9911796707
TMI Blog2009 (3) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ge International Ltd., a corporation registered in the United Kingdom and had obtained technical know-how and licence from the said company for manufacture and sale of generators/alternators and control systems in India. (b) They paid, inter alia, royalty to the above company @ 1.5% on sales within India and @ 2% on sales outside India, in terms of Clause 7.2 of Article VII of the agreement. This payment was made as consideration for patent rights including technical assistance provided by the above company. (c) The above payments were made by the appellants to the foreign company from time to time during the period January, 2004 to March, 2005. (d) The appellants paid service tax as 'Consulting Engineers" on the above amounts during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and, on that basis, held that the service received by the party from abroad was correctly classifiable as 'consulting engineer's service'. It did not enter into unjust enrichment / time-bar issues. The refund claim stood rejected. The aggrieved party once again approached the Commissioner (Appeals) who sustained the Assistant Commissioner's order after holding that the services received by the appellants from the foreign company were to be classified as 'consulting engineer's service'. The present appeal is directed against the appellate Commissioner's decision. 3. The leaned counsel for the appellants has relied on a plethora of judgments passed by different Benches of this Tribunal, all to the effect tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice. It is also submitted that the appellants voluntarily paid service tax in the category of consulting engineer's service, on the royalty paid by them to the foreign company during the material period. The payments made after 10/09/2004 were also of this nature and no claim for refund thereof has been made by them. All their assessments during the entire period were in their capacity as recipient of consulting engineer's service and no assessment has ever been altered. Whether prior to 10/09/2004 or thereafter, all these transactions were under the same agreement. In the circumstances, according to the learned SDR, it is not open to the appellants to deviate from their stand that they were receiving consulting engineer's ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service. This understanding of the appellants appears to be based on those provisions of the agreement which made it obligatory for the foreign company to depute technical experts to India to render assistance to the appellants in the setting up and commissioning of their manufacturing facility. To summarise, the consistent conduct of the appellants during the period 01//01/2004 to 31/03/2005 has been in keeping with the contractual position that technical assistance was rendered by the foreign collaborators and consideration was paid by the appellants in the form of royalty. In my considered view, the appellants are estopped from construing the provisions of the agreement to the contra for a part of the period. They have cited a plethora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was receiving consulting engineer's service is a mixed question of law and fact. As regards the factual aspect, the appellants have, by their conduct, already demonstrated that at least, for the period after 09/09/2004, they have received consulting engineer's service from abroad in terms the agreement. In this scenario, the caselaw cited by the learned counsel has failed to advance the appellant's case any better. 6. In the above view of the matter, I am inclined to agree with the lower appellate authority on the question whether the appellants are entitled to refund of service tax paid by them as recipient of what they themselves considered to be 'consulting engineer's service' from abroad. 7. The impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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