2006 (10) TMI 33

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..... n the Show Cause Notice that a consolidated bill for supply, installation and commission of Air Conditioning System was issued by the assessee. As they had short paid the levy by not taking into consideration the erection, installation and commissioning of Air Conditioning Systems and labour component therein, therefore, the service tax was re-calculated and demands confirmed. The appellants' contention was that they had paid the correct duty in the matter and, therefore, the elements as alleged by the Revenue is not required to be added in the supply, installation or commissioning charges. The Revenue's contention was that in terms of Notification No. 19/2003, the appellants were required to have calculated the due tax at 33% of the gross .....

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..... T. 322 (Tri. - Del.). The learned Counsel also submits that the Revenue's appeal against Daelim Industrial Co. Ltd. has been rejected by the Apex Court as reported in 2004 (170) E.L.T. A181 (S.C.). He submitted that in view of these judgments, the appeal is required to be allowed. He also submits that full waiver was granted and the stay application was allowed based on these circumstances. 3. The learned JDR reiterates the departmental view. 4.On a careful consideration, we notice that this very aspect pertaining to the work contract i.e. whether it should be vivisected and part of it be subjected to duty was considered in all the above judgments. The Tribunal, in the case of CCE v. Larsen Toubro (cited supra), after due consideratio .....

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..... els case does not lend any support to the revenue as a solitary instance cited by the learned S.D.R. in the case of S. Krishna of Andhra Pradesh High Court has been undone by the Supreme Court in Guntur Tobacco Ltd.'s case (supra) by the appellants. The 46th amendment to the Constitution has also not made any difference to the decision of Associated Hotels as it was mainly with respect to sales tax which introduced deeming provision which is not the case before us. The Kerala High court decision in Kerala Colour Lab Association's case (supra) also does not help revenue as in that case the principal contract was that of service and not of sale of photographic material and, therefore, it was correctly held that once the taxing event is render .....

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