TMI Blog2009 (3) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... T) and M.V. Ravindran, Member (J) Mrs. S. Thenmozhi, Advocate, for the Appellant. Mrs. Sudha Koka, SDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. - In terms of the impugned order, the appellants are required to pre-deposit the following sums towards Service Tax. (i) Rs. 47,82,413/- for the period 1-7-2003 to 15-6-2005 and (ii) Rs. 1,65,89,214/- for the period from 16-6-2005 to 30-9-2007 (iii) Penalty under Section 76 at the rate of Rs. 100/- under Section 76 (iv) Penalty of Rs. 1000/- under Section 77; (v) Equal penalty amounting to Rs. 2,13,71,627/- under Section 73; and (vi) Interest under Section 75 has been demanded 2. We heard both sides. 3. The appellants under an agreement of opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance" provided to M/s. CVK Industries Ltd., an earlier show cause notice dated 15-7-99 was issued by the Assistant Commissioner for the period from 7-7-1997 to 31-3-1999 demanding service tax under the category of consulting engineer services". The order was finally set aside by Final Order No. 1334-35/07 dated 27-11-2007 as reported at 2008 (10) S.T.R. 146 (Tri.-Bang.) and the appeal was allowed in appellant's favour. Moreover, the appellant was constantly corresponding with the Service tax department between 24-6-2004 to 6-11-2007. There was no intention to evade payment of the Service Tax. In view of the above, the longer period could not have been invoked. 4. The learned departmental representative stated that the case laws relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, training, mobilizing, supervising and managing facilities of personnel in sufficient numbers with adequate qualifications. The main obligation of the appellant is generation of electricity using the plant and machinery of M/s. GVKIL. The said activity is measured in terms of number of units of electricity generated. Further, in terms of the Operations Maintenance Agreement, generation of electricity is the final outcome of the essential activity of managing and utilizing the men, machinery, facilities and materials effectively and efficiently by the appellants. Payments were received by the appellant from GVKIL on the basis of annual availability of the plant. The Commissioner in the impugned order has given a finding that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyceIndustrial Power (I) Ltd. v. Commissioner - 2006 (3) S.T.R. 292 (Tribunal) = 2004 (171) E.L.T. 189 (Tribunal), the Tribunal has observed the following. "We have perused the records and considered the submissions made by both sides. The issue raised is the true meaning and scope of operation a maintenance agreement dated 14-3-95. The appellant had taken over the plant and was operating maintaining it in terms of the agreement A perusal of the agreement makes it clear that it is a contract between owner and an operator. The terms of the contract vest complete 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is allowed after setting aside the impugned order." In the said case also there was an agreement between the appellant and the owner of the plant for operation and maintenance. When the revenue proposed Service Tax under the category of 'Engineering consultancy', it was held that there are no two parties, one giving advice and the other accepting it. Service Tax is attracted only in a case involving rendering of service, in this case engineering consultancy. Even though, the present appeal relates to "maintenance and repair" and "management, maintenance and repair", the ratio of the above Rolls Royce Case is squarely applicable. The appellant under the contract is to operate the entire power plant and maintain it. That is why it is know ..... X X X X Extracts X X X X X X X X Extracts X X X X
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