TMI Blog2004 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... wer Station owned by M/s. Spectrum Power Generation Limited at Kakinada, Andhra Pradesh. A show cause notice was issued by Central Excise authorities on 22-2-2001 alleging that the appellant was liable to pay service tax as applicable to "consulting engineer" for the period July 1997 to May 2000. This allegation was confirmed in the adjudication and that order was upheld in appeal by Commissioner (Appeals), Visakhapatnam. A duty demand of about Rs. 2.7 crore and penalty are involved. The present appeal challenges those orders. 2. The appellant's contention was that their agreement dated 14-3-95 was for Operation and Maintenance of a Power Plant and not for rendering any advise or consultancy service. According to them, in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not giving any consultancy. They merely kept record and reported the results and other details of the operation. According to the appellant, that was again merely a report of performance and not any advice for consultancy. The initial agreement was for a period of operation of 5 years and the agreement also provided for renewal of the agreement. 4. The learned Counsel for the appellant also pointed out that the legal position in this matter remained settled in favour of the appellant by the decision of this Tribunal in the case of Daelim Industrial Co. Ltd. v. Commissioner of C. Ex. Vadodara - 2003 (155) E.L.T. 457 wherein the Tribunal held that a work contract cannot be considered as a consultancy contract. Nor can it be vivisect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplete freedom and responsibility on the appellant, without any interference by the owner. The owner's right is restricted to entry and access, to be satisfied that the operation is carried out according to standards. He also receives reports about the relevant aspects of operation, status and output. The payment for operation and maintenance are determined under the various clauses of the contract. In addition to the lump sum payment, it also provides for bonus and penalty. The terms of the contract do not envisage or involve providing any consulting or engineering help to the owner. The operator is fully autonomous and responsible for the performance of operation and maintenance. Whatever engineering issues are involved, it is for the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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