2008 (7) TMI 58

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....l the 3 appeals are against Order-in-Appeal Nos. 1/2008 to 3/2008, dated 21-1-2008 passed by the Commissioner (Appeals), whereby 3 Orders-in-Original were upheld against the party. Order-in-Original No. 2/2007 and Order-in-Original No. 3/2007, both dated 16-1-2007, were passed by the original authority demanding service tax of Rs. 1,67,130 (with interest) and Rs. 1,32,447 (with interest) respectively for the periods 26-4-2000 to 11-4-2002 and 13-8-1999 to 8-10-1999 and imposing penalties on the party under various provisions of the Finance Act, 1994. These Orders-in-Original as affirmed by the Commissioner (Appeals) are under challenge in the present appeals, S/91 and 92/2008. The show-cause notice relevant to Appeal No. S/91/2008 was issue....

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....ter hearing both sides and considering their submissions, I allow both these appeals, holding that it is not open to the Department to recover service tax from a person in pursuance of a show-cause notice addressed to another person. 4. Appeal No. S/90/2008 is against a demand of service tax of Rs. 4,16,996 under the category 'consulting engineers service' for the period 3-1-1998 to 6-3-2000. The aforesaid Chinese company had agreed to send their technical personnel to India to supervise installation of equipment, adjustment, test-run and commissioning of an Oxygen Plant for the appellants. This agreement provided for payment of Rs. 350 + US$85 per calendar day per head for the said service by the appellants to the Chinese company. The i....

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....text of the agreement as also from the provisions governing payments of consideration for the service. It is not deniable that technical assistance was involved in such supervision of installation and commissioning of the Oxygen Plant. But this per se would not bring the service within the purview of 'consulting engineer's service'. For levy of service tax in this category, it must be shown that the service provider was a qualified engineer and that he provided, directly or indirectly, any advice, consultancy or technical assistance in any manner to the appellants in one or more disciplines of engineering. The revenue is yet to establish the ingredients of this service in the present case. There is not even a mention of the discipline of en....