Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2005 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2005 (12) TMI 558 - AT - Service TaxService Tax - foreign company for “Consulting Engineers Service” - technical know-how/assistance fee - interest - Penalty - HELD THAT:- The very definition of “Consulting Engineer” is till a question mark for the appellant. According to this definition “Consulting Engineer” means any professionally qualified engineer or an engineering firm, who either directly or indirectly renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering”. In order to place any person within the ambit of such “Consulting Engineer”, the Revenue should, in the first instance, establish that he is a professionally qualified engineer. The Revenue has not established this. The original authority observed that such advice and technical assistance as contemplated under the above agreement cannot be rendered by anybody other than a professionally qualified engineer and, therefore, M/s. Power Gem Ltd., would come within the ambit of “Consulting Engineer” as defined u/s 65 of the Finance Act, 1994. This observation of the original authority is just a presumption. No tax could be levied on the basis of presumption. The above definition of “Consulting Engineer” called for a finding, supported by evidence, that M/s. Power Gem Ltd., U.K. were professionally qualified engineers. No such finding is forthcoming from the Order-in-Original. Apart from this, the said order does not even mention the disciplines of engineering in which the so-called advice, consultancy or technical assistance was rendered to the assessee by the foreign company. Thus, the Revenue has not been able to make a good case with reference to the definition of “Consulting Engineer”. It has been consistently held by this Tribunal that any royalty or other consideration for technical know-how received by an assessee in India from a foreign company was not taxable under the Finance Act, 1994 vide case law cited above. Admittedly, the payment made by the assessee to the foreign company is in the nature of running royalty for the technical know-how/assistance rendered by the latter, which service was not to be treated as “Consulting Engineers Service” for the reasons already recorded. In the result, the impugned order gets affirmed and this appeal is dismissed.
|