TMI Blog2018 (9) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... od as to how the Revenue felt that the services undertaken by the appellants are covered under ‘Maintenance or Repair Service’ during the relevant period - the Department of Explosives have categorically declined permission for hot repairs of LPG cylinders as he was not a manufacturer. Therefore, the appellants cannot be held to be undertaking the services chargeable under ‘Maintenance and Repair Service’ as an agent of manufacture also. The issue is no longer res integra as it was held by the Tribunal in the case of Harshitha Handling vs. CCE [2010 (4) TMI 122 - CESTAT, NEW DELHI] that the appellants are undertaking periodical test and upkeeping of cylinders in terms of Indian Explosives Act, 1884. Appeal allowed - decided in favor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87/- as service tax on the ground that the activities of surface preparation, repainting cylinders, bunching of stenciling of details and stenciling of logo, etc., is covered under the heading Maintenance and Repair Service . Commissioner vide Orders-in-Review No.18/2009 dated 18.3.2009 and No.01/2009 dated 9.1.2009 confirmed the demands raised therein with interest and penalty. Hence, these appeals. 3. The learned counsel for the appellants has submitted that painting is a works contract and appellants have already discharged service tax/VAT on the activity of painting; therefore, the question of levy of service tax on the same would not arise at all. It is only with effect from 1.6.2007 the works contract services are made liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-Original in confirming the demands on the sole ground that the lower authority has ignored sub-clause (ii) which reads as follows: (ii) a manufacturer or any person authorized by him, in relation to maintenance or repair or servicing of any goods . 3.5 Ld. Counsel submitted that the appellant is neither a manufacturer of cylinders nor a person authorized by such manufacturer, therefore, the above said clause does not apply. To substantiate his claim, he has quoted a letter from the Department of Explosive which stated that since the appellants were not manufacturers, the requested permission for hot repairs of LPG cylinder is not permitted. 3.6 He also submitted that the order of the Commissioner has travelled beyond the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hyderabad Polymers Ltd. vs. CCE: 2004 (166) ELT 151 Shriram Holographics vs. CCE: 2016 (331) ELT 612 (Tri.-Del.) CST vs. Gamma Consultancy Pvt. Ltd.: 2006 (4) STR 591 (Tri.-Mum.) CCE vs. Shield Security Services: 2007 (5) STR 97 (Tri.-Del.) 4. The Departmental Representative has reiterated the findings of Order-in-Original. 5. Heard both sides. The brief issue for consideration in the instant case is as to whether the activity undertaken by the appellants amounted to maintenance and repair service during the period 1.7.2003 to 31.3.2005. As per Section 65 (64) of Finance Act, 1994, Maintenance or Repair Service means any service provided by- (i) Any person under a maintenance contract or agreement; or (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1884. We also find that Tribunal in the case of Bhiwadi Cylinders Pvt. Ltd. (supra) held in para 6 as under: 6. In the present case, the respondent is only undertaking repair of the old cylinders. Contract for maintenance is distinct from a contract for repair. Maintenance involves periodical checkups and services to prevent failure of the machinery. Repair arises after the machine fails or gives problem. Maintenance may or may not involve repair. There may be cases where no repair need be undertaken of the machinery during the entire period of maintenance contract. Maintenance is in the nature of preventive action. Admittedly, the respondent was only repairing old gas cylinders and for taking such repair, they have entered into a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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