TaxTMI 
TaxTMI 
2023 (3) TMI 739
X X X X Extracts X X X X
X X X X Extracts X X X X
....offices in India. In terms of the said agreement M/s. Borelli Tea Holdings Ltd. granted to the Respondent non-exclusive, nontransferrable licence allowing use of its patents and trade marks for manufacture/production of tea and export thereof. In consideration for the granting of patents and trade marks, the Respondents have been paying M/s. Borelli Tea Holdings Ltd. a royalty and/or licence fee @ 1.5% and 1% of their net sales. Revenue is of the view that the Respondents have obtained intellectual property rights therefore the Respondent is liable to pay Service Tax on the said amount of royalty paid to their foreign service provider under Reverse Charge Mechanism. In that circumstances a Show Cause Notice was issued to the Respondent whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erty Right services. Therefore, the appellant-assessee is liable to pay service tax under reverse charge mechanism with effect from 10-9-2004 when the said services came into the service tax net." 5. Tribunal has observed in the said case as under:- "6. On careful consideration of the submissions of both sides, we find that the Design, Trademark, Symbol, Brand Service have not been registered in India. Therefore, whether the royalty paid by the appellant-assessee under Industrial Property Right agreement is liable to service tax under Intellectual Property Rights service or not. For better appreciation of Intellectual Property Right, the definition of the same is reproduced :- Section 65. Definition. - In this Chapter, unless the con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rvices. Admittedly, Trade Mark rights which have been used by the appellant-assessee are not registered in India, therefore, the same are not liable to tax under IPR service, in the light of the decision in the case of Chambal Fertilizers & Chemicals Limited (supra), wherein this Tribunal has observed as under :- "5. We have heard both sides and examined theappeal records. The only point for decision is that whether or not the appellant received taxable service under the category of 'Intellectual Property Right service' during the relevant period. The admitted facts of the case are that the technical know-how, engineering design licence involved in these agreements with foreign service providers are not registered in India under Indian l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Brown Boveri Ltd. v. C.C.E & S.T., Bangalore - 2016-VIL-480-CESTAT-BLR-ST [para 6.7.1]; (e) Reliance Industries Ltd. v. C.C.E. & S. Tax, Mumbai - 2016-TIOL-1654-CESTAT-MUM = 2016 (44) S.T.R. 82 (Tri.) [para 2]. 7. It has been held that to be categorized for service tax purpose under IPR, such right should have been registered with trade mark/patent authority. In the present case, admittedly, there is no right recognized as IPR under any law for the time being in force in India. As such, there can be no provision of IPR service for tax liability on reverse charge basis." Therefore, we hold that services received by the appellant-assessee are not covered under Intellectual Property Rights services, under Section 65(105)(zzr) of the F....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rvice tax and if so at what rate was required to be reckoned with reference to the date when the service was rendered and not with reference to the date on which payment is made. The law in this regard is settled by the decision of the CESTAT reported in 2008 (10) S.T.R. 243 = 2008-TIOL-283-CESTAT-AHM which was affirmed by the Hon'ble Gujarat High Court in the appellant's own case reported in 2010 (19) S.T.R. 807 as also by the Hon'ble Delhi High Court in the case of CCE v. Consulting Engineering Services India (P) Limited - 2013 (30) S.T.R. 586. As the service in the case of Investa Technologies S.A.R.L. was rendered prior to 10-9-2004, the date when the taxing entry was brought to the Statute the mere subsequent payment in respect of serv....