2011 (9) TMI 760 - AT - Service Tax

Stay petition - Demand - Intellectual Property Right Services - show cause notice alleges and puts the appellant on notice for recovery of the service tax under the category of franchisee services for the amounts received by them as royalty from the persons who have been using their brand name - even if the appellant has discharged the service tax liability, after taking the registration under this category, the question of confirming the demand without putting the appellant on notice is incorrect and not within the provisions of the law - Decided in favor of the assessee

Summary

Issues:
1. Service tax liability under "Intellectual Property Right Services" for the period in question.
2. Confirmation of demand under the category of "Intellectual Property Right Services."
3. Applicability of penalties under Section 76, 77 & 78 of the Finance Act, 1994.
4. Consideration of submissions made by both sides and perusal of records.

Analysis:
1. The stay petition was filed against the Order-in-Appeal upholding the demand of service tax under "Intellectual Property Right Services." The appellant claimed to have discharged the service tax liability from the statutory date and provided evidence of deposits with authorities. The Tribunal found evidence of payments and interest, allowing the waiver of pre-deposit. The appeal was taken up for final disposal with consent from both sides due to the narrow scope of the issue.

2. The show cause notice demanded service tax liability under "franchisee services" for a specific period. The adjudicating authority confirmed the demand under "Intellectual Property Right Services" for a different period but dropped the proceedings for the initial period. The appellant argued that they had already paid the service tax under the correct category and objected to further confirmation of demand without proper notice. The Commissioner (Appeals) upheld the demand, interest, and penalties, which the Tribunal found incorrect as no notice was issued for the demand under "Intellectual Property Right Services." The demand and penalties were set aside based on the lack of proper notice and incorrect application of the law.

3. The Tribunal noted that the show cause notice did not specify the demand under "Intellectual Property Right Services," leading to an incorrect confirmation of demand and penalties by the adjudicating authority and the Commissioner (Appeals). The appellant's compliance with service tax liability under the correct category was not considered, resulting in the appeal being allowed due to the absence of proper notice for the demand.

4. After considering submissions from both sides and reviewing the records, the Tribunal concluded that the demand under "Intellectual Property Right Services" was not valid due to the lack of a specific notice for that category. The decision to set aside the demand, interest, and penalties was based on the incorrect application of the law and the failure to provide proper notice to the appellant.

This detailed analysis of the judgment highlights the issues surrounding the service tax liability under "Intellectual Property Right Services" and the Tribunal's decision to set aside the demand, interest, and penalties due to the absence of a specific notice for that category.