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TMI Blog2009 (9) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee') are undertaking repair and overhaul of various engines received mainly from Ministry of Defence and others. The said activities constitute taxable service under 'Maintenance or Repair services' as defined under Section 65(64) of the Finance Act, 1994 (hereinafter referred to as the 'Act') with effect from 1-7-2003. Intelligence was received to the effect that the assessee short paid Service Tax by resorting to suppression of value of taxable Service Tax. Section 67 of the Act relating to valuation of taxable services for charging Service Tax prescribes that the value of any taxable service shall be the gross amount charged by the service provider for such service provided or to be provided by him. Accordingly a show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, in exercise of powers conferred by Section 80 of the Act, I order for waiver of penalty imposable under the aforesaid Sections. However, the assessee shall, pay the Service Tax amount as mentioned above as well as interest in the manner prescribed under the provisions of the Act. 3. Ld. Counsel appearing on behalf of the appellant submits that in an identical issue in respect of the very same assessee, but in respect of Helicopter Division was decided finally by this Bench vide Final Order No. 714/09 dated 29-5-2009 [2010 (17) S.T.R. 81 (Tri.-Bang.)] and produces a copy of the said order. It is his submission that the issue involved is same and only the Division is different i.e. in this appeal it is Engine Division while in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. Consultant produces copies of returns and documents for the sales tax paid. It is his submission that the appellant M/s. HAL as an entity pays sales tax for all the divisions and he produces copy of the same. 6. On further scrutiny of the records before us, we find that the appellant while raising the invoices clearly indicates that fixed price quotation and cost of the materials and the activity of repairs as considered by them as services rendered and it is seen that they are discharging the Service Tax liability on the amount shown as labour cost. We are convinced that the appellant has correctly availed the benefit of the Notification No.12/2003-ST. and the said benefit of Notification cannot be denied to them. It is the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Principal Bench of the Tribunal in the case of M/s. Delux Colour Lab Pvt.Ltd. And ors. (supra) were dealing with similar issue, wherein it was held that sale cannot be treated as service and vice versa. 7. In the case before us, the appellant has produced invoices which would clearly indicate that there is a sale of the parts/ materials and there is also an element of labour charges charged separately. In view of this when there is a clear distinction available between the sales of the materials/parts and the labour charges, we are of the opinion that the impugned order which confirms the demand on the amount of the materials/parts sold and used for rendering of repair and maintenance service is incorrect and the impugned order to that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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