2017 (9) TMI 1325 - AT - Service Tax

Intellectual property service - Technical Collaboration Agreement - the appellant would manufacture their product in India using Technical information, know-how and Patent rights of M/s.SICPA Holding Switzerland - demand of Service tax on Right to use Technical information - Held that - identical issue came up before the Tribunal in the case of Reliance Industries Ltd. v. CCE & ST, LTU, Mumbai 2016 (6) TMI 1108 - CESTAT MUMBAI , where it was held that If an intangible property right was to refer to a right which is recognised by any country, then the legislature would not have used the expression under any law for the time being in force. The legislature would have merely stated that an intellectual property right would mean any right to an intangible property. There would have been no need for it to qualify the same with a recognition under any law for the time being in force - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Classification of the service under Intellectual Property Rights (IPR) service.
2. Applicability of service tax on technical know-how and information.
3. Registration and payment of service tax.
4. Limitation and intention to evade payment of service tax.
5. Revenue neutrality and abatement for R&D Cess.

Detailed Analysis:

1. Classification of the Service under Intellectual Property Rights (IPR) Service:
The central issue revolves around whether the transfer of technical know-how and information falls under the category of Intellectual Property Rights (IPR) service as defined under Section 65(55b) of the Finance Act, 1994. The appellant contended that the know-how and technical information were confidential and not patented, arguing that such information does not constitute an IPR under the said section. The department, however, argued that the technical collaboration agreement granted exclusive technical information under relevant patents, thereby classifying it as an IPR service liable for service tax.

2. Applicability of Service Tax on Technical Know-How and Information:
The appellant argued that the transfer of know-how and technical information is a transaction in property, not a service, and hence does not attract service tax. They further contended that the agreement was entered into in 1991, well before the introduction of service tax on IPR services in 2004. The department countered by stating that the technical information was provided on a continual basis, which qualifies as a service subject to service tax.

3. Registration and Payment of Service Tax:
The appellant did not register for or pay service tax for the period from May 2005 to March 2009. They argued that the service provider was outside India and did not have an office in India, referencing the Indian National Shipowners Association case to support their claim that they were not liable to pay service tax before 18.04.2006. The department maintained that the appellant’s failure to register and pay service tax indicated an intention to evade tax.

4. Limitation and Intention to Evade Payment of Service Tax:
The department argued that the appellant’s failure to register and pay service tax from May 2005 to March 2009 was a clear attempt to evade tax, justifying the extended period of limitation for issuing the show-cause notice. The appellant contended that there was no intention to evade tax and that the demand was time-barred.

5. Revenue Neutrality and Abatement for R&D Cess:
The appellant claimed that the entire exercise was revenue-neutral and that they were entitled to abatement for the R&D Cess paid. The department, however, noted that the appellant failed to substantiate their claim of incorrect computation of liability due to non-disclosure of the total amount of royalty paid.

Tribunal’s Findings and Judgment:
The Tribunal referenced its earlier decisions in similar cases, notably Reliance Industries Ltd. v. CCE & ST, LTU, Mumbai and Chambal Fertilizers & Chemicals Ltd. v. CCE, Jaipur-I. The Tribunal reiterated that for a right to be categorized as an IPR service, it must be registered under Indian law. Since the technical know-how and information in this case were not registered as patents in India, they did not qualify as IPR services under the Finance Act, 1994.

The Tribunal found the appellant’s contentions valid, noting that the technical know-how and information were not recognized as IPR under Indian law and thus could not be subjected to service tax. Consequently, the Tribunal set aside the impugned orders and allowed the appeals, concluding that no service tax was payable on the transfer of technical know-how and information in this case.

Conclusion:
The appeals were allowed, and the impugned orders were set aside. The Tribunal held that the transfer of technical know-how and information did not constitute an IPR service under the Finance Act, 1994, as the rights were not registered under Indian law. The appellant was not liable for service tax on the said transactions.

← Previous Next →