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2013 (7) TMI 150 - AT - Service TaxNature of service – ‘supply of tangible goods for use’ Section 65(105) (zzzzj) - the appellant is engaged in renting of earthmoving equipment to various customers - the appellant did not discharge any service tax liability - Held that:- The transaction involved herein is "transfer of right to use" which is deemed sale and not "supply of tangible goods for use service" - 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' – the said transaction is not the transfer of the property in goods - but it is right to use property in goods. Article 366 (29A)(d) r.w. clause (29A) uses the words, "and such transfer, delivery or supply" shows that the tax is not on the delivery of the goods used, but on the transfer of the right to use goods regardless of when or whether the goods are delivered - subject to the condition that the goods should be in existence for use - Delivery of goods is not condition precedent but the delivery may be one of the elements of the transaction for the transfer of the right to use goods. Control over the Goods – Held that:- the effective or general control does not mean always physical control but it would be under the effective or general control over the goods - the approvals, concessions, licence and permits would also be available to user of the goods - during the period of contract exclusive right to use goods along with permits, licence, etc., vests with the lessee. Stay application - Held that:- Prima facie the appellant has made out a strong case in his favour for grant of waiver of pre-deposit of the dues and stay recovery - The petition is allowed in the favour of the assessee.
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