2012 (10) TMI 321

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....n the order, which require rectification. The application was argued by the Ld. Counsel for the assessee and the Ld. Sr. DR on 13.7.2012. Various issues raised in the course of the discussion are discussed hereunder. 2. The first mistake is stated to be in paragraph 7.7 on page Nos. 50 & 51, the relevant portion of which reads as under :- "However, it also emerges clearly that after clearance of goods in India, the possession was handed over to the assessee and it became responsible for any damage to the goods. In other words, the equipment and the software embedded therein were handled by the assessee once these were cleared in India. Obviously storage would require space and also overall supervision of the equipment to ensure that n....

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....s made before us. The Tribunal had given a clear finding that the equipment was handed over to the assessee once it was cleared by the AAI on payment of customs duty. The assessee was responsible for insuring the equipment and also for supervision thereof so as to avoid damage to it by negligence or otherwise. Obviously, place will be required to keep the equipment. Since supervision etc. was the responsibility of the assessee, it is also clear that the assessee had excess to the place where the equipment was kept. It has also been held that such activity was not preliminary or auxiliary in nature and, therefore, PE came into existence at the moment when goods were handed over to the assessee by the AAI. This is the essence of the decisi....

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....gainst this, two separate orders were produced in the case of Motorola Inc. In this part of the order, the Tribunal has sought to distinguish between the facts of the two cases as above. Necessary consequence of failure to produce orders from the customs authorities would be that the argument that consideration for equipment and software cannot be segregated is not accepted. Thus, we do not find any error in this part of the order also. 4. The third mistake was stated to be in paragraph No. 14.1 on page nos. 82 & 83 of the order. In this paragraph, it was held that ATS in Delhi was handed over to the AAI in March, 1998, after conducting site acceptance test. This is prior to the relevant previous year. Therefore, no income accrues to the....