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TMI Blog2007 (4) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... hat demand as well as the penalty imposed for failure to pay the said tax. 2. The contention of the appellant is that the agreement was not a Consultancy Agreement but a Management Agreement and the revenue authorities are in error in treating the agreement as a Consultancy Agreement. It is also being pointed out that this Tribunal dealt with a similar case in its decision in the case of Rolls Royce Industries Power (I) Ltd. v. CCE, Vishakhapatnam as reported in 2006 (3) S.T.R. 292 (Tri.) = 2004 (171) E.L.T. 189 (Tri. - Del.) and held that Service Tax as consultant is not attracted to a case where, under a contract, the operation and management of an industrial unit is taken over by a party. 3. The learned SDR would rely on CBEC's ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appointed as referred in para 2 of this agreement shall be on the pay rolls of the Factory and shall be paid remuneration as employees of the Party of the First Part. 4. That the workmen and staff already employed in the Factory and the new staff appointed by the Party of the Second Part will continue to remain the employees of the Party of the First Part. 5. That both Parties have agreed that nothing contained in this agreement shall create employer - employee relationship between Party of the Second Part and any officer or workmen employed in the Factory at Maizapur. 6. That the loan application for sanction of facility for liquidation of cane price is at an advanced stage with a Bank/Financial Institution. Joint efforts will be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely arrangements of finance is the essence. To provide leverage in liquidity, the Party of the First Part has agreed to allow the operation of an account with a designated bank to one nominee of the Party of the Second Part as joint signatory with the Party of the First Part. The modus operandi will be decided mutually. 13. The party of the Second Part has agreed to use funds provided by the Party of the First Part and generated in the Factory or loan raised for the Factory shall exclusively be used for the functioning of the Factory and no diversion of funds for any other purpose shall take place. 14. That the Party of the Second Part will not provide any security/guarantee for any loan/financial assistance from Banks/FI's. This obl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the month commencing from the 1st April to 31st day of July." 5. The perusal of the above clauses make it clear that under the agreement with Indo Gulf Industries Ltd. the appellant has been "entrusted the operation of the factory" (Clause '1'). The remaining clauses of the agreement are to enable the appellant to perform the operation of the factory smoothly and well. The agreement is not for any advice or consultancy. 6. The definition of management consultant under the taxing statute may be noted :- "'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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