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TMI Blog2023 (11) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... hts, such rights should be registered with Trademark/ Patent authorities - the said decision has been held in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX DELHI VERSUS MUNJAL SHOWA LTD [ 2023 (8) TMI 544 - SC ORDER ]. From the above decision of Tribunal, upheld by the Hon ble Apex Court, it is apparent that only in cases where the technology is protected by some law of India then it can be charged under the head of Intellectual Property Service - In the instant case, the technology has been imported from abroad and no evidence of any protection under any law for the time being in force in India has been produced by Revenue. In these circumstances, no demand can be made under the head of Intellectual Property Service . There are no merit in the order, the same is set aside - appeal allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. RAJU Shri Hardik Modh, Advocate appeared for the Appellant Shri R.R. Kurup, Superintendent (Authorized Representative) for the Respondent ORDER RAJU This appeal has been filed by Intas Pharmaceuticals Limited against demand of service tax on reverse charge basis in respect of Technology Transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he patent/ technologies transfer to the appellant were not registered in India. He pointed out that prior to the introduction of negative list of Services w.e.f. 01.07.2012 only the Intellectual Property Right covered under the Indian Law was chargeable to Service Tax. He relied on the clarification issued vide F.No. B2/8/2005-TRU dated 10.09.2004 to assert that only the rights which reads as under:- 9. Intellectual property services (other than copyrights) : 9.1 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 force implies such laws as are applicable in India, IPRs covered under Indian law in force at present alone are chargeable to service tax and IPRs like integrated circuits or undisclosed information (not covered by Indian law) would not be covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of intellectual property right, in relation to intellectual property service. In this regard when the service was made chargeable to Service Tax, the following clarification was issued vide Circular No. 80/10/2004-ST dated 17.09.2004. 9. Intellectual property services (other than copyrights): 9.1 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 force' implies such laws as are applicable in India, IPRS covered under Indian law in force at present alone are chargeable to service tax and IPRS like integrated circuits or undisclosed information (not covered by Indian law) would not be covered under taxable services. The term under any law for the time being in force appearing in Section 65(55a) implies that the Intellectual Property Right should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Limited (supra), wherein this Tribunal has observed as under :- 5. We have heard both sides and examined the appeal records. The only point for decision is that whether or not the appellant received taxable service under the category of Intellectual Property Right service during the relevant period. The admitted facts of the case are that the technical know-how, engineering design licence involved in these agreements with foreign service providers are not registered in India under Indian law. However, the original authority held that registration of IPR under Indian law is only for obtaining protection from its infringement. He observed that the levy of tax is not dependent on the fact of such registration. We find that such conclusion is not legally tenable and is beyond the scope of taxable service as defined in Finance Act, 1994 : Section 65(105)(zzr) of the Act defines in the taxable IPR service tax as under : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 having been rendered prior to the introduction of the levy, the mere fact that payments for the same were made on a staggered basis over a period of time cannot be ground for levying service tax merely with reference to the date on which payments were being made. We find that during the relevant period the issue as to whether a transaction is leviable to service tax and if so at what rate was required to be reckoned with reference to the date when the service was rendered and not with reference to the date on which payment is made. The law in this regard is settled by the decision of the CESTAT reported in 2008 (10) S.T.R. 243 = 2008-TIOL-283-CESTAT-AHM which was affirmed by the Hon ble Gujarat High Court in the appellant s own case reported in 2010 (19) S.T.R. 807 as also by the Hon ble Delhi High Court in the case of CCE v. Consulting Engineering Services India (P) Limited - 2013 (30) S.T.R. 586. As the service in the case of Investa Technologies S.A.R.L. was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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