9911796707
TMI Blog2024 (1) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of the owner protecting his property and legal rights to ownership. These terms and condition by no stretch of imagination can be understood to mean that the appellant did not transfer the possession and effective control of the plant and machinery. The clause 5 of the agreement relates to the proper use of machinery and clause 6 is intended to protect the title of the appellant in the leased property. None of the clauses cited by the Commissioner indicate retaining of possession or effective control of the plant and machinery. Without any evidence to hold that effective control and possession has not been transferred, it could not held that any service in the nature of Supply of Tangible Goods has been provided. There are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been transferred. He pointed out that the Commissioner also relies on the Circular Dof. No. 334/1/2008-Tru dated 29.02.2008 wherein it has been elaborated that the fact that VAT is paid or not can be used to determine if the possession or effective control has been transferred or otherwise. 3. Learned Counsel argued that the Commissioner in is order is related to certain clauses of the agreement to hold that the right of possession and effective control has not been transferred. He argued that the said clauses are standard clauses meant to protect the interest of the appellant and does not in any way imply with the right of possession and effective control has not been transferred. He pointed out that the impugned order also relies on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 366(29A)(d) of the Constitution of India]. Transfer of right to use involves transfer of both possession and control of the goods to the user of the goods. 4.4.2 Excavators, wheel loaders, dump trucks, crawler carriers, compaction equipment, cranes, etc., offshore construction vessels barges, geo-technical vessels, tug and barge flotillas, rigs and high value machineries are supplied for use, with no legal right of possession and effective control. Transaction of allowing another person to use the goods, without giving legal right of possession and effective control, not being treated as sale of goods, is treated as service. 4.4.3 Proposal is to levy service tax on such services provided in relation to supply of tangible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are competent to operate the same: iii Unless agreed to by the Lessor, not to use the manufacturing facility for any purpose other than the purpose for which the Lessor agrees to give this facility on lease: iv Not to make any alterations, addition or improvement to the manufacturing facility or change the condition thereof without the prior written consent of the Lessor and all such additions, improvements and attachments of any design or nature, whosoever, as and when made to the Building Plant Machinery by the Lessee whether at its own cost or not and whether with or without the approval of the Lessor shall belong to the Lessor and be deemed to be part of the manufacturing facility and shall be subject to the terms and cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder this agreement or for storage, installation, or use thereof may be placed or kept and produce to the Lesser, on demand, the latest receipts for all such payments and in the event of the Lessee making default under this sub- clause the Lesser shall be at liberty to make all or any such payments and to recover the amount thereof from the Lessee forthwith. v) If the Lessee fails to pay the moneys referred to in clauses here above, the Lesser may pay the same and the Lessee shall reimburse all sums so paid together with the fee as provided in Clause 3.1 hereof. vi) The Lessee hereby expressly convents with the Lesser that the manufacturing facility shall not become a part of any charge, mortgage or hypothecation created by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
