2010 (5) TMI 270 - AT - Service Tax

COD Clearance- COD clearance to agitate quantum of demand and liability of Service Tax. Contention of advocate that liability also contested not acceptable in the absence of necessary sanction by COD. Supreme Court in Bharat Petroleum Corporation Ltd. Case directed placing of matter before Chief Justice for reconsideration of decision in oil and Natural Gas Commission case and ONGC decision not overruled. Held that Tribunal bound by ONGC case direction till they are overruled. Necessary COD clearance for challenge thrown under appeals filed absent. Appeal not maintainable and dismissed.

Summary

Issues Involved:
1. Analysis of the agreement between the appellants and DRDO.
2. Classification of services provided by the appellants.
3. Evidence supporting the classification.
4. Role of MIDHANI's staff at AMTL.
5. Rebuttal of Revenue authorities' claims.
6. Nature of services rendered by MIDHANI.
7. Limitation and suppression of facts.
8. Maintainability of the appeals without COD clearance.

Detailed Analysis:

1. Analysis of the Agreement Between the Appellants and DRDO:
The appellants argued that the Commissioner did not properly analyze the agreement with DRDO, leading to the erroneous conclusion that the appellants were a "Technical Testing and Analysis Agency." The Commissioner overlooked the fact that the scope of the agreement was related to operation and maintenance of AMTL facilities, not providing testing services.

2. Classification of Services Provided by the Appellants:
The appellants contended that their activities did not fall under "Technical Testing and Analysis" as defined under Section 65(106) of the Finance Act, 1994. They argued that they only provided consultancy or technical assistance, not testing services. The Commissioner erroneously classified their services under "Technical Testing and Analysis."

3. Evidence Supporting the Classification:
The appellants highlighted statements from their Addl. General Manager (F&A) and other evidence to show that they did not conduct any testing services. They argued that no contrary evidence was provided by the Revenue authorities to rebut their claims.

4. Role of MIDHANI's Staff at AMTL:
The appellants stated that their staff was deputed to AMTL and worked under AMTL's directions. They argued that MIDHANI did not conduct any testing or evaluation at AMTL but only provided staff, which does not classify as "Technical Testing and Analysis."

5. Rebuttal of Revenue Authorities' Claims:
The appellants argued that the Revenue authorities failed to provide evidence contrary to their claims. They stated that the amounts received were for actual expenses incurred, not for testing services, and that the Commissioner ignored this factual position.

6. Nature of Services Rendered by MIDHANI:
The appellants contended that they did not provide technical testing and analysis services but only assisted DRDO in running AMTL. They argued that the Commissioner misinterpreted the agreement and the nature of services rendered, leading to an incorrect demand for service tax.

7. Limitation and Suppression of Facts:
The appellants argued that there was no suppression of facts or intention to evade tax. They contended that the Commissioner wrongly attributed mala fides to them and that the demand and penalty were unjustified.

8. Maintainability of the Appeals Without COD Clearance:
The Tribunal noted that the Committee on Disputes (COD) had only granted permission to challenge the quantum of service tax, not the liability itself. The Tribunal referenced Supreme Court decisions stating that appeals without necessary COD clearance are not maintainable. The Tribunal dismissed the appeals and applications as not maintainable due to the lack of COD clearance.

Conclusion:
The Tribunal dismissed the appeals and applications due to the lack of necessary COD clearance, adhering to the Supreme Court's directives. The appellants' arguments regarding the classification of services, lack of evidence, and the nature of services rendered were not addressed due to the procedural issue of maintainability.