ORDER
S.L. Peeran, Member (J)
1. This appeal arises from OIA No 22/05 dated 31-1-05. The issue that is required to be considered in this appeal is as to whether the royalty charges collected by the appellants would come within the category of consulting engineer and subject to levy of service tax. Learned Counsel submits that the issue is no longer res integra and relies on this Tribunal ruling rendered in the following cases :
1. Navinon Ltd.v.CCE
2. Bajaj Auto Ltd. v. CCE
3. CCE v. Reichie De Massari AG
4. CCE v. Veleo Friction Material
5. CCE v. Samsung Electronics Co. Ltd. [2006 (1) S.T.R. 217 (Tri.) = 2005 (125) ECR 166 (Tri.)]
6. Yamaha Motors (India) Pvt Ltd. v. CCE
2. Learned SDR submits that the judgments are distinguishable in as much as that the Notification No 18/02 ST dated 16-12-02 brings within it’s ambit transfer of technology for levy of Service tax. Therefore when royalty is collected for transfer of technology, the same is required to be brought, within the net of service tax.
3. Learned Counsel contests this submission. He submits that royalty is different from transfer of technology and the service tax cannot be collected on it. The notification refers to an amount paid equivalent to the amount of the cess paid on the said transfer of technology under the provisions of Section 3 of the Research and Development Cess Act 1986. The same is not the position in this case as no cess has been paid. Therefore, the above rulings cannot be distinguished and this bench is bound to follow the same in terms of judicial discipline.
4. On a careful consideration, I notice that this bench is bound by the ratio of the above noted judgments. A different view cannot be taken as it would amount to judicial indiscipline. In all the above noted judgments, a categorical and clear finding has been given that, payment of know-how and royalty is not consultancy and so also right to use trade mark is a transaction of property and no consultancy or advice is involved arid hence it has been held that the same is not liable to Service Tax under consulting engineer. In view of the above noted judgments, the levy of service tax on the amount of royalty paid by the assessee is not recoverable. The impugned order is unsustainable and the same is set aside by allowing the appeal.
(Pronounced and dictated in open Court)