TaxTMI 
TaxTMI 
2024 (10) TMI 1653
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....in demand of service tax was confirmed along with interest and penalty. Being aggrieved by the said order the appellant filed the present appeals. 2. Shri S J Vyas, Learned Counsel appearing on behalf of the appellant, at the outset, submits that the case is squarely covered by this Tribunal's decision in the appellant's own case vide Final Order No. 12197-12199/2024 dated 26.09.2024. 3. Shri Rajesh Nathan, Learned Assistant Commissioner (Authorised Representative) appearing on behalf of the Revenue, reiterates findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records. We find that identical issue in the same set of facts in the appellant's own case has been decided by this Tribunal vide order No. A/12197-12199/2024 dated 26.09.2024, wherein this Tribunal has passed the following order: "4. We have carefully considered the submission made by both sides and perused the records. We find that the Assessee have rented out the textile machineries to M/s. Arvind Ltd for manufacture of textile products. The department's case is that leasing of machineries to M/s. Arvind Ltd is classifiable under supply ....
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...., more particularly described in the First Schedule hereunder (hereinafter collectively referred to as "the Said Machinery". 2. The Lessor has agreed at the request of the Lessee to lease and demise unto the Lessee the "Said Machinery" described in the First Schedule hereunder written for a period of 8 (Eight ) years on the terms and conditions hereinafter contained, yielding and paying therefore the monthly rents and as reserved herein. NOW THIS INDENTUR WITNESSTH AND IT IS HEREBY AGREED IT IS HEREBY AHREED AND DECLARED BY AND BETWEEN TE PATYIES HERETO AS UNDER:- 1. ................ 2. ................ 3. The lessee in the intent that the obligations may continue throughout the term hereby granted do hereby covenant with the Lessor as follows: i) During the said terms of 8 years, to pay without any deduction to the lessor the rent, herein reserved by the date and in the manner aforesaid. Provided, however, the TDS as per the provision contained under, the Income Act Tax, 1961 and/or Service Tax Act, Lessee Tax or any other Tax levy, cess, if applicable, in respect this present, same shall be the responsibility of the lessee. ....
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.... (a) All along the absolute and unencumbered ownership of the Equipment shall remain with Lessor. Nothing stated herein shall be construed to be a transfer to Lessee of any ownership right or title in the Equipment, or even a right to Lessee to demand such transfer. (b) At the completion of the Term, or in the event of earlier termination of this Agreement (as the case may be), the possession of the Equipment shall revert to Lessor. (c) Lessor retains the right to re-possess and remove the Equipment from the Location forthwith in the event of any default of any obligations by Lessee. During the Term, the Lessee shall hold the Equipment in trust, under its supervision and care, without prejudice to any of the ownership rights of the Lessor. (d) All along, the Lessee shall have the beneficial possession of the Equipment pursuant to this Agreement subject to the over-riding principle set out in Clause 2.2(a) and (c) above. 3.3 Lessor grants the Lessee the non-transferable exclusive right to use the Equipment as a part of its Captive Plant." 4.1 From the above relevant clauses, it is clear that during the lease period the right to p....
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.... Income-tax Act 20. Revision by Commissioner of the Commercial Taxes and other prescribed authorities : (1) The Commissioner of Commercial Taxes may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub-section (2) of this section and if such order or proceeding recorded is prejudicial to the interests of revenue, may make such enquiry, or cause such enquiry to be made and subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order in reference thereto as it thinks fit. (2) Powers of the nature referred to in sub-section (1) may also be exercised by the Additional Commissioner, Joint Commissioner, Deputy Commissioner, Assistant Commissioner and the Commercial Tax Officer in the case of orders passed or proceedings recorded by authorities, officers or persons subordinate to them. (Sub-sections 2-A, 3, 5 and 6 are omitted.) 263. Revision of orders prejudicial to revenue (1) The Commissioner may call for and examine the record of any proceeding ....
