned in Clause (7) of Section 2 of the Sales of Goods Act 1930. As per the provisions of Section 2(7) of Sales of Goods Act 1930 the goods has to be a category of 'movable property'. Movable property in general trade parlance is considered as a property in goods which can fetch certain price. In the present facts and circumstances of the case the effluent discharge facility is for disposal of a waste which is not being purchased by any person but is only being disposed of by utilizing the services of the appellant. As the relevant facilities/services of transportation provided by appellant are not for the 'goods' as defined in Section 2(7) of the Sales of Goods Act 1930, the same cannot be considered as a service provided for transportation of goods as per Section 65 (105)(zzz) of the Finance Act, 1994 read with Section 2(7) of Sales of Goods Act 1930. Appeal filed by the appellant is, therefore, required to be allowed.

Decision:-Appeal allowed.

Comment:-The analogy drawn from the case is that as per the provisions of Section 2(7) of Sales of Goods Act 1930 the goods are defined as 'movable property'. Movable property in general trade parlance is considered as a property in goods which can fetch certain price. In the present facts, the effluent discharge facility is for disposal of a waste which is not being purchased by any person but is only being disposed of by utilizing the services of the appellant. Therefore the appellant is not required to pay service tax because the effluent cannot be considered as goods and so it cannot be said that the appellant has provided transportation services for goods.

Prepared by:-Lovina Surana

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PJ/Case Law /2013-14/2324

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