2008 (1) TMI 99 - AT - Service Tax

As per Cir. 10/04, the transfer of Intellectual Property rights doesn t amount to rendering service - in this case, there is no evidence on record to show that assessee had paid for technical assistance, as per the agreement, the same is optional - In absence of such evidence, we find no merit in the contention of revenue Order of comm.(A) that agreement in question is in respect of transfer of Intellectual property service & is not for providing service as consulting engineer, is justified

Summary

Issues:
1. Whether the agreement in question pertains to the transfer of Intellectual property service or the service of a consulting engineer.
2. Determination of the nature of services provided under the agreement based on the terms and conditions.
3. Interpretation of the payment clause and its relationship to the services rendered.
4. Analysis of the optional nature of technical assistance provision in the agreement.
5. Application of relevant legal precedents and circulars in deciding the taxability of services provided.

Analysis:
1. The Revenue contended that the agreement involved the service of a consulting engineer, while the Respondent argued that it pertained to the transfer of intellectual property service. The Commissioner (Appeals) supported the Respondent's position based on a Board Circular and tribunal decisions.

2. The Revenue relied on the terms of the agreement dated 18th March 1999 to argue that technical assistance services were provided, thus constituting service as a consulting engineer. However, the Respondent highlighted the optional nature of technical assistance provision and emphasized that payments were for intellectual property transfer, not technical assistance.

3. The payment clause required the licensee to pay a specific sum, indicating a fee for the transfer of intellectual property. The absence of evidence showing payments for technical assistance supported the Respondent's position that the agreement primarily involved the transfer of intellectual property rights.

4. The Tribunal noted that the technical assistance clause in the agreement was optional and contingent on the Respondent's request. Since there was no evidence of the Respondent requesting or paying for technical assistance, the Tribunal dismissed the Revenue's contention regarding the nature of services provided.

5. In line with the Board Circular stating that the transfer of intellectual property rights does not constitute a service, the Tribunal found no merit in the Revenue's argument. Citing a precedent, the Tribunal clarified that only payments related to technical assistance, not intellectual property transfer, were subject to service tax. As the agreement did not involve payments for technical assistance, the appeal was dismissed.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, the interpretation of the agreement terms, and the application of legal precedents and circulars in reaching the decision.