1. This application is filed by the applicant for waiver of pre-deposit of amount of Service Tax of Rs. 4,39,620/- and equivalent amount of penalty.
2. Considered the submissions made by both sides and perused the records.
3. The issue involved in this case is regarding the liability to pay Service Tax in respect of amount paid by them to foreign company from whom they received technical know-how for the purpose of manufacturing and marketing of "Acetylene Carbon Black". It is the contention of the Revenue that the applicant is liable to pay Service Tax as they have received the services of Consulting Engineer. On the other hand, the applicant submits that the issue is prior to 16.2.2002 and series of judgments including the decisions of the Tribunal in the cases of Bajaj Auto Ltd. v. CCE, AurangabadB Footwear (P) Ltd. v. CCE, Noida 2006 (2) STR 46 (Tri-Del) and Essel Propack Ltd. v. CST, Mumbai 2006 (1) STR 150 (Tri-Mum) will cover this case, in their favour.
4. On perusal of the record, we find that the agreement between M/s Karbo Chem and applicant indicates that first party will provide technical know-how for the purpose of manufacturing and marketing of "Acetylene Carbon Black" for which the applicant is required to pay them a consideration, for the basic engineering package a sum of Rs. US$115,000/-. We find that the issue involved in this case covered by the series of decisions of the Tribunal. The reliance is placed by the JDR on the decision Eicher Motors Ltd. v. CCE, Indore 2008 (10) STR 65 (Tri-Del) and of Hon'ble Kerala High Court in the case of CCE, Thiruvananthapuram v. Kerala State Electricity Board 2006 (3) STR 625 (Ker) as upheld by the Hon'ble Supreme Court as reported in 2008 (9) STR 3 (SC) seems to be mis-placed and facts of this case are totally different than as it was in the case of Kerala State Electricity Board (supra).
5. In view of the foregoing, we find that the applicant has made out a strong prima facie case for waiver of pre-deposit of duty and penalty.
As such, the application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of the appeal.