TMI Blog2016 (9) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... t exist in law is not permitted by law, more so when review order is passed much after order passed by the Commissioner (Appeals). We also find that the Department has also filed appeal against the Order-in-Appeal. In view of these facts and circumstances, we are of the considered opinion that the impugned order is bad in law and we set aside the same. - Decided in favour of appellant - ST/10/2006 & ST/100/2004 - Final Order Nos. 20766 & 20767/2016 - Dated:- 15-9-2016 - Shri S. S. Garg, Judicial Member And Ashok K. Arya, Technical Member Mr. N. Anand, Advocate For the Appellant Mr. Pakshi Rajan, A.R. For the Respondent ORDER This order will dispose of two appeals, one filed by the assessee against the Order-in-Original No. 10/2005 dated 30.11.2005 passed by the Commissioner of Service Tax, Bangalore and the second appeal filed by the Department against the Order-in-Appeal No. 167/2004 CE dated 31.08.2004 passed by the Commissioner of Central Excise (Appeals), Bangalore. 2. For the sake of convenience, we take up the appeal filed by the assessee-appellant. The appellant, M/s Secon Surveys (P) Ltd., is a private limited company and is engaged in the busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Central Excise, Bangalore passed Order-in-Original dated 16/7/2004 demanding service tax on the following : (a) That insofar as Land Survey is concerned the same was not covered under the Consulting engineer category prior to 26.2.2002. (b) That Land survey would be including within the ambit of definition of consulting engineer only w.e.f. 27.2.2002 pursuant to Board s Circular No. 1/1/2002-S.T dated 26.2.2002. (c) That insofar as Geo-tech investigation the same is covered only w.e.f. 1.7.2003 onwards under the category of technical testing, analysis, inspection and certificate services. In this regard, reliance was placed on the amendment made by the Finance Act, 2003 and the Board Circular No. 79/9/2004-S.T. dated 13.5.2004. Hence, geo-tech investigations were not covered under consulting engineer prior to 1.7.2003. (d) That the activity of Right of Use/Ownership (ROU/ROW) did not involve any consultancy service. (e) That work executed by the appellant as a sub-consultant was not liable for tax in the light of Trade Notice No. 53/97 dated 4.7.1997. (f) That services relating to software development, data capture and process were not taxable in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the circular out of context and misinterpreted the same. (iii) That even after the Board Circular dt. 26.2.2002, the provisions relating to consulting engineer had not changed. Hence the order of the adjudicating authority that after 26.2.2002 land survey would fall within consulting engineer was unwarranted and without basis. (iv) That turnkey projects could not be taxed under the category of consulting engineer in the light of Daelim Industrial Company vs. CCE, 2003 (155) ELT 457 (T) as affirmed by the Supreme Court in 2004 (170) ELT A181. (v) That extended period of limitation under Section 73 of the Act was rightly invoked. 3.4. In the light of the findings the Commissioner (Appeals) passed the following order : (a) The demands pertaining to following were set aside (i) Land survey and related activities from 26.2.2002. (ii) Turnkey projects involving design consultancy work. (iii) Consulting services which are composite in nature involving design consultancy and auxiliary services. (b) The adjudication order imposing service tax on pure consultancy was upheld. (c) The appellants were held liable to pay interest under Section 75. (d) In the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was illegal in seeking to review the adjudication order since the same merged with the appellate order. c. That a new service of survey and map-making has been specifically brought under service tax by the Finance Act, 2005 w.e.f. 16.6.2005 andt he same did not cover under the consulting engineer category. To support this contention reliance was placed on the decisions in CCE v. MRF Ltd. 2005 (179) ELT 472 (T) and in Roots Multiclean Ltd. v. CCE, 2005 (179) ELT 107 (T). (g) As regards geo-tech investigations, hire charges for hiring chattel and crew was concerned the same did not