TMI Blog2019 (2) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... o be, as provided under the provisions of Income tax law. Section 65(105)(zzzzj) of the Act is clear and admits of no ambiguity. As the appeal is allowed on merits, the ground to limitation is kept open - appeal allowed. - ST/50019/2014-DB - FINAL ORDER NO._50167/2019 - Dated:- 4-2-2019 - Shri Anil Choudhary, Member (Judicial) and Shri C.L. Mahar, Member (Technical) Shri Bipin Garg, Advocate for the Appellants Shri Sanjay Jain, AR for the Respondent ORDER Per Anil Choudhary: 1. The appeal is against Order dated 1.10.2013 of Commissioner, Central Excise, Jaipur-I. The appellant is the holder of the service tax registration no. AAACG5818PST002 for provision of various services, i.e., Manpower Recruitment Agency, Renting of Immovable Property, Online Information and Data Base Access/Retrieval, Business Auxiliary Service, Franchisee Services and Commercial Training and Coaching service. The dispute in the present appeal relates to service tax liability under the category of Supply of Tangible Goods service with reference to leasing by way of supply, installation, commissioning and maintenance of new computer system, peripherals and provision of one IT A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs etc. under the project. Ownership still remained with the appellant. Lease rent of equipment was paid by Lessee. ii) Claim for depreciation showed that the goods were still the property of the appellant and right of possession had not been transferred. iii) Payment was linked to satisfactory supply, installation and commissioning of the complete system and other infrastructure. iv) Statement of DGM admitting that company still remained the owner of goods so leased. v) Invoices show that no VAT or Sales Tax had been charged by appellant in respect of transaction. vi) Agreement provides for imposition of penalties in cases involving defective computer and during absence of IT Assistant. 5. We have heard both the sides and perused the appeal records. 6. Regarding ownership of the equipment, furniture etc. which was installed at sites, the pertinent facts for consideration are: a) Whether possession and effective control was actually transferred by appellant b) Whether the present leasing activity falls outside the scope of Section 65(105)(zzzzj) of Finance Act, 1994 7. In this connection, a reference is required to be made to terms and conditions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as to add or supply omissions. In the case of Commissioner of Customs (Import) Mumbai Vs. Dilip Kumar Co. [2018(361)ELT 577 (SC)], it was held: 19 . The well-settled principle is that when the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. In Kanai Lal Sur v. ParamnidhiSadhukhan, AIR 1957 SC 907, it was held that if the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. 20 . In applying rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation. This is especially so in fiscal statutes and penal statutes. Nevertheless, if the plain language results in absurdity, the Court is entitled to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, guidelines and directions issued or to be issued by the Lessee in terms of the authority of the Lessee to do so. The Assistant cannot take leave from work without prior sanction of the Head of Unit. Any absence mandates imposition of penalty. Revenue has nowhere proved that the Assistant would be working under the direction and control of the appellant. Both the equipment and the Assistant worked under the direct physical possession and effective control of the Lessee. Assistant was deployed for keeping leased assets in perfect working condition. No separate cost was charged for it.Such transfer was exclusively made to the Lessee and this way, appellant was dissuaded from transferring same right to any other person. This shows that possession and effective control had been passed to Lessee by the appellant. This fulfills requirements of exclusion clause and the liability of tax is offset. 11. Plain reading of the agreement, makes it clear that the appellant is supplying the computers to client in which absolute possession over the computers is with the Lessee. Besides, deputing an Assistant does not in any way dilute such absolute possession. The statute definition ibid is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and effective control, not being treated as sale of goods, is treated as service. 4.4.3 Proposal is to levy service tax on such services provided in relation to supply of tangible goods, including machinery, equipment and appliances, for use, with no legal right of possession or effective control. Supply of tangible goods for use and leviable to VAT/Sales tax as deemed sale of goods, is not covered under the scope of the proposed service. Whether a transaction involves transfer of possession and control is a question of facts and is to be decided based on the terms of the contract and other material facts. This could be ascertainable from the fact whether or not VAT is payable or paid. 14. As a matter of fact,neither the definition given under Section 65(105)(zzzzj) nor the clarification issued by CBEC vide Circular DOF no. 334/1/2008-TRU dated 29.2.2008 specifies or mandates that for not being covered under the service of Supply of Tangible Goods , the service provider must have paid VAT or Sales Tax on the amount received as consideration for hiring out and transferring the equipment such as computers, in the instant case.The language of Section ibid makes it abunda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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