Case Law Details

Case Name : Nyco S. A. Vs CST (CESTAT Delhi)
Appeal Number : STA No. 19 & 27 of 2007 –Cus.
Date of Judgement/Order : 23/02/2009
Related Assessment Year :
Courts : All CESTAT (604) CESTAT Delhi (193)

RELEVANT PARAGRAPH 

6. We have thoroughly gone through the averments of both the sides. To appreciate the case of the Revenue, Revenue should have brought to record that Nyco is a consulting engineering firm providing engineering service commercially having been manned by professional qualified engineers. But primary object appears to be sharing of know how to participate in a joint venture to enjoy fruit thereof by each other. Nothing is shown by Revenue to establish that Nyco shall leave India after rendering consulting engineering service without participation in joint venture. We find from the averments of the Id. Counsel for appellants that the very incorporation of a joint venture company in India is to share the fruits of joint venture by both the parties manufacturing described goods. No doubt engineering aspect may be involved while rendering the expertise but to bring any concern to the fold of law, Revenue has to strictly discharge its burden of proof, proving that the concern is already engaged as a consulting engineering service having competent and qualified engineers within its command to provide consulting engineering service. Therefore, providing of service of engineering is totally ruled out with the assistance of statutory definition.

7. We have also examined various aspects of the agreement relied upon by both the sides. We are unable to find any where whether Nyco is a consulting Engineering firm providing such a service other than entering into joint venture in India. We hold sharing of knowledge shall not be called as consulting engineering service when expertise acquired by a concern is also used for its own benefit along with others. Therefore we ruled out the charges made against both the appellants and hold that the show cause notice has been misconceived and the adjudication flowing from the show cause notice has no legs to stand and allow both the appeals annulling the demands raised by order of adjudication.

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Category : Income Tax (24916)
Type : Judiciary (9828)
Tags : Cestat judgments (794) incorporation (19) india (98)

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