2018 (12) TMI 501 - AT - Service Tax

Classification of Service - Intellectual Property Service or not - appellant had received technical designs and drawings of locks from two foreign companies - Held that - Only in a case where property rights is temporarily transferred on even for use on a temporary basis, can only be classified under the Intellectual Property Rights Services in the Finance Act, 1994 - In the present case, there is a claim of the appellant that there is transaction of outright sale of drawing. In support, he submitted certificate from the foreign supplier. However, the said certificates were not produced before the lower authorities. Therefore, the matter needs to be reconsidered for the period prior to 18.04.2006 - matter on remand. Demand pertaining to period from 16/03/2005 to 18/04/2006 - Held that - It is settled that service tax on reverse charge mechanism can be levied only with effect from 18/04/2006 when section 66A was enacted - Therefore, the demand for the period 16/03/2005 to 18/04/2006 is set aside. Appeal allowed by way of remand.

Summary

Issues:
1. Whether the supply of technical designs and drawings constitutes Intellectual Property Service liable to service tax?
2. Whether the demand for service tax for the period prior to 18/04/2006 is sustainable?
3. Whether the drawings and designs were outrightly purchased by the appellant, falling outside the definition of Intellectual Property Right Service?
4. Whether the certificates provided by the foreign supplier supporting the claim of outright sale were produced before the lower authorities?

Analysis:

Issue 1:
The case revolved around the appellant receiving technical designs and drawings from foreign companies in China and Hongkong, leading to a demand for service tax by the department. The appellant contended that the drawings were outrightly purchased and did not fall under Intellectual Property Right Service. The Tribunal noted that Intellectual Property Rights Services involve temporary transfer or use of property rights, which was not proven in this case due to lack of evidence regarding outright sale. The matter was remanded for further consideration.

Issue 2:
Regarding the demand for service tax prior to 18/04/2006, the Tribunal referred to the enactment of section 66A for Service Tax on Reverse Charge basis. Citing the Supreme Court's ruling in a related case, it was established that service tax under reverse charge could only be levied from 18/04/2006 onwards. Consequently, the demand for the period preceding this date was set aside.

Issue 3:
The appellant argued that the drawings and designs were outrightly purchased, not constituting Intellectual Property Right Service. The Tribunal acknowledged the appellant's claim but highlighted the absence of the certificates supporting the outright sale before the lower authorities. The matter was remanded for a fresh order considering the claim of outright sale.

Issue 4:
The certificates from the foreign supplier, crucial in establishing the outright sale of drawings, were not presented before the lower authorities. Despite the appellant's submission of these certificates, their absence in the lower proceedings prompted the Tribunal to remand the case for further examination.

In conclusion, the Tribunal set aside the demand for service tax for the period before 18/04/2006 due to the enactment of section 66A for reverse charge mechanism. The case was remanded for reevaluation regarding the outright sale of drawings and the applicability of Intellectual Property Right Service, emphasizing the importance of providing all relevant documentation during proceedings.