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....94 SC 2393 : (1994) 94 STC 422). It does not, however, mean that the interpreter can interpolate something not intended by the legislature, by supplying causus omissus (Illachi Devi v. Jain Society, Protection of Orphans India - (2003) 8 SCC 414 : AIR 2003 SC 3397 and Sankar Ram & Co. v. Kasi Naicker - (2003) 11 SC 699 : AIR 2003 SC 4156). If the plea of the petitioners is accepted, we have to read Section 20(1) of the APGST Act as empowering revision, only when an order of assessing officer/appellate authority is erroneous in so far as it is prejudicial to the interest of revenue. This is plainly not permissible. 10. The impugned order of the Tribunal is also attacked on the ground that the Tribunal erred in not recording a finding on the issue raised. This cannot be a ground for us to exercise revisional jurisdiction under Section 22(1) of the Act. As rightly pointed out by the Special Counsel for Commercial Taxes, the submissions were noted in the order. The learned Tribunal considered the core issue and, having found that the agreement is a contract for the transfer of the right to use Transit Mixers, dismissed the appeals. We fail to understand as to how the impugned ....
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.... that the lease of cinematograph films is not a sale. In CTO v. Young Men's Indian Association (Regd.) - (1970) 1 SCC 462, it was held that supply of goods by any incorporated association or a body of persons to a Member of the association is not sale and in State of Punjab v. Associated Hotels of India Limited - (1972) 29 STC 474 : (1972) 1 SCC 472 and Northern India Caterers (India) Limited v. Lt. Governor of Delhi - (1978) 4 SCC 36, it was held that service of meals in a hotel or restaurant does not constitute sale of food for the purpose of levy of sales tax and must be regarded as rendering service in the satisfaction of human need. So as to tackle these issues, which effected the State's revenue (by depriving tax on such type of sales), the matter was referred to the Law Commission of India. 13. In their Sixty First Report, the Law Commission of India dealt with specific transactions like transfer of control commodities, supply of food in hotels, transfer of goods on hire purchase and the works contracts. In Chapter 1-E the Law Commission made pertinent observations, which compel excerption. CHAPTER 1-E SOME GENERAL OBSERVATIONS AS TO TAXATION ON SA....
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....nd 286(3) of the Constitution of India to be in consonance with the other proposed amendments. As a result, the Constitution (Fortysixth Amendment) Act, 1982 was enacted which was published in the Gazette on 2-2- 1983. Consequently this led to States amending their sales tax laws to enlarge the ambit and width of "sale of goods" for levy of tax. Due to this, a wide variety of economic activities, which were hitherto not considered as sale of goods, came within the fold of State laws. Indeed, as observed by the Law Commission of India, the underlying theme was to devise a tax, which will embrace all transactions which are regarded as adding value or which is entered into with that object. This is reflected in the new definition in Article 366 (29A), which reads as under. 366. Definitions (29A) "tax on the sale or purchase of goods" includes - (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods whether as goods or in some other form involved in the execution of a works contract; (c) a tax on ....
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....th Amendment) Act was upheld. But the Apex Court ruled that the States' power to levy tax on the goods involved in a works contract is subject to the restrictions in Article 286. Article 366(29A) was elucidated by the Constitution Bench as below : It refers to a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. The emphasis is on the transfer of property in goods (whether as goods or in some other form). The latter part of clause (29A) of Article 366 of the Constitution makes the position very clear. While referring to the transfer, delivery or supply of any goods that takes place as per sub-clauses (a) to (f) of clause (29A), the latter part of clause (29A) says that "such transfer, delivery or supply of any goods" shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made ....... The object of the new definition introduced in clause (29A) of Article 366 of the Constitution is, therefore, to enlarge the scope of 'tax on sale or purchase of goods' wherever it occur....
