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TMI Blog2014 (10) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... m during the relevant time as per the definition of "Consulting Engineer" under Section 65(31) of the Finance Act, 1994. By Merely employing an engineer, it does not become an engineering firm. Therefore, on merits, we hold that the activity undertaken by the HOSI do not qualify under the category of Consulting Engineer Service. Therefore, HOSI is not required to pay service tax in this case - matter remanded back - Decided in favour of assessee. - Appeal No. ST/308 and 315/2006 - Final Order Nos. A/1453-1454/2014-WZB/C-I(CSTB) - Dated:- 4-9-2014 - Ashok Jindal and P S Pruthi, JJ. For the Appellant : Shri Shailesh P Sheth Shri L Badrinarayanan For the Respondent : Dr B S Meena , Add. Commissioner (AR) JUDGEMENT Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C has also paid the service tax to HOSI. Later, advice obtained by ONGC on the said activity, revealed that the activity undertaken by the HOSI does not qualify as Consulting Engineer Service. Therefore, ONGC recovered the entire amount of service tax paid to HOSI in subsequent invoices and on the said advice obtained by ONGC, HOSI filed refund claim of the service tax paid during the period from May 2003 to October 2003. A show-cause notice was issued to HOSI to deny refund claim on account of limitation as well as unjust enrichment. Against that show-cause notice, HOSI participated in the proceedings before the adjudicating authority who held that HOSI has rightly paid the service tax under the category of Consulting Engineer Service th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently, the limitation for filing the refund does not apply. It is further submitted that as they have paid the service tax recovered from ONGC, the same has been corroborated by the evidence provided by the ONGC, therefore, bar of unjust enrichment is not applicable. In this circumstance, it is prayed that the refund claim be allowed. 7.1 On behalf of ONGC the learned Counsel submits that in this case they have recovered the service tax from HOSI which was wrongly paid by them and they have suffered the service tax which have been recovered and they are the actual beneficiary. In that case, bar of unjust enrichment is not applicable. Therefore, he prays that refund claim to HOSI be sanctioned. 8. On the other hand, learned A.R. app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executing the job. HOSI is not providing any technical assistance or consultancy service to ONGC as they are not analyzing any data collected by them. Their mere job is to provide data on hard copy to ONGC for their consideration. In these circumstances, the HOSI is neither providing any consultancy or technical assistance. Further, we find that HOSI is neither a professionally qualified engineer nor they are an engineering firm during the relevant time as per the definition of Consulting Engineer under Section 65(31) of the Finance Act, 1994. By Merely employing an engineer, it does not become an engineering firm. Therefore, on merits, we hold that the activity undertaken by the HOSI do not qualify under the category of Consulting Engine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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