Shri Neeraj Sharma, Cencept Engineers vs Cce, Meerut-I

[Arising out of Order-in-Appeal No. 222-CE/MRT-I/08 dated 31.12.2008 passed by the Commissioner (Appeals), Central Excise, Meerut-I]

For Approval & Signature :

Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

Shri Neeraj Sharma, Cencept Engineers Appellant

Vs.

CCE, Meerut-I Respondent

Appearance:

None - for the Appellant

Shri R. Tandan, D.R. - for the Respondent

Coram : Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

F. Order No. 50979/2015

Per R.K. Singh :

Appeal has been filed against Order-in-Appeal No. 222/CE/MRT-I/2008 dated 31.12.2008 which upheld the order in original dated 23.4.2008 in terms of which a service tax demand of Rs.80,017/- along with interest and penalty was confirmed under Consulting Engineer Service on the ground that the appellants had provided vaastu advice, blue print and project report typing and binding services. At the first appellate stage, the appellant contended that these activities are beyond the purview of service tax. But the Commissioner (Appeals) dismissed their contention primarily observing that the appellants activities are well covered under the category of Consulting Engineer Service defined under Section 65(105)(g) of the Finance Act, 1994.

2. The appellant has contended that vaastu advice does not fall in the category of consulting engineer service as that is mythological in nature and that vaastu concept is only a belief in Hinduism and some people who have allegiance to the astrology like advice with regard to vaastu and that preparation of blue print is no where relating to consultation as blue print of house is work of tracer and not of an engineer. Preparation of project report, typing and binding also does not fall in the consulting engineer.

3. The ld. DR argued that vaastu advice falls under Consulting Engineer Service as it is related to engineering.

4. We have considered the contentions of both sides. Under Section 65(105)(g) of the Finance Act 1994 the Consulting Engineer Service is defined as under :

to any person, by a consulting engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering including the discipline of computer hardware engineering.

[Explanation.- For the purposes of this sub-clause, it is hereby declared that services provided by a consulting engineer in relation to advice, consultancy or technical assistance in the disciplines of both computer hardware engineering and computer software engineering shall also be classifiable under this sub-clause;

The term consulting engineer is defined in Section 65(31) as under:

Consulting Engineer means any professionally qualified engineer or any body corporate or any other firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to any person in one or more disciplines of engineering.

From the above definitions, it is evident that service to be covered under the consulting engineer service. Shri Neeraj Sharma will have to be shown to be a professionally qualified engineer and should have rendered advice, consultancy or technical assistance in one or more disciplines of engineering. It is nowhere brought out in the order in appeal or in the order in original that Shri Neeraj Sharma is a professionally qualified engineer. Further it is also not brought out as to in which discipline(s) of engineering the service has been rendered. Making blue print, typing, project report done by the appellants will have to be shown to be relating to one or more disciplines of engineering. For example a lay man making a blue print or typing the project report would not qualify to be called a consulting engineer. Thus, we find that Revenue has not been able to discharge its obligation/onus to show that the appellant was professionally qualified engineer and also rendered any advice in relation to any particular branch of engineering. Therefore we do not find the impugned order sustainable and consequently the appeal is allowed.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

RM

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