9911796707
TMI Blog2011 (5) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... service rendered by a non-resident (having no office in India) from abroad did not have liability to pay service tax in respect of such service prior to 1.1.2005 - Hence in the present case the appellant is entitled to claim the benefit of the Tribunal's Larger Bench decision affirmed by the apex court [2009 (1) TMI 266 - SUPREME COURT OF INDIA] - Thus no liability to pay service tax on the service in question - There will be waiver of pre-deposit and stay of recovery in respect of the dues adjudged against the appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ties payable to KANSAI under this Article 3 shall be subject to all Indian taxes, levies, imposts, duties and assessments which shall be paid by GOODLASS on behalf of KANSAI by deducting the same from royalties payable to KANSAI under this Article 3". Article 8 of this agreement covered "TECHNICAL ASSISTANCE". Sub-article 8.1.1 provided for 'technical assistance' to be rendered to the appellant in India by experts of Kansai deputed from Japan . Sub-article 8.1.2 provided for knowledge of operations of Kansai to be acquired by the appellant's technical personnel by visiting Kansai in Japan. Sub-article 8.2 provided for payment of expenses of Kansai's technical personnel visiting India, by the appellant. Under sub-article 8.3, the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be extended to recipient of taxable service imported into India from abroad for any period prior to 1.1.2005. It is submitted that a Civil Appeal filed by the department against the Tribunal's Larger Bench decision was dismissed on merits by the apex court vide CCE, Jaipur vs. Hindustan Zinc Ltd. 2009(14)STR J125. 3. The learned Consultant has also adverted to the definition of "scientific or technical assistance" given under section 65(92). It is submitted that the activity in question would not even otherwise satisfy the requirements of the said definition. It is further pointed out that transfer of technical know-how/technical information is covered by a specific service today, viz. "intellectual property service" defined under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the foreign companies. According to the learned JCDR, technical assistance provided by the foreign company to the appellant under the relevant agreement would be taxable under the head "scientific or technical consultancy service" defined under section 65(92) of the Finance Act, 1994. 6. As a counter to the reliance placed by the consultant on Hindustan Zinc Ltd. (supra), the learned JCDR has heavily relied on Kerala State Electricity Board vs. CCE, Thiruvananthanpuram 2008(9) STR 3 (SC), wherein, after examining the provisions of an agreement between KSEB and a Canadian company (SNC Lavlin Inc.), their Lordships considered the question whether KSEB was liable to pay service tax to the Central Government for the period August 1998 to Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a person as the person liable to pay service tax. The Tribunal's Larger Bench decision in the case of Hindustan Zinc Ltd. (supra) held that such an Indian recipient of service rendered by a non-resident (having no office in India) from abroad did not have liability to pay service tax in respect of such service prior to 1.1.2005. This view stood upheld by the apex court when a Civil Appeal filed by the party was dismissed on merits by Their Lordships. We note that the Hon'ble Supreme Court, in the case of KSEB, did not have occasion to examine Notification no. 36/2004-ST, nor the provisions of section 68(2) of the Finance Act, 1994. Even otherwise, the decision rendered by the Hon'ble Supreme Court in 2009 in the case of Hindustan Zinc L ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
