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TMI Blog2023 (11) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the technology, know how, Trade secrets etc. The appellant has agreed to pay an amount of Euro 3,00,000 and royalty every year from 2007-08 to 2010-11. The appellant had also entered into "Technology Licensing and Supply Agreement" with M/s SunBio Inc., South Korea on 01.11.2003 for development, manufacture and marketing of PEG-GCSF in India. This agreement also envisaged transfer of technology, analytical methods and similar information related to PEG products and pegylation for allowing the use of said technology, the appellant paid an upfront amount of USD 1,50,000/- and royalty every year from 2007-08 to 2010-11. The appellant also entered into a "Technology Know-how Transfer Agreement" with M/s Biocam Ltd., UK on 25.06.2001. The said agreement envisaged transfer of technology, technical know-how relating to protocols for fermentation and purification to obtain pure G-CSF. The appellant paid an amount of USD 2,70,000/- and royalty every year for the period 2007-08 to 2010-11 for this. 3. Learned counsel pointed out that the Revenue sought to classify these transaction under the category of import of 'Intellectual Property Service' and sought to charge service tax on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to Service Tax. He relied on the following decisions to assert the same: Reliance Industries Ltd. 2016 (44) STR 82 (Tri. Mum.) Hindustan Aeronautics Ltd. 2020 (38) GSTL 75 (Tri. Bang.) Chambal Fertilizers & Chemicals Ltd. 2016 (54) STR 118 (Tri. Del.) Munjal Showa Ltd. 2017 (5) GSTL 145 (Tri. Chan.) 5. He further pointed out that no service tax is leviable to be paid as in all the cases the agreements were entered with the suppliers prior to 18.04.2006. He pointed out that only by virtue of the point of Taxation Rules, 2011 does the payment in respect of past contracts become liable to service tax. He relied on the decision of Tribunal in the case of Reliance Industries Ltd. 2008 (10) STR 243. The said decision of Tribunal was upheld by the Hon'ble High Court of Gujarat 2010 (19) STR 807 (Guj.). 6. Learned Authorized representative relies on the impugned order. 7. We have considered the rival submission. We find that in the instant case demand has been confirmed in respect of royalty payments made by the appellant under the head of 'Intellectual Property Service'. In the instant case, it is not in dispute that the entire technology was imported by the appellant fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant-assessee under Industrial Property Right agreement is liable to service tax under Intellectual Property Rights service or not. For better appreciation of Intellectual Property Right, the definition of the same is reproduced :- Section 65. Definition. - In this Chapter, unless the context otherwise requires, - (55)(a) "intellectual property right" means any right to tangible property, namely, trademarks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright. "intellectual property (55)(b) service" means, - (a) transferring, {temporarily} whether permanently or otherwise; or (b) permitting the use or enjoyment of, any intellectual property right. (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. 7. On going through the said provisions of the Act, we find that, to tax under service tax, under Intellectual Property Rights, such rights should be registered with Trademark/Patent authorities. It is a fact on record that such trade mark is not registered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by various decisions of the Tribunal which are as under : (a) Rochem Separation Systems (India) Private Limited v. Commissioner of Service Tax, Mumbai I - 2015 (39) S.T.R. 112 (Tri.-Mum.) [para 8]; (b) Whirlpool of India Limited v. C.C.E & S.T., Delhi - 2016-VIL-57-CESTAT-DEL-ST [para 7]; (c) Tata Consultancy Services Limited v. C.S.T., Mumbai - 2015-TIOL-2370-CESTAT-MUM = 2016 (41) S.T.R. 121 (Tri.) [para 4.1]; (d) Asea Brown Boveri Ltd. v. C.C.E & S.T., Bangalore - 2016-VIL-480-CESTAT-BLR-ST [para 6.7.1]; (e) Reliance Industries Ltd. v. C.C.E. & S. Tax, Mumbai - 2016-TIOL-1654-CESTAT-MUM = 2016 (44) S.T.R. 82 (Tri.) [para 2]. It has been held that to be categorized for service tax purpose 7. under IPR, such right should have been registered with trade mark/patent authority. In the present case, admittedly, there is no right recognized as IPR under any law for the time being in force in India. As such, there can be no provision of IPR service for tax liability on reverse charge basis." Therefore, we hold that services received by the appellant-assessee are not covered under Intellectual Property Rights services, under Section 65(105)(zzr) of the Finance Act, 1994, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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