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TMI Blog2024 (8) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of service tax to the extent of Rs.48,78,395/-in the impugned order, under the category of Intellectual property services , paid by the appellant under protest, is not sustainable and accordingly we set aside the same. The appellant has made payments towards receiving of various other services such as supervision charges and Training of personal etc. for which the appellant paid service tax, under reverse charge without any protest. It is found that the appellant has rightly paid service tax on the taxable services such as supervision charges and Training of personal, without any protest. Thus, the payment of service tax by the appellant on other services received by them, under reverse charge upheld. Penalty u/s 78 of the Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 27, 2005, with Beijing Sino-Steel Industries and Trade Group Corp (hereinafter referred to as SSIT ), Beijing, China. The said plant simultaneously provides for production of power from the heat generated in the coke oven during conversion of coal to coke. 2.1. One of the five Agreements entered between the appellant and SSIT, being Contract No.HMCPCL/PROJ/003/002/FDR, was for supply of designs and drawings for manufacture of indigenous equipment and civil structure utilities and other services and for the purpose of erection, start-up commissioning and demonstration of performance test, etc. As per Clause 2.1 of this Agreement, the contract price for supply of the imported designs and drawing was USD 1 million. 2.2. In April, 2007 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty services under Section 65(105)(zzr) and consulting engineering service under Section 65(105)(g) respectively of the Finance Act, received by them in the form of supply of designs and drawings from SSIT, China during the period 10th November, 2005 to 31st March 2008. The said Notice was adjudicated by the Commissioner vide the impugned order wherein the demands raised in the Notice are confirmed along with interest and penalty. Aggrieved against the confirmation of the demands, the appellant filed this appeal. 3. The appellant submits that transferring of technical know-how from SSIT is not a taxable service liable for service tax; supply of designs and drawings by SSIT would not qualify as a taxable service under the category of int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue reiterated the findings in the impugned order. 5. Heard both sides and perused the appeal documents. 6. We observe that for the purpose of setting up the Heat Recovery Coke Oven Project in their factory, the appellant entered into five Agreements with Beijing Sino-Steel Industries and Trade Group Corp. One of the Agreements was meant for supply of designs and drawings for manufacture of indigenous equipment and civil structure utilities and other services for the purpose of erection, start-up commissioning and demonstration of performance test, etc. The Department has alleged that supply of designs and drawings, by SSIT amounts to providing the taxable service of Intellectual property services (IPR Services) as defined in Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe that the appellant had paid service tax of Rs.48,78,395/- only along with interest 'under protest' and informed the Department about the payment 'under protest' vide letter dated 28.02.2008. For the sake of ready reference, scanned copy of the letter is reproduced below : - 6.3. From the letter dated 28.02.2008 reproduced above, we observe that the appellant has paid service tax of Rs.48,78,395/- along with interest, with respect to import of design and drawings. According to them there is no liability of service tax on these services. As these designs and drawings were considered as goods under Customs Act, 1962 and customs duty has already paid on the importation of the goods, we hold that the demand of service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the appellant under Section 78 of the Finance Act, 1994, we observe that there is no suppression of facts with intention to evade the payment of tax established in this case. The appellant has paid service tax under the category of consulting engineering service instead of intellectual property service as claimed by the Department. If service tax is paid under a different category, it is only a procedural lapse, for which no penalty can be imposed. Accordingly, we hold that no penalty imposable on the appellant and thus, we set aside the penalty imposed under Section 78 of the Finance Act, 1994. 8. In view of the above discussions, we pass the following order: - (i) The appellant is not liable to pay service tax on the importation of draw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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