M/S Transpek Silox Industries Ltd vs Commissioner, Central Excise & Service ...

Appeal No.ST/50/2007-DB [Arising out of OIA No.Commr(A)/216/VDR-I/2006, dt.23.11.2006, passed by Commissioner (Appeals), Central Excise & Service Tax, Vadodara]

M/s Transpek Silox Industries Ltd. Appellant

Vs

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

Represented by:

For Appellant: Shri Dhaval Shah, Advocate For Respondent: Shri Jitendra Nair, Authorised Representative

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:15.06.2015

Order No. A/10795 / 2015, dt.15.06.2015

Per: P.K. Das

1. Heard both the sides and perused the records.

2. The issue relates to the demand of Service Tax of Rs.77,150.00 along with interest and penalty for the period 1998-99 under the category of Consulting Engineering services. By Order No.A/685/WZB/05/CI(CSTB), dt.15.12.2005, the Tribunal remanded the matter to the Commissioner (Appeals), Central Excise to record a finding on the liability of the Appellant to pay Service Tax. We find that the Appellant produced the certificate dt.12.04.2005 of M/s Textile Industries Ltd, certifying that they have paid the amount to the Appellant by cheque towards technical know-how.

3. The learned Authorised Representative for the Revenue reiterates the findings of the Commissioner (Appeals). He submits that the Appellant had not produced the relevant documents to substantiate the technical know-how service. The Commisssioner (Appeals) proceeded on the basis that the Appellant had not produced the agreement stipulating the specific terms and conditions for the transfer of intellectual property. It is also observed that no formal contract/agreement was produced by the Appellant.

4. We are unable to accept the findings of the Commissioner (Appeals). It is seen from the records that the customer had certified that the payment was made for the purpose of technical know-how. The Revenue has not disputed the authenticity of the certificate at any point of time. No enquiry was conducted by the Department in respect of this certificate. Hence, there is no reason to dis-believe this certificate. The Tribunal in the case of Indo Nippon Chemicals Co. Ltd Vs CCE Vadodara  2009 (16) STR 639 (Tri-Ahmd) held that the demand based on assumptions and presumptions under the category of Consulting Engineer service cannot be sustained. It is observed by the Tribunal that the Appellant produced the certificate that they received the amount of technical know-how. In the present case, there is no material available that the Appellant rendered Consulting Engineer Service.

5. In view of the above discussions, the impugned order is set aside. The appeal filed by the Appellant is allowed.

(Dictated & Pronounced in Court)

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

cbb 3