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TMI Blog2013 (12) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the appellant is that the Board Circular itself states that a doubt has been raised and under the circumstances extended period cannot be invoked. We have gone through the said order. It appears that a public notice was issued on 18.2.2001 and in response to that certain agencies have represented and it is in that context that the said order was issued to clarify the doubts of such agencies. Appellants have not produced any evidence which indicate that they had such doubt and for they have approached the departmental authorities for clarification about their service tax liability on this aspect. In fact, after issue of the clarification 37-B Order, it was the duty of appellant to pay the tax for the past period (at least normal period) or challenge the order. This itself indicates willful intention to evade service tax. Appellants had not undertaken any registration relating to ‘Management Consultancy Service' and thus suppressed their activity from the departmental and therefore they have contravened the provisions of Service Tax Act and Rules with a willful intention to evade duty. Under the circumstances we consider that they have satisfied the requirements of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of "dendrite" either in whole or in part to a potential acquirer. 13 M/s. Modikem Pvt. Ltd. Advisor to substantial acquisition of share of listed companies (open offer) under takeover code of SEBI. 14 M/s. Modi Fashion Securities Pvt. Ltd. Advisor to substantial acquisition of share of listed companies (open offer) under takeover code of SEBI. 15 M/s. Tata Industries Ltd. Advisor and Managers to enable it to consolidate its holdings in TAML upto 100% 16 M/s. IMO Communication Exclusive Advisory /arrangers services for raising of private equity. 17 M/s. Modichem Pvt. Ltd. Advisor to substantial acquisition of share of listed companies. 18 M/s. Mod Fashions Sec, Pvt. Ltd. Advisor to substantial acquisition of share of listed companies. 19 M/s. Modi Holdings Ltd. Advisor to substantial acquisition of share of listed companies. 20 M/s. Maersk India Ltd. Advisor in the valuation/negotiation for acquisition of equity stake in target and to assist in obtaining requisite regulatory approval 21 M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated under Management Consultancy Service but the service provided by them are executor in nature and therefore these cannot be called Management Consultancy Service. The next contention of the Ld. Counsel is on the limitation Ld. Counsel argues that Board has issued circular in2001 clarifying the position. In the said circular it is stated that there was doubt on taxability of service relating to Merger and Acquisition. Keeping in view the fact that there was doubt and was clarified by the Board in 2001 extended period cannot be invoked. Other argument of the learned Counsel is that records of appellant were audited by the service tax department for the period September 1995 to March 2000, Department did not raise any objection and therefore the demand is time barred. Learned Counsel's another argument is that the dispute involves interpretation of entry and absence of mens rea, therefore in the facts and circumstances of the case extended period cannot be invoked. Ld. Counsel also quoted certain case laws in support of his various arguments the said case laws are as under:- (i) Swaraj Mazda Ltd. Vs. CCE, Chandigarh 2013 (31) S.T.R. 205 (Tri. Del.) (ii) B.S.R. Co. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar is not applicable to all transactions and only 1/3 of the transaction may be relevant with respect to the clarification. Ld. AR further stated that audit was done for records upto March 2000 and here the demand is for period subsequent to the period of audit, in any case audit was done for stock broking activity of the appellant and, therefore, it cannot be said that since audit has been conducted extended period cannot be invoked. Ld. AR further stated that appellants are leading company and they have not even claimed that they have any bona fide belief for not paying duty. Ld.AR also stated the fact that they had not taken the registration under the Management Consultancy Service itself proves that extended period is invokable. As far as the appellants contention that pre 16.7.2001 such activities cannot be covered by Management Consultancy Service as the same are covered under BOFS after 16.7.2001. Ld. AR contended that one has to examine scope of various entries at the relevant time and decide about the applicability of service tax. It is possible that the particular service may be covered more than one entry. It is for such eventuality that the Rules of interpretation were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g this issue in the context of merger and acquisition advisory services, Board has obtained the opinion of Indian Institute of Management, Ahmedabad on the subject matter and Indian Institute of Management in its opinion has stated as under:- "In this regard, the Board has consulted the Indian Institute of Management, Ahmedabad or obtaining an expert opinion on the subject-matter. They have opined that the term "Management" is generally understood to mean running the affair of an organization in an organized and systematic manner. To be able to do this efficiently and effectively, management typically involves carrying out a host of activities, functions and tasks and at different levels. Thus management encompasses both strategic and operational level functioning and would include tasks such as planning, organizing, staffing, directing, controlling and coordinating Management also invariably involves designing organizational structure around functions such as marketing, manufacturing, research and development and finance and/or business area such as product groups or geographical markets. Thus management of any organization involves carrying out a wide variety of clearly defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial services. Most of these services cannot be included within the scope of the Management Consultancy Service'. However, services covered by clause (vi) will be covered under Management Consultancy Service also. Thus the position before 16.7.2001 is that the said services were covered under the Management Consultancy Service, and w.e.f. 16.7.2001, the same would get covered under the Management Consultancy Service as also "Banking and Other Financial Services" and one will have to decide among the two services using provisions of law for classification of services. Such provisions about the classification of services are provided under Section 65A of the Finance Act. The said section is as under:- 65A. Classification of taxable services. (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clauses (105) of section 65; (2) When for any reason, a taxable service is prima facie, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected as follows :- (a) the sub-clause which provides the most specific description shall be preferred to sub-clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice and the audit would confine to the duty payments made relating to stock broking service. In any case audit period and the period under the present show cause notice are different. The demand in the present case is after the audit period. The other contention raised by the appellant is that the Board Circular itself states that a doubt has been raised and under the circumstances extended period cannot be invoked. We have gone through the said order. It appears that a public notice was issued on 18.2.2001 and in response to that certain agencies have represented and it is in that context that the said order was issued to clarify the doubts of such agencies. Appellants have not produced any evidence which indicate that they had such doubt and for they have approached the departmental authorities for clarification about their service tax liability on this aspect. In fact, after issue of the clarification 37-B Order, it was the duty of appellant to pay the tax for the past period (at least normal period) or challenge the order. This itself indicates willful intention to evade service tax. Appellants had not undertaken any registration relating to Management Consultancy Service' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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