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TMI Blog2015 (2) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... ible goods including machinery, equipment and appliances for use without transferring right of possession and effective control of such machinery, equipment and appliances. The adjudicating authority observed that the applicant had availed aircraft on lease basis only without any legal possession. Prima facie, we find that the applicant acquired the aircraft on the basis of the lease agreement, which is the legal possession. Clause 14 of the agreement would be invoked in the event of default, that the right accrues with the owner. On the other hand the Ld. AR also contended that the maintenance is also on the applicant except replacement of the engine. The Commissioner has also accepted that the maintenance is provided by the applicant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )/2009 dated 02.09.2009, wherein the issue on levy of service tax exclusively on chartering of Aircrafts has been clarified. He strongly relied upon the stay order of the Tribunal in the case of Blue Dart Aviation Ltd. Vs. CST, Chennai - 2012 (28) STR 386 (Tri.-Chen.) and 2013 (30) STR 429 (Tri.-Chen.). He also submits that they have provided the crew and maintenance, insurance etc. 3. On the other hand, the Ld. AR on behalf of the Revenue submits that it is an operational lease and therefore, no effective control is with the applicant. It is only the operative control over the applicant. He also submits that the applicant caters maintenance except the changing of the engine without the consent of the owner. 4. After hearing both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find that Clause 14 of the agreement would be invoked in the event of default, that the right accrues with the owner. On the other hand the Ld. AR also contended that the maintenance is also on the applicant except replacement of the engine. The Commissioner has also accepted that the maintenance is provided by the applicant. The adjudicating authority emphasized that there is no sale in this case. We find that this issue is clearly desalt by the Tribunal in the case of Blue Dart Aviation (supra), which is reproduced below:- 7. It also stands argued by the learned Senior Advocate that such type of transfer or right to use the aircraft for any purpose is to be considered as deemed sale in view of Article 366(29A) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 5 of the General Sales Tax Act, 1956. Nevertheless, he submits that inasmuch as the deal is required to be considered as 'deemed sale' and the sales tax and service tax being mutually exclusive to each other, the confirmation of service tax against the appellants is not justified. 8. In view of the said argument of the learned senior advocate also, we find that the appellants has a good prima facie case in its favour. 9. Ld. JCDR, Shri V.V. Hariharan appearing for the Revenue accepts that in view of prima facie nature of the matter, as clarified in the above reproduced clarification of the Board, stay may be granted to the applicants. 10. In view of the above, we dispense with the condition of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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