2018 (11) TMI 1157 - AT - Service Tax

Intellectual Property Service - appellants entered into an agreement with M/s.Agfa-Gevert NV, Belgium and Hydro Dynamics Products, UK for supply of technical know-how and they have paid royalty to the foreign entities in consideration thereof - CBEC Circular No.80/2004-ST dated 17/09/2004 - Held that - No evidence has been adduced by the department to show that such trademarks, know-how, etc. supplied by their foreign collaborators have been registered in India. Therefore, in view of the clarifications issued by CBEC vide circular, services received by the appellants cannot be held to be intellectual property right service. As the said IPRs supplied by the foreign collaborators of the appellant are not registered in India, the technical know-how , etc. supplied by the foreign collaborators to the appellants do not fall under the category of Intellectual Property Right service thereby liable to pay service tax under Intellectual Property Right service in terms of Finance Act, 1994 - appeal allowed - decided in favor of appellant.

Issues:
- Liability to pay service tax on royalties under "Intellectual Property" service
- Classification of technical information received as goods or services
- Recognition of intellectual property rights under Indian law for service tax
- Taxability of transfer of right to use intellectual property
- Time bar on issuance of show-cause notice

Liability to pay service tax on royalties under "Intellectual Property" service:
The case involved the appellants, manufacturers of excisable goods, who entered into agreements with foreign entities for technical know-how, paying royalties. The department claimed service tax on these royalties under "Intellectual Property" service. The appellants argued that the technical information received constituted goods, not services, citing relevant legal provisions and court decisions. The appellate tribunal found no evidence of the trademarks or know-how being registered in India, concluding that the appellants were not liable to pay service tax under "Intellectual Property" service.

Classification of technical information received as goods or services:
The appellants contended that the technical information received from foreign collaborators should be classified as goods, not services, as it was physically delivered in the form of booklets. They argued that no service tax could be demanded on the supply of goods. The tribunal examined the definition of "intellectual property service" and relevant legal provisions, ultimately ruling that the technical know-how supplied did not fall under the category of "Intellectual Property Right" service, thus not liable for service tax.

Recognition of intellectual property rights under Indian law for service tax:
The appellants argued that intellectual property rights not recognized under Indian law were not taxable as intellectual property service. They cited circulars and legal precedents to support their claim. The tribunal found that since the intellectual property rights supplied were not registered in India, the technical know-how did not qualify as "Intellectual Property Right" service, hence not subject to service tax.

Taxability of transfer of right to use intellectual property:
The appellants further contended that even if the technology was patented in India, no service tax could be demanded on the transfer of the right to use such intellectual property. They referenced specific legal provisions and court decisions to support their argument. The tribunal concluded that the technical know-how supplied by foreign collaborators did not fall under the category of "Intellectual Property Right" service, absolving the appellants from paying service tax.

Time bar on issuance of show-cause notice:
The appellants also raised the issue of the show-cause notice being time-barred. They argued that if they paid service tax on the royalties, it would have been available as a credit, making the case revenue neutral. The tribunal did not delve deeply into this issue as the main focus was on the classification of the technical information received and the liability for service tax.

In conclusion, the appellate tribunal allowed the appeal, ruling in favor of the appellants based on the findings related to the classification of the technical know-how received and the absence of evidence of intellectual property rights being registered in India, thereby negating the liability to pay service tax under the "Intellectual Property" service.

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