2012 (8) TMI 534 - HC - Service Tax

Whether transfer of technology, technical know-how and Technical Assistance, received by the respondent, would not come within the scope of taxable service, viz., Consulting Engineer Service , as defined under Section 65(31) of the Finance Act, 1994 Held that - Question falls squarely within the exception carved out in Section 35G, an order relating among other things, to the determination of any question having a relating to the rate of duty of excise or to the value of goods for purpose of assessment , and the High Court has no jurisdiction to adjudicate the said issue - appeal lies to the Apex Court under Section 35L of the Central Excise Act, 1944, which alone has exclusive jurisdiction to decide the said question - appeal is rejected as not maintainable

Summary

Issues:
1. Whether the activity carried out by the assessee falls under 'Consulting Engineer Services' for Service tax liability.
2. Whether the transfer of technology, technical know-how, and technical assistance received by the assessee is taxable under 'Consulting Engineer Service' as per the Finance Act, 1994.
3. Applicability of circulars and previous decisions on the taxability of the services received.
4. Jurisdiction of the High Court to adjudicate on the issue due to the exception in Section 35G.

Analysis:

Issue 1:
The High Court dealt with the appeal challenging the Tribunal's order which held that the activity of the assessee did not fall under 'Consulting Engineer Services', thus not liable for Service tax. The assessee had entered into an agreement for transfer of technical know-how, and the revenue contended that the technical know-how fell within the ambit of 'Consulting Engineer Services' as per the Finance Act, 1994. The Assistant Commissioner initially dropped the proceedings, but the Commissioner later set aside the order and levied Service tax, interest, and penalty. The Tribunal, following its previous judgments, ruled in favor of the assessee, leading to the revenue's appeal.

Issue 2:
The substantial questions of law considered by the High Court included whether the transfer of technology, technical know-how, and technical assistance received by the assessee should be considered taxable under 'Consulting Engineer Service' as defined in the Finance Act, 1994. The Court analyzed the clarification issued by the Board and the applicability of previous decisions in determining the taxability of the services received. The Court examined the scope of 'Consulting Engineer Service' and its application to the case at hand.

Issue 3:
The High Court addressed the question of whether the decisions relied upon by the Tribunal constituted res integra and if their ratio could be applied to the present case. The Court reviewed the precedents and their relevance to the current matter to determine the tax liability concerning the transfer of technology and technical know-how.

Issue 4:
Regarding the jurisdiction of the High Court to adjudicate on the issue, the Court referred to Section 35G, which limits the High Court's authority in certain matters related to excise duty. Citing a previous case, the Court held that the issue fell within the exclusive jurisdiction of the Apex Court under Section 35L of the Central Excise Act, 1944. Consequently, the Court rejected the appeal as not maintainable and directed the High Court registry to return the certified copies for the Revenue to approach the Apex Court if desired.