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2015 (9) TMI 989 - CESTAT NEW DELHIBusiness auxiliary service - management, maintenance or repair service - Penalty u/s 76, 77 & 78 - Held that:- Merely because somebody evaded sales-tax, it would not mean that the transaction would not be a sale, even if, it satisfied the definition of sale. We find from the adjudication order that even in respect of the 5 contracts, which have been specifically mentioned therein the adjudicating authority has prima facie not adverted to and dealt with the contentions of the appellants that they did not constitute ECIS as is evident, for example from para 88 of the impugned order. It is seen that the benefit of Notification No. 12/2003-S.T. has also not been extended and prima facie the reasons, therefor, have also not been clearly brought out. - As regards the demand under Intellectual Property Rights Services, it is seen that the right to fabricate products was transferred on November 1, 2002 when the said service was not liable to tax. Merely because the payment for that transfer continued even during the period when that services became liable to tax does not negate the fact that the taxable event was the transfer of rights which took place during the time when the service was non-taxable. Regarding the impugned demand relating to management, maintenance or repair service the appellants have prima facie made out a good case that as the management, maintenance or repair was performed outside India by the persons also located outside India and on the goods located outside India, prima facie, there is no import of service. - appellants have made out a good case for waiver of pre-deposit and so waive the requirement of pre-deposit and stay recovery of the adjudicated liabilities during pendency of the appeal - Stay granted.
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