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TMI Blog2024 (11) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, manufacture of ferro chem and wind power generation. During the relevant period, the Appellant entered into contracts with Foreign Service providers for visiting and conducting detailed review of data w.r.t. identified coal mines situated outside India by their expert teams for identifying opportunities for acquisition of mines situated outside India. The scope of work inter alia included review and validation of the data pursuant to site visits, meetings and discussions w.r.t. estimated resources and reserves of the mines; geological data; geotechnical and hydrological conditions effecting mining; raw and washed coal quality by seam; review of coal quality of proposed development/ exploration projects; wash ability characteristics including current yield and yield over life of the mines; health, safety, environmental or any other perceived issues. The expenses incurred by the appellant towards the above activities were recorded as 'Professional fees' in the P&L. 2.1. The Appellant also incurred 'Sampling charges', which were paid to third party inspection agencies for carrying out inspection w.r.t. the iron content of the iron ore which was relevant for ascertaining the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service have been set aside on the ground that the person providing the service was not a scientist or a technocrat, or any science or technology institution or organization: * Administrative Staff College Of India Versus C.C. & C.E., Hyderabad [2009 (14) S.T.R. 341 (Tri. - Bang.)]affirmed byCommissioner v. Administrative Staff College of India - 2010 (20) S.T.R. J117 (S.C.) * Steelcast Ltd. Versus Commissioner Of C. Ex., Bhavnagar [2009 (14) S.T.R. 129 (Tri. - Ahmd.)] approved byCommissioner Of Central Excise Versus Steel Cast Ltd. [2011 (21) S.T.R. 500 (Guj.)] * Mineral Exploration Corporation Ltd. Versus Commr. Of C. Ex., Nagpur [2015 (38) S.T.R. 421 (Tri. - Mumbai)] * Commr. Of C. Ex., Kolhapur Versus Kamud Drugs Pvt. Ltd. [2019 (22) G.S.T.L. 280 (Tri. - Mumbai)]. 3.3. The appellant further placed their reliance on the TRU Circular dated 09.07.2001 bearing F.No.B.11/1/2001-TRU, wherein it has been clarified that the scientific or technical consultancy service envisages expert opinion/ advice in one or more disciplines of science or technology . However, in the instant case, the activities under taken by the experts involves review and validation of the data pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and contended that taxable services provided from outside India and received in India in relation to services covered under Section 65(105) (zzzy) of the Act, shall be chargeable to tax in India only when such services are provided in relation to an immovable property situated in India. Further, in respect of services covered under Section 65(105) (zzi) and 65(105)(zzv) of the Act, the taxability shall arise when the services are performed in India. In the instant case, the mines (immovable property) are situated outside India. Further, mining as well as technical inspection services have been performed outside India. Hence, the taxability does not arise in India in respect of either of the services. 6. The Ld. Authorized Representative of the Revenue reiterated the findings in the impugned order. 7. Heard both sides and perused the appeal documents. 8. Regarding the demand of service tax confirmed under the category of 'Scientific or Technical Consultancy Services' on RCM basis, the appellant cited the definition of 'Scientific or Technical Consultancy' and contended that any service rendered by them is classifiable under the category of 'Scientific or Technical Consultancy' o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnical assistance provided by a scientist or a technocrat or a science or technology institution on any issue relating to any branch of science and technology. Such consultation may be in the nature of an expert opinion/advice in regard to scientific or technical feasibility or any other scientific or technical aspect of a project, process or design, recommending an apt technology, suggestion for improvement in existing technology or process, providing consultation on any technical problem or about new technology, etc. Some of the specific issues raised and clarifications thereon are given below. ...." [Emphasis Supplied] 8.3. In the instant case, we observe that the activities under taken by the experts involves review and validation of the data pursuant to site visits, meetings and discussions w.r.t. estimated resources and reserves of the mines; geological data; geotechnical and hydrological conditions effecting mining etc. These activities performed by the Foreign Service providers evidently do not fall within the ambit of scientific or technical consultancy services. Thus, the Circular issued by the Board cited above also supports the view that the service rendered by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view has been taken in the following decisions: * Ashish Ramesh Dasarwar Versus Commissioner Of Central Excise & Service Tax, Nagpur [2017 (9) TMI 1001 - CESTAT Mumbai] * M/s Choudhary Stone Crushing Co. Versus Commissioner Of Central Excise And Service Tax-Jaipur-II [2019 (3) TMI 38 - CESTAT New Delhi] 8.7. Thus, by relying on the decisions cited above, we hold that the demand confirmed in the impugned order under the category of 'scientific or technical consultancy services' is not sustainable. 9. Regarding the demand of service tax confirmed in the impugned order on 'sampling charges', we observe that the payment in foreign currency has been made to third party inspection agencies for carrying out inspection w.r.t. the quality of iron ore exported by the Appellant as per the requirements of the export orders. Hence, the same is classifiable as 'Technical Inspection and Certification Service' as defined under Section 65(108) of the Act. The services are not provided by a science or technology institution or organization and are merely in the nature of technical inspection and certification service. However, we observe there is no demand made under the category of ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he place of provision of service is outside India, as the service is provided by team of experts deployed by the foreign services providers to identify mines (immovable property) situated outside India. Accordingly, we hold that the same shall not be chargeable to service tax at the hand of the appellant, on RCM basis. 10.4. Service Tax liability w.r.t. Sampling Charges: In terms of Rule 4(a) of the POPOS Rules, place of provision of services provided in respect of goods that are required to be made physically available by the recipient of service to the provider of service, in order to provide the service, shall be the location where the services are actually performed. Further, Para 5.4.1 of the Service Tax Education Guide specifies technical testing/ inspection/ certification service to be performance-based service covered under Rule 4 of the POPOS Rules. Hence, the place of provision in the instant case is the place where the services are actually performed (outside India). Accordingly, we hold that the same shall not be chargeable to service tax at the hand of the appellant, on RCM basis. 10.5. In view of the above discussions, we hold that the taxability does not arise in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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