Commissioner, Central Excise & Service ... vs M/S Price Water House Coppers Pvt.Ltd

Appeal No.ST/9/2008-DB [Arising out of OIA No.COMMR.(A)/207/VDR-I/2007, dt.28.09.2007, passed by Commissioner (Appeals), Central Excise & Service Tax, Vadodara]

Commissioner, Central Excise & Service Tax, Vadodara-I Appellant

Vs

M/s Price Water House Coppers Pvt.Ltd. Respondent

Represented by:

For Appellant: Shri Jitendra Nair, Authorised Representative For Respondent: None

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

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

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:13.07.2015

Order No. A/10995 / 2015, dt.13.07.2015

Per: P.K. Das

None appears on behalf of the Respondent. There is no application for adjournment.

2. Revenue filed this appeal against the order of the Commissioner (Appeals), where the adjudication order was set aside.

3. After hearing the learned Authorised Representative for the Revenue and on perusal of the records, we find that the Adjudicating authority confirmed the demand of service tax under the category Consulting Engineers for the period 01.01.2001 to 31.12.2001.

4. M/s IOCL made the payment to the Repspondent for transfer of technology. The Respondent entered into agreement with the foreign company for rendering the service. We find that the issue is no more res integra in view of the decision of the Tribunal in the case of Commissioner of Central Excise, Jaipur-I Vs Brenco Incorporated - 2014 (36) STR 1061 (Tri-Del.), and the appeal filed by the Revenue was dismissed.

5. The relevant portion of the said decision is reproduced below:-

5.?The undisputed facts are that the respondent is a company incorporated in and operating from USA and has no branch office or any business establishment whatsoever in India. There is also no dispute that the service provided is transfer of technology for manufacture of ball bearings under licence agreement with M/s. NEI Ltd., Jaipur against payment of royalty. The service tax is sought to be recovered on the amount of royalty received by the respondent from M/s. NEI during the period 2003-04. First of all, in our view, the service provided by the respondent to M/s. NEI is not the service of Consulting Engineer but is Intellectual Property service, which became taxable w.e.f. 10-9-2004 under Section 65(105)(zzr) and, therefore, during the period of dispute, the service provided by the respondent would not attract any service tax. In this regard, we find support from the Tribunals judgment in the cases of Novinon Ltd. v. CCE - 2004 (172) E.L.T. 400 (Tribunal-Mum.), Biocon Ltd. v. CST, Bangalore reported in 2007 (7) S.T.R. 214 (Tri.-Bang.) and M/s. Bajaj Auto Ltd. v. CCE reported in 2005 (179) E.L.T.

481, wherein it has been held that transfer of technology under licence agreement against payment of royalty is not the Consulting Engineers Service. Thus, on merit, the Department has no case. Moreover, we also fully agree with the Commissioner (Appeals)s view that when the respondent service provider is a company incorporated in USA and operating from USA and does not has any branch or business establishment in India, and when the service has been provided by the respondent from abroad, no service tax can be demanded from the respondent. Such receipt of a taxable service by a person in India from a foreign service provider became taxable by making the service recipient as the person liable to pay the service tax with effect from 18-4-2006 by introducing Section 66A of the Finance Act, 1994 and hence, during the period of dispute prior to this date, the service tax could not be demanded even from the service recipient. We also find that the findings of the Commissioner (Appeals) that no service tax can be recovered from the respondent, a company incorporated in USA and operating from USA and not having any branch or establishment in India are based on the judgments of the Tribunal in the cases of Relax Safety Industries & Others (supra) and Philcorp Pte.

Ltd. (supra), wherein it was held that the service tax demand was not applicable to a person or company located outside India having no business or establishment in India. In view of this, we find no illegality or impropriety in the impugned order. The Revenues appeal is, therefore, dismissed.

6. In view of the above discussion and following the decision of the Tribunal in the case of Brenco Incorporated (supra), we find that there is no reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

cbb 3