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TMI Blog2017 (11) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of consumables utilized. This being so, the beneficial provisions of N/N. 12/2003-CE will then be applicable to the appellant - decided in favor of appellant. Appeal allowed - decided in favor of appellant. - ST/215, 216/2010 - Final Order No.42503-42504/2017 - Dated:- 31-10-2017 - Ms. Sulekha Beevi C.S. Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri A. R. Madhav Rao, Advocate Shri Krishna Rao, Advocate For the Appellant Shri K. P. Muralidharan, AC (AR) For the Respondent ORDER Per: Bench The appellants were engaged in producing electricity for M/s.Madurai Power Corporation Private Ltd. under Operation and Maintenance Agreement . In terms of the said agreement, 75% of the consideration received by the appellant from the said company is apportioned as towards operation of the power plant and the reminder 25% as towards consideration for repairs and maintenance of the power plant. Appellant further divided the entire work into following categories segregating repairs and maintenance work and the operation activity and paid service tax as follows : a) Operation Service No Service tax is paid. b) Maintenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consumables so utilized and was therefore hit by the bar in that respect provided under Notification No.12/2003-CE. However in the present matter, appellants had not availed any such cenvat credit on the consumables utilized and hence value thereof would not be added to taxable value of the maintenance services provided. Ld. Advocate also placed reliance on the ratio of the Hon ble Apex Court judgment in the case of Safety Retreading Tyres Vs CCE Salem - 2017 (48) STR 9 (SC). 3. On the other hand, Ld. A.R Shri K.P. Muralidharan supports the impugned order. 4. Heard both sides and have gone through the facts. We find that the facts in relation to operational activities performed by the appellant under the Operation and Maintenance Agreement entered into by them with Madurai Power Corporation are identical to the facts in the earlier decision of this Tribunal in RE: Shapoorji Pallonji Infrastructure Capital Company Ltd. [Final Order No.40744-40752/2017 dt. 23.05.2017] relied upon by the Ld. Advocate. Para-10 of that decision will have relevance to this case and is therefore reproduced below : 10. The next issue to be addressed is the taxability of operation char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.06.2005. The said word in seen used in the definition of Business Support Services (Operational assistance). Thus it is very much clear that management of immovable property does not include operation activities. In addition, it cannot be said that the appellants are doing management service for the reason that the management service is done by appellants to themselves and not to any other person. The appellants are operating the power plant to generate electricity on behalf of the owner for supplying the same to TNEB. 10.2 In arriving at this conclusion, we also draw sustenance from the decisions of this Tribunal as follows:- (a) CMS (I) Operations Maintenance Co. P. Ltd. Vs. Commissioner of Central Excise, Pondicherry - 2007 (7) STR 369 (Tri. Chennai). Paragraphs 30 and 31 are reproduced as follows:- 30. In the impugned order the Commissioner had rendered a finding that the facility was run by entering into contracts with different organizations such as CMS who had contracted to undertake the operation and maintenance of the facility. He found that though CMS was operating the facility for generating electricity, the entire activity was carried on by CMS o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing any consulting or engineering help to the owner. The operator is fully autonomous and responsible for the performance of operation and maintenance. Whatever engineering issues are involved, it is for the operator to find solutions for, and attend to in the course of operation and maintenance. He is not required to render any advice or to take any orders 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 advise and the other accepting it. Service tax is attracted only in a case involving rendering of service, in this case, engineering consultancy. That situation does not take place in the present case. Therefore, we are of the opinion that the duty demand raised is not sustainable. The learned SDR's contention about the 46th Amendment and the Apex Court's decision in Builders Association of India and Others (supra) have no application in the present case since such a deemed definition does not exist in the case of job work as has taken place in regard to project contracts in sales tax. In these facts and circumstances, the appeal is allowed after setting aside the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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