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TMI Blog2023 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... said precedent and also no sound argument advanced by the Revenue to set aside the analysis of facts and conclusion recorded by the Ld. Adjudicating authority in applying the principles of law laid down by the Tribunal in the series of case laws referred by him in the impugned Order. The Department s argument is that the respondent has rendered assistance in carrying out the examinations under the said agreement but in fact the exams are conducted by the university itself; hence the services fall within the scope of Management or Business Consultant Services - but the stand of the department is devoid of merit. A careful reading of the scope of the service mentioned in the said agreement, referred to and analysed by the learned Commissioner in the impugned Order, clearly indicates that the respondents being experts in the field, approached by the Universities to carry out the exams for the university, to identify the talented candidates for enrolment and other purposes to various courses and the methodology/procedure for the execution of the said objective narrated in the form of agreement. The respondent s role is to execute the conduct of exams by providing necessary manpower, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 25/2012 ST dr.20.6.2012. Alleging that the respondent rendered services under 'Management or Business consultant service' during the said period and the said services rendered by them being not related to 'education' for the period 01.4.2012 to 30.6.2012 and "Auxiliary Education Service" for the period 01.7.2012 to 31.3.2013 , therefore, the benefit of exemption under the said notifications being not admissible, service tax to the tune of Rs.1,71,59,066/- and Rs.6,80,28,465/- was demanded for the respective period by issuing show Cause Notice on 22.05.2014 with interest and penalty. On adjudication, the said demand was dropped by the learned Commissioner. The Revenue is in appeal to the extent of demand of Rs. 1,71,59,066/- dropped for the period 01.4.2012 to 30.6.2012. 3. At the outset, the learned AR for the Revenue reiterating the grounds of appeal has submitted that on scrutiny of their ST-3 returns for the period April 2008 to September 2008, it was noticed that the respondent though rendered service under the taxable category of 'Management or Business Consultant service' as defined under Section 65(65) of Finance Act,1994, but wrongly claimed the benefit of exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt.10.9.2004. In support, the learned AR for the Revenue referred to the judgment of the Tribunal in the case of Piem Hotels Ltd. Vs. CCE, Nasik [2016(43) STR 211 (Tri. Mum.) and Karnataka Udyog Mitra Vs. Commissioner of S.T., Bangalore [2015 (38) S.T.R 839 (Tri-Bang)]. 5. The learned Senior Advocate for the respondent has submitted that the services rendered by the respondent are described in the agreement dt. 08.07.2008. He has submitted that analyzing the scope of the work, it is clear that the respondent is required to identify, select and organize venues for examination as per the norms of the SMU. They were required to provide SMU representative for each venue and the university representative will be trained thoroughly on the process. Also, they will appoint a five member team to manage the examination delivery; also the team members of the respondent to man the control room set up by SMU. He has submitted that a plain reading of the scope of the definition of 'Management or Business Consultant' Service during the period in question, it is very clear that to come within the scope of the said definition, there should be participation by the person directly or indirectly in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent is not eligible to the benefit of exemption Notification No.14/2004 ST dt.10.9.2004. 7. Section 65(65) of Finance Act,1994 defines "Management or Business consultant service", and at the relevant time it read as: "(65) management or business consultant" means any person who is engaged in providing any service, either directly or indirectly, in connection with the management of any organisation or business in any manner and includes any person who renders any advice, consultancy or technical assistance, in relation to financial management, human resources management, marketing management, production management, logistics management, procurement and management of information technology resources or other similar areas of management; The Revenue's contention is that the scope of work described at Annexure -1 to the agreement dated 08th July 2008 satisfies the above definition. 8. Analyzing the issue, learned Commissioner has recorded the finding as follows:- "9.10.1. For the initial period of the SCN i.e. 1/4/2012 to 30/6/2012, I find that the SCN has demanded duty under the category of Management or Business Consultant Service. 9.10.2. During the period in question, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have relied on the following decisions in their support: 1. Decision of CESTAT, NEW DELHI BENCH in the case of Basti Sugar Mills Co. Ltd. u. Commissioner of Central Excise, Allahabad [2007 10 STT 107 (NEW DELHI - CESTAT) wherein the Tribunal held as follows:- "'Management Consultant' means any person who is engaged in providing any service, either directly or indirectly, in connection with the management of any organization in any manner and includes any person who renders any advice, consultancy, devising, development, modification, rectification or upgradation of any working system of any organization." The above definition makes it clear that what is envisaged from a consultant is advisory service and not the actual performance of the management function. 2. Decision of CESTAT Delhi in the case of Rolls Royce Industries Power (I) Ltd. Vs. CCE [2007 6 STT 506 (New Delhi - CESTAT] / 2006 3 STR 292 (New Delhi - CESTAT) wherein the Tribunal ruled as follows:- The issue raised is the true meaning and scope of operation and maintenance agreement dated 14-3-95. The appellant had taken over the plant and was operating & maintaining it in terms of the agreement. A perusal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a situation, it ceases to be an advice and becomes an order or direction. 4. Decision of CESTAT, Mumbai Bench in the case of Suzlon Windfarm Services Ltd. Vs. CCE, Pune-II [2014 (46) taxmann.com 308 (Mumbai - CESTAT)] wherein it was held that : The client of the appellant herein, M/s. Suzlon Energy Ltd., are manufacturers of wind operated windmill generators and systems. In the sales agreements entered into by them with their customers, there is a provision for operation and maintenance and security of the windmills by M/s. Suzlon Energy Ltd. for a period of 5 years free of cost and, thereafter on payment of charges. To fulfil this contractual obligation as per the agreement, M/s. Suzlon Energy Ltd. entered into an agreement with the appellant to actually undertake the operation, maintenance and security of the windmill sold by M/s. Suzlon Energy Ltd. to their customers and the appellant actually undertook operation and maintenance and security of the windmill system. What the appellant has performed is operation and maintenance of windmills and not rendering any advice, consultancy or technical assistance in any field of engineering, which is the criterion for classifyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) procurement of goods or services, which are inputs for the client; (b) production of goods on behalf of the client; (c) provision of service on behalf of the client; or (d) a service incidental or auxiliary to any activity specified in (a) to (c) above. from the whole of the service tax leviable thereon under section 66 of the said Finance Act : Provided that nothing in this notification shall apply to, - (i) a factory registered under or governed by the Factories Act, 1948 (63 of 1948); (ii) a company established by or under the Companies Act, 1956 (1 of 1956); (iii) a partnership firm, whether registered or not registered; (iv) a society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India; (v) a co-operative society established by or under any law; (vi) a corporation established by or under any law; or (vii) a body corporate established by or under any law, unless such factory, company, partnership firm, society, co-operative society, corporation or body corporate, as the case may be, provides any business auxiliary service in respect of any activity specified in ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said objective narrated in the form of agreement. The respondent's role is to execute the conduct of exams by providing necessary manpower, expertise, infrastructure etc. as stipulated in the said agreement. The said service thus cannot be construed as rendering any management or business consultancy/advice to the universities by the Appellant without its involvement in the execution of the conduct of the examination. Further, we find that the learned Commissioner has rightly extended the benefit of Notification No.14/2004-ST dt. 10.09.2004 as the services rendered by the respondent relates to educational services. The judgments cited by the learned AR in the case of Piem Hotels Ltd. and Karnataka Udyog Mitra's case are not relevant and applicable to the facts of the case in hand. In the former case, the question was whether the service provided by M/s IHCL to M/s Piem Hotels was in the nature of "Management or Business Consultancy service or Business Auxiliary service so as to determine the admissibility of CENVAT credit of the service tax paid by the Appellant M/s Piem Hotels under Rule 6(5) of CCR,2004. The Tribunal observed that nature of service provided by IHCL is of the ki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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