TaxTMI 
TaxTMI 
2015 (9) TMI 316
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....nts to M/s. Transocean and M/s. Tide Water, were listed in the agreement entered into by the appellant with these entities and are described in the table below :- S. No. Activities Performed 1. Assist the company in obtaining work at acceptable rates; 2. Advise and assist the company on the commercial aspects of preparation of bids and subsequent contract negotiations; 3. Keep the Company advised on current developments in the territory which may affect its business and operations; 4. Upon request, advise the Company regarding securing Government licenses, permits and certificates as may be required with respect to its business and operations; 5. Upon request, advise the Company regarding obtaining visas and labour permits for entry into and departure from India of the Company's personnel in connection with any Work; 6. Advise the Company from time to time on the importation into and exportation out of India of all vessels, equipment, supplies, materials and consumables requested by the Company in connection with any Work; 7. Assist the Company on the importation and exportation of the drilling rigs in and out of India; 8. Advis....
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....aters, Continental Shelf, Exclusive, Economic Zone and other Maritime Zones Act i. Customs Act and; 17. Advise the Company with respect to current economic and political developments in India. The Adjudicating Authority confirmed the demand alongwith interest and penalties invoking extended period holding that: (i) Service rendered to Transocean and Tidewater groups fell in the category of Management Consultancy Service, (ii) the appellants were guilty of wilful misstatement/suppression of facts with intent to evade service tax. 3. The appellants have contended as under :- (i) The term "Management Consultant" was defined in Section 65(65) of the Chapter V of the Finance Act, 1994 as under :- "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 or technical assistance, relating to conceptualizing, devising, development, modification, rectification or upgradation....
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....for Cricket in India v. CST - 2007-TIOL-684-CESTAT-MUM. = 2007 (7) S.T.R. 384 (T). (d) Telephone Cables Ltd. v. CCE - 2007 (7) S.T.R. 657 (Tri.-.Del.) (e) Bharti Televentures Ltd. v. Commissioner of Central Excise Delhi-I - 2013 (30) S.T.R. 148 (Tri. - Del.) (vi) So long as the consideration was received in convertible foreign currency, the service tax was exempt during the entire period by virtue of it being export of service. (vii) As regards a part of payment received by the appellants from ONGC in respect of service rendered to the foreign service providers (M/s. Tidewater and M/s. Transocean) the same is to be considered as payment received in convertible foreign currency because ONGC was required to pay a quantum of sum in foreign currency to the same foreign service providers who were to pay the appellants and the ONGC deducted an equivalent amount from the amount due to be paid by them to the foreign service providers and sent that amount to the appellants here in India. It is contended that it has been held by Hon'ble Supreme Court in the case of J.B. Boda and Co. Pvt. Ltd. v. CBDT - (1997)....
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.....) would be applicable. 6. We have considered the submissions made by both sides. The facts of this case are similar to the case of Jubiliant Enpro (P) Ltd. v. CCE, Noida and this order is therefore also similar to the CESTAT Order Nos. 54492-54493, dated 24-11-2014 in that case, [i.e., Jubilant Enpro (P) Ltd.] [2015 (38) S.T.R. 625 (Tri.-Del.)]. 7. A careful perusal of the appellants services to M/s. Transocean and M/s. Tide Water detailed is para 2 above makes it clear that the appellants were advising the clients about various aspects relating to Management. The services are not executionery in nature and are clearly advisory in nature. The definition of "Management Consultant" is so worded that the services performed by the appellants clearly fall within its scope and for that one only has to read the definition of "Management Consultant" quoted earlier vis-à-vis the description of impugned services (detailed in para 2) to come to such finding. The expressions like "any service", "either directly or Indirectly", "inconnection with the management", "in any manner" appearing in the definition of 'Management Consultancy Service' are expressions which are exp....
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....vice of the nature described in para 2 above. 8. Regarding the appellants' contention that the said services would be appropriately covered in the category of support services of business or commerce, or Business Consultancy Service, the same is not tenable because as per the definition of support service for business or commerce, the activities covered thereunder are essentially executionery in nature. Further the impugned service clearly fell under the scope of Management Consultancy service as analyzed earlier and therefore the conversion of Management Consultancy Service into Management or Business Consultancy Service would make no difference whatsoever about the appellants' liability. We are not eager to discuss this argument in greater detail simply because while interpretational support from later legislative developments is not to be spurned, such a support is unwarranted and unnecessary when there exists no ambiguity which is needed to be resolved. As has been discussed earlier, the impugned services rendered to Transocean/Tidewater categorically and unambiguously fall within the ambit of Management Consultancy Service. A perusal of the changes brought about in the....
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....is taken in the loop, such transactions will not go unnoticed for the purpose of the relevant data bases of India's international trade and foreign exchange transactions and will also not remain under the radar of the laws relating thereto. Thus, the impugned payments made by ONGC to the appellants do not merit to be treated as payments received in foreign exchange. 10. With regards the allegation of suppression of facts/willful mis­statement, it is relevant to note that the appellants did not take registration, did not file any returns and also did not pay service tax due. They have merely stated in their defence that they had bona fide belief that they were not liable to pay the impugned service tax and cited several familiar decisions of Supreme Court essentially to the effect that mere negligence or failure on the part of the manufacturer does not attract extended period and something positive other than mere inaction or failure on the assessee's part or conscious withholding of information when the assessee knew otherwise is required for invoking extended period. They have however not given any basis as to how they developed/entertained such a belief. They are not ....
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....hat Punjab & Haryana High Court in several cases (viz CCE v. First Flight Couriers Ltd. - 2011-TIOL-67-HC- P&H-ST = 2011 (22) S.T.R. 622 (P&H)/CCE, Chandigarh-I v. M/s. Cool Tech Corporation - 2011-TIOL-23-HC-P&H-S.T., CCE v. Pannu Property Dealers Ludhiana - 2010-TIOL- 874-HC-P&H-S.T. = 2011 (24) S.T.R. 173 (P&H) has held that even if at the relevant time the penalties under Sections 76 & 78 were not mutually exclusive, once penalty under Section 78 has been imposed, penalty under Section 76 ibid may not be justified. We also have no difficulty in agreeing with the appellants that maximum penalty under Section 77 was only Rs. 1,000/-. 13. The appellants have questioned the issue of computation of impugned demand. We find that they took up this issue before the adjudicating authority also who also dealt with it. It has been clearly recorded in the Order-in-Original that they did not produce any documentary evidence to question the computation made by Revenue. They have not disputed this observation of the adjudicating authority. Therefore this plea at the appellate stage in the absence of any valid ground as to why they could not produce the documentary evidence before the ....