2008 (7) TMI 296 - AT - Service Tax

Import of software whether it liable to service tax or duty - demand under Online information and Data Base Access and Retrieval Services - contention that imported software is in the nature of goods and not service and service tax can be imposed on such software contention that even if such software can be considered as import of service, at the material time the recipient of such service were not liable to pay Service tax issue is not free from doubts stay granted

Summary

Issues involved: Import of software, classification as goods or services, liability for service tax, jurisdiction of the Commissioner.

Analysis:
1. Import of Software: The Appellants imported software from a foreign company to incorporate into their manufactured systems. The argument was made that the imported software should be classified as goods and not services, exempt from Customs Duty, as it becomes an integral part of the systems subjected to excise duty.

2. Classification as Goods or Services: The Tribunal acknowledged that the imported software was directly integrated into the systems manufactured by the Appellants. Due to the digital form of import, the classification as goods or services was deemed uncertain, warranting a waiver of pre-deposit.

3. Liability for Service Tax: The Respondent argued that a portion of the imported software involved downloading of data, making it eligible for Service tax under "Online information and Data Base Access and Retrieval Services." However, the Appellants contended that no Service tax liability existed during the relevant period, as the law was amended later to impose such liability.

4. Jurisdiction of the Commissioner: The Tribunal raised concerns regarding the jurisdiction of the Commissioner who passed the impugned Order. Referring to a previous decision, it was noted that the Commissioner lacked the necessary jurisdiction under the Central Excise Statute, casting doubt on the validity of the Order passed under the Service Tax Statute.

5. Decision: Considering the arguments presented and the prima facie findings, the Tribunal decided to waive the pre-deposit requirement during the pendency of the Appeals. The Order highlighted the uncertainties surrounding the classification of the imported software, the absence of liability for Service tax during the relevant period, and the jurisdictional issues with the Commissioner's authority. The parties were granted the option to request an early hearing due to the significant revenue involved. The question of limitation was deferred for consideration during the regular appeals.