TMI Blog2018 (6) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant on these machineries. On the other hand, manufacturing activity was got done with the help of these machineries only by the lessee at their own control and fancy and not on any direction or control of the appellants. This being so, the ingredients required for bringing the activity within the fold of supply of Tangible Goods Service for the purpose of Section 65 (105) (zzzzj) ibid are not satisfied. Renting has satisfied the requirements of “deemed sale”. This being so, in view of the activities will not fall either within the scope of Business Support Service for the earlier periods or for that matter, under the supply of Tangible Goods Service for subsequent periods. Appeal allowed - decided in favor of appellant. - ST/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2011 and ST/41371/2013. [In the adjudication order dt. 30.03.2012 (ST/41371/2013) in respect of the period April 2009 till March 2010, the original authority appears to indicate that the demand has been confirmed under supply of Tangible Goods Service]. For the periods April 2010 to March 2011 and April 2011 to June 2012, SCNs were issued to the appellants proposing demand of tax liability under supply of tangible goods service which was confirmed by the original adjudicating authority and on appeal upheld by the lower appellate authority vide the impugned orders. vide the corresponding impugned orders. Hence Appeals ST/42135/2013 ST/42022/2015. 2. Today when the matter came up for hearing, on behalf of the appellants Ld. Advocate, Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged treating the transaction a deemed sale and where effective right of possession and effective control had been transferred to the lessee. The activity should not be subjected to service tax levy under supply of Tangible Good Services. He relies upon the following decisions : 1) GIMMCO Ltd. Vs CCE ST Nagpur 2017 (48) STR 476 (Tri.-Mumbai) 2) CCE ST Raipur Vs Chhattisgarh Earth Movers 2017 (6) GSTL 297 (Tri.-Del.) iv) Ld. Advocate submits that for the subsequent period on the same issue, in their own case, the Commissioner (Appeals) Coimbatore vide Order No.274/2016 dt. 08.12.2016 had found that there is transfer of goods involved which is deemed sale in the leasing of the machineries made by the appellant and had hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sides and perused the appeal records. On plain reading of the agreement it is clear that the respondent is supplying machinery (JCB) for the client in which absolute possession over the machinery is with the client. Supplying operator does not in any way dilute such absolute possession. Further, we also note that the respondent discharged applicable VAT treating the transaction as a deemed sale in terms of the said agreement. The statutory definition in terms of Section 65(105)(zzzzj) of the Finance Act, 1994 is very clear to the effect that for tax liability for the supply of tangible goods should be without transferring right of possession and effective control of such machinery. We find in the present case the exclusion in the tax en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plying these principles and examining the terms of the contract, the Hon ble High Court held that the transaction involved was a transfer of right to use Transit Mixers and not transport service and the petitioners had transferred the right to use goods to Grasim. If we apply the ratio of the above decision to the facts of the present case, the transaction involved herein is transfer of right to use which is a deemed sale and not supply of tangible goods for use service. 6. In view of the foregoing, we are of the considered view that the assessee s activity of giving various equipments on hire does not fall under the category of Supply of tangible goods for use , hence the same is not liable to service tax w.e.f. 16-5-2008. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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