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TMI Blog2017 (5) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... et (herein after referred to as the said goods). During the course of audit, officers observed that the appellant was exporting gases in liquid form and also supplying manufactured gases in liquid form to domestic market. For this purpose appellant requires specialized containers which can withstand minus 270 degrees temperature. These containers are procured from outside India on lease from a foreign firm to appellant for a consideration under an agreement. These containers are used for bringing the gas from foreign country and the empty containers are ferried back. The indigenous movement is carried out in the country and even these containers are imported on lease basis also for a consideration. 3. It appeared that the above activity fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the appellant before the lower authorities that this activity of paying rent would not be covered under STGU services and that the repacking of helium gas from the containers to small containers, is amounting to manufacture and hence the cost paid by the appellant is towards the manufacturing cost. Adjudicating authority after following due process of law, confirmed the demands raised alongwith interest and imposed penalties. Aggrieved by the said order, an appeal was preferred before first appellate authority. The first appellate authority also concurred with the views of the adjudicating authority and upheld the order with only modification to the extent that the demand of service tax needs to be re-determined in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iners in which helium gas comes are handed over to the appellant and they are under physical control and supervision of the appellant till the helium gas is unloaded which is used for further repacking. It is his further submission that there is a transfer of right to use the goods which is a deemed sale as per Article 366 (29A) of the Constitution of India read with Section 2(24) of the Maharashtra Value Added Tax Act, 2002, hence no service tax can be demanded on the said transaction is the law which has been decided by this Tribunal in the case of Kinetic Communications Ltd. - 2017-TIOL-762-CESTAT-Mum, Petronet LNG Ltd. - 2016 (46) STR 513, Meru Cab Co. Ltd. - 2016 (41) STR 444. It is his submission that the impugned order may be set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n are in the effective control and possession of the appellant till the helium gas is unloaded in equally specialized containers and the empty containers are re-exported to the foreign supplier. 7.2 Secondly, it is an unacceptable proposal that once the appellant has discharged the central excise duty on the very same gas which is transferred into smaller packs and considering the same as the activity of manufacturing, the question of rendering of service by the supplier under the category of STGU rentals, goes into the cost of manufacturing, on which duty is discharged. 7.3 Thirdly, the question of revenue neutrality would arise in this case as if appellant discharges the service tax under STGU under reverse charge mechanism, is undisput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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