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2023 (9) TMI 656 - AT - Service TaxClassification of services - Business Auxiliary Service or not - providing ERP system - suppression of facts or not - time limitation - HELD THAT:- There is no dispute that the appellant have received ERP System for their use from their head office USA. In case of service tax liability and reverse charge mechanism, the service tax is payable considering the service provided by the service provider in the present case head office USA is a service deemed to have been provided by the service recipient, therefore, in case of procurement of ERP System, the appellant’s head office USA is a service provider of ERP system which is nothing but Information Technology Service, therefore, in the hand of the appellant, the classification service must be same as IT Service - In the present case, the demand was raised under BAS which admittedly excluded the IT Service, which is not in dispute for the relevant period - the service received by the appellant is indeed Information Technology Service and during the relevant period, the same was not taxable in terms of exclusion from Business Auxiliary Service. It is settled that the ERP Service is clearly an Information Technology Service. The same being excluded from the Business Auxiliary Service cannot be charged to service tax under Business Auxiliary Service. There are force in the argument of the learned counsel with regard to the limitation in the present case, if at all there is any service tax liability, the appellant is entitled for cenvat credit of the same and due to which the entire exercise will amount to Revenue neutral. In this position as settled in various judgments wherever there is a revenue neutral situation, the malafide cannot be attributed to the assessee. In the present case also, there is no mens rea or suppression of fact etc., on the part of the appellant, therefore, the demand is not sustainable on the ground of time bar also. The impugned order is not sustainable - Appeal allowed.
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