2011 (5) TMI 629 - AT - Service Tax

Maintenance and repair service - appellants entered into contract with KTPS for routine breakdown repairs - assessee contended wordings used in the contract indicate that it could be a routine and breakdown maintenance of its ash handling plant and it is in fact rate contract - period involved 01.07.03 to March 2005 - definition of maintenance or repair service undergone change from 16.06.05 - Held that - We are of the considered view that appellant could have entertained a bonafide belief that the contract entered by them is a rate contract and the payment being based on the work done by them during the existence of agreement. We find there is no malafide intention in the appellant in not discharging service tax liability from 01.07.03. Therefore Service tax liability and interest thereof within the period of limitation from the date of SCN are upheld and confirmed and service tax liability beyond the period of limitation is set aside.

Summary

Issues:
Service tax liability of appellants for the period 01.07.03 to March, 2005 under maintenance and repairs service category.

Analysis:
The appeals were filed against an Order-In-Appeal, where both lower authorities concluded that the appellants were liable to pay service tax under 'Maintenance or Repairs service' based on their contracts with Kota Thermal Power Station (KTPS). The appellants argued that the contracts were rate contracts, not maintenance contracts, and no service tax liability existed during the relevant period. The definition of maintenance or repair service was crucial, and the Tribunal analyzed the agreements to determine the nature of the services provided.

The Tribunal examined the definition of maintenance or repair service during the relevant period, which encompassed services provided under a maintenance contract or agreement. Despite the appellants' contentions, the Tribunal found that the services rendered fell under this definition and were liable for taxation. The agreements with KTPS indicated capital, routine, and breakdown maintenance of the ash handling plant, with payments made based on work completed. The Tribunal noted that only repair jobs were paid for, not the entire contract amount, leading to a belief by the appellants that it was a rate contract.

Regarding the Show Cause Notices issued to the appellants, the Tribunal observed that some demands were time-barred due to the nascent stage of service tax law on maintenance or repairs during the relevant period. It acknowledged the appellants' legitimate understanding that they were not liable for service tax under maintenance or repair services. The Tribunal set aside demands confirmed by the adjudicating authority for invoking a larger period but upheld demands within the limitation period.

The Tribunal remitted the matter back to the adjudicating authority to recalculate the service tax amount within the limitation period, considering it as cum-duty amount. It held that the appellants had a legitimate belief not to discharge service tax liability, leading to the setting aside of penalties imposed on them. Ultimately, the service tax liability and interest within the limitation period were upheld, while liability beyond the limitation period was set aside, along with the penalties.