TMI Blog2008 (10) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... to delivery of goods to the customers - service tax not leviable - demand of tax and penalties are not sustainable - ST/96/2007-ST(BR) - ST/28/2009(BR)(PB), - Dated:- 29-10-2008 - S/Shri P.K. Das, Member (J) and Rakesh Kumar, Member (T) Shri Jagmohan Bansal, Advocate, for the Appellant. Shri Sumit Kumar, DR, for the Respondent. [Order per : P.K. Das, Member (J)]. - The relevant facts of the case, in brief, are that the appellants are registered with the Central Excise Department for manufacture of medical equipment such as X-Ray machines, C-Arm Image Intensifier, Mammography, Mobile Cath Lab classifiable under heading 9022 of the First Schedule to the Central Excise Tariff Act, 1985. It has been alleged that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customers and therefore, the demand of tax is unjustified. He relied upon the decision of the Hon'ble Supreme Court in the case of State of Andhra Pradesh v. Kone Elevators (India) Ltd. reported in 2005 (181) E.L.T. 156 (S.C.) and also relied upon the decision of the Tribunal in the case of Idea Mobile Communications Ltd. v. CCE, Trivandrum reported in 2006 (4) S.T.R. 132 (Tri. Bang). 3. The learned DR reiterates the finding of the Commissioner. He submits that the Authorized Representative of the appellants admitted in his statements that they were providing services like imparting of training, erection, commissioning and installation of machines/equipments at the customers premises. He further submits that the statements are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re VI to the show cause notice, we find that the demand of tax was determined on the basis of Central Excise invoice value, as taxable value. It is also noticed that for some periods, taxable value has been taken as 33% of invoice value in terms of the Notification No. 19/2003-S.T. dated 21-8-2003 as amended. In some cases, total in voice value has been taken as taxable value since the appellant was availing Cenvat credit of invoice and benefit under Notification No. 19/03-S.T. dated 21st August, 2003 cannot be availed, The learned Advocate submits that in only one case, they charged commissioning and installation charges separately in the purchase order wherein they paid service tax. The main contention of the learned Advocate is that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished goods, it is contract of sale. If the main object is work and labour and property passing by accessories during the process of work to the movable property of customer, it is works-contract. The relevant portion of the decision of the Hon'ble Supreme court in the case of Kone Elevators (I) Ltd. supra is reproduced below: "It can be treated as well settled that there is no standard formula by which one can distinguish a 'contract for sale' from a 'works contract'. The question is largely one of fact depending upon the terms of the contract including the nature of the obligations to be discharged there under and the surrounding circumstances. If the intention is to transfer for a price a chattel in which the transferee had no previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sale of goods or is a works contract. Ultimately, the terms of a given contract would be determinative of the nature of the transaction, whether it is a sale or a works contract. Therefore, this question has to be ascertained on facts of each case, on proper construction of terms and conditions of the contract between the parties." 7. In the present case, the appellants manufactured and hold the medical equipment. It is revealed from the record that the activity of installation, erection and commissioning are incidental to delivery of goods to the customers. Therefore, there is no reason for levy of service tax on the installation and commissioning of medical equipment. 8. The learned DR relied upon the decisions of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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