2008 (9) TMI 349 - AT - Service Tax

Consulting Engineering Service versus Transfer of Intellectual property - Commissioner (Appeals) held that L&T was not liable to pay service tax towards Engineering Consultancy for technical know-how and technical assistance received from its foreign collaborators in exchange for royalty or technical know-how fees Held that - in a couple of cases relied on, revenue has filed appeals before the Apex Court which has not stayed these orders is not adequate reason to interfere with the impugned order order of the commissioner (appeals) upheld revenue appeal dismissed.

Summary

Issues:
- Appeal against the order allowing the appeal filed by the respondent and vacating the demand for service tax.
- Whether the transfer of technical know-how for a consideration constitutes the provision of service.
- Applicability of service tax on technical assistance received from foreign collaborators.
- Interpretation of judicial authorities regarding the nature of payments for technical know-how and royalty.
- Consideration of case law and reasoning for dismissing the appeal.

Analysis:
1. The appeal was filed by the revenue against the order of the Commissioner (Appeals) allowing the appeal by the respondent, M/s. Larsen & Toubro Ltd. (L&T), and vacating the demand for service tax along with penalties imposed under the Finance Act, 1994. The demand was raised on L&T for engineering consultancy received from foreign companies. The revenue contended that the case laws relied upon by the lower appellate authority were pending before the Supreme Court in appeals filed by the revenue.

2. The Tribunal considered the agreements between L&T and its foreign collaborators where L&T received technical know-how and licenses for manufacturing and selling products specified in the agreements. The Tribunal held that the transfer of technical know-how for a consideration constitutes the sale of intellectual property and cannot be considered as the provision of service by the collaborators of L&T. Various judicial authorities were cited to support this interpretation, emphasizing that royalty payments for technology and know-how do not equate to services provided by foreign collaborators.

3. The Tribunal referenced cases such as SAME Engines India (P.) Ltd. v. CCE and Turbo Energy Ltd. v. CCE, where it was established that the transfer of technology and the sale of the right to use trademarks are transactions involving intangible property and do not constitute engineering consultancy. Additionally, the Tribunal cited Essel Propack Ltd v. CST, where it was held that know-how fees and royalty payments for the right to use trademarks are transactions in immovable property and not consultancy services. Based on these precedents, the Commissioner (Appeals) concluded that L&T was not liable to pay service tax for technical know-how and technical assistance received from foreign collaborators.

4. Upon careful consideration of the impugned order and the binding case law, the Tribunal found that the reasoning behind the order was sound and in line with established legal principles. The fact that the revenue had filed appeals before the Supreme Court regarding certain case laws was not deemed sufficient to interfere with the impugned order. Consequently, the appeal filed by the revenue was dismissed, upholding the decision of the Commissioner (Appeals) in favor of the respondent, L&T.