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2014 (12) TMI 459 - AT - Service TaxSale of software - packaged software were imported from the replicator or the foreign supplier - Intellectual Property Right Services - Payment made to Microsoft - Held that:- Commissioner has held that Microsoft has copyright of the software and only right to use the software by end user by way of license agreement with copyright protection for Intellectual Property Service copyright is exempted to levy of service tax. We, further, find that it is a computer software programme which is given on commercial rental to the applicants by M/s. Microsoft. In these circumstances, prima facie we are of the view that the applicant is covered as a copyright holder and not required to pay service tax under the category of Intellectual Property Right Services. Therefore, for the period prior to 16.5.2008 applicant is not required to pay service tax. For the period post 16.5.2008, we, find that as observation made by this Tribunal in the case of Infotech Software Dealers Association (2010 (8) TMI 13 - HIGH COURT OF MADRAS) and has held by the Hon'ble Apex Court in the case of Tata Consultancy Services reported in [2004 (11) TMI 11 - Supreme Court] the transaction of sale of computer software is a sale of goods. Further, in the case of Suzlon Energy Ltd. Vs. Commissioner of Central Excise Pune-III [2014 (8) TMI 96 - CESTAT MUMBAI] wherein this Tribunal observed that the transaction was treated as supply of goods for the purpose of Customs duty, therefore, transaction cannot be treated as supply of service and levy of service cannot be made on the entire value of transaction once again. In these circumstances, we are of the view that the sale of software is only a sale of goods and the service tax cannot be levied. Further, we find merit in the contention of the Ld. Counsel for the applicant that right to use software is given to the end user and the applicant is only an intermediary. Therefore, the applicant is not liable to pay service tax. - applicant has made out a case for complete waiver of pre-deposit of entire amount of service tax, interest and penalties. Accordingly, we waive the requirement of pre-deposit of entire amount of service tax, interest and penalties and stay recovery therefore during the pendency of the appeal - Stay granted.
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