2007 (11) TMI 141

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..... – assessee’s appeal allowed
Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T) [Order per: T.K. Jayaraman, Member (T)].-1. These appeals have been filed against Order-in-Appeal Nos.2/2007 & 5/2007 dated 19-1-2007 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals) Visakhapatnam. 2. The appellants were providing Operating and Maintenance service to 235 MW Combined Power Plant developed and owned by GVK Industries Ltd. at Jegurupadu. Revenue proceeded against the appellant on the ground that they were rendering 'Consulting Engineer' service to M/s. GVK Industries. Therefore show cause notice was issued for demanding the service tax for the period from 7-7-97 to 31-3-97. Penal proceedings we .....

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..... the ground that the appellants rendered the services of 'Consulting Engineering Service.' The appellants submitted that the Operation and Maintenance of Power Plant by the appellant can in no way be treated as 'Consulting Engineering Services.' It was argued that the issue is no longer res integra and on identical fact the Tribunal has clinched the issue in the case of M/s. Rolls Royce Industries Power (I) Ltd. v. CCE, 2006 (3) S.T.R. 292 = 2004 (171) E.L.T. 189. It was submitted that the facts of the present case are identical. Further the Rolls Royce Industries Power (I) Ltd. case was followed by the Chennai Bench of CESTAT in the case of CMS (I) Operations & Maintenance Co. P. Ltd. v. CCE, Pondicherry in its Final Order .....

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..... ders from the owner. He cannot pass on the responsibility for operating the plant in any manner to the owner. Thus, there are no two parties, one giving advice and the other accepting it. Service tax is attracted only in a case involving rendering of service, in this case, engineering consultancy." 8. We find that the present case is also squarely covered by the ratio of the above decision. The Commissioner Appeals has not discussed why M/s. Rolls Royce Industries Power (I) Ltd., decision is not applicable to the present case. It is also further seen that the Commissioner (Appeals) has actually remanded the matter to the Original Authority to find out the value of the services in the entire contract relating to consultancy and to reco .....

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