GILL BROTHERS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN terms of the impugned order the appellant is required to deposit service tax of Rs. 3,96,085/ - and penalties of equal amount under Sections 76 and 78 of the finance Act, 1994. The appellant has filed application for waiver of pre -deposit in terms of Section 35F of the Central Excise Act.

(2.) THE dispute involved in this appeal briefly is whether the services rendered by the appellant were under maintenance contract or maintenance -cum -repairs/operating contract. The dispute relates to the period July 2003 to March 2005 and as per Section 65(64) of the Finance Act, 1994, as it stood at the relevant time; maintenance or repair meant "any service provided by (i) any per son under a contract or an agreement; or (ii) a manufacturer or any person authorized by him we are not concerned with the latter part) in relation to a maintenance or repair or servicing of any goods or equipment, excluding motor vehicle" to constitute the taxable service called "maintenance or repair service".

(3.) RELIANCE has also been placed on a decision of the Tribunal in Cochin Shipyard Ltd. v. CCE, Cochin 2007 (7) S.T.R. 291 (Tri. -Bang.) wherein it was held that "even if maintenance is carried out under any contract apart from other services, the appellant is not liable to pay Service tax prior to 16 -6 -2005. In order to levy Service tax prior to 16 -6 -2005, a pure maintenance contract is a must".