fall under consulting engineer . That geo-technological investigation primarily involved soil drilling, boring, etc., and got specifically covered under new service site formation and clearance, excavation and earth moving and demolition introduced by the Finance Act, 2005 w.e.f. 16.6.2005. The adjudication order was proper in upholding this aspect. That insofar as charges towards hiring of chattel and crew, the same did not fall within the ambit of value of taxable service under Section 67, since these did not represent the value charged towards rendering of any taxable service. (h) That as reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from legal infirmity. These services are part of the engineering services carried out to examine the suitability of soil and to determine the type of structure, etc. The contention of the assessee is not legally sustainable. (iii) Charges for hiring chattel and crew at the site: That the value of taxable service is the gross amount charged and these charges do not merit exclusion. (iv) Charges received for consulting services, which are composite in nature: That the appellant failed to adduce any evidence to prove that these services did not involve any engineering consultancy. That in the absence of any proof, the service tax is liable to be demanded. (v) That the plea taken by the appellant that the original order being review had merged in the Order-in-Appeal was not legally sustainable. That the order-in-appeal passed by the Commissioner (Appeals) was not binding on the Commissioner in revision proceedings under Section 84 of the Act. That Section 84 and 85 were independent sections, which operated in different spheres distinguishable from each other. The revision proceedings did not suffer from any legal infirmity. (vi) That the contentions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices and exercise his powers in Rule 3 of the Service Tax Rules are crucial. This conveys the intent of the rule maker, to show that a Central Excise officer as defined in Section 2(b) of the Central Excise Act read with Rule 3 of the Central Excise Rules can in turn be appointed under Rule 3 of the STR for the exercise of powers within such local limits assigned to them for specified taxable services; and the appointment made under Rule 3 of the Central Excise Rules does not mean an automatic appointment under Service Tax law, more so when the Finance Act, 1994 is silent on appointments. The provisions of Rule 3 of the Service Tax Rules cannot eclipse the Finance Act, 1994 and enable the Government to make appointments contrary to law. Section 65(121) is not a provision enabling appointment of officers of Central Excise. That power stems only from Central Excise Act/Rules. The words such , local limits , assign , specified taxable services and exercise his powers employed in Rule 3 of the Servie Tax Rules are to be given due play, otherwise they become meaningless and otiose. When the Central Excise Act/Rules give specific territorial limits to Central Excise officers, the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court]. He also submitted that the Department has also filed appeal against the Order-in-Appeal before the CESTAT whereas on the other hand passed Order-in-Original in exercise of powers of review under Section 84 of the Finance Act which is not correct in law. Further, the assessee has relied upon the following decisions on merits : (i) CCE C. Vadodara-II Vs. Mascon Multiservices Consultants P. Ltd. [2009 (14) STR 190 (Tri-Ahmd.)] (ii) CCE C., Vadodara-II Vs. Mascon Multiservices Consultants P. Ltd. [2010 (19) STR 484 (Guj) (iii) CCE, Cus ST, Vadodara II Vs. SKP Projects (P) Ltd. [2015 (38) STR 1144 (Tri.-Ahmd.)] (iv) Geo Foundations Structures (P) Ltd. Vs. CCE C., Cochin [2009 (15) STR 408 (Tri.-Bang.)] (v) CCE Cus., Kerala Vs. Larsen Toubro Ltd. [2015 (39) STR 913 (S.C.)] (vi) CST, Bangalore Vs. Turbotech Precision Engineering Pvt. Ltd. [2010 (18) STR 545 (Kar.)] (vii) CCE ST Vs. Simplex Infrastructure Foundry Works [2014 (34) STR 191 (Del.)] (viii) CCE, Jaipur-I Vs. Consulting Engineers Groups Ltd. [2014 (36) STR 634 (Tri.-Del.) (ix) CCE Vs. Sanghi Threads [2015 (321) ELT 180 (S.C.) 9. The learned A.R. on the on hand supp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
