TaxTMI 
TaxTMI 
2018 (4) TMI 669
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....ort, Russia 2. None appeared on behalf of the appellant. 3. Shri M.P. Damle, learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by learned AR and perused the records. We find that in the appellant's own case in an identical issue reported as Commissioner of Central Excise, Nashik Vs. Hindustan Aeronautics Ltd. - 2015 (40) STR 289 (Tri.-Mum), this Tribunal has decided the matter in favour of the assessee. The order of the Tribunal is reproduced below: - "6. We have considered the submissions made at length by both sides and perused the records. 7.1 We find that the issue involved is regarding ....
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....r the definition of scientific and technical consultancy services. 7.3 We reproduce the definition of the "scientific and technical consultancy service." Under Section 65 of the Finance Act, 1994 "Scientific or technical consultancy' means any advice, consultancy or scientific or technical assistance rendered in any manner, either directly or indirectly, by a scientist or a technocrat or any science or technology institution or organization, [to any person], in one or more disciplines of science or technology;" It can be seen from the above reproduced definition, in order to tax the services, it has to be any advice, consultancy or scientific or technical assistance, to be rendered by the scientist or....
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....the submissions of the appellant assessee. In the absence of any contrary evidence we have to hold that "Rosobornexport" is not a science or technology institution or organisation which gives any advice, consultancy or technical assistance in one or more discipline of science or technology. Our view is fortified by the judgment and order of the Tribunal in the case of Kopran Limited (supra). The relevant paragraphs are reproduced. 5. After giving careful consideration to the submissions, we have found valid points in the submissions of the counsel. The issue debated before us revolves around the definition of "scientific or technical consultancy" under Section 65 of the Finance Act, 1994. This definition reads thus: - "....
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....he following transactions, viz., transfer of brand names/trademarks to Cadila against payment of Rs. 70 crores, transfer of know-how for manufacture of bulk drug against payment of Rs. 20 crores and transfer of technical know-how to make tablets (formulations) against payment of Rs. 5 crores. None of these transactions can be conceptually reduced to mere advice, consultancy or scientific/technical assistance. On the other hand, they involve permanent transfer of intellectual property in one form or another and are presently covered by "intellectual property service". The Id. JCDRs "essential character test" is not applicable as the service is classifiable only under one sub-clause of clause (105) of Section 65 of the Act, which is sub-claus....
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.... counsel, the Revenue has not alleged and established that the appellant-company provided advice, consultancy or scientific or technical assistance to Cadila in any specific discipline of science or technology. In the result, the argument of the counsel that the service rendered by the appellant-company to Cadila under the relevant agreements cannot constitute "scientific or technical consultancy" as defined under Section 65 of the Finance Act, 1994 merits acceptance. This argument also stands fortified by the view taken in Matrix Laboratories case wherein it was held that "scientific or technical consultancy" was not involved in sale of entire technology for a consideration." 7.5 This above of tribunal was followed by this Bench i....
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.... that the appellant was manufacturing and selling products in the brand names, Pyricontin, Diacontin, Fecontin, Metocontin, Morcontin, Nitrocontin, and Unicontin which are claimed to be registered brand names of the appellant company. In other words, they are not using the brand name of Mundipharma A.G. Switzerland. Receipt of know-how appears to be a one time affair. There is no evidence, that their know-how is supplemented by Mundipharma A.G. Switzerland. Therefore, we are in agreement with the submissions on behalf of the appellant that royalty payment in the form of deferred payment for know-how received in 1990. Whether payment for such services rendered is made in one lump-sum or made in installments or based on quantum of sales by th....