2011 (5) TMI 611

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.... show-cause notice on merits as well as on limitation before the adjudicating authority. The adjudicating authority after considering the submissions made before him confirmed the service tax demand of Rs.33,25,550/- under the head 'Management Consultancy Service' along with interest and imposed penalties under Section 75(A), 76, 77 and 78 of the Finance Act, 1994. Aggrieved by such an order, appellant preferred an appeal before the ld. Commissioner(Appeals). Ld. Commissioner(Appeals) after considering the written and oral submissions made before him, upheld the Order-in-Original. Hence, this appeal. 3.1. Ld. Counsel appearing on behalf of the appellant would submit that the appellant is not rendering 'Management Consultancy Service' as understood under Section 65(37) of the Finance Act. It is his submission that as per the existing definition during the relevant point of time, the definition could be divided into two parts i.e. one any person who is engaged in providing any service in connection with the management of any organization and inclusive portion which indicated the service of advice, consultancy or technical assistance relating to conceptualizing, devising, development....

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....ants were exported and no service tax can be levied. He would submit that the demand is time barred as there is no claim of willful suppression with intends to evade tax, besides a bald repetition of the words of the statute. It is his submission that the Hon'ble Supreme Court in the case of Continental Foundation Joint Venture Vs. CCE [2007(216) ELT 177 (SC)] and Cosmic Dye Chemical Vs. CCE [1995(75) ELT 721 (SC)] has clearly held that there has been something more than mere allegation of suppression. 4. Ld. SDR appearing on behalf of the Department would reiterate the findings of both the lower authorities. He would specifically draw our attention to the definition of 'Management Consultant' during the relevant period. It is his submission that the activity done by the appellant would fall under the category of Technical Assistance' relating to upgradation of any working system in organization. It is his submission that the market research conducted by the appellant was in respect of upgradation of the marketing system of the parent company inasmuch as the parent company could strategize the marketing of the products in India which is a management function. It is his submission ....

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....ny service, either directly or indirectly in connection with the management of any organization in any manner and includes any person who renders any advise, consultancy or technical assistance relating to conceptualizing, devising, development, modification, rectification or upgradation of any working systems of any organization." It can be seen from the above reproduced definition, as submitted by the ld. Counsel, it contains two portions. We are concerned with the interpretation of the second portion i.e. inclusive definition. It is undisputed in this case that the appellant has not given any advice or consultancy to the parent company. As regards the interpretation of definition of technical assistance relating to conceptualizing, devising, development, modification or rectification or upgradation of any working system of any organization, we have to stick to the facts of this case, in which the appellant has only done research of the acceptability of the products of the parent company. The market research did not include any assistance in relation to conceptualizing, devising, development, modification or rectification or upgradation of any working system of parent company. W....

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.... is also undisputed that the said amount has been recorded in the accounts and reflected in the balance sheet as an income. In light of this above, it is to be seen whether the appellant is eligible for the benefit of Notification No.6/99 or not. The said notification is reproduced herein:-         Notification: 6/99-ST dated 9th April, 1999     Service Tax - Exemption when payment for taxable services is received in India in convertible foreign exchange - Notification No. 2/99-S.T. superseded     In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 2/99-Service Tax, dated the 28th February, 1999, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable services specified in subsection (48) of section 65 of the said Act, provided to any person in respect of which payment is received in India in convertible foreign exchange, from the whole of the service tax leviable thereon under section 66 of th....