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....nly for executing the work entrusted. Therefore, it was held that the fundamental requirements of Section 5- E are not satisfied. 20. In I.T.C. Classic Finance & Services v. CCT - (1995) 97 STC 330 (AP) : (1995) 20 APSTJ 150 the assessee, a finance company, was in the business of hiring out machinery, plant and equipment for rent. After purchasing the goods of required specifications, the manufacturer was advised to consign them directly to the customer on hire under an agreement of lease of the equipment for a period of sixty months or more. As these goods were moved out of the State during the course of interstate trade, in their sales tax return for the year 1988-89, the assessee claimed exemption on the ground that the transaction was not excisable to tax under Section 5-E of the Act. The original authority rejected the contention. The assessee was successful before the Appellate Deputy Commissioner. However, the Commissioner following the judgment of the Bombay High Court in 20th Century Finance Corporation Limited v. State of Maharashtra - (1989) 75 STC 217 (Bom.) in suo motu revision, set aside the appellate order restoring the original assessment order. The assesse....
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.... (b) the transfer of right to use any such goods entered into by any dealer, shall be deemed to have taken place in this State whenever the goods are used within the State, irrespective of the place where the agreement whether written or oral for such transfer of right is made. Provided that no such tax shall be levied if the total turnover of the dealer including such aggregate is less than Rs. two lakhs. 22. The decision in ITC Classic Finance went in appeal to the Supreme Court. The appeal was heard along with other similar appeals (20th Century Finance Corporation Limited v. State of Maharashtra - (2000) 6 SCC 12 : (2000) 119 STC 182 (SC)) by a Constitution Bench of the Supreme Court which inter alia considered the import of subclause (d) of clause (29A) of Article 366 of Constitution, and the constitutional validity of Section 5-E of the APGST Act and similar provisions in Haryana, Maharashtra, Rajasthan, Uttar Pradesh and Tamil Nadu Acts. By majority of 3:2, Section 5-E(b) was held to be in excess of the legislative power of the State under Entry 54 of List II of the Seventh Schedule to the Constitution. But to save it from being unconstitutional, the Cour....
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....in respect thereof is also required to be executed. Given that, the locus of the deemed sale is the place where the right to use the goods is transferred. Where the goods are when the right to use them is transferred is of no relevance to the locus of the deemed sale. Also of no relevance to the deemed sale is where the goods are delivered for use pursuant to the transfer of the right to use them, though it may be that in the case of an oral or implied transfer of the right to use goods, it is effected by the delivery of the goods. (emphasis supplied) 23. While holding that, in a contract for the transfer of the right to use goods, the taxable event would be the execution of the contract for delivery of the goods, it was observed. Article 366(29A)(d) further shows that levy of tax is not on use of goods but on the transfer of the right to use goods. The right to use goods accrues only on account of the transfer of right. In other words, right to use arises only on the transfer of such a right and unless there is transfer of right, the right to use does not arise. Therefore, it is the transfer which is sine qua non for the right to use any goods. If the goods are a....
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....ect work of the respondent or move it out during the period the machinery was in his use; the condition that the contractor would be responsible for the custody of the machinery while it was on the site did not militate against respondent's possession and control of the machinery. (emphasis supplied) 25. In Bharat Sanchar Nigam Limited v. Union of India - 2006 (2) S.T.R. 161 (S.C.), the principal question was regarding the nature of transaction by which mobile phone connections are enjoyed. In an earlier decision marked as State of Uttar Pradesh v. Union of India - 2004 (170) E.L.T. 385 (S.C.) = 2006 (3) S.T.R. 98 (S.C.), a two Judge Bench took the view that transferring the right to use the telephone instrument/apparatus, fell within Section 2(h) of the Uttar Pradesh Trade Tax Act, which defined "sale" to include the transfer of the right to use goods. Doubting the correctness, the matter went before a three Judge Bench. In the lead opinion, as well as in concurring opinion, it was held that though giving a telephone connection would be a transfer of the right to use the goods, there cannot be transfer of the right to use in the case of telephone service. "Provid....
