TMI Blog2012 (7) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... arrived at on some other basis or before the Customs it was declared that there were no sale. No such evidence has been placed before us nor does it form a part of memo of appeal - value of spare parts form a part of contract for maintenance and repair and exemption under the Notification No.12/2003-ST is available – In favor of assessee Repair or Maintenance service in respect of movable or immovable goods - held that:- While the respondents have produced photographs of gas turbines to submit that they are nothing but immovable property, other than relying on the contract and submission that the Commissioner has misconstrued the contract to be for maintenance and repair of power plant, the Revenue has not come up with any evidence or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts deducted from the maintenance charges for paying service tax. In the impugned order, learned Commissioner (Appeals) set-aside the order of the original adjudicating authority taking a view that the appellants were providing maintenance/ repair services on immovable property and during the period from 01.7.2003 to 09.09.2004, this activity was not liable to service tax at all. Revenue is in appeal against this decision. 2. Heard both sides. Learned AR on behalf of the Revenue submitted that the view taken by the Commissioner that maintenance and repair service was not provided in respect of immovable property was not at all correct, He drew our attention to the contract between the parties. According to him, in the contract, it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm are immovable property. The gas turbines erected by them are also immovable property. He also submitted that observations of the Hon'ble Supreme Court in Para 28 that the mudguns and drilling machines cannot be shifted from one place to another and assembled or erected and are to be operated from that place till they are worn out or discarded. He also relied upon the decision of the Hon'ble Supreme Court in the case of Quality Steel Tubes - MANU/SC/0600/1995 wherein it was held that steel turbine alternator would be immovable property. He submits that in this case also the item involved is turbine only. In Parry Company Limited, the Larger Bench of the Tribunal held that diesel generating sets coming into existence by placing engi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods and materials must have been sold by the service provider to the recipients of services and evidence should be available. In view of the fact that evidence is available in this case, the claim of the department is not sustainable. 4. We have considered the submissions made by both the sides. Respondent is providing maintenance and repair services in respect of gas turbines installed by M/s. Arvind Mills Limited. The service is provided by the local branch of the Company and Hqrs of the Company is situated abroad. The spare parts which are required for maintenance of gas turbine, is exported by the Hqrs of the Company providing service directly to M/s Arvind Mills and the customs clearance and payment of customs duty is on Arvind M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to submit that turbines are nothing but immovable property, supports the case of the respondents. Moreover, we also find from the decision of the Tribunal in the case of Spectrum Power Generation Limited - 2004 (177) ELT 968 (Tri.) , and the decision of the Hon'ble Supreme Court in the case of Triveni Engineering Industries Limi ted - 2000 (120) ELT 273 (SC) are relating to the issue of excisability of turbine, turbo-alternator etc. and these decisions are applicable to the facts of this case. We also are unable to accept the view that: just because the term equipment has been used in contract, the gas turbine becomes an immovable property. What is required to be examined is type of equipment the contract is talking about. While t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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