2018 (9) TMI 187 - AT - Service Tax

Classification of Services - activities of restoration and painting of cylinders and affixing logo on cylinders - Technical Testing and Analysis Services or maintenance and repair service? - whether the activity undertaken by the appellants amounted to maintenance and repair service during the period 1.7.2003 to 31.3.2005? Held that - Going by the activity undertaken by the appellants as per the tender agreement, it is seen that he cannot be said to be any person under a maintenance contract or agreement. Moreover, he is not a manufacturer of cylinders or he is not any person authorized by a manufacturer. It is not understood as to how the Revenue felt that the services undertaken by the appellants are covered under Maintenance or Repair Service during the relevant period - the Department of Explosives have categorically declined permission for hot repairs of LPG cylinders as he was not a manufacturer. Therefore, the appellants cannot be held to be undertaking the services chargeable under Maintenance and Repair Service as an agent of manufacture also. The issue is no longer res integra as it was held by the Tribunal in the case of Harshitha Handling vs. CCE 2010 (4) TMI 122 - CESTAT, NEW DELHI that the appellants are undertaking periodical test and upkeeping of cylinders in terms of Indian Explosives Act, 1884. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the activities of restoration and painting of LPG cylinders are liable for service tax under the heading 'Maintenance and Repair Service'?
2. Whether the appellants are covered under the definition of 'Maintenance or Repair Service' as per Section 65(64) of the Finance Act, 1994?
3. Whether the order confirming the demands for service tax based on new grounds and chargability under a different category of service is valid?
4. Whether the appellants are eligible for CENVAT credit on materials used and exemption under Notification No.12/2003?
5. Whether the show-cause notices are sustainable and within the limitation period?

Analysis:
1. The Commissioner issued show-cause notices demanding service tax on restoration and painting activities of LPG cylinders under 'Maintenance and Repair Service.' The appellant argued that painting is a works contract and works contract services were made liable to service tax only from 1.6.2007. They contended that the heading 'Maintenance or Repair Services' during the relevant period did not include restoration of goods. The appellant relied on various decisions to support their claim that the activities undertaken do not fall under the category of maintenance or repair services.

2. The Tribunal analyzed whether the appellants fell under the definition of 'Maintenance or Repair Service' as per Section 65(64) of the Finance Act, 1994. It was observed that the appellants were not covered under the clause pertaining to a manufacturer or authorized person for maintenance or repair of goods. The Department of Explosives had denied permission for hot repairs of LPG cylinders as the appellants were not manufacturers. The Tribunal found that the appellants' activities were more aligned with maintaining safety standards rather than repair or maintenance services, as per the terms of the tender agreement.

3. The Tribunal examined the validity of the order confirming demands for service tax based on new grounds and chargability under a different category of service. The appellant argued that the order went beyond the scope of the original show-cause notice. They cited relevant case laws to support their contention that the order was not in line with established legal principles.

4. The eligibility of the appellants for CENVAT credit on materials used and exemption under Notification No.12/2003 was also considered. The appellant claimed entitlement to CENVAT credit and exemption, highlighting that some invoices were added twice. The Tribunal reviewed the appellant's submissions and the relevant legal provisions to determine the applicability of CENVAT credit and exemptions.

5. Lastly, the Tribunal assessed the sustainability of the show-cause notices and whether they were within the limitation period. The appellant argued that the notices were based on assumptions and were time-barred. The Tribunal examined the legal aspects raised by the appellant and referred to relevant case laws to evaluate the validity of the show-cause notices. Ultimately, the Tribunal allowed the appeal with consequential relief, if any, based on the analysis and findings presented.