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74. It is not in dispute that when a programme is created it is necessary to encode it, upload the same and thereafter unloaded. Indian law, as noticed by my learned Brother, Variava, J., does not make any distinction between tangible property and intangible property. A „goods‟ may be a tangible property or an intangible one. It would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of transmitted, transferred, delivered, stored and possessed. If a software whether customized or non-customized satisfies these attributes, the same would-be goods. Unlike the American Courts, Supreme Court of India have also not gone into the question of severability.

4. Ld Counsel also draw our attention to M/s Engineering Analyzing Centre of Excellence Pvt Ltd. Vs. C. Commercial Service Tax Appeal No. 2545 of 2011 Taxes - 2022 (3) SCC 321 and submits that if the goods are capable of being brought and sold; being transmitted; being transferred/ delivered; being stored as and possessed will be called goods. He submits that software, whether customized or non- customized satisfies these attributes and therefore, would qualify to be goods,. Since all the above attributes are satisfied, the software imported by the Appellant is goods and not liable to service tax.

5. Ld Counsel also draw our attention to the judgment of the Hon‟ble Supreme Court in the matter of CST vs. M/s Quick Heal Technologies Ltd - (2022 (03) GSTL 305 SC (para 65) wherein it was held that if it is a transaction of sale of software and once if it is accepted that software to be in the CD and there cannot be in a separate service element in the transaction. Ld Counsel also relies the decision of the Hon‟ble High Court of Karnataka in the matter of Infosys Ltd Vs. DC CT (2015 TIOL 2106-HC-KAR-VAT) wherein it was held that packaged readymade, of the shelf software are pure goods liable only to VAT. The Ld Counsel also submits that as held by the Hon‟ble High Court of Madras in the matter of M/s Infosys Technologies Ltd Vs. Commissioner of Commercial Taxes (2009 (233) ELT 56), if the software whether customized or non- customized satisfy the rule as a goods, it will also be goods for the purpose of sale tax. Thus, the software imported and sold by the Appellant is import and sale of goods and not liable to service tax.

13. As regarding the issue on merits, reliance of the Learned AR on the judgment of the Apex Court in the matter of M/s Idea Mobile Communication, the facts are different from the Appellant‟s case. In the above matter, the Tribunal held that service tax is not sustainable as sale tax paid on the sim cards on. However, the Hon‟ble High Courts concluded that service tax payable is as much as Sim cards having not intrinsic value and it is supplied for the customer for providing mobile services. Sales tax authorities dropped proceedings for inclusion of the activation charges after remand by Hon‟ble Supreme Court in the matter of M/s BSNL. As regarding the demand of duty against the goods imported in physical form by CVD mode, as per the judgment of the Hon‟ble Supreme Court in the matter of M/s Tata Consultancy Services (TCS) (supra), a transaction sale of computer software is clearly a sale of "goods" within the meaning of the term as defined in the said Act. The term "all materials, articles and commodities" includes both tangible and intangible/incorporeal Service Tax Appeal No. 2545 of 2011 property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed etc. The software programmes have all these attributes. Similarly in the matter of M/s Engineering Analyzing Centre of Excellence Pvt Ltd. Vs. C. Commercial Taxes - 2022 (3) SCC 321. It is held that if a software whether customized or non-customized satisfies these attributes i.e. the goods are capable of being brought and sold capable of transmitted, transferred delivered, stored as and possessed, they would qualify to be goods. Since all the above attributes are satisfied, the software imported by the Appellant is goods and not liable to service tax. Further as per the judgment of Hon‟ble High Court of Karnataka in the matter of Infosys Ltd Vs. DC CT (2015 TIOL 2106-HC-KAR-VAT), packaged readymade, of the shelf software are pure goods liable only to VAT. The Ld Counsel also submits that as held by the Hon‟ble High Court of Madras in the matter of M/s Infosys Technologies Ltd Vs. Commissioner of Commercial Taxes (2009 (233) ELT 56), if the software whether customized or non-customized satisfy the rule as a goods, it will also be goods for the purpose of sale tax. Thus, the software imported and sold by the Appellant is import and sale of goods and is not exigible to service tax.