TaxTMI 
TaxTMI 
2016 (1) TMI 821
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.... credit of Rs. 22,29,753/- for non-maintenance of separate records for taxable and exempted services under Rule 14 of Cenvat Credit Rules, 2004 (CCR) and Section 73 of the Finance Act, 1994 ('the Act') along with appropriate interest under Section 75 of the Act." 3. The appellant, apart from manufacturing goods, is also engaged in providing taxable services. It is also registered as input service distributor. The adjudicating authority confirmed the impugned demand essentially on the following grounds: (i) No service tax was paid on the technology transfer fee by the Appellant which was taxable under 'intellectual property rights service'; (ii) The appellant utilized excess CENVAT Credit during the period of April, 2007 to March 2008 and is liable to pay the excess amount of credit taken as per the provision of Rule 14 of CCR read with Section 73 of the Act, based for the following reasons: a. That the Appellant is providing taxable as well as exempted services and has not maintained separate accounts for dutiable and exempted services. b. The exception provided under Rule 6(6) of the CCR is not applicable in case services are cleared for export under the Expor....
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....n paid on technology transfers and the service tax on the brand fee under intellectual property rights service was rightly paid after deduction of such R&D cess in terms of Notification 17/2004-ST as is evident from the language of the said notification. (x) As in the extended period of limitation is not invocable in the present case as there was no wilful misstatement or suppression of facts, the demand is time-barred. The demands on technical transfer fee and relating to R&D cess were similarly raised earlier in a show cause notice dated 17/10/2008 for the period 2005 06 and 2006 07 and therefore the extended period cannot be invoked as in respect of these two components of demand, Revenue was already aware of the facts. The appellant cited several judgements in support of its proposition which will be duly adverted to in due course. 5. Ld. Department representative contended that: (1) In the ST 3 returns filed by the appellant for the period April 2007 to September 2007 and October 2007 to March 2008 it mentioned to be providing taxable service as well as exempted service. (2) Services exported are to be treated in exempted services. (3) Technology t....
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....by the principal of judicial discipline, I am bound to adopt the views taken in review by the Committee of Chief Commissioners and hold that the notice is providing exempted service along with taxable services and hence, they were not permitted to avail/utilise in excess of 20% of Service Tax paid on taxable services since they were not maintaining separate records." The adjudicating authority is thus categorical in its finding that the onus to prove that the appellant was providing any exempted services has not been discharged by Revenue. The adjudicating authority is however wholly wrong in observing that judicial discipline requires him to be bound by the views of the Review Committee of Chief Commissioners. Adjudicating authority is only bound by the orders of the superior adjudicating authority like CESTAT and the observations of the Committee of Chief Commissioners are of administrative nature and not of quasi-judicial nature to have any binding effect on adjudicating authority. Thus there is no doubt that even in the opinion of the adjudicating authority, component of demand confirmed on account of non-maintenance of separate accounts of taxable and exempted services is not....
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....able such Technology on a prompt and regular basis. 2.3 .................. ARTICLE-III Technical Assistance 3.1 WHHIRPOOL shall supply to WOI from time to time, Technical Assistant pertaining to Products, so as to allow WOI to design, manufacture and service Products, Parts or Sub-Assemblies therefore, and to have WOIs parts suppliers make Parts or Sub-Assemblies for WOI to be assembled into Products by WOI, or for sale by WOI as repair parts for Products manufactured or assembled by WOI. ARTICLE VII Royalties "8.1The products shall be deemed to have been sold, and royalties as specified in this Section shall accrue, when the Products are billed by WOI, if any Products are sold by WOI to any affiliated or related persons, then the royalties payable hereunder shall be computed on the basis of prices charged to purchasers who are not so related or affiliated. There shall be no separate charge for parts or sub-assemblies included in a finished appliances product subject to the above royalty. 8.2 The royalties shall be calculated and paid quarterly, WOI shall prepare statements for each quarter ending on the last day of March, June, September and December and each calendar....
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....ax has not been paid relates to technical assistance and supply of technology by Whirlpool USA in terms of the said agreement. Transfer of technology and technical assistance do not fall in the ambit of intellectual property rights service as Revenue has not shown that they were recognised under any law in India during the relevant period of 2007 08. Central board of Excise and Customs vide circular No. 80/10/2004 dated 17/09/2004 clarified the scope of intellectual property rights service as under: "Intellectual property emerges from 9.1 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 informat....