2018 (5) TMI 34 - AT - Service Tax

Demand of service tax - Business Auxiliary Services - Scientific and Technical Consultancy Services - Online Database Access and Retrieval Service - Management Consultancy Service . Demand under the head of Business Auxiliary Services had been raised in respect of amount paid to the distributors - Held that - reliance placed in the case of Genom Biotech Pvt. Ltd. Vs. CCE, Nashik 2016 (3) TMI 139 - CESTAT MUMBAI , where it was held that Since the appellant has no requirement of advertising agency service for manufacture and export of goods, the tax demanded in the impugned order is not on the consideration for a service received in India but a tax on the funds transferred in a cross-border transaction. Such a tax is not contemplated in Finance Act, 1994. Therefore, no Service tax can be demanded - no Service Tax can be demanded on the said service. Scientific and Technical Consultancy Services - it is argued that regulatory services obtained for getting service of their product registered/approved by authorities abroad cannot be classifiable under the head of Scientific and Technical Consultancy Services - Held that - the regulatory services are not in the nature of Scientific and Technical Consultancy Services and therefore no Service Tax under the said head - reliance placed in the case of Administrative Staff College of India 2008 (8) TMI 194 - CESTAT, BANGALORE - demand set aside. Online Database Access and Retrieval Service - It has been argued that the said service provider does not provide online services and there is no online service provider - Held that - In absence of online database access, no Service Tax can be demanded under the head of Online Database Access and Retrieval Service - demand set aside. Management Consultancy Service - It has been argued that under Management Consultancy Service only activities in the nature of management of any organisation are covered - Held that - It is seen that the service provided by technical assistance and consultancy in identifying avenue and product promotion. The said activity falls under the Management Consultancy Service - demand upheld. Revenue neutrality - Held that - The data submitted by them, shows that part of the final product is exempted and therefore the situation is not fully revenue neutral. Penalty u/s 76 and 78 set aside by invoking section 80. Appeal allowed in part.

Summary

Issues Involved:
1. Demand under "Business Auxiliary Services"
2. Demand under "Scientific and Technical Consultancy Services"
3. Demand under "Online Database Access and Retrieval Service"
4. Demand under "Management Consultancy Service"
5. Revenue neutrality and penalties under Sections 76 and 78

Issue-Wise Detailed Analysis:

1. Demand under "Business Auxiliary Services":
The appellant contested the demand on the grounds that the activities of their sales representatives, whose salaries were reimbursed to distributors, do not fall under the definition of "Business Auxiliary Services." The appellant argued that the services were for the goods belonging to the distributors, not the appellant. They relied on the Hon'ble Delhi High Court's decision in M/s Inter Continental, which held that reimbursement of expenses does not form part of the taxable service value. The Tribunal found that the agreement with distributors specified that product promotion activities were under the direct supervision of the appellant, and invoices described expenses as marketing and promotional. However, relying on the Tribunal's decision in Genom Biotech Pvt. Ltd., it was concluded that services rendered abroad for export goods do not attract Service Tax under "Business Auxiliary Services." Thus, the demand was set aside.

2. Demand under "Scientific and Technical Consultancy Services":
The appellant argued that the services received from M/s Regulatory Concepts, related to the registration of therapeutic products, were not advisory, consultancy, or technical assistance in science and technology. They relied on the Tribunal's decision in Administrative Staff College of India, which held that regulatory services for product registration do not fall under "Scientific and Technical Consultancy Services." The Tribunal agreed, noting that the services were not provided by a scientist or technocrat and were not related to scientific or technical consultancy. Therefore, the demand under this head was set aside.

3. Demand under "Online Database Access and Retrieval Service":
The appellant contended that the services received from M/s Dialogue Corporation, USA, were for data storage and not for accessing an online database. The Tribunal found that since the service provider did not offer online database access, the demand under "Online Database Access and Retrieval Service" was not applicable. Hence, the demand was set aside.

4. Demand under "Management Consultancy Service":
The appellant argued that services related to developing new bulk drugs, identifying licensing opportunities, and assisting in negotiations were not connected to the management of their organization. However, the Tribunal concluded that these activities constituted technical assistance and consultancy related to management, falling under "Management Consultancy Service." Thus, the demand under this head was upheld.

5. Revenue Neutrality and Penalties under Sections 76 and 78:
The appellant argued for revenue neutrality, claiming entitlement to credit for the entire amount. However, the Tribunal noted that part of the final product was exempted, negating full revenue neutrality. Despite this, the Tribunal invoked Section 80 of the Finance Act, 1994, to waive penalties under Sections 76 and 78, acknowledging the appellant's bona fide belief that no Service Tax was leviable.

Conclusion:
The demand under "Management Consultancy Service" was confirmed, while demands under "Business Auxiliary Services," "Scientific and Technical Consultancy Services," and "Online Database Access and Retrieval Service" were set aside. Penalties under Sections 76 and 78 were waived. The appeal was allowed in these terms.