TMI Blog2014 (1) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order is liable is to be set aside. Since bulk of the service has been rendered to clients located abroad and the payments has been received in convertible foreign exchange, the appellant is not liable to pay service tax on the export of services undertaken by them. In any case the exemption under Notification NO. 21/2003 dated 20/11/2003 would have been available to them since the consideration for the services rendered was received in foreign currency. For the period prior to 20/11/2003, Board's circular dated 24/05/2003 clarifies that no service tax would be leviable on export of services for which consideration is received in convertible foreign exchange - Decided in favour of assessee. - Appeal No.ST/85485/2013 - Final Order Nos. A/1266-1267/2013-WZB/C-I(CSTB) - Dated:- 29-5-2013 - P R Chandrasekharan and Anil Choudhary, JJ. For the Appellant : Mr A R Krishnan with Mr Girish Raman, CA For the Respondent : Shri Shobha Ram, Commissioner (AR) JUDGEMENT Per: P R Chandrasekharan: The appeal is directed against Order-in-Original No. 95/NG/COMMR/Th-II/2012 dated 31/10/2012 passed by the Commissioner of Central Excise, Thane-II. 2. The appellant M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, he confirmed the demand along with interest and also imposed penalties under Section 76, 77 and 78 of the Finance Act, 1994 and hence the appellant is before us. 3. The learned consultant for the appellant made the following submissions: 3.1 The order-in-original has deviated from the charges made in the show cause notice. The service undertaken by the appellant of computerised data processing does not fall under clause (iv) of Section 65(19) of the definition of Business Auxiliary Service'. The banks, who are the clients of the appellant, do not provide customer care services to their clients and they provide banking and financial services to their clients. Therefore, the services provided by the appellant cannot be considered as incidental or auxiliary support service to customer care services and, therefore, they are not liable to service tax under BAS. 3.2 The learned consultant also urges that the computerised data processing provided by the appellant would qualify as information technology service' as defined in the explanation to 65(19) and, therefore, would be excluded from the ambit of BAS. The allegation in the notice that the appellant collects raw da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was excluded from BAS, the appellant was not liable to any service tax. The appellant had disclosed their activities to the department vide letter dated 20/10/2003 and the department was aware of their activities and in spite of that, show cause notice was issued only on 23/10/2008, after a lapse of more than 5 years and, therefore, the demand is time-barred and on that ground also the demand is not sustainable in law. 4. The learned Commissioner (AR) appearing for the Revenue, on the other hand, submits that during the period of demand, serial No. (iv) of Clause (19) of Section 65 covered the activity, namely, any incidental or auxiliary support services' such as billing, collection, or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services' and includes services as a commission agent but does not include any information technology services'. In the Explanation for the removal of doubts, "it is hereby declared that for the purpose of this sub-clause, Information Technology Service' means any service in relation to designing, developing or maintaining of computer software or computerised data processing or system ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices also provided customer care services, and the services rendered by the appellant to the bank would be incidental or auxiliary to the customers care services provided by the bank. Thus, there is a complete variation between the ground alleged in the show cause notice and the grounds on which the demands have been confirmed. On that ground alone the impugned order is liable is to be set aside. 5.2 Further, the banks are providing to its customers banking and financial services and the customer care services, if any, provided by the bank would also be classifiable under the main function of banking and financial services' offered by the bank since as per the principle of classification, it is the main function services which gives the essential character that has to be considered for classification. Since the banks provide essentially banking and financial services the question of appellant providing any service incidental or ancillary to any customer care service would not arise at all. The appellant is providing service in relation to banking and financial by way of computerised data processing. Since computerised data processing is included under Information Technology Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. In holding that mere stocking is not an offence within the section, the Supreme Court pointed out the presence of comma after manufactures for sale' and sells' and absence of any comma after stocks'. It was, therefore, held that only stocking for sale could amount to offence and not mere stocking. For another example of the use of punctuation, reference may be made to M.K. Salpekar (Dr.) v. Sunil Kumar Shamsunder Chaudhari, where the court construed clause 13(3)(v) of the C.P. and Berar Letting of Houses and Rent Control Order. The provision permits ejectment of a tenant on the ground that "the tenant has secured alternative accommodation, or has left the area for a continuous period of four months and does not reasonably need the house." In holding that the requirement that the tenant does not reasonably need the house' the court referred and relied upon the punctuation comma after the words alternative accommodation". 5.5 In view of the above, the reliance placed by the learned Commissioner (AR) on the Board's clarification is totally mis-placed as the said clarification itself is wrong in view of the apex Court's decision mentioned above. 5.6 We also note that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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