2018 (5) TMI 1420

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..... e same as “deemed sale of goods.” The levy of Service Tax on the transaction as well as levy of VAT, considering the transaction as deemed sale, will be mutually exclusive. Appeal allowed - decided in favor of appellant.
HON'BLE MR S.K. MOHANTY, MEMBER (JUDICIAL) And HON'BLE MR V.PADMANABHAN, MEMBER (TECHNICAL) For the Appellant : Sh Vineet Kumar Singh, Advocate For the Respondent : Shri Amreesh Jain , DR ORDER Per V. Padmanabhan The appeal is against the Order-in-Original No.51/2015-16 dated 31.03.2016. The appellant was engaged in renting-out heavy duty cranes to various parties engaged in the construction of Delhi Metro. The department took the view that the consideration received by the appellant for the above activity is liable .....

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..... ipments has been transferred to the user, it becomes "deemed sale of goods: under Article 366 (29A) (d) of the Constitution. 4. He also relied on the following case laws in which similar activity has been held to be not covered under the above category of service: (i) Commissioner of CST, Raipur Vs Chhattisgarh Earth Movers, 2017 (6) GSTL 297 (Tri.-Drl.) (ii) M/s Gimmco Vs CCE Nagpur.2017 (48) STR 476 (Tri.-Mumbai) (iii) M/s Petronet LNG Ltd Vs CST, New Delhi-2016 (46) STR 513 (Tri.-Del.) 5. The ld DR justified the impugned order. 6. He referred to para 18.19 of the impugned order in which the adjudicating authority referred to the case laws in the case of M/s Great Ship (India) Ltd Vs CST Mumbai-I-2015 (37) STR 533 (Tri. Mumbai). .....

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..... d as service." "4.4.3 Proposal is to levy Service Tax on such services provided in relation to supply of tangible goods, including machinery, equipment and appliances, for use, with no legal right of possession or effective control. Supply of tangible goods for use and leviable to VAT/sales tax as deemed sale of goods, is not covered under the scope of the proposed service. Whether a transaction involves transfer of terms of the contract and other material facts. This could be ascertainable from the fact whether or not VAT is payable or paid." 10. The facts of the present case reveal that the appellant has supplied machinery on hire along with the operators. The customer is free to make use of the equipment along with the operator for .....

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