ORDER
Jyoti Balasundaram, Vice-President
1. The application for waiver of pre-deposit of service tax of Rs. 69,70,343/- and penalty of equal amount under Section 78 of the Finance Act, 1994 and penalty of Rs. 1,000/- under Section 77 of the Finance Act, 1994 and penally of Rs. 100/- per day under Section 76 of the Finance Act, 1994 arises out of the order of the Commissioner of Central Excise & Customs, Vadodara. The demand has been confirmed on the ground that the applicants herein were rendering “consulting engineer’s services” to IOCL, Gujarat.
2. We have heard both sides and perused the records. Perusing the agreement between the applicant and IOCL, we find that a strong prima facie case for waiver has been made out in the light of the precedent decision of the Tribunal in the case of Commissioner of Central Excise, Madurai v. Reichie De Massari AG Switzerland 2006 (3) S.T.R. 590 (Tribunal) : and Bajaj Auto Ltd. v. Commissioner of Central Excise & Customs, Aurangabad , which have held that royalty payments for transfer of technology are not leviable to service tax as the transfer of technology is not a taxable service. In the present case, the adjudicating authority has distinguished some of the decisions cited before him on the ground that what was paid was not royalty, but a fee. However, since prima facie the payment of 10% licence fee for agreements and the remaining for PDBEP fee is for transfer of technology as seen from the agreement in question, once it is a payment, whether of royalty or a fee for transfer of technology, the decisions of Tribunal relied upon the applicants cited before the adjudicating authority will prima facie apply and following the ratio thereof, we hold that the service tax demand and penalty are prima facie not sustainable and therefore, waive the pre-deposit of tax and penalty and stay recovery thereof pending the appeal.
(Dictated in Court)