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TMI Blog2019 (1) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... ems service to have been brought within India when the recipient is located in India. It is, thus, amply clear that this is a residuary clubbing that does not specify the specific services. At the same time, it cannot be ignored that the said Rules are notified, inter alia, in exercise of powers under section 93 of Finance Act, 1994 which enables the Central Government to exempt taxable services from the levy. Consequently, such of those transactions that are not amenable to inclusion as provision of services from outside to India are to be considered as exempt. In the decision, in re Catapro Technologies Ltd, [2016 (12) TMI 100 - CESTAT MUMBAI], the essentiality of coverage under the Indian laws for 'intellectual property' to be acknowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had, under protest, remitted an amount of ₹ 51,37,333/- under protest on the royalty paid by then which was appropriated in the adjudication order. We have heard Learned Counsel for appellant and the Learned Authorized Representative at length. 3. The primary contention of the appellant is that the definition of the taxable service in section 65(55a) and section 65 (55b) of Finance Act, 1994 restricts the scope of the levy to such intellectual property rights are enforceable by the laws in India which was enunciated by the Central Board of Excise & Customs in circular no. 18/10/2004-ST dated 17th September 2004 though withdrawn later vide circular no. 16/7/2007 dated 23rd August 2007. Furthermore, it is seen that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relation to intellectual property service which pertains to intellectual property rights. 5. It would appear that the lower authority had resolved the adjudication against the assessee by applying the provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;intellectual property' and its enforceability in the present dispute does not find a place in the records commencing with the show cause notice. Though the statute can, and does, deem the recipient to be the provider, there is no provision that deems the recipient to be the possessor of the intellectual property which, unlike the other services in the omnibus provision, is determined by the laws governing intellectual property - a strictly legal acknowledgement that cannot be disaggregated from the definition of a taxable service. Furthermore, to deem the deemed possessor of the 'intellectual property' to be in temporary possession even though the deeming as 'provider' would go hand-in-hand with permanent possession a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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