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TMI Blog2025 (3) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, it is not necessary that "Brand name" should be compulsorily registered - it is found that the definition of service under 'IPR' excludes copyrights and as the 'ttk' logo is registered under the copyrights act, service tax demand is questionable.
The issue is settled in favor of the Appellant by this Tribunal's earlier decision involving the same Appellant for an earlier period following the decision of the Hon'ble Supreme Court in M/s. Astra Pharmaceuticals [1994 (12) TMI 77 - SUPREME COURT] where it was held that the Dextrose injections manufactured by the appellant were not patent and proprietary medicines subject to duty under Tariff Item 14E.
Conclusion - "Intellectual property right" under Section 65(55a) excludes copyrights, and the "ttk" logo's registration under the Copyright Act exempts it from service tax under IPR services.
The impugned order set aside - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... so to Section 73(1) of the Act, alleging suppression of facts. As a result, a penalty under Section 78 has also been proposed in the said notice in addition to a penalty under Section 76. The original notice on the same issue was vide SCN No.56/2008 dated 14.03.2008 invoking extended period and the same was adjudicated vide Order-in-Original No. 16/2009 dated 15.05.2009. 2.2 The Ld. Adjudicating Authority vide Order-in- Original No. 02-08/2014-15 dated 27.02.2015 have confirmed the demands proposed in the SCN/SOD and imposed penalties under Section 76/78. Being aggrieved, the Appellant is on appeal before this forum. 3. The main contentions of the Appellant specified in the Grounds of Appeal have been summarized below : - i. It was averred that the logo "ttk" could not be construed as a trademark as each of their products were separately registered trademarks with the letters 'TM' marked next to them which cannot be confused with the "ttk" logo which is a part of the information in relation to the product manufacturer/ producer. Further, it was submitted that the said logo being affixed on the product only provided relevant information to the consumer and cannot be treated as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legation of suppression was a baseless one which the department was hard pressed to substantiate and therefore liable to be set aside. 4. The Ld. Counsel Ms. G. Vardini Karthi representing the Appellant reiterated the grounds of appeal and pointed out that the issue is no longer res integra as the Tribunal had on the same issue for earlier period vide Final Order No. 43276/2017 dated 13.12.2017 decided the matter in favor of the Appellant. It was therefore prayed for setting aside the impugned order. 5. The Ld. Authorized Representative Ms. O.M. Reena representing the Department reiterated the findings of the lower Adjudicating Authority and submitted that the logo TTK owned by the Appellant was in fact a trade mark used in the normal course of the business by the group companies of the Appellant and therefore the consideration received as Royalty payment for such usage was liable for payment of service tax under IPR service in as much as the transfer of the permission to use the logo which is a trademark would fall under IPR services.. Therefore, it was submitted that the demand was sustainable and prayed for dismissal of the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided in the present appeal is not covered by the decision and hence will not find any support to the cause of the department. 10. We find that the issue is settled in favor of the Appellant by this Tribunal's earlier decision involving the same Appellant for an earlier period following the decision of the Hon'ble Supreme Court in M/s. Astra Pharmaceuticals cited supra and the relevant extracts of this Tribunal's earlier Final Order No. 43276/2017 dated 13.12.2017 has been reproduced below: - " 5.1 For better appreciation the relevant provisions are noticed as under:- "Section 65(55a) "Intellectual property right" means any right to intangible property, namely, trademarks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright: Section 65(55b) "Intellectual property service" means, - (a) Transferring (temporarily), or (b) Permitting the use or enjoyment of, any intellectual property right. Section 65(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." The ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the acts specified in clause (a); (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme; Provided that such commercial rental does not apply in respect of computer programme where the programme itself is not the essential object of the rental. (c) In the case of an artistic work, (i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work; (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already incirculation; (iv) to include the work in any cinematograph film: (v) to make any adaptation of the work; (vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub- clauses (1) to (iv); (d) in the case of a cinematograph film, - (i) to make a copy of the film including a photograph of any image forming part thereof; (ii) to sell or give on hire or offer for sale or hire, any copy of the film. regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Trademark Act. The provisions of Copyright Act describe the situations of protection afforded to the copyright. This is different from the rights attached to a trademark. The logo being registered as a copyright, in case of infringement of the same, the right falls within the Copyright Act and would be enforceable by the appellants under the said Act only and not under the Trademark Act. The arguments put forward by the Ld. AR that the depiction of logo does not have any artistic value and therefore not a copyright doesn't find favour with us. The Certificate of Registration issued by the Copyright Office after complying with necessary procedure cannot be totally disregarded. It is not proper for this Tribunal to enter into a discussion, what is registered does not have any 'artistic value' and is merely letters calligraphed in a particular manner etc. The Certificate is issued by a Competent Authority to issue the same. 5.4 In the case of ESPN Software India Pvt. Ltd. (supra), the Tribunal had occasion to analyse the dispute relating to cartoon characters. The assesse therein contended that these cartoon characters are artistic work and covered under copyright. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these characters fall within the definition of artistic work in Section 2(c) of the Copyright Act are hence excluded from the definition of Intellectual Property. The demand confirmed is therefore unsustainable," 5.5 The appellants have also argued that they have discharged VAT on the entire royalty income. VAT and service tax being merely exclusive a further demand on the royalty income is not sustainable. The Hon'ble Apex Court in the case of IMAGIC Creative Pvt. Ltd. (supra), had categorically held that payment of service tax and VAT are mutually exclusive. In the case of Astra Pharmaceuticals Pvt. Ltd. Vs. CCE, Chandigarh 1995 (75) ELT 214 (S.C.), the Hon'ble Apex court analyzed the meaning, scope and distinction between the house mark and product mark. The Hon'ble Apex Court has held that house mark/ product mark cannot be equated to that of a trademark. In para-6 of the judgment, the Hon'ble Apex Court observed as under:- "6. As has been explained earlier the first part of the Explanation widens the ambit of the entry by extending it to any drug or medicinal preparation for use in internal or external administration for prevention of ailments in human bein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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