2013 (8) TMI 259 - AT - Service Tax

Classification of Service Waiver of Pre- deposit - activity of maintaining the plant and operating the power plant on day to day basis for generating electricity - Whether the services of the assesse would fall under the category of Business Auxiliary Service u/s 65 (105) (zzb) or Management, Maintenance and Repair Services u/s 65 (64) - Assesse was operating a power plant under a contract between the two parties Revenue was of the view that the contract was for Management maintenance and operation of the power plant and the all the activities were covered under the contract was taxable u/s 65 (64) Held that - The issue was contentious as the contentions of both the parties were worth considering in detail - Assesse contended that even the 45% consideration on which he had paid service tax was an activity for their own benefit and there was no need for service tax to be paid - Revenue contended that on the same portion they had collected service tax from the service recipient complete waiver of pre-deposit allowed to the assesse Decided in favor of assesse.

Summary

Issues:
- Request for name change of the appellant and respondent
- Applications for early hearing of stay petitions
- Tax liability on operation of a power plant
- Interpretation of Management, Maintenance, and Repair Services under Finance Act, 1994
- Pre-deposit waiver and stay on collection of dues

Analysis:
- *Name Change Request*: The appellant requested a name change, which was allowed based on supporting orders from the Bombay High Court. The respondent's name change request was also allowed as the appellant was registered with the Commissioner of Service Tax, Chennai.

- *Early Hearing Applications*: Applications for early hearing of stay petitions were rendered infructuous as the stay petitions were already being heard. Thus, the applications were disposed of accordingly.

- *Tax Liability on Power Plant Operation*: The appellant was paying service tax on 45% of the consideration under the contract, considering it as maintenance, but not on the remaining 55% for operation of the power plant. Revenue contended that all activities were taxable under Management, Maintenance, and Repair services. Show cause notices were issued, and tax demands were confirmed for different periods.

- *Interpretation of Finance Act, 1994*: The appellant argued that operation of a power plant should not be covered under Management, Maintenance, and Repair Services as per the Finance Act, 1994. Previous Tribunal orders were cited in support of the appellant's position.

- *Pre-Deposit Waiver and Stay on Dues*: The issue was deemed contentious, and a waiver of pre-deposit was granted to examine the matter during the final hearing of the appeals. Stay on the collection of dues from the impugned orders was ordered until the appeals' disposal. The appeals were tagged for early hearing with other related cases.

This detailed analysis covers the various issues addressed in the judgment, including name changes, early hearing applications, tax liability on power plant operation, interpretation of relevant laws, and decisions on pre-deposit waiver and stay on dues collection.