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TMI Blog2016 (12) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of service, the appellant was also using some spare parts, which were being billed by them separately. The cost of the spare parts was indicated in the agreement itself based upon the estimated use of the same for providing repair and maintenance services as also based upon the previous historical data. The appellant was admittedly discharging its service tax liability in respect of service portion of the contract under the category of Repair and Maintenance service. In the final contract dated 15.10.2004, the appellant has shown the value of the repair and maintenance service as also logistic charges and cost of the spare parts, which may be used by them by providing services separately. 2. Admittedly, the appellant was using ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contracted value of the goods. As such, it stands submitted that the contracted value relatable to the cost of the spare parts has to be treated as the value of the goods supplied by them to M/s. Hindustan Zinc Ltd. and no portion of the same can be deviated to the value of the services, in the absence of any allegation or evidence to the fact that value of the services was being collected by them under the garb of value of goods. He also submits that in the process, the appellant might have made some profit or might incur losses also, which fact would not change the value of the services separately contracted by the appellant with M/s. Hindustan Zinc Ltd. Relying upon the Hon'ble Supreme Court decision in the case of Baroda Electric Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the service was not at all taxable during the relevant period and the question of confirming the differential duty does not arise at all. 5. Further contention of the ld. Advocate is that the definition of Management, Maintenance and Repair services as contained in Section 65 (64) of the Finance Act, 1994, specifically excludes motor vehicles from its ambit. Further elaborating, he submits that the goods involved in the present case is dumpers and dumper trucks and heavy earth moving machinery and equipments, which are nothing but motor vehicles. He further draws our attention to the definition of motor vehicles as contained in Section 65 (73) of the Finance Act, 1994, which refers to the motor vehicles as having the same meaning a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Appeal Nos.2980-83 of 1981. However, ld. Advocate fairly agrees that the said legal issue was not placed before the Commissioner and as such his opinion is not available. For the said purpose, he has already moved a Miscellaneous Application for raising the said legal ground. 6. As the additional ground raised by the appellant is a legal ground and not relatable to any verifiable facts, we allow the same to be taken up for consideration. Further in-as-much-as the said ground was not raised before the adjudicating authority, we deem it fit to remand the matter for examining the said issue. However, we make it clear, we have not decided the other pleas raised by the appellant including the plea of limitation and we keep it open for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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