Customs, Excise and Gold Tribunal - Tamil Nadu
Yazaki Wiring Technologies (I) Pvt. ... vs Cce on 12 April, 2006
Equivalent citations: 2006(108)ECC590, 2006ECR590(TRI.-CHENNAI), 2006[3]S.T.R.779
ORDER P.G. Chacko, Member (J)
1. Service Tax of Rs. 1 7,23,993/- has been demanded from the appellants for the period 2000 - 2001 to 2002 - 2003 and penalties have been imposed on them. The demand of tax is on services-found to have been availed by the assessee from three foreign collaborators. In respect of management consultancy services found to have been received by the assessee from M/s. S.Y. Wiring Technologies (Germany), the assessee has already paid service tax of Rs. 1,08,218/- at the rate of 5% on the fee paid to the foreign company for the period from 16.8.2002. In respect of the services received by the assessee from M/s. Siemens Automotive AG (Germany), the demand of service tax is to the tune of over Rs. 12.00 lakhs. It is submitted by learned Counsel that a major part of this demand is for the period prior to 16.8.2002 and the same is not sustainable for want of authorization. For the minor part of the demand, which relates to a period after 16.8.2002, learned Counsel has claimed the benefit of the Tribunal's decision in Novinon Ltd. v. Commissioner 2004 -TIOL- 710-CESTAT-MUM., wherein it was held that there was no consulting engineer's service involved in the transfer of technical know-how. It is also pointed out that the Tribunal's decision in Novinon's case has been affirmed by the apex Court. In respect of the services found to have been received by the assessee from M/s. Allhand Allgemeine, an amount of Rs. 3.79 lakhs has been demanded as service tax. In this connection, learned Counsel submits that the relevant show-cause notice had not specified the nature of service received from M/s. Allhand Allgemeine. The amount paid by the assessee to the foreign collaborator was mentioned in the show-cause notice as "Technical Fee" and "Technical Assistance Fee". However, the original authority held the services to be "Clearing & Forwarding Agents Services" and the decision of that authority has been affirmed by the Commissioner (Appeals). Learned Counsel has submitted that the demand of service tax on C & F services is beyond the scope of the show-cause notice. We have heard ld. SDR also. She has reiterated the findings of the Commissioner (Appeals).
2. After giving careful consideration to the submissions, we find that the service tax demanded for the period after 16.8.2002 in respect of the services received by the assessee from M/s. S.Y. Wiring Technologies has already been paid, a fact which is not in dispute. In respect of the services received by the assessee from M/s. Siemens Automotive AG, it appears, the lower authorities have found that the assessee was authorized by the foreign collaborator to pay service tax. This finding is prima facie not sustainable inasmuch as, in the relevant agreement, the authorization was specifically to pay income tax. The authorities below have extended the scope of this provision of the agreement in an-unwarranted manner. Further, the assessee is also entitled to the benefit of the Tribunal's decision to the effect that the transfer of technical know-how does not involve the consulting engineer's service. As regards the service received by the assessee from the Allhand Allgemeine, learned Counsel's submission that the demand of service tax is beyond the scope of the show-cause notice has not been successfully countered. The appellant has made out a prima facie case and they have paid service tax where they have not claimed such case. In the circumstances, there will be waiver of predeposit and stay of recovery in respect of the unpaid tax and penalties. It is ordered accordingly.
(Dictated and pronounced in open Court)