TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 1397
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.... set up the „Indian National Digital Library in Engineering Sciences and Technology Consortium‟ (for short 'INDEST') in 2003 and IIT, Delhi, i.e. the appellant, was designated as the Consortium Headquarters to coordinate its activities. The Consortium was re-named as INDEST-AICTE Consortium in December 2005 with the AICTE playing a pivotal role in enrolling its approved engineering colleges and institutions as members of the Consortium for selected e-resources at much lower rates of subscription. The Consortium enrolls engineering and technological institutions as its members and subscribe to electronic resources for them at discounted rates of subscription and favourable terms and conditions. The Ministry provides funds required for subscription to electronic resources for 62 centrally-funded Government institutions including IITs, IISc Bangalore, NITs, ISM, IIITs, IIMs, NITTTR's and few other institutions that are considered as core members of the Consortium. The benefit of consortia-based subscription to electronic resources is not confined to its core members but is also extended to all educational institutions under its open-ended proposition. 60 Govt./Govt.-aided ....
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....nsortium is a separate legal person and the services, if any, are received by the consortium and not the appellant. In such a case, the liability to pay service tax is on the consortium and not the appellant. The finding in the impugned order that the appellant has set up the INDEST consortium is factually incorrect. 5. In this regard, reliance is placed on Circular No. 148/17/2011-ST, dated 13/12/2011, issued in context of creation of a new entity in a joint venture, wherein it was clarified as under: "8. Such a joint venture is also recognized as a legal & juristic entity in the nature of a partnership of the constituent companies by the Hon'ble Supreme Court of India in the case of New Horizons [1995 SCC (1) 478; 1994 -TMI - 83686] wherein it was held that "the expression 'joint venture' connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject-matter, a right to direct and govern the policy in conne....
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.... awarded a contract for construction of goods in India by NHAI? 19. In support of his submission that the joint venture is a "person" as contemplated in the Exemption notification, learned counsel for Gammon had relied on the definition of the word "person" as given in para 3.37 of the Export and Import Policy for the year 1997- 2002. It reads thus : "3.37 - "Person" includes an individual, firm, society, company, corporation or any other legal person". 20. The argument was that since a joint venture has been declared to be a legal entity in New Horizons (supra), it squarely falls within the ambit of the said definition of the word "person". We are of the opinion that even if the stated stand on behalf of the appellant is accepted, mercifully, on stark facts at hand, it does not carry their case any further. Neither was it the case of the appellant either before the Adjudicating Authority or before the Appellate Authority or before us, nor is it suggested by the documents viz. the supply order or the bill of entry, that the import of the machine was by or on behalf of the joint venture. On the contrary, the Tribunal has recorded in its order that when questioned, learned coun....
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....) into three categories, i.e. (a) Immovable property related services, (b) Performance based services, and (c) recipient based services. The recipient based services in Rule 3(iii) of the Import Rules are taxable only when they are received by a recipient located in India for use in relation to business or commerce. The requirement of use of such services in relation to business or commerce for attracting the service tax liability under reverse charge is indispensable. 13. In the instant case, the alleged services are meant for use by educational institutions in educating the students. The educational resources made available by foreign vendors help the institutions improve productivity & quality of research and promote advance teaching & learning. These services, whether said to be received by the appellant or the consortium or the members thereof, are meant for use in education and not in any business or commerce. All the subscriber institutions are educational institutions and it is for the purposes of providing such subscription at discounted rates that the MHRD constituted the INDEST. It is beyond an iota of doubt that the said OIDA services received from abroad are meant for....
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....les read with Section 66A of the Act. 17. This argument of the appellant has been rejected in the impugned order on the ground that INDEST is open consortium of which private institutes can become members on payment of nominal subscription fee and thus, there is a business or commerce. It is submitted that the said finding is based on half-hearted appreciation of the legal provisions as also the facts. The liability under Rule 3(iii) read with Section 66A arises only when the services received from abroad are meant for use in business or commerce. In the present case, the said services are meant for use in imparting education by educational institutions and not for any business or commerce. In this regard, reliance is placed on decision of Tribunal in MP Power Generating Co P Limited v. Commissioner, 2017-VIL-450-CESTAT-DEL-ST. 18. Further, mere payment of a nominal subscription amount does not bring in any element or business/ commerce, when the purpose continues to be providing international educational resources at lower rates under the aegis of MHRD. This is more so when the alleged subscription amount is nothing compared to the amounts paid to foreign vendors for subscripti....
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....ope of MPS services prior to 01.05.2006. In this regard, reliance is placed on Circular No. 86/4/2006-ST, dated 01/11/2006, reproduced hereinabove. 25. In view of the above, it is submitted that confirmation of demand in the impugned order under the category of MPS services is not sustainable and deserves to be set aside. The appellant has not short-paid any tax. 26. The impugned order has confirmed the demand of service tax of Rs. 7,626/- for the period from October, 2004 to March, 2008 on the ground that the same was short-paid by the appellant. 27. It is submitted that for the said period, the appellant has, in fact, paid tax in excess, as evident from its submissions, duly supported by evidence. The said reconciliation was submitted by the appellant at the investigation stage itself, as evident from its letters dated 28/10/2009 and 18/02/2010. 28. In any case, the appellant was issued with a show cause notice dated 17/04/2006 proposing demand of short-paid service tax for the period from October, 2004 to March, 2005. The said show cause notice was adjudicated vide order-in-original dated 09/02/2010, wherein demand was dropped by observing that the appellant has, in fact, ....