Custom, Excise & Service Tax Tribunal
Yes vs Represented By : Shri Rajendra Nagar, ... on 5 November, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : ST/318 of 2009 (Application No. ST/S/1429 of 2009) Arising out of : OIA No. 115/2009(STC)LMR.Commr.(A)/Ahd Dated 09.4.2009. Passed by : Commr. (Appeals), C.Ex. & Cus., Ahmedabad For approval and signature : Honble Mr. B.S.V. Murthy, Member (Technical) Hon'ble Mr. Ashok Jindal, Member (Judicial) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Appellant (s) : Commissioner of Service Tax Ahmedabad Represented by : Shri Rajendra Nagar, SDR Respondent (s) : M/s. Epitome Tech. Private Limited
Represented by : None CORAM :
Honble Mr. B.S.V. Murthy, Member (Technical) Hon'ble Mr. Ashok Jindal, Member (Judicial) Date of Hearing : 05.11.2009 Date of Decision : 05.11.2009 ORDER No. _____________ /WZB/AHD/2009 Per : Mr. B.S.V. Murthy, In the stay application, Revenue has requested for stay the operation of Commissioner (Appeals) order wherein she has held that services of testing software or auditing software provided by the respondents is not liable to service tax. The objection of the department is that Commissioner (Appeals) has held that services are not liable to tax whereas the appeal was against the imposition of penalties on respondents because of short payment/ delayed payment/ non payment of service tax. We find that Commissioner (Appeals) in his order, no doubt has observed that services of audit/ validation of software provided by the respondents cannot be categorized under the Consulting Engineering Services. However, it has to be noted that matter before Commissioner (Appeals) was whether the imposition of penalties by Original Adjudicating Authority under Section 76 and 77 was justified or not. She has taken a view that when services are not liable to tax the question of penalty does not arise and accordingly, she has held that no penalty is imposable. We also find that we are in agreement with findings and discussion of her order in Para 9 and 10, which are reproduced below :-
9. I find that the appellants are admittedly providing taxable services falling within the ambit of service category defined as taxable service under Section 65 of the Act. 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. They solve technical problems that arise. What is important to be noted in the present case is that the appellants are providing services in the disciplines of computer software engineering and Notification 04/99-ST dated 28.2.1999 is evident that such services are correctly classifiable under Consulting Engineers service. This was further made clear by expanding the definition of related taxable service and an Explanation inserted thereafter.
10. I find that the specific services rendered by the appellants were exempted under Notification 04/00-ST dated 28.2.1999 till 10.9.2004. Thereafter, till 01.6.2007, it remained excluded from the taxable service as per the definition of taxable service provided under Section 65(105)(g) of the Act which read as to a client, by a consulting engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering including the discipline of computer hard-ware engineering but excluding the discipline of computer software engineering . The read of the Notification and ht definition of the taxable service in relation to consulting engineers service make it crystal clear that the services related to computer software engineering was not taxable till 01.6.2007 and on that ground, I am inclined to extend the benefit to the appellants.
2. Since the issue involved is short and we find that no further hearing is required to come to conclusion and accordingly, we reject the stay petition and take up the appeal itself for consideration. In view of the observations made by us on the basis of findings of Commissioner (Appeals) , we reject the appeal filed by the Revenue.
(Dictated in the Court)
(Ashok Jindal) (B.S.V. Murthy)
Member (Judicial) Member (Technical)
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