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....b-clause (d) of clause (29A) cannot be equated with that category of bailment where goods are left with the bailee to be used by him for hire. (e) In the case of Article 366(29A)(d) the goods are not required to be left with the transferee. All that is required is that there is a transfer of the right to use goods. In such a case taxable event occurs regardless of when or whether the goods are delivered for use. What is required is that the goods should be in existence so that they may be used. (f) The levy of tax under Article 366(29A)(d) is not on the use of goods. It is on the transfer of the right to use goods which accrues only on account of the transfer of the right. In other words, the right to use goods arises only on the transfer of such right to use goods. (g) The transfer of right is the sine qua non for the right to use any goods, and such transfer takes place when the contract is executed under which the right is vested in the lessee. (h) The agreement or the contract between the parties would determine the nature of the contract. Such agreement has to be read as a whole to determine the nature of the transaction. If the consensus ad....
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....elow. Before that we propose to begin by making a reference to a passage from Scrutton which lucidly distinguishes the lease (involving transfer of the right to use) and licence in the context of charter parties. Referring to Sandeman, Baumvoll and Sea and Land Securities the learned author classifies charterparties by demise in the following manner. CHARTERPARTIES may be categorized according to whether or not they amount to a demise or lease of the ship. A charter by demise operates as a lease of the ship itself, to which the services of the master and crew may nor may not be superadded. The charter becomes for the time the owner of the vessel; the master and crew become to all intents his servants, and through them the possession of the ship is in him. A charter by way of demise may be for time or for a particular voyage. In modern times, however, charters by way of demise are invariably expressed to be for a period of time. Under a charter not by demise, on the other hand, the ship owner agrees with the charterer to render services by his master and crew to carry the goods which are put on board his ship by or on behalf of the charterer. In this case,....
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....nbsp;STC 215 (AP) (SBI v. SoAP) - do - Bank lockers embedded in the floor are not "goods" for the purpose of the APGST Act. There is no transfer of right to use and it is only licence to use the goods without securing possession. The contract is one of bailment and the essential requirement of delivery in a "sale" is lacking in hiring of bank locker. 3. (1990) 77 STC 182 (AP) (RINL v. CTO) Sophisticated imported machinery like cranes, docers, dumfors and compressors in the construction of steel plant. Providing machinery to the contractor in connection with the execution of the work does not amount to transfer of right to use the machinery. (NB: Affirmed in RINL-II) 4. (1990) 77 STC 470 (WBTT) (Modern Decorators v. CTO) Constructing pandals, barricades, rostrums on land, road, building roof top. Material belongs to decorators. After providing these and collecting rent, they were removed and taken away. They were not handed over to the customers. The goods are not transferred. The customer has no right to use the materials necessary for the construction of pandals. The ere....
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.... The Supreme Court affirmed the High Court's view in Harbans Lal. It was held that the owners transferred the shuttering for consideration for use in the construction of buildings and that the requirements of a deemed sale are satisfied. 8. (2000) 6 SCC 12 : (2000) 119 STC 182 (SC) (20th Cent. Fin. v SoMah) Lease of machinery/ equipment under master agreement. The lease financier placed purchase orders with manufacturers and delivers them to the lessees. The value of the equipment is disbursed by the financier. On executing supplementary lease deed forming part of master lease agreement, the machinery is allowed to be used. Sales tax was levied on the financier by the State where the equipment was located. State cannot impose tax on interState trade/commerce transactions of the right to use any goods. State is precluded from making law to impose tax on transactions that take place outside the State, in the course of import/export. The delivery of goods is not a condition precedent, but is one of the elements of the transfer of the right to use. 9. (2001) 124 STC 426 (Kar.) Lakshmi AV Inc v. Asst. ....
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.... provision for substitution of vehicles. 12. (2010) 31 VST 337 (Gau.) (Deepak Nath v. ONGC) Trucks, Trailers, Tankers and Cranes - the owner makes available these to ONGC under contracts in writing - the owner is paid operational charges as agreed to during the period of contract - ONGC also deducts tax at source under Assam Sales Tax Act. The Division bench held that the goods are made available 24 hours a day through out the duration of the contract, and method and manner of using the goods decided by ONGC, there is transfer of the right to use the goods, even though the staff remained under his control. (NB. The decision in IOC v. Commr., was impliedly overruled) 30. From the judicial decisions, the settled essential requirement of a transaction for transfer of the right to use goods are : (i) it is not the transfer of the property in goods, but it is the right to use property in goods; (ii) Article 366(29A)(d) read with the latter part of the clause (29A) which uses the words, "and such transfer, delivery or supply"... would show that the tax is not on the delivery of the goods used, but on the tra....
