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TMI Blog2017 (7) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... d was confirmed, the Commissioner (Appeals) upheld the same. 2. At the outset, Shri Prashant Patankar, Ld. Consultant appearing on behalf of the appellant, submits that in the appellant's own case on the identical issue, the Jurisdictional Commissioner had confirmed the demand of service tax vide order No.P-I/COMMR/ST/28/2011 dt. 24.10.2011 which was appealed against by the appellant before the Tribunal the Tribunal allowed the appeal No.ST/60/12 vide order No.A/3929/15/STB dt. 17.12.2015. He submits that in the present case and the case decided by the Tribunal the issue is identical. Even the original order of the present case and the original order passed by the Commissioner which was impugned order in the aforesaid Tribunal's or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lndia a non-exclusive, non-transferable license to use the software Products provided hereunder and related documentation solely for Flndia's own use. Flndia will not sell, transfer, disclose, or otherwise make available any software Product or copies thereof to others. No title to or ownership of the software Products or any portion thereof is transferred to Findia. The license granted therein shall terminate when this Intercompany Agreement terminates and Flndia agrees, upon termination, to immediately return or, at Fl's option, destroy the software Products and all portions and copies thereof. However the products offered on the license to the customers will remain in the operation till the license period is over even after the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this section shall apply to the Products as delivered by FI or as modified or enhanced by either party and to any material and information regarding the Products which has been given to Flndia prior to the date of this Agreement and shall survive expiration or termination of this Agreement or any license created hareunder. Product Masters: FI will supply one master copy of each Product covered in this Agreement The master copy will be in a form suitable for use by FIndia to generate copies for sale and demonstration of the Product. SCHEDULE B Royalty and payment thereof FINDLA shall pay FI for Products covered by this Agreement (see Schedule A) in the form of royalty, at the rate of 40% of the FINDIA software revenues. FI and Flndia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (55b) "intellectual property service" means, - (a) transferring temporarily; or (b) permitting the use or enjoyment of, any intellectual property right; Undisputedly, in terms of Section 66A, when a service is provided from outside India and received by a person in India, the recipient shall treated as the service provider and be liable to pay service tax. The question which arises is whether a taxable service has been provided by the appellant which the Commissioner holds to be intellectual property right service. 5. The learned Advocate contended that with effect from 16/05/2008, their service is covered under "Information Technology Service" which was introduced from 16/05/2008 and they have paid tax thereon from that dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar intangible property under any law. The word, "namely" in the definition qualifies the above rights to show that it restricts the scope to specific intellectual property rights that are covered by specific statutes/ laws, 5.2 The learned Advocate has referred to Black's Law Dictionary of English as well as Cambridge International Dictionary of English to show that the word "namely" refers to specific matters. In our view it is not even necessary to refer to the dictionary for understanding the word "namely". We see that, apart from three specific property rights, i.e., trade marks, designs and patents, the last category is any property under any law. It does not require much intelligence to appreciate that the intellectual property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. There is absolutely no indication of any transfer of intellectual property right on a plain reading of the Agreement. Neither do we find any hidden or deeper meaning in the Agreement which would indicate transfer of intellectual property right. 7. In view of the above, the demand of service tax is set aside. Consequently, the question of imposition of penalties does not arise. 8. Impugned order is set aside. Appeal is allowed with consequential relief, if any, in accordance with law." On going through the above findings, we find that the Tribunal has analyzed entire issue in detail and came to conclusion that the royalty paid by the appellant to their holding company in USA towards the that receipt and use of software does not fall un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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