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2012 (4) TMI 104 - AT - Service TaxDemand - Claim for exemption under Notification 12/2003-ST which was not claimed in adjudication proceedings - Revenue was of the view that the permission granted as per the agreement to TAFE to use the Trade Mark for tractors is Intellectual Property Right Services as defined in section 66(55a) and 66(55b) of Finance Act ,1994 and hence the appellants should have paid service tax on the consideration receive - The Counsel submits that as per this definition in the Constitution transfer of right to use, whether or not for a specified period, constitutes sale. In their case the transfer is in perpetuity and there cannot be a doubt that it constituted sale - The appellants continues to be owner of the trademark "EICHER" and they have only permitted TMTL to use the Trademark in relation to tractors and is squarely covered by the definition of "intellectual property service" - When the contract is read as a whole it is indeed a contract for transfer of the right to use the Trademark for limited purposes but on a permanent basis - the impugned contract, in its pith and substance is not a "transfer of right to use" and is more in the nature of permission to use the trademark which continues to be the property of the licensor - The Appeal is thus allowed partially by setting aside the penalty imposed. However the demand for tax and interest are confirmed.
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