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TMI Blog2015 (9) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of Notification No. 12/2003-S.T. has also not been extended and prima facie the reasons, therefor, have also not been clearly brought out. - As regards the demand under Intellectual Property Rights Services, it is seen that the right to fabricate products was transferred on November 1, 2002 when the said service was not liable to tax. Merely because the payment for that transfer continued even during the period when that services became liable to tax does not negate the fact that the taxable event was the transfer of rights which took place during the time when the service was non-taxable. Regarding the impugned demand relating to management, maintenance or repair service the appellants have prima facie made out a good case tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales promotion and marketing services to UOP LLC (and other overseas companies) 1,56,606,912 Charges paid to the Company s overseas entities in respect of maintenance of software 1,011,943 2. As regards the demand under ECIS, the appellants contended that there are 38 agreements/contracts under which the services were rendered but the adjudicating authority looked at only 5 of them and presuming the remaining to be similar, totalled of the entire value of all the 38 contracts and charged service tax thereon. They stated that even in respect of the 5 contracts which were perused by the adjudicating authority, they had rebutted the charge that they provided ECIS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andigarh - 2012-TIOL-1877-CESTAT-Del = 2013 (29) S.T.R. 257 (Tri.-Del.) in view of which the impugned services would be deemed to be exported and hence, not liable to service tax. Regarding the royalty income pertaining to licensing of technical information/know-how, which has been covered under Intellectual Property Right Service, the appellants contended that the agreement was on and effective from 1st November, 2002 and in terms of that agreement, the right to fabricate product for sale by the appellants were granted and at that point of time the said service was not taxable service. They referred to the judgment in the case of Modi-Mundipharma Pvt. Ltd. v. CCE, Meerut - 2009 (15) S.T.R. 713 (Tri.-Del.) to support their contention that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the supply of goods. As regards the contention of the ld. AR that in some invoices sales-tax was not indicated, it is pertinent to mention that whether the transaction involved sale is to be determined on the basis of the nature of the transaction and not whether the sales-tax has been paid thereon or not. In other words,, merely because somebody evaded sales-tax, it would not mean that the transaction would not be a sale, even if, it satisfied the definition of sale. We find from the adjudication order that even in respect of the 5 contracts, which have been specifically mentioned therein the adjudicating authority has prima facie not adverted to and dealt with the contentions of the appellants that they did not constitute ECIS as is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. Further, it is not disputed that the appellant was manufacturing and selling products in the brand names, Pyricontin, Diacontin, Fecontin, Metocontin, Morcontin, Nitrocontin, and Unicontin which are claimed to be registered brand names of the appellant-company. In other words, they are not using the brand name of Mundipharma A.G. Switzerland. Receipt of know-how appears to be a one time affair. There is no evidence that their know-how is supplemented by Mundipharma A.G. Switzerland. Therefore, we are in agreement with the submissions on behalf of the appellant that royalty payment in the form of deferred payment for know-how received in 1990. Whether payment for such services rendered is made in one lump sum or made in instalments or ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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