[ORDER PER: A.K. JYOTISHI]

2. In all the three appeals filed by the HAL common issue involved is that the Department alleged that they had imported “Scientific or Technical Consultancy Services” (STC) from a provider located outside India and therefore appellant was required to pay service tax on RCM basis. In Department’s appeal, they have only challenged the waiver of penalty imposed under Section 76 and 77, by allowing the benefit of Section of 80 of Finance Act, 1944 in the facts of the case. There is another small issue of “Management, Maintenance and Repair Service” (MMR), which was not contested by appellant at the stage of adjudication itself, as recorded in the OIO, as also at the time of this hearing by the Learned Advocate for the appellant. Therefore, the only issue left is whether they are required to pay service tax under RCM on the service of STC or otherwise.

3. The brief fact of the case is that the appellant had entered into an agreement with Federal State Unitary Enterprise Rosoboronexport, Moscow, Russia (hereinafter referred to as Rosoboronexport) in conformity with the inter-Governmental agreement (IGA) between the Government of India and the Government of Russia Federation, for transfer of licence and technological documentations for production of SU-30 MKI aircrafts in India and for technical assistance in the setting up production setup. As part of the deal, the appellant brought in technology, and for technology transfer it also required transfer of technical documents, Technical assistance for setting of manufacture facility, supply of parts from the project, training of employees etc and for these services/ activities, payment were made to Rosoboronexport, Moscow. Department felt that they have received the service of ‘Scientific and Technical Consultancy’ (STC) from a provider located outside India and therefore, they are required to pay Service Tax under Reverse Charge Mechanism (RCM). Department also noticed that they have provided certain Management Maintenance Repair Service to DRDO, which would fall under ‘Management, Maintenance and Repair Service’ (MMR) and no Service Tax was paid thereon.

4. The main argument advanced by the appellant is that Rosoboronexport, Moscow, is a Government organization, acting as sole Russian state intermediary agency, for export of dual use technology and therefore the said entity cannot termed as a “Scientist or Technocrat or as a Science or technology institution” and hence the said activity cannot be classified under the head of ‘Scientific and Technical Consultancy Service’ (STC). Learned Advocate is relying on the judgments passed by the Co-ordinate Bench in respect of appellant themselves for the unit located elsewhere in India having similar factual matrix, where the Mumbai Bench in CCE Nashik M/s Hindustan Aeronautics Ltd., [2015(40) STR 289 (Tri-Mum)] has taken a view that this will not fall under the category of STC service on the grounds that in order to fall under the said category, the organisation providing such advice or consultancy has to be a scientific or technical institution or organisation, whereas, from the facts on record it was not found to be covered within the category of STC organisation. On this sole ground, the demand was set aside. This order, on appeal by the Department before Hon’ble Supreme Court was subsequently disposed by Hon’ble Supreme Court as “not pressed” reported in Hindustan Aeronautics Ltd., [2016(42) STR 529 (SC)]. Therefore, the order of Tribunal has attained finality. Further, certain other judgments by other Coordinate Bench in respect of same appellant have also not upheld the Departments view.

5. Learned AR on the other hand, apart from reiterating the findings has also tried to explain that in this case individual experts and technicians were posted to the unit for imparting various advice, consultancy etc., and therefore it should be covered within the definition of STC. He has also submitted that the agreement