2016 (11) TMI 645 - AT - Service Tax

Taxability - Operation and maintenance of power plant - Held that - reliance placed in the decision of the case CMS Operation and Maintenance Co. Pvt Ltd. Vs. CCE 2007 (5) TMI 74 - CESTAT, CHENNAI where it was held that Charges for operation of plant is not liable to service tax under the head of Management, Maintenance or Repair Service - activity of operation of plant does not fall under category of taxable service in the head of management, maintenance and repair service. The agreement of operation of plant is neither involved in any management of either plant or maintenance or repair. Entire plant was taken over by the appellant for operation. Therefore the same does not fall under Management, Maintenance or Repair service - Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Taxability of operation charges under Management, Maintenance, or Repair Service.
2. Distinction between operation and maintenance services.
3. Applicability of previous judgments and legal precedents.
4. Classification of services under Business Auxiliary Service or Management, Maintenance, or Repair Service.
5. Refund eligibility for service tax paid under mistake of law.

Issue-wise Detailed Analysis:

1. Taxability of Operation Charges under Management, Maintenance, or Repair Service:
The appellant entered into an agreement with M/s. Gujarat Paguthan Energy Corporation Ltd. (GPEC) for the operation and maintenance of a power plant. The consideration was divided into 55% for operation and 45% for maintenance. The appellant paid service tax on maintenance charges but not on operation charges. The adjudicating authority demanded service tax on operation charges under Management, Maintenance, or Repair Service, leading to this appeal.

2. Distinction Between Operation and Maintenance Services:
The appellant argued that the operation of the plant does not fall under Management, Maintenance, or Repair Service, citing various judgments. The tribunal noted that the appellant had two separate agreements: one for operation and one for maintenance. The appellant had already paid service tax on maintenance. The tribunal found that operation charges do not fall under Management, Maintenance, or Repair Service, as established by previous judgments.

3. Applicability of Previous Judgments and Legal Precedents:
The appellant relied on several judgments, including:
- CMS Operation and Maintenance Co. Pvt Ltd. vs. CCE: The tribunal held that the operation of a plant is not taxable under Management, Maintenance, or Repair Service.
- Rolls Royce Industrial Power (I) Ltd vs. CCE: The tribunal ruled that a contract for operating and maintaining a plant is not a consultancy contract and cannot be vivisected for tax purposes.
- Basti Sugar Mills Co. Ltd vs. CCE: The tribunal found that the operation of a factory does not constitute management consultancy.
- Global S.S. Construction Pvt Ltd: The tribunal concluded that operating a plant does not fall under Management, Maintenance, or Repair Service.
- Polydrill Engineers Pvt Ltd: The tribunal held that operation services are not taxable under Management, Maintenance, or Repair Service.
- Evonik Energy Services: The tribunal ruled that operating a power plant does not constitute Management, Maintenance, or Repair Service and allowed a refund of service tax paid under mistake of law.

4. Classification of Services under Business Auxiliary Service or Management, Maintenance, or Repair Service:
The tribunal examined whether the services provided by the appellant could be classified under Business Auxiliary Service or Management, Maintenance, or Repair Service. The tribunal found that operation services do not fall under Management, Maintenance, or Repair Service. The tribunal also noted that the scope of Business Support Service was enlarged to include operational assistance from 01-05-2011, but this does not apply to the period in question.

5. Refund Eligibility for Service Tax Paid Under Mistake of Law:
In the case of Evonik Energy Services, the tribunal upheld the refund of service tax paid under mistake of law, finding that the operation of a power plant does not constitute Management, Maintenance, or Repair Service. The tribunal emphasized that reclassification of services in a refund claim is not appropriate without issuing a show-cause notice.

Conclusion:
The tribunal concluded that the operation of the plant does not fall under Management, Maintenance, or Repair Service. The appellant's appeal was allowed, and the impugned order was set aside. The tribunal also disposed of the Revenue's cross-objections. The tribunal's decision was based on established legal precedents and a detailed analysis of the agreements and services involved.

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