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2011 (1) TMI 754 - AT - Service TaxWaiver of pre-deposit - Maintenance or Repair services - The arguments made before us revolve around the term management appearing in the definition maintenance or repair under Sec. 65(64) of the Act. The Commissioner has brought operation of power plant within the scope of management of immovable property - In the case of Operations & Maintenance Co. P. Ltd. v. CCE Pondicherry 2007 (7) S.T.R. 369 (Tri.-Chennai) - Held that wherein the pith and substance rule was invoked to hold that the main function of the assessee was to operate the power plant and that maintenance/repair was only incidental thereto and further that such maintenance and repair of the power plant was not a service rendered to another person - Decided in favor of the assessee
Issues:
1. Waiver of pre-deposit and stay of recovery in a service tax case amounting to over Rs. 2.31 crores and penalties. 2. Interpretation of the nature of services provided under the head "Maintenance or Repair services" in relation to operation of a Power Plant. 3. Application of relevant case laws and legal provisions to determine liability for service tax on operation fee collected. 4. Consideration of the plea of limitation against the demand of service tax. 5. Evaluation of the applicability of the "pith and substance rule" in determining the main function of the assessee regarding operation and maintenance of the power plant. Detailed Analysis: 1. The appellant sought waiver of pre-deposit and stay of recovery for a service tax demand exceeding Rs. 2.31 crores and penalties related to the period of 16-6-05 to 30-4-06 under the head "Maintenance or Repair services." The demand was contested based on the nature of services provided under an Operation and Maintenance agreement with a power plant owner. 2. The adjudicating authority held that the services rendered by the appellant fell under "Management, Maintenance or Repair services" as per Sec. 65(64) of the Finance Act, 1994. The operation fee collected from customers was considered a fee for managing the power plant as immovable property, leading to the confirmation of the service tax demand and imposition of penalties. 3. The appellant's counsel relied on the decision in CMS (I) Operations & Maintenance Co. P. Ltd. v. CCE, Pondicherry and other relevant case laws to support their claim for waiver and stay. The argument focused on the interpretation of the Operation and Maintenance agreement terms and the splitting of the O & M fee into operation fee and maintenance fee. 4. The appellant raised a plea of limitation against the service tax demand, emphasizing the non-consideration of relevant case laws by the adjudicating authority. The contention was supported by the argument that the operation fee was not specifically indicated in the agreement, leading to a debate on the suppression of material facts. 5. The Tribunal found a prima facie case for the appellant based on the "pith and substance rule," as established in the CMS (I) Operations & Maintenance Co. P. Ltd. case. The decision highlighted that the main function of the appellant was operating the power plant, with maintenance being incidental. The interpretation of "management of immovable property" and the applicability of the definition of maintenance or repair under Sec. 65(64) were debated, leading to the grant of waiver and stay for the service tax and penalty amounts. The judgment also directed the expedited hearing of the appeal due to the significant stakes involved in the case.
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