TMI Blog2013 (10) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... ices and also taking the view that the appellant was liable to pay service tax in respect of consulting engineer services received from abroad as the receiver of service, demand for service tax of ₹ 88,48,718/- has been confirmed with interest and penalties under various sections of Finance Act, 1994 have also been imposed. 2. Moving the stay application for the appellants, the learned Counsel submitted that an amount of ₹ 46,18,910/- is the service tax demanded on handling charges collected by them under the head BAS. He submitted that appellants provided maintenance/repair services to the ships. While doing so, they, besides supplying components and parts, also use paint for painting the ship. The paint is collected and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d including handling charges. As submitted by the learned Counsel, there is no basis to come to the conclusion that the value shown in the invoice should be equal to the cost and cannot be having any other additional element. Hon ble Supreme Court has taken a view that just because of certain terms are used in a contract or agreement, that should not be taken as the final word but actual intent of the party and the agreement as a whole should be taken into account. In this case, there is no dispute that the appellants undertake maintenance and repairs of ships and that is the main activity. When that is the main activity, procurement of paint would be for the purpose of providing the service of management, maintenance or repair and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able value and assessed the liability to have into repair service and sale tax liability to tax and directed recovery of interest and penalty as well. 5. The issue is covered in favour of the assessee by the decision of this Tribunal vide Final Order No. ST/A/402/12-Cus., dated 23-5-2012 in Kailash Transformers wherein it is held that insofar as supplies of material are concerned, such materials are not liable to be included in the gross value received for the taxable service provided, since the Finance Act, 1994 is not a commodity taxation law and that only the service component of a transaction is liable to be taxed. Following the judgment in Kailash Transformers, we allow the appeal after waiving pre-deposit; with no order as to costs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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