2015 (9) TMI 839 - AT - Service Tax

Demand of service tax - Management Consultant Service - Held that - Dabur inter alia provided operational improvements and skills in the areas of cost management, manufacturing, production, procurement, sale, marketing and distribution of the product in the territory and in such other areas as may be agreed upon between the parties from time to time. - Consequently the services rendered as per the agreement between the appellant and M/s. Redrock qualify to be Management Consultant service as appellants clearly gets covered within the ambit of definition of Management Consultant quoted in the wake of provisions of Section 65A(2) (b) Benefit of export - Held that - As regards the adjudicating authority s contentions that they neither claimed the benefit of exemption for export of service nor submitted figures relating to the impugned services in their ST-3 Returns before the Show Cause Notice, it is to state that the appellants contention was that they were not providing any taxable service as their service did not fall under Management Consultant service and therefore the question of claiming the exemption for export of service simply did not arise. The appellants are well within their right to claim the exemption on account of export of service if their service was held taxable under Management Consultant service. Extended period of limitation - Held that - mere failure or negligence on the part of the assessee is not sufficient to sustain allegation of suppression and wilful mis-statement coupled with the appellants submissions in this regard, the allegation of suppression of facts is not sustainable, as a result of which demand is also hit by time bar. - demand set aside - Decided in favour of assessee.

Issues Involved:

1. Classification of services under "Management Consultant" service.
2. Applicability of "Intellectual Property Service" to the services provided.
3. Export of services and tax liability.
4. Suppression or willful misstatement of facts.
5. Calculation of tax liability.
6. Time-barred demand.

Detailed Analysis:

1. Classification of Services under "Management Consultant" Service:

The primary issue was whether the services provided by the appellants fell under the category of "Management Consultant" service as defined under Section 65(65) of the Finance Act, 1994. The Show Cause Notice claimed that the royalty payments received for the use of the trade mark were taxable under this category. The adjudicating authority upheld this view. However, the Tribunal examined the agreements and found that the services provided included technical support, operational improvements, and skills in various managerial areas, which fit the definition of "Management Consultant." Therefore, the services rendered to M/s. Redrock Ltd., UK, qualified as "Management Consultant" service.

2. Applicability of "Intellectual Property Service":

The appellants argued that their services were more appropriately covered under "Intellectual Property Service," which came into effect from 10.09.2004. They cited several judgments, including Castrol Ltd. Vs. CCE, Raigad, to support their claim. The Tribunal, however, found that the services provided as per the agreements with M/s. Redrock Ltd., UK, and M/s. ACCL, Bangladesh, included managerial and technical assistance, thus falling under "Management Consultant" service. The agreement with M/s. DNPL, Nepal, involved only the use of the trade mark, which did not qualify as "Management Consultant" service.

3. Export of Services and Tax Liability:

The Tribunal acknowledged that the services rendered to M/s. Redrock Ltd., UK, were covered under the scope of "Export of Service" as the payments were received in foreign exchange. Therefore, these services were not liable to service tax. For M/s. DNPL, Nepal, the appellants did not charge for the managerial services, so no tax liability arose. Regarding M/s. ACCL, Bangladesh, the appellants claimed they did not receive any payment, and the Tribunal found no contradiction in their claim. Hence, no tax liability arose for services provided to M/s. ACCL, Bangladesh.

4. Suppression or Willful Misstatement of Facts:

The appellants argued that there was no suppression or willful misstatement as they genuinely believed their services did not fall under "Management Consultant" service and were also considered export services. The Tribunal agreed, noting that the issue involved nuanced interpretation of the definition of "Management Consultant." The Show Cause Notice itself had an infirmity by alleging that the use of the trade mark fell under "Management Consultant" service, which was not correct. The Tribunal concluded that the allegation of suppression was not sustainable, making the demand time-barred.

5. Calculation of Tax Liability:

The appellants contended that the manner of calculation of tax liability was incorrect. The Tribunal did not delve deeply into this issue as it found the entire demand unsustainable based on the other issues discussed.

6. Time-Barred Demand:

The Tribunal found that the demand was time-barred due to the lack of suppression or willful misstatement of facts by the appellants. The nuanced interpretation involved and the infirmity in the Show Cause Notice contributed to this conclusion.

Conclusion:

The Tribunal concluded that the demand for service tax was not sustainable and allowed the appeal. The services rendered to M/s. Redrock Ltd., UK, qualified as "Export of Service" and were not liable to service tax. The services to M/s. DNPL, Nepal, did not involve any chargeable component under "Management Consultant" service, and no payment was received from M/s. ACCL, Bangladesh, negating any tax liability. The Tribunal also found the demand time-barred due to the absence of suppression or willful misstatement of facts.

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