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....zed and read as a whole, it would not be possible to know the intention of the parties with regard to all these aspects. Quihaeret in litera haeret in cortice [He who considers merely the letter of an instrument goes but skin-deep into its meaning. The intention and parties of the document is more relevant than words used in the document] and Contemporanea expositio est optima et fortissima in lege [The best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up] very lucidly explain this principle. 34. The second principle is to understand the meaning of a document or a part of it from the document itself. The legal maxims relevant to this are Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est [In the absence of ambiguity, no exposition shall be made which is opposed to the express words of the instrument] and Verba generalia restringunter ad habilitatem rei vel personae [General words may be aptly restrained according to the matter or person to which they relate]. In addition to these, the legal maxims Ex antecedentibus et consequentibus fit optima interpretation [A passag....
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....nd language used in the document, "the intention would prevail over the words used." The intention of the parties has to be determined from the attending circumstances leading to the transaction. This principle is an exception to the first three principles. If the language used in the document is very clear, while determining the nature of the document, nature of rights and obligations flowing from the document cannot be inferred by resorting to the fourth principle. 37. In Delta International Ltd. v. Shyam Sundar Ganeriwalla - (1999) 4 SCC 545 : AIR 1999 SC 2607 and Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel - (2006) 8 SCC 726, the Supreme Court quoted with approval the following principles of construction of contracts from 'Interpretation of Contracts' by Kim Lewison, Q.C. as follows. "1.03 For the purpose of the construction of contracts, the intention of the parties is the meaning of the words they have used. There is no intention independent of that meaning. 6.09 Where the words of a contract are capable of two meanings, one of which is lawful and the other unlawful, the former construction should be preferred. Sir Edward Coke [Co. Litt. 42a] e....
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....extent of the ownership in the thing granted to be held by the grantee. "The purpose of the Habendum is to limit the estate so that the general implication of the estate which by construction of law passeth in the premises is by the Habendum controlled and qualified (Advanced Law Lexicon by P. Ramanatha Aiyar 3rd edition reprint 2007)] (ii) The part of a deed or conveyance which states the estate or quantity of interest to be granted e.g., the term of a lease (The New Oxford Dictionary of English Fourth Impression 2002)]; (ix) covenants; and (x) signing and sealing. 39. There is no dispute that the agreement between the petitioners and Grasim satisfies all conditionalities except that it does not contain the date and place of execution. Does it render it ineffective and unenforceable? We are afraid the answer cannot be in abstract or simplistic. If the agreement contains sufficient indication with regard to the grant and creation of rights and obligations with reference to such grant for the specified period therein, it would be sufficient to bind the parties to the agreement. The mere absence of date and place does not militate against the parties nor can they es....
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.... vehicles to be made available on 24/7 basis duly painted in a particular style and colour, and staff being under the instructions of Grasim alone. It is, however, submitted that the parties agreed for five dedicated vehicles as RMC needs to be transported immediately after it is manufactured in the batching plant, and the manufacturer cannot identify and negotiate with the transporter for carrying the products every time an order is placed. Therefore, such a clause was included in the agreement to ensure there is no delay in delivering the product to the customers. He also submits that making available the vehicles through out the day or painting them with brand name of Grasim is required keeping in view the possible hurdles in logistics, and to ensure customer satisfaction of getting the required branded RMC. According to him, these clauses by themselves do not warrant an inference of transfer of the right to use Transit Mixers. 41. As mentioned supra, whether the transaction amounts to transfer of right or not cannot be determined with reference to a particular word or clause in the agreement. The agreement has to be read as a whole to determine the nature of the transa....
