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2020 (1) TMI 142 - AT - Service TaxNature of transaction - sale or service - Business Auxiliary Service or not - Returns not filed by assessee - contradiction of SCN - it is alleged that the service was classifiable under ‘Commission Agent Service’ - time limitation - HELD THAT:- An identical issue has been considered and decided by the Co-ordinate Ahmedabad Bench of the Tribunal in the case of M/S AIA ENGINEERING LTD. VERSUS THE COMMISSIONER, ST. - AHMEDABAD [2014 (12) TMI 241 - CESTAT AHMEDABAD] where it was held that this activity of the appellant cannot be considered as a Business Auxiliary Services and liable for Service tax under the Finance Act, 1994. It is also the settled position of law that the applicability of Sales Tax and Service Tax are mutually exclusive, as settled by the Hon’ble Supreme Court in the case of IMAGIC CREATIVE PVT. LTD. VERSUS COMMISSIONER OF COMMERCIAL TAXES & ORS. [2008 (1) TMI 2 - SUPREME COURT]. Merely because exemption is availed under the Sales Tax Act, the transaction does not cease to be a sales transaction. In the present case, the State Sales Tax Authorities have considered the impugned sale transactions and also passed assessment orders, which are also placed on record. Apart from this, there is no documentary evidence placed on record to suggest that the appellant did not undertake any sale transaction or rather, only provided services as alleged. The declaration in Form E-1, which is issued by the supplier directly to the beneficiary, is placed on record and that the issuance of Form-C by the beneficiary/customer to the State Department is also on record. Transaction declared as sale and not service - Demand do not sustain - appeal allowed - decided in favor of appellant.
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