2008 (9) TMI 47 - AT - Service Tax

Assessee, manufacturer of machinery in agreement with LMW assessee provided technical know-how, technical assistance & imparted training royalty received @ 3 % of sale proceeds - payment of royalty is not for any service received by LMW technical advice, technical assistance, training etc. imparted incidentally in the process for achieving their dominant objective of manufacturing the licensed product as per the agreement cannot be identified as constituting Consulting Engineer Service

Summary

Issues:
Demand of service tax under the category of "Consulting Engineer" and penalty imposed under sections 75, 75A, 76, and 77 of the Finance Act, 1994.

Analysis:
1. The impugned order upheld the demand of service tax and penalty on M/s. Day International Inc., USA, for providing technical know-how, assistance, and training to another company. The Commissioner (Appeals) confirmed the demand of interest on the service tax as well.

2. The case involved Day International providing technical assistance, know-how, and training to a company for manufacturing specific components. The agreement included royalty payments based on sales proceeds. The authorities considered this as gross value of engineering consultancy, leading to the tax demand.

3. The Commissioner (Appeals) referred to a Ministry's Circular and categorized certain activities as "Consulting Engineer Service." However, the Commissioner's classification of taxable and non-taxable activities was challenged by Day International, citing various case laws where technical know-how transfer did not constitute a taxable service.

4. Day International argued that the royalty payments were not for services rendered but rather for the use of technical know-how. They presented case laws supporting their stance that such payments do not attract service tax. They also contested the penalty imposition and the invocation of a larger period for tax liability.

5. The Judicial Member reiterated the findings of the impugned order, which supported the tax demand and penalty imposition.

6. After considering the submissions and case records, it was concluded that the royalty payment was primarily for the technical know-how received. Activities like technical assistance and training were incidental to the main objective of manufacturing the licensed product. Therefore, the demand for tax on these activities was deemed incorrect, and the appeal by Day International was allowed.

This detailed analysis highlights the key points of the judgment regarding the demand of service tax under the category of "Consulting Engineer" and the subsequent penalty imposed, providing a comprehensive understanding of the case and its legal implications.