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TMI Blog2018 (5) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of any allegation or evidence that the intellectual property right of the supplier of these services to the appellant is recognised under the intellectual property laws of India, the demand against the appellant will not sustain - Appeal allowed - decided in favor of appellant. - APPEAL NO: ST/89753/2014 - A/86255/2018 - Dated:- 2-5-2018 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri N Anand, Advocate for appellant Shri M Suresh, Deputy Commissioner (AR) for the respondent Per: C J Mathew M/S Ghodawat Energy Pvt Ltd challenges order-in-original no. KLH-EXCUS-000-COM-001-14-15 dated 16th May 2014 of Commissioner of Central Excise, Kolhapur which has confirmed demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not liable to service tax. 4. Heard Learned Authorised Representative. 5. It is seen that the liability to service tax is sought to be fastened on appellant as recipient of 'intellectual property service' taxable under section 65(105)(zzr) when rendered to 'to any person by the holder of intellectual property right, in relation to the intellectual properly service There is no doubt that the appellant is a person and as supplier of the technology related to software, their overseas provider is the holder of the intellectual property right. The service to be taxable is found within section 65(55b) of Finance Act, 1994 which defines 'intellectual property service' as 'transferring temporarily or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider must be the holder of the intellectual property right which is one that is enforceable against all others, and not just against the recipient of the service. 6. The enforceability of the right vis-a-vis the recipient is protected by the law of contract for the limited purpose that the statute has been legislated for. That enforceability does not subsist against any other entity in the absence of registration under the patent, trademark or design protection laws of the country. It is the contention of the appellant that such proprietory rights do not vest in them and Revenue has not been able to show that it does. Accordingly, the right that is transferred is the technical know-how which may be a service but is not in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual Property Right not covered by the Indian laws would not be covered under taxable service in the category of Intellectual Property Right Services. We are fortified in our view by Board Circular F. No. 80/10/2004-S.T., dated 17-9-2004 which clarified that Intellectual Property emerges from application of intellect, which may be in the form of an invention, design, product, process, technology, book, goodwill, etc. In India, legislations are made in respect of certain Intellectual Property Rights (i.e. IPRs) such as patents, copyrights, trademarks and designs. The definition of taxable service includes only such IPRs (except copyright) that are prescribed under law for the time being in force. As the phrase law for the time being in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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