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2016 (10) TMI 770 - CESTAT NEW DELHI

2016 (10) TMI 770 - CESTAT NEW DELHI - TMI - Classification of services - Intellectual property service or Consulting Engineer’s Service - payment towards transfer of technical know how - Held that: - A perusal of the overall agreement reveals that the hand holding for rendering assistance is incident to the main service, i.e. transfer of technical knowhow. Since the intellectual property right service has been included in the statute book only from 10/9/04, the same service cannot be charged to .....

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Thirumalai, Advocate for the appellant Shri Sanjay Jain, Authorized Representative (DR) for the Respondent ORDER Per. V. Padmanabhan The present appeal is directed against the order of the Commissioner (Appeals) dated 19th of April 2010 in which he upheld the service tax demand to the extent of ₹ 6,37,339/- alongwith interest and penalties. The appellant company has Research and Development Centre in Faridabad in which they develop a process for preparing a petroleum additive described as .....

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(i) provide technical information for manufacturing the product ; (ii) will provide free of charge, technical back up support for initial three trial batches of the product. Undisputedly this service is covered within the intellectual property service as defined in Section 65 (55b) of the Finance Act, 1994 w.e.f. 10/9/04. The present dispute is whether this service can be subjected to service tax under the definition of consulting engineer services prior to 10/9/04, as has been done by the Reve .....

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e but is for transfer of technical knowhow. He further relied on the following case laws :- (i) Yamaha Motors (I) Pvt. Ltd. vs. CCE, Delhi IV (Faridabad) reported in 2005 (186) E.L.T. 161 (Tri. Del.) ; and (ii) Duraline Corporation vs. CCE & CUS., Goa reported in 2014 (34) S.T.R. 398 (Tri. Mumbai). 4. The learned DR on the other hand reiterates view taken by the authority below. According to him the payment is on account of the fact that continued assistance and supervision for manufacture o .....

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service. The definition of consulting engineer service in Section 65 (31) and 65 (105) (g) of the Finance Act is reproduced below for ready reference :- Consulting Engineer means any professionally qualified engineer or an engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering . 6. We have perused the agreement entered into by the appellant with SCIL. The payment received is .....

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