TMI Blog2022 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case. He, thus, proceeds to bring the entirety of the turnover as per the balance sheet of the petitioner, reducing there from, the sale value of the laser combs that have been offered to tax at 14.5% VAT, to tax as service. The petitioner must succeed. Without question, the integral component of the transaction in the present case is the wig itself, as without the wig, there would be no transaction perse. The fitment of the wig and the preparation of the scalp to receive the wig is, in my view, incidental to the product itself - The primary activity carried on by the petitioner is the manufacture of the wig, for which it remits central excise duty. The fitment of the wig, including the preparation of the scalp, and optio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... menable to statutory appeal. Thus, respondent would urge that the Court apply the bar of alternate remedy and relegate the petitioner to first appeal. The question to be answered is as to whether the activity carried on by the petitioner in the hair studio, the details which are set out in the paragraphs to follow, constitutes sale of a product, being a wig, or service of preparation of wig and fitment thereof. 3.Though normally Courts are reluctant to consider challenges as against original orders, in cases where the relevant facts are undisputed, there is no purpose to be served in relegating the petitioner to statutory appeal. The facts in this case as well as in the manner in which the business operations are carried out are very cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tch the existing hair style. (f) The wig is also maintained, if the client so desires, and re-groomed either fully i.e. by removal of wig, sterilization, cleaning of the scalp and replacing the wig or partly i.e. washing and tightening the loose ends. 5. On the aforesaid facts, the legal issue that arises is whether the intrinsic or dominant nature of the transaction is one of sale of a wig or rendition of service. The petitioner relies upon a decision of the Karnataka High Court in the case of Commissioner of Central Excise, Mangalore Vs. Beau Monde s Clinic [2008 (1) TMI 374]. 6.The impugned order, as supported by the submissions of the learned Standing Counsel, concludes that the activity would fall squarely within the definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are incidental to the product. 10. The Hon ble Supreme Court, in the case of Imagic Creative Pvt. Ltd. Vs. Commissioner of Commercial Taxes [2008 (9) S.T.R. 337 (S.C.)], has specifically noted the difference between a composite contract and an indivisible one. A composite contract is one that would involve components of sale and service whereas an indivisible contract, also involving components of sale and service, is one where the distinction between the two is very fine and difficult to determine. 11.At paragraph No.28 of the Order, the Bench states that payments of service tax as also VAT are mutually exclusive and their applicability must be determined based on the nature of the transaction. So too in the present case. The domina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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