2017 (5) TMI 462

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....e Act, 1994. Impugned order-in-original no.32/ST-II/WLH/2011 dated 22nd December 2011 of Commissioner of Service Tax, Mumbai - II held that the appellant had provided 'marketing and promotional service of goods belonging to the client', specified in section 65(19) of Finance Act, 1994, by allowing the affixing of their brand-name on the products of M/s Castrol India Ltd, M/s Hindustan Petroleum Corporation Ltd and M/s Bharat Petroleum Corporation Ltd to indicate the approval of their usage in vehicles manufactured by the appellant. The said products are contracted for marketing through the distribution channel of the oil companies as well as through their own network between 1st July 2003 and 9th September 2004. During investigation, the ap....

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....ct, 1994. At the same time, the inclusion of section 65(105)(zzr), as well as section 65(105)(zzzzq), and the definition of 'intellectual property right' and 'intellectual property service' in section 65 (55 a) and section 65 (55b) of Finance Act, 1994 was also brought to our notice. Notwithstanding the many submissions made on behalf of the appellant, we take note that the issue can be resolved without delving into all of these; the facts relating to the dispute and judicial decisions that squarely fit the facts are sufficient to set at rest the controversy generated by the show cause notice leading to the impugned order. We have also heard Learned Authorised Representative who, at length, explained the justification for the confirmation o....

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....imited to the period prior to the discharge of tax liability under this head implying the tax authorities were in agreement with the appellant that it was only with effect from the of date introduction of the new head of tax that of 'intellectual property service' was being rendered. 6. We find from the records that the jurisdictional tax authorities have accepted the taxability thereof after 10th September 2004 and did not contest the levy of tax on the said consideration as provider of 'intellectual property service.' It is, therefore, not open to the tax authorities to collect tax under two different taxable heads in a regime of tax that is contingent upon enumeration of the various services that are liable to be taxed. It is also now s....

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....levy of Service Tax only upon the insertion of this new entry. 38. If the Department's contention is accepted that would mean that the activities of the members of the 1st petitioner are covered by entry (zzzy) and entry (zzzzj). Such a result is difficult to comprehend because entry (zzzzj) is not a specie of what is covered by entry (zzzy). Introduction of new entry and inclusion of certain services in that entry would presuppose that there was no earlier entry covering the said services. Therefore, prior to introduction of entry (zzzzj), the services rendered by the members of the 1st petitioner were not taxable. Creation of new entry is not by way of amending the earlier entry. It is not a carve out of the earlier entry. Therefore, the....