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TMI Blog2013 (4) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... w of provisions of Section 80 no penalty u/s 76 or 78 ought to be imposed. Thus the order in Appeal is quashed and the adjudication order is restored but modified to the extent. Appeal is allowed - Appeal No.498 of 2008 - Final Order No. ST/A/56071/2013-CU(DB) - Dated:- 11-4-2013 - Mr. Justice G.Raghuram and Mr. Sahab Singh For the Appellant: Shri Amresh Jain, A.R. For the Respondent: Shri S.P. Ojha, Consultant JUDGEMENT Per Justice G. Raghuram: Heard the ld. Departmental Representative for the appellant-Revenue and the ld. Consultant for the respondent-assessee. 2. This Revenue s appeal is preferred against the Order in Appeal dated 25.3.2008 passed by Commissioner (Appeals), Central Excise, Allahabad whereby the assessee s appeal was allowed. The appellate authority held that prior to 16.6.2005 for Maintenance or Repair if under a maintenance contract/agreement only would come under the purview of service tax; that the assessee had provided repair services under a rate contract, in respect of repair of old transformers which was not pursuant to a maintenance contract or an agreement, there was no liability to service tax under Section 65(64) and 73 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service tax is not attracted on repairing charges for the period prior to 16.6.2005. The appellate authority also placed reliance on decisions of this Tribunal in Uni Power System Ltd. vs. C.C.E., Cochin 2007 (7) STR 590 (Tri-Bang.); Commissioner of Central Excise, Jaipur II vs. Dusad Transformers Switchgears (P) Limited 2007 (5) STR 37 (Tri-Del.); and of the Bangalore Bench of this Tribunal in Cochin Shipyards Ltd. vs. C.C.E. 2007 (7) STR 291 (Tri-Bang.). The appeal was allowed and the adjudication order as reversed in its entirety. 5. Ld. Consultant for the respondent asssessee reiterates the judgments in Dusa Transformers Switchgears (P) Limited; Uni Power System Ltd. vs. C.C.E., Cochin; and Cochin Shipyards Ltd. vs. C.C.E. (already referred to), to contend that the assessee is immune to liability to service tax, on a true and fair interpretation of the provisions of Section 65(105)(zzg) read with Section 65(64) of the Finance Act, 1994. 6. Ld. D.R. on the other hand refers to the decision of this Bench of CESTAT in Stallion Rubbers Ltd. vs. C.C.E., Jaipur I 2011 (23) STR 380 (Tri-Del.) wherein the aforesaid decisions were distinguished to conclude that a written agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions, since under Article 265 of the Constitution, it is a legislation that provides legitimacy to a charge of tax. Consideration and construction of the appropriate legislation, in the light of applicable principles of statutory construction is thus a non-derogable obligation in the interpretation of any fiscal legislation. We find no such exertion in the appellate order nor in the judgments of this Tribunal in Dusa Transformers Switchgears (I) Ltd. or Unipower System Ltd. , while there is such analysis in Stallion Rubbers Ltd. Be that as it may. 12. We will now consider the relevant provisions of the Act. Section 65(105)(zzg) as it stood at the relevant point of time i.e July 2003 to July 2004 reads as under: Taxable service means any service provided to a customer by any person in relation to maintenance or repair. Section 65(64) of the Act (to the extent relevant and material for this appeal), defines the expression maintenance or repair (at the relevant time) to mean any service provided (i) by any person under contract or an agreement ; or (ii) a manufacturer or any person authorized by him in relation to; maintenance or repair including reconditioning on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are satisfied that invocation of the extended period of limitation, in the facts and circumstances of the case is justified and valid. 16. Where an assessee interprets provisions of a taxing legislation, which it may do, it takes the risk of gross misinterpretation of its liability as well. A true and fair construction of the relevant statutory provisions leave no doubt of the trajectory of the charging provisions, namely that where a manufacturer or any person authorized by such manufacturer undertakes repair of any goods (excluding a motor vehicle) in the nature of maintenance or repairs services, such activity is exigible to service tax. We also note that the Board s Circular dated 27.7.2005 (as referred to in Dusa Transformers Switchgears (I) Ltd.) is a TRU clarification. In para 16.4 the clarification suggests that prior to 16.6.2005, maintenance or repair carried out under a maintenance contract or agreement was alone covered under service tax. No authority has placed before us to contend that the clarification by TRU dated 27.07.2005 is binding. The TRU clarification, as set out in paragraph 16.4 thereof proceeds on only a partial analysis of Section 65(64) of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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