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TMI Blog2023 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... d as prima facie classifiable under the category of Management, Maintenance or Repair Services. Finally, it has been concluded that the Appellant is liable for payment of service tax under the category of Management, Maintenance or Repair Service. Thus, it Is observed that the finding in the impugned order is not very specific about the classification of the service rendered by the Appellant - it is also observed that the Show Cause Notice is very vague as there is no separate bifurcation under the three categories of service and there is no finding in the Order-in-Original as to how the value of services are taxable under the category of Management, Maintenance or Repair Service , Commercial or Industrial Constriction Service and Cleaning Service . The work of Fabrication undertaken by the Appellant amounts to Manufacture as held by the Larger Bench of the Tribunal in the case of MAHINDRA MAHINDRA LTD. VERSUS CCE., AURANGABAD, CHANDIGARH, KANPUR CHENNAI [ 2005 (11) TMI 103 - CESTAT, NEW DELHI] and hence, it cannot be made taxable under Chapter V of the Finance Act, 1994. Accordingly, we observe that the 'Repalcement' works and fabrication of immovable pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has confirmed entire service tax demand of Rs.29,45,657/- under the aforesaid three categories without any bifurcation and further alternatively held that the entire tax demand of Rs.29,45,657/- is leviable under Management Maintenance or Repair Services . Aggrieved against the impugned order, the Appellant has filed this appeal. 2. Briefly stated facts of the case are that during the period under dispute i.e. 2006-07 to 2009-10 and 2010-11, the Appellant executed various contracts for their client M/s Tata Steels Ltd. against different work orders awarded by them for Fabrication Erection Cleaning Up keep and Replacement Work. Out of total 16 work orders, the Appellant collected service tax against 5 work orders and deposited the same with the Department. No service tax was collected on works executed against rest 11 work orders. This fact has been admitted in the O-I-O. The gross value of contracts and work orders executed during the material period is duly reflected in their regular books of accounts and Profit and Loss A/c for the respective periods. 3. A Show Cause Notice dated 21-10-2011 was issued to the Appellant alleging that they are engaged in providi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order is reproduced below :- 12. In view of the aforesaid, I find that the appellant has taken service tax registration for the services in the category Construction Services in respect of Commercial or Industrial Building and Civil Structures , Maintenance or Repair Services , Cleaning Services and Erection, Commissioning and Installation only and no other amendment in services has been included further. Hence, the Adjudicating authority is right in confirming the demands raised in the SCN that classified the nature of services provided by the appellant on the basis of their admission during recording of statement and purchase orders/work orders submitted by the appellant during the investigation process and the appellant is liable to pay the applicable Service tax on the amount received from M/s. Tata Steel Limited, Noamundi for the said services. (ii) In the impugned order, the Ld. Commissioner (Appeals) has attempted to justify the levy under the above stated categories on the ground that they are registered under the said three categories, hence, they are liable to pay service tax there under, which is illegal . In support of this contention, the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the SCN, OIO and OIA are vague. Dharambir Singh Co. Vs. CCE, reported in 2018 (8) G.S.T.L. 440 (Tri-All.) . (ix) The confirmation of demand in the impugned Order under the category of Erection Commissioning or Installment Service is outside the scope of Show Cause Notice and hence not sustainable. In this regard the Appellant relies on the decision in the case of CCE Vs. Shital International reported in (2011) 1 SCC 109. It is their contention that Show Cause Notice is vague as there is no separate bifurcation under the three categories of service and how the value of services are taxable under the category of Management, Maintenance or Repair Service , Commercial or Industrial Constriction Service and Cleaning Service . (x) The Order-In-Original dated 14-03-2013 is totally unreasoned as there is no finding on merit by the Ld. Addl. Commissioner as to how the purported service provided by the Appellant is taxable under the category of Commercial or Industrial Construction Services , Management, Maintenance or Repairs Services and Cleaning Services as proposed in the Show Cause Notice. The Ld.Commissioner(Appeal) has attempted to supply reasons in OIO. It is wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them for Fabrication Erection Cleaning Up keep and Replacement Works. The department demanded service tax for the works undertaken by them under the category of Management, Maintenance or Repair Service. The Appellant submits that the department is demanding tax only under the category of 'Management, maintenance or Repair Service' not any other category of service, hence, they are not liable to pay tax under any other category of service. They have under taken the works of panel replacement, steel fabrication and erection jobs. The contention of the Appellant is that the work of Replacement and Repair are different, distinct and separate. In support of their contention, they cited the case of CIT Vs. Madras Cement Ltd reported in [2002] 295 ITR 243(Mad) (Page 5) the Hon ble Madras High Court, wherein it has been held that: Repair implies the existence of a thing which has malfunctioned and can be set right by effecting repairs which may involve replacement of some parts, thereby making the thing as efficient as it was before or as close to it as possible. After repair the thing to which repair was carried out continues to be available for use. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not amount to manufacture. For Example, the work of Removal of silt from Drain Tunnel Cleaning Work , the work of Cleaning, Upkeep and removal of Silt are not related to manufacture process, accordingly, service tax has been collected and deposited by the Appellant and the subject matter is not in dispute in the instant case. Thus, we observe that out of total 16 work orders, the Appellant has rightly collected service tax against 5 work orders where service tax was liable to be paid and deposited the same with the Department. No service tax was collected on works executed against rest 11 work orders, as the same was not liable to service tax under the category of 'Management, Maintenance or repair Service' as demanded in the impugned order. 8.4. Accordingly, we hold that the activity undertaken by the Appellant cannot be classified under the category of ' Management, maintenance or Repair service' and hence the demand of service tax confirmed in the impugned order under the category of Management, Maintenance or Repair Service, is not sustainable. Since the demand itself is not sustainable, the question of demanding interest and imposing penalty does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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