2018 (5) TMI 984 - AT - Service Tax

Liability of service tax - reverse charge mechanism - recipient of intellectual property service - Held that - There is no doubt that the appellant is a person and as supplier of the technology related to software, their overseas provider is the holder of the intellectual property right. The service to be taxable is found within section 65(55b) of Finance Act, 1994 - It is clear, therefore, that what is envisaged for taxation is the utilisation of intellectual property which is recognised as such within the territory of India and such right over the intellectual property should be enforceable by the laws of the country. In the absence of any allegation or evidence that the intellectual property right of the supplier of these services to the appellant is recognised under the intellectual property laws of India, the demand against the appellant will not sustain - Appeal allowed - decided in favor of appellant.

Issues:
Challenge to order confirming demand of service tax on 'intellectual property service' under Finance Act, 1994.
Interpretation of 'intellectual property service' as per section 65(105)(zzr) of Finance Act, 1994.
Applicability of service tax on utilisation of intellectual property recognized in India.
Analysis of various Tribunal decisions on liability to service tax for 'intellectual property service'.
Requirement of enforceability of intellectual property right under Indian law for taxation.
Consideration of technical know-how as a service distinct from intellectual property service.
Evaluation of Circular No. B2/8/2004-TRU for clarifying tax object as intellectual property rights.
Consistency in Tribunal decisions regarding taxability of intellectual property rights under Indian law.

Detailed Analysis:

1. The judgment involves a challenge to the order confirming the demand of service tax on 'intellectual property service' under the Finance Act, 1994. The appellant contested the liability imposed by the Commissioner of Central Excise, Kolhapur, challenging the demand, interest, and penalties.

2. The crux of the issue lies in the interpretation of 'intellectual property service' under section 65(105)(zzr) of the Finance Act, 1994. The appellant, engaged in windmill manufacturing, paid license fees for using technical information software. The service tax liability was based on the consideration paid to an overseas provider for intellectual property services.

3. The Tribunal analyzed various decisions, including Tata Consultancy Services Ltd and Catapro Technologies, to determine liability for service tax on intellectual property services. These decisions emphasized the necessity of the enforceability of intellectual property rights under Indian law for taxation purposes.

4. The Tribunal delved into the definition of 'intellectual property service' and 'intellectual property right' under the Finance Act, 1994. The tax liability was contingent on the utilization of intellectual property recognized within India and enforceable by Indian laws.

5. The appellant argued that the technical know-how transferred did not constitute intellectual property service as it did not involve proprietary rights enforceable under Indian intellectual property laws. The Tribunal scrutinized the nature of the rights transferred and their enforceability under Indian law.

6. The judgment referred to Circular No. B2/8/2004-TRU to elucidate the tax object as intellectual property rights under applicable Indian laws. Consistency in Tribunal decisions, such as Tata Consultancy Services Ltd and Thermax Ltd, emphasized the requirement for intellectual property rights to be recognized under Indian law for tax liability.

7. Ultimately, the Tribunal concluded that in the absence of evidence establishing the recognition of the supplier's intellectual property rights under Indian laws, the demand for service tax against the appellant was unsustainable. Therefore, the impugned order confirming the demand was set aside, and the appeal was allowed.

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