Custom, Excise & Service Tax Tribunal
Yalamanchili Software Exports Ltd vs Commissioner Of Central Excise & St on 23 January, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI Appeal No.ST/613/2010 [Arising out of Order-in-Original No.13/2010 dt. 15.06.2010 passed by the Commissioner of Central Excise, Chennai-II] Yalamanchili Software Exports Ltd. Appellant Versus Commissioner of Central Excise & ST, Chennai Respondent
Appearance:
Ms. S. Vishnu Priya, Advocate For the Appellant Shri S. Govindarajan, AC (AR) For the Respondent CORAM :
Honble Ms. Sulekha Beevi C.S. Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Date of hearing / decision : 23.01.2018 FINAL ORDER No. 40209 / 2018 Per B. Ravichandran The appellant is confirmed with the service tax liability under the category of maintenance or repair service under Section 65 (64) read with Section 65 (105) (zzg) of the Finance Act, 1994 for the period 9.7.2004 to 7.10.2005.
2. The Ld. counsel for the appellant submitted that first of all they are not engaged in any maintenance or repair of software. They are developers of software. Even otherwise, it is submitted that the computer software is also to be considered as 'goods' is clarified through Explanation inserted under Section 65 (64) for the tax entry "Management, Maintenance or Repair Service". Such Explanation specifically stated that for removal of doubts, it is hereby declared that for the purpose of this clause, "goods" includes computer software. It is clear that there was bonafide doubt regarding maintenance of computer software is at all taxable under Management, Maintenance or Repair Service. In such situation, the present proceedings which were initiated by issue of show cause notice dt. 21.10.2008 invoking extended period is not at all sustainable. Reliance was also placed on various clarifications dt. 17.2.2003 and 1.6.2007 issued by the Board.
3. Ld. A.R submitted that the Explanation inserted is only to remove doubts and as such it should be treated as existing all along in the tax entry.
4. We have heard both sides and perused the appeal records.
5. While considering the contest against the demand on limitation, we note that the Board itself examined the issue only consequent to the decision of Hon'ble Supreme Court in the case of TATA Consultancy Services Vs State of Andhra Pradesh - 2004 (178) ELT 22 (SC). Apparently, the whole issue of tax liability came only upon consideration to treat software as goods. It is clear that the dispute in the present case is purely of technical interpretation. This can be seen from the Explanation inserted in the tax entry which itself talks about removal of doubts. Accordingly, we note that even without examining the merits of the claim of the appellant, the demand will not survive due to limitation. As such the impugned order is set aside and the appeal is allowed with consequential relief, if any, as per law.
(dictated and pronounced in court)
(B. Ravichandran) (Sulekha Beevi C.S)
Member (Technical) Member (Judicial)
gs
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Appeal No.ST/613/2010