TMI Blog2018 (10) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... is not able to show any other evidence. Hence, when there is no consideration for IPR then the demand of service tax under IPR is liable to be set aside - demand set aside. Whether the appellant have wrongly availed and utilised Cenvat credit on the invoices which was addressed to separate unit, working, for about the same premises and whether appellant have wrongly availed and utilised Cenvat credit in respect of non-registered branches– ₹ 88.09 lakhs? - Held that:- Name of the appellant i.e. from ‘NIS Sparta’ to “NIS Sparta (Division of Mudra Communications Pvt. Ltd.)’ had been changed in accordance with High Court (permission) order. Moreover, the department is not disputing that the services mentioned in the invoices has been used by the appellant. It is settled law that substantive benefit cannot be denied merely on the procedural lapse - credit allowed. Demand and Penalties set aside - Appeal allowed. - ST/53376/2014-DB - 53061/2018 - Dated:- 3-10-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. C.L. Mahar, Member (Technical) For the Appellant : Shri Vivek Sharma, Advocate For the Respondent : Shri Amresh Jain, D.R. ORDER PER ANIL CHOU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 31.03.2011). Therefore, this issue is squarely covered by the earlier decision of this Tribunal. It is pertinent to note that the Revenue has not shown any evidence to establish, having filed an appeal against this decision of the Tribunal, nor of this decision being stayed by any higher forum. In the absence of the same, this decision of the Tribunal dated 18.12.2014 is required to be followed. 2.2 in any case, the brief transaction is, that the Appellant is an approved institution as per the Insurance Regulatory and Development Authority (Licensing of Insurance Agents) Regulation 2000 (for short Insurance Regulation). To become an insurance Agent, an applicant/ candidate is required to abide by Regulation 3 to 5 of the Insurance Regulation. The candidate needs three qualifications for the purpose of becoming an Insurance Agent, as per the Insurance Regulation: (i) he should have a statutory qualification (studied upto 12th Standard) (ii) he should have undergone at least, fifty hours practical training in life or general insurance business, as the case may be, from a recognized institute. (iii) To pass an examination conducted by Insurance Institute of India, Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Delhi High Court anywhere, let alone distinguish it. In this view, it is completely incorrect to state that the decision of the Delhi High Court was distinguished by the Madras High Court. More importantly, the Madras High Court referred to the decision of CESTAT Mumbai, given in the case of Bombay Flying Club 2012 (29) STR 156. In this decision of the Tribunal, Mumbai, the argument placed before the CESTAT was that levy of Service Tax does not arise under commercial training or coaching service given that Bombay Flying Club is a charitable institution . The argument placed and the decision given by the CESTAT, Mumbai and the Hon ble Madras High Court, are not arising or available in the present matter, and therefore these judgments have no bearing on the issue at hand. In any case, in the present matter, SCN has been issued by the Commissioner of Service Tax Delhi and the jurisdictional High Court for the present is Delhi. consequently, the decision of the Delhi High Court is binding in the present matter and not the decision of the Madras High Court. 3. Issue 2 Service tax demand does not arise under intellectual property right services (IPR services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty Right service. 3.3 Even if it is assumed for the sake of arguments that any service took place in the transaction at hand then also Service tax demand, if at all, arose under information technology software service and not IPR service. Reliance is placed on the decision of Suntech Business Solutions Pvt. Ltd. Vs. CCE 2017 (51) STR 446. It is settled law that the onus is on the department to make its case under the correct classification of service. Given all of the above, Service tax demand under IPR service is absolutely incorrect in law. 3.4 The appellant counsel states, that Revenue has failed to establish that the case falls under IPR service. Merely because payments were made by the Appellant to Cross Knowledge, Service tax itself cannot arise under IPR service. The Revenue has failed to establish the charge of tax itself and also failed to establish any consideration for alleged IPR service. 4. Issue 3- CENVAT Credit 4.1 CENVAT Credit has been denied only on the basis of procedural lapse. There is no dispute over the substantial availment of Credit. It has been disputed that CENVAT Credit could not have been taken on the basis of invoices which mentioned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant after the completion of the training cannot be regarded as recognized by the law for the time being in force , as the certificate issued by them has neither been recognized by any of the statutory authorities in the country such as UGC, AICTE, nor does the training impart skills to enable the candidates to seek employment or undertake self employment directly after such training. The said certificates only make the candidates eligible to appear for examination conducted by a statutory body viz. Indian Institute of Insurance. 6.2 The training given by the Appellant entitles a person to appear for the examination conducted by the Insurance Institute of India, Mumbai as prescribed in the Insurance Regulatory and Development Authority (Licensing of Insurance Agents) Regulations, 2000 read with Insurance Act, 1938. 6.3 The Appellant is only a preparatory institute which coaches the students to appear for the examination conducted by the statutory legal entity i.e. IRDA and it is this legal entity which issues without a certificate, which is recognized by law. It is pertinent to mention that it is the certificate of IRDA which is recognized by law and not the certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required under Section 70 of the Act. Further, in the instant case it is not only the question of suppression of particular activity by the Appellant, but also the valuation of the same. In fact under Finance Act 1994, each and every invoices is a document for assessment and suppression of the true transactional value of each invoice of the taxable activity can be called suppression. 8.4 As is clear from para 2.11 of Show Cause Notice dt. 27.04.2011, the Appellant suppressed the issuance of invoices of the taxable activity and disclosed the true transactional value received by them during October 2007 to June 2009, only on 09.04.2010, when pressed by the Department. 8.5 Hence, the allegation of suppression of transactional documents and value is proved against the Appellant. 9. Receipt and Taxability of Intellectual Property Services (IPR) by the Appellant. 9.1 The RUD VIII of Show Cause Notice read with Agreement dt. 05.02.2008 (RUD VI) between Cross knowledge Group Ltd. and the Appellant clearly show that the Appellant was in receipt of IPR Services from Cross Knowledge. 9.2 Based on this Agreement Cross knowledge provided the annual licenses which include the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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