AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2013 (3) TMI 522
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....he appellant provide Helicopters For transportation of the persons in India, as required by the State Governments, The appellant, during the period of agreement, are required to keep their helicopters at a particular place in the State, keeping the same in readiness and provide the same to the state Government for transportation for its personnel as and when required. The Appellant are required to provide their(own trained man power for flying the helicopter and maintenance. For these services, the appellant, in terms of the agreement receive some fixed amount per month based on certain minimum flying hours and also hourly charges as when the Helicopter is operated for transportation of the client's personnel by air. The period of dispute, ....
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....f Rs. 1,83,75,373/- along with interest and while imposed penalty of equal amount on the appellant u/s 78 of the Finance Act, the penalty of Rs. 10,000/- was imposed u/s 77 of Finance Act.'94. The service tax demand for remaining amount was dropped. 1.5 Against the above order of the Commissioner, this appeal has been filed along with stay application. 2. Heard both the sides in respect of stay application. 3. Sh. P.K. Sahu, Advocate, and Sh Prashant Shukla, Advocate, learned counsels for appellant, pleaded that appellant were providing the services of transportation of passenger by air and not the service of "supply of tangible goods", that this fact is clear from the appellant's agreement with ....
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....nt's activity can not be treated as supply of tangible goods service covered by section 65 (105) (zzzzj), that since the cost of operation of the helicopter such as maintenance, cost of the crew, fuel expenses, parking fee etc. are borne' by the appellant, and since the main remuneration received by the appellant is on the basis of flying hours, the appellant's activity can not be treated as supply of tangible goods but has to be treated service of transportation of passengers in India by air, that as regards the service tax demand on the service received from service providers abroad, the department's stand is ambivalent and hence the service tax can not be demanded, that in any case the longer limitation period is not available to the dep....
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....ecame taxable w.e.f.-1.07.10. Except for service tax demand of Rs.7,82,122/-, which is in respect of receipt of taxable services by the appellant from service providers abroad, the remaining service tax demand is in respect of the service providers by the appellant in India and the dispute in respect of the same is as to whether the service provided by the appellant is "transportation of passenger by air within India" or the same is "supply of tangible goods service". The service of supply of tangible goods was a taxable service u/s 65(105) (zzzzj) of the Finance Act during the period of dispute. While the plea of the appellant is that their activities was transportation of passengers by air within India which become taxable onl....
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....ts the thrust is on transportation of personnel and keeping the helicopter in readiness for this purpose and the charges are also on the basis of flying hours except for some fixed monthly charges on the basis of minimum flying hours. We, are therefore, of a prima facie view that the appellant's activity is transportation or persons within India by air and not supply of tangible goods and as such during the period of dispute the same was not taxable. 7. As regards, the duty demand on account of receipt of taxable services from service-providers abroad, the dispute is only on the question as to whether it was repair and maintenance service or technical inspection and certifications services. Since in both the cases, the appellant are ....