TMI Blog2009 (7) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... latable to value of food only with effect from 1-7-2003. The adjudicating authority confirmed demand of service tax short paid. In the light of the decision of Sky Gourmet (P.) Ltd. v. CST [2009] 22 STT 422 (Bang. - CESTAT), in which Tribunal held that once sales tax had already been discharged on food, beverages etc, assessee could not be required to pay service tax on same value, and therefore, demand of service tax was not maintainable, held that impugned demand was to be set aside. The appeal is allowed. - ST/553 OF 2008 - 1037 OF 2009 - Dated:- 30-7-2009 - M.V. RAVINDRAN, JUDICIAL MEMBER AND P. KARTHIKEYAN, TECHNICAL MEMBER A. Sarveswar Rao for the Appellant. Ms. Sudha Koka for the Respondent. ORDER P. Karth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices in the value of the goods. For the same reason, the Centre cannot include value of the SIM cards in the cost of the service. They relied on the Apex Court judgment in the case of Imagic Creative (P.) Ltd. v. CCT [2008] 12 STT 392 wherein it was held that payments of service tax and VAT were mutually exclusive. It was difficult to hold that in a composite contract, sales tax would be payable on the value of the entire contract irrespective of the element of service provided. They highlighted the following excerpt of the Budget Speech by the Finance Minister while presenting the Budget for the year 2007-08: State Governments levy a tax on the transfer of property in goods involved in the execution of works contract. The value of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luable consideration. (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. (c) a tax on the delivery of goods on hire-purchase or any system of payment of instalments. (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration. (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever of goods, being food or any other article for human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taxed under 'convention service' vide the impugned order. In the light of the constitutional provisions relied on by the Tribunal in Sky Gourmet (P.) Ltd.'s case (supra) and the ratio thereof to the effect that once the sales tax had already been discharged on food, beverages, etc. the appellants could not be required to pay service tax on the same value, the impugned demand of service tax is not sustainable in law. We find that the appellants have rightly relied on the judgment of the Hon'ble Apex Court in Bharat Sanchar Nigam Ltd.'s case (supra) wherein the Court had held as follows : 78. For the same reason the Centre cannot include the value of the SIM cards, if they are found ultimately to be goods, in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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