TMI Blog2019 (2) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... ame chargeable to service tax only from 01.06.2007. Thus, no service tax can be charged prior to the introduction of negative list of the services on maintenance and repair activity involving both the service and the sale/ deemed transfer of property of the goods/ components. Even otherwise, when their invoices clearly indicated the goods component separately and paid VAT on them deeming them to be sold to their client, service tax cannot be charged on such sums as they do not form part of the consideration for the service. Appeal allowed - decided in favor of appellant. - Appeal No. ST/823/2011 - A/30171/2019 - Dated:- 30-1-2019 - Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical) Shri Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger accounts maintained by the appellant were compared with the ST-3 returns filed by them. A show cause notice was issued by the department demanding differential duty and also proposing to impose penalty on them under Sec.76, 77 78 of the Act. Interest was also demanded on differential duty under Sec.75. After following due process, the learned Commissioner passed the impugned order confirming the demands and imposing penalty under Sec.78. He refrained from imposing penalties under Sec.76 77 of the Finance Act, 1994. 3. Learned counsel for the appellant submits that the period in question is from 16th August, 2005 to March, 2009. The nature of services rendered by them involved both rendition of service and deemed transfer of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service. The ratio of this judgment was followed in several cases thereafter. Therefore, they were not liable to pay any service tax whatsoever on the services rendered by them in view of the nature of the contract up to 01.06.2007. Post 01.06.2007, the definition of works contract was as follows: Sec. 65(105)(zzzza): Any service provided or to be provided to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation.--For the purposes of this sub-clause, works contract means a contract wherein,-- (i) transfer of property in goods involved in the execution of such contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod. 6. Learned departmental representative reiterates the findings of the lower authority and asserts that there was no dispute during the period that their services were covered under the maintenance and repair services . They were, therefore, liable to pay service tax on gross amount received minus any abatement which they claimed. They have disclosed only part of the amount which they received in their service tax returns and had actually received much larger sums from their customers. This fact came to light only when the audit was conducted and their returns were compared with their balance sheets and financial statements. Therefore, they had suppressed the value of services rendered by them and they could not have claimed any ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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