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....nnel of the Second party will carry identification cards with them at all times. F. Omitted G. Omitted H. That the Second party will obtain proper receipts from the customers of the First party after the goods are delivered and also submit reports to the First party in the formats supplied by the First party at the required intervals. I. Omitted J. Omitted K. Omitted L. That this agreement will come into force from the 1st October 2002 and remain in effect till 31st March 2006. However, the parties will be at liberty to terminate this contract at any time by giving three months notice in writing to the other party. The First party will be at liberty to terminate this agreement at any time if the Second party violates any of the terms of the agreement or if the quality of the services provided it not to its satisfaction. The decision of the First party as to the quality will be final. M. That the Second party will indemnify the First party against statutory claim being made by any authority on the First party for an act of omission or commission by the Second party. (emphasis supplied) 42. In a....
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....the agreement. Standing alone all of them by themselves have no meaning. They are clauses intended for working out the contract which is essentially for the petitioners placing the Transit Mixers painted with brand name at the disposal of Grasim for a period of 42 months for transporting RMC manufactured by Grasim. 45. Reading the recitals and various clauses, indeed there is a transfer of the right to use Transit Mixers. All the tests as indicated hereinabove exist in the contract between the petitioners and Grasim. The vehicles are maintained by the petitioners. They appoint the drivers and fix their roster. The licences, permits and insurances are taken in their names by the petitioners, which they themselves renew. The Transit Mixers go to Grasim's batching plants in Miyapur and Nacharam, where they are loaded with RMC and then proceed to the construction sites of customers. The product carried is manufactured by Grasim, which is delivered to the customers and the customers pay the cost of the RMC to Grasim and the petitioners nowhere figure in the process of putting the property in Transit Mixers to economic use. The entire use in the property in goods is to be exclus....
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.... of time during the MOU period. As per sub clause (iii) of main clause 2, the repair and operation of the cylinders has to be carried out by the lessee without any interruption on the part of the lesser during the period of MOU. As per sub clause (iv), maintenance responsibility is with the lessee. 4.3 As per the above terms of the MOU, it is absolutely clear that after giving the cylinders on lease during the entire period of MOU, the effective right of possession, the effective control is with the lessee and not with the appellant. As per the definition of 'supply of tangible goods', the supply will fall under the taxable services only when right to possession and effective control is not transferred. Therefore, supply of tangible goods on lease basis with transfer of right to possession and effective control will go out of ambit of taxable services. Moreover this transaction is undisputedly liable to VAT as the appellant are paying the VAT as per the provision of the State Government VAT Act, the board in the DOF letter dated 29/02/2008 (supra), in para 4.4, clarified as below: 4.4 Supply of tangible goods for use: 4.4.1 Transfer of the right ....
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....ble service in respect of supply of tangible goods for use as follows :- "Taxable service" means any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances." While the assessee contends that what they have transferred is right to use which is a deemed sale, the Revenue's contention is that the right of possession and effective control remained with the assessee and hence, the transaction has to be treated as service. 5.2 Revenue's contention is based on the clauses in the agreement relating to restrictions of use by the lessee, provision of skilled operator by the lessor and maintenance and repairs of the equipment by the lessor. Merely because restrictions are placed on the lessee, it can not be said that there is no right to use by the lessee. Such a view of the revenue does not appear to be tenable when we read carefully the provisions of the agreement. Cl. 13 of the agreement provides for Hirer's Covenants. As per Cl. 13.1, the hirer will....
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....les in good condition. The petitioners contention was that the contract was for transport service and not the transfer of the right to use the goods. 5.4 The Hon'ble High Court observed that the essential requirement of a transaction for transfer of the right to use goods are : (1) it is not the transfer of the property in goods, but it is right to use property in goods; (2) Article 366(29A)(d) read with the latter part of the Clause (29A) which uses the words, "and such transfer, delivery or supply" would show that the tax is not on the delivery of the goods used, but on the transfer of the right to use goods regardless of when or whether the goods are delivered for use subject to the condition that the goods should be in existence for use; (3) in the transaction for the transfer of the right to use goods, delivery of goods is not condition precedent, but the delivery may be one of the elements of the transaction; (4) the effective or general control does not mean always physical control and even if the manner, method, modalities and the time of the use of goods is decided by the lessee or the customer, it would be under the effective o....
