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M/s. Munjal Showa Limited Versus Commissioner of Central Excise & ST, Delhi (Gurgaon) And (Vice-Versa)

2017 (6) TMI 819 - CESTAT CHANDIGARH

Valuation - royalty - includibility - Revenue is of the view that the said transfer of technical know-how is covered under Intellectual Property Right services - reverse charge mechanism - whether the royalty paid by the appellant-assessee under Industrial Property Right agreement is liable to service tax under Intellectual Property Rights service or not? - Held that: - to tax under service tax, under Intellectual Property Rights, such rights should be registered with Trademark/ Patent authoriti .....

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uction of IPR Service, the demand of service tax is not sustainable. - Appeal allowed - decided in favor of assessee. - ST/610-613/2012-DB, ST/743/2012-DB - A/61077-61081/2017-CU[DB] - Dated:- 15-6-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri A. Hidayatullah, Senior Advocate and Shri P.K. Ram, Advocate for the Appellant Vice-Versa Shri Atul Handa, A.R. for the Respondent Vice-Versa ORDER Per: Ashok Jindal Both sides are in appeal against the impu .....

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Brand Service, Design, Trademark, Symbol were transferred to the assessee-appellant and percentage of the amount of sale was to be paid as royalty. The Revenue is of the view that the said transfer of technical know-how is covered under Intellectual Property Right services. Therefore, the appellant assessee is liable to pay service tax under reverse charge mechanism with effect from 10.09.2004 when the said services came into the service tax net. In these set of facts, various show cause notice .....

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e ground that extended period of limitation is invokable and appellant-assessee is in appeal on the ground that demand is not sustainable. 3. The ld. Advocate for the appellant-assessee appeared and submits that the demand is sought to confirm against Intellectual Property Right service for royalty payments made by them to M/s. Showa Corporation, Japan. It is the contention of the ld. Counsel that the payment made towards royalty is not under Intellectual Property Rights service under Section 65 .....

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to Showa Corporation Japan in India. Therefore, it is not Intellectual Property Rights hence, no levy of service tax can be confirmed against them. 4. On the other hand, ld. AR opposed the contention of the ld. Counsel and draws our attention to the CBEC Circular No.80/10/2004-ST dated 17.09.2004 to say that Design, Trademark, Brand Service, Symbols etc. have been recognised by the Government of India, therefore, they are liable to pay service tax thereon. 5. Heard the parties and considered the .....

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context, otherwise requires, - (55) (a) "intellectual property right" means any right to tangible property, namely, trademarks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright.. (55) (b) "intellectual property service" means, - (a) transferring, {temporarily} whether permanently or otherwise; or (b) permitting the use or enjoyment of, any intellectual property right. (105) "taxable serv .....

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the ld. AR is having no help to the Revenue as it has been clarified that the taxable service include only such Intellectual Property Rights except Copy Right that are prescribed under the law for the time being in force, as the term 'time being in force' implies that, as are applicable in India, and Intellectual Property Rights covered under Indian law in force alone are chargeable to service tax and Intellectual Property Rights like Integrated Circuits or Undisclosed Information would .....

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under the category of 'Intellectual Property Right service' during the relevant period. The admitted facts of the case are that the technical know-how, engineering design licence involved in these agreements with foreign service providers are not registered in India under Indian law. However, the original authority held that registration of IPR under Indian law is only for obtaining protection from its infringement. He observed that the levy of tax is not dependent on the fact of such r .....

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ual Property Right" means any right to intangible property, namely, trade marks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright 6. The IPR as defined should be a right under any law for the time being in force. The legal position on this issue has been examined by various decisions of the Tribunal which are as under : (a) Rochem Separation Systems (India) Private Limited v. Commissioner of Service tax, Mum .....

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7. It has been held that to be categorized for service tax purpose under IPR, such right should have been registered with trade mark/patent authority. In the present case, admittedly, there is no right recognized as IPR under any law for the time being in force in India. As such, there can be no provision of IPR service for tax liability on reverse charge basis. Therefore, we hold that services received by the appellant-assessee are not covered under Intellectual Property Rights services, under .....

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t that the agreement is dated 11.03.2002 whereas the levy of tax under IPR service has come into force on 10.09.2004. As the agreement is executed on 11.03.2002, prior to introduction of IPR Service, the demand of service tax is not sustainable in the light of the decision of this Tribunal in the case of Reliance Industries Limited - 2016-TIOL-1654-CESTAT-MUMBAI, wherein this Tribunal observed as under :- Insofar as the agreement with Investa Technologies S.A.R.L. is concerned the same was enter .....

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