TMI Blog2024 (4) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... both during the period prior to negative list regime and thereafter as held in the impugned order. As the issue has been settled in favour of the appellant, therefore, the appellant is not liable to pay Service Tax - the impugned order is set aside - appeal allowed. - HON BLE SHRI ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE SHRI RAJEEV TANDON , MEMBER ( TECHNICAL ) Smt. Vandana Singh , Advocate for the Appellant Shri S. Mukhopadhyay , Authorized Representative for the Respondent ORDER Order : [ PER SHRI ASHOK JINDAL ] The appellant is in appeal against the impugned order wherein demand of Service Tax has been confirmed against them. 2. The facts of the case are that the appellant viz. M/s. Lindstrom Services India Private Limited, is a subsidiary of M/s. Lindstrom OY, Finland and is engaged in leasing workwear to their clients on the conditions mentioned in the agreement with their clients. The appellant-company is having 11 locations in India. 2.1 During the financial year 2013-14, Service Tax Audit was conducted at their Chennai Branch and thereafter, audits were conducted all over India at all the other locations and during such visits, the statement of Shri Syed Asif Raja, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana unit of the appellant by the Tribunal and vide Final Order dated 02. 08. 2019 ( supra ) it was observed as under : - 19. The appellant is engaged in providing work-wear solution to the various industrial customers in terms of various agreements where there is transfer of effective control to the client. For the better appreciation the issue involved, it will be appropriated to extract the relevant provisions of the agreement entered by the appellant with their customers. A perusal of the agreement which has been placed on appeal record between the appellant and Mother Diary Fruits and Vegetables indicates that the agreement is for; ➢ Supply of work-wear on rental basis as per the requirement of customers; ➢ Selection and fitting of individualise work-wear dying of garments as per the requirements; ➢ Period of washing of the garments (that is includes removal of hazardous material etc.,) ➢ Transportation of the garments 20. The agreement has the terms conditions with the customers for the lease the work-wear from the appellant and the appellant owns the lease product, will have exclusive right to wash the work-wear and also the Noticee shall have excl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction of the negative list based tax regime, the activity of the supply of goods without transfer of right liable to tax by virtue of Section 66E (f) of Finance Act. On the other hand, we find that Ld. Advocate as relied upon the Hon ble Supreme Court s decision in case of Bharat Sanchar Nigam vs. Union of India, wherein it is held under; 91. To constitute a transaction for the transfer of the right to use the goods the transaction must have the following attributes : a. There must be goods available for delivery ; b. There must be a consensus ad idem as to the identity of the goods ; c. The transferee should have a legal right to use the goods-consequently all legal consequences of such use including any permissions or licenses required therefor should be available to the transferee ; d. For the period during which the transferee has such legal right, it has to be the exclusion to the transferor this is the necessary concomitant of the plain language of the statute - viz. a transfer of the right to use and not merely a licence to use the goods; e. Having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot lead to an inference that there is consensus ad idem; and that the Petitioners should keep ready the dedicated fleet of eight vehicles to be used by Grasim. In the absence of transfer of possession and effective control, Section 5-E of the Act is inapplicable. Lastly it is urged that the Tribunal was in error in not recording findings on all the issues raised by the Petitioners. The Counsel relied on various precedents to which a reference would be made at the appropriate place. 25. From the perusal of these judgments, it is evidently clear that the some of the activities of regarding the maintenance and washing of work-wear rented to the clients, by the appellants will not mean that effect control as been retained by the appellant. Further, we have also considered the criteria laid down by the Apex Court in case of BSNL, (supra) regarding transfer of effective control in terms of the provisions of Section 366 (29A)(d) of the Indian Constitution. Further, we also find that Apex court in case of Rashtya Ispat Nigam Limited has explained the similar issue as well; 5.4 The Apex Court in case of Rasthya Ispat Nigam Limited has explained the issue in lucid language. The essence of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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