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TMI Blog2018 (2) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction of electricity is manufacture of goods and that contracts cannot be vivisected and amounts are not received for maintenance and repair but for running of power plant effectively. Held that: - the amounts which are received by the appellant as consideration, are for running of the power plant and not only for maintenance and repair charges. The agreement is for operation of power plant for 24 x 7 in pursuance of such agreement, appellant prepares a detailed plan as to how to conduct maintenance of the power plant, repairs of various machinery and submits the plan to the power plant owners, in order to, give them advance intimation of the planned shutdown of the power plant - this maintenance under taken by the appellant is in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g appeals are disposed of: S.NO. APPEAL No. APPELLANT RESPONDENT OIO/OIA No. PERIOD 1. ST/2572/2012 GVK Power & Infrastructure Ltd., CCE & C- Visakhapatnam-ii 44/2012(RS) Dated 07/06/2012. Nov.2010 to Jun.2011 2. ST/25738/2013 GVK Energy Ltd., CCE & C- Visakhapatnam-ii 73/2012 (BVSNK) Dated 30/11/2012. Jul.2011 to Mar.2012 3. ST/21100/2014 GVK Energy Ltd., CCE & C- Visakhapatnam-ii 37/2013 (BVSNK) Dated 26/11/2013 Apr.2012 to Mar. 2013 4. ST/30974/2016 GVK Energy Ltd., CCE & C- Visakhapatnam-ii VIZ-EXCUS-002-COM-10/16-17 Dated 25/07/2016 Apr.2013 to Mar.2014 5. ST/25740/2013 GVK Power & Infrastructure Ltd., CCE & C- Visakhapatnam-ii 41/2008 Dated 4/9/08 1/7/2003 to 15/6/2005 & 16/6/2005 to 30/9/07 6. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Show Cause Notice on merits on the ground that the activity under taken by them amounts to manufacturing of electricity since ultimate outcome of the activity is production of the electricity which is amounting production of goods, no service tax liability arises the amounts received by them are for generation of electricity and not for maintenance or repair activities of the power plant. The said arguments of the appellant were not accepted by the lower authorities, the demands were confirmed along with interest and imposed penalties. 5. Ld. Counsel appearing for all the appellants draws our attention to the facts of the case. It is the submission that the agreement entered with GVK Industries the owner of power plants, is for operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He would submit that amount received of as consideration is of maintenance or repair services, the issue is clarified by CBEC in circular, dated 19.06.2006, which relied upon the larger Bench in the case of BSBK Pvt Ltd., 2010(253) E.L.T. 522 (Tri.-LB) for submission that the contract entered by the appellant can be vivisected and tax under various separate services. He would rely on the decision of Hon'ble Andhra Pradesh High Court in the case of the Nagarjuna Construction Company Ltd., V/s Government of India 2010 (19) S.T.R. 321 (A.P.) for the submission, that works contract service Composition Scheme can be entitled only if there is ore and option is exercised option is exercised as per Rules. It is the submission that the contract ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for operation of power plant for 24 x 7 in pursuance of such agreement, appellant prepares a detailed plan as to how to conduct maintenance of the power plant, repairs of various machinery and submits the plan to the power plant owners, in order to, give them advance intimation of the planned shutdown of the power plant. We find that this maintenance under taken by the appellant is in order to keep the power plant in the working conditions; there is no interruption in power generation and transmission to the power grid. Similar issue came up before this Bench in the case CLP Power India Ltd., wherein the Bench after referring to various case laws and producing excerpts from them, concluded operation of power plant is not taxable under m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es pre and post 1.06.2007 The said decision applies in its full force in this case in favour appellant. As regards the reliance placed by the Ld. Commissioner (AR) on the judgment of the Tribunal in the case of the Shapoorji Pallonji Infrastructure Capital Company Ltd., (541), (Hon'ble Shri Madhu Mohan Damodhar was a Member of Bench which passed the said order) has recorded a clear finding that the power produce agreement entered by the Tamil Nadu Electricity Board and Samalpatti Power Company was for the purchase power and Samalpatti Power Company was extended the right to enter into contract of operation maintenance and power and plant with any person with experience in such activity. In pursuance to such agreement, Samalpatti Power Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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