Genting Lanco (India) Pvt Ltd Versus CCT, Guntur \u2013 GST (Vice-Versa)
Service Tax
2018 (11) TMI 167 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 10-9-2018
ST\/143\/2009, ST\/817\/2009, ST\/3224\/2012, ST\/25749\/2013, ST\/23688\/2014, ST\/30407\/2016, ST\/487\/2010 – A\/31226-31232\/2018
Service Tax
Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL)
\nShri K. Parameswaran, Advocate for the Assessee.
\nShri Arun Kumar, Dy. Commissioner\/AR for the Revenue.
\nORDER
\nPer: M.V. Ravindran
\n1. All these appeals are directed against the Orders-in-Original No.10\/2008-ST dt.17.12.2008, 18\/2009-ST dt.16\/17.07.2009, 74\/2012-ST dt.29.08.2012, 114\/2012-ST dt.31.12.2012, GUN-EXCUS-000-COM-060 dt.09.09.2014, GUN-EXCUS-000-COM-019-15-16 dt.24.03.2016. Appeal No.ST\/487\/2010 is filed by the Revenue against the Order-in-Appeal No. 28\/2009 dt.19.12.2009. Since all the appeals raise a common question of law, they are being disposed of by a common order.
\n2. The <\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n al, the first appellate authority has set aside the demands on the ground that generation of power by the appellant is amounting to producing a non-excisable product during the period in question. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ount to services rendered under “management, maintenance and repair services”. He would submit that the lower authorities were correct in coming to such conclusion. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n tracts cannot be vivisected and amounts are not received for maintenance and repair but for running of power plant effectively. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n e no hesitation to hold that issue involved is decided in favour of the appellant.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Genting Lanco (India) Pvt Ltd Versus CCT, Guntur \u2013 GST (Vice-Versa)Service Tax2018 (11) TMI 167 – CESTAT HYDERABAD – TMICESTAT HYDERABAD – ATDated:- 10-9-2018ST\/143\/2009, ST\/817\/2009, ST\/3224\/2012, ST\/25749\/2013, ST\/23688\/2014, ST\/30407\/2016, ST\/487\/2010 – A\/31226-31232\/2018Service TaxMr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri K. Parameswaran, Advocate for the Assessee. Shri Arun Kumar, Dy. … Continue reading “Genting Lanco (India) Pvt Ltd Versus CCT, Guntur \u2013 GST (Vice-Versa)”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-14812","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14812","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14812"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14812\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14812"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14812"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14812"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n3. Learned counsel for the appellant after taking the Bench through the said operation and maintenance agreement and also the findings in the Order-in-Original, submits that the demand is only in respect of the operation portion. It is his submission that the operation portion and the amounts received for such operation included the various aspects of maintenance of the power plant, guaranteeing 24×7 power to M\/s Lanco Kondapalli Power Plant Ltd and they have paid the service tax on the amounts received towards maintenance and repairs of the said power plant but contested that operation and maintenance of the plant cannot be classified under “management, maintenance and repair services” at the most gets covered under “business auxiliary services”. He would submit that identical issue has bee<\/p>\n
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\n5. On careful consideration of the submissions made, we find that the issue as correctly pointed out by the learned counsel is that whether the amounts received as consideration by the appellant for operating power plant on behalf of his client would be liable for the discharge of service tax under the heading “management, maintenance and repair services”.
\n6. The facts are not in dispute. Appellant has entered into an agreement with M\/s Lanco Kondapalli Power Plant Ltd for operation and maintenance of the power plant, vide which it was guaranteed 24×7 power, subject to periodical maintenance and was paid consideration as per the agreement. As per the annexure to agreement, it is noticed that appellant is getting separate consideration for operation of the power plant and for maintenance and repair of the power plant. Appe<\/p>\n
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\n9. On perusal of contract, we find that it indicates 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. 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 <\/p>\n
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\n8. Since the issue is now settled in favour of the appellant by the decision of this Bench, we do not find any reason to deviate from such a view already taken. Accordingly, we hold that the impugned order is unsustainable and liable to be set aside and we do so. The impugned orders are set aside and the appeals filed by the appellant\/assessee are allowed with consequential relief, if any.
\n9. As regards the revenue's appeal against the order of first appellate authority, regarding the non-taxability of electricity being generated is a manufactured product, we find that the first appellate authority has relied upon the decision of the Tribunal in the case of NTPC Sail Power Company Pvt Ltd [2009-TIOL-1021-CES-KOL]. This particular decision was also cited before the Bench in the case of GVK Power and Infrastructure Ltd and the Bench in Para 12 has held that the ratio of the judgment of NTPC Sail Power <\/p>\n
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