TMI Blog2017 (9) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax - demand under the category of IPR service is not sustainable. Marketing support services - sale promotion and marketing services to UOP LLC and other overseas companies - Held that: - the service has been received by the service recipient located outside India and used outside India - the demand in respect of marketing support service under the category of business auxiliary service is not sustainable against the appellant. Charges paid to the company’s overseas entities in respect of maintenance of software - Held that: - it is fact on record that the software is located in a server outside India, therefore, the service has been provided outside India and used outside India only - the demand against the appellant on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the appellant submits that there are 38 agreements in question against which the investigation was conducted and the appellant has filed reply to all the agreements and stated that all the evidence available on record instead of examining the contents of these agreements individually, the show cause notice alleged against the appellant on the basis of random scrutiny of 5 contracts which is contrary to the facts of the case. Therefore, the impugned order is required to be set aside on that ground alone and the matter be remanded to the adjudicating authority to examine all the contracts in details whether the allegations made in the show cause notices are sustainable against the appellant or not. 5. He further submits that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice has been denied and a demand of ₹ 15.6 crores relying on the Board Circular No.B/1/4/2006-TRU dated 19.4.2006 read with Board circular No.56/5/2003-ST dated 25.4.2003. The said issue has been settled by this Tribunal in the case of Paul Merchants Ltd. -2013 62 VST 501 CESTAT and Microsoft Corporation (I) Pvt.Ltd.-2014 (36) STR 766 (Tri.-Del.). Therefore, the demand is not sustainable. 8. He further submits that the demand has been confirmed on maintenance of software. He submits that in respect of these services, even though there is finding that the software in a server located outside India. He submits that the said demand is not sustainable for the period prior to 18.4.2006 in light of the decision of the Hon ble Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omly scrutinized 5 contracts. It is the contention of the appellant that most of the agreements are for other services not for erection, commissioning and installation services. As all the agreements have not been examined by the adjudicating authority to give clear finding, therefore, the said demand is not sustainable in eyes of law. Accordingly, the demand of ₹ 48,72,77,071/- is set aside and the matter is remanded back to the adjudicating authority to decide the issue afresh after examining all the 38 agreements in question and thereafter decide the issue on merits. 13. With regard to the demand in respect of IPR service, the contention of the appellant is that the services were received under the agreement executed prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute the mere subsequent payment in respect of services that are already being rendered cannot be brought to tax with respect to the Rule applicable on the date on which the payment was effect. 14. As all the agreements entered by the appellant prior to 10.9.2004, therefore, on the basis of said agreements, the royalty is not chargeable to service tax in view of the Reliance Industries Ltd.(supra), therefore, the said demand under the category of IPR service is not sustainable. 15. The demand in respect of marketing support services, we find that in this case, the service has been received by the service recipient located outside India and used outside India, therefore, the decision of this Tribunal in the case of Paul Merchants Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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