2018 (4) TMI 1387

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....to 30.09.2007. Learned Commissioner after due process of adjudication, dropped the demand proposed in the show-cause notice dated 29.08.2008 for the period 01.04.2003 to 18.04.2006 of Rs. 1,71,28,527/-, on the ground that demands were for agreements prior to insertion of Section 66A of the Finance Act, 1994 and partly confirmed demand for the period 19.04.2006 to 31.03.2007 for an amount of Rs. 1,10,92,372/- and Rs. 1,01,00,329/-. Being aggrieved by the said adjudication order the appellant filed the present appeal. 2. Shri M.H. Patil, learned Counsel appearing on behalf of the appellant made the following submissions:- 2.1 Agreement dated February 2001 is between appellant and Haldore Topose, the said agreement is towards supply of Know-how and process package for Hydrogen plant. Under the said agreement payment is made towards license fees, BDEP fees and other mandatory services such as test run, HAZOP study, training and manual. 2.2 Agreement dated 15.01.2001, is between appellant and Chevron Lummus Global LLC, for purchase of technology relating to Chevron ISOCRACKING process for Hydrocracker unit. The agreement includes payment towards licence fees, Basic Designs, training ....

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....Engineer Services', based on following judgments: (i) Bharat Oman Refineries Ltd. - 2017 (4) GSTL 221 (T) (ii) Leibert Corporation - 2014 (33) STR 161 (T) (iii) Kinetic Engineering - 2012 (25) STR 26 (T) (iv) Upheld by Bombay High Court - 2013 (30) STR J-18 (Bom) (v) Yamaha Motors (I) Ltd. - 2006 (3) STR 665 (T) (vi) Larsen & Toubro - 2015 (37) STR 156 (T) (vii) Suzuki Motor - 2012 (25) STR 266 (T) 2.7 The appellant submit that the demand in dispute, for the period 19.04.2006 to 31.03.2007, raised vide Notice to Show Cause dated 29.08.2008, is barred by limitation for the following reasons: (i) For the earlier period for agreement with Chevron, Notice to Show Cause dated 22.04.2004 was issued, hence dept. was aware of the agreements entered; (ii) Notice to Show Cause dated 26.09.2008 for the period 01.04.2007 to 30.09.2007 for Rs. 1,01,00,329/-, has been dropped on similar grounds/agreements, hence extended period as well as penal provisions are not invocable, (iii) Without prejudice to, initially the Appellants were of the view that since, the provider of service is also situated outside India and hence, the same would not be taxable in India, the ser....

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.... (c) Hindustan Petroleum Corporation - 2017-TIOL-1304- CESTAT-MUM (ii) Infact. Hon'ble Tribunal in the case of Jet Airways - 2016- TIOL-2072-CESTAT-MUM, has held that revenue neutrality is good ground, more so when the tax liability is discharged under Reverse Charge Mechanism. 2.9 Without prejudice to the contention that penalties under sections 77 & 78 are not imposable, penalties under 78 (penalty imposable for non-payment of service tax due to extraneous stipulated factors like fraud, collusion etc with intent to evade tax - mensrea existing) simultaneously are not imposable based on the following: a) Pannu Property - 2011 (24) STR 173 (P&H) b) Motor World - 2012 (27) STR 225 (Kar) 2.10 In any case issue relates to interpretation of law, hence extended period as well as penal provisions are not invocable. 3. Shri M.P. Damle, learned Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submissions made by both sides and perused the records. we find that the Revenue sought to classify the service under the category of "Consulting Engineering Service", however the service ....

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.... etc. The licensor provides technical information in terms of the said agreement. The said 5 ST/58303 of 2013 agreement also mentions about separate engineering agreement for providing engineering designs specifications for the appellant. Payment is as royalties. The royalty payments is as per the schedule agreed upon. 6. Agreement dated 31/03/1997 is between appellant and Chevron Research and Technology Company, U.S.A. The said agreement states that Chevron (licensor) has developed technology for production of lube oil base stocks under the name, Chevron Isodewaxing process and Chevron Lube Hydrofinishing Process. The appellant (licensor) wishes to install and operate units in the refinery located in India to undertake the said licensed process. The licensor granted license on such processes, a nonexclusive, non-transferable patent rights. The U.S. company will also make available technical information for use in the operations of the licensed units. It also talks about use of proprietary information by the appellant. The payment is in the form of royalty. The terms of payments are stipulated in the agreement itself. 7. Agreement dated 31/07/2006 is between the appellant and....