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Commissioner of Service Tax, Mumbai-II Versus Polydrill Engineers Pvt. Ltd.

2016 (4) TMI 497 - CESTAT MUMBAI

Service tax liability - “Maintenance or Repair Services” for the period prior to 01-05-2006 and subsequently under “management, maintenance or repair service” - Undertook operation of Bulk Handling Plant of ONGC and received consideration - Held that:- prior to 01-05-2006, the definition of management maintenance or repair service will not apply as the maintenance or repair service are not for management or repair service, but these are consumed by them for smooth functioning of bulk handling pl .....

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ntrusted to respondent is in connection with smooth operation of bulk handling plant for obtaining desired results from the bulk handling plant. The agreement between ONGC and respondent does not indicate that respondent was required to provide any service relating to Management, Maintenance or Repair Services to ONGC, nor does the agreement indicate any separate fees is to be paid to respondent for Management, Maintenance or Repair Services. In order to overcome this lacuna, government has enla .....

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- A/86518/16/STB - Dated:- 19-2-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Mrs. P. V. Shekhar, D.C. (AR) For the Respondent : Shri M. S. Murthy, Advocate ORDER PER : M.V. RAVINDRAN This appeal is filed by the revenue against Order-in-Appeal No. 08/Review/CCO/MCX/2012 dated 20/04/2012. 2. The relevant facts that arise for consideration are during the period 2005-06 to 2008-09, respondent had under taken operation of Bulk Handling Pla .....

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ctions. The Adjudicating Authority after following due process of law dropped the proceedings so initiated. 4. Ld. departmental representative could draw our attention to the agreement entered by the respondent with ONGC and submits that scope of work is to operate and maintain Bulk Handling Plant of ONGC, disposal of waste material accumulated in and around the ONGC site, buying and lifting the empty bags prefixed schedule for preventive maintenance for Bulk Handling Plants. It is her submissio .....

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on the respondent. She would also rely upon the stay order passed by the Tribunal in the case of Sanjay Electrical - 2014 (34) STR 455 (Tri.- Del.) stating that identical/similar issue fell for consideration of the Tribunal and it was held that service tax liability arises on operation of such plants. 5. Ld. Counsel, appearing on behalf of the appellant, would submit that the agreement between the respondent and ONGC if read properly could mean that the bulk handling plant is the property of ONG .....

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ade by both the sides and perused the records. 7. Undisputedly, the respondent has been awarded a contract for operation of the bulk handling plant of ONGC on a consideration for producing desired quantum of work. The said agreement also provided for regular, periodical inspection maintenance or repair and other activity to be done by the respondent. It is the case of the revenue that this activity of the respondent could fall under the category of maintenance or repair services prior to 01-05-2 .....

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or equipment, excluding motor vehicle; W.E.F. 16-06-2005 Section 65(64):- maintenance or repair means any service provided by- (vii) any person under a contract or any agreement; or (viii) a manufacturer or any person authorized by him, in relation to- (a) maintenance or repair including reconditioning or restoration, or servicing of any goods or equipment, excluding motor vehicle; or (b) maintenance or management of immovable property. W.E.F. 01-05-2006 Section 65(64):- management, maintenance .....

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ovided to any person, by any person in relation to management, maintenance or repair and the term service provider shall be construed accordingly. It can be seen from the above reproduced definition prior 01-05-2006 to attract service tax liability under maintenance or repair service, there has to be a contract for doing so and it should be given by manufacturer or any person authorized to do so. In the case in hand, the definition will not apply as the maintenance or repair service are not for .....

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