TMI Blog2008 (2) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants M.K.A.K. Mohideen, JDR, for the Respondent [Order per P. G. Chacko, Member (J)] - After examining the records and hearing both sides, I am of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with predeposit, I take up the appeal. 2. The appellants had entered into a Technical Collaboration Agreement dated 11.9.2001 with M/s. Nypro Inc. (USA) and had thereunder obtained technical know-how, technical information and technical assistance from the foreign company for setting up in India a plastic injection moulding plant. The agreement also permitted the appellants to have access to modifications and improvements to the technical know-how during the tenure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai) as also the decision of the Tribunal in Yamaha Motors (I) Pvt. Ltd. Vs. CCE, Delhi -IV (Faridabad)- 2006 (3) STR 665 (Tri.- Del.). Learned consultant has also referred to relevant provisions of the agreement so as to show that the agreement did not envisage technical assistance of the kind covered by the definition of consulting engineer, to be rendered to the appellants by the foreign company. She has particularly referred to Articles 2 and 6 of the agreement, the former laying down the scope of technical assistance to be rendered by the foreign company to the assessee and the latter laying down the nature of technical collaboration fee to be paid by the assessee. Learned JDR reiterates the Commissioner's findings and particularly p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94 was also rendered to the appellants by their foreign collaborator and that the fee paid by the appellants was in consideration for such service as well. 4. After giving careful consideration to the submissions, I note that there is nothing in the impugned order or in the submissions of learned JDR which stands following the view taken by this Bench in Turbo Energy case (supra). The DR has submitted that, as the appeal filed by the department against Navinon Ltd. Vs. CCE- 2004 (172) ELT 400 (Tri.- Mum.), relied on by this Bench in Turbo Energy case, was admitted by the apex Court, the case law cited by learned consultant is not liable to be followed. However, the DR has not given any citation in confirmation of his submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign company in any discipline of engineering whatsoever to render any technical assistance of the kind envisaged under Section 65(31) ibid to the assessee during the tenure of the agreement. The findings of the Commissioner on the point are far from convincing. 6. Sub-article 6.1 under Article 6 of the Agreement reads as under:- "In consideration of the technical know-how and on-going access to modification and improvements thereto, and the licenses, rights and privileges granted or agreed to be granted hereunder, the Licensee shall pay to the Licensor a fee of 5% (five percent) of the net ex-factory price received by Licensee ("Technical Collaboration Fee") on the total of its sales of contract products during the term of this agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engineer's service". Apparently, the service in question in the instant case is an intellectual property service on which service tax was not leviable prior to September 2004. There is another aspect, which also operates against the Revenue, in this case. The Revenue admits that the technical collaboration fee was paid by the assessee to their foreign collaborator mainly as consideration for transfer of technical know-how for the purpose of setting up a plastic injunction moulding plant in India. If that be so, a major part of the fee paid by the assessee under the technical collaboration agreement was consideration for technical know-how only, which admittedly is an intellectual property service. Only a small part of the fee paid by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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