Raju ORDER
Ramesh Nair, Member (J)
1. Briefly stated facts of the case are that during the course of audit it was noticed that appellant has recovered rent charges towards rents of gas cylinders obtained by them from the appellant for the period from 2009-10 to 2012-13. The department was of the view that the said income falls under the "Supply of Tangible Goods Service" for use without transfer of right of possession/control therefore service tax is required from the appellant. The department issued show cause notice to the appellant proposing the demand of such Service Tax not paid, impugned order confirmed the demand of Rs. 34,52,544/- under section 73(1) of Finance Act, 1994 along with interest under section 75 of the act supra. The adjudicating authority also imposed penalty of Rs. 34,52,544/- under section 78(1) of finance act, 1994 and Rs. 10,000/- separately under section 77(1)/77(2) of the Finance Act, 1994. Being aggrieved by the Order in Original, the appellant filed appeal before the Commissioner (Appeals) on the merit as well as the limitation, who vide the impugned order upheld the Order in Original and rejected the appeal. Therefore, the present appeal.
2. Shri Saurabh Dixit, Ld. Counsel appearing on behalf of the appellant submits that the appellant have given the cylinders to Aims Industries Ltd. on lease basis under the MOU dated 01/04/2010. According to which the possession and effective control of the cylinders have been transferred to the lessee which is a deemed sale. The appellant are paying VAT on the lease rentals. Since as per the MOU, the right of possession and effective control of the cylinders has been transferred to the lessee, the transaction does not involve services of 'supply of tangible goods for use'. He submits that the issue has been time and again considered by this tribunal in various judgments as cited below:
(1) M/s. G.S. Lamba & Sons MANU/AP/0080/2011 : 2015 (324) E.L.T. 316 (A.P.)
(2) Gimmco Ltd. MANU/CM/0920/2016 : 2017 (48) STR 476 (Tri. (Mum)
(3) Hindustan Coca Cola Beverages P. Ltd. MANU/CE/0804/2015 : 2016 (42) STR 696 (Tri-Del.)
(4) M/s. Century Pulp and paper 2019 (2) TMI 491 (Tri-New Delhi)
(5) M/s. Century Cement 2019 (2) TMI 1034 (Tri.-New Delhi)
(6) M/s. Ultratech Cement 2019 (1) TMI 377-CESTAT NEW Delhi
(7) M/s. Agarwal Builders 2019 (2) TMI 311-CESTAT Allahabad
(8) M/s. Bluedart Aviation Ltd. 2018 (9) TMI 1721-CESTAT Chennai
(9) M/s. Altech Equipments (P) Ltd. 2018 (5) TMI 1420-CESTAT New Delhi
(10) M/s. Roots Auto Products Pvt. Ltd. 2018 (6) TMI 798-CESTAT New Delhi
(11) M/s. J.P. Singhal & Co.