TMI Blog2014 (12) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to retailers/end users. During the course of audit by CERA in 2008, it was observed that the applicant has made certain payments to M/s. Microsoft Licensing GP, USA on account of royalty. The Revenue is of the view that the applicant is required to pay service tax on the said royalty under the category of Intellectual Property Right Services as per Section 65(105)(zzr) of the Finance Act, for the period prior to 16.5.2008 and post 16.5.2008, the service tax liability was confirmed under the category of Information Technology Software Service. Consequently, the proceedings were initiated against the applicant and finally demands were confirmed. Aggrieved from the said order, the applicant is seeking waiver of pre-deposit at this stage. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are not liable to pay service tax under Intellectual Property Right Services for the period prior to 16.5.2008. Post 16.5.2008, he submits that they are paying CVD on these package software as goods and as held by the Hon'ble Apex Court in the case of Tata Consultancy Service they are not required to pay service tax for right to use the software under the category of Information Technology Software Service. He further submits that as per the agreement, right to use software is to the end user of the software and the applicant is only intermediary, therefore, they are not liable to pay service tax at all, therefore he prayed that stay be granted. 3. On the other hand, Shri V.K. Singh Ld. Special Counsel opposed the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erary work as defined in sections 2(ffc) read with section 2(o) of the Copy right Act, 1957. Since copyright stood excluded from the IPR Services, the supply of software cannot come under the said service. Further the Hon'ble Apex Court in the case of Tata Consultancy Service Ltd. (supra) had held that there is a difference between the sale of copy of a software and sale of copy right in a software. In the facts of the case before us, it is seen that what is involved is sale of a copy of a software and there is no transfer of copy rights. Therefore, the transaction involved is one of sale of goods. On this ground also, the impugned demands do not appear to be sustainable in law either under IPR services or under Information Technology S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 7. For the period post 16.5.2008, we, find that as observation made by this Tribunal in the case of Infotech Software Dealers Association (supra) and has held by the Hon'ble Apex Court in the case of Tata Consultancy Services reported in 2004 (178) ELT 22 (S.C.) 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 wherein this Tribunal observed that the transaction was treated as supp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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