2009 (6) TMI 975 - Commissioner - Service Tax

Summary

Issues Involved:
1. Classification of services provided by the appellant.
2. Applicability of service tax on the services.
3. Legitimacy of penalties imposed.

Summary:

Issue 1: Classification of Services Provided by the Appellant
The primary issue was whether the appellant's activities, as outlined in the appointment letter from M/s. Finolex Industries Ltd., fell under the category of "Consulting Engineer Services" as defined u/s 65(25) of the Finance Act, 1994. The appellant was responsible for tasks such as maintenance of HT and LT systems, installation of HT and LT equipment, liaison with MSEB authorities, and monitoring electrical energy. The court found that these activities did not involve advice, consultancy, or technical assistance, which are essential criteria for classification as "Consulting Engineer Services."

Issue 2: Applicability of Service Tax on the Services
The court examined the definition of "Consulting Engineer" and concluded that the appellant's role as "Executive (Electrical)" did not meet the criteria for service tax under "Consulting Engineer Services." The appellant was performing tangible work rather than providing consultancy or technical advice. The court also noted that the appellant was paid a monthly professional fee and was entitled to leave, which is inconsistent with the nature of a service provider.

Issue 3: Legitimacy of Penalties Imposed
The court found several inconsistencies in the penalties imposed. The initial SCN invoked penalty provisions u/s 78, but the OIO dated 6-11-2006 imposed a penalty u/s 77. The impugned OIO introduced a new section, 76, and imposed an additional penalty. The court held that the Assistant Commissioner had exceeded the scope of the SCN, making the penalties unsustainable. However, since the appellant succeeded on merit, the question of penalties did not arise.

Conclusion
The appeal was allowed, and the impugned OIO passed by the Assistant Commissioner, Central Excise, Ratnagiri Division, was set aside. The court concluded that the appellant's activities did not fall under "Consulting Engineer Services" and thus were not liable for service tax.