TMI Blog2006 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... Cable Stay Bridge across NH 4 at K.R. Puram, Bangalore, as per the contract awarded to them by M/s. Indian Railway Construction Company Ltd. (hereinafter referred to as M/s. IRCON), Bangalore. They were said to have provided these services as agent of M/s. Bureau BBR Ltd. of Switzerland. The Consultancy fee paid by M/s. IRCON to the appellant have been paid to M/s. Bureau BBR, Switzerland, by the appellant. The original authority, in his order dated 29-12-2003, confirmed a demand of Rs. 5, 67,813/- under Section 73 of the Finance Act, 1994. He demanded interest on the delayed payment under Section 75. Penalties were imposed under Sections 75A, 76, 77 and 78 of the Act. The appellants approached the Commissioner (Appeals), who passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Railways (the client) with the help of BBR, Switzerland, who, provided the hi-tech construction technology services through the R D Division. As the appellant is only a sub-contractor to IRCON as per Board's Circular, there cannot be Service Tax liability in the absence of service provider and client nexus. (iv) The appellant had obtained technology in the form of designs drawings and know-how from BBRS which are in the nature of intellectual property. As per Apex Court's ruling in the case of Associated Cement Companies Ltd. v. Commissioner - 2001 (128) E.L.T. 21 (SC), intellectual property are goods. It is submitted that goods cannot be intellectual incorporeal movable property under one act and a service under another. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of taxable service exceeds Rs. 2 lakhs it was mandatory to obtain prior approval of the Commissioner of Central Excise. This condition has not been satisfied in the present case and the imposition of penalty is legally unsustainable. (ix) The learned Advocate urged that permanent transfer of intellectual property right would not amount to service as per Board's Circular dated 10-9-2004 Para 9.2. 5. The learned JDR drew the attention of the Bench to the letter issued by LCON to the appellant wherein it is clearly mentioned that the contract is a consultancy contract for design work. Therefore, he said that the appellants are liable to pay the Service Tax in the capacity of Consulting Engineers. Further, he reiterated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offloaded the design work to the appellant in the form of consultancy contract. The scope of the consultancy services is as follows:- (i) Detailed design and preparation of working drawings for each and every component of the Cable Stayed Bridge viz, detailed geometry reinforcement details, details of BBRV post tensioning cables for the deck, pylon DINA cable stays, counter weight abutments on Madras side and Bangalore side abutment, rock anchors, foundations, anchoring piers, construction methods and sequences in detail for site execution for the 180m long cable stayed bridge and 50m viaduct on Bangalore side. (ii) Carry out detailed design and preparation of working drawings for temporary structures viz., cantilever construction car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s. Bureau BBR Limited, Switzerland. There is an agreement between the appellant and M/s. Burea BBR Ltd., Switzerland. This agreement is dated 29-5-1995. The object of the agreement is again consulting services for the Phase-2 detailed design of the Krishnarajapuram Cable Stayed Bridge in Bangalore. The scope of the work is the detailed design of Phase-2 covering all required statical computations and production of all working drawings for the structure and for the listed temporary works. We do not feel it necessary to reproduce the detailed scope of the agreement. According to the agreement, a maximum of four visits of 3 working days each, if required, to Bangalore or elsewhere in India have been considered for the design phase. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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