2011 (4) TMI 500 - HC - Service Tax

Consulting Engineer Service - whether for the purpose of levying service tax, the contract made has to be read in toto or has to be bifurcated for other various services and whether the assessee is entitled to exemption from payment of service tax in pursuance to the Notification Nos. 2/99, dated 28-2-1399, 6/99, dated 9-4-1999 and 21/2003, dated 20-11-2003, apart from other issues. - Held that - All these questions relate to determination of rate of duty payable, entitlement of exemption under notification. They have to be decided by the Apex Court in an appeal to be preferred under section 35L of the Central Excise Act, 1944 and not by the High Court in an appeal preferred under section 35G of the Central Excise Act, 1944.

Issues Involved:

1. Whether the Tribunal was right in holding that the major portion of the demand is time-barred.
2. Whether the order of the Tribunal regarding the deduction of reimbursable expenses is legally tenable.
3. Whether for the purpose of levying service tax, the contract made has to be read in toto or bifurcated for various services.
4. Whether the Tribunal is justified in applying certain notifications and granting exemption without verifying the conditions prescribed therein.

Detailed Analysis:

1. Time-Barred Demand:
The Tribunal held that the lower authorities passed their orders without proper scrutiny of the information contained in the ST3 returns. Consequently, the longer period could not be invoked, and a major portion of the demand would be hit by the time bar. The Tribunal found that the demand of differential tax is unsustainable both on merits and on the ground of limitation.

2. Deduction of Reimbursable Expenses:
The Tribunal concluded that the entire amount of receipts cannot be subject to service tax as part of the amount is on account of reimbursable expenses. The Tribunal noted that the lower authorities did not follow the DGST circular, which exempts taxable services for which the payment is received in India in convertible foreign exchange from the whole of service tax under section 66 of the Finance Act, 1994.

3. Contract Interpretation for Service Tax:
The Tribunal's decision involved determining whether, for the purpose of levying service tax, the contract made has to be read in toto or bifurcated for various services. The Tribunal's interpretation was challenged, and the issue was whether the contract should be considered as a whole or divided into different services for tax purposes.

4. Application of Notifications and Exemptions:
The Tribunal applied Notification Nos. 2/1999-ST, 6/1999-ST, and 21/2003-ST and granted exemptions in favor of the assessee without verifying the conditions prescribed therein, such as whether the foreign exchange received was repatriated from or sent outside India. The Tribunal's application of these notifications and the resultant exemptions were contested by the revenue.

Maintainability of Appeal:
The learned counsel for the assessee raised an objection regarding the maintainability of the appeal before the High Court, arguing that the appeal involves determination of questions relating to the rate of duty of service tax and the value of taxable service for purposes of assessment. Under section 35G of the Central Excise Act, the High Court has no jurisdiction to decide such questions, which fall under the jurisdiction of the Supreme Court as per section 35L(b) of the Act.

The High Court agreed with this contention, stating that the appeal preferred by the revenue is not maintainable before the High Court and should be preferred to the Supreme Court under section 35L of the Act. Consequently, the High Court dismissed the appeal, concluding that it lacked jurisdiction to entertain the matter.

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