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TMI Blog2013 (11) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... ature or which would lead to an anomaly or absurdity - Payments of service tax as also the VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as contradistinguished from an indivisible contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to be correct - Ruling of the apex court in the case of Imagic Creative (2008 (1) TMI 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential tax of Rs.2,25,50,798/- and penalties imposed. 2. Although the appellant contested the show-cause notice, but the demand was confirmed vide order in original dated 4.2.2011 passed by the Commissioner of Central Excise and Customs, Belgaum wherein findings was recorded that as per Section 67 of the Finance Act, the value for the purpose of levy of service tax is the gross value of the taxable services rendered/received by the service provider, which means without deduction, the total, as opposed to net would be the gross amount charged by the service provider for such services, would include the service provider s labour and skill, the cost of inputs-goods and services when service is the dominant component of the contract. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved. The Hon ble Court held that by insertion of Clause 29A in Article 366, a legal fiction was created so as to make the supply of goods involved in a works contract, subject to tax. The apex court held service tax is payable on the aspect of service, and on deemed transfer of goods involved, sales tax/VAT is payable. Further para 26, 27 and 28 of the Ruling are reproduced below: 26. We have noticed hereinbefore that a legal fiction is created by reason of the said provision. Such a legal fiction, as is well known, should be applied only to the extent for which it was enacted. It, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tech Industries vs. CCE: 2013 (31) STR 16 (T) where it was held that material value on which VAT is paid cannot be added to value of taxable services and also on the ruling in the case of Wipro GE Medical Systems Pvt. Ltd. vs. CST: 2009 (14) S.T.R. J44 (SC) wherein it was held that in the case of AMC of medical equipments when it is seen that the materials or the spares are used, then definitely it has to be considered as deemed sale as per Constitution of India. The said ruling was upheld by the Hon ble apex court vide order dated 7.9.2009. 5. According the appellants request to set aside the impugned order, being wholly against the provisions of law and for grant of stay. 6. The learned DR reiterates the findings as recorded in order- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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