TMI Blog2008 (6) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... nesh and Rajesh Chhibber, for the Appellant. R. K. Verma, for the Respondent. [Order per Rakesh Kumar, Member (T)] - This is an application for waiver under section 35F of the Central Excise Act, 1944 of the requirement of pre-deposit of service tax and penalties confirmed by the impugned order and also for staying the recovery of these amounts. The Commissioner, by the impugned order has - (a) confirmed the service tax demand amounting to Rs. 44,47,045 against the appellant under 1st proviso to section 73 of the Finance Act, 1994, along with interest at the applicable rate on this amount; and (b) Imposed penalties of (i)Rs.44,47,045 under section 78 (ii) Rs. 1,000 under section 77 and (iii) an amount equal to 2 per cent of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular No. 80/10/2004-ST. dated 17-9-2004, any intellectual property, not specifically covered by any law in India, is not covered under Service Tax provisions. (iii) The agreement under which the technical know-how was received was entered into on 14-11-1990 and the appellants received the know-how soon after that date. Therefore this transaction cannot be taxed as IPR under section 65(55a) read with section 65(105)(zzr) an IPR was brought within service tax net with effect from 10-9-2004. Moreover when the transaction took place, the service receiver in India from an offshore service provider was not liable to pay the service tax. (iv) The demand has not been computed correctly as cess amounting to Rs. 3 1,94,334 paid in term of Resea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired right to use the know-how developed by M/s. Mundipharma, for manufacture of certain medicines for which annual payment of royalty is made to M/s. Mundipharma. The service being received by the appellant from M/s. Mundipharma, therefore, prima facie appears to be covered by the definition of "Intellectual property rights" service as given in section 65(55a) of the Act, and on this point, the revenue, prima facie , has a strong case. However on the point of limitation, the appellant, prima facie, appear to have a strong case, as during the period of dispute, the appellant, every year were filing an ER-4 return under rule 12(2)(a) of the Central Excise Rules, 2002 in the Divisional Office and along with this return, they were enclosi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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