ST - The appellant provided services under Manpower Recruitment or Supply Agency Service to two entities for which it had obtained registration certificate from the Revenue - The appellant stated to have provided workers based on labor days & wages were paid on fortnightly basis - The appellant also claimed to have paid duty demand with interest - The balance amount of duty was not paid on grounds that it pertained to reimbursement given by one of the entities - Upon adjudication, duty demand was raised with interest & penalties u/s 77 & 78 of the Finance Act 1994 - On appeal, the Commr.(a) upheld such findings - Hence the present appeal.

Held: It is seen that part of the duty demanded on Manpower Recruitment or Supply services was paid by the appellant before issuing of SCN & the balance after issuing adjudication order - Hence no penalty u/s 78 of the Finance Act 1994 is to be imposed - Regarding the balance duty raised, the appellant put forth no evidence to substantiate its claims - Hence the issue pertaining to the balance duty is remanded to the adjudicating authority - The appellant may produce the requisite documents to prove that the same pertains to expenses reimbursed by one of the service recipients - The Adjudicating Authority is directed to keep in mind the decision of the Apex Court in UOI Vs. Intercontinental Consultants and Technocrats Pvt. Ltd. - Considering that the issue was pending disposal before the Apex Court, no penalty is imposable: CESTAT (Para 1,4.2,4.3)

- Assessee's appeal partly allowed : CHENNAI CESTAT

ST - The respondent-assessee entered into a production-sharing contract with M/s ONGC & others which entitles them to carry out Petroleum operations in the CY-OS-90/1 Block and to extract Crude Oil therefrom - The assessee entered into an agreement with one M/s Aban Offshore Ltd for supply and operation of a Floating Rig for use in its Petroleum-related activities - M/s Aban charged service tax from the assessee for supply & operation of the rigs under Mining Service - The assessee later filed a refund claim on grounds that service tax on supply of rigs is payable only w.e.f. 16.5.2008 under the heading of Supply of Tangible Goods service - The assessee claimed to have erroneously been charged by Aban under Mining Service and the same was paid erroneously for the period 01.06.2007 to 15.05.2008 - On adjudication, the refund claim was denied on grounds of being hit by limitation - It was also held that M/s Aban Offshore had not raised any classification dispute and that the where the assessee had relied upon the judgment of the High Court in Indian National Shipowners Assn. (INSA)Vs UOI, the Revenue had filed an SLP against this judgment - Lastly, it was held that the assessee put forth no evidence to prove that the incidence of the duty had not been passed on - On appeal, the Commr.(A) quashed the O-i-O and allowed the refund claimed by the assessee - Hence the Revenue's appeal.

Held: The Commr.(A) observed that SOTG service covers a situation where tangible goods are supplied without transferring possession and effective control thereof, though the goods are available for use by the service recipient - Applying this interpretation to said service category, the Commr.(A) observed that M/s Aban supplied floating rigs to the assessee for post-extraction activity without transferring possession and effective control - The Commr.(A) also noted that the Bombay High Court's judgment in Indian National Shipowners Assn. (INSA)Vs UOI was subsequently affirmed by the Apex Court - Hence the Commr.(A) correctly concluded that supply of floating rigs is taxable under SOTG service and not under Mining Service - The assessee obtained expert opinion from three professors from the Indian School of Mines, Department of Petroleum Engineering, Dhanbad in respect of the floating production system - The Revenue submitted no evidence to support its non-acceptance of such expert opinion - It also did not put forth any counter expert opinion from some other independent or credit authority - Hence the action of the Commr.(A) in accepting the expert opinion cannot be faulted - Besides, the Tribunal's decisions in Doyang Tea Estate Vs CCE Shillong and Farm Fresh Foods Pvt. Ltd. Vs CCE Chandigarh clearly hold that expert opinion brought by an assessee could not be brushed aside unless demolished by the opinion of another expert: CESTAT (Para 6.1,6.2,6.3)

Held: Classification - The Revenue referred to the decision of the Apex Court in Collector Vs Flock India Pvt. Ltd. - 2002-TIOL-208-SC-CX to claim that where classification under Mining Service is not disputed by M/s Aban then such classification cannot be questioned by way of refund - However, considering the subsequent decisions of the Madras High Court and the Delhi High Court in Micromax Informatics Ltd., it is clearly held therein that challenge to assessment order is not required for claiming refund - Therefore, refund cannot be denied on grounds that M/s Aban did not challenge the assessment of their tax liability under Mining Service : CESTAT (Para 6.5)

Held: Limitation - In the grounds of appeal, it is conceded that various judgments hold that when tax is collected without authority of law, the provisions of Section 11B are inapplicable - Where the Revenue argues that the services rendered fall under Mining Service and not under SOTG service then the collection of tax is not without authority of law - However, the main edifice of this argument has already been found to be erroneous - Hence if an activity classifies under SOTG service then the said tax was collected without authority of law - The assessee's counsel correctly asserted that the one-year limitation period is inapplicable in the present case - Such view stands fortified by the judgments of the Madras High Court in 3E Infotech Vs CCE - 2018-TIOL-1268-HC-MAD-ST and that of the Bombay High Court in Parijat Construction Vs CCE - Hence the O-i-A being challenged is very much in consonance with law: CESTAT (Para 7.1,7.2)

- Revenue's appeal dismissed : CHENNAI CESTAT