Case Law Details
Assessee’s grievance is that it was a mere supervisor and not a “Consulting Engineer” who supervised the erection and commissioning of the mills. Inviting attention to page 91 of appeal folder, it is the submission of the appellant that one supplier namely Lakshmi Machine Works Ltd. have supplied the machinery to their clients Sri Balambika Textile Mills (P) Ltd. stating that installation would require erectioning. Further to explain the activity carried out, appellant says that invoices at pages 94 to 97 gives an impression that appellant only erected and erection and commissioning came into the scope of taxation w.e.f. July 2003 but not for the impugned period. Therefore consideration received by the appellant for supervising shall not amount to taxable service. Appellant further relies on Board’s Circular No.137/38/2003-CX.4 dt. 13-05-2004 to say that their activity shall not be “Consulting Engineering service” which is presumed by Revenue to bring the appellant to the fold of said service for taxation.
2. Revenue, on the other hand, says that appellant has provided Consulting Engineer Services and was rightly taxed by the adjudicating authority under the head “Consulting Engineering Service”.
3. Heard both sides and perused the record.
4. When any service is provided to a client by Consulting Engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering, the service provider shall be called as “Consulting Engineer” in accordance with section 65 (90) (g) read with section 65 (25) of the Finance Act, 1994. There is no material on record to show that there was any erection work carried out by appellant. Whatever the documents placed before us, that depicts that appellant was supervisor to provide technical assistance for the purpose of erection and installation. Therefore Revenue is correct in its approach to bring the service provided by the appellant as Consulting Engineer, providing consultancy for the said service. Accordingly, in so far as tax demand is concerned, appeal of the appellant is dismissed.
5. So far as Revenue’s appeal is concerned which is seeking imposition of penalty but that was annulled granting relief by Ld. Commissioner (Appeals), we are not in agreement with Revenue for the reason that there was nothing suppression of any fact made by appellant and it was only an interpretational error which should not press the appellant to suffer penalty. Therefore revenue’s appeal is dismissed. In the result, CO filed by assessee is also disposed of.
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