2011 (8) TMI 1119 - AT - Service Tax

Waiver of pre-deposit and penalties - The main case of the appellant is that they are not liable to pay Service Tax on the royalty paid as consideration for purchase of technical know-how from abroad inasmuch as the technical knowhow is not recognized or protected by any law in India - Held that - if Service Tax is required to be paid on the transaction in question, CENVAT credit thereof will be available to them as recipient of the service by virtue of Section 66A of the FA, 1994, resulting in revenue neutral situation - Considering the plea of revenue-neutrality raised by the learned counsel, waiver of pre-deposit and stay of recovery granted - appeal allowed - decided in favor of assessee.

Summary

Issues:
1. Waiver of pre-deposit of recovery in respect of Service Tax amount and penalties.
2. Applicability of Service Tax on royalty paid for transfer of technical know-how.
3. Recognition of technical know-how as an Intellectual Property Right under Indian law.
4. Revenue-neutrality as a ground for waiver of pre-deposit and stay of recovery.
5. Invocability of the extended period of limitation for demand of Service Tax.

Analysis:

1. The appellant sought waiver of pre-deposit of recovery for a Service Tax amount exceeding Rs. 1.2 crore and penalties. The demand was related to 'Intellectual Property Service' for the period from January 2007 to March 2009, involving royalty payment for transfer of technical know-how. The show-cause notice was issued invoking the extended period of limitation under Section 73(1) of the Finance Act, 1994.

2. The appellant argued that they were not liable to pay Service Tax on the royalty paid for technical know-how from abroad as it was not recognized or protected by Indian law. The definition of 'Intellectual Property Right' under Section 65(55a) was crucial, excluding copyrights and encompassing trademarks, designs, patents, or similar intangible property. The transaction in question was claimed to be not exigible to Service Tax under 'Intellectual Property Service.'

3. The JCDR contended that the Patents Act recognized certain Intellectual Property rights, including technology, as an Intellectual Property Right. The dispute centered on whether technical know-how constituted an Intellectual Property Right under Indian law during the relevant period. The argument revolved around the interpretation of the statutory provisions governing Intellectual Property Rights.

4. The appellant raised revenue-neutrality as a ground for waiver of pre-deposit and stay of recovery. They asserted that if Service Tax was payable, CENVAT credit would be available to them as the recipient of the service under Section 66A of the Finance Act, 1994. The Tribunal found merit in the revenue-neutrality plea, leading to the grant of waiver of pre-deposit and stay of recovery.

5. Additionally, the appellant challenged the extended period of limitation, claiming that 50% of the Service Tax demand was beyond the normal limitation period. The Tribunal considered this argument alongside the revenue-neutrality aspect and decided to grant the waiver of pre-deposit and stay of recovery based on these grounds, ultimately ruling in favor of the appellant.