2012 (7) TMI 52 - AT - Service Tax

Management Consultancy Service - demand of a service tax - assessee contested that they are engaged in the activity of running and managing the Hotel - Held that - Considering the definition of Management Consultancy Service u/s 65(65) a person who is engaged in providing any service in connection with the management of any organization which means he should provide a service for managing the day to day affairs of the organization. If he himself is managing the affairs of the organization, it does not fall under the Management Consultancy Service . Considering the case of BASTI SUGAR MILLS CO. LTD. Versus COMMISSIONER OF C. EX., ALLAHABAD 2007 (4) TMI 25 (Tri) that the agreement entered entrusting operation of factory and not for advice or consultancy,Appellant being in-charge of operation of factory was performing management functions. The activity was not falling within the scope of taxable service - decided in favour of assessee.

Summary

Issues involved:
Waiver of pre-deposit of service tax under the Finance Act, 1994 for the category of 'Management Consultancy Service'.

Detailed Analysis:

Issue 1: Waiver of Pre-deposit of Service Tax
The applicants sought waiver of pre-deposit of service tax amounting to Rs.4,85,98,345/- along with interest and penalties confirmed against them for 'Management Consultancy Service'. The case involved the acquisition of a hotel business by the applicants and a subsequent agreement with ICICI Trustship Services Ltd. The department issued a show-cause notice for demanding service tax, contending that the activity undertaken by the applicants fell under 'Management Consultancy Service'.

Analysis: The learned Advocate for the applicants argued that they were engaged in running and managing the hotel business, not in consultancy to the previous owner. He cited relevant case laws to support his contention and requested a stay against the demand during the appeal. The department, however, argued that as the applicants managed the hotel operations without sharing losses, they were covered under 'Management Consultancy Service'. They highlighted clauses in the agreement to support their position.

Judgment: The Tribunal analyzed the definition of 'Management Consultant' under the Finance Act, 1994 and observed that if a person is managing the affairs of an organization directly, it does not fall under 'Management Consultancy Service'. Citing a previous case, the Tribunal concluded that the applicants, by taking over the management of the hotel, did not act as 'Management Consultants'. Hence, the demand under this category was deemed unsustainable. The Tribunal found a strong prima facie case for waiving the pre-deposit of the demands and stayed the recovery during the appeal process.

Conclusion: The Tribunal ruled in favor of the applicants, waiving the pre-deposit requirement and staying the recovery of duty, interest, and penalties. The case was listed for final disposal considering the significant revenue involved, directing the appeal to be heard on a specified date.

This judgment provides a detailed analysis of the issues surrounding the waiver of pre-deposit of service tax under the category of 'Management Consultancy Service', highlighting the arguments presented by both parties and the Tribunal's reasoning for its decision.