2014 (7) TMI 412 - AT - Service Tax

Demand of service tax - Repair and maintenance service - Held that - As regards the service tax demand based on the repair and maintenance service alleged to have been provided by the respondent, we find that during the period of dispute, the repair and maintenance service which was taxable was that activity of repair and maintenance which was in terms of some contract or agreement, while according to the findings of the Commissioner (Appeals), no evidence has been produced by the Department that the repair and maintenance jobs of the respondent were in terms of some contracts or agreements. Therefore, we do not find any infirmity in the finding of the Commissioner (Appeals) that the respondent s activity did not attract any service tax As regards, the allegation that the respondent have provided the Business Auxiliary Service, - the activity which has been treated by the Department as Business Auxiliary Service, as described in the grounds of appeal, is fabrication of steel storage tanks, dozers and settlers, steel structures, steel platforms, railing, foundation frames etc. and their erection and installation in the factory. While fabrication of tanks and steel structures being manufactured is not production or processing not amounts to manufacture, the erection and installation of tanks, dozers, settlers, and steel structures is certainly not covered by any clause of Section 65 (19). Therefore, we agree with the findings of the Commissioner (Appeals) that this activity of the respondent is not covered by the definition of Business Auxiliary Service and hence the same is not taxable - Decided against Revenue.

Summary

Issues:
Service tax demand on repair and maintenance services provided by the respondent.
Allegation of Business Auxiliary Service on fabrication and installation of steel structures.

Analysis:
1. Service Tax Demand on Repair and Maintenance Services:
The respondent was registered for Business Auxiliary Service and Goods Transport Agency service but was found to have undertaken repair and maintenance jobs without paying service tax. The Assistant Commissioner confirmed a service tax demand against the respondent for the period from 10/09/04 to 31/03/06. However, the Commissioner (Appeals) set aside this demand stating that only repair and maintenance jobs done in terms of contracts were taxable, and the Department failed to prove that the respondent's repair jobs were under contracts. The Tribunal upheld the Commissioner's decision, stating that the repair and maintenance service provided by the respondent did not attract service tax as there was no evidence of contractual agreements for these jobs.

2. Allegation of Business Auxiliary Service on Fabrication and Installation of Steel Structures:
The Department alleged that the fabrication and installation of steel storage tanks, dozers, settlers, structures, platforms, railing, and frames by the respondent constituted Business Auxiliary Service. The Department argued that since these structures became embedded in the earth after installation, they should be considered non-excisable goods, making the entire activity Business Auxiliary Service. However, the Tribunal disagreed with this argument. It examined the definition of Business Auxiliary Service under Section 65(19) of the Finance Act, 1994, and found that the fabrication and installation of steel structures did not fall under any clause of the definition. The Tribunal agreed with the Commissioner (Appeals) that this activity did not qualify as Business Auxiliary Service and, therefore, was not taxable. Consequently, the Tribunal dismissed the Revenue's appeal and disposed of the Cross Objection.

In conclusion, the Tribunal upheld the Commissioner (Appeals) decision, ruling in favor of the respondent on both issues. The repair and maintenance services provided by the respondent were not taxable as they were not done under contractual agreements, and the fabrication and installation of steel structures did not qualify as Business Auxiliary Service under the relevant legal provisions.