2011 (4) TMI 1086 - HC - Service Tax

Whether the assessee is liable to pay service tax under entered into an agreement with a foreign company for the transfer of technology - Held that - question falls squarely within the exception carved out in Section 35G, not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment , and the High Court has no jurisdiction to adjudicate the said issue, in the case of M/s. Mangalore Refineries and Petro Chemicals Limited (2010 - TMI - 206880 - KARNATAKA HIGH COURT) , the appeal rejected as not maintainable

Summary

Issues:
1. Appeal challenging Tribunal's order on service tax liability.
2. Interpretation of agreement for technology transfer and service tax implications.
3. Jurisdiction of High Court to decide on rate of duty/tax issue.

Issue 1: Appeal challenging Tribunal's order on service tax liability
The High Court heard an appeal where the revenue challenged a Tribunal's order stating that the assessee was not liable to pay service tax. The assessee, a company, entered into an agreement with a foreign company for technology transfer and paid a sum for the same. The revenue issued a show cause notice for service tax, which the assessee contested, claiming the payment was for moulds usage and not technology transfer. The Assistant Commissioner dropped the proceedings, but the Commissioner disagreed and levied service tax, interest, and penalty. The Tribunal, in line with previous judgments, ruled that the activity did not fall under Consulting Engineer services, hence no service tax was due. The revenue appealed against this decision.

Issue 2: Interpretation of agreement for technology transfer and service tax implications
The crux of the matter was whether the payment made by the assessee to the foreign company was for technology transfer or moulds usage charges. The assessee argued that the payment was for the usage of moulds received from the foreign company to manufacture products primarily for the foreign company's global requirements. They contended that the payment was not for technology transfer but for the moulds' utilization, which did not fall under Consulting Engineer services as per the definition. The Assistant Commissioner initially dropped the proceedings, but the Commissioner reversed this decision, leading to the appeal before the Tribunal, which ruled in favor of the assessee.

Issue 3: Jurisdiction of High Court to decide on rate of duty/tax issue
The High Court, while considering the appeal, noted that the question of whether the assessee was liable to pay service tax fell within the exception under Section 35G, which pertains to the determination of the rate of duty or tax. Citing a previous judgment, the High Court held that it did not have jurisdiction to decide on such issues, and the appeal should be directed to the Apex Court under Section 35L of the Central Excise Act, which has exclusive jurisdiction over such matters. Consequently, the High Court rejected the appeal as not maintainable, allowing the revenue to approach the Apex Court and directed the registry to return the certified copies of the orders to the Department for further action.