TMI Blog2018 (8) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has entered with the Foreign Companies/Establishments it can be seen that these contracts undertake to provide technical assistance in the form of handing over the technical specifications, suppliers installations diagrams and relevant data for processing of various process for installation of weapons and equipments in the warships which are being manufactured by the Appellant - the technical assistance contracts which the appellant has signed with foreign establishments, it is found that the terms of contract perfectly fits into the definition of consulting engineer service and therefore the Revenue has rightly classified the service under Consulting Engineering service. The demand of Service Tax prior to 18/04/2006 is not sustainable - the right classification for the type of services availed by the appellant is under the Consulting Engineer’s Service - matter remanded back to original adjudicating authority for limited purpose of re-calculating the Service Tax for the period after 16/04/2008 - appeal allowed by way of remand. - Appeal Nos. ST/240 & 243/09 - FO/76386-76387/2018 - Dated:- 29-6-2018 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI C.L. MAHAR, MEMBER (TE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court s in their judgment in the same matter, reported under 2010 (17) S.T.R J57 (S.C). The Ld. Advocate has held that before enactment of Section 66(A) of Finance Act, 1994, the Revenue does not have authority vested by law in term for demanding Service Tax on the services received by the Appellant from the persons who are based abroad and does not have any establishment in India. Secondly, it has also been contended that the Department has wrongly classified the service under Consulting Engineer s Service and as per the appellants the proper classification of the services received by them, should have been under category of erection, commissioning or installation services. 5. Heard both sides and perused the records of the appeal. 6. So far as the matter pertaining to payment of Service Tax on Reverse Charge basis is concerned, it is now a settled law that demand of Service Tax before enactment of Section 66 (A) of Finance Act, 1994 is legally not sustainable and therefore, the demand of Service Tax before 18/04/2006 is not recoverable. We take shelter of the above judgments of the Hon ble Bombay High Court in case of Indian National Shipowners Associatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2(1)(d)(iv) are clearly invalid. 18. So far as reliance placed on the notification dated 31-12-2004 for justifying levy of service tax from the members of the Petitioners-association is concerned, that notification has been issued under sub-section (2) of Section 68 of the Act. Sub-section 2 of Section 68 reads as under :- 68(2) Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service. The above provision authorises the Central Government to notify the taxable service, in relation to which the rules can be framed, in relation to such service. By the notification dated 31-12-2004, any taxable service provided by a person who is a non-resident or is from outside India is notified. If Rule 2(d)(iv) is taken to be rule framed pursuant to this provision, then a person who receives taxable service i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in its judgment in Laghu Udyog (supra) is squarely applicable to Rule 2(1)(d)(iv), which is relied on in this case. It appears that it is first time when the Act was amended and Section 66A was inserted by Finance Act, 2006 w.e.f. 18-4-2006, the Respondents got legal authority to levy service tax on the recipients of the taxable service. Now, because of the enactment of Section 66A, a person who is resident in India or business in India becomes liable to be levied service tax when he receives service outside India from a person who is non-resident or is from outside India. Before enactment of Section 66A it is apparent that there was no authority vested by law in the Respondents to levy service tax on a person who is resident in India, but who receives services outside India. In that case till Section 66A was enacted a person liable was the one who rendered the services. In other words, it is only after enactment of Section 66A that taxable services received from abroad by a person belonging to India are taxed in the hands of the Indian residents. In such cases, the Indian recipient of the taxable services is deemed to be a service provider. Before enactment of Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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