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TMI Blog2008 (10) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... C-Arm Image Intensifier, Mammography, Mobile Cath Lab classifiable under heading 9022 of the First Schedule to the Central Excise Tariff Act, 1985. It has been alleged that the appellants were providing services like imparting training, erection, commissioning and installation of machines/equipments manufactured by them at customers place. It has further been alleged that the activities of training, erection, commissioning and installation would amount to providing technical assistance to the buyers of machines and covered under the service of 'Consulting Engineering' upto 20th June, 2003 and thereafter it is covered under the category of "Erection, commissioning or installation" service to their customer/buyer. Show cause notice dated 23-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g services like imparting of training, erection, commissioning and installation of machines/equipments at the customers premises. He further submits that the statements are corroborative with OBDI. The service of erection, commissioning or installation had come within the purview of service tax effective from 1-7-03. So, they are liable to pay the tax on such service. He further submits that the OBDI consists of different elements including the service provided by them on erection, commissioning and installation of medical equipments. So, the levy of service tax would be determined having regard to the respective nature of service as envisages in OBDI. He also relied upon the decision of the Hon'ble Supreme Court as under :- (a) Imagic Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stallation charges separately in the purchase order wherein they paid service tax. The main contention of the learned Advocate is that they have paid the Central Excise duty on the invoice value and the demand of tax on the said value is not sustainable. 5. We find force in the submission of the learned Advocate. It is seen that the appellants paid the Central Excise duty on the manufacture and sale of medical equipments as is evident from the invoice. The appellant is not contesting the levy of Central Excise duty. It appears that the activity of erection, commissioning and installation of equipments are part of sale of excisable goods and Central Excise duty was paid thereon. There is no material placed by the Revenue that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the surrounding circumstances. If the intention is to transfer for a price a chattel in which the transferee had no previous properly, then the contract is a contact for sale. Ultimately, the true effect of an accretion made pursuant to a contract has to be judged not by artificial rules but from the intention of the parties to the contract. In a 'contract of sale', the main object is the transfer of property and delivery of possession of the property, whereas the main object in a 'contract for work' is not the transfer of the property but is one for work and labour. Another test often to be applied to is: when and how the property of the dealer in such a transaction passes to be customer is it by transfer at the time o delivery of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax on the installation and commissioning of medical equipment. 8. The learned DR relied upon the decisions of the Hon'ble Supreme Court which are not applicable in the present case. (a) In the case of Moriroku UT India (P) Ltd. (supra), it has been held that liability under excise law is event based irrespective of whether the goods are sold or captively consumed. (b) In the case of N.M. Goel & Co. (supra), it has been held that in order to be sale and levy of duty, not only the property in the goods should pass from the contractor to the Government, but they should be independent contract, separate and distinct, apart from mere passing of the property. (c) In the case of Imagic Creative Pvt. Ltd. (supra), the issue is whether the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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