TMI Blog2018 (5) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (f) of Section 66 E (declared services) refers to transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods - in the present case the supply of goods involves transfer of right of possession and effective control on such goods and therefore would fall under the category of deemed sale. The activity does not fall within the definition of service under the Finance Act, 1994 as amended in 2012. Appeal allowed - decided in favor of appellant. - ST/42268 - 42270/2017 - Final Order No. 41457-41459/2018 - Dated:- 9-5-2018 - Hon ble Ms. Sulekha Beevi, Member ( Judicial ) And Hon ble Shri Madhu Mohan Damodhar, Member ( Technical ) Shri G. Mani, Advocate, for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-in-Original confirmed the demands, interests and imposed penalties. In appeal, the Commissioner (Appeals) upheld the same. Hence the appellants are now before the Tribunal. 3. On behalf of the appellants, the Ld. Counsel, Shri G. Mani appeared and argued the matter. He submitted that for the very same activity in the appellant s own case, the Tribunal vide Final Order No. 43368 43369/2017 dated 14.12.2017, has set aside the demand to hold that the activity is not subject to levy of service tax under the category of Supply of tangible goods service. The activity subjected to levy of service tax in the said final order is prior to the periods involved in these appeals. That before July, 2012 the department had demanded the service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities of supply of equipment would fall within the ambit of supply of tangible goods or not. In the present case, the appellants contend that the transaction would not fall within the supply of tangible goods for the reason that the appellant has transferred possession as well as effective control of the equipment. 8.2 The definition of supply of tangible goods is as follows:- Taxable services means any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and the effective control of such machinery, equipment and appliances‟ From the above definition, when there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject to the condition that the goods should be in existence for use; (iii) in the transaction for the transfer of the right to use goods, delivery of goods is not a condition precedent, but the delivery of goods may be one of the elements of the transaction; (iv) the effective or general control does not mean always physical control and, even if the manner, method, modalities and the time of the use of goods is decided by the lessee or the customer, it would be under the effective or general control over the goods; and (v) the approvals, concessions, licences and permits in relation to goods would also be available to the user of goods, even if such licences or permits are in the name of owner (transferor) of the goods, and (vi) during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out by a person for another for consideration, and includes a declared service, but shall not include- (a) an activity which constitutes merely, (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of Article 366 of the Constitution; or (22) declared service means any activity carried out by a person for another person for consideration and declared as such under section 66E; 65 B (51) taxable service means any service on which service tax is leviable under section 66B; 66 E Declared Services - The following shall constitute decla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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