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M/s. Bharat Aluminium Co. Ltd. Versus CCE Raipur

Consultancy engg. service - supply of engineering design, drawing and documents given by GAMI and imported by the appellants - Held that: - we are dealing with the same value of engineering design and drawing - the importation had been done by the appellants and not by GAMI, who provided Engineering Consultancy Service to the appellants in terms of the contract. Whatever fee is charged by GAMI for providing engineering consultancy in India has been subjected to service tax - the Original Authori .....

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- Final Order No.52864/2017 - Dated:- 7-4-2017 - Shri S.K. Mohanty, Member (Judicial) and Shri B. Ravichandran, Member (Technical) Rep. by Shri Somnath Shukla, Advocate for the appellant. Rep. by Shri Ranjan Khanna, DR for the respondent. ORDER Per B. Ravichandran: The appellant is aggrieved by the order dated 30.09.2014 of the Commissioner of Central Excise, Raipur. The appellants are engaged in the manufacture of excisable goods like Aluminum metal, etc. They were also registered with the Serv .....

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o be put to service tax liability for three basic activities:- (a) Supply of engineering drawing and design for the plant upgradation of the appellant; (b) Training of the employees of the appellants by GAMI, in China; (c) Engg. technical service with reference to such upgadation of plant to be provided by GAMI in India. 2. Out of these components, the present dispute is only with reference to the supply of engineering design, drawing and documents given by GAMI and imported by the appellants. I .....

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er Section 76 and 77 of the Finance Act, 1994. 3. Ld. Consultant appearing for the appellants submitted that in respect of the training service provided by GAMI, the issue was settled in their favour by the Tribunal vide Order No.62211 dated 2.12.2011. Regarding technical engineering service provided by GAMI in India, the appellant had already discharged the service tax under the category of Engineering Consultancy Service . As such, the present appeal is with reference to the confirmed service .....

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value. He relied on the certain decided cases in support of his submissions. 4. Ld. AR submitted that drawing and design are very much essential for execution of the service contract by GAMI, with reference to the appellant s plant. In the contract with the appellant, the role of GAMI has been explained. The engineering, drawing and design being very essential to the technical service of engineering consultancy provided by GAMI in India, the value should form part of the various considerations a .....

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engineering . Section 65 (105) (g) explains the scope of taxable service Consulting Engineering Service is in relation to advice, consultancy or technical assistance in any manner in one or more discipline of engineering including the discipline of computer hardware engineering . Admittedly, in the present case, the appellant imported the engineering drawing and design in physical form and filed the bills of entry for clearance through customs as goods. The present service tax liability is on th .....

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ice. In this regard, it is well known that when any technology, drawings & designs, any technical information, etc. for setting up of any plant in India are imported into India, it has to be imported in the form of documents, which are no doubt become a goods being a physical form. After importation into India, it has to be passed through Customs procedure under the provisions of Customs Act, 1962 and the Customs duty is payable as per the Customs Tariff Act, 1975. But, at the same it cannot .....

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is covered under the Finance Act, 1994. The purposes of the aforesaid two Acts are different and action taken by the Department under Customs Act, 1962 do not restrict the Department from taking action under Finance Act, 1994, if legitimately warranted. 7. We find that the above observation is not reflecting the factual position. The Original Authority held that primary importation part is covered by the Customs Act and the succeeding part of the providing service by GAMI is covered by the Fina .....

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ng drawing and designs are to be treated as goods and were processed through customs. We note that the Hon ble Supreme Court in Associated Cement Companies - 2001 (128) ELT 21 (SC) held that drawing and designs are tangible movable articles and they are liable to be treated as goods under the provisions of Customs Act, 1962, irrespective of the what articles may be or may contain. 8. We note that in similar set of facts, the Tribunal in the case of Mitsui & Co. Ltd. - 2012 (28) STR 491 (Trib .....

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Mandapam Assn. v. Union of India reported in 2004 (167) E.L.T. 3 (S.C.) = 2006 (3) S.T.R. 260 (S.C.) wherein it has been held that the Service tax on mandap keeper and outdoor caterers is in pith and substance, a tax on services and not a tax on sale of goods despite an element of sale involving of such cases. A plain reading of the said judgment, we find that the ratio of the same is not applicable to the facts of the present case as in the said case, their Lordships are confronted with the que .....

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Communication Ltd. v. Commr of C.Ex.& Cus., Cochin - 2011 (23) S.T.R. 433 (S.C.). The issue in that was whether the value of SIM Card would form part of the taxable value for the purpose of levy of Service tax. It is held that SIM Cards are not sold as goods independently from the services provided. They are considered as part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM Cards which on its own b .....

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