2009 (9) TMI 98 - AT - Service Tax

Appellants herein who are manufacturers had entered into a Manufacturing Licensing Agreement with M/s. Delta Controls Ltd., England on 24-3-1997 for the right to manufacture and sell the licenced products to its customers - Department was of the view that Delta Controls had provided technical assistance to the appellants and are therefore liable to service tax under the category of consulting engineer s service - I agree with the assessees that under the Manufacturing Licensing agreement no technical assistance is provided to them by M/s. Delta Controls Ltd. It is only a case of payment of running royalty to Delta Controls and the payment of royalty comes into service tax net only with effect from 10-9-2004 as intellectual property service . The period in dispute being prior to the above date, the demand and penalty cannot be sustained.

Summary

Issues:
Interpretation of Manufacturing Licensing Agreement for 'process control instruments'; Liability for service tax under 'consulting engineer's service' category; Applicability of royalty payment to Delta Controls under service tax net as 'intellectual property service' from a specific date.

Analysis:
The case involved manufacturers of 'process control instruments' who had a Manufacturing Licensing Agreement with a foreign company. The agreement provided technical know-how, information, and designs to the manufacturers in exchange for a royalty payment. The Department alleged that the foreign company's assistance made the manufacturers liable for service tax under the category of 'consulting engineer's service'. The adjudicating authority initially dropped the demand, but the Commissioner upheld it, leading to the appeal.

Upon careful examination of the Manufacturing Licensing Agreement, the Tribunal found that no technical assistance was provided by the foreign company to the manufacturers. The payment of royalty was deemed as running royalty and not technical assistance, bringing it under the service tax net as 'intellectual property service' only from a specific date. Since the disputed period predated this date, the demand and penalties imposed by the Commissioner were deemed unsustainable. Consequently, the Tribunal set aside the impugned order and allowed the appeal in favor of the manufacturers.

The judgment clarified that the mere payment of royalty did not constitute technical assistance, emphasizing the distinction between running royalty and intellectual property service for service tax purposes. This distinction was crucial in determining the liability of the manufacturers under the relevant tax provisions. The decision highlighted the importance of analyzing the nature of payments in licensing agreements to ascertain the applicability of service tax, especially concerning intellectual property services.