TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 1236
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....f audit, it was noticed that appellants had entered into an agreement with various clients like M/s.Thermax India Ltd., Tidel Park, JCT, Tamil Nadu Petroleum Ltd. etc for operation and maintenance of power plants. In terms of the agreements with their clients, appellants were responsible inter alia, for monitoring plant equipment performance, operation planning, coordinating with the State Electricity Board, breakdown maintenance and repairs of all transformers, switchgears, breakages, motor control centres, etc. that may be used in the operation of the power plant in an effective and timely manner. The aforesaid activities are performed by appellants with their group of experienced and office and management personnel. In consideration of r....
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....f the decision of CESTAT Chennai appeal may be allowed. 3. On the other hand, Ld. A.R supports the impugned order. 4. After hearing both sides, we find that Ld. Advocate is correct in his assertion. The issue as to whether activity of production of electricity in power plant would amount to management of immovable property or otherwise, has been analyzed and discussed by this Bench in the case of Shapoorji Pallonji Infrastructure (supra) and held in favour of assessee. The relevant portion of the order is reproduced below : "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 Au....
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....ut operation of the same. The word 'operation' is not used in the definition of 'Maintenance and repair' services which is relied by department as amended with effect from 16-6-2005. The said word is seen used in the definition of Business Support Services ('Operational assistance'). Thus it is very much clear that management of immovable property does not include operation activities. In addition, it cannot be said that the appellants are doing management service 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 dra....
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....e services to any other person/organisation. These impugned functions were incidental to their main activity of producing power. The O&M contract is a works contract and it is bad in law to vivisect it and tax certain activities covered by the contract. A reading of the whole contract makes it plain that the same was intended to ensure generation and supply of power as per PPA and not for rendering any service to the owner." (b) Rolls Royce Indus. Power (I) Ltd. v. Commissioner of Central Excise, Vishakhapatnam - 2006 (3) S.T.R. 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 14-3-1995. The appellant ha....
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....the duty demand raised is not sustainable. The learned SDR's contention about the 46th Amendment and the Apex Court's decision in Builders Association of India and Others (supra) have no application in the present case since such a deemed definition does not exist in the case of job work as has taken place in regard to project contracts in sales tax. In these facts and circumstances, the appeal is allowed after setting aside the impugned order." (c) CLP Power Pvt. Ltd. v. Commissioner of Service Tax, Bombay - Final Order Nos. 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....