TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 621
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....reement issued by different parties in connection with the hiring of cranes. 2. From the various clauses of the said agreement, department observed that the operators and helpers, on the cranes given on hire, were agreed to be made available by the appellant for 24 Hrs a day. The staff deployed on those cranes was to be directed to follow the instructions of project manager. The salaries and welfare funds of the staff deployed was agreed to be the responsibility of the appellant. Clause (No.2) of the agreement required that service tax registration number be submitted. Based on these clauses of the agreement, department formed the opinion that the appellant has not transferred the possession and effective control of the cranes/vehicles to their clients hence their activity of giving cranes on hire cannot be treated as 'Deemed Sale' of goods. Department alleged that the activity of the appellant is a taxable service of 'Supply of Tangible Goods'. The income received by the appellant is therefore alleged to be taxable Resultantly, vide Show Cause Notice No.377/2013-14 dated 24.10.2013 service tax amounting to Rs.6,12,996/- for the period 2008-09 to 2011-12 was proposed to be recover....
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....ated during investigation. All requisite documents were provided sooner did those were asked for. The extended period in the given circumstances is not invokable. The allegations levelled against the appellants are otherwise the subject matter of interpretation. Allegations of suppression are not sustainable in the said circumstance. Above all, burden to prove the suppression was on the Department. For which there is no iota of any evidence. Ld. Counsel has prayed for setting aside of order under challenge while relied upon the following decisions:- 1. Arval India Pvt. Ltd. vs. Pr. Commissioner of Service Tax, Mumbai-IV [2020 (41) G.S.T.L. 528 (Tri. - Mumbai) 2. MSPL Ltd. vs. CCE, Karnataka [2022 - TIOL - 223 - CESTAT - Bang]. 3. Commissioner of Central Excise and Customs vs. MSPL Ltd. [2023 (69) G.S.T.L. 225/2 Centax 312 (S.C.)] 4. CCE vs. Chhattisgarh Earth Movers [ 2017 (6) GSTL 297 (Tri.)] 6. To rebut the submissions made on behalf of appellant, ld. D.R. while relying and reiterating the findings in the impugned order, has submitted that the impugned order has been passed after examining various clauses of the contract, as many as 829 in number. The order has meticulou....
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....ration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract; (c) a tax on the delivery of goods on hire purchase or any system of payment of installments; (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) ......... (f) ........." (emphasis supplied) 12. It would be seen from the aforesaid that the Constitution empowers the State to levy Sales Tax/VAT on transactions in the nature of transfer of right to use goods, which were earlier not exigible to sales tax as such transactions were not covered by the definition of "sale" as given in the Sales of Goods Act, 1930. 13. It needs to be remembered that the term "transfer of right to use goods" has neither been defined in the Constitution nor in any of the State VAT Acts or Central Sales Tax Act. The said phrase was interpreted by the Supreme Court in Bharat Sanchar Nigam Ltd. vs. Union of India reported as 2006 (2) STR 161 SC wherein the Supreme Court laid down five attributes for a transaction of "transfer of right to u....
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....supply of lubricants including hydraulic fluids to the said crane were to be looked after by the noticee. Thus it is clearly evident that the party's "crane" is covered under the definition of 'tangible goods' as explained earlier at para 20.1.6 above. I also find that it fulfills the parameters for the said services to be covered under section 65(105)(zzzzj) of the Finance Act, 1994 as it remains in possession of the service provider and the said effective control and legal right of possession has not been transferred from the service provider to the service recipient. Therefore the argument of the party that their activity was covered under "deemed sales" by virtue of the other agreements signed by them with their clients and that they were not supplying any tangible goods to their clients, is not tenable." 17. After perusing the clauses relied upon by the adjudicating authority specifically clause 3, 4, 8 & 13 of the agreement pursuant whereto the cranes were given on hire we hold that the effective control and possession of cranes was retained with the appellant while giving those on hire to various other parties. In view thereof and in view of the above discussio....