TMI Blog2011 (1) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof is felt. The taxable event has not occurred inIndia, inasmuch as the activity of development of technology, technical information & know-how, transfer of design, drawing etc has taken place in USA. Extended period of limitation - Any bonafide lapse not to make enquiries about its obligation to pay duty/tax, cannot be made reason for invocation of extended period unless there is evidence to show that such lapse was on account of malafide intention, and with guilty mind of avoiding payment of tax. - Demand is barred by limitation – Appeal is allowed - ST/92/2006 - - - Dated:- 8-1-2011 - Mrs. Archana Wadhwa, Mr. B.S.V. Murthy, JJ. Shri Prakash Shah, Adv. for the Assessee; Shri Rajendra Nagar, SDR for the Revenue. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sign, specifications and related services pertaining to RFCCU and EDV technology. Under this agreement, the appellants were to prepare, process, design and basic engineering designs and deliver copies of the same to IOCL, which were to be used by them and their engineering contractors for the purpose of preparation of detailed designs and perform detailed engineering, procurement, construction, operation, maintenance and re-construction of the unit. The appellants were also to prepare and provide a Standard Supervisory Operating Manual for use by IOCL or its Engineering Contractors. The Detailed Design Review Agreement was for providing written comment on the detailed design documents sent by IOCL after completion of the review. The said ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand is hit by the bar of limitation; we propose to dispose off the present appeal on the later two grounds raised by the appellant. 7. It stands strongly contended by the appellant that the services so provided by them were provided fromUSAi.e. from a place outside theterritoryofIndia. As such, the same were beyond the jurisdiction of Indian Service Tax authority. Section 64 of Finance Act, 1994, provides that Chapter V (providing of levy of collection of Service Tax), shall extend to whole ofIndiaexcept Jammu Kashmir. As such, no service rendered in the areas beyond the territorial waters ofIndiaand designated areas, even if these services, otherwise qualify as taxable services, according to service tax provisions, shall not be li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide India. The services stand received and consumed by IOCL, who are located within territorial waters ofIndiaand as such they have to be treated as having been provided/rendered inIndia. 9. We find that it is the case where designs, technical know-how etc which were admittedly prepared by the appellant inBoston, stand transferred by them to IOCL. It is basically a transfer of technical know-how/design, which is nothing but the goods to the appellant. The Commissioner, inPara23.2 of his order, has specifically observed that the services rendered by the appellant have been consumed inIndia. If that be so, it can be safely concluded that the services were not rendered inIndia. The consumption of service inIndiais not taxable event. Situs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact of taxable service from the department till it was detected by Central Excise Revenue Audit authority of the Accountant General ofGujaratfrom the balance sheet of IOCL. 11. We find that the provisions of Section 73 of Finance Act, 1994, in terms of which the show cause notice stand issued, provided for extended period of 5 years, only when the service tax has not been levied or paid on account of reason of fraud, collusion, willful mis-statement, suppression of facts or contravention of any of the provisions of this Chapter. As such, the extended period of 5 years is available to the Revenue only when the service tax stand not paid or less paid on account of malafide on the part of the assessee. It stands held by various decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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