TMI Blog2016 (2) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... r is in error in Levying tax on the material component involved in repair and maintenance of the cylinders carried out by the appellant. Thus, the impugned order is set aside - Decided in favor of assessee. - S.T Appeal No. 2956/12 - - - Dated:- 18-11-2015 - Anil Choudhary, Member (J) And C J Mathew, Member (T) For the Appellant : Shri B L Narasimhan, Adv For the Respondent : Shri Nagvenkar, Addl. Commr (AR) ORDER Per Anil Choudhary The Appellant, M/s Tirupati Cylinders Ltd., is in Appeal against Order-in-Original No.29-30/Commr/MRT I/2012 dated 14.06.2012 passed by Commissioner of Central Excise, Meerut I, by which demands have been raised on the material components utilized in repair and maintenance work of LPG cy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09/- towards service tax short paid by the appellant for the period in dispute in respect of the repair and maintenance of old cylinders for various oil companies along with interest. Further, penalty of equal amount was imposed under section 78. Penalty was also imposed under section 76 and section 77 of the Act. The ld. Commissioner also observed that the appellant have not brought anything on record as to how charging of service tax on the gross value of maintenance and repair shall be against the intention of the legislature. Further the exemption claimed for material component under notification number 12/2003, was also denied on the ground that the same is available in case of sale of materials involved in a contract but not on the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of maintenance and service contract, the costs of toners and developers are not deemed to be sold and accordingly not taxable to VAT. It was held by the Apex Court that toners and developers get consumed after the same are put in the machine. But the moment, the toner developer are put in the Xerox machine, they are not consumed and are tangible goods in which property can pass and accordingly it was held that toners and developers are supplied by the assessee in the maintenance contract and are exigible to Sales Tax/VAT. The appellant further relied on the ruling of Honourable Allahabad High Court in the case of Commissioner of Customs and Central Excise Vs. J.P.Transformers: 2014 (36) STR 961 (Tri.Del.) wherein under similar cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances, as the appellant have admittedly filed all the returns and paid the admitted taxes and interest and in such circumstances, there is no element of suppression, fraud or contumacious conduct 5. Heard ld.DR for Revenue. The ld.DR relies on the impugned order and also relies on the Division Bench ruling of this Tribunal in the case of Laxmi Tyres Vs. Commissioner of Central Excise, Pune: 2014 (36) STR 364 (Tri.-Mumbai). It was held that there being no documentary proof indicating value of goods and materials sold to customers, accordingly, the benefit of notification 12/2003 will not be available, but it was also held that there is no judicial bar leading in Levy of service tax, in case of overlapping of sales t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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