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TMI Blog2016 (10) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994 for the period from 10th September 2004 to 31st March 2007, with interest thereon and imposing penalties under sections 77 and 78 of Finance Act, 1994. 2. The appellant and M/s Qualcomm Inc USA, entered into three agreements for procuring software and software service, viz. BREW Operator Agreement dated 17th February 2004 for licence set-up, launch and maintenance of software, BREW Chat Agreement dated 27th May 2004 and Technical Service Agreement dated 2nd March 2007. The adjudicating authority did not accept the contention of the appellant that they are in receipt of 'information technology service' and held that the service rendered is that of 'intellectual property service' as it was technology that was transferred agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to tax only from 16th May 2008; that copyright being excluded from section 65(55a) of Finance Act, 1994 would render the activity in dispute to be outside the scope of 'intellectual property service'. Reliance was also placed on the decision of the Tribunal in Tata Consultancy Services Ltd. v. Commissioner of Service Tax, Mumbai [2016 (41) STR 121 (Tri.-Mumbai)] and the failure of the show cause notice to identify the specifics of 'technical knowhow' being transferred. 4. Learned Authorized Departmental Representative reiterated the contentions in the impugned order to justify the confirmation of demand and the imposition of penalties. 5. Demand of tax on the payments effected by appellant to 'service provider' from abroad for facil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act was amended and Section 66A was inserted by Finance Act, 2006 w.e.f. 18-4-2006, the Respondents got legal authority to levy service tax on the recipients of the taxable service. Now, because of the enactment of Section 66A, a person who is resident in India or business in India becomes liable to be levied service tax when he receives service outside India from a person who is non-resident or is from outside India. Before enactment of Section 66A it is apparent that there was no authority vested by law in the Respondents to levy service tax on a person who is resident in India, but who receives services outside India. In that case till Section 66A was enacted a person liable was the one who rendered the services. In other words, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll in the records as to which type of Intellectual Property Right is being assigned to the 'Technical know-how' received by the appellant. It is obvious from the definition of Intellectual Property Right that the right has to be a specific Right under a specific Law. Examples are given under the definition such as the Trade Mark which is a right provided under "Trade Marks Act". Similarly the right mentioned as 'design' in the definition is a right under the "Designs Act". Therefore we find that the technical know-how received by the appellant and the royalty payment made by the appellant to Unisys is nowhere established to result from the use of any Intellectual Property Right. 4.2 We may further go on to add that the Intellectual Propert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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