TaxTMI 
TaxTMI 
2009 (6) TMI 975
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.... tax amount of Rs. 35,660/- payable during the said period, should not be recovered under Section 73(A) of the Act along with interest under Section 75 of the Act and besides, proposing penalty under Section 78 of the Act; that on adjudication, vide OIO No. RTN/STC/SCN/MSG/240/04-05, dated 6-11-2006, demand raised in the SCN-cum-Demand Notice was confirmed along with interest in addition to imposing penalty of Rs. 1,000/- under Section 77 of the Act; that being aggrieved by the above order, the appellant filed an appeal before the Commissioner (Appeals), who vide his OIA No. PII/BKS/54/2007, dated 12-4-2007 rejected the appeal as time-barred and that being aggrieved by the said appellate order, the appellant approached the CESTAT who vide its order No. A/410/WZB/CSTB/2007/C-I, dated 25-7-2007 [2007 (8) S.T.R. 364 (Tri.-Mumbai)] set aside the said OIA and remanded back for fresh decision on merits to the original adjudicating authority; that basing on the above directions, the present impugned order was passed wherein the lower authority has held that the activities of the appellant are falling within the meaning of "Consulting Engineer Services" and accordingly, the appellant is li....
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....ompared to the initial OIO and such 100% enhancement is arbitrary and totally unjustifiable. 3. PH was held on 3-6-2009 at 11.00 AM. Shri Vidyadhar Apte, Advocate along with Mrs. Vrinda Joshi, Advocate appeared before me at 11.00 AM. None appeared from department's side despite intimation. During the hearing, in addition to reiterating the submissions made in the appeal memorandum, they further submitted that their client did not render any 'consulting service' to M/s. Finolex Industries Ltd. from where he retired. In other words, he continued to do the same work which he was doing when he was working in the company. The scope of the work entrusted to their client vide M/s. Finolex Industries Ltd. letter No. FIL/JSA/1156, dated July 4, 2002 did not involve any 'Consulting Engineer's service' and such scope of work mentioned therein can be done by any person who need not have engineering qualification and hence they contended that their client is not liable to pay any service tax as 'consulting engineer' during the material period. 3.1 With regard to penalty, they referred to the SCN wherein the SCN invoked only Section 78 of the Finance Act, 1994 for imposing penalt....
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....on, RATNAGIRI Sub : Appointment as 'Executive (Electrical)'. Dear Mr Gokhale, We are pleased to appoint you as 'Executive (Electrical)' at our PVC Resin Division, Ratnagiri. The tenure of your contractual services as "Executive (Electrical)" will be of 12 months i.e. from 01/08/2002 to 31/07/2003. The terms and conditions of your appointments are as follows: A) Scope of Work : You will be responsible for : 1) Maintenance of HT & LT systems 2) New installation of HT & LT equipments. 3) Liaison with MSEB authorities. 4) Monitoring of meter reading of 33 KV and 220 KV. 5) Monitoring electrical energy/conservation. 6) Taking care of electrical installations at both colonies and Thorli Nala pumping station. 7) Controlling the activities of Electrical department. 8) Managing manpower utilisation. 9) Interacting with Telecom department for smooth functioning of telephone lines, and complaint solving. B) Professional fees : 1) You will be paid Rs. 26,000/- per month for above services. D....
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....ems mentioned therein from Sl. No. 1 to 9. A cursory reading of the above scope of works would reveal that the appellant was entrusted the work of liaison with MSEB authorities, maintenance of HT and LT equipments, controlling activities of electrical department, managing of manpower utilization etc. In other words, the appellant has neither given any advice nor consultancy services or any technical assistance. In view of the scope of works mentioned in the said letter, the activities of the appellant cannot be brought under the "Consultancy Engineer Service". 4.5 Further the appointment letter talks about professional fees of Rs. 26,000/- per month. It is a matter of common knowledge that no service provider can be given monthly payment. Further no service provider would be entitled for leave during the period of contract inasmuch as para F of the said appointment letter supra speaks that the appellant is entitled for 12 days with professional fees during the period of contract. All the above materials go against the department's contention that the activities of the appellant would fall under "Consultancy Engineer Service". 4.6 In addition to the above, the appell....