9911796707
TMI Blog2011 (5) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 65(92) of the Finance Act, 1994 read with section 65(105)(za) of the said Act. After examining the records, we find that the appellant had entered into "technical assistance agreements" with certain foreign companies for the purpose of acquiring technical information and obtaining technical assistance for the purpose of manufacture, in India , of licensed products. One specimen agreement, which is available on record, is one entered into between M/s Kansai Paint Co. Ltd. , a Japanese company and M/s Goodlass Nerolac Paints Ltd. (presently known as Kansai Nerolac Paints Ltd. ) the appellant herein. Under this agreement, the Japanese company agreed to transfer "technical information" useful for the manufacture and sale of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies paid by the appellant to other foreign companies as consideration for "technical information" during the same period. 2. The learned consultant for the appellant submits that the appellant, as the recipient of any service from a foreign company (non-resident) without any office in India was not liable to pay service tax prior to 1.1.2005, the date on which Notification no. 36/2004-ST dated 31.12.2004 came into force. It is submitted that, though certain provisions of the Service Tax Rules, 1994 obligated service recipients in India to pay service tax in respect of services rendered from abroad by a company having no office in India during the period of dispute, the statute did not provide for such payment of service tax by an Indian re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals), Ahmedabad has dropped a demand of service tax for a comparable period and that the appellate Commissioner's order has, apparently, been accepted by the Revenue. 4. On the above grounds, the learned consultant has prayed for waiver of pre-deposit and stay of recovery in respect of the dues adjudged against the appellant. 5. The learned JCDR, on the other hand, extensively refers to the provisions of the aforesaid agreement, particularly to Article 8 thereof. It is his submission that, under the agreement, Kansai was liable to bear the expenses thereof. In this connection, the learned JCDR has invited out attention to sub-article 8.1.1 and sub-article 8.2 of the specimen agreement. It is his submission that the running royalties, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a provision in the aforesaid agreement which obligated KSEB to pay the service tax. The learned JCDR has claimed strong support from this judgment of the Hon'ble Supreme Court inasmuch as the service tax liability was fastened, in that case, on the service recipient for a period prior to 1.1.2005, the date on which the Finance Act, 1994 expressly recognized service recipient to be the "person liable to pay service tax" vide notification no. 36/2004-ST ibid . 7. After considering the submissions, we have found prima facie case for the appellant. AT the outset, we may state that the tax liability cannot be determined by two persons by a contract. It is determinable exclusively under the taxing statute, which, in the instant case, is the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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