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2016 (2) TMI 289 - CESTAT ALLAHABAD

2016 (2) TMI 289 - CESTAT ALLAHABAD - TMI - Valuation - repair and maintenance activities - demands have been raised on the material components utilized in repair and maintenance work of LPG cylinders carried out by the appellant holding the same to be consumables, thereby not having any element of deemed transferred of property in the same. - Held that:- the issue is no longer res-integra. It has been explained in the decision by the Apex Court that service tax and sales tax are mutually exclus .....

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ri 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 cylinders carried out by the appellant holding the same to be consumables, thereby not having any element of dee .....

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ce dated 13/04/11 for the extended period October 2005 to September 2010 were issued. As it appeared to revenue that the appellant is liable to pay service tax also on the material component used or consumed in the repair and maintenance of cylinders. 3. The appellant contested the show cause notice stating therein that they are regularly discharging VAT/sales tax on the material component involved in the repair and maintenance job. The appellant also stated that they have regularly filed their .....

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nce 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 1 .....

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Tri-LB). Being aggrieved, the appellant is before this Tribunal. 4. The ld. Counsel for the appellant urges that the issue is no longer res-integra. The ruling of larger bench of this Tribunal in the case of Aggrawal Colour Advance Photo Systems (Supra), have been impliedly over-ruled by the Honourable Supreme Court in the case of State of Karnataka Vs. Pro Lab & Ors - 2015-TIOL-08-SC-CT-LB The facts before the Honourable Supreme Court in the case of Pro Lab & Ors. Were, under the State .....

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Supreme Court in the case of Xerox Modicrop Ltd. Vs. State of Karnataka,: (2005) 7 SCC 380 wherein the contention of the assessee was that in the 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 tang .....

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t was held that service tax could not be demanded on the component present in value of goods and materials used for carrying out repairs. The mere fact that cost of various items was shown for the purpose of price variation, would not make any difference to legal position. The appellant also relies on the Hon'ble Allahabad High Court in the case of CCE and CE Vs. Balaji Tirupati Enterprises 2013 (32) STR 530 (All) wherein under the repair and maintenance service, goods were used and deemed t .....

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