2009 (3) TMI 103 - AT - Service Tax

Appellant was undertaking the activities of reconditioning of the old and used cylinders supplied by the Oil companies as per repair contract. Vide show cause notice dated 30.6.04 tax was demanded for the period 1.7.03 to 31.3.04 amounting to Rs.2, 30, 264/-holding that the activities undertaken by the appellant would come within the purview of service tax under the category of maintenance or repair . The original authority confirmed the demand of tax and also imposed penalty along with interest. Commissioner (Appeals) upheld the adjudication order held that that on 16.6.05 the definition of maintenance/repair service was amended. Accordingly the demand of tax on repair job prior to 16.6.05 is not maintainable. Hence the impugned order is set aside. The appeal is allowed with consequential relief.

Summary

Issues:
- Tax liability on repair activities under service tax category of "maintenance or repair"
- Interpretation of maintenance contract versus repair contract

Analysis:

The case involved the appellant engaged in manufacturing LPG cylinders and undertaking the repair of old and used cylinders supplied by oil companies. A show cause notice was issued demanding tax for the period 1.7.03 to 31.3.04, alleging that the repair activities fell under the purview of service tax for "maintenance or repair." The original authority upheld the tax demand, and the Commissioner (Appeals) affirmed the decision.

The appellant argued that the activities performed were repair services, not maintenance, as per the agreements with oil companies. They highlighted the distinction between maintenance and repair, emphasizing that the repair work undertaken did not fall under the definition of maintenance. The appellant cited a Tribunal decision supporting their interpretation.

The respondent, on the other hand, contended that the appellant's activities amounted to maintenance based on the terms of the contract, which specified the repair and return of a certain number of cylinders, indicating maintenance work.

Upon review, the Tribunal analyzed the contract between the appellant and the oil company, which clearly outlined the repair work to be performed by the appellant. The Tribunal referenced a previous case to distinguish between maintenance and repair, emphasizing that maintenance involves preventive actions, while repair occurs after a failure. The Tribunal noted that the amendment to the definition of maintenance/repair service on 16.6.05 impacted the tax liability, making the demand for tax on repair activities before this date unsustainable.

Consequently, the Tribunal set aside the tax demand, ruling in favor of the appellant due to the distinction between maintenance and repair services and the impact of the legislative amendment on tax liability. The appeal was allowed with consequential relief, providing a favorable outcome for the appellant regarding the tax assessment on repair activities.