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TMI Blog2013 (2) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... urther incidental reimbursable expense, which the assessee had incurred as a “Pure Agent” need not be included in the taxable value as per Rule 5(2) of the Service Tax (Determination of Value) Rules, 2006. Thus the tax already paid by the appellant is in order. – In favour of assessee. Maintenance & Repair Service – Whether ‘Operation & Maintenance’ Charges collected from the lessee are chargeable to Service tax under “Maintenance & Repair Service” – Assesse not paid any Service tax on ‘Operation & Maintenance charges under ‘Maintenance & Repair Services’ from 16-6-2005 to 31-5-2007 – Held that:- Assessee started paying Service tax from 1-6-2007 onwards on the “Operation & Maintenance Charges”, the day ‘Renting of Immovable Property Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Immovable Property Services from June 2005 to January 2007 and also not paid any Service tax on Operation Maintenance charges under Maintenance Repair Services from 16-6-2005 to 31-5-2007. The above facts came to the notice of the Department only during the course of scrutiny of records made by the Officers of the SIV Cell of the Chennai Service Tax Commissionerate. The appellant had neither intimated the Department nor indicated the same in their ST-3 Returns. Hence, it appeared that the appellant had suppressed the facts with intent to evade payment of Service tax. 3. Hence a Show Cause Notice proposing to demand of Rs. 25,31,822/- being the Service tax and Ed. Cess under proviso to Section 73(1) of the Finance Act, 1994 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is submitted that as the entire amount is collected as lease rent the same cannot be bifurcated for the sake of levy of Service tax under the Management, Maintenance or Repair Service. (vi) To support his contention, the appellant relied on the following decisions :- (a) Malabar Management Services v. Commr. of Service Tax - 2008 (9) S.T.R. 483. (b) CCE v. Ashok ARC - 2005 (179) E.L.T. 513. (c) Laghu Udyog Bharathi v. UOI - (1999) 105 Taxmann 630 = 2006 (2) S.T.R. 276 (S.C.) = 1999 (112) E.L.T. 365 (S.C.) and Keery Behari Lal v. State of HP - AIR 2000 SC 1069. (d) Mafatlal Industries Ltd. v. UOI - 1997 (89) E.L.T. 247. (e) Minakshi Castings Inder Steels Pvt. Ltd. v. CCE - (1999) 32 RLT 82 = 1999 (112) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Plaza Maintenance Services Ltd. v. Commr. of Service Tax, Chennai reported in 2011 (21) S.T.R. 527 (Tri. - Chennai) and according to which no Service tax is leviable on the supply of electricity which is goods and not Service . 6. I have carefully gone through the case records and the oral as well as written submissions. The issues to be decided are whether :- (i) the Electricity Charges and Air conditioning charges collected from the lessee viz., Bio-Tech Industries by the appellant are included in the taxable value of Renting of Immovable Property Service, and (ii) Operation Maintenance Charges collected from the lessee are chargeable to Service tax under Maintenance Repair Service . 6.1 Let me take up the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esides the land cost is treated as interest free loan. The Government of India organizations namely, CLRI, HLL lifecare Ltd., National Biodiversity Authority, etc. have occupied space in Bio park. Under the circumstances, TICEL Bio Park is acting as a pure agent on behalf of Government of Tamil Nadu for the development of Research and Development in Biotechnology sector especially in Healthcare, Agri-biotech, Biopharmaceutical, environmental, etc. 6.3 The appellant also stated that they had provided individual electricity meter for each module in the tenancy area for every tenant and maintains complete record of electricity consumption for every month. They collect electricity charges based on the actual consumption at the tariff fixed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to Service tax under Maintenance Repair Service : 6.4 I find that the principal service i.e. Renting of Immovable Property Service became taxable only from 1-6-2007. I also find that the appellant started paying Service tax from 1-6-2007 onwards on the Operation Maintenance Charges , the day Renting of Immovable Property Service became taxable. However, I find that the demand for payment of Service tax on the amount collected as Operation Maintenance Charges under the heading Management, Maintenance and Repair Service was made with effect from 16-6-2005 to 31-5-2007 i.e. before the principal service became taxable, which seems to be irrational. It was also noticed that the Show Cause Notice in this regard was dated 23- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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