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TMI Blog2013 (12) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... d adjudicating authority has appropriately classified the services under the category of Consulting Engineering Services in view of findings which have been discussed in detailed in impugned order. during the audit of the GAIL it was noticed that GAIL has incurred expenditure in foreign currency during the year 2000-2001 and 2001-2002. In the balance sheet the expenditure is shown under head Technical Consultancy and Engineering. We note that balance sheet is a document prepared under provisions of Companies Act. GAIL has received the service of Technical Consultancy and Engineering as per Balance Sheet, which means that appellants have provided the service of Technical Consultancy & Engineering. However as per definition of Consulting E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants) against Order-in-Appeal No. 300/ST/APPL/KNP/2007 dated 29.8.2007 and 619/ST/APPL/KPP/2010 dated 31.12.2010 passed by Commissioner of Central Excise (Appeals), Kanpur. 2. Brief facts of the case are that on perusal of Balance Sheet of M/s Gas Authority of India Ltd., U.P. (in short GAIL) for the financial year 2000-2001 and 2001-2002 it was noticed that GAIL had incurred expenditure in foreign currency under the head Technical Consultancy Engineering amounting to ₹ 4,26,26,000 and ₹ 8,67,44,000 during the year 2000-2001 and 2001-2002 respectively. On further enquiry, it was revealed that these expenses were incurred by them in connection with consultancy charges relating to engineering and were paid to foreign compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 22.10.2007. Appellants preferred appeal before Commissioner (Appeals) who vide Order-in-Appeal No. 619/2010 dated 31.12.2010 rejected their appeal. Appellants have filed the present appeals before this Tribunal. Since issue is the same, these appals are being taken up together. 3. Ld. Advocate appearing for the appellant submits that transfer of patented technology is not classifiable under Consulting Engineer Service and more appropriately classifiable under Intellectual Property Right Service. He submits that as per agreement with GAIL, appellants are owners of patent right in relation to Sclairtech Linear Polythene Technology and said technology is given to GAIL under license. Reading of various provisions of agreement dated 15.2.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic service of IPR. Since IPR service was not in existence during the period of demand, Order-in-appeal is required to be quashed. 6. He further submits that both Show Cause Notices are time-barred as extended period of 5 years cannot be invoked in this case and consequently penalty under Section 78 cannot be imposed on them. 7. Ld. Advocate submitted the written submissions giving details of the argument along with list of case laws relied on by them on issue of classification of service as Consulting Engineering Service, time-bar and imposition of penalty. 8. The ld. Additional Commissioner (A.R.) appearing for the Revenue submits that the agreement in question is in respect of expansion of the plant of M/s GAIL and is an independ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Appellants in view of clauses of agreement, bill for first installment raised by the Appellants, definitions contained in Act and clarification issued by CBEC, New Delhi vide its Circular No. B/43/5/97-TRU dated 2.7.1997. I find that the learned adjudicating authority has appropriately classified the services under the category of Consulting Engineering Services in view of findings which have been discussed in detailed in impugned order. Commissioner (Appeals) in Order-in-Appeal No. 615 dated 31.12.2010 has reproduced the finding of Order-in-Appeal 300 dated 29.8.2007. 10. Commissioner (Appeals) has not given any finding as to how the service is classifiable under consulting Engineering Service , particularly when appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more appropriately falls under Intellectual Property Right Service which came into effect on 10.9.2004. We note the period of dispute in the present appeal is 2000-2001 and 2001-2002 and IPR service was not in existence at that time. Moreover there is no provision in Finance Act, 1994 stating that when a new service is created, the same was not covered under other taxable service prior to creation of new entry. On the other hand we note that a service may fall under two taxable services and to classify it more appropriately Section 65A of the Finance Act is required to be invoked. In view of the fact that during the disputed period IPR service was not in existence, we do not accept the contention of the appellant. 13. As regards issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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