2023-VIL-234-CESTAT-CHE-ST
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SERVICE TAX CESTAT Cases

Service Tax – Section 65(105)(g) and Section 65(65) of Finance Act, 1994 - Classification of service - Consulting Engineer Service or Management or Business Consultant Service - appellant is engaged in the field of civil construction, performing supply of post tensioning slabs / beams, installation, stressing, grouting, etc. - assessee entered into an ‘Offshore Services Agreement’ with their holding company whereby the holding company provided the appellant with requisite technical assistance in the fields of consultancy, advisory, operation and other services – Revenue case that services are appropriately classifiable under “Management or Business Consultant” services whereas services have been classified by the appellant as falling under the category of “Consulting Engineer” services - Classification of the service involved – HELD - Section 65(105) (g) of the Finance Act, 1994 requires that a consulting engineer’s service be a service rendered by a consulting engineer - It is reasonable to construe this definition as meaning that whoever renders these services, they must be linked in one way or another to the field of engineering - a service provider cannot be treated as a consulting engineer, and a service cannot be classified as a consulting engineer’s service, unless it is inextricably linked to or, by itself actually is, engineering of whatever discipline – In the present case, services rendered extend far beyond engineering to areas like procurement management, purchase negotiations, supplier selection, management information systems etc. - the services in question do not constitute the services of a consulting engineer - Section 65(65) of the Act is worded widely enough to cover financial management, human resources management, marketing management, management of information technology resources and, the crucial residuary limb “other similar areas of management”, all the services under the agreement will fall under one or the other of these limbs - agree with the conclusions drawn by the Ld. Commissioner in classifying the services received by the appellant under ‘management or business consultant’ service – Demand is confirmed for normal period – appeal is partly allowed - Whether the TDS amount remitted by the appellant partakes the character of consideration for ‘service’ – HELD - TDS is a tax obligation which can never partake the character of value or consideration for the transaction or of the goods or of services. It is not uncommon that any business contract / agreement inter-se parties primarily focuses on the value/consideration and then spells out as to who would bear the TDS obligation. This cannot be construed as to mean that TDS is also a part of such value/consideration. This is also because, any value / consideration agreed upon is strictly the choice of the parties but the TDS depends on the rate in force at the relevant point of time - when such TDS is not received from the non-resident since it is not towards value / consideration, there is no merit in requiring such assessee to include even the TDS it paid in the value of services, as in the case on hand - not agreeing with the argument advanced for the Revenue that as per the terms of agreement, it is for the appellants to bear the TDS and thus it is to be treated as part of the consideration - in such agreements where one is a non-resident and such non-resident doesn’t have any PE, then it becomes the responsibility of the other party who is an Indian resident, to meet with the TDS obligation arising on account of the agreement in question - With regard to includability of TDS, the appellant was correct in not including the TDS amount in the value of taxable services - Whether the contention of the appellant that the situation is revenue neutral is correct – HELD - the issue of Revenue neutrality being a question of fact, the is to be established in the facts of each case and not merely by showing the availability of an alternate scheme – matter remanded back to the file of the Adjudicating Authority to examine if the appellant is entitled to avail CENVAT Credit - Whether the Show Cause Notice issued by invoking the extended period is justifiable – HELD - appellant has made out a case for interference insofar as the invoking the larger period of limitation is concerned - the Revenue has not justified for invoking the extended period of limitation and hence, this grounds-of-appeal are partly allowed
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