2008 (5) TMI 159 - AT - Service Tax

Appellants providing maintenance and repair of Transformers under rate contract with various Electricity Boards - Agreement is regarding rate contract for repair of damaged transformer not for maintenance of transformer since there was no maintenance contract hence not covered under the purview of service tax under head Maintenance/Repair service since OIA has been upheld by tribunal where demand was set aside, commissioner is not justified in enhancing penalty in revision order

Summary

Issues:
1. Tax demand and penalty imposition under Sections 76, 77, and 78 of the Finance Act, 1994 for maintenance and repair services provided under a rate contract with Electricity Boards/Corporations.
2. Revision of Adjudication Order by the Commissioner of Central Excise under Section 84 of the Act imposing a penalty of Rs. 100/- per day under Section 76.
3. Appeal by the Revenue against the Order-in-Appeal dated 10-2-2006, dismissed by the Tribunal in Final Order No. ST/10-14/08 dated 16-1-08.

Analysis:
1. The case involved a dispute over the imposition of tax and penalties for maintenance and repair services provided under a rate contract with Electricity Boards/Corporations. The Adjudicating Authority had confirmed a tax demand and penalties under Sections 76, 77, and 78 of the Finance Act, 1994. However, the Commissioner (Appeals) set aside this decision, which was further upheld by the Tribunal in a Final Order dated 16-1-2008. The Tribunal's decision was based on the absence of a maintenance contract in the agreement, as highlighted in a Circular issued by the CBEC. The Tribunal concluded that services provided under a repair contract, where no maintenance agreement existed, were not subject to service tax prior to 16-6-05.

2. Subsequently, the Commissioner of Central Excise revised the Adjudication Order under Section 84 of the Act, imposing a penalty of Rs. 100/- per day under Section 76. The Tribunal found this revised penalty imposition unsustainable, considering the previous decisions setting aside the tax demand and penalties. Therefore, the Tribunal set aside the Commissioner's order, allowing the appeal filed by the appellants with consequential relief.

3. The Revenue had filed an appeal before the Tribunal against the Order-in-Appeal dated 10-2-2006. The Tribunal, in its Final Order No. ST/10-14/08 dated 16-1-08, dismissed the Revenue's appeal based on the absence of a maintenance contract in the agreement and the Circular issued by the CBEC. The Tribunal's decision highlighted that services provided under a repair contract without a maintenance agreement were not subject to service tax prior to 16-6-05. As a result, the Tribunal upheld the decision of the Commissioner (Appeals) setting aside the tax demand and penalties, leading to the subsequent setting aside of the revised penalty imposed by the Commissioner of Central Excise.