9911796707
TMI Blog2011 (2) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that the appellants have rendered "Consulting Engineer Services" to M/s IOCL Gujarat. 2. As per facts on record, the appellant is a company incorporated under the laws of USA, having their address as "245, Summer Street, Boston, Massachusetts, USA". 3. They entered into an agreement dated 8-6-2000 with IOCL Gujarat Refinery, Vadodara for designing, constructing, operating, maintaining, repairing, re-constructing of unit for the commercial practice of Fluidized Catalytic Cracking (FCC). The said agreement had 3 parts i.e., Licence Agreement, Engineering Agreement, Guarantee Agreement. In terms of Licence Agreement, certain technical know-how and patent rights relating to RFCC unit and EDV technology were licenced to IOCL. The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as detailed under section 65(18) of Finance Act, 1994 and the appellant was required to pay the service tax on the same. Accordingly, a show-cause notice dated 19-4-2005 was issued to the appellant, proposing to recover the service tax of Rs. 69,70,343 along with confirmation of interest and imposition of penalty in respect of services rendered by the appellant during the period 2000-2001. The notice proposed invocation of extended period of limitation. The said notice stand culminated into an order passed by the Commissioner impugned before us. 5. We have heard the learned advocate Shri Prakash Shah, learned Advocate for the appellant and Shri Rajendra Nagar, learned SDR for the revenue. 6. Though the appellant has challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy covers only the services provided within India. As such, it was contended by the appellant that development of designs, prices, preparation of operating manual etc., was done by them in Boston, USA and copies of design/manual so prepared were sent by them from USA to IOCL in India. As such, no service tax is payable in respect of technical designs, drawings, know-how etc., which has been developed by them entirely outside territory of India for use by IOCL. The service tax is leviable on rendering of services in India and not on entering into agreement with an Indian assessee. They further clarified that though the agreement provided for deputation of skilled personnel to IOCL in India, the said option was never exercised by either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken place in USA. The consumption of such services in India, when admittedly no such service stands provided by the appellant in India, cannot be held to be a taxable event. The above view is also supported from the question 3 of the Frequently Asked Questions and Answers by the Directorate of Publicity, Public Relation, wherein it was clarified that the services provided abroad shall not attract service tax as the levy covers only the services provided within India. 10. Apart from the above, we also find that the demand in question is barred by limitation, inasmuch as the show-cause notice for the period from 2000-01 was issued on 19-4-2005. The Commissioner has invoked the extended period of limitation, by observing that when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Central Excise 1989 (43) ELT 195 wherein it was held that bona fide lack on the part of the assessee to get licences and to pay duty, cannot be made the reason for invoking extended period, in the absence of any positive evidence to show mis-statement or suppression of facts with intent to evade payment of duty. The Commissioner has not referred to or relied upon any instance or evidence to show that the appellants have knowingly suppressed the above facts from the department, with mala fide intention not to pay the tax. If the views of the Commissioner that the appellants should have made enquiries and done the ground work to find out the liability of service tax, are accepted to be good and just reasons for invocation of extended per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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