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TMI Blog2009 (2) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ST/107-108 of 2009 - Dated:- 23-2-2009 - Mr. D.N. Panda, Member (Judicial) and Mr. Rakesh Kumar, Member (Technical) Shri J. F. Pochkhanawala, Sr. Advocate, Shri Sunil Kumar, Advocate, Shri B.K. Mishra Sh. Anuranjan, Advocates for the Appellant. Shri Sunil Kumar, DR, for the Respondent. [Order per : D.N. Panda, Member (Judicial)] - Both the appellants have challenged the order of adjudication passed on 19.10.06 under the provisions of Finance Act 1994 holding that M/s Avi Oil India Pvt. Ltd. (hereinafter referred to as Avi Oil ) has paid consideration to Nyco SA of Paris (hereinafter referred to as NYCO) for providing consulting Engineering Service. Ld. Adjudicating Authority on the basis of show-cause notice dated 19.4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under the name and style of Avi Oil India Ltd. under the Companies Act 1956, on 4.11.93 with the approval of Reserve Bank of India for holding of the interest in the said company by Public Sector Undertakings that should not be misconceived by Revenue. 2.3 Ld. Counsel further submitted that simply resorting to para-2 of the preamble appearing at page-69 of the appeal folder, Revenue conceived that consulting engineering service was provided by NYCO to serve the purpose of Revenue. While requirement of law being to test fact under the provisions of the Finance Act 1994 to serve the purpose of law. He drew our attention to para-2 of the show-cause notice to submit that the appellant is not at all an engineering firm and there is no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny to grant its rights to technology for common benefit of both as defined in the agreement. It was declared and well defined in para 2.1 of the agreement. He submits that the agreement operated in two phases. The first phase was to transmit the technical documents to serve the purpose of agreement. The second phase is to enter into the joint venture for the manufacture of the goods in commercial venture with the know how assistance. The phasing of the documentation was done to facilitate the payment for the defined purpose and not for providing engineering Consultancy when NYCO is not an engineering firm. He submits that when the joint venture documents were submitted to various Government agencies for approval there was no suppression of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eering element is also involved. We find his submission is based on para 2.1.1. (b) of the agreement at page-71 of appeal folder. But that particular paragraph does not throw light to say that the appellant Nyco was an engineering firm and possesses the expertise of design, construction and operation of plant for delivery for a consideration. We are unable to find from the material on record that whether the appellant Nyco has ever provided engineering consultancy service in the globe to anybody. Therefore, ld. DRs reliance on para-2 does not get any sanction in the eyes of law in absence of any cogent evidence. 5. We have heard both the sides and perused the record. 6. We have thoroughly gone through the averments of both the si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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