2009 (3) TMI 193 - AT - Service Tax

Tribunal rules in favor of appellant, determining services as non-taxable. Operational nature cited.

GVK POWER & INFRASTRUCTURE LTD. Versus CCE. & C., VISAKHAPATNAM-II

The Tribunal ruled in favor of the appellant, determining that the services provided did not constitute taxable categories. It was held that the longer ... Appellants under an agreement of operation and maintenance of the power plant of M/s. GVK Industries Ltd. render certain services. The issue involved is whether such services would fall under “management and maintenance and repair” - Once the appellant undertakes to operate and maintain the power plant under a contract, we cannot say that the appellant is rendering a service to the owner of the power plant – since department having knowledge of such activity, prima facie extended period not invocable – stay granted Issues:1. Whether the services provided by the appellants fall under 'maintenance and repair' or 'management and maintenance and repair' for specific periods.2. Whether the longer period for invoking duty demands is justified.3. Whether the appellants are liable to pay Service Tax for the services rendered.Analysis:1. The main issue in this case is to determine the nature of services provided by the appellants, whether they constitute 'maintenance and repair' or 'management and maintenance and repair' for different periods. The appellant argued that their services were not taxable as management consultancy or consulting engineering services, citing relevant case law. They also contended that the longer period for invoking duty demands was not justified, as their registration application was rejected twice under protest, and there was no intention to evade payment.2. The appellant's services involved the operation and maintenance of a power plant under a contract with another company. The Commissioner held that the appellants had not disclosed the nature of their services properly and invoked the longer period for duty demands. However, the Tribunal found that the contract was for operation and maintenance, with the primary objective being electricity generation. The Tribunal referenced a similar case to support the view that the appellants were not providing consulting or engineering services, thus not liable for Service Tax.3. The Tribunal noted that the appellants were not the owners of the power plant but were responsible for its operation and maintenance. The contract focused on generating electricity, with maintenance activities being incidental. The Tribunal emphasized that the appellants were not providing consulting or engineering help, and the service tax was not applicable in this case. Considering the facts and previous legal proceedings, the Tribunal ruled in favor of the appellant, waiving the pre-deposit of the dues demanded in the impugned order.In conclusion, the Tribunal found in favor of the appellant, ruling that the services provided did not fall under taxable categories and that the longer period for duty demands was not justified. The judgment highlighted the contractual obligations of the appellants, emphasizing the operational nature of their services and the absence of consulting or engineering aspects. The decision resulted in a complete waiver of the pre-deposit of the demanded dues.