9911796707
TMI Blog2014 (7) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... parts/ materials used in providing services, its value cannot be included in the service portion of the contract, for discharging the service tax. - prima facie case is in favor of assessee - stay granted. - Appeal No. -182/2012 - ORDER NO.SO/75281/2014 - Dated:- 6-3-2014 - DR. D.M. MISRA AND DR. I.P. LAL, JJ. For the Appellant : Sri Ravi Raghavan, Advocate Sri Rijoy Bhaumik, Advocate For the Respondent : Sri S. Misra, Addl. Commissioner(A.R.) JUDGEMENT Per DR. D.M. MISRA; This is an application seeking waiver of pre-deposit of Service Tax of ₹ 52.97 Lakhs and equal amount of penalty imposed under Section 78 of the Finance Act, 1994. 2. At the outset, the Ld. Advocate Shri Ravi Raghavan for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the applicant has admitted that at times, the value of the spare parts are inflated in providing the service against the particular contract. The Ld. A.R. for the Revenue further submits that even if VAT is paid on the spare parts in view of the aspect theory propounded by the Hon ble Supreme Court in the case of Federation of Hotel Restaurant Association of India, etc. Vs. Union of India Others - (1989) 3 SCC 634) that service tax is also payable on that portion of the value of spare parts by including the same in the scope service portion of the contract. 4. Heard both sides and perused the records. Prima facie, we find that against agreement with various clients, the applicant had rendered the services of maintenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration of the law, in the above referred decisions. At this stage, we also take note of the Boards Circular No. 96/7/2007-ST, Dated- 23/8/2007 laying down that the value of spare parts sold by a service provider is not required to be taken into consideration if the same are subjected to levy of sales tax and VAT and there is clear evidence to show the sale of the same. Circular further goes on to say that the fact of payment of VAT/sales tax on a transaction value indicates that the said transaction is treated as sale of goods. Keeping in view the Board s circular as also the precedent decisions of the Tribunal, we hold that the appellant has good case in its favour so to allow the stay petition unconditionally. We order accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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