TMI Blog2016 (4) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have issued a show-cause notice for doing it so. Revenue authorities cannot reclassify the services rendered by the respondent assessee in a refund claim filed by the respondent. Therefore, the impugned order is correct, legal and does not suffer from any infirmity. The cross objection filed by the respondent assessee being in support of the said impugned order is also disposed of. - Decided against the revenue - Application No. ST/S/93889/14 Appeal No. ST/85154/14 & ST/CO/91029/14 - Final Order Nos. A/86894-86895/2016-WZB/STB and Stay Order No. S/86896/2016-WZB/STB - Dated:- 21-3-2016 - SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) AND SHRI C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri R.K. Das, DC (AR) For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter, on realising that the services relating to the operation and maintenance of the power plant in terms of the said contract with HPLCL were not liable to service tax under the head Consulting Engineer or any other head of taxable service tax under the Finance Act, 1994. Accordingly, the respondents discontinued the payment of service tax w.e.f. July 2007 and intimated the department on 08.10.2007. The respondent also filed service tax returns in ST-3 claiming there under refund of ₹ 24,09,838/- being the service tax paid by them during the period from October 2006 to March 2007 and from April 2007 to September 2007. A refund claim in Form-R was also filed on 04.12.2007 with the respondent claiming therein that the activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. It is his further submission that the services rendered by the respondent assessee would fall under the definition of Management Maintenance and Repair Services and correctly classified by the Adjudicating Authority. He would submit that due to this reasons the impugned order be set aside. 5. Ld. Counsel appearing for the respondent assessee would submit that the article 6.3.3 of the agreement as read by the Departmental Representative would indicate that there was a clause of payment of service tax, but if it was applicable. He submits that the First Appellate Authority has relied upon the judgment of the Tribunal in CMS (India) Operations Maintenance Company vs. CCE 2007-TIOL-892-CESTAT and in the case of Rolls Royce Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or i.e. the appellants contract with the owner is to operate the power plant for generation of energy and not merely to maintain it. The appellants contention is that the management or maintenance of the plant was only incidental to the activity of operating the power plant to generate electricity and steam. The Adjudicating Authority, while conceding to the fact that services rendered by the appellants were wrongly classified under Consulting Engineer as they did not provide any such service. But he (Adjudicating Authority) has jumped on to his hurried conclusion that as per their Agreement entered with the owner, they had provided the service of Management Maintenance and Repair Services as defined under Section 65 of the Finance Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Ltd. vs. CCE Pondicherry 2007 (7) STR 369 (Tri-Chennai) wherein para 31 it is clearly held that :- 31. We have seen that in generating power, the appellant did not render any advice to improve the functioning of the working system of another organisation. They ran the facility and organised the required materials through the owner and services of their own staff. These activities did not constitute services to any other person/organisation. These impugned functions were incidental to their main activity of producing power. The O M contract is a works contract and it is bad in law to vivisect it and tax certain activities covered by the contract. A reading of the whole contract makes it plain that the same was intended to ensure gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Commissioner of Service tax, Division-IV, Mumbai and further admitted in course of personal hearing held on 10.10.2012 before me. Therefore, the refund claim for a total sum of ₹ 24,09,838.00 becomes allowable to the appellants. However, a sum of ₹ 3,36,278.00 merits to be credited to the Consumer Welfare Fund as refund thereof to the appellants in the given circumstances would constitute unjust enrichment . 10. As against the above reproduced factual finding by First Appellate Authority it is to be noted that the grounds of appeal as taken by the revenue in the appeal memorandum are nowhere contradicting the factual position as stated by the First Appellate Authority. It is also to be noted that the First Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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