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TMI Blog2008 (2) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... tting up in India a plastic injection moulding plant. The agreement also permitted the appellants to have access to modifications and improvements to the technical know-how during the tenure of the agreement [up to 31-3-2002]. In consideration of these services rendered by the foreign company, the appellants paid a fee of 5% of the net ex-factory price received by them on the total of sales of the above products during the tenure of the agreement. The impugned demand of service tax is on such fee, called "technical collaboration fee" paid by the appellants to the foreign company during the period 10-9-2001 to 31-3-2002. It is in the category of 'consulting engineer's service'. The appellants have also challenged the penalty of Rs. 1,000/- i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe of technical assistance to be rendered by the foreign company to the assessee and the latter laying down the nature of technical collaboration fee to be paid by the assessee. Learned JDR reiterates the Commissioner's findings and particularly points out that, against certain decision of the Tribunal against the Revenue on the question whether transfer of technology by a foreign company to an Indian company is exigible to service tax under Section 65(31) of the Finance Act, 1994 [consulting engineer], the department has filed appeal, which is pending before the Hon'ble Supreme Court. On this basis, R submits that the case law cited by learned consultant cannot be considered to have attained finality. Further, learned JDR relies on the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... = 2004 (172) E.L.T. 400 (Tri.-Mum.) relied on by this Bench in Turbo Energy case, was admitted by the Apex Court, the case law cited by learned Consultant is not liable to be followed. However, the DR has not given any citation in confirmation of his submission, nor has he claimed that, in any such appeal, the Hon'ble Supreme Court has stayed & the operation of the impugned order of the Tribunal. The case law cited by the DR does not advance the Revenue's case either inasmuch as the facts of the Nokia case (supra) and the Indian Farmers Fertilizer case (supra) are clearly distinguishable from the facts of the instant case. 5. Section 65(31) of the Finance Act, 1994 defines 'consulting engineer' as any professionally qualified engineer or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r agreed to be granted hereunder, the Licensee shall pay to the Licensor a fee of 5% (five per cent) of the net ex-factory price received by Licensee ("Technical Collaboration Fee") on the total of its sales of contract products during the term of this agreement. Contract products shall be considered sold or otherwise disposed off, as the case may be, when invoiced. Licensee shall report its net ex-factory price for each financial year to Licensor within three (3) months after the close of such financial year, and pay the Technical Collaboration Fee to Licensor within thirty (30) days after receipt of Licensor's statement therefor". The technical collaboration fee @ 5% of the net ex-factory sale price of the contract products, paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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