2022 (8) TMI 105

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....the argument of maintainability of the Writ Petition which is put forth by the respondent. 2.The impugned order is an order-in-original and hence amenable to statutory appeal. Thus, respondent would urge that the Court apply the bar of alternate remedy and relegate the petitioner to first appeal. The question to be answered is as to whether the activity carried on by the petitioner in the hair studio, the details which are set out in the paragraphs to follow, constitutes sale of a product, being a wig, or service of preparation of wig and fitment thereof. 3.Though normally Courts are reluctant to consider challenges as against original orders, in cases where the relevant facts are undisputed, there is no purpose to be served in relega....

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....e) The head is then washed, conditioned and sterilized with dettol. The wig is thereafter pasted onto the head with medical tape and glue and the hair on the wig is cut so as to match the existing hair style. (f) The wig is also maintained, if the client so desires, and re-groomed either fully i.e. by removal of wig, sterilization, cleaning of the scalp and replacing the wig or partly i.e. washing and tightening the loose ends. 5. On the aforesaid facts, the legal issue that arises is whether the intrinsic or dominant nature of the transaction is one of sale of a wig or rendition of service. The petitioner relies upon a decision of the Karnataka High Court in the case of Commissioner of Central Excise, Mangalore Vs. Beau Monde's....

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....tioner is the manufacture of the wig, for which it remits central excise duty. The fitment of the wig, including the preparation of the scalp, and optional maintenance of the wig itself, are incidental to the product. 10. The Hon'ble Supreme Court, in the case of Imagic Creative Pvt. Ltd. Vs. Commissioner of Commercial Taxes [2008 (9) S.T.R. 337 (S.C.)], has specifically noted the difference between a composite contract and an indivisible one. A composite contract is one that would involve components of sale and service whereas an indivisible contract, also involving components of sale and service, is one where the distinction between the two is very fine and difficult to determine. 11.At paragraph No.28 of the Order, the Bench states....