2012 (3) TMI 201 - HC - Service Tax

Demand of Service tax as GTA - Transportation of the Transformers - agreement with U.P. Power Corporation Limited for repair and testing of damaged Transformers - respondent has lifted the damaged Transformers by their own Trucks and charged a sum from U.P. Power Corporation on account of maintenance and repair of the old and damaged Transformers. - Held that - respondent has entered into an agreement with the U.P. Power Corporation Limited for repair and maintenance of the damaged Transformers inclusive of loading, unloading, handling and insurance but without lifting the Transformers, repair is not possible and to be considered integral part of the repair - no question for charging the Service Tax as per Section 65(50b) as no services were taken from any third party.

Summary

Issues:
1. Appeal against the order passed by the Customs, Excise & Service Tax Appellate Tribunal.
2. Liability to pay Service Tax on maintenance and repair services.
3. Applicability of penalties under Sections 77 and 78 of the Finance Act, 1994.
4. Interpretation of the term "goods transport agency" under Section 65(50b) of the Finance Act, 1994.
5. Whether transportation charges should be included in the gross value for Service Tax.

Analysis:
1. The appeal was filed against the order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi. The respondent, engaged in maintenance and repair of Transformers, had lifted damaged Transformers and charged a sum for maintenance and repair services. The assessing officer found the respondent liable to pay Service Tax, leading to demands and penalties under the Finance Act, 1994.

2. The First Appellate Authority deleted the Service Tax demand and penalties, a decision upheld by the Tribunal. The department then appealed to the High Court. The counsel for the department argued that transportation charges should be included in the gross value for Service Tax liability, citing Section 64(50b) of the Finance Act, 1994.

3. The High Court noted the growing significance of the service sector in India and analyzed the agreement between the respondent and U.P. Power Corporation for repair and maintenance services. The responsibility for transportation and any damage during transportation was on the contractor. As the respondent used their own truck for transportation without involving a third-party transporter, the Court found no basis for charging Service Tax as per Section 65(50b) of the Finance Act.

4. The Court emphasized that as no consignment note was issued, and no third-party transportation services were utilized, the lifting and re-installation of Transformers were integral to the repair and maintenance services. Since no transportation charges were paid to any third party, the Court concluded that no Service Tax was leviable in this case.

5. Ultimately, the Court upheld the Tribunal's order, stating that transportation of Transformers was an essential part of the repair and maintenance services, especially when not provided by a third party. Therefore, the appeal was dismissed at the admission stage for lacking merit, and the Tribunal's decision was sustained.