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....en. 3. Cross objection No. ST/CO/45/2012 stands disposed of. 5. As per the above judgment, being on similar facts and the legal issue, this tribunal has observed that the services would not fall under the category of 'tangible goods for use'. Similar issue has been settled in various judgments as cited by the Ld. Counsel. Considering the facts of the present case, and various judgments on the issue, we are of the view that the transaction of the appellant of leasing of gas cylinders to the group company does not fall under 'supply of tangible goods' services. Accordingly, demand raised under the said category is not sustainable. Hence, the impugned order is set aside. Appeal is allowed." (iii) In the case of GIMMCO Ltd. Mumbai Tribunal has passed the following decision: "5. We have carefully considered the submissions made by both sides and perused the records. 5.1 Section 65(105)(zzzzj) defines the taxable service in respect of supply of tangible goods for use as follows :- "Taxable service" means any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machiner....
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....shtra Value Added Tax Act, 2002. The Finance Minister's speech and the budget instructions issued by the C.B.E. & C. also clarify that if VAT is payable on the transaction, then service tax levy is not attracted. 5.3 A similar issue arose for consideration before the Hon'ble High Court of Andhra Pradesh in the G.S. Lamba case cited supra. The petitioners therein entered into a contract with M/s. Grasim, manufacturer of ready mix concrete (RMC) for providing transportation service for shipping RMC by hiring specially designed Transit Mixers. Under the contracts, the transit mixers are never transferred and effective control over running and using of these vehicles, as well as disciplinary control over the drivers, always remained with petitioners. It was petitioner's responsibility to obtain route permits, to take the risk or loss of transportation, to decide the shifts for the drivers and vehicles, to maintain and upkeep the vehicles in good condition. The petitioners contention was that the contract was for transport service and not the transfer of the right to use the goods. 5.4 The Hon'ble High Court observed that the essential requirement of a transaction for ....
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....n our above findings, held that the service in question is not the service of "Supply of tangible goods for use". In this position the main ground of the ld. Commissioner for dropping of demand does not exist and not relevant. Though the ld. Commissioner in a passing reference mentioned in the impugned order that the service prior to 16-5-2008 does not fall under the "Business Auxiliary Service" but not given the detailed findings. Therefore when the main ground for dropping of demand does not exist. The issue relates to demand prior to the period 16-5-2008 needs reconsideration. 7. As per our above findings, we pass following order : 1. Assessee's Appeal No. ST/654/2012 is allowed. 2. Revenue's Appeal No. ST/712/2011 is allowed by way of remand to the original adjudicating authority passing a fresh order only in respect of the demand for the period prior to 16-5-2008. All other issues related thereto are kept open. 3. Cross objection No. ST/CO/45/2012 stands disposed of. 4.2 From the above it can be seen that under the identical set of facts it was viewed that the right of possession and effective control has been transferred particular....
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....at Vadodara on this the 1st day of April 2009. BETWEEN M/s Aims Pharma Pvt Ltd, a Company limited by shares and incorporated under the provision of Companies Act, 1956, having its Registered Office at Aims House, Old Padra Road, Vadodara-390010 Gujarat, hereinafter referred to as .'THE. LESSOR' (which expression shall unless repugnant to the context or meaning thereof include Its successors, representatives, heirs, successors and assigns) of the One Part. AND M/s Alms Industries Ltd, a Company limited by shares and incorporated under the provision of Companies Act, 1956, having its Registered Office at Besides GEB Sub Station ,Padra Jambusar Highway, At & Post Gavasad, Ta. Padra, Dist. Vadodara, Gujarat .Herelnafter referred to as 'THE LESSEE'. AND WHEREAS the Lessor has in possession of Gas Cylinders (Here in after referred as The sald Asset) & agreed with the Lessee to grant to the Lessee, under the terms of this Lease Deed, Gas Cylinders with all fittings, Valves Etc .. The lessee has agreed to take on lease the same, subject to the covenants, conditions and stipulations, hereinafter in these presents expressed and contained. .. 1. That the Lessor hereby dem....