2018 (2) TMI 149 - AT - Service Tax

Intellectual Property Service - reverse charge mechanism - case of appellant is that Since recognition by Indian law is a pre-requisite to tax under IPR service, the appellants are not liable to pay service tax - Held that - In the present case, the IPR is not registered for enforcement under any law including Trade Mark Act in India. This is an admitted fact. IPR now under consideration can be construed to be recognized by the Indian Law, if he satisfies the requirement of IPR as per law. Registration is not a requirement - the appellant cannot be held liable for service tax under IPR - appeal allowed.

Summary

Issues:
1. Service tax liability on consideration under "Intellectual Property Services" (IPS).
2. Recognition of Intellectual Property Rights (IPR) under Indian law.
3. Applicability of reverse charge mechanism under IPR service.

Analysis:
1. The appellant, engaged in the process of umbilical cord blood and stem cell preservation, entered into a Technology Transfer Agreement with a U.S. company. The dispute arose regarding the service tax liability on the consideration paid for the technology transfer under the category of "Intellectual Property Services" (IPS). The original authority imposed a substantial tax liability and penalty on the appellant under Section 78 of the Finance Act, 1994.

2. The appellant contended that since the Intellectual Property Rights (IPR) were not registered in India, they should not be liable to pay service tax. The appellant's counsel argued that the IPR must be recognized by Indian law for taxation under IPR services. Additionally, it was highlighted that the technology transfer occurred before the introduction of the tax entry, making the appellant not liable to pay service tax on consideration received post that date.

3. The Revenue Authority, on the other hand, argued that the Trade Marks Act, 1999, recognizes unregistered trademarks, and the technical know-how associated with a specific person was provided to the appellant. They asserted that the appellant had permission to use a trademark linked with the technical know-how, supporting the original authority's decision.

4. The Tribunal analyzed the case and referred to previous decisions, emphasizing that for liability under IPR service on a reverse charge basis, the IPR must be recognized by Indian law. It was noted that registration was not a prerequisite, and the IPR should satisfy the requirements of Indian law. The Tribunal cited a circular clarifying that IPRs covered under Indian law alone are chargeable to service tax. Relying on consistent views in previous decisions, the Tribunal ruled in favor of the appellant, setting aside the impugned order and allowing the appeal with consequential relief.

In conclusion, the Tribunal's judgment clarified the criteria for service tax liability under IPR services, emphasizing the need for recognition under Indian law without mandatory registration. The decision provided relief to the appellant based on the legal interpretation and precedents cited during the proceedings.