TMI Blog2014 (7) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- as per the provisions of the above Notification, there is a condition that there should be documentary proof specifically indicating the value of goods and material sold - There is no separate invoice regarding the sale of goods and material - The materials used for repair cannot be considered as spare parts, therefore the ratio of the above decision is not applicable on the facts of the present case. - Decision in the case of Wipro GE Medical System Pvt. Ltd (2008 (8) TMI 207 - CESTAT, BANGALORE) distinguished. The activity undertaken by the appellants is more akin to the activity under consideration in the case of Safety Retreading Co. (2012 (6) TMI 719 - CESTAT, CHENNAI (THIRD MEMBER)), therefore the ratio of the above deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were not taking into consideration the value of material and consumables. 3. Proceedings were initiated by issuing a show cause notice dated 7.10.2008 demanding service tax for the period July 2003 to March 2008. The adjudicating authority confirmed the demand and imposed penalties. 4. The contention of the appellants is that the appellants are providing maintenance and repair service and undertaking the activity such as rebuilding of the old worn out rollers, liners, types and old worn out components of cement plants, steel plants, thermal plants, coal mines etc. The appellants were paying VAT under the Maharashtra Value Added Tax Act on 80% of the value of the contract and on 20% of the value of the contract the appellants were pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notices was issued on 7.10.2008 for the period July 2003 to March 2008. The contention is that in the year 2005 the Revenue raised certain queries and in reply to that, the appellants vide letter dated 25.10.2005 explained their position regarding payment of service tax on the 20% of the value of the contract and payment of VAT of 80% of the value of the contract. The appellants also requested the Revenue for guidance. Subsequent to this, the audit was conducted and vide audit report dated 16.12.2006, after taking into consideration the practice adopted by the appellants regarding payment of 80% of VAT on the value of material and consumables, the auditor was of the opinion that in some cases the value of material and consumables is les ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue was examined in detail, in view of the audit, it has come to the notice that the value of material and consumables is not being taken into consideration while discharging the liability under the Service Tax hence the show cause notice was issued subsequently. 8. We find that in this case, the appellants are discharging their service tax liability under the maintenance and repair service as per the provisions of Section 65 (64) of the Finance Act and the management, maintenance or repairs' means any service provided by any person under a contract or an agreement, or a manufacturer or any person authorized by him in relation to management of properties, whether immovable or not; maintenance or repair including reconditioning o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case, the appellants were clearing the goods under a consolidated invoice and uniformly taking 80% of the value of material and consumables and 20% towards the service. There is no separate invoice regarding the sale of goods and material. 10. The appellants relied heavily upon the decision of the Tribunal in the case of Wipro GE Medical System Pvt. Ltd (supra) . We have gone through the decision of the Tribunal. We find that in that case the assessee, apart from supplying labour, also supplying the material which had to be used under the maintenance contract. The assessee had undertaken the activity of installation of various medical equipments and during maintenance and repair, certain spare parts required replacement a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. On limitation, we find that the demand is for the period July 2003 to March 2008 and the show cause notice was issued on 7.10.2008 alleging suppression with intent to evade payment of tax. We find that in response to queries raised by the Revenue vide letter dated 25.10.2005, the appellants explained their position regarding payment of service tax. Further, we find that audit raised an objection on 16.12.2006, whereby after taking into consideration the fact that 80% of the value of the contract is in respect of sale of goods and 20% is for the purpose of service tax. The audit pointed out that in some cases the value of goods and material is less than 80% and the Revenue raised a demand of ₹ 1,23,757/- in this regard and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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