9911796707
TMI Blog2011 (1) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement (Operation and Maintenance agreement) with M/s. Mukand Limited, was operating a Power Plant owned by the latter and supplying electricity to them against payment of a fee during the period of dispute. The fee, called O & M fee, was Rs. 7.5 lakhs per month which consisted of operation fee (about 80%) and maintenance fee (about 20%), which were separately collected from M/s. Mukand Limited under separate invoices issued from month to month. The appellant paid service tax under the aforesaid head on the maintenance fee and did not pay the tax on operation fee. (They are paying service tax on operation fee also after the period of dispute). In a show-cause notice issued on 28-8-2007, the department demanded service tax on operation fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Samalpatti Operating Pvt.Ltd. v. Commr. of S.T., Chennai [2009 (14) S.T.R. 383 (Tri.-Chennai)] etc. The ld. counsel has also submitted that the adjudicating authority did not consider the above case law cited by the appellant. He has also raised the plea of limitation against the demand of service tax. 3. The ld. JCDR has made an endeavour to distinguish the present case from that of CMS (I) Operations & Maintenance Co. P. Ltd.'s case (supra). It is his submission that operation of the power plant was part of management of immovable property and, therefore, the operation fee collected by the appellant would also be chargeable to service tax under the head "Management, Maintenance or Repair services". In this connection, he has refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed by different benches of the tribunal in cases involving facts similar to the facts of the present case. For instance, in the case of Operational Energy Group India Pvt. Ltd. (supra), waiver of pre-deposit and stay of recovery were granted after holding that the operation of power plant could not come under the definition of "management of immovable property". A view to the same effect was taken in the case of Covanta Samalpatti Operating P. Ltd. also. On a perusal of the facts of the said cases, we have noted striking resemblance with the facts of the instant case and, therefore, we are inclined to follow the above precedent. The arguments made before us revolve around the term "management" appearing in the definition "maintenance or r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
