TMI Blog2024 (2) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 04/1999-ST dated 28.02.1999 - HELD THAT:- On examining the agreement entered into between the appellant and Yamaha India it is found that the appellant is engaged in the business of software development which is exempted from service tax in view of the Notification No. 04/1999-ST dated 28.02.1999 and Circular No. 70/19/2003-ST dated 17.12.2003. It is also found that the nature of services as provided in the agreement are in relation to operation, development and facilitation of software and without said services, the usage of software would be redundant - Tribunal in the case of Nokia (India) Pvt. Ltd. cited [ 2006 (1) TMI 1 - CESTAT NEW DELHI] has observed that the advisory support service relating to software clearly falls within the domain of the service by a software engineer and accordingly software support services were exempted from payment of service tax under the category of consulting engineer s service. The activities of the appellant are specifically made taxable under Section 65 (105) (zzzze) of the Finance Act, 1994 w.e.f. 16.05.2008 under the category of Information Technology Software Services and the appellant is registered under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exemption Notification No. 04/1999-ST dated 28.02.1999 on the ground that the appellant's activities are not predominantly in the nature of software development only. He has also imposed penalties as proposed in the show cause notice. 2.4 Aggrieved by the said order, the appellant filed appeal before the Commissioner of Central Excise (Appeals) Delhi IV, Faridabad who has rejected the appeal of the appellant and has confirmed the demand of service tax on the ground that the activities of the appellant are not exclusively related to computer software service. The Commissioner (Appeals) has also confirmed the demand of interest and penalty. 2.5 Hence, the present appeal. 3. Heard both the parties and perused the material on records. 4. Learned Counsel for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submits that during the relevant period, only an Assistant Commissioner or a Deputy Commissioner having jurisdiction over the Assessee could pass an assessment order and the Additional Commissioner had no jurisdiction to decide the matter. 4.1 He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all technical problems that arise during its operation. 4.8 He further submits that as per the written submissions filed by the department whereby which they want the activities of the appellant to fall under the service category as provided in Section 65(105) (zzzze) of Finance Act, 1994. 4.9 To counter this, the Learned Counsel submits that Information Technology Software Service was inserted in the Finance Act w.e.f. 16.05.2008 only whereas the period of dispute is from 01.10.2002 to 12.03.2004, therefore, there cannot be any liability to discharge service tax under this category. He also submits that the extended period cannot be invoked because there is no suppression of fact, mis-representation and collusion or fraud by the appellant. 4.10 As regards the penalty, the Learned Counsel submits that the present case involves interpretation of complex legal provisions and therefore, the imposition of penalty is not warranted in the present case. 5. On the other hand, the Learned Authorized Representative reiterated the findings in the impugned order. 6. After considering the submissions of both the parties and perusal of material on record, we find that as regards t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om payment of service tax. In this regard, we may reproduce the extract of the Notification No. 04/1999-ST dated 28.02.1999:- Service Tax- Exemption to services provided by a consulting engineer in relation to Computer software In exercise of the power conferred by section 93 of the Finance Act, 1994 (32 of 1994). the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided to any person by a consulting engineer in relation to computer software, from the whole of the service tax leviable thereon under section 66 of the said Act. 6.4 Further, we may also reproduce the Circular No. 70/19/2003-ST dated 17.12.2003 issued by the CBEC which is as under:- Circular No. 70/19/2003-ST Dec 17, 2003 F. No. 256/9/2003-CX-4 Government of India Ministry of Finance Department of Revenue Subject : clarification on the taxability of maintenance of Computer Software-regarding An issue has been raised whether the organisations who are engaged in design, development are maintenance of Software and enter into Annual Maintenance contracts for maintenance of their software, are exempt fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and provide better solutions, as may be required from time to time. YM INFOTECH shall be responsible for the following activities (collectively referred to as the Services ): a) Information Technology Technical and Infrastructure Services Support, including: Planning and managing day-to-day Information Technology needs First level LAN/WAN trouble shooting Data recovery, if required from readable backups System Administration for operating systems Network Capacity Planning based on Business Plans provided by YAMAHA INDIA Disk Space Management on servers Database Administration (DBA) Database Tuning Database Space Management Database recovery, if required from Pandard audit trails as available with YAMAHA INDIA Configuration of modem, switches, routers, hubs, etc. Configuration of new version of applications Support in procuring and managing Hardware and Software assets Maintenance of Hardware and Software standardization Assistance in formation of policy, education and support on virus control Manage Data Security on main Server using software products provided by YAMAHA INDIA Maintain and modify Data Network Coordination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esign, construct, test and maintain computer applications software or systems. They solve technical problems that arise. Software engineers analyze users' needs and design, construct, and maintain general computer applications software or specialized utility programs. Software engineers co-ordinate the construction and maintenance of a company's computer systems and plan their future growth. Working with a company, they coordinate each department's computer needs-ordering, inventory, billing, and payroll record keeping, for example and make suggestion about its technical direction. Software engineers works for companies that configure, implement and install complete computer systems. They may be members of the marketing or sales staff, serving as primary technical resource for sales workers and customers. They may also be involved in product sales and in providing their customers. With continuing technical support. Computer software engineers design new hardware, software and systems that control the computer. 6.7 We also note that the Tribunal in the case of Nokia (India) Pvt. Ltd. cited (supra) has observed that the advisory support service relating to software cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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