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TMI Blog2018 (4) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise, Customs Service Tax, Nashik-l whereby the demand, interest and penalty were confirmed on the recipient of Scientific Technical Consultancy Service from foreign firm namely, M/S Rosoboronexport, Russia 2. None appeared on behalf of the appellant. 3. Shri M.P. Damle, learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by learned AR and perused the records. We find that in the appellant's own case in an identical issue reported as Commissioner of Central Excise, Nashik Vs. Hindustan Aeronautics Ltd. - 2015 (40) STR 289 (Tri.-Mum), this Tribunal has decided the matter in favour of the assessee. The order of the Tribunal is reproduced below: - 6. We have considered the submissions made at length by both sides and perused the records. 7.1 We find that the issue involved is regarding the discharge of Service Tax liability on the reverse charge mechanism for the services rendered by order Rosobornexport in pursuance of an agreement entered for licence technical documentation for production of fighter aircraft. Revenue authorities have classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased company as a joint-stock company, part of the Russian technologies state Corporation which is responsible for import/export of the full range of defence and Dual use end products, technologies and services. It is also noted that the said Rosobornexport only has the right to supply the world market with a full range of arms and military equipments manufactured by the Russian defence industrial complex and approval; the said foreign company is one of the major operators in the world market for arms and military equipments. It is also indicated that the official status of Rosbornexport is an exclusive state intermediary agency and provides guaranteed state support of all export import operations. The said status of the Rosobornexport indicates that it is neither science or technology institution or organisation. In our considered view, the definition of scientific and technical consultancy services may not be applicable in the facts and circumstances of this case. Revenue has not brought on record any evidence to contradict the submissions of the appellant assessee. In the absence of any contrary evidence we have to hold that Rosobornexport is not a science or technolog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nceptually reduced to mere advice, consultancy or scientific/technical assistance. On the other hand, they involve permanent transfer of intellectual property in one form or another and are presently covered by intellectual property service . The Id. JCDRs essential character test is not applicable as the service is classifiable only under one sub-clause of clause (105) of Section 65 of the Act, which is sub-clause (zzr). Each agreement covered the transfer of an intellectual property and, therefore, a combination of the agreements (which was envisaged by JCDR as package deal ) would not make any difference. This rules out the applicability of Andhra Petrochemicals (supra). Moreover, the appellant-company cannot be said to be a science or technology institution or organization. Even medical colleges, hospitals or diagnostic/pathological laboratories have not been recognized by the department as science or technology institutions or organizations vide M.F. (D.R.) Letter dated 9-7-2001 ibid. In the show cause notice itself, the appellant-company was held out to be manufacturer of excisable goods only. It was not even alleged that it was a science or technology institution or orga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice it is alleged that the appellant was granted exclusive right 10 manufacture, use and sell within the territory, the preparation utilizing the know-how and scientific and technical information and the teachings of the patents on payment of royalty. It is also alleged in the show cause notice that the appellant was receiving know-how during the disputed period. However, from the agreement it is noticed that there is no evidence of continuous providing of information, know-how in relation to the manufacture. Further, it is not disputed that the appellant was manufacturing and selling products in the brand names, Pyricontin, Diacontin, Fecontin, Metocontin, Morcontin, Nitrocontin, and Unicontin which are claimed to be registered brand names of the appellant company. In other words, they are not using the brand name of Mundipharma A.G. Switzerland. Receipt of know-how appears to be a one time affair. There is no evidence, that their know-how is supplemented by Mundipharma A.G. Switzerland. Therefore, we are in agreement with the submissions on behalf of the appellant that royalty payment in the form of deferred payment for know-how received in 1990. Whether payment for suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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