2014 (2) TMI 911 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - Maintenance or repair service - Held that - maintenance/repairs of the air-conditioner was undertaken by Kirloskar during the material period and the said company was paying service tax also. This would indicate that the activity in respect of which the impugned demand was raised on the appellant is something other than maintenance or repair of air-conditioner. It is on record that the demand is on the amounts collected by the appellant from the occupants of the premises for the activity of operating/running the air-conditioner on a regular basis under specific agreements. We have perused a specimen agreement available on record and have found nothing therein which indicate that the appellant is collecting money from the occupants of the premises for repairs/maintenance of air conditioner. On these facts, without the need to refer to Rule 5, we hold that the appellant has a prima facie case on merits against the impugned demand - Stay granted.

Summary

Issues:
1. Waiver and stay sought by the appellant regarding adjudged dues for service tax and education cesses under the Head maintenance or repair service.
2. Applicability of Rule 5 of the Service Tax (Determination of Value) Rules 2006.
3. Plea of limitation raised by the appellant.
4. Opposition by the Addl. Commissioner (A.R.) to the prayer for waiver and stay.

Analysis:

1. The appellant filed an application seeking waiver and stay concerning the adjudged dues, including a substantial amount demanded for service tax and education cesses under the Head maintenance or repair service for the period 2007-08 and 2008-09. The demand was based on amounts collected by the appellant from premises' occupants at UB City, which were rented out by co-owners UB Holdings Ltd. and M/s Prestige Properties and Estates Pvt. Ltd. The appellant provided maintenance or repair services to these occupants but was not liable for the centralized air conditioner's maintenance. The revenue contended that costs of operating the air-conditioner, reimbursed by occupants, should be taxed under maintenance or repair service, leading to the impugned demand.

2. The appellant's counsel argued that another company, Kirloskar Chillers Pvt. Ltd., undertook maintenance/repair of the air conditioner during the material period and paid service tax on amounts collected for this purpose. The counsel highlighted the striking down of Rule 5 of the Service Tax (Determination of Value) Rules 2006 by the Hon'ble Delhi High Court in a relevant case. Additionally, a plea of limitation was raised by the appellant's counsel.

3. The Addl. Commissioner (A.R.) reiterated the adjudicating authority's findings and opposed the appellant's prayer for waiver and stay.

4. Upon review, the Tribunal found a prima facie case on merits for the appellant. It was established that Kirloskar undertook maintenance/repairs of the air-conditioner during the material period and paid service tax, indicating that the impugned demand was for a different activity than air-conditioner maintenance. The Tribunal examined a specimen agreement and found no indication of the appellant collecting money for air conditioner repairs/maintenance from the premises' occupants. Consequently, without referring to Rule 5, the Tribunal held that the appellant had a prima facie case against the impugned demand, granting waiver and stay as requested.