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TMI Blog2018 (1) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... r only for reconsideration of certain deductions, ignoring various other provisions like the amount of service tax paid on the value of transportation of goods included for demanding the tax; no liability of tax on the value for service not received; payment of service tax on such value on receipt; taxability of testing/value of damaged parts/scrap; job-work done under Rule 4(5)(a) of CCR, 2004 etc.? (ii) Whether the CESTAT was justified in restricting the remand to adjudicating authority in the above manner, without assigning any reasons for not considering the various other deductions as contended in the Grounds of Appeal from Ground 'D' to 'I', in a case where, if all the aforesaid deductions/contentions are considered no demand would sustain and it would be clear that the Appellants have correctly paid service tax?" 3. As far as the third question is concerned, it is common ground that in para 6.6 of the order under Appeal, the issue of limitation has been discussed by a cryptic finding. Though that appears to be incomplete, with the assistance of Mr. Patil and Ms.Cardozo, we have perused the relevant materials. The tribunal has taken a view of the issue of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or repair work. The maintenance or repair service was made taxable with effect from 1st July, 2003 and the scope of the said service was defined in the Finance Act, 1994. The appellant states that they had a doubt whether the repairing work carried out in respect of the transformers not manufactured by them would be covered by the expression "Maintenance or Repair Service" as it was not done under any repairing contract, but under a rate contract. Hence, various letters were sent to the department and finally, what they were visited with is a communication dated 24th February, 2004 and 25th August, 2004 asking them to pay service tax under "Maintenance or Repair Service" without clarifying as to why and how an activity carried out other than under annual maintenance contract would be taxable. 6. The appellant was proceeded against, but there was an objection raised by the audit team, to which also a reply was given by the appellant-assessee. Then, without prejudice to its contentions, the appellant started paying service tax under protest with effect from 21st September, 2004 for the period 1st July, 2003 to 15th June, 2005 under intimation to the department. 7. As far as the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, namely, taxability of maintenance and repair services undertaken by the appellant in a situation wherein they undertake repairs of electrical transformers manufactured by other manufacturers and installed by various State Electricity Boards, under repairing contracts. The rival contentions, including the definitions were noted and the tribunal, supported by its earlier view, held that prior to 15th June, 2005, no service tax liability arises on the activity of the appellant on repairs undertaken of transformers received by them from various State Electricity Boards. Then, the activity of repairs post 15th June, 2005 was dealt with and the contention based thereon was dealt with in the following manner:- "6.5 As regards the activity of repairs post 15.6.2005, we find that the activity as per the definition (reproduced herein above) will cover the services rendered and the appellant herein is liable to discharge the service tax liability. The submission of the learned Counsel that they had discharged the service tax liability but the tax liability in the show-cause notice needs re-quantification, as the demand is also on the materials consumed for such repairing activity. Casual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills/invoices without taking into consideration Rule 6 of the Service Tax Rules, 1994 is not sustainable. 10. Finally, Mr. Patil would argue that the service Tax already paid has not been adjusted. There are various contentions, according to Mr. Patil, raised for testing charges, value representing damaged parts, coils, scrap arisen during the course of repair of goods, which are retained by the assessee by giving credit of the same to the customers. On erection, commissioning and installation, service tax has already been paid under that head. Hence, no service tax can be payable again under the "Maintenance or Repair Service". These are the contentions which have not been considered and yet a remand is directed. 11. On the other hand, Ms. Cardozo would support the findings, which we have reproduced above. She would submit that the order of remand and for a limited purpose raises no substantial questions of law and therefore, we should not admit this appeal. 12. We have noted the contentions of both sides. Any expression of opinion would prejudice the case of both sides. Therefore, we do not wish to say anything, but only invite the attention of the tribunal to the detailed arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. Mr. Patil says that all the relevant and necessary materials in relation to this plea are before the tribunal. Nothing in addition thereto is required to be placed on record. The assessee would rely on those very materials, which were before the adjudicating authority and forming part of the paper book or records before the tribunal and nothing more. On these materials itself, the assessee would be able to convince the tribunal that the segregation or requantification, as prayed should be made. If this is how the matter is understood by the assessee, then, we see no justification for remanding the matter to the adjudicating authority. 15. We allow this appeal to the limited extent. We set aside that part of the order, which we have reproduced above i.e. para 6.5 and the ultimate direction in para 6.7 with regard to liability of the appellant to pay service tax post 15th June, 2005 and direct that even if the said service attracts tax and which is admissible and payable, its computation be done afresh in accordance with law. The tribunal should note all the contentions canvased before it insofar as this plea is concerned and by referring to the grounds in the memo of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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