2013 (1) TMI 605 - AT - Service Tax

Waiver of pre-deposit - Penalty u/s 78 - Intellectual Property Right - Activity of transfer of trade secret i.e. technology and information - Reverse charge - Held that - The 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. While framing the charge against the applicant, the adjudicating authority has not specified specifically under which part of the Intellectual Property Right applicable in India the applicant is covered. Therefore, prima facie the applicant has made out a case for waiver of pre-deposit. Stay granted

Summary

Issues:
Grant of waiver of pre-deposit of service tax and penalty under section 78 of the Customs Act, 1962 based on the Intellectual Property Right applicability in India.

Analysis:
The case involved the appellant, a manufacturer of ion exchange resins, who faced allegations of using a trade secret belonging to a competitor. The appellant entered into an out-of-court settlement with the competitor, becoming a co-owner of the technology in question. The Revenue claimed that the consideration paid by the appellant to the competitor fell under Intellectual Property Right under the reverse charge mechanism, thus making the appellant liable to pay service tax on the entire consideration.

The appellant argued that the consideration was not for services rendered but for settling the dispute and becoming a co-owner of the technology. The appellant contended that the transfer of the trade secret was not covered under Intellectual Property Right applicable in India, challenging the sustainability of the demands imposed.

The learned AR supported the findings of the impugned order, asserting that the appellant fell under Intellectual Property Right service and should pre-deposit the entire demand. However, upon examining the impugned order and relevant legal provisions, the Tribunal noted that the adjudicating authority had not specified under which part of the Intellectual Property Right applicable in India the appellant was covered.

Consequently, the Tribunal found the impugned demands unsustainable due to the lack of specificity regarding the Intellectual Property Right under which the appellant was implicated. As a result, the Tribunal granted waiver of pre-deposit of the dues adjudged in the impugned order and stayed the recovery during the appeal's pendency.