TMI Blog2005 (12) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents on 10-9-2003 envisages that the payments made by the respondents to their foreign collaborators on account of technical know-how fee/royalty attracts the levy of service tax. Para 13 of the said show cause notice also contains certain veiled references to create an impression that the technical assistance rendered to them by the foreign collaborator could be obliquely taken as a service received by them which can attract service tax. 2. The Assistant Commissioner, Central Excise, Gwalior decided the matter in favour of the Revenue confirming the demand, imposing penalty and charging interest. However, when the matter was taken up before the Commissioner (Appeals), Indore, by the aggrieved appellants, it took a different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant nor in the appeal petitiion filed by the Commissioner before us - nowhere any direct mention has been made with any reliable evidence that the payments made by the respondents as royalty to their foreign collaborator, M/s. Continental was really not a royalty as understood in commercial parlance. However, thanks to the oblique references made with regard to the royalty payments as a consideration for the services provided by the foreign collaborator, that a case could be made out, though no documentary proof nor any confessional statements are forthcoming to prove that the royalty represented a transaction for consideration and in the nature of payment for services as specified under Service Tax Law. 4. Journeying through t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid to a patentee for the use of a patent or to an author, etc., for each copy of a book etc. sold or for each public performance of a work . In the case of mining activities, the term refers to a payment made by a producer of minerals, oil or natural gas to the owner of the site or of the mineral for the right over it . From the above definition it is clear that in the commercial vocabulary, the term royalty has come to assume certain commercial characteristics, which are distinguishable from any normal payment made in respect of a sale of goods or services, in the ordinary course of trade. It evidently refers to the payments in the context of intellectual properties such as trade mark, copy right, know-how, etc. Royalty, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the present case, as clearly seen from the agreement . (c) M/s. Samsung Electronics Co. Ltd. v. Commissioner of Central Excise, Noida - 2006 (1) S.T.R. 217 (T), Final Order No. 669 to 671/05, dated 12-4-2005. Reliance was placed on para 4, which reads as : The contention of the appellant company is that no service tax was attracted as engineering consultancy in regard to technology and trade mark agreements. It is being pointed out that know-how patent, trade mark are intellectual property and trading in them is not rendering any service, but is transfer of property. It is also being contended that the issue raised in this appeal remains covered in favour of the appellants by the judgment of this Tribunal in the case of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices rendered by a consulting engineer . In our opinion, a consulting engineer has to use his experience and knowledge of engineering necessarily to arrive at a correct valuation of the immovable property. The argument that mere valuation of an immovable property is not an advice in the nature of engineering advice is obviously incorrect because where the knowledge in engineering itself is a must and is a basis for giving the valuation for the benefit of the assessee under the Wealth Tax Act then, it cannot be said that the advice is not in the engineering discipline . It must be first remembered that what has fallen for consideration before us is a subject of service tax and the provisions under the Finance Act and not the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cal.) (Para 15), relied upon reads : After considering the facts and circumstances of this case I do not have any hesitation to accept the contention of Mr. Roy Chowdhury and express the same view as has been expressed by their Lordships in V. Shanmughavel (Dr.) v. Commissioner of Central Excise, Chennai-II. Therefore, when an engineer gives his advice or when engineer form an association or a firm or a company consisting of engineers rendering their service or services as consulting engineer within the meaning of Section 65(72)(g) of the Finance Act cannot have separate footing than that of the definition given in the said section. Therefore, I specifically hold that the petitioners are rendering service as a consulting engineer w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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