2013 (3) TMI 273

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....nce Act, 1994. 2. As per the facts on record, the appellants are engaged in the business of aviation cargo services for which purpose they need aircrafts. They entered into an agreement called "Operating Lease Agreement" with M/s. EAT, Brussels. In terms of the said agreement, the aircraft is to be handed over by M/s. EAT to the applicants for the purpose of operating the same in India. The applicants are required to pay a lease rent to M/s. EAT on monthly basis. As per the agreement, the entire control and possession of the aircrafts including maintenance, repair and running of the same, coverage of insurance etc. is the liability of the applicants. 3. Revenue entertain a doubt that the operation of said lease of aircraft by th....

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....ffective control of such machinery, equipment and appliances". From the above, we note that the services would get covered under the said category, if there is no transfer of right of possession and effective control of the aircraft to the appellants. However, the findings arrived at by the adjudicating authority clearly point out to one fact that aircraft is required to be maintained, operated and controlled by the appellants. If that be so, at this prima facie stage, we note that the appellants do not satisfy the definition of said service. 6. Apart from the above, we also note the clarification issued by the Board as recorded in the Delhi High Court judgment in the case of Business Aviation Association For India v. UOI - 2011 (24)....

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....ference may be sent to Director General (Service Tax)." As is clear from above, each case is required to be examined, in the facts of that particular case and a view has to be arrived at accordingly. Admittedly, in the present case, it is the appellant who is exercising the effective control of the aircraft and is running the same. As such, even in view of the above circular, we are of the opinion that the appellants have been able to make out a good case. 7. It also stands argued by the learned Senior Advocate that such type of transfer or right to use the aircraft for any purpose is to be considered as "deemed sale" in view of Article 366(29A) of the Constitution of India, 1950, which was introduced by way of 46th Amendment to the ....