TMI Blog2011 (5) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... recalculated by the lower authorities, considering the amount received as cum-duty amount and to be recovered from the appellant with appropriate rate of interest as provided under the law - they are not liable to discharge the service tax liability as per the agreement entered by them due to which the appellant may not have discharged service tax liability under section 73(1) of Finance Act, 1994 - service tax liability and interest thereof within the period of limitation from the date of show-cause Notice are upheld and confirmed and service tax liability beyond the period of limitation is set aside. Penalties imposed on the appellant are also set aside - Appeal is dismissed - ST/308-309 AND 329-332 OF 2007(DB) - ST/187-192 OF 2011 - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate that it could be a routine and breakdown maintenance of ash handling plant in KTPS. He would submit though wordings indicate it could be a maintenance contract, he would submit that in fact it is a rate contract. For this submission, he would draw our attention to the annexures/schedule of prices; as is annexed to the said agreement/contract. Explaining each and every item, he would submit that the annexures indicate that as and when any work needs to be done, KTPS would get it done from one of the appellant who would complete their work issued to them and get paid as per scheduled prices. It is his submission that though contract indicates the repairs, the amount as can be seen is not as is in the case of regular maintenance contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided by: (a) any person under a maintenance contract or agreement or (b) a manufacturer or any person authorised by him in relation to maintenance or repair or services any goods equipment, excluding motor vehicle." 9. It can be seen from the above reproduced definition that the service rendered in maintenance or repair under any contract or agreement is 'covered' and is 'liable' to be taxed under the Finance Act, 1994. 10. Coming to the submissions made by the Ld. Counsel and on perusal of the agreement entered by the appellant with KTPS, we find that the said agreement does reads as capital, routine and breakdown maintenance of the ash handling plant. The said agreement also clearly indicates that the appellant would be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Erocon Enterprises (ST/332/2007) 13-4-06 It can be seen from the above, that the claim of the Ld. Counsel that part of the demand in respect of some of the assessees is time-barred while in respect of few assessees, the entire demand is time-barred. In our considered view, the introduction of service tax law on maintenance or repairs was in initial stage during the relevant period and the perusal of rate of contract entered by the appellant would indicate that the amount paid for job done and hence can be considered as a rate contract, there could be a legitimate understanding of the appellant that they are not liable to discharge service tax liability under the maintenance or repair services. In view of this, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
