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TMI Blog2023 (3) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... fore relying on the decision of M/S. MUNJAL SHOWA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, DELHI (GURGAON) AND (VICE-VERSA) [ 2017 (6) TMI 819 - CESTAT CHANDIGARH ] it is held that the amount paid by the Respondent as royalty or licence fee is not taxable in India. There are no infirmity in the impugned order. Therefore the same is upheld and Appeal filed by the Revenue is dismissed. - Service Tax Appeal No.264 of 2011 - FINAL ORDER NO. 75113/2023 - Dated:- 13-3-2023 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND SHRI RAJEEV TANDON, MEMBER (TECHNICAL) Shri J. Chattopadhyya, Authorized Representative for the Revenue Shri Arvind Baheti, Chartered Accountant for the Respondent (s) ORDER Revenue is in Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not registered in India in any law for the time being in force. The similar issue has been dealt by this Tribunal in the case of Munjal Showa Ltd. v. Commissioner of C.Ex. S.T., Delhi (Gurgaon) [2017 (5) G.S.T.L. 145 (Tri.-Chan.)], wherein the facts are as under:- 2 . The facts of the case are that assessee-appellant is registered with the service tax department under the category of GTA/IPR/Consulting Engineering services and paying service tax thereon and they are also engaged in the manufacturing of struts, shock absorbers, front forks, gas spring window balancers, etc., M/s. Showa Corporation, Japan entered into a contract with the appellant-assessee on 11-3-2002, in which the Industrial Property Right i.e. Patent, Utility mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (105)(zzr) taxable service means any service provided or to be provided to any person, by the holder of intellectual property right, in relation to intellectual property service. 7 . On going through the said provisions of the Act, we find that, to tax under service tax, under Intellectual Property Rights, such rights should be registered with Trademark/Patent authorities. It is a fact on record that such trade mark is not registered in India. Moreover, the C.B.E. C. Circular dated 17-9-2004 relied upon by the ld. AR is having no help to the Revenue as it has been clarified that the taxable service include only such Intellectual Property Rights except Copyright that are prescribed under the law for the time being in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxable service means any service provided or to be provided to any person by the holder of intellectual property right, in relation to intellectual property service; Section 65(55a) of the Act defines Intellectual Property Right to mean as under : Intellectual Property Right means any right to intangible property, namely, trade marks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright 6. The IPR as defined should be a right under any law for the time being in force. The legal position on this issue has been examined by various decisions of the Tribunal which are as under : (a) Rochem Separation Systems (India) Private Limited v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot invocable and the demand is not sustainable. We also take note of the fact that the agreement is dated 11-3-2002 whereas the levy of tax under IPR service has come into force on 10-9-2004. As the agreement is executed on 11-3-2002, prior to introduction of IPR Service, the demand of service tax is not sustainable in the light of the decision of this Tribunal in the case of Reliance Industries Limited - 2016-TIOL-1654-CESTAT-MUMBAI = 2016 (44) S.T.R. 82 (Tri.-Mum.), wherein this Tribunal observed as under :- Insofar as the agreement with Investa Technologies S.A.R.L. is concerned the same was entered into 14-4-2004, prior to IPR services being brought into the net of service tax with effect from 10-9-2004. The service tax itself ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal filed by the Revenue is dismissed and the appeals filed by the appellant-assessee are allowed with consequential relief (if any). 6. As it is an admitted fact that the trade mark and patent rights were not registered in India, which have been obtained by the Respondent for use in India from their foreign principal therefore the said rights were not governed by any law for the time being in force. Therefore relying on the decision of Munjal Showa Ltd. (supra) we hold that the amount paid by the Respondent as royalty or licence fee is not taxable in India. In that circumstances we do not find any infirmity in the impugned order. Therefore the same is upheld and Appeal filed by the Revenue is dismissed. (Operative part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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