2004 (6) TMI 3 - AT - Service Tax

Service Tax Consulting Engineer (1) Operation and maintenance of power plant (2) Contract between operator and owner (3) Demand not sustainable (4) Constitution of India (job work)

Summary

Issues:
1. Liability to pay service tax as a "consulting engineer" for the period July 1997 to May 2000.
2. Interpretation of the operation and maintenance agreement dated 14-3-95.
3. Whether the activities performed under the agreement constitute consulting or engineering services subject to service tax.

Detailed Analysis:
1. The appellant entered into an operation and maintenance agreement with a power generation company, and a show cause notice was issued alleging liability for service tax as a consulting engineer. The duty demand and penalty were confirmed by lower authorities, leading to the present appeal challenging those orders.

2. The appellant argued that the agreement was for operation and maintenance of a power plant, not for consultancy services. They emphasized that the payment was for operating and maintaining the plant, not for providing advice. The appellant contended that any assistance provided before the maintenance period was not subject to service tax on consulting engineers.

3. The Tribunal examined the agreement clauses and found that the appellant's role was to operate and maintain the plant, with provisions for bonus and penalty based on performance. The appellant's activities were limited to reporting results and details of operations, not providing consultancy. The Tribunal noted the agreement's renewal provision and cited a previous decision supporting the distinction between work contracts and consultancy contracts.

4. The appellant referenced a Tribunal decision stating that a work contract cannot be considered a consultancy contract, supporting their argument. However, the opposing party contended that operating and maintaining the plant involved providing engineering advice, citing relevant legal amendments and previous Tribunal decisions.

5. The Tribunal considered both parties' submissions and analyzed the agreement's true meaning and scope. It highlighted the autonomy and responsibility vested in the appellant under the agreement, emphasizing the absence of a consulting or engineering role towards the owner. The Tribunal concluded that the duty demand was not sustainable as the appellant's activities did not amount to engineering consultancy, setting aside the lower authorities' decision.

6. The Tribunal clarified that the legal principles cited by the opposing party were not applicable in this case, as the agreement did not involve the deemed transfer of property/goods as in project contracts. The appeal was allowed based on the finding that the appellant's activities did not constitute consulting services subject to service tax, ultimately overturning the lower authorities' decision.