9911796707
TMI Blog2018 (8) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... beling of spare components and assemblies of Hydraulic Excavators for the period in dispute from 29/04/2010 to 30/06/2011. Further, another issue is, whether the appellant is liable to pay service tax under 'Consulting Engineer's Services', 'Intellectual Property Services' and 'Repair & Maintenance Services' and also whether penalties have been rightly imposed under Section 77 and 78 of the Act and also under Section 11AC of the Act read with Rule 25 of CER 2002. 2. The brief facts of the case are that, the appellant, Kobelco Construction Equipment India Pvt. Ltd., is engaged in packing, repacking, labeling and relabeling of spare parts, components and assemblies of Hydraulic Excavators classifiable under chapter Heading No.8429 of CET ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect in drafting and the mistake committed in the Amendment made in the Finance Act, 2011 and the said error was rectified vide Finance Act, 2012, which received the assent on 28th May, 2012, wherein, the Finance Act, 2011 was amended so as to read the words "the third Schedule to the Central Excise Tariff Act" with the words "the third Schedule to the Central Excise Act, 1944". 5. Further, the case of the appellant is that, there was an inspection in their premises at Noida on 30th June 2011 wherein they were doing packing, repacking etc., and on being so pointed out by the Revenue Authority that this activity relating to the parts of excavator falling under chapter Heading 8429 is liable to pay Central Excise duty as the same amounts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wards technical support fee and further Rs. 6,70,439/- along with interest of Rs. 8,226/- words service received for royalty - intellectual property service. These amounts had, admittedly, been paid before the issuance of SCN as the SCN contains proposal to appropriate these amounts. So far as demand for services rendered towards maintenance or repair services, the learned counsel points out that the said services have been provided to the Japanese Company under the Warranty Reimbursement Agreement and hence amounts to export of service under the Export of Service Rules, for which they have received payment in inconvertible foreign exchange. However, on being so pointed out, at the time of inspection, the appellant without any murmur deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been paid on 07/07/2011 i.e much before coming into effect of the Finance Act, 2012, we hold that the appellant is not liable to pay any interest and we also set aside the penalty under Section 11AC read with Rule 25 of Central Excise Rules, 2002. 10. So far the demand of penalty on the service tax is concerned, we find that there is no element of fraud, suppression or contumacious conduct or falsification of records on the part of the appellant, hence the appellant is not liable to pay any penalty under Section 78 or under Section 77 of the Finance Act, 1944. Accordingly, we set aside the penalties under both the Sections. Thus the appeal is allowed, as indicated herein above, with consequential benefits to the appellant. (Dictated & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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