TaxTMI 
TaxTMI 
2017 (11) TMI 353
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....n received by the appellant from the said company is apportioned as towards operation of the power plant and the reminder 25% as towards consideration for repairs and maintenance of the power plant. Appellant further divided the entire work into following categories segregating repairs and maintenance work and the operation activity and paid service tax as follows : a) Operation Service No Service tax is paid. b) Maintenance Service Service Tax is paid on 100% of its value. c) Technical Service ST is paid on 100% of its value d) Plant Manager's Office ST is paid on 25% of its value. e) Safety Department ST is paid on 25% of its value. f) Annual Overhead allowance ST is paid on 25% of....
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....r. In that decision, the Tribunal had held that operation of the plant would not fall within the ambit of 'manufacture' for the purpose of Management, Maintenance and Repair Services. 2.2 In respect of the service tax liability on value of consumables, Ld. Advocate submits that in the case of Shapoorji Pallonji Infrastructure Capital Company Ltd. cited supra, the decision relied upon by him, it had been held that cost of consumables and spares used in providing maintenance services are required to be included in the gross value. The appellant therein had availed cenvat credit in respect of the consumables so utilized and was therefore hit by the bar in that respect provided under Notification No.12/2003-CE. However in the present....
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....se (b) of Subsection (ii) of Section 65 (64) of the Finance Act, 1994. 10.1 The learned counsel for the appellant has countered this allegation stating that the activity would not fall under management of immovable property. That it will get covered under the definition of Business Auxiliary Service; the dominant activity carried out in the power plant being generation of electricity and maintenance of the power plant being only an incidental one. That generation of electricity amounts to manufacture of goods within the meaning of section 2(f) of the Central Excise Act, 1944. That electricity is mentioned under Chapter Heading 27.16 of the First Schedule to the Central Excise Tariff Act, 1985, with effect from 1.3.2005 and electric....
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....rvice for the reason that the management service is done by appellants to themselves and not to any other person. The appellants are operating the power plant to generate electricity on behalf of the owner for supplying the same to TNEB. 10.2 In arriving at this conclusion, we also draw sustenance 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 t....
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....) Rolls Royce Indus. Power (I) Ltd. Vs. Commissioner of Central Excise, Vishakhapatnam - 2006 (3) STR 292 (Tri.) "6. We have perused the records and considered the submissions made by both sides. The issue raised is the true meaning and scope of operation and 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 carried out according to stan....
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....etting aside the impugned order." (c) CLP Power Pvt. Ltd. Vs. Commissioner of Service Tax, Bombay Final Order No.A/90709 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 Management, Maintenance or Repair Service. As per our above discussion as well as settled legal position on the identical issue as per th....