TMI Blog2023 (11) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... red under any law in India, therefore for this reason itself the service received by the appellant is clearly not taxable under the reverse charge mechanism in the hands of the appellant. The Fees and Royalty paid by the appellant is towards Intellectual Property Right which is owned by company of Italy and the same is not registered under any law in India in terms of the definition of Intellectual Property Right is given in Section 65(55a) of Finance Act 1994. As per the facts of the present case, since the Intellectual Property Right which is used by the appellant belongs to the overseas supplier and that Intellectual Property Right is not governed by any law in India, therefore levy is not covered under the definition of Intellectual Property Right. Accordingly, the same is not taxable. The amounts debited from Cenvat Credit Account can not be retained by the Government without any authority of law and the same deserves to be returned to the Appellant in accordance with the law. Since the matter decided on its merits, the other issues raised by the counsel regarding the revenue neutrality and time limitations for SCN etc against such demand of Service Tax, are not deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Finance Act 1994, as is equivalent to amount of CESS paid towards import of Technology under section 3 of Research and Development Cess Act, 1986 in relation to such intellectual property service. Appellant had also discharged Service Tax liability of total Rs. 21,96,432/- from Cenvat Credit Account. However, total amount of Rs 3,55,96,434/- paid to M/s Benasedo Spa, Italy by Appellant for Transfer of Technical know how and Royalty is treated as Taxable Value for Intellectual Property Service, attracting Service Tax of Rs. 21,96,432/- payable by cash in GAR-7 challan, which is demanded vide Show Cause Notice No. V.ST/15- 33/0FF/OA/2013 dated 05.09.2014. Appellant objected SCN on various grounds contending that service tax amount paid from Cenvat Credit Account was in accordance with law, but, SCN dt. 05-09-2014 resulted in confirmation of Service Tax demand with interest and penalty by the O-I-O No. AND/ST/11/JC/2015 dated 27-11-2015 and the O-I-A No. VAD-EXCUS-003- APP-127-2016-17 dated 27-05-2016 issued by the Commissioner (Appeals), Vadodara. Therefore, this Appeal has been filed by the Appellant. The appellant also filed miscellaneous application for change of name of appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide this Hon ble CESTAT s Order No. A/13142/2017 dt. 04-10-2017 considering decision in Kansara Modler Ltd vs. CCE, Jaipur - 2013 (32) S.T.R. 209 (Tri.-Del.) and other decisions. Appellant placed reliance on Order NO. A/10005-10007/2023 dtd 04.01.2023 in M/s Black Box Ltd [Appeal No. E/631/2012-DB] by this Hon ble CESTAT, Ahmedabad. 3.2 He submits that the entire demand of Service Tax confirmed with interest and penalty deserves to be set aside. Intellectual Property Right of overseas supplier is not Registered in India under any Law. Therefore, Appellant is not liable to pay Service Tax on IPR Service in India. He submits that it is settled law by the following decisions of the Hon ble Tribunal, wherein it has been held that to levy Service Tax under IPR, such right should have been registered with trade mark/patent authority in India. In present case, there is no evidence adduced on record by Revenue to show that such right is registered in India. As such, there can be no levy of Service Tax in relation to provision of IPR service for charging Service Tax on Appellant. He emphasised that the amount of Service Tax deposited from Cenvat Credit Account is without the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecide whether Service Tax on Intellectual Property service is payable in the facts of this case. There is no dispute on the facts that the amount of Rs 3,55,96,434/- paid by the appellant to M/s Benasedo Spa, Italy for Transfer of Technical know how and Royalty as per their Agreement dated 31-03-2010 has been treated as Taxable Value under Intellectual Property Service by Revenue, attracting total Service Tax of Rs. 21,96,432/- which is in dispute in this case. However, relevant provisions under the Finance Act 1994 governing the levy are as under :- Section 65(55a) of the Act defines Intellectual 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 Section 65 (55b) intellectual property service means, (a) transferring, [temporarily]; or (b) permitting the use or enjoyment of, any intellectual property right;] Section 65(105)(zzr) Taxable service means any service provided or to be provided to any person by the holder of intellectual property right, in relation to intellectual property service; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, wherein it has been held that to levy the Service Tax under IPR, such right should have been registered with trade mark/patent authority in India. However, in the present case, admittedly, there is no evidence adduced on record by the Revenue to show that such IPR is Registered in Indian Law. As such, there can be no levy of Service Tax in provision of IPR service for recovery of Service Tax from the Appellant. Following decisions relied upon by Appellant support their case :- 2016 (44) S.T.R. 82 (Tri. - Mumbai) - Reliance Industries Ltd vs CST-LTU-Mumbai 2016 (45) S.T.R. 118 (Tri. - Del.) - Chambal Fertilizers Chemicals Ltd vs CCE, Jaipur-I 2017 (48) S.T.R. 94 (Tri. - Mumbai) -Catapro Technologies vs CCE, Nashik 2017 (49) S.T.R. 209 (Tri. - Bang.) - ASEA BROWN BOVERI LTD vs CCE, Banglore 2017 (5) G.S.T.L. 332 (Tri. - Mumbai) - ASK Chemicals Foundry Solutions (India) Pvt. Ltd 2018 (15) G.S.T.L. 375 (Tri. - Kolkata)- SICPA INDIA PVT. LTD vs CCE ST, SILIGURI 2019 (31) G.S.T.L. 472 (Tri. - Mumbai) - Technova Imaging Systems Pvt. Ltd vs CCE 2019 (24) G.S.T.L. 55 (Tri. - Bang.) - ABB Ltd vs CCE ST, LTU, Banglore 5.2 We find ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
