9911796707
TMI Blog2014 (8) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. [2009 (4) TMI 113 - CESTAT, NEW DELHI], is not applicable to the facts and circumstances of the present case. As regards the abatement for R 31.65 lakh (approx.) is not payable - applicant directed to make a pre-deposit of 25% of the Service Tax amount - stay granted partly. X X X X Extracts X X X X X X X X Extracts X X X X ..... ious provisions of Finance Act, 1994. The learned Commissioner confirmed the demand in the show-cause notice and imposed penalties under various provisions of Finance Act, 1994. 3.1 The contention of the applicant is that in the instant case, the applicant had entered into the Agreement dated 17-1-1991 with SICPA Holding Switzerland to obtain know-how, technical information and assistance from SICPA Holding Switzerland for the manufacture of its products. 3.2 The contention of the applicant is that no patents exist in respect of the Technical know-how granted to the appellant under the Agreement. It is submitted that the whole of the know-how involved in the present Agreement is confidential information, which is not in the publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Property Service' in terms of Section 65(55b) of the Finance Act, 1994. 3.6 The contention is that the transaction involving transfer of know-how or technology is a transaction in property and not a service transaction. In the present case, SICPA Holding Switzerland had transferred know-how and technical information and assistance for the manufacture of its products to the applicant. The said know-how was already in the possession and use of SICPA Holding Switzerland, which was transferred to the appellant along with a right to manufacture and sell the product using that know-how. 3.7 The contention is that the Agreement for provision of technical information and know-how, was entered into on 17th January, 1991 and the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Madurai vide Circular No. 43/2008, dated 11-9-2008, submitting that the entire exercise is revenue neutral. 3.11 The contention of the applicant is that the service provider is situated outside India and they did not have any office in India. Hence, in view of the decision of the Hon'ble Bombay High Court in the case of Indian National Shipowners Association v. UOI, 2009 (13) S.T.R. 235 (Bom.), which was later on, upheld by the Hon'ble Apex Court, the applicant are not liable to pay Service Tax before 18-4-2006. 4. Learned AR for the Revenue submitted a written brief dated 22-11-2012. Rebutting the contention of the applicant that no liability of Service Tax arises on the Agreement between the applicant and SI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early observed that in the absence of disclosure of the total amount of the royalty paid to the applicant, vide letter dated 5-6-2008 issued by the jurisdictional Range Officer, the applicant had not been able to substantiate their claim of incorrect computation of liability. As regards the limitation aspect, the contention of the learned AR is that pursuant to the said Agreement in 1991, though they received services six to seven months prior to the levy of tax on the said services, but they did not register themselves with the Department, nor did they pay any Service Tax during the period of May, 2005 to March, 2009, which clearly establishes an intention to evade payment of Service Tax and hence, the demand is not time-barred. 5. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computation of liability. Further, the aspect of limitation of time is a mixed question of fact and law, which will be considered at the time of regular hearing. However, prima facie, we agree with the learned Advocate for the applicant that prior to insertion of Section 66A of the Finance Act, 1994 i.e., with effect from 18-4-2006, Service Tax for the amount of ₹ 31.65 lakh (approx.) is not payable, in view of the decision of the Hon'ble Bombay High Court in the case of Indian National Shipowners Association (supra). Prima facie, therefore, the demand of the Service Tax for the amount of ₹ 31.65 lakh for the period from May, 2005 to April, 2006 is to be deducted from the total amount of Service Tax liability of ₹ 1.94 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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