TMI Blog2011 (1) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal thereto and further that such maintenance and repair of the power plant was not a service rendered to another person - Decided in favor of the assessee - ST/181/2010-Mum - S/16/2011-WZB/C-I/(CSTB) - Dated:- 31-1-2011 - S/Shri P.G. Chacko, Sahab Singh, JJ. REPRESENTED BY : Shri Bharat Raichandani, Advocate, for the Appellant. Shri R.K. Mahajan, JCDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. In this application, the appellant seeks waiver of pre-deposit and stay of recovery in respect of service tax amounting to over Rs. 2.31 crores and penalties. The demand is for the period 16-6-05 to 30-4-06 and under the head Maintenance or Repair services . The appellant, under an agreement (Operation and Mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant and penalties were imposed on them. 2. The ld. counsel for the appellant has claimed a strong case in view of the decision in the case of CMS (I) Operations Maintenance Co. P. Ltd. v. CCE, Pondicherry [2007 (7) S.T.R. 369 (Tri.-Chennai)]. It is submitted that the view taken in the said case is equally applicable to the facts of the present case. It is also pointed out that, in several subsequent similar cases, the above view was followed by various benches of this tribunal for granting waiver and stay in favour of other assessees. In this connection, the counsel has referred to case law - Operational Energy Group India Pvt. Ltd. v. Commr. of S.T., Chennai [2008 (12) S.T.R. 47 (Tri.-Chennai)], Covanta Samalpatti Operating Pvt.Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with intent to evade payment of service tax on operation fee. In this manner, an attempt has been made to counter the plea of limitation. 4. After considering the submissions, we have found prima facie case for the appellant in view of the tribunal s decision in CMS (I) Operations Maintenance Co. P. Ltd. s case (supra) wherein the pith and substance rule was invoked to hold that the main function of the assessee was to operate the power plant and that maintenance/repair was only incidental thereto and further that such maintenance and repair of the power plant was not a service rendered to another person. The ratio of the decision in CMS (I) Operations Maintenance Co. P. Ltd. s case was followed by different benches of the tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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