Custom, Excise & Service Tax Tribunal
Abb Ltd Prestige Opal vs Commissioner Of Central ... on 2 February, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/149/2009-DB [Arising out of Order-in-original No. 128-2008-Commr LTU dated 26/11/2008 passed by Commissioner LTU, Bangalore ] For approval and signature: HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes ABB LTD PRESTIGE OPAL 1ST FLOOR, NO.146,INFANTRY ROAD, BANGALORE Appellant(s) Versus Commissioner of Central Excise,Customs and Service Tax BANGALORE-LTU 100 FT RING ROAD JSS TOWERS, BANASHANKARI-III STAGE, BANGALORE, - 560085 KARNATAKA Respondent(s)
Appearance:
Mr. G. Shivadas, Adv For the Appellant Mr. Ajay Saxena, A.R. For the Appellant For the Respondent Date of Hearing: 02/02/2016 Date of Decision: 02/02/2016 CORAM:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 20183 / 2016 Per : ARCHANA WADHWA After hearing both sides, we find that service tax demand stands confirmed against the appellant in respect of various services received by them from their foreign companies. The demands stands confirmed for the period January 2003 to December 2006 on the basis of reverse charge.
2. The contention of the appellant for the period prior to 18.04.2006 is that there was no machinery to demand and confirm service tax prior to the said date till Section 66A was introduced. The issue now stands decided by the Honble Bombay High Court in the case of Indian National Ship Owners Association Vs UOI [2009(13)STR 235 (Bom)] and affirmed by the Honble Supreme Court reported at [2010 (17)STR J57(SC)]. Even the Board has accepted the said decision by of the Honble Bombay High Court as contained in their Circular F.No. B2/8/2004 dated 10.09.2004.
3. As against the above, the learned A.R. appearing for the Revenue draws our attention to a Larger Bench decision of the Tribunal in the case of [Hindustan Zinc Ltd Vs CCE Jaipur [2008(11)S.T.R. 333(Tri-LB)]. However, we find that the said decision of the Larger Bench, apart from the fact that the same is not dealing with the date 18.4.2006, is prior to the Bombay High Court decision, which stands accepted by the Board also. As such it is not open to the learned A.R. to take a contrary stand.
4. In view of the above, the demand pertaining to the period prior to 18.4.2006 is not liable to be confirmed in any case.
5. In respect of the balance of the demand learned advocate submits that the same is primarily relatable to the technical know-how received by them from foreign companies and stands confirmed under the category of Intellectual Property Right service. He draws our attention to various decisions of the Tribunal laying down that such technical know-how cannot be covered under the Intellectual Property Right Service prior to the period July 2012 when it was specifically brought under that category by amending the definition of IPR. He relies upon the following decisions of the Tribunal:
i. Rochem Separation Systems (India) P Ltd Vs CST Mumbai [2015-TIOL-2370-CESTAT-Mum] ii. Tata Consultancy Services Ltd Vs CST Mumbai[2015-TIOL-2370-CESTAT-MUM] iii. Thermax Ltd Vs CCE Pune [2014(36)STR 318(Tri-Mum)] As against the above, learned A.R. has drawn our attention to the fact that other services were also involved and it is not fair to limit the issue only in respect of technical know-how so received by the appellant. Clarifying on this issue, learned advocate submits that the demand in respect of other services was prior to 18.4.2006 only. 6 These facts are required to be verified. We make it clear that if the demand pertains to the period prior to 18.4.2006, the same shall be hit by the decision of the Honble Bombay High Court in the case of Indian National Ship-owners Association(supra) and for the period subsequent to the said date, the issue of technical know-how being covered by the service of IPR is required to be considered afresh by the adjudicating authority in the light of the decisions referred by the learned advocate. With these observations, we set aside the impugned order and remand the matter to the adjudicating authority for passing a fresh order. Appeal is disposed of in above manner. (Order pronounced in open court) ASHOK K. ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER pnr 2