TaxTMI 
TaxTMI 
2010 (9) TMI 313
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.... matter was heard at length. Though elaborate arguments were addressed by both sides, it is seen from the perusal of the order dated 28-12-2006 passed by CESTAT that Tribunal has not proceeded to consider the appeal on merits namely as to the taxability of the respondent as "Consulting Engineer" or otherwise at relevant point of time though urged by Revenue. The copy of appeal memorandum filed before the Tribunal was made available by the learned counsel for the revenue before this Court during the course of his submission and having perused the same it is seen that a specific ground has been raised with regard to the taxability in so far as the services rendered by the respondent. This being the factual position, the tribunal without dwelling upon this core issue has disposed of the appeal by i[s order of rejection dated 28-12-2006, only on the ground that the issue in question had been dealt in Jindal Vijayanagar Steel Limited which again is the subject matter for consideration in the appeal filed by the revenue before this Court. In view of non-consideration of the ground urged by the revenue before the Tribunal about taxability or otherwise of the services of respondent at rele....
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.... Appeal, which are reproduced herein under :- "(1) The Appellate Authority has attempted to form an opinion that the appellant's company is not falling under the category of an engineering firm, so as to fit in the definition of consulting engineers under section 65(39) of the Finance Act, 1994. This opinion is found attempted by the appellate authority without any recourse to the position of law. In order to form this opinion he has reasoned that an engineering firm generally would mean a firm which is engaged in the activity of execution of engineering projects. It cannot be stated by any stretch of imagination that the appellant's company is not an engineering firm. (2) The observation of the learned appellate authority that in the definition of taxable service under Section 65(105)(g) of the Finance Act, 1994, the word "technical assistance" is prefixed with the word advice and consultancy is not correct. The character of the words advice and consultancy each carry individual meaning as that of "technical assistance". Therefore, the words (i) advice, (ii) consultancy and (iii) technical assistance are independent in itself and does not qual....
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....rnataka in the case of Tata Consultancy Services v. UOI - 2006 (2) S.T.R. 386 (Kar.) = 2001 (130) E.L.T. 726 (Kar.) for the proposition that the language of a statute in its ordinary meaning should be considered for application of taxable liability. He would also submit that the respondent had been providing Certificate of Training to the people. He would submit that the Board's Circular dated2-7-1997and more specifically para 3.3 of the said Board's Circular clarified the scope of services of Consultant which also included 'Manpower Planning and Training' among others. It is his submission that the Order-in-Appeal be set aside and the Order-in-Original be restored. 5. The learned Counsel, on the other hand, would submit that the impugned order is correct and proper. It is his submission that the introduction of separate of category of services viz. "Commercial Training or Coaching Centre" w.e.f.1-7-2003would establish the fact that providing or imparting training was not within the purview of levy of Service Tax prior to1-7-2003and that too under "Consulting Engineer" category. He would also submit that CBEC vide Circular dated 13-5-2004 as reported in 2004 (167)....
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....facturers of "Distributed Control System" machines. In fact, an engineering firm generally would mean a firm which is engaged in the activity with the help and assistance of the qualified assistants and their activities would include execution of engineering projects such as chemical plants, ports, dams and bridges etc. The advice, consultancy or technical assistance is rendered by such engineering firms on such projects starting from the initial stage to the final stage. At times, it may be an advice, consultancy or technical assistance for a particular situation/problem. In the process, such firms/companies may manufacture certain items connected with the projects they are specializing in. If this yardstick is applied, I am of the opinion that the appellants do not fall under the category of an engineering firm. Assuming that the appellants are engineering firm, the question to be decided is as to whether the training imparted by the appellants are in the nature of advice, consultancy or technical assistance. Advice means "view, opinion, information, the counsel given by lawyers to their clients, an opinion expressed as to wisdom of future conduct" (quoted from a case law) Adv....
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....s falling under any one of the disciplines of engineering. In addition, the lower authority has referred to the Board's Circular No. 43/5/97-TRU, dated2-7-1997. This circular is regarding imposition of levy of Service Tax on Manpower Recruitment Agent and Consulting Engineer. The scope of the services of a Consulting Engineer has been enumerated and the situations are only illustrative and not exhaustive. At Sl. No. viii, manpower planning and training has been specified. It is pertinent to note that there is no elaboration/explanation of the term manpower planning and training. Only because there is a mention of 'training' in the circular, it doesn't mean that training of any sort would attract the levy of service tax. Thus the term "manpower planning and training" has to be understood in the general terminology. Generally, manpower planning refers to advice/consultancy rendered by a Consulting Engineer for optimum usage of manpower, planning of manpower, qualification and experience of manpower, etc., to get the desired results. The training referred herein refers to training that may be given to train the manpower to achieve optimum level of efficiency in any organization. As c....
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....roduced herein below : "Section 65(13) : 'Consulting Engineer' means any professionally qualified engineer or an engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one' or more disciplines of engineering." "Section 65(48)(g) : 'taxable service' means any service provided - to a client, by a consulting engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering." 6.4 It can be seen from the above reproduced definition that the said entry seeks to tax Consulting Engineers who are directly or indirectly rendering services of advice, consultancy or technical assistance. The Revenue's contention in this case is that by training the employees/officers of the assessee, the assessee is giving technical assistance. We are unable to appreciate this submission made by the learned Departmental representative. It is seen that this submission is also not taken in the Grounds of Appeal. The technical assistance would never include a training imparted to employees of the customers to operate a system/machinery installed or to be installed fo....
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....allowing the appeal." 6.6 It is also seen that in the case of Karvy Consultants Ltd. v. CC&CE, Hyderabad - 2008 (10) S.T.R. 166 (Tri.-Bang.), this Bench held as under :- 6. On a very careful consideration of the issue, we find that there is no dispute regarding the fact that the appellants are engaged in the services of share transfer agent and registrar official. They first brought into service tax net only w.e.f.1-5-2006. The Tribunal in the case of Ankit Consultancy [2007 (6) S.T.R. 101] cited by the learned Advocate elaborately dealt with this issue and has given a finding that prior to this period it would not come fall within the category of 'Business Auxiliary Services'. Moreover, in the present case the show cause notice it time barred, as the longer period cannot be invoked. In view of the fact, that there was no suppression of fact. Therefore, both on merits and also on limitation there is no justification in the impugned order. The same is liable to be set aside. Hence, we allow the appeal with consequential relief. 6.7 We are also fortified in our view that when new services are introduced, these services will not fall under any of the earlier category....