2019 (6) TMI 211

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..... he main activity relates to Operation, and Maintenance and Repair in process of Operation, demand cannot be sustained under the category of Maintenance, Management and Repair service. Moreover, the appellant has also claimed benefit of limitation - Tribunal has also held that in the peculiar facts and circumstances of the case, the view harbored by the appellant may be bonafide. Thus extended period of limitation cannot be invoked. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 321 of 2010 - A/10948/2019 - Dated:- 3-6-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Shri V Sridharan Senior Advocate with Shri Jigar Shah, Adv. for the Appellant .....

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..... t from 16.06.2005, after the amendment to the definition of Maintenance and Repair by inclusion of word Management in the definition, they started paying servicer tax even on these contracts which are pure operation contract. He pointed out that certain clients place both Operating Contract as well as AMC, others place only AMC contract and operate the air conditioning at their own while some clients give only operation contract and not AMC. He argued that both the lower authorities have grossly erred in interpreting the contracts dated 27.04.2004 which requires the appellant to carry out day to day operation of the AC Plant, cleaning of filters, pot-strainer, nozzles, cleaning of entire equipments on regular basis as required. He argue .....

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..... 6. We have gone through the rival submissions. We find that appellants are engaged in the Operation of plant and Maintenance and Repair is part of the said contract. The primary nature of the service is of Operation, and Maintenance and Repair is incidental to the provision of the service of Operation. In this circumstance, the decision of the Tribunal in the case of Shiv Shakti Electricals (supra) becomes relevant wherein in Para 6 following has observed:- 6. So far as the second issue, as regards taxability of operation and maintenance of chlorination plant is concerned, we find that the primary activity between the parties is of operation of chlorination plant. The maintenance of the said plan .....

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