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2015 (12) TMI 1496 - CESTAT MUMBAI

2015 (12) TMI 1496 - CESTAT MUMBAI - 2016 (41) S.T.R. 454 (Tri. - Mumbai) - Demand of service tax - services provided to self - Management, Maintenance or Repair services - Held that:- To maintain ones own equipment, to optimize the usefulness, by maintenance and repair, in the BOOT period, is certainly not liable to Service tax as services rendered to self cannot be taxed. - There is nothing on record to indicate contrary in the appeal filed by the Revenue - In our view the impugned order as we .....

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05.2010. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding the service tax liability under the category of "Management, Maintenance or Repair services." The respondent herein entered into a contract with Nashik Municipal Corporation (NMC) for the activity of design & drawing, manufacture, supply and installation, testing and successful commissioning of micro processor based energy saving devices and the maintenance thereof. This contract i .....

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concept is to build own and first operate and thereafter - transfer. The appellant's argument is that agreement on BOOT basis was not solely for Built own operate & transfer but also for periodical and systematic plan for -recovery of cost of the project as well as services rendered and to be rendered by respondent. The respondent is a commercial concern and obviously any activity undertaken by them is for earning profit. The earnings can be categorized as cost of the equipment manufactu .....

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e years. In fact the whole contract is principally based on the concept of energy saving. Para 9 B of the contract indicates that respondent would be paid through energy cost saved in percentage basis for- a period of five years. Para 10 of equipments are not functioning optimally, they are bound to lose the remuneration/earnings. It is the responsibility of the respondent and in his interest to maintain and ensure proper functioning of the equipment installed, which are their property. To brand .....

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the services rendered by the respondent during the BOOT period and remuneration received therefor, solely on account of maintenance and repair services rendered to NMC, is without any basis, grounds or evidence. Moreover, the SCN itself mentions that Service tax is calculated on set- vice part of remuneration/energy saving charges. 7.2 The appellant in the appeal has mentioned that the fiction that goods are sold for consideration for ₹ 1/- is only a legal fiction and the whole process wa .....

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