2008 (9) TMI 322 - AT - Service Tax

Intellectual property service transfer of technical know how service tax paid before issuance of show cause notice - respective benches have waived and also set aside the penalty - therefore, the prayer of the appellants for waiver of pre-deposit of interest and penalty during the pendency of the appeal is accepted

Summary

Issues:
Levy of penalty for non-payment of Service Tax under "Intellectual Property Service" and applicability of penalty waiver.

Analysis:
1. Levy of Penalty: The issue in question pertains to the levy of penalty for non-payment of Service Tax under "Intellectual Property Service." The appellant argued that the technical know-how transferred does not fall under "Intellectual Property Right." The counsel contended that since the assessee genuinely believed they were not covered under this category, the penalty imposition is unjustified. On the other hand, the SDR argued that the transfer of technical know-how is indeed covered under "Intellectual Property Right" as per Section 65(55aA) of the Finance Act, 1994. The SDR referenced various rulings, such as M/s. Modi-Mundipharma Pvt. Ltd. and Hyundai Motors (India) Ltd., where it was held that technical know-how transfer falls within the ambit of "Intellectual Property Services."

2. Applicability of Penalty Waiver: The appellant sought a waiver for interest and penalty since they had already deposited the Service Tax amount. The Tribunal considered the arguments presented by both sides and noted that in previous rulings, penalties were waived in similar cases. The Tribunal accepted the appellant's prayer for waiver of pre-deposit of interest and penalty during the appeal's pendency. The stay application was granted, providing relief from pre-deposit of penalty and interest until the appeal's disposal. The Tribunal emphasized that there would be no recovery even after the lapse of 180 days, ensuring no undue financial burden on the appellant during the appeal process.

In conclusion, the Tribunal ruled in favor of the appellant, granting a waiver for pre-deposit of interest and penalty during the appeal process. The decision was based on the interpretation of "Intellectual Property Right" and the precedents set by previous rulings where penalties were waived in similar circumstances. The judgment ensures fairness and relief for the appellant while upholding the principles of justice and legal interpretation.