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TMI Blog2014 (8) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant under Section 35G of the Central Excise Act, 1944 (in short "the Act") read with Section 83 of the Finance Act, 1994 against the order dated 4-7-2013 (Annexure A-4) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal") [2016 (46) S.T.R. 547 (Tri. - Del.)]. The appeal was admitted by this Court vide order dated 3-2-2014 for determination of the substantial questions of law mentioned therein. 3. The facts leading to the filing of the instant appeal as narrated therein may be noticed. The appellant was working as Gold Diplomant Associate of M/s. eBIZ.com Pvt. Ltd. and selling products/packages for operation of computer systems and to motivate other associate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as exempt being in the nature of "Information Technology Service". On the strength of Explanation added w.e.f. 10-9-2004 to Section 65(19) of the Finance Act, 'the Information Technology Service' was excluded from the Business Auxiliary Service and no service tax was leviable thereon. Stress was put on the terminology "or any other service primarily in relation to operation of computer systems" which finds mention in Explanation to Section 65(19) of the Finance Act. According to the Learned Counsel, the activity of the assessee-appellant fall in the aforesaid expression and, therefore, the Tribunal was in error in adjudicating the issue against the assessee. It was also emphasized that the Tribunal had failed to consider the aforesaid expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or supervision, and includes services as a commission agent, but does not include any information technology service and any activity that amounts to "manufacture" within the meaning of clause (f) of section 2 of the Central Excise Act, 1944. Explanation - For the removal of doubts, it is hereby declared that for the purpose of this clause, "information technology service" means any service in relation to designing, developing or maintaining of computer software, or computerized data processing or system networking or any other service primarily in relation to operation of computer systems." 9. The Explanation as noticed above provides that the Information Technology Service means any service in relation to designing, developing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of computer systems". According to the Learned Counsel for the appellant, the activity of the assessee falls in this expression. Thus, it would be appropriate that the matter is remitted to the Tribunal to adjudicate the same and record a finding as to whether the activity of the assessee falls under the expression "or any other service primarily in relation to operation of computer systems" and termed to be 'Information Technology Service' or not.
11. Accordingly, all the appeals are allowed and the orders passed by the Tribunal are set aside and the matters are remitted to the Tribunal to decide afresh in accordance with law after affording an opportunity of hearing to Counsel for the parties and by passing a speaking order. X X X X Extracts X X X X X X X X Extracts X X X X
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