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TMI Blog2015 (6) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... pped demand of Rs. 64,41,366/-; ordered recovery of interest under Section 75 of the Finance Act, 1994; and imposed penalties under Sections 76, 77 and 78 of the Act. Proceedings were initiated against the assessee on assumption by Revenue that during 10-09-2004 to 31-03-2007, assessee had remitted royalty of Rs. 10,21,23,166/- to M/s. Musashi Seimitsu Industry Company Ltd., Japan for providing technical know-how for its products to the assessee; but had failed to obtain registration as and Intellectual Property Service (IPS) Provider; failed to file returns and to remit service tax for the taxable service covered by the provisions of Section 65 (105) (zzr) of the Act as defined in Section 65 (55a) and (55b). 2.In its response to the Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law is no part of the definitional requirement. The definition clearly and unambiguously enjoins that to constitute the Intellectual Property Rights there should be a right to intangible property, namely, trade marks, designs, patents or any other similar intangible property, under any law for the time being in force, but excluding the copy right. What criterion would satisfy intangible property, to constitute the right to such property under any law for the time being in force, is an analysis that is inevitable and a condition precedent, for visiting the assessee with the liability to remit service tax, under the provisions of the Act. 3.As the adjudicating order rescinds no reasons nor indicates any process of analysis on this vital iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 65 (105) (zzr) read with the definition of Intellectual Property Rights in section 65 (55 a), has not been considered by the adjudicating authority. we are of the considered view that it is appropriate to remit the matter for consideration afresh and grant liberty to the assessee to raise any other issue as well before the adjudicating authority including as to whether the provisions of Section 65 (105) (zzr) are applicable to the assessee's transactions, since the payment of royalties event though subsequent were pursuant to an agreement which was earlier to introduction of the taxable service. The assessee shall file a Memorandum of Written Submissions within 3 weeks from today before the adjudicating authority on this aspect but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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