TaxTMI 
TaxTMI 
2014 (11) TMI 875
X X X X Extracts X X X X
X X X X Extracts X X X X
....as insepcting the books of accounts of the petitioner, stated that the petitioner is liable to pay service tax on the transaction of transfer of right to use copy right. The petitioner is said to have explained to the second respondent that the Copyright is goods and the transfer of right to use the copyright is taxable under the Sales Tax/VAT Act and there is no liability to pay service tax. The second respondent issued show cause notice to the petitioner demanding service tax on the royalty received. The petitioner contended that copyright is specifically excluded from the definition of intellectual property service under Section 65(55a) of the Finance Act. Therefore, it was contended that the respondents are not entitled to demand service tax and the petitioner has filed this Writ Petition for the aforementioned relief. 3. The learned Senior counsel appearing for the petitioner submitted that the levy of service tax on royalty received for transfer of right to use the registered copyright, is without authority of law and per se illegal. By referring to Section 65(55a) of the Finance Act as inserted by Finance Act, 2007, it is submitted that the same clearly excludes the copyrig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the petitioner is a classification issue and no Writ of Prohibition as sought for by the petitioner can be granted. In this regard, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of Union of India vs. Guwahati Carbon Ltd., reported in 2012 (278) E.L.T., 26 (SC), and the decision of this Court in the case of United Bleachers Ltd., vs. CEGAT, reported in 2011 (269) E.L.T., 9 (Mad) and the decision of the Allahabad High Court in the case of Royal Bank of Scotland N vs. Commissioner of Customs & Central Excise, Noida, reported in [2014] 73 VST 24. Secondly, on the merits of the case, it is contended that the definition of copyright as contained under the Copyrights Act cannot be merely incorporated while interpreting the provisions of the Finance Act and the object of the Finance Act has to be taken note of while interpreting the provisions. It is submitted that the artistic work goes along with the brand name and the logo 'ttk' used in the goods has nexus in the goods and the registration obtained by the petitioner under the clause on description artistic does not fall under any of the categories mentioned in Section 14 of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y Cinematograph film; or adaptation of the work; or adaptation of the work; or conversion of the work into a dramatic work by way of performance in public. Therefore, the authority proposed that the logo has been mainly used by the group companies in order to create an impression among the public that the products marketed by the group companies have in fact some relationship with TTK & Co and the logo has got some inherent goodwill and the same has been permitted to be used by the group companies in products to get maximum mileage of the goodwill arising from such use. 8. Therefore, it was prima facie held that the logo has been used by the group companies as a trade mark and not as an artistic work. In the show cause notice, the agreement entered into between the petitioner and M/s.TTK Prestige Ltd and M/s. TTK LIG Limited were referred to. Further, after referring to the definition of intellectual property right as defined under Section 65(55a) of the Finance Act, it was proposed that the logo 'ttk' is used as a trade mark rather than an artistic work as defined under the Copy Right Act and the logo 'ttk' owned by the petitioner would fall under the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....peal before the Tribunal during 2011 and the same was dismissed by order dated 27.06.2011. 10. The learned Senior counsel appearing for the petitioner submitted that the Tribunal was of the view that because the case was periodically adjourned by the Tribunal, they did not want the matter to be kept pending because the Writ Petition was pending before this Court and therefore, the appeal was withdrawn and liberty was granted to apply for restoration of the appeal subject to the outcome of the Writ Petition. On a reading of the order passed by the Tribunal dated 27.06.2011, it is seen that there is no record of any observation made by the Tribunal that the appeal was permitted to be withdrawn because the Tribunal did not want the appeal on its file as the Writ Petition was pending before this Court. In fact, the order stated that the consultant, who appeared for the petitioner sought permission to withdraw the appeal and he made a prayer to grant liberty to apply for the restoration of the appeal subject to the outcome of the Writ Petition. Therefore, the contention raised by the petitioner regarding the reason for withdrawing the appeal before the Tribunal is incorrect and not sub....