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2018 (2) TMI 236 - CESTAT MUMBAIIntellectual Property Service - transactions of transfer of right to use trade mark or brand name - liability of VAT or service tax? Held that: - there are no universal tests for testing of levy of Sales Tax or Service Tax and each contract is to be examined with respect to its own terms. It is apparent from the agreement that, (i) No exclusive right to use the trade mark Swastik has been given to M/s New Sahyadri Industries Ltd. The appellants are free to give this trade mark to other even in the same territory. (ii) M/s New Sahyadri Industries Ltd. are not free to permit use of the trade mark to anybody else i.e. they cannot sub-license. If M/s New Sahyadri Industries Ltd. wish to permit to any other support for use then they have to seek permission of the appellant. The trade mark cannot be assigned to anybody by M/s New Sahyadri Industries Ltd. While the agreement is for a period of 10 years, both parties have option to terminate the agreement by giving the notice of three months - The agreement in the instant case is an agreement of permissive use of the trade mark Swastik and no transfer of right to use of the said trade mark - the said transaction is liable to Service Tax under Finance Act, 1994. Extended period of limitation - Held that: - It is a fact that in their Service Tax-3 returns for the relevant period, the Appellant had willfully mis-stated that they have received zero amount towards provision of this service - willful mis-statement on the part of the appellant stands established and thus extended period has been correctly invoked. Penalty - Held that: - the elements for imposing the penalty are identical to those necessary to invoke the extended period of limitation. In these circumstances, no separate specific findings are needed for imposition of penalty under Section 78 of the Finance Act, 1994 - penalty upheld. Appeal dismissed - decided against appellant.
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