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TMI Blog2014 (7) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. It is also seen that the Commissioner vide a separate order dated 21.02.2011 in another associated company M/s. Surya Transformers has set aside the demand based on identical ground. Though the said order was placed before the Commissioner, he has not followed the same by observing that the said order has not been accepted by the Department and the appeal has been filed there against before the Tribunal. However, there is no stay of operation of the said order. - Decided in favour of assessee. - Appeal Nos.ST/959/2011- CU( DB) - Final Order No. ST/A/50677/2014-CU(DB) - Dated:- 21-2-2014 - Archana Wadhwa and Rakesh Kumar, JJ. For the Appellant : Shri Ankit Jain, AR For the Respondent : Shri Amresh Jain, DR JU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by them. 3. The Revenue was, however of the view that a reading of the contract shows that it was a composite contract being a complete repair package cost per transformer depending upon the capacity of the same in KVA and the break-up of the total charges is only for price variation in respect of HV an LV leg coil, transformer and supply items. As such, a view was entertained that the appellant was required to pay the service tax on the total contracted value, which was inclusive of the various items used in the repair of transformers. Accordingly, proceedings were initiated against them by way of issuance of Show Cause Notice dated 30.06.2010 proposing confirmation of demand of service tax for the period 16.06.2005 to 30.09.2009, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods were never sold by the appellant in as much as in terms of the contract, the repairer has to send persons to the premises of their clients for opening of transformer cover, draining oil, de-tanking, dismantling of coil from core, removal of parts and as such, it becomes clear that the appellants had no option to replace or not to replace the parts depending upon the condition of the damaged transformers. On the contrary, they were proved only with core and tank and they are under a mandatory requirement to replace all the parts and repair the transformers. As such the entire consideration received by them from their customers is for providing services of complete repair of old and damaged transformers, during which they are obliged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax leviable therein, subject to the condition that there is documentary proof specifically indicating the value of the said goods and materials. Admittedly, the value of the goods and materials, which are required to be used for the repair of the transformers stand separately disclosed in the agreement as also separately mentioned in the invoices raised by the appellants. Whether the same stands mentioned separately in the contract for the purpose of price variation clause or otherwise, would not make much difference for the purpose of extending the benefit of Notification to the appellant. Not only that the appellants have paid the excise duty, VAT on the goods used in the repairing process, in which case it has to be held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition of the said contract and the party was not having any option not to replace there items etc. which do not find a mention in the said contract. As already observed, the fact of mentioning the costs of various items for the purpose of price variation will not make any difference in as much as the legal requirement is that the cost of the materials used should be shown separately. Further, Commissioner has also not disputing the fact that the appellants have paid the excised duty and sales tax/VAT in respect of the goods so used in which case they have to be treated as deemed sale of the goods. 8. At this stage, we may deal with some of the judicial pronouncements of the courts, relevant to the issue involved. The Tribunal in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance Contract has to be considered as sold and the benefit of Notification No.12/2003-ST has to be extended. The said decision stands upheld by the Hon'ble Supreme Court as reported in 2012 (28) S.T.R. J44 (SC). 9. It may not be out of place to mention here that on examination of the documentary evidences, we find that the agreements as also the invoices reflected the cost of the materials and the labour separately as also establishes the fact of payment of excise duty, VAT/CST on the said goods sold, it has to be held that no service would be leviable on the value of the materials sold, in the light of the declaration of law in the various decisions referred supra. It is also seen that the Commissioner vide a separate order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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