TaxTMI 
TaxTMI 
2013 (4) TMI 458
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..... The appellate authority held that prior to 16.6.2005 for Maintenance or Repair if under a maintenance contract/agreement only would come under the purview of service tax; that the assessee had provided repair services under a rate contract, in respect of repair of old transformers which was not pursuant to a maintenance contract or an agreement, there was no liability to service tax under Section 65(64) and 73 read with Section 65(105)(zzg) of the Finance Act, 1994 (the Act). As consequence of such analysis, the primary findings with regard to the assessee's liability to service tax and concomitant levy of interest and penalty by the order of adjudication authority dated 14.11.2007 was reversed and the appeal allowed. 3. The facts, in br....
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....out in the adjudication order is leviable. 4. The assessee carried the matter in appeal. The Order in Appeal impugned herein by the Revenue held after extracting provisions of Section 65(64) and Section 65(105)(zzg) of the Act and Board Circular dated 27.7.2005 that repair or service carried out under a contract other than a maintenance contract or agreement was not covered within the purview of service tax; that since in the case on hand, repair was carried out by the assessee during the period prior to 16.5.2005 under a repairing contract which did not include maintenance, the service tax is not attracted on repairing charges for the period prior to 16.6.2005. The appellate authority also placed reliance on decisions of this Tribunal in ....
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....ent in Stallion Rubbers Ltd. (supra) is directly on the point against the assessee and in favour of the Revenue while the three earlier judgments in Dusa Transformers & Switchgears (P) Limited (supra), in Uni Power System Ltd. vs. C.C.E., Cochin and Cochin Shipyards Ltd. are in favour of the assessee. 8. We notice that the earlier judgments of this Tribunal, including in Dusa Transformers & Switchgears (P) Limited (supra) proceeded on an uncritical reliance on the Board's Circular dated 27.7.2005 which states that prior to 16.6.2005 that repair services carried out under a contract other than a maintenance contract or agreement were not covered within the purview of service tax liability. There is no independent examination of the relevant....
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....ation. We find no such exertion in the appellate order nor in the judgments of this Tribunal in Dusa Transformers & Switchgears (I) Ltd. or Unipower System Ltd. , while there is such analysis in Stallion Rubbers Ltd. Be that as it may. 12. We will now consider the relevant provisions of the Act. Section 65(105)(zzg) as it stood at the relevant point of time i.e July 2003 to July 2004 reads as under: Taxable service means any service provided to a customer by any person in relation to maintenance or repair. Section 65(64) of the Act (to the extent relevant and material for this appeal), defines the expression maintenance or repair (at the relevant time) to mean any service provided (i) by any person under contract or an agre....
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....ce or repair as defined in Section 65 (64) of the Act and must be deemed to have rendered the taxable service under Section 65(105)(zzg). The record also discloses and this is not disputed, that the assesee had not filed ST-2 returns disclosing the value of those services provided, for remitting service tax. Ld. Consultant for the assessee states that this omission to file service tax return for the period in question was on account of the assesees's own misinterpretation, of immunity to service tax and that this interpretation of the assessee is also justified in view of the earlier orders of this Tribunal in Dusa Transformers & Switchgears (I) Ltd., Cochin Shipyard Ltd. and Unipower Power Ltd. It is also contended on behalf of the assesse....
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....asmuch as it talks only of clause (i) and not clause (ii) of Section 65(64), to which we have already alluded (supra) and have recorded our analysis thereon. 17. On the analysis above we are of the considered view that the earlier judgements of this Tribunal in Uni Power System Ltd. vs. C.C.E., Cochin (Tri-Bang.); Commissioner of Central Excise, Jaipur II vs. Dusad Transformers & Switchgears (P) Limited; and in Cochin Shipyards Ltd. vs. C.C.E. 2007 (7) STR 291 (Tri-Bang.) which have failed to analyse, the relevant legislative provisions in Section 65(64) read with Section 65 (105)(zzg) of the Finance Act, 1994 or per incuriam and do not lay down the correct law. We are respectfully in agreement with the judgment of this Tribunal in Stallio....