TMI Blog2020 (11) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Management or Business Consultant service. Further, as per the terms of the Agreement entered into between the appellant and their clients, the activities undertaken by the appellant are covered under the definition of Information Technology Software Service as specifically covered under the Information Technology Services as taxable under Section 65(105)(zzzze) with effect from 16.5.2008. Further, the activities alleged in the show-cause notice clearly fall within the ambit of Information Technology Software Service as defined in the Finance Act, 1994. The issue involved in the present case is no more res integra and has been settled by various decisions of the Tribunal and the apex court. In this regard, it is pertinent to mention that this Tribunal in the case of IBM India Pvt. Ltd. [ 2009 (4) TMI 314 - CESTAT, BANGALORE ] has specifically held that implementation of Enterprise Resource Planning does not attract service tax under the category of Management or Business Consultant Service. Time Limitation - HELD THAT:- The period involved in the present case is from 1.3.2006 to 15.5.2008 whereas the show-cause notice was issued on 8.4.2011 by invoking the extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e license, has entered into Software License Agreements with various share broking houses, etc. For licensing of software, appellants are collecting charges termed as license fee and on this value they are collecting and discharging CST @ 4% for interstate sales and excise duty. The department entertained the view that the appellants are liable to pay service tax under Management or Business Consultant Service as provided in Finance Act, 1994 but are not paying the same and has also not informed the department about non-payment of service tax on Management or Business Consultant Service. Department, thereafter, on 8.4.2011 issued a show-cause notice to the appellant on the following allegations. (i) The appellant had carried out various activities like modification and customization of software, install the software for use on the equipment for trading, providing support through remote access using the internet as a medium, sending engineers to the site of customers, provide additional training required by the customer from time to time. (ii) The software so implemented is used by the customers for the purpose of automated trading systems that protects the interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s software and the related services are to be treated as a product in the field of engineer notwithstanding any inputs that might have been taken from other domain groups. He further submitted that the respondent has failed to establish that the appellant s customers were receiving any advice / consultation from the appellants in the areas of management. In fact, according to the learned counsel, the department has not verified from any customers of the appellant as to what kind of advice if any are being received by them from the appellant. 6. The learned counsel further submitted that Information Technology Software Service was specifically made taxable under Information Technology Software Service only from 16.5.2008 and the disputed period in this case is prior to 16.5.2008 and therefore, no service tax could be demanded during the period prior to 16.5.2008. In support of these submissions, the learned counsel has relied upon the following decisions: Intelligroup Asia (P) Ltd. vs. Commissioner of Central Excise, Hyderabad: [2012] 22 Taxmann.com 280 (Bang.-CESTAT) Tata Technologies Ltd. vs. Commissioner of Central Excise, Pune: [2015] 62 Taxmann.com 368 (Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... management, marketing management, production management, logistics management, procurement and management of information technology resources or other similar areas of management]; [65(53a) information technology software means any representation of instructions, data, sound or image, including source code and object code, recorded in a machine readable form, and capable of being manipulated or providing interactivity to a user, by means of computer or an automatic data processing machine or any other device or equipment;] [65(105)(zzzze) to any person by any other person in relation to information technology software for use in the course, or furtherance, of business or commerce, including- (i) Development of information technology software, (ii) Study, analysis, design and programming of information technology software, (iii) Adapation, upgradation, enhancement, implementation and other similar services related to information technology software, (iv) Providing advice, consultancy and assistance on matters related to information technology software, including conducting feasibility studies on implementation of a system, specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax. 11. From the findings recorded hereinabove, the learned Commissioner after examining the services rendered by he appellant has come to the conclusion that the activities carried out by the appellant is covered under the category of Enterprise Resource Planning (ERP) Software Application and the same is rightly classifiable under the category of Management or Business Consultant service and are liable for service tax. Now the issue arises as to whether Enterprise Resource Planning implementation service would fall under Management or Business Consultant Service or Information Technology Software Service. After carefully considering the definition of Management or Business Consultant Service and Information Technology Software Service cited supra, we are of the view that Enterprise Resource Planning implementation would not be covered under Management or Business Consultant service due to the following reasons: (a) The services are not in connection with the management of an organization. (b) The services would not be covered under the inclusive part of the definition (i.e., advice, consultancy or technical assistance with regard to specific activiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 (!79) ELT 472 (Tri.-Chennai) (d) Kaveri Telecom Products Ltd.: 2006 (1) STR 226 13. Further, we find that the issue involved in the present case is no more res integra and has been settled by various decisions of the Tribunal and the apex court as cited in para 6 above. In this regard, it is pertinent to mention that this Tribunal in the case of IBM India Pvt. Ltd. cited supra has specifically held that implementation of Enterprise Resource Planning does not attract service tax under the category of Management or Business Consultant Service. The relevant findings are recorded in para 6 and 7, which is reproduced herein below: 6 . We have carefully gone through the records of the case. The point at issue is the leviability to Service Tax under the category of management consultancy service in respect of the ERP implementation services. It is seen that the Department attempted to classify the ERP services under management consultancy service earlier and the Tribunal s decisions categorically held that during those time, the said services would fall under the category of consulting engineering services, however, they were excluded from the scope of consultin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own that prior to 16-5-2008, even the services rendered by the appellant were excluded from the scope of consulting engineer s service and also the judicial pronouncements made it clear that they would not be covered under the management consultancy services. In view of these, there is no merit in the demands confirming the Service Tax of the services under the category of management consultancy services for the period prior to 16-5-2008. It should be borne in mind that the appellants have already been paying the Service Tax for ERP Planning and advice under the category of management consultancy service. Hence, the impugned orders have not merit. We set aside the same and allow the appeals with consequential relief. 14. The decision of the Tribunal in the case of IBM India Pvt. Ltd. cited supra has been upheld by the apex court by dismissing the appeal of the department as reported at 2010 (18) STR J137 (SC). Hence, by following the ratio of the above decisions, we hold that appellants are not liable to pay service tax during the disputed period under the category of Management or Business Consultant Service. 15. Coming to the contention of the appellant that the entire de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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