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TMI Blog2016 (11) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian customer of the foreign principal under the warranty service whatever the expensive made by the applicant have been reimbursed from the outside of India - Decided in favor of the assessee. - Appeal No.ST/53256/2014 - Stay Order No.60275/2016 - Dated:- 15-9-2016 - Sh. Tarun Gulati, Sh. Ankit Sachdeva, Advocates- for the appellant Sh. Harvinder Singh, AR- for the respondent Mr. Ashok Jindal, Member (J) And Mr. B. Ravichandran, Member (T) Per Ashok Jindal: The following demands of service tax confirmed against the applicant. s. No. Issue SCN dated 20.04.2011 92005-06 to 2009-10) SCN dated 13.10.2011 (2009-10) SCN dated 16.10.2012 (2011- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with the transferor, the goods would necessarily be sent back to the transferor, therefore, to raise the demand of service tax by the Ld. Commissioner is without any legal basis. He further submitted that the effective control and possession was transferred by the M/S Livingston UK to the applicant, therefore, the service tax is oot payable on rent paid on the equipment imported on lease. To support this contention, he relied on the decision in the case of State of Andhra Pradesh Vs. Rastriya rspat Nigam Ltd. 2013 (31) STR 513 (SC) and BSNL Vs.Union of India 2006 (2) STR 161 (S.C.). Therefore, he submits that service tax under the category of supply of tangible goods is not payable. 3. With regard to the service tax on damages good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions in the case of Paul Merchant V. CCE 2013 (29) STR 257 (Tri. Del.) and GAP International Sourcing (India) Pvt. Ltd. V, CST, Delhi, 2015(37) STR 757 (Tri. Del). He further submitted that if the service falls under Market Research Service then also they are not liable to pay service tax as per the decision of the Hon'ble Tribunal in CST Vs. B.A. Research India Ltd. 2010(18) STR 439(Tri. Ahmd.) which has been affirmed by the Hon'ble Gujarat High Court in 2013 (31) STR 663 (Guj.). 6. He also submits that the demands are barred by limitation. He further submitted that the applicants have already paid a sum of ₹ 40,61,753/- which is more than 10% of the amount of service tax demanded, therefore, the same may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction did not involve transfer of right to use the machinery in favour of contractors. The High Court was right in arriving at such a conclusion. In the impugned order, it is stated, and rightly so in our opinion, that the effective control of the machinery even while the machinery was in use of the contractor was that of the respondent company; the contractor was not free to make use of the machinery for the works other than the project work of the respondent or move it out during the period the machinery was in his use; the condition that the contractor would be responsible for the custody of the machinery while it was on the site did not militate against respondent's possession and control of the machinery. It may also be noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant do qualify under Business Auxiliary Service and the same has been covered by the decision of Paul Merchant (Supra) have been exported outside India. In this view prima-facie, the applicant has made out of a case of waiver of pre deposit. 11. We also observed that the applicant has already paid the sum of ₹ 40,61,753/- and the same is sufficient in compliance to the provisions of section 35F of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994. Accordingly, we waive the requirement of pre deposit of balance amount of service tax, interest and penalties and stay recovery, thereof, during the pendency of the appeal. (Pronounced in the open court on 15.09.2016) - - TaxTMI - TMITax - Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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