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TMI Blog2024 (2) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant's services to the Yamaha India are taxable under the category of consulting engineer's service. 2.2 The appellant filed a detailed reply to the show cause notice and explained that its activities were exempted from tax through notification 04/1999-ST dated 28.02.1999, as these services are in relation to computer software. 2.3 After following due process, the Additional Commissioner of Service Tax, New Delhi adjudicated the subject show cause notice and confirmed the demand as proposed in the said show cause notice by observing that the activities fall within the taxable category of consulting engineer's service. The Additional Commissioner has denied the benefit of the exemption Notification No. 04/1999-ST dated 28.02.1999 on the ground that the appellant's activities are not predominantly in the nature of software development only. He has also imposed penalties as proposed in the show cause notice. 2.4 Aggrieved by the said order, the appellant filed appeal before the Commissioner of Central Excise (Appeals) Delhi - IV, Faridabad who has rejected the appeal of the appellant and has confirmed the demand of service tax on the ground that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various clauses of the agreement to show that the services provided by the appellant are in relation to software services which include operation/development and facilitation of software and the said services are necessary for the proper usage of the software. 4.7 Learned Counsel further referred to the observation of the Tribunal in the case of Nokia (India) Pvt. Ltd. vs. CCE, 2006 S.T.R 233 (Tri.-Del.) which elaborately described that the activities of software engineer are not confined to software development only. Further, the software engineers helps in systems development and designs, constructs, test and maintains computer application software and systems and solve all technical problems that arise during its operation. 4.8 He further submits that as per the written submissions filed by the department whereby which they want the activities of the appellant to fall under the service category as provided in Section 65(105) (zzzze) of Finance Act, 1994. 4.9 To counter this, the Learned Counsel submits that Information Technology Software Service was inserted in the Finance Act w.e.f. 16.05.2008 only whereas the period of dispute is from 01.10.2002 to 12.03.2004, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise (Service Tax in this case) is subordinate to the and as such I do not find anything contrary to law as far as adjudication by the Additional Commissioner is concerned.) 6.2 In view of the above stated position, we do not find any infirmity in the jurisdiction of the Additional Commissioner to adjudicate the show cause notice. 6.3 As regards, the second ground raised by the Learned Counsel for the appellant that during the relevant period, the appellant was entitled to the benefit of exemption Notification No. 04/1999-ST dated 28.02.1999 as the activities of the appellant were in relation to computer software which were exempted from payment of service tax. In this regard, we may reproduce the extract of the Notification No. 04/1999-ST dated 28.02.1999:- "Service Tax- Exemption to services provided by a consulting engineer in relation to Computer software In exercise of the power conferred by section 93 of the Finance Act, 1994 (32 of 1994). the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided to any person by a consulting engineer in relation to computer software, from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of software development which is exempted from service tax in view of the Notification No. 04/1999-ST dated 28.02.1999 and Circular No. 70/19/2003-ST dated 17.12.2003. Here, it is relevant to reproduce the relevant clauses of the agreement entered into between the appellant and Yamaha India to ascertain the true nature and scope of services provided by the appellant to Yamaha India:- Scope of Services YM INFOTECH shall provide support, including use of recourse, time and effort of personnel, skill, and expertise to YAMAHA INDIA to enable it to manage its Information Technology facilities and to develop and provide better solutions, as may be required from time to time. YM INFOTECH shall be responsible for the following activities (collectively referred to as the "Services"): a) Information Technology Technical and Infrastructure Services Support, including: * Planning and managing day-to-day Information Technology needs * First level LAN/WAN trouble shooting * Data recovery, if required from readable backups * System Administration for operating systems * Network Capacity Planning based on Business Plans provided by YAMAHA INDIA * Disk Space Management on servers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at software engineers job is not only confined to development of software rather they helps in system development and designs, construct, test and maintain computer application software and system and solve technical problems that arise during the working of the software. "Computer software engineers apply the principles and techniques of Computer science, engineering and mathematical analysis to the design, development, testing. and evaluation of the software and systems that enable computers to perform their many applications. Software engineers, working in applications or systems development analyze users needs and design, construct, test and maintain computer applications software or systems. They solve technical problems that arise. Software engineers analyze users' needs and design, construct, and maintain general computer applications software or specialized utility programs. Software engineers co-ordinate the construction and maintenance of a company's computer systems and plan their future growth. Working with a company, they coordinate each department's computer needs-ordering, inventory, billing, and payroll record keeping, for example and make suggestion a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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