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3. The appellants have been availing exemption under Notification No. 6/2006-CE dt. 01/03/2006 under the category of Customized Software mentioned at Sl. No. 27 of the said notification by treating the customized software as goods. After introduction of service tax on 'Information Technology Software Services (ITSS, for short) w.e.f. 16/05/2008 and subsequent amendments to the said definition in 2009, it is alleged by the Department that the activities undertaken by them viz. development, adaptation, upgradation, enhancement, ST/343/2011, ST/2559/2011, ST/2560/2011, ST/26441/2013, ST/21868/2014, ST/20119/2017 implementation, design and promotion and other similar services relating to ITSS as per the requirement of the customers, they failed to discharge service tax on the customized software for the period from 16/05/2008 to 31/08/2009. Periodical Show-cause notices were issued to the appellant for recovery of the said service tax amount along with interest and penalties thereafter. The said demand Notices were later adjudicated and confirmed with interest and penalties under Section 76 and 77 of the Finance Act, 1994. Aggrieved by the said Orders, the present appeals are filed.

4. At the outset, the learned senior counsel for the appellant submitted that there cannot be any doubt or dispute that the customized software for DCS have been sold by the appellant in a recorded media and under the cover of Central Excise invoices by claiming applicable exemption notification to the said software during the relevant time. It is his contention that when the customized software for DCS cleared by classifying the same under Chapter sub-heading 8523 of CETA, 1985, in a recorded media, then it cannot be considered as rendering taxable services also under the category of ITSS brought into effect from 16/05/2008. It is his contention that the said action of the Department would amount to approbating and reprobating simultaneously and apparently would amount to double taxation, which is not permissible in law.

19. A plain reading of the 'scope of work' under the above purchase order reveals that the appellants are required to deliver at the site of the customer, the entire DCS system which includes both hardware and software and consumables.

20. The Senior Counsel appearing for the appellant has vehemently argued that as part of the DCS system, the appellant imported the software from their overseas group companies in Singapore and discharged applicable CVD on the said packaged / canned software declaring the same under CTH 85238020 of Customs Tariff Act, 1975. No cenvat credit has been availed on the CVD paid on such canned software. The said software later customized by the appellant after taking inputs from the clients about their requirements and later sold on a media i.e. CD to the customers along with DCS. It is his argument that the said customized software finds a place in the excise tariff and sold/cleared on a media raising Central Excise invoices being excisable goods, as per the agreed terms and conditions of the Purchase Order of the respective customers, hence, the same Customize software cannot be subjected again to service tax under Information Technology Software Service inserted w.e.f. 16/05/2008, as the same is not sold/supplied as 'service'.

21. There is no dispute on the clearance/sale of customized software under separate excise invoices along with DCS classifying the same under Chapter sub-heading 85238090 of ST/343/2011, ST/2559/2011, ST/2560/2011, ST/26441/2013, ST/21868/2014, ST/20119/2017 CETA,1985 and availing benefit of exemption Notification No.6/2006-CE dt. 01/03/2006 prior to 16/05/2008. It is also not is dispute that Canned software/Customized software as "goods" being held in a series judgments accepted by both sides. But, the dispute arose only after introduction of the service tax on 'Information Technology Software Service' w.e.f. 16/05/2008.