By TIOL News Service

MUMBAI, JUNE 14, 2015: IN the matter of the appeal filed by the Revenue, the CESTAT had held thus - 2015-TIOL-336-CESTAT-MUM .

ST - Assessee has allowed M/s Talreja Trade to use its brand name 'Pahili Dhar' for marketing 'country liquor' - minimum guarantee of profit per month assured by agent to assessee has been misunderstood as 'Royalty' which is not the fact - no Intellectual Property Service given: CESTAT

While reporting the above Tribunal decision this February, we had mentioned as below -

In passing:

Presumably, the assessee as well as the Revenue are before the Tribunal, both aggrieved with the portion of demand not decided in their favour -Assessee, against confirmation of demand under the head IPR Service & Revenue against dropping of demand under BAS. But the preamble to the order does not indicate the same clearly. So also, there is some confusion with regards to usage of the terms 'appellant' and 'respondent' in the order and the conclusion arrived at. And what happened to the Revenue appeal? Or are we missing out on something?

Be that as it may, on a similar issue & in the matter of appeal number ST/40/209 filed by the assessee Y.M. Krishna SSK Ltd. against Order-in-Original No. 2/ST/2008, dated 27.11.2008? passed by the Commissioner of Central Excise, Pune-II, the same was decided by the Bench in favour of the assessee on 15.01.2014 and reported by us as 2014-TIOL-1299-CESTAT-MUM. In that order the Bench had held that no service tax is payable under the head 'Intellectual Property Services'.

Incidentally, as for the demand under the head 'BAS' confirmed against the assessee in another case, Reference appeal no. ST/362/12 [O-in-A PIII/RKS/70/2012 dt. 02.03.2012], the Bench had while allowing the appeal of the assessee held thus 2013-TIOL-263-CESTAT-MUM -

ST - Appellants are the manufacturer of country liquor under the brand name "Pahili Dhar", registered in their name and are having agreement with M/s. Talreja Trade (HUF) for marketing this liquor - it cannot be said that the appellant are the job workers for Talreja Trade as they are the selling agents - they are not liable to pay service tax under "Business Auxiliary Service" - Appeal allowed with consequential relief: CESTAT [para 5]

Interestingly, in the current order that we are reporting, the Bench has concluded its observations thus -

"10. Thus, the appeals filed by the Revenue are dismissed. The respondent-assessee will be entitled to consequential relief, if any."

Perhaps a corrigendum or for that matter a ROM is on its way.

We were right.

The assessee, who was a respondent in the said proceedings filed an application for Rectification of mistake in the Final order dated 27.11.2014 2015-TIOL-336-CESTAT-MUM.

It is submitted by the assesssee that there are two errors apparent on the face of the final order viz.

(i) the assessee has been referred as "the appellant" while they were respondent and;

(ii) in para 6.9 of the final order, it is mentioned that penalties imposed under Section 76 and 78 while the penalties were imposed under Section 76 and 77.

After hearing the AR and on perusal of the records the Bench agreed with the submissions made by the appellant.

So, the Bench held as under -

"5. In the entire final order dated 27.11.2014, we rectify the error as to where the assessee has been referred as "appellant" be referred as "respondent". In para 6.9, the sentence wherein penalties imposed under Section 76 and 78 should be read as penalties imposed under Section 76 and 77."

The factual errors were rectified and the Miscellaneous application was disposed of.

(See 2015-TIOL-1131-CESTAT-MUM)