2024 (2) TMI 373 - AT - Service Tax

Jurisdiction - competency of the Additional Commissioner to adjudicate and finalize the assessment - the Learned Additional Commissioner has observed in Order-in-Original dated 31.03.2008 vide Corrigendum dated 10.02.2007, the Adjudicating Authority was changed to The Additional Commissioner of Service Tax 17-B-IAEA M.G.Road, New Delhi - HELD THAT - It is found that the Commissioner (Appeals) has also considered this issue of jurisdiction of Additional Commissioner and referred to Section 83 of the Finance Act, 1994 and Section 12E of the Central Excise Act, 1944 to hold that the Additional Commissioner had jurisdiction to adjudicate the show cause notice issued by the Assistant Commissioner - there are no infirmity in the jurisdiction of the Additional Commissioner to adjudicate the show cause notice. Taxability - consulting engineer's service - activities of the appellant in relation to computer software - benefit of exemption Notification No. 04/1999-ST dated 28.02.1999 - HELD THAT - On examining the agreement entered into between the appellant and Yamaha India it is found that the appellant is engaged in the business of software development which is exempted from service tax in view of the Notification No. 04/1999-ST dated 28.02.1999 and Circular No. 70/19/2003-ST dated 17.12.2003. It is also found that the nature of services as provided in the agreement are in relation to operation, development and facilitation of software and without said services, the usage of software would be redundant - Tribunal in the case of Nokia (India) Pvt. Ltd. cited 2006 (1) TMI 1 - CESTAT NEW DELHI has observed that the advisory support service relating to software clearly falls within the domain of the service by a software engineer and accordingly software support services were exempted from payment of service tax under the category of consulting engineer s service. The activities of the appellant are specifically made taxable under Section 65 (105) (zzzze) of the Finance Act, 1994 w.e.f. 16.05.2008 under the category of Information Technology Software Services and the appellant is registered under the provisions of service tax under this category and regularly discharging service tax liability and the same is not in dispute, but during the disputed period from 01.10.2002 to 12.03.2004, the activities of the appellant were not subject to service tax in view of the exemption notification as well as the Circular issued by the CBEC Circular No. 70/19/2003-ST dated 17.12.2003. The period in dispute, the activities of the appellant were exempted by Notification No. 04/1999 dated 28.02.1999 and the Circular No. 70/19/2003-ST dated 17.12.2003. When the appellant is not liable to pay service tax, the question of demanding interest and imposing penalty does not arise - the impugned order set aside - appeal allowed.

Summary

Issues Involved:
1. Jurisdiction of the Additional Commissioner to adjudicate the show cause notice.
2. Applicability of exemption Notification No. 04/1999-ST dated 28.02.1999 to the appellant's services.
3. Liability of the appellant to pay service tax for the period in dispute.
4. Imposition of interest and penalties.

Summary:

1. Jurisdiction of the Additional Commissioner:
The appellant contended that only an Assistant Commissioner or a Deputy Commissioner had jurisdiction to pass the assessment order. However, it was observed that the Additional Commissioner was authorized to adjudicate the show cause notice as per Section 83 of the Finance Act, 1994 and Section 12E of the Central Excise Act, 1944. The Tribunal found no infirmity in the jurisdiction of the Additional Commissioner to adjudicate the show cause notice.

2. Applicability of Exemption Notification No. 04/1999-ST:
The appellant argued that their services were exempt from service tax under Notification No. 04/1999-ST dated 28.02.1999, which exempts services provided by a consulting engineer in relation to computer software. The Tribunal examined the agreement between the appellant and Yamaha India and concluded that the appellant was engaged in software development, which is exempted from service tax. The Tribunal also referred to CBEC Circular No. 70/19/2003-ST dated 17.12.2003, which clarified that maintenance of software is not chargeable to service tax.

3. Liability to Pay Service Tax:
The appellant's services were categorized under Information Technology Software Service, which became taxable only from 16.05.2008. The period of dispute was from 01.10.2002 to 12.03.2004, during which the appellant's services were exempt from service tax. The Tribunal held that the appellant was not liable to pay service tax for the disputed period.

4. Imposