Customs, Excise and Gold Tribunal - Bangalore
Dataware Computers, Progressive ... vs The Commissioner Of Central Excise, ... on 25 March, 2008
ORDER T.K. Jayaraman, Member (T)
1. The details of the appellants are given in the Tabular column below:
Appeal Nos.
Name of the Parties Order Nos. & Date Service Tax Penalties Period ST/393/07 M/s.
Dataware Computers v. CST, Guntur 10/07, dt. 02.08.07 50,133/-
Rs.
50,133/- Under Section 78, Rs. 5000/- Under Section 76 & Rs. 500/- Under Section 77 July 03 to April 04 ST/394/07 M/s.
Progressive Computers v. CST, Guntur 11/07 dt. 02.08.07 1,02,466/-
Rs.
1,02,466/- Under Section 78, Rs. 10,000/- Under Section 76 & Rs. 500/- Under Section 77
-do-
ST/395/07 M/s.
P.R.C. Associates v. CST, Guntur 12/07 dt. 02.08.07 50,007/-
Rs.
50,007/- Under Section 78, Rs. 5000/- Under Section 76 & Rs. 500/- Under Section 77
-do-
2. In the impugned orders, it has been held that all the three appellants rendered the "services of "Business Auxiliary Service" to the Andhra Pradesh State Electricity Board. Therefore, proceedings were initiated against the appellants. The lower authority demanded the service tax for the relevant period. That apart, penalties were imposed under Section 76, 77 & 78 of the Finance Act, 1994.
3. The learned Advocate stated that on going through the contract entered by the appellants with the APSEB, it is very clear that the main activity of the appellants is Data Processing. He referred to the definition of the "Business Auxiliary Service" and stated that during the relevant period "Information Technology Service" has been excluded from the scope of "Business Auxiliary Service." Referring to the "Business Auxiliary Service," the learned Advocate stated that computerized data processing also falls within the scope of "Information Technology Service." Once this is accepted, the services rendered by the appellants would fall squarely within the "Information Technology Service" and thereby be excluded from the scope of "Business Auxiliary Service." He relied on the decision of this Bench in the case of Bellary Computers v. CCE (Appeals), Mangalore 2007 (8) S.T.R. 470 (Tri. - Bang.) wherein similar issue was examined. Particularly he referred to Para 4.1 of the cited decision.
4. The learned Departmental Representative stated that the appellants were actually using the computer to render various services which include maintenance of accounts etc. He argued that one cannot say that anybody using a computer is rendering "Information Technology Service." He took me through the impugned order of the Commissioner (Appeals). However, it is noticed that while giving the definition of "Information Technology Service," the learned Commissioner has omitted the words "Computerized Data Processing".
5. The relevant portions in the contract are reproduced below for understanding the scope of the services rendered by the appellants.
3) The Accounting Agency shall upload and download the data from the Spot Billing machines directly either by departmental staff or by spot billing agencies on regular basis and the data in other formats shall not be accepted to avoid data manipulation.
4) The Accounting Agency shall validate the spot billing data furnished by the Departmental Staff or Spot Billing Agency with the software maintained and analyse the correctness of the bills issued to the consumer duly furnishing reports on regular basis.
5) The Accounting Agency shall prepare the D-list of defaulting consumers every month by the 3rd of succeeding month and furnish it to the concerned ERO on the same date. The Agency shall also prepare the 'D' list for defaulting consumers as and when required in the middle of the Month. The AAO/ERO in turn will handover the returned D-List to the Accounting Agency before the end of the month for review and furnish with remarks to E.R.O.
8) The Central Power Distribution Company of A.P Ltd shall supply the required input data to the Accounting Agency who shall furnish the following monthly returns in triplicate in the following formats already communicated in the Revenue Booklet during 9/98 and amendments thereon.
1) Formats of exceptional reports (19 Nos.).
2) Age wise analysis of Exceptionals (Other than Agl. Services)
3) Services appearing in different Exception lists:
4) Abstract of Exceptionals;
5) Performance Parameters Section wise;
6) Consumption pattern.
7) Month wise collection Revenue Cashiers;
8) Cumulative performance of E.R.O Collections;
9) Consumer Ledger (1 copy);
10) Ledger Abstract;
11) Ledger Summary;
12) Bill Book Abstract (2 copies);
13) Demand Collection and balance;
14) Financial Progress Report;
15) Credit Reconciliation Statement;
16) C.C Charges Arrears Report;
17) A.C.D Revenue Report;
18) Journal Entry;
19) List of New Services released and added to master specifying the periods;
20) Category changes effect in Master;
21) Phase and Load changes effected in the Master;
22) Name Transfers effected in Master;
23) Services dismantled and deleted from Master;
24) Electricity duty return
25) Abstract of cycle- wise services for billing.
26) Half-yearly ledgers / annual ledgers (1 Copy).
27) Annual Master for all the services (2 Copies);
28) Any other reports periodically devised by APCPDCL and called for shall have to be furnished (2 copies).
7) The agency shall furnish the C.A.T Rolls & Sales Data Base of the services maintained with them by 7th of every month in the format prescribed by the Company and any amendments thereto are also to be incorporated.
8) The work enumerated above is not complete and exhaustive and will embrace such other functions and works as are ancillary and incidental to the work of maintaining of the consumer accounts taken up by the Accounting Agency. The Agency shall generate additional reports as may be necessary from time to time.
9) APCPDCL contemplates implementation of Common (Software) Billing System and S.A.P (ERP). The Agency shall modify Accounting system compatible to these modules.
6. On going through the above, I find that the appellants are required to generate various MIS reports given in Para 6 of the contract and to develop the software for this purposes. Therefore, it would not be correct to state that they had not carried out Data Processing task. The services clearly fall under the scope of "Information Technology Services" and thereby they are excluded from the scope of "Business Auxiliary Service." In view of the above, I allow the appeals with consequential relief.
(Pronounced and dictated in open Court)