Judgment:
1. The appellant has prayed for condonation of delay of 22 days in filing the appeal. The reason given is that the person concerned, after receiving the order, could not hand over the same to the General Manager as he was directed to go on tour to various places in the country for carrying out the implementation of SAP application in all the locations across the country. There was pressure of work and papers got mis-placed. Immediately on his return from the tour, he discovered the papers and handed over the same to the Counsel to file the application. The affidavit of Sri S. Srinath, General Manager is filed.
2. The learned JDR submits that the reason of misplacement of papers is not sufficient for condoning the delay as held by the Larger Bench in Kanoria Wisconsin Centrifugal Ltd. v. CCE . The learned Counsel distinguishes this judgment as there was enormous delay in the said case. He relies on the apex court judgment rendered in the case of Collector, Land Acquisition, Anantnag and Anr. v. MST Kattji and Ors. wherein it has been held that a pedantic view cannot be taken while considering the application for condonation of delay. The learned JDR relies on the judgment of Tripoot India (P) Ltd. v. CC wherein also the delay of 99 days was not condoned on the same reasons of mis-placement of papers. The learned Counsel submits that the issue is covered by large number of judgments.
It is further submitted that when they have a very strong case on merits, marginal delay could be condoned based on the reasons furnished in each individual case.
3. We have carefully considered the submissions and find that the Genera! Manager of the Company has filed affidavit giving the reasons for delay. The delay is marginal and not huge as in the citations referred to by the learned JDR. Therefore, the delay is condoned.
4. The stay application seeks waiver of pre-deposit of Rs. 67,455/-.
The issue pertains to levy of Service Tax on the transfer of technology in the country under the category of Consulting Engineer. The learned Counsel relies on the Final Order No. 223/2007 dated 13.02.2007 in the case of Volvo India Ltd. v. The Commissioner of Service Tax, Bangalore, which has followed a large number of judgments noted therein and the appeal had been allowed at the time of hearing of the stay application.
6. We have carefully considered the submissions and find that the issue is covered by the judgment cited by the learned Counsel rendered in the case of Volvo India Ltd. The said judgment refers to 9 other citations of various Benches which are as follows:Rubco Huat Woods P. Ltd. v. CCE, Calicut 2006 (4) STR 603(Tri.-Bang.) (iv) CCE, Madurai v. Reichie De Massari Ag Switzerland 2006 (3) STR 590 (Tri.-Chennai)Yamaha Motors (I) Pvt. Ltd. v. CCE, Delhi-IV (Faridabad) 2006 (3) STR 665(Tri.-Del.)Colgate Palmolive Company v. CCE The Transfer of technical know-how/transfer of technology for setting up of a Plant does not come within the ambit of Consulting Engineer during the relevant period as held by the 10 citations referred to by the Counsel. As the issue is covered by the noted judgments, the stay application and appeal are allowed. In terms of those judgments, the COD, stay application and appeal are allowed.