TMI Blog2010 (10) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... vy Service Tax from the appellant - Appellant has succeeded in making a prima facie case by showing that they were purchasing liquor from the distilleries - It is settled law that, where there is sale of goods, there can be no levy of Service Tax on its value. Prima facie, no Service Tax is leviable on the amounts collected by the appellant from the distillers in connection with sale of goods - Hence, waiver of pre-deposit and stay of recovery - ST/1507-1509/2010 - 786-788/2010 - Dated:- 1-10-2010 - S/Shri P.G. Chacko, P. Karthikeyan, jj REPRESENTED BY : Shri Arshad Hidayatulla, Sr. Advocate, for the Appellant. Shri D.P. Nagendra Kumar, JCDR, for the Respondent. [Order per : P.G. Chacko, Member (J) (Oral)]. - In thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis, it was held that the appellant had collected the aforesaid charges/fees from the distilleries as consideration for Business Auxiliary Services rendered to them. The learned JCDR has reiterated this view of the learned Commissioner and has insisted on the latter s order having to be sustained. The learned Counsel for the appellant on the other hand contends that the relationship between them and the distillers (suppliers) was that of principal-to-principal and that the real transaction between the distillers and the appellant was one of sale of liquor. It is submitted that the fact that no Sales Tax was paid in this transaction would not materially affect the appellant s case. It is argued that, where there was sale of geeds; there can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to purchase of liquor by the appellant from distillers (suppliers). The learned Counsel has argued that the sale of liquor by distillers to the appellant-corporation was tacitly acknowledged in the apex court s judgment and that the fact that payment of Sales Tax in such transaction was exempted under the above provisions of the KGST Act would not detract from the nature of the transaction, which was sale. 3. The learned JCDR, on the other hand, has heavily relied on the judgment of the Kerala High Court, which was delivered in a batch of Writ Petitions filed by different distillers in the State. The judgment contains findings to the effect that the goods were not sold by the petitioners to the appellant-corporation but were only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has claimed that the impugned levy is on the sum of certain service charges collected by the appellant from the distillers. At the same time, he is not able to rebut the claim of the appellant that Service Tax has been demanded on the sale consideration collected by the appellant from the distillers. The Hon ble Supreme Court s judgment in the aforesaid case appears to have acknowledged the factum of sale of liquor by distillers to the appellant-corporation. Sale of goods by distilleries to the appellant is, therefore, a fact which is glaring from the records. That demand of Service Tax is on the amounts collected by the appellant from the distillers as consideration for the liquor supplied by the latter is a fact which is yet to be success ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
