2014 (2) TMI 805 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - Information Technology Software Services - Held that - The subject matter of the impugned demand is IT software which, in one stream, was transferred by the appellant to their customers through internet to enable the latter to download the same and use it for their purposes under specific licence granted in this behalf and, in another stream, recorded in compact discs (CDs) and sold off the shelf to customers - As regards IT software recorded in CDs and sold to customers, the question whether service tax under the same head was leviable on this activity irrespective of any excisability of the product is highly debatable. Therefore, for the present purpose, we hold that the appellant has not made out any prima facie case on merits against whatever service tax and education cesses were demanded on the value of IT software transferred to their clients electronically. Adverting to the plea of limitation, we find that the appellant declared their activities to the department, admittedly, only in May 2009. Prior to that date, there was no disclosure of the activities to the department even though the appellant was bound to be aware of at least one stream of their activity having been covered under Section 65(105)(zzzze) of the Finance Act, 1994 - Conditional stay granted.

Summary

Issues: Application for waiver and stay of adjudged dues including service tax and education cesses, liability of the appellant to pay service tax under ITSS, contention of suppression of facts by the appellant, plea of limitation, pre-deposit amount determination.

Analysis:
1. Waiver and Stay of Adjudged Dues: The appellant sought waiver and stay of the adjudged dues, including service tax and education cesses amounting to Rs.60,41,103 demanded for the period from May 2008 to September 2010. The appellant argued that their activities were covered by the Central Excise law, while the adjudicating authority held that the appellant provided a taxable service under Section 65(105)(zzzze) of the Finance Act, 1994. The appellant also contended that there was no suppression of material facts as they had declared their activities to the department in May 2009. The Additional Commissioner argued that there was suppression until the declaration was made. The Tribunal considered these arguments and determined that the appellant did not make out a prima facie case against the demanded service tax and education cesses related to IT software provided electronically to clients.

2. Liability to Pay Service Tax: The Tribunal focused on the IT software provided electronically by the appellant to customers, which fell under the definition of Information Technology Software Services (ITSS) under the Finance Act, 1994. The question of whether service tax was leviable on IT software recorded in CDs and sold to customers was deemed debatable. The Tribunal held that the appellant failed to establish a prima facie case against the service tax and education cesses demanded for the electronically transferred IT software. The Tribunal also noted that the appellant declared their activities to the department only in May 2009, and estimated the service tax and education cesses for the period before that to be around Rs.8 lakhs.

3. Plea of Limitation and Pre-deposit Amount: The Tribunal determined that the appellant should pre-deposit an amount of around Rs.25 lakhs. The appellant offered to pre-deposit Rs.20 lakhs, which the Tribunal considered a fair proposition. The Tribunal directed the appellant to pre-deposit the offered amount within four weeks and report compliance. Upon compliance, there would be a waiver and stay in respect of the penalties imposed, as well as the balance amount of service tax, education cesses, and interest.

This detailed analysis of the judgment provides insights into the issues raised, arguments presented, and the Tribunal's decision regarding the waiver, liability to pay service tax, suppression of facts, limitation plea, and pre-deposit amount determination.