TaxTMI 
TaxTMI 
2016 (4) TMI 499
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....10.2012. 2. After hearing both sides for sometime on the stay petition, we find that the appeal itself could be disposed of. Accordingly, after dismissing the stay petition filed by the Revenue, we take up the appeal for disposal. The Cross objection filed by the respondent is also taken up for disposal. 3. The facts, in brief, of this case are that the respondent are engaged in the business of operating power plants and were allegedly providing taxable services of 'Consulting Engineer Services' for power plants. The respondents had applied and obtained service tax registration under the category of Consulting Engineer Services vide service tax registration dated 04.08.2005. The respondents had entered into an Operation & Maintenan....
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....vice tax. The Adjudicating Authority after issuing the show-cause notice rejected the refund claim on the ground that the classification of the services by the respondent assessee was erroneous and the current classification was 'Management Maintenance and Repair Services.' Aggrieved by such an order, an appeal was preferred before the First Appellate Authority. The First Appellate Authority set aside the impugned order before him and directed the lower authorities to sanction the refund. 4. Ld. Departmental Representative after taking us through the show-cause notices, Adjudicating Authority's order and First Appellate Authoritys order submits that the relevant portion of the operation and maintenance agreement dated 30.06.2006 entered....
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.... is his further submission that the Adjudicating Authority could not have reclassified the services rendered by them in a refund claim filed by the respondent assessee, if the revenue wanted to reclassify the services rendered they should have done so by issuing a separate show-cause notice. 6. We have considered the submission made at length by both sides and perused the records. 7. The issue to be decided in this case is whether the appellant has correctly discharged the service tax liability under the category of Management Maintenance and Repair Services or otherwise and whether he is eligible for the refund of the service tax paid under the mistake of law or otherwise. 8. It is undisputed that the respondent assessee and HPL....
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....n the Adjudicating Authoritys above contentions. For the sake of illustration, I may observe that if someone hires a driver to drive ones vehicle; the drivers prime duty is to drive the vehicle though its cleaning, maintenance, proper up-keep etc.will be incidental to his prime duty of driving the said vehicle. Same way, the appellants contract with the owner under the impugned O&M Agreement dated 30.06.2006 is to Operate the plant in accordance with an operating regime indicated by the Owner, including enhanced operations as per Schedule 13. Besides, they are obliged to Maintain the plant in a manner such as to maximize the efficiency, output, availability, and starting and operational reliability of the Plant, minimize the heat rate, ....
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....garding operating the power plant for generation of energy cannot be classified as services of "Management, Maintenance or repairs" and as such no service tax was leviable thereon under this category of taxable service during the period under reference. The leviability of tax under "Consulting Engineering Service" is already ruled out by the department itself as pointed out supra. Hence, refund of service tax is held to be admissible on its merit. 27. So far as the question of "unjust enrichment" involved in the present refund claim is concerned, I may agree with appellant's contention that in terms of Article 6.3.3 of the O&M Agreement. The operator free payable for each operating year was inclusive of the Operator's Income Tax an....