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TMI Blog2025 (1) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax registration nor paid service tax on its taxable receipts. The appellant provided the copy of partnership deed and the copy of bank statement of its account to the department instead of copies of P & L A/c, ITR and contract wise details of amount received by them against such activity during the period 2007-08 to 2010-11 as asked by the department. A statement of Shri Inam Ahmed Usmani, partner and authorized representative of the appellant was recorded on 24.10.2011 under Section 14 of the Central Excise Act, 1944 in which he has accepted that the appellant is engaged in the activity of supply of cranes to Bhopal Municipal Corporation against which it has collected amount as shown in bank statements. The department observed that the services provided by the appellant would fall under the category of 'Supply of Tangible Goods Service' which has been made taxable w.e.f. 16.05.2008. 1.1 From the records produced by the appellant, it was noticed that they have received an amount of Rs.85,70,664/- against the taxable service provided or to be provided by them during the disputed period, for which they have not charged any service tax from Bhopal Municipal Corporation. The gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that the service was not chargeable to tax. It is impressed upon that even after the introduction of the category, "supply of tangible goods service", since the control and possession of the vehicle was not with appellants, they were still under the belief that there was no liability to pay service tax. 3.2 The adjudicating authority below is alleged to have not considered the submissions of the appellants and has wrongly confirmed the demand on the basis of presumptions. Hence the impunged order is alleged to be illegal also for the reason that it has been passed in ignorance of threshold exemption. Order is also objected for the reason that it has been passed in incorrect interpretation of the provision of Supply of Tangible Goods Service. Accordingly it is prayed top be set aside and appeal is prayed to be allowed. 4. While rebutting these submissions, learned Departmental Representative (DR), at the outset, reiterated the findings arrived at by Commissioner appeals. It is submitted that all the grounds raised by the appellant have properly been dealt with in the impugned order. The additional grounds cannot be raised, for the first time before this tribunal. Not even legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available for delivery; (b) There must be a consensus ad idemas 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 transferee 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 the same rights to others. 8. In the present case, all these conditions seems complied with. The above observed admitted facts clearly reveal that identified cranes were being supplied by the appellants. MCB had all legal rights to use the same exclusively during the period of agreement. Since the cranes were taken at instance of Traffic Police, those used to be parked in the premises of the jurisdictional police stations. The appellant had no control on the movement of the cran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and a purchase of those goods by the person to whom such transfer, delivery or supply is made. 11. The expression 'tax on sale or purchase of goods' is an inclusive definition. It must receive a wide and expansive meaning. The latter part of clause (29A) contemplates that 'such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods'. The sub-clauses (a) and (b) use "transfer"; subclause (c) uses "delivery"; sub-clause (d) uses "transfer of the right to use goods", and sub-clauses (e) and (f) use "supply" of goods while defining deemed sale. Thus under the sub-clause (d) there would be deemed sale if the right to use goods is transferred even though delivery is not an essential part of such transfer of the right to use goods. In other words, the moment the right to use goods is transferred, the taxable event happens. When would such transfer of the right to use goods de facto comes within the gravitational field of the species of deemed sale? A score of High Court decisions and half a dozen Supreme Court decisions, notwithstanding, this question remains an unavoidable vexed question. We may, therefore give a brief analysis of the judicial decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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