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TMI Blog2013 (2) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... Ceramic Fibre Bulk, Ceramic Fibre Products. On scrutiny, it was noticed that the appellant had entered into know-how agreement dated 1-2-1995 with M/s. The Morgan Crucible Co. Plc, United Kingdom and pays royalty at 1.3% of the sales of the Ceramic Refractory Fibre manufactured using the Spun Fibre process for which the know-how was imported from the said foreign company. These charges paid by the appellant attracts Service tax under the category "Intellectual Property Right" service. The appellant had neither registered with the Department nor paid the Service tax on the royalty under "Intellectual Property Service". As the appellant had not paid service tax on these charges paid to their foreign collaborator and had not registered themse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate that the impugned agreement is dated 1-2-1995. The transfers as per the said agreement have been completed immediately thereafter; (iii) that the Lower Adjudicating Authority ought to have noted that the date of receiving service is the relevant date for the purpose of levy of Service tax. This has been settled by number of decisions; (iv) That the Lower Adjudicating Authority ought to have further appreciated that the date on which payment has been made for any service rendered is relevant only for the purpose of payment of Service tax by the Service Provider; (v) That the Lower Adjudicating Authority ought to have further noted that in any view it is by now well settled that pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges paid by them to their foreign collaborator during the disputed period under the category "Intellectual Property Rights". 5.1 I find from the records that the appellant's main contention is that the transfer of technical know-how is on a permanent basis in the instant case and it had taken place during the period when the Service was not taxable; that it should be treated as sale and not as service to levy Service tax. From the records I find that the appellant had been paying royalty right from 1-2-1995. The Intellectual Property Right Service was brought into the tax net w.e.f. 10-9-2004. If it is a one time affair as contended by the appellant then why they are paying royalty every year? The continuous payment of royalty by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay High Court in the case of M/s. Indian National Shipowner's Association v. UOI - 2009 (13) S.T.R. 235 has held as follows : "20... ... ... ... ... ... ... ... ... It appears that it is the first time when the Act was amended and Section 66A was inserted by Finance Act, 2006 i.e. 18-4-2006, the Respondents got legal authority to levy service tux on the recipient of the taxable service. Now, because of the enactment of Section 66A, a person who is resident in India or business in India becomes liable to be levied service tax when he receives services outside India from a person who is non-resident or is from outside India. Before enactment of Section 66A it is apparent that there was no authority vested by law in the Respondents to levy se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with interest on the Royalty Charges paid to the foreign company as service receiver w.e.f. 18-4-2006 under "Intellectual Property Service". 6.1 As regards imposition of penalty under Sections 76, and 78 no discussions were available with regard to intention to evade payment of duty and hence penalty is not imposable under Section 78. Further, it is not the case of the Department that the appellant collected or paid Service tax to the provider and hence no penalty is imposable under Section 76 also. However penalty imposed under Section 77 is sustainable. 7. In view of the above discussions and findings, I hold that the appellant is liable to pay Service tax along with interest on Royalty payments w.e.f. 18-4-2006. 8. Lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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