2008 (5) TMI 129 - AT - Service Tax

Appellate Tribunal rules in favor of appellant in tax dispute involving waiver of pre-deposit & stay

The Appellate Tribunal CESTAT New Delhi found a prima facie case in favor of the appellant in a dispute involving waiver of pre-deposit and stay for ... Transfer of designs & drawings, training and technical assistance from foreign company – appellant plea is that transfer does not involve the element of advice or consultancy so as to attract a definition of ‘consulting engineer service’ – moreover import of services are made taxable only from 18-4-2006 - case of the appellant is that impugned demand is time-barred - prima facie case is made out in favour of the appellant to justify a full waiver of requirement of pre-deposit Issues:1. Waiver of pre-deposit and stay regarding service tax, education cess, and penalties under Sections 76 and 77 of the Finance Act, 1994.2. Tax liability on transfer of technology agreement with a Chinese company for designs & drawings and training.3. Ownership and transfer of intellectual property as a service, applicability of service tax rules, and time-barred demand.4. Interpretation of the agreement for design and drawing transfer, liability of service tax on services from outside India, and revenue neutrality.5. Prima facie case for waiver of pre-deposit based on contentions and case laws.Analysis:1. The appeal before the Appellate Tribunal CESTAT New Delhi involved a dispute regarding the requirement of pre-deposit and stay for an amount of Rs. 31,30,266/- as service tax, education cess, and penalties under Sections 76 and 77 of the Finance Act, 1994 to maintain the appeal as per Section 35F of the Central Excise Act.2. The appellant had entered into an agreement with a Chinese company for the transfer of technology involving designs & drawings, training, and technical assistance. The dispute primarily revolved around the tax liability concerning the designs & drawings and training components of the agreement.3. The appellant argued that the technology transferred was intellectual property owned by them and was not liable for service tax as per the relevant period (April 2004 - March 2006). They contended that the transfer did not fall under 'consulting engineer service' and the service tax rules did not apply. Additionally, they claimed the demand was time-barred and the proceeding was revenue neutral due to Cenvat credit.4. On the other hand, the Revenue argued that the designs & drawings were specific to the appellant's requirements and not merely a purchase of technology. They asserted that the recipient of services from outside India was liable for service tax as per the relevant rules. The Revenue also contested the appellant's claims regarding limitation and revenue neutrality.5. After considering the arguments and case laws presented by both sides, the Tribunal found a prima facie case in favor of the appellant for a full waiver of the pre-deposit requirement. Consequently, the Tribunal waived the pre-deposit of service tax and penalties, staying the recovery until the appeal's disposal.This comprehensive analysis of the judgment highlights the key issues, arguments, and the Tribunal's decision regarding the waiver of pre-deposit and tax liability on the transfer of technology agreement, providing a detailed overview of the legal proceedings and outcomes.