TMI Blog2017 (6) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... on and hence the appeals are disposed by a common order. The assessee is referred to as appellant for the sake of convenience. 2. Appellant had been granted permission under Section 44 of the Electricity Supply Act for a power project and entered into a Power Purchase Agreement with Tamil Nadu Electricity Board for sale of electricity generated in the plant and also entered into operation and maintenance agreement with HHIL. Department was of the view that the activities of the appellant were taxable services and that they are liable to pay service tax on the consideration received for operation of power plant under Consulting Engineers Service as per section 65 (88) of the Finance Act, 1994. A show cause notice was issued proposing recovery of service tax along with interest and imposition of penalty. Subsequent show cause notices have been issued alleging that the said activity would fall under Maintenance and Repair Services. The period involved, the issue under dispute as well as the amounts involved are given in the table below furnished by appellant :- S.No. Appeal No. Issue involved Period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the findings in the impugned orders which held that said activity would fall under Maintenance or Repair Service. 5. We have heard submissions of both sides as well as perused the records. 6. In Appeal ST/3/2004, the issue is whether the appellants are liable to pay service tax in the category of Consulting Engineer Service for the very same activity of production of electricity incidental activities of maintenance of the power plant. It is the case of the Department that prior to 2003, the services would fall under Consulting Engineer Service. However, we find that in the following judgment, the issue has been considered and held that such activities of operation and maintenance of power plant would not fall under Consulting Engineer Service : (1) Rolls Royce Indus. Power (I) Ltd. Vs CCE Vishakhapatnam - 2004 (171) ELT 189 (Tri.-Del.) 7. With regard to the issue whether charges received by the appellant for operation of the power plant would fall under management or repair services, this very Bench of the Tribunal vide Final Order No.40744-40752/2017 dt. 23.05.2017 held as under :- 10.1 The learned counsel for the appellant has countered this allegation stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenance from the decisions of this Tribunal as follows:- (a) CMS (I) Operations Maintenance Co. P. Ltd. Vs. Commissioner of Central Excise, Pondicherry 2007 (7) STR 369 (Tri. Chennai). Paragraphs 30 and 31 are reproduced as follows:- 30. In the impugned order the Commissioner had rendered a finding that the facility was run by entering into contracts with different organizations such as CMS who had contracted to undertake the operation and maintenance of the facility. He found that though CMS was operating the facility for generating electricity, the entire activity was carried on by CMS on behalf of ST-CMS. The Commissioner also observed : the agreement also provides for incentive payments/liquidated damages/environmental fines......... This does not happen when any agency provides service to another. A service provider is not responsible to achieve any performance target referring to which it becomes entitled to any reward or incurs penalties. Such provisions in the O M contract fortify our finding that the appellants were not rendering any advisory services and were engaged in activities which could be measured such as generation of power in the instant case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volving rendering of service, in this case, engineering consultancy. That situation does not take place in the present case. Therefore, we are of the opinion that the duty demand raised is not sustainable. The learned SDR's contention about the 46th Amendment and the Apex Court's decision in Builders Association of India and Others (supra) have no application in the present case since such a deemed definition does not exist in the case of job work as has taken place in regard to project contracts in sales tax. In these facts and circumstances, the appeal is allowed after setting aside the impugned order. (c) CLP Power Pvt. Ltd. Vs. Commissioner of Service Tax, Bombay Final Order No. A90709 to 90712/2016/STB/CLP. The relevant portion is extracted below:- ......In the present case, admittedly, there are two agreements into existence, one is clearly for operation of power plant and second is for maintenance on which appellant discharged the service tax. The agreement of operation of plant is neither involved any management of either plant or maintenance or repair. Entire plant was taken over by the appellant for operation. Therefore, the same does not fall under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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