Gujarat High Court Case Information System
Print
TAXAP/1262/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1262 of 2008
=========================================
THE
COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS VADODARA-II - Appellant(s)
Versus
SCHOTT
GLASS INDIA PVT LTD - Opponent(s)
=========================================
Appearance
:
MR RJ OZA
for Appellant(s) : 1,
None
for Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 17/02/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
Commissioner of Central Excise & Customs, Vadodara-II has filed
this Tax Appeal under sec. 35-G of the Central Excise Act, 194
proposing to formulate the following substantial questions of law for
determination and consideration of this court :
1. Whether,
in the facts and circumstances of the case, the Tribunal is justified
and has committed substantial error of law in placing reliance upon
the judgment in the case of CCE, Calicut/Cochin vs. Rubco Sales
International P. Ltd., reported in 2006 [1] STR 291 [Tri. Bang]?
2. Whether,
in the facts and circumstances of the case, the Tribunal is justified
and has committed substantial error of law in holding that the
service rendered for the purpose of repair and maintenance would not
fall within the ambit of consulting engineering services as defined
under Section 65 of the Finance Act, 1994?
3. Whether,
in the facts and circumstances of the case, the Tribunal is justified
and has committed substantial error of law in construing the
provisions of Rule 2[d][iv] of the Service Tax Rules, 1994
(introduced vide Notification No. 12/02-St dated 1.8.2002 with effect
from 16.8.2002 rendering the person receiving taxable service in
India liable to levy and payment of service tax when taxable service
is provided by Non-Resident and/or is from outside India and does not
have any office in India?
Heard
Mr. R.J. Oza, the learned Sr. Standing Counsel appearing for the
Revenue and perused the orders passed by the authorities below.
The
Tribunal, while disposing of the appeal, has observed that services
received by the appellant is for the purpose of repair and
maintenance and the same cannot be considered as that of consulting
engineering services. The transfer of technical know-how also would
not come within the ambit of consulting engineering services as held
by the Tribunal in the case of CCE, Calicut/Cochin vs. Rubco Sales
International P. Ltd., 2006(1) STR 291 (Tri. Bang.).
After
the aforesaid decision, the larger Bench of the Tribunal in the case
of Hindustan Zinc Ltd. v. Commissioner of Central Excise, Jaipur,
2008(11) STR 338 (Tri. – LB) has endorsed the view taken by the
Tribunal. Even recently, the Ahmedabad Tribunal has also taken the
same view in the case of Commissioner of Service Tax, Ahmedabad v.
Ashima Ltd., 2010(1& STR 257 (Tri. Ahmd.). Since the matter
is now concluded, we do not see any justification to formulate the
above questions as substantial questions of law.
This
Tax Appeal is accordingly dismissed.
(K.A.
Puj, J.)
(Rajesh
H. Shukla, J.)
(hn)
Top