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Landmark Service Tax Judgment - Intellectual Property Services

Taxable Service : Intellectual Property Services

Case Laws Related

  • STO 2013 CESTAT 985
  • Intellectual Property Right Service: Since the issue as to whether the transfer of technology and know-how by the Japanese holding company to the assessee fulfils the requirements of Section 65 (105) (zzr) read with the definition of Intellectual Property Rights in section 65 (55 a), has not been considered by the adjudicating authority: Matter remanded.

  • STO 2013 CESTAT 984
  • Intellectual Property Right Service: Since the issue as to whether the transfer of technology and know-how by the Japanese holding company to the assessee fulfils the requirements of Section 65 (105) (zzr) read with the definition of Intellectual Property Rights in section 65 (55 a), has not been considered by the adjudicating authority: Matter remanded.

  • STO 2013 CESTAT 964
  • Intellectual Property Service: Demand: Stay: It appears that some of the technical information supplied by the appellant might come under the category of patent/trademark. However, it is for the department to conclusively establish which of the services received by the appellant falls under the IPRs for which a law exists in India: No such examination/analysis has been done either in the show-cause notice or in the adjudication order: Matter remanded.

  • STO 2013 CESTAT 478
  • Intellectual Property services: Undisputed use of brand name of foreign brand and payment in foreign currency: Directions issued for partial pre deposit. 

  • STO 2013 CESTAT 470
  • Supply of Manpower: Job work: Agreement clearly shows that it was for job work and not for manpower supply: Pre deposit fully waived. 

  • STO 2013 CESTAT 221
  • Intellectual Property Service: Demand: Stay: there does not seem to be any temporary transfer of intellectual property: Case made out for waiver.

  • STO 2013 CESTAT 531
  • Intellectual Property Right Service: Demand: Stay: Goodwill is assigned with the Trademark of the business concern.

  • STO 2012 CESTAT 1055
  • Intellectual Property Right: Demand: Stay: Transfer of know-how as per the Technical Agreement was not on one time basis but was on continual basis and was to be transmitted to enable the Applicant to manufacture the products on continual basis. In such circumstances, the principle of law laid down by this Tribunal in the case of Modi-Mundipharma Pvt. Ltd., not applicable: Directions issued for making partial pre deposit.

  • STO 2012 CESTAT 1053
  • Intellectual Property Right: Stay: While framing the charge against the applicant, the adjudicating authority has not specified specifically under which part of the Intellectual Property Right applicable in India the applicant is covered: Stay granted.

  • STO 2012 CESTAT 764
  • Intellectual Property Right: Contentions raised by the appellants not discussed by the authority in the impugned order: Matter remanded back.

  • STO 2012 CESTAT 656
  • Intellectual Property Right: Foreign company permitted use of brand name to the appellants: Argument of appellant that the said trade mark is not registered in India, hence, cannot be said to be transfer of IPR: Argument prima facie not acceptable: Directions issued to make pre deposit.

  • STO 2012 CESTAT 549
  • Intellectual Property Right Service: Technical Assistance Fees: Demand: stay: Directions issued for pre deposit.

  • STO 2012 CESTAT 581
  • Intellectual Property Right: Transfer of technical know how : Appellants under bonafide belief that the technical know how was not registered as their patent, hence, not taxable: Also since they were eligible for credit of tax paid, revenue neutral situation arises: Stay granted.

  • STO 2012 CESTAT 149
  • Intellectual Property Rights Service: Demand: Drawings & Designs imported for installation of steel mill liable to be taxed: Since entire service tax along with interest was paid before issuance of show cause notice and appellants had declared the drawings and designs as “goods” before the Custom authorities, no malafide intention could be attributed for evasion of tax: Penalties under Section 75A, 76, 77 and 78 of the Finance Act, 1994 waived.

  • STO 2011 CESTAT 349
  • Intellectual Property Service: Applicant is only the authorized statutory body to administer the Hallmarking scheme in India and the applicant is not transferring or permitting the use of Hallmark for any consideration, unlike the case of allowing others to use one's brand name or trade name: Full waiver granted.

  • STO 2011 CESTAT 352
  • Intellectual Property Service: Consulting Engineering Service prior to introduction of Intellectual Property Service; Prima facie service not covered under Consulting Engineering Service: Waiver from pre deposit granted.

  • STO 2010 CESTAT 260
  • Service Tax: Intellectual Property Service: Pre-deposit: Upon consideration of all aspects of the arrangement between SKOL and FIPL, prima facie there are enough indicators to show that it was a payment as Consideration for the transfer of Intellectual Property by SKOL to FIPL to enable the latter to manufacture beer and dispose of the same under "FOSTER'S" brand name owned by SKOL in terms of the agreement. It would, therefore, appear that the appellant should pay service tax on the amount collected by them from FIPL for the period of dispute under sub-clause (zzr) of Clause 105 of Sec.65 of the Finance Act, 1994. The appellant should pre-deposit an amount of Rs. 75 lakhs (para 9)

  • STO 2010 CESTAT 192
  • Service Tax: Intellectual Property Rights Service: The service rendered to the assessees falls under the category of Intellectual Property Rights Service which came into services tax net only with effect from 10.09.04, and not a Consulting Engineering Services leviable to services tax prior to 10.09.04, is correct for the reason that the issue stands settled in favour of the assessees by the decision of the Tribunal in the case of M/s. B.E. GELB Consultancy services Vs. CCE, Coimbatore The impugned order is upheld and the appeal is rejected.

  • STO 2009 CESTAT 1669
  • Service Tax: Consulting engineer service: Activity:- B.E. Gelb Consultancy Services, USA to provide technical know-how, complete product design and engineering specifications: Scope and liability: Tribunal's order reported in STO 2009 CESTAT 267 holding that transfer of technical know how did not amount to consulting engineer service but was intellectual property service which was leviable to service tax only from 10.9.2004. The period in dispute in the present appeal being prior to that date namely July 2002 to December 2003, the demand against the appellants cannot be sustained(Para 2).

    Appeal allowed.

  • STO 2009 CESTAT 1439
  • Service tax: Consulting engineer’s service: Payment of royalty: Scope and liability: As per the manufacturing Licensing Agreement no technical assistance is provided to them by M/s. Delta Controls Ltd. It is only a case of payment of running royalty to Delta Controls and the payment of royalty comes into service tax net only with effect from 10.9.2004 as ‘intellectual property service’. The period in dispute being prior to the above date, demand and penalty cannot be sustained. (Para 2).

    Appeal allowed.

  • STO 2009 CESTAT 1026
  • Service Tax: Intellectual Property Services: Scope and liability: The applicant have allowed M/s. Talreja Trade (HUF) to use their brand name "Pahili Dhar" in selling the products however the Department has nowhere made out that M/s. Talreja Trade is using the brand name of the applicants for their products. Applicants are having a good prima facie case in their favour hence, complete waiver of pre-deposit allowed.(Para 4,5).

    Stay granted.

  • STO 2009 CESTAT 1022
  • Service Tax: Receipt of technical know-how and assistance from a Japanese Company during the period September - October, 2004 for the purpose of manufacturing motorcycles in India: Payment of royalty: Intellectual Property Right service: Scope and liability: Service tax on any taxable service received by a person resident in India, from outside was not liable to be paid by him prior to 01/01/2005, the date on which Notification No. 36/2004/ST dated 31/12/2004 of the Central Government notifying the above taxable service (provided by a person who is a non-resident not having any office in India) for purposes of Section 68 of the Finance Act came into force. This legal position was recognized in the case of Hindustan Zinc Limited vs. CCE, Jaipur STO 2008 CESTAT 321. In the aforesaid case, the Larger Bench held that : "17. The upshot of the above discussion is that the taxable service by a non-resident or from outside India, who does not have any office in India, having been specified as 'taxable service' with effect from 1.1.2005, under Notification No. 36/2004, recipient of such service could not be held liable for paying service tax prior to 1.1.2005 notwithstanding the amendment in rule 2(1)(d) of the Service Tax Rules under notification no. 12/2004." The said ruling is squarely applicable to the facts of the instant case and accordingly it is held that the appellant qua recipient of Intellectual Property Right service from abroad during the period 10/09/2004 to 30/09/2004, having paid royalty for such service in the month of October, 2004, is not liable to pay service tax on such service. (Para 4,5).

    Appeal allowed.

  • STO 2009 CESTAT 156
  • Stay: Tax paid after issuance of show cause notice: Issue of taxability debatable under “Intellectual Property Service” : Waiver from interest and penalties granted.

  • STO 2009 CESTAT 449
  • Service Tax: Consulting Engineer's Service for the period July 2002 to December 2003: Receiving technological know-how and payment of royalty to foreign company: Scope and liability: The impugned demand is on the total amount paid by the assessee to their foreign collaborators as consideration for transfer of technology. Intellectual property right is a separate taxable service introduced with effect from 10.9.2004. It has been consistently held by this Tribunal that, prior to the said date, service tax was not leviable on technology transfer fee under the head ‘consulting engineer's service’. Thus the appellants have made out prima facie case on merits also.(Para 1,2).

    Stay granted.

  • STO 2008 CESTAT 91
  • Intellectual Property Right : Section 65 (55a) of the Finance Act, 1994 which is a broad definition which includes not only the Trade Marks which are registered under the law but also those Trade Marks which are not registered under the law but are recognized under the law  Contention of the applicants that the so-called Intellectual Property Right transferred by them for consideration was not in respect of Trade Mark registered under the law not acceptable. The applicant had not made out the case fit for waiver of demand made under the impugned order.

  • STO 2008 CESTAT 16
  • Extension of Stay : Appellants having already pre-deposited the service tax amounts waiver of pre deposit of penalty amount till the disposal of the appeal granted. Revenue barred from recovery even after the lapse of 180 days in view of several judgements of the Supreme Court and the Tribunal.

  • STO 2008 CESTAT 224
  • Transfer of technical know-how: And royalty payment will not be leviable to service tax under the category of consulting engineers. When a new entry is introduced covering a particular activity without amending the earlier entry, it cannot be said that the earlier entry covered the subsequently introduced entry.

  • STO 2008 CESTAT 78
  • Technical know how : In the case of Composite Contract Agreement in respect of know-how all the payments accept those which are specifically related with license and which did not any form of technical assistance, including thereunder will have to be separated, no tax would be chargeable in respect of such licensing fee attributable to the rights convert under the agreement. The Service Tax will be chargeable only in respect of technical assistance which was contemplated under the agreement for being rendered at the plant.

  • STO 2007 CESTAT 1159
  • Stay: Intellectual Property Service: It is anomalous on the part of the Department to treat the character of the part of the services rendered/received by the appellants differently for the post and pre 10-9-2004 periods, when the fact is that the Technical Collaboration Agreement dated 17-10-1998 has not undergone any change and remains unaltered during these periods. Principles of Natural Justice violated while calculating the service tax liability. Prima facie strong case made out.

  • STO 2006 CESTAT 269
  • Service Tax: Application for interim stay: Consulting engineer service: There were several terms of the agreement which indicated that the services rendered were of the nature of services rendered by a 'Consulting Engineer'. No such contention appears to have been considered by the Commissioner (Appeals). However, at this stage, granting of interim stay of the impugned order, would virtually amount to allowing the appeal itself which will not be appropriate in face of the finding of the Commissioner (Appeals) that technical know-how falls in the separate category of service of intellectual property services, [Section 65 (55b)].(Para 3).
    Application for interim stay rejected.

  • STO 2004 CESTAT 6
  • Service Tax: Consulting Engineering Services: Demand: Commissioner has not considered all the 18 grounds in the order hence the impugned order is not a speaking order. Appellants are registered under the Research and Development Cess Act, 1986 which under Section 2(h) defines what the technology means. The appellants have transferred the technical know-how under the licence. Certain clauses of the licence are being interpreted by both the authorities to bring them within the category of Consulting Engineers. In terms of the amended Finance Act category 55(a) intellectual property has been defined. Prima facie, the activity in terms of the licence falls within this category. notification No. 18/2002-S.T. clarified about the technical know-how falling under consulting engineer category however the notification will have only prospective effect and cannot be said to have effect for the period in question, which is November, 1998 to December 2000.(Para 2).

    Unconditional stay granted.

     
     

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