TMI Blog2014 (8) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards the abatement for R & D. Cess paid for correct computation of the liability, we find that the applicant has not been able to substantiate their claim of incorrect computation of liability. Further, the aspect of limitation of time is a mixed question of fact and law, which will be considered at the time of regular hearing. However, prima facie, we agree with the learned Advocate for the applicant that prior to insertion of Section 66A of the Finance Act, 1994 i.e., with effect from 18-4-2006, Service Tax for the amount of ₹ 31.65 lakh (approx.) is not payable - applicant directed to make a pre-deposit of 25% of the Service Tax amount - stay granted partly. - ST/224/2010 - Stay Order No. S-1557/KOL/2012 - Dated:- 29-11-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity of the applicant is falling under IPR service, as defined under Section 65(55b), being a taxable service under sub-section (105)(zzr) of the Finance Act, 1994. The applicant neither took registration nor paid Service Tax on the said service received for the period from May, 2005 to March, 2009. Accordingly, the Department issued a show-cause notice on 10-8-2009 against the applicant for demand of Service Tax of ₹ 1,94,44,470.00 and proposal for penalty under various provisions of Finance Act, 1994. The learned Commissioner confirmed the demand in the show-cause notice and imposed penalties under various provisions of Finance Act, 1994. 3.1 The contention of the applicant is that in the instant case, the applicant had ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant is that the definition of taxable service includes only such Intellectual Property Rights that are prescribed under the Indian law for the time being in force. 3.5 The contention is that the transfer of know-how is a transaction in property and not a transaction in service. The contention is that know-how is not an Intellectual Property Right as per Section 65(55a) and hence, the transfer of the same will not fall under the category, of Intellectual Property Service in terms of Section 65(55b) of the Finance Act, 1994. 3.6 The contention is that the transaction involving transfer of know-how or technology is a transaction in property and not a service transaction. In the present case, SICPA Holding Switzerland had transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable event. The taxable event occurs when the JPR/know-how is transferred. The applicant further relied on the following judgments in support of the said contention : (i) 20th Century Finance Corpn. Ltd. Anr. v. State of Maharashtra - 2000 (119) STC 182 (SC); (ii) Bajaj Allianz General Insurance Co. Ltd. v. CCE, Pune - 2009 (13) S.T.R. 259 (Tri.-Bom.). 3.10 The applicant also placed reliance on the Trade Notice issued by the Commissioner of Central Excise, Madurai vide Circular No. 43/2008, dated 11-9-2008, submitting that the entire exercise is revenue neutral. 3.11 The contention of the applicant is that the service provider is situated outside India and they did not have any office in India. Hence, in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the learned AR that the transfer of know-how as per the Technical Agreement was not on one time basis but was on continual basis, and was to be transmitted to enable the applicant to manufacture the products on continual basis. In so far as the contention of the applicant that they are entitled to abatement for the R D. Cess paid for correct computation of the liability, the learned AR submitted that the learned Adjudicating Authority has clearly observed that in the absence of disclosure of the total amount of the royalty paid to the applicant, vide letter dated 5-6-2008 issued by the jurisdictional Range Officer, the applicant had not been able to substantiate their claim of incorrect computation of liability. As regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enable the applicant to manufacture the products on continual basis. In such circumstances, we find that the principle of law laid down by this Tribunal in the case of Modi-Mundipharma Pvt. Ltd. (cited supra), is not applicable to the facts and circumstances of the present case. As regards the abatement for R D. Cess paid for correct computation of the liability, we find that the applicant has not been able to substantiate their claim of incorrect computation of liability. Further, the aspect of limitation of time is a mixed question of fact and law, which will be considered at the time of regular hearing. However, prima facie, we agree with the learned Advocate for the applicant that prior to insertion of Section 66A of the Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
