TMI Blog2019 (1) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The demand of tax on the differential rate of exchange does not sustain and is set aside. Furthermore, it is apparent from the scheme of ‘deemed provider of service’ in section 66A of Finance Act, 1994 and Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 that the entitlement to CENVAT credit of tax so paid eliminates the attribution of motive or conduct that are the ingredients for imposition of penalty under section 78 of Finance Act, 1994. The residuary provision for imposing the figment of import on transactions enumerated in section 65(105) of Finance Act, 1994 does not extend to ‘intellectual property rights’, unique as they are and not amenable, by comparison with procurement of such proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 65(105)(zzb) of Finance Act, 1994 as deemed receipient of business auxiliary service . The impugned order, besides confirming recovery of interest and imposing penalties, also appropriated ₹ 48,88,329 under the two heads. According to Learned Counsel for appellant, the differential amount of ₹ 3,42,607 yet remaining between the confirmed recovery and the amount paid as recipient of intellectual property rights service is attributable to the disagreement over different rates of exchange adopted for computation of assessable value in 2006-07 and 2007-08. 2. Though the appellant is convinced of exclusion from coverage, insofar as intellectual property rights service is concerned, by the decision of the Tribunal in Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on their part. 4. Learned Authorised Representative relies upon notification no. 18/2009-ST dated 7th July 2009 in terms of which certain conditions had been prescribed for exemption from service tax claimed to be exports in view of their submission that performance of business auxiliary service occurred outside India and stated that these had not been complied with; according to him, in the absence of such compliance, even if the activity was exported, the exemption would not apply. He also questioned the applicability of the decision of the Tribunal in re Catapro Technologies by drawing attention to the provisions of the Patents Act, 1970 and the relevant Manual of Practice and Procedure issued by Controller General of Patents, D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority who not only relied upon in order that was non-existent but also adopted the reasoning therein. This alone should suffice to set aside the penalties. 7. Furthermore, it is apparent from the scheme of deemed provider of service in section 66A of Finance Act, 1994 and Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 that the entitlement to CENVAT credit of tax so paid eliminates the attribution of motive or conduct that are the ingredients for imposition of penalty under section 78 of Finance Act, 1994. It cannot also be denied that the decision of the Tribunal in re Catapro Technologies, even if distinguished on facts of the present issue by Learned Authorised Representative by reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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