2008 (4) TMI 301 - AT - Service Tax

CESTAT Ahmedabad: Waiver of Pre-deposit Requirement & Stay of Duty Recovery

FAG BEARING LTD. Versus COMMISSIONER OF C. EX. & CUS., VADODARA-II

The Appellate Tribunal CESTAT Ahmedabad ruled in favor of the appellant, waiving the pre-deposit requirement and staying the recovery of duty and penalty. ... Franchise services - payment of royalty for transfer of technical know-how by foreign collaborator - appellant claimed that the correct classification for transfer of know-how is under IPR service and not franchise service. They also state that they have paid royalty for technical know-how and royalty is not a consideration towards service but sharing of profit and technical know-how provided from outside could not be charged to service tax prior to the introduction of Section 66A on 18-4-06 – prima facie case in assessee’s favour – stay granted Issues:1. Imposition of service tax, penalty, and royalties under the Finance Act, 1994 for transfer of technical know-how.2. Applicability of service tax under franchise services.3. Classification of transfer of know-how under IPR service.4. Pre-deposit waiver and stay on recovery of duty and penalty.Analysis:The judgment by the Appellate Tribunal CESTAT Ahmedabad involved the imposition of service tax, penalty, and royalties under the Finance Act, 1994 for the transfer of technical know-how. The appellant sought a waiver of pre-deposit and stay on the recovery of duty and penalty. The Tribunal considered the arguments presented by both sides, where the appellant contended that they lacked representational rights of the collaborator, which is essential for levying service tax under franchise services. The appellant and their foreign collaborator being subsidiaries of the same parent company raised issues regarding the commonality in their names. The appellant also argued that prior to the introduction of Section 66A, service tax could not have been collected for services rendered by a foreign service provider to a recipient in India. They claimed that the transfer of know-how should be classified under IPR service rather than franchise service, asserting that royalty paid for technical know-how is not a consideration towards service but a sharing of profit. The Tribunal acknowledged the appellant's prima facie case in their favor, leading to the waiver of the pre-deposit requirement and the stay on the recovery of duty and penalty.The Tribunal's decision highlighted the importance of the appellant's arguments regarding the classification of the transfer of know-how and the applicability of service tax under franchise services. The Tribunal considered the historical context before the introduction of Section 66A and the nature of royalty payments for technical know-how. It noted the reliance on a previous judgment to support the imposition of service tax on technical know-how. Ultimately, the Tribunal found merit in the appellant's contentions, leading to the decision to waive the pre-deposit requirement and stay the recovery of duty and penalty.In conclusion, the judgment by the Appellate Tribunal CESTAT Ahmedabad provided a detailed analysis of the issues surrounding the imposition of service tax, penalty, and royalties for the transfer of technical know-how under the Finance Act, 1994. The decision to waive the pre-deposit and stay the recovery of duty and penalty was based on the appellant's arguments regarding the classification of the transfer of know-how, the applicability of service tax under franchise services, and the nature of royalty payments for technical know-how. The Tribunal's assessment of the prima facie case in favor of the appellant reflected a thorough consideration of the legal and factual aspects presented during the proceedings.