TaxTMI 
TaxTMI 
2015 (4) TMI 1166
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....ommissioner also confirmed interest on the said amount and further imposed a penalty of Rs. 200/- per day for everyday during which failure to pay the tax continues or at the rate of 2 per cent of the tax per month, whichever is higher. The Commissioner also imposed a penalty of Rs. 3 crores under Section 78 of the Finance Act, 1994. 3. The petitioner challenged the aforesaid order of the Commissioner before the CESTAT by way of an appeal. The petitioner also filed an application under Section 35F of the Central Excise Act, 1944 as applicable to service tax under Section 83 of Chapter V of the Finance Act, 1994 for stay of operation of the Commissioner's order and for waiver of the pre-deposit of service tax amounting to Rs. 1,94,44,470/- as also waiver of pre-deposit of interest and penalty. 4. The Tribunal by its order dated 29th November, 2012 which is impugned in this writ petition directed the writ petitioner to make a pre-deposit of 25 per cent of the service tax amount of Rs. 1.62 crore that is Rs. 40,50,000/-. The grievance of the petitioner is that the Tribunal should have waived the pre-deposit in its entirety since a very strong prima facie case had been ....
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....ensor confirms that the Technical Information that will be transmitted by the Licensor under this Agreement will enable the Licensee to manufacture the Products. 5.1 The Licensor hereby grants to the Licensee, under its Technical Information and Improvements furnished by the Licensor to the Licensee pursuant to this Agreement as well as under relevant patents of the Licensor which the Licensor has filed or will file for said Technical Information, exclusive, non-transferrable rights to manufacture, the Products in India and a non-exclusive right to sell in India. 5.2 The Licensor shall be free to offer for export to the territory of India, subject to the import regulations for the time being in force in India, any products manufactured by it (other than the products manufactured by the Licensee) on the terms mutually agreed upon between the Licensor and the Licensee including payment of commission by the Licensor to the Licensee at an agreed percentage of the selling price of the Products exported by the Licensor to India. 6.1 In consideration of the Technical information, improvements and documentation prepared and transmitted as per Art. 4 and the Technica....
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....f the entire pre-deposit in connection with the appeal before the CESTAT. 7. The petitioner has drawn this Court's attention to various provisions of Chapter V of the Finance Act, 1994 and Chapter VA of the Finance Act, 2003 which deal with service tax. The relevant clauses are set out hereinbelow :- "S. 65. In this Chapter, unless the context otherwise requires, - (55a) 'intellectual property right' means any right to intangible property, namely, trade marks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright; (55b) 'intellectual property service' means, - (a) transferring (temporarily); or (b) permitting the use or enjoyment of, any intellectual property right;] (105) 'taxable service' means any service provided [or to be provided], - (zzr) to any person, by the holder of intellectual property right, in relation to intellectual property service; 8. Ld. Counsel for the petitioner placed reliance on a Circular No. B2/8/2004-TRU, dated 10th September, 2004 issued by the Ministry of Finance (....
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....f the same being patented. 10. Ld. Counsel relied on a decision of the CESTAT, Principal Bench New Delhi in a case reported in 2013 (30) S.T.R. 591 in support of his proposition that where a prima facie case has been made out that service tax is not attracted because the transfer of technical know-how from the foreign parent company to the Indian company is not covered by taxable service, the entire pre-deposit for preferring an appeal should be waived. Ld. Counsel also relied on a decision of the CESTAT, West Zonal Branch, Mumbai in Appeal No. ST/517/12 (Thermax v. Commissioner of Central Excise, Pune Branch-I [2013 (30) S.T.R. 424 (Tri.)]) in support of his contention that to come under the category of IPR, there should be a law in India governing such IPR and only IPR covered under the Indian law in force are chargeable to service tax. It is well-known that there is no law governing trade secrets/confidential information in India and, therefore, the rights obtained by the appellant do not constitute Intellectual Property Right as defined under Indian law and, hence, do not attract service tax. 11. Ld. Counsel further argued that when a strong prima facie case has....
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....ndue hardship to such person' and 'safeguard the interests of revenue'. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. As noted above there are two important expressions in Section 35F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (AIR 1994 SC 923) that under Indian conditions expression 'Undue hardship' is normally related to economic hardship. 'Undue' which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. For a hardship to be 'undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance wit....