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TMI Blog2025 (1) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/- (ST/185/2012) for the period 01.10.2002 to 18.04.2006; and demanding of service tax of Rs.1,18,85,704/- on export of services; the same was adjudicated vide Order No.3110/2011 dated 31.10.2011 confirming the duty demanded along with interest and penalties. Hence, these appeals. 2. Ms. Krati Singh, learned Counsel for the appellants submits that the appellants are engaged in execution of the work and not mere consultancy and advice and therefore, cannot be taxed under the Head "Management Consultancy Services"; she submits that CESTAT, New Delhi in the case of appellants' themselves decided the issue, 2014 (8) TMI 227, in favour of the appellants holding that only the services in the nature of providing consultancy or advice for improving the business will be covered by the definition of "Management Consultancy Services" and not executionary type of services; Revenue challenged the order before Hon'ble High Court, who dismissed the appeal for lack of jurisdiction; an appeal filed by the Department before Hon'ble Apex Court was withdrawn on monetary limits. She submits that Department cannot take a different stand in this case. She also submits that the issue has been clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lients; the same was recovered on actual basis; for the period prior to 18.04.2006, the appellants were not liable to pay service tax on the OPE; after the amendment in Section 67 of the Act and introduction of Service Tax (Determination of Value) Rules, 2006, the appellants paid service tax on such OPE in accordance with Rule 5(1) of the Valuation Rules; the issue is no longer res integra in view of the Hon'ble Delhi High Court's decision in the case of M/s Intercontinental Consultants and Technocrats - 2013 (29) STR 9 (Del.) [affirmed by Hon'ble Apex Court 2018 (10) GSTL 401 (SC)], the issue of inclusion of reimbursement is no longer res integra. She further relies on the following cases : C.B.R.E. South Asia Pvt. Ltd. vs. C.C.E. & S.T. Adjudication, New Delhi, 2021 (51) G.S.T.L. 325 (Tri. - Del.), affirmed in 2021 (53) G.S.T.L. J60 (S.C.)] Indian Institute for Production Management vs. Commr. OF C. Ex., CUS. & S.T., BBSR-II, Orissa, 2021 (46) G.S.T.L. 55 (Tri. - Kolkata) Smt. Ritu Arora Versus CCE & S.T. Ludhiana, 2023 (11) TMI 1130 -CESTAT Chandigarh Reliance Industries Ltd. vs. CCE, 2008 (12) STR 345, maintained in 2011 (23) STR J226 (SC) Frankfinn Aviation Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any organization, the scope of the definition gets restricted to services in relation to consultancy as is evident from the name given to the service and commercial understanding of the expression "Management or Business Consultancy." 6. In the case of services for complying with the laws of the country it has been specifically ruled in the case of Ernest and Young (supra) that the service cannot be covered by definition at Section 65(65), because such services are executory in nature and not in the nature of consultancy or advice. 8. We further find that CESTAT has been consistently holding that actual performance of the activities do not fall under Management Consultancy Service. Therefore, we find that the issue stands decided in favour of the appellants. 9. Coming to the issue of Export of Services, we find that Tribunal Ahmedabad Bench in the case of B A Research India Ltd. (Supra) held that: 8. We have considered the submissions made by the learned DR. 9. The issue before us is whether the service conducting clinical trials provided by the respondents are taxable service under the category of technical testing and analysis as defined under the Act. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export of service and therefore not taxable." 10. From the above provision it is clear that the said services came under Rule 3(1)(2) (sic) of the Rules. It is very much clear that the performance of the service is not complete until the testing and analysis report is delivered to its client. In the present case, when such reports were delivered to the clients outside India it amounts to taxable service partly performed outside India. The performance of testing and analysing has no value unless and until it is delivered to its client and the service is to be complete when such report is delivered to its client. Thus, delivery of report to its client is an essential part of the service report was delivered outside India and same was used outside India. This is not the disputed fact. We hold that the respondent satisfied the conditions of Rule 3(2) and accordingly the respondents are eligible for the exemption under Notification No. 11/2007-S.T. dated 1-3-2007. We do not find any force in the argument made by the learned DR. With this observation, the impugned order is upheld and the appeal filed by the Revenue is rejected. Stay petition is also disposed off accordingly. 10. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices‟ because there is no dispute with regard to receipt of foreign exchange also. Though, in the impugned order, impugned services rendered by the appellant have been classified as „Technical Testing and Analysis services‟, which according to us, do not fall in the definition of „Technical Testing and Analysis service‟ because the appellant is not undertaking any technical testing and analysis for the purpose of testing of drugs and preparations. The ld. Commissioner in para 31.1 of the impugned order has observed that the service of administration of drugs or clinical research or testing of drugs provided by hospitals to pharmaceutical companies do not get completed unless results were collated by the assessee in the desired format. The collation of reports in a desired (digital) format is a Data Management service which the department has already accepted as „export of service‟. Even assuming that the services performed by the appellant are in the nature of testing and analysis service, even then, it will amount to „export of service‟ because the said service partly performed outside India, to the extent of delivery of rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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