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TMI Blog2013 (6) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the appellant has not been able to make out a prima facie case for complete waiver of the amounts involved. - stay granted partly. - ST/10556/13 - M/12249/WZB/AHD/2012 - Dated:- 3-5-2013 - M V Ravindran And H K Thakur, JJ. For the Appellant : Shri Jigar Shah, Adv. For the Respondent : Shri P N Sarvaiya, AR. Per: M V Ravindran: 1. This stay petition is filed for the waiver of pre-deposit of an amount of Rs.60,71,678/- confirmed as Service Tax liability, interest thereof and penalties under Section 76 77 of the Finance Act, 1994. 2. The adjudicating authority has confirmed demand under the category of supply of tangible goods services on the ground that appellant herein had hired out DG Sets and was providing sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand would submit that in the appellants own case vide order M/10298/WZB/AHD/2013 dated 03/01/2013, this Bench had directed the appellant to deposit 25% of the duty liability which is confirmed. He produces a copy of the said order. 5. After careful consideration and perusal of the order dated 03/01/2013 in the appellant's own case, we find that all these issues were raised at that time, and noting the same we have held that the possession of the ownership of DG sets remains with the appellant, though effective control of the said DG set may be with the service recipients and activity functioning of the DG sets is controlled by the appellant. We have recorded in the said order all the legal points which has been raised as is done t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advance Rulings and Orders Authority at Delhi, in an identical issue, held in their favour inasmuch as they have held that such transactions are chargeable to the Sales Tax. It is his submission that the CBEC Circular dated 29.02.2008 will apply in this case as such Circular talks about non imposition of service tax on the transaction wherein VAT or State Sales Tax is discharged. 4. Learned departmental representative would submit that the entire service rendered by the appellant, supply of Diesel Generator sets would fall under the taxable services as defined under Section 65 (105) (zzzz) of the Finance Act, 1994. He would also submit that the judgment of the Hon'ble Supreme Court in the case of Idea Mobile Communication Limited - 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol over the machinery. At this juncture, we find that the appellant has not been able to make out a prima facie case for complete waiver of the amounts involved. All the legal points which has been raised referring to the various judgments can be considered at the time of final disposal of appeal. As the issue is not free from doubt and is contentious one, we find that the appellant be put to some conditions for hearing and disposing the appeal. Accordingly, under the facts and circumstances of this case, we direct the appellant to deposit an amount of Rs. 30,00,000/-(Rupees thirty lakhs only) within the period of eight weeks from today and report compliance on 07.03.2013. Subject to such compliance being reported, the application for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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