2011 (1) TMI 220 - AT - Service Tax

Demand along with penalty - Repair and maintenance services - The appellant, submits that they are paying Central Excise duty on repaired transformers by treating the same as a manufacturing activity - Produced the Central Excise records including the returns filed by him - Set aside the impugned order and remand the matter to the original adjudicating authority for examining the appellant s above plea as to whether the excise duty paid by them was in respect of repaired transformers or the new transformers - If excise duty has been paid by treating the repaired transformers as manufactured transformers, whether the Service Tax liability can be fastened by treating the activity of maintenance and repair activity.

Summary

Issues:
Service tax liability on repair and maintenance services provided by the appellant, classification of transformers as immovable property or plant and machinery, applicability of Central Excise duty on repaired transformers, plea of limitation.

Analysis:
The Appellate Tribunal, in the case at hand, dealt with the confirmation of service tax demand against the appellant for providing repair and maintenance services on transformers. The impugned orders confirmed the service tax liability along with the imposition of a penalty under Section 78 of the Finance Act, 1994. The appellant contended that the transformers were not immovable property, were attached to earth, and were in the nature of plant and machinery. Additionally, the appellant argued that the repair and maintenance work was previously carried out at the installation site, and the demand was time-barred. However, the lower authorities did not accept these arguments, leading to the confirmation of the demand and penalty.

During the proceedings, the appellant informed the Tribunal that they also paid Central Excise duty on the repaired transformers, treating the activity as a manufacturing process. Despite this submission, the Tribunal noted that this plea was not raised before the lower authorities, and there was no verification of this aspect. Considering the factual nature of the issue, the Tribunal decided to set aside the impugned order and remand the matter to the original adjudicating authority for a detailed examination of whether the excise duty paid was for repaired or new transformers. The Tribunal directed the authority to determine if the service tax liability could be imposed when the repaired transformers were treated as manufactured goods. Importantly, the Tribunal clarified that all other legal issues, including the plea of limitation, were open for reconsideration during the remand proceedings. Consequently, the appeal was allowed for remand, providing an opportunity for further examination and clarification on the various legal aspects involved.

This judgment highlights the importance of raising all relevant arguments and providing necessary evidence before the adjudicating authorities. It also underscores the need for a thorough examination of factual aspects, especially when new information is presented during appellate proceedings. The decision to remand the case signifies the Tribunal's commitment to ensuring a comprehensive and fair assessment of the legal and factual issues involved in the matter.