2017 (7) TMI 645 - AT - Service Tax

Intellectual Property Service - Royalty paid to holding company in USA - whether royalty paid would be classified under Intellectual Property Service or otherwise? - Held that - in appellant s own case Fluent India Pvt. Ltd. Versus Commissioner of Central Excise, Pune-I 2016 (1) TMI 442 - CESTAT MUMBAI , the Co-ordinate bench of this Tribunal has decided the issue in hand wherein it was held that The appellant is merely distributing, marketing and supporting set of computer programme known as FI software. There is absolutely no indication of any transfer of intellectual property right on a plain reading of the Agreement. Neither do we find any hidden or deeper meaning in the Agreement which would indicate transfer of intellectual property right. The royalty paid by the appellant to their holding company in USA towards the that receipt and use of software does does not fall under the Intellectual Property Service - the demand raised by the Revenue was set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Classification of service tax under 'Intellectual Property Service' for royalty paid to holding company for software distribution, marketing, and support.

Analysis:
The appellant paid royalty to its holding company in the USA for distributing, marketing, and supporting software known as FI Software. The Revenue classified this service as 'Intellectual Property Service,' leading to a service tax demand being confirmed. The Commissioner (Appeals) upheld this decision.

The appellant argued that a similar issue had been decided in their favor by the Tribunal previously. The Tribunal's previous order highlighted the nature of the agreement between the appellant and the holding company, emphasizing that no transfer of intellectual property rights occurred. The Tribunal found that the appellant was only authorized to use the software products for their own use and not transfer them to others.

The Tribunal examined the statutory provisions related to intellectual property services, including Section 65(105)(zzr), Section 65(55a), and Section 65(55b). It was noted that the definition of 'intellectual property right' excludes copyright. The Commissioner's conclusion that the services provided fell under 'intellectual property service' was deemed vague and lacking logical reasoning.

The Tribunal emphasized that the agreement clearly outlined the limitations on the appellant's use and distribution of the software products, indicating no transfer of intellectual property rights. It was established that the appellant was solely distributing, marketing, and supporting the software without any transfer of intellectual property rights.

Ultimately, the Tribunal set aside the service tax demand, following the precedent set by a previous order on an identical issue. The appeal was allowed, and the impugned order was overturned, with no penalties imposed.

In conclusion, the Tribunal's detailed analysis of the agreement, statutory provisions, and previous rulings led to the decision that the royalty paid for software use did not constitute 'Intellectual Property Service,' resulting in the appeal being allowed.