Customs, Excise and Gold Tribunal - Bangalore
Sap India Systems Applications And ... vs Commr. Of S.T. on 6 April, 2006
ORDER S.L. Peeran, Member (J)
1. The appellants are required to pay Service Tax amount of Rs. 13,37,39,102/- and penalty of Rs. 13,00,000/-. This is a second round of litigation. The matter had been remanded for de novo for examining whether the sale of software falls within the category of "Management Consultant". The definition of 'Management Consultant' in terms of the Finance Act, 1994 has also been extracted in the order of the remand by Final Order No. 1579/2005 dated 2-9-2005. It was pleaded before the Tribunal that the essential ingredients needed to be satisfied for inclusion of sale of software under the category of Management Consultant. It is the contention of the appellants that mere sale of software to their customers would not bring them within the category of Management Consultant in terms of the above said criteria which arise from definition of Management Consultant under Section 65(13) of the Finance Act, 1994. The contention of the learned Counsel that these criteria laid down in the remand order have not been taken into consideration. He points out that the Commissioner neither noted these directions nor given a finding, thereby the order is not a speaking order. He submits that the reasoning of the Commissioner is beyond the scope of the category of 'Management Consultant'. He refers to several such orders given by this Bench and contends that similar appeal has been listed for final hearing on 15-6-2006. Therefore he prays for listing the appeal for out of turn hearing on 15-6-2006. It is the submission that the appellants have already pre-deposited about Rs. 2.90 crores and hence, the Revenue's interest has been safeguarded. He submits that no Service Tax has been levied as there is no service of the 'Management Consultant'.
2. The learned SDR defends the order and distinguishes the case from the other matter which listed for hearing on 15-6-2006.
3. On a careful consideration of the matter, we notice from the remand order that the Tribunal had extracted the parameter for consideration of the services to be brought under the category of 'Management Consultant'. The Commissioner has not examined the issue in terms of the directions given by the Tribunal for de novo consideration. The remand direction has been clearly violated. The Commissioner has rejected all the plea and has come to a conclusion that the services rendered by the appellants has to be considered as 'Management Consultant'. The order is not a speaking order. Therefore the appellants are entitled for full waiver of pre-deposit of the amount in the matter. They have already pre-deposited an amount of Rs. 2.90 crores. The stay application is allowed unconditionally by granting waiver of pre-deposit of the amounts and staying its recovery till the disposal of the appeal. The appeal to come up for hearing on 15-6-2006. The Commissioner to file cross objection and written submissions in the matter.
(Dictated and pronounced in the open court)