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TMI Blog2009 (3) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... eir stand that they were receiving consulting engineer's service from abroad under the agreement for a part of the period - appellants are estopped from construing the provisions of the agreement for a part of the period – refund denied - ST/215/2008 - A/165/2009/SMB/C-IV - Dated:- 30-3-2009 - Shri P.G. Chacko, Member (Judicial) Ms. Aparna Hirandagi, Advocate for the appellant. Shri Kishorilal, Authorized Representative (SDR) for the respondent. [Order]. - After examining the records and hearing both sides, I come across the following facts, which are not in dispute: (a) The appellants had entered into an agreement dated 01/01/1999 with M/s. Newage International Ltd., a corporation registered in the United Kingdom and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived from abroad as consulting engineer's service, and they chose to designate the same as intellectual property service. This claim for refund was rejected by the original authority on merits as well as on the grounds of limitation and unjust enrichment. An appeal filed by the party against the decision of the original authority was disposed of by the Commissioner (Appeals) by way of remand, after holding that the refund claim was neither hit by the bar of unjust enrichment nor by limitation. The appellate authority wanted the lower authority to re-examine the claim on merits. Pursuant to this remand, the original authority re-examined the provisions of the agreement and, on that basis, held that the service received by the party f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assistance provided by the foreign collaborators and not as consideration for any consulting engineer's service. 4. The learned SDR also has referred to some of the provisions of the agreement. He submits that the agreement provided for visit of technical experts deputed by the foreign company to the manufacturing facility of the appellant for the purpose of rendering technical assistance. With reference to the definition of consulting engineer given under Section 65 of the Finance Act, 1994, the SDR submits that any payment made for the technical assistance rendered to the appellant by the foreign company is chargeable to service tax in the category of consulting engineer's service. It is also submitted that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears from the records that, though similar payments of service tax were made in identical manner after 09/09/2004 also, the appellants have not chosen to claim refund thereof. It appears that they have continued to remain registered with the Department as 'consulting engineers' and have chosen to pay service tax in the category of 'consulting engineer's service' in respect of the payments paid by them, under the above agreement, to the foreign company. This would show that the appellants themselves understood the relevant terms and conditions of the agreement to mean that they were liable to pay royalty to the foreign company as consideration for consulting engineer's service. This understanding of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the relevant agreements and held in favour of the assessees. The instant case is unique. The assessee claiming refund for the period prior to 10/09/2004 on the ground of not having received consulting engineer's service from abroad would however remain registered with the Department for the purpose of payment of service tax on such service and would continue to pay service tax as recipient of consulting engineer's service beyond 10/09/2004. This choice of theirs for the period after 09/09/2004 is based on their understanding of the provisions of the contract. The appellants cannot now plead anything contrary to such understanding inasmuch as the question whether, under the agreement, the appellant was receiving consulting engineer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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