Custom, Excise & Service Tax Tribunal
K.P. Rao & Company vs The Commissioner Of Customs & Central ... on 19 May, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Stay & Appeal No. ST/stay/66/2008 in ST/114/2008 (Arising out of Order-in-Appeal No. 09/2007(T)(ST) dated 02.08.2007 passed by the Commissioner of Central Excise, Customs & Service Tax (Appeals), Guntur) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? K.P. Rao & Company Appellant Vs. The Commissioner of Customs & Central Excise Guntur Respondent
Appearance Shri Laxminarayan Goyal, Consultant, for the appellant Smt. Sudha Koka, Authorised Representative (SDR), for the Revenue CORAM DR. S.L. PEERAN, HONBLE MEMBER (JUDICIAL) Date of Hearing:19.05.2008 Date of decision:19.05.2008 STAY ORDER No._______________________2008 FINAL ORDER No._______________________2008 Per Dr. S.L. Peeran The stay and appeal are taken up together for disposal as per law, as the issue is finally settled by the Tribunal ruling rendered in the case of M/s. Dataware Computers and two others vide Final Order Nos. 479 to 481/2008 dated 25.03.2008. The Department proceeded against the appellants who were working under contract for ERO, Adoni of M/s. Transmission Corporation of Andhra Pradesh (AP Transco) for providing services of maintenance of records and furnishing of information/outputs, billing and accounting work on monthly/bi-monthly, uploading data to hand held computers to prepare electricity bills of the consumers by the spot billing agencies and staff of APCPDCL besides downloading the billed information to their computers, downloading the information on collections from consumers, e-seva centres and related activities. The Revenue proceeded to bring these activities under Business Auxiliary Services and confirmed the demand of Service Tax w.e.f. 01.07.2003. The appellants took the stand that these activities were not covered under Business Auxiliary Services but under Information Technology Services. Both the authorities did not accept their contention and demands along with interest and penalty were confirmed.
2. The learned Consultant submits that in an identical situation, this bench, in the case of M/s. Dataware Computers & two others by Final Order Nos. 479 to 481/2008 dated 25.03.2008, has upheld the assessees contention and set aside the demands confirmed under Business Auxiliary Services. He produced a coy of the Final Order.
3. The learned SDR reiterated her submissions earlier recorded in the noted Final Order. She submits that the orders given by the lower authorities are correct.
4. On a careful consideration and on examination of the facts with those of the facts recorded in M/s. Dataware Computes case, it is seen that identical activities were carried out by the appellants with those of M/s. Dataware Computers. The facts are identical. This Bench, after due consideration, noted that these activities does not fall under Business Auxiliary Services and held that during the relevant period, the activity fell under Information Technology Services. The findings recorded in paras 5 & 6 are reproduced herein below:-
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.
6) 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.
5. Respectfully following the ratio of the above noted final order, the stay application and appeal are allowed by setting aside the impugned order.
(Pronounced and dictated in open Court) (S.L.PEERAN) Member (J) /pr/