TMI Blog2014 (7) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... hed by the Commissioner that this agreement is for Management, Maintenance or Repairs. Matter needs a more detailed consideration of the agreements, the activities undertaken by the appellants in terms of the agreement and the basis for conclusion to classify any of the services in the taxable category. At this juncture it will not the out of place to mention that when an offence case is registered, the burden to prove that a taxable service has been rendered is on the Revenue and it is not of the assessee and in our opinion this burden has not been discharged in respect of both the services in this case The scope of the service of consulting engineering service is to render any advice on consultancy or technical assistance in any manner. From the definition it appears that the service has to be related to consultancy or technical assistance whereas from the agreement and from the summary of the agreements as reproduced by the Commissioner himself, the appellants are engaged in design, development of software, development of detailed engineering, procurement, fabrication of proto type of air craft. Prima facie, the activities undertaken by the appellants did not appear to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion would be appropriate have to be reproduced. 75. The following agreements are entered into between the parties for the purpose services. 1. The Agreement dated 26.09.2003 between HAL (Supplier) and JS AM (Air), Ministry of Defence, New Delhi (Purchaser). 2. The Agreement between Director DAMS at Air HQ (RKP) New Delhi dated 08.02.2002 contract number 91612/3/1/ACS (UPGRADE) 2002. 3. The Agreement between Defence Ministry GOI and AR DC HAL Bangalore on 10.10.2006. 4. The Contract for reconditioning for NWS-MS-MIRAGE 2000: Agreement between Ministry of Defence and HAL Bangalore for the reconditioning/upgradation of navigation and weapon system Maintenance Simulator (NWS-MS) and for carrying out the related services according to suppliers Technical Proposal on HAL/ARDC/SIM-MTS(1)/001/TECH/2002, dated 26.12.2003. 5. Upgradation of Sea Harrier contract No. 97/DNAM/C/04-05/Shruhal Between Jt. Secretary and Acquisition Manager (M.S) Ministry of Defence, Govt. of India, New Delhi and Hindustan Aeronautics united Bangalore (seller) for upgradation of fleet of 14 sea Harrier Aircraft dated 30.03.2005. 76. I find that on perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngineers Service means any professionally qualified engineer or anybody corporate or any other firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to any person in one or more disciplines of engineering. 82.2. Taxable service means any service provided or to be provided to any person, by a consulting engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering including the discipline of computer hardware engineering. Explanation - for purposes of this sub-clause, it is hereby declared that services provided by a consulting engineer in relation to advice, consultancy or technical assistance in the disciplines of both, computer hardware engineering and computer software engineering shall also be classifiable under this sub-clause Sec. 65(105)(g). 1) Consulting engineer means any professionally qualified engineer or engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to any person in one or more disciplines of engineering. The taxable service rendered by consulting engineer means any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment fabrication, flight clearance and testing of LCA/HJT-36. Further they had raised invoices at the end of every month, at a phased period and received the amounts. 86. In view of the above I find that the services like detailed design, development, fabrication, flight clearance and testing of LCA/HJT-36 undertaken by the unit fall under the category of Consulting Engineers Service. 87. I find that the total amount collected by the unit for the development for the period from October, 2005 to March, 2010 is ₹ 7,71,73,72,956/- and the service tax liability was amounting to ₹ 88,94,81,409/-. 6. A consideration of the Commissioners findings in respect of both the services shows that the Commissioner has reproduced the statutory provisions relating to definition of the service in the first paragraph; he has given a number of agreements in the second paragraph; in the third paragraph he has indicated his conclusions about the nature of work undertaken; in the fourth paragraph he has explained the activities covered by the definition and thereafter he has observed that the activities undertaken by the appellants are covered by the definition and confirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a taxable service has been rendered is on the Revenue and it is not of the assessee and in our opinion this burden has not been discharged in respect of both the services in this case. 7. As regards consulting engineers service, the activities undertaken by the appellants according to the learned Commissioner as reproduced in para 83 is design, development of software, development of detailed engineering, procurement, fabrication of proto type of air craft, development of new aircrafts, training, etc. The scope of the service of consulting engineering service is to render any advice on consultancy or technical assistance in any manner. From the definition it appears that the service has to be related to consultancy or technical assistance whereas from the agreement and from the summary of the agreements as reproduced by the Commissioner himself, the appellants are engaged in design, development of software, development of detailed engineering, procurement, fabrication of proto type of air craft. Prima facie, the activities undertaken by the appellants did not appear to be covered by the Consulting Engineers Service. The matter definitely requires a more detailed considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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