9911796707
Advanced Search 
TMI Blog2012 (11) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... ls Company, Thane, is registered with the Service Tax department under the category of Goods Transportation Agency (GTA), Business Auxiliary Services (BAS), Technical Testing and Inspection and Certification Services. During the course of audit of the records of the company, it was found that the appellant had made payments to the tune of Rs. 13,13,81,499/- to Mancozeb European Consortium, USA, during the period 2005-2006 to 2009-2010 as "access fee" to obtain data in respect of their products to Mancozeb European Consortium. Initially vide letter dated 21/1/2008 the jurisdictional Superintendent had demanded service tax of Rs. 1.01 crore (approximately) under the head of BAS in respect of the said access fees. The appellant replied thereto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period from 2005-2006 to 2009-2010 proposing to classify the services under "Intellectual Property Service" and directing the appellant to make payment of service tax under "reverse charge mechanism" under Section 66A of the Finance Act, 1994. The show-cause notice was adjudicated vide the impugned order wherein a demand of service tax to the extent of Rs. 36,03,682/- was confirmed for the period 2008-2009 to 2009-2010 under Section 73 of the Finance Act, 1994 classifying the service received by them under the category of "intellectual property right services" along with interest thereon under Section 75 of the Finance Act, 1994 and by imposing an equivalent amount of penalty imposed on the appellant under Section 78 ibid and a penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide data about the product mancozeb. Since the said data was already available with the Mancozeb European Consortium, they procured the data from the said consortium for obtaining registration in the European union. The said data, relates to the biological impact of the product on the environment and it has nothing to do with the intellectual property right in respect of which there is an applicable law in India. Therefore, the order passed by the adjudicating authority is untenable in law. He also relies on Board's Circular No.80/10/04-ST dated 17/09/2004, which was issued at the time of enactment of Finance Bill 2004 with effect from 10/09/2004, under which the intellectual property services were brought under the service tax net fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004). 3.2 From the above, it is clear that only IPR in respect of which there are laws in India, service tax is leviable and for this purpose the department has to show that the service which they received falls under a category of IPR as defined. In view of the above, he prays for grant of stay and also setting aside of the order. 4. The ld. AR appearing for the Revenue on the other hand submits that as per clause (55A) of Section 65 of the Finance Act, 1994 "intellectual property rights means any right to intangible property, namely, trademarks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright. It is his contention that since the information obtained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d period was not warranted in the instant case and accordingly, the demand confirmed in the impugned order for the extended period is not sustainable in law. Thus, only the demand for the period October 2009 to March 2010 and 2009-2010 can be considered to be within the normal period. 5.3 Even for the normal period to confirm the demand, as clarified by the Board, the revenue has to categorize intellectual property right first and mere should be a law relating to such intellectual property right in India at the time of receipt of service. Only, if it can be shown that intellectual property received by the appellant is governed by a law relating to the IPR in India, can the demand be sustained. From the impugned order it seems no such effor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
