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2010 (10) TMI 313 - AT - Service TaxUnder sections 76, 77 and 78 - The appellant is a company incorporated under the law of Denmark having its principal office at Nymollevej 55, P.O. Box 213. DK - 2800 Lyngby, Copenhagen, Denmark - It had entered into an agreement No. IOCL/SEEC/004, dated 20-9-2000 with M/s. IOCL, under which it has to supply know-how, PSA Unit know-how, Process Package, PSA Unit Process Package, Services for Hydrogen Plant and Detailed Engineering of Reformer Package to IOCL in the form of technical documentation - The activities were performed outside India and the appellant had provided the technical information to the officials of IOCL at their office in Denmark only- The appellant received two identical show-cause notices from the Deputy Commissioner of Central Excise and Customs, Division-III, Vadodara-I, in which he proposed to levy service tax along with interest and penalty on the ground that the appellant had rendered taxable service under the category of “consulting engineer’s service” to IOCL Show-cause notices had been issued to both the appellant (service provider) as well as IOCL the service receiver - The Commissioner has held that IOCL was not liable to pay service tax in view of the absence of statutory provision making the service receiver liable to pay was not in existence - Also taken note of the clause of the agreement providing for payment of service tax by M/s. IOCL and of payment of interest and penalties levied on HTAS by Indian Tax authorities is to be paid by M/s. IOCL but held that it is for the parties to enforce the contract and such a clause cannot do away with the liability of HTAS on this account - The decision of Hon’ble Supreme Court or the Hon’ble High Court of Kerala was not available during relevant time, the issue needs to be reconsidered by the Commissioner - The fact that the decisions in the case of Indian Farmers Fertilizers Co-operative Ltd., All India Federation of Tax Practitioners were also not available and the other decision cited by the learned advocate were also not available during the relevant period – Thus set aside the impugned order, and remand the matter to the Commissioner for fresh adjudication after giving the concerned parties fresh opportunity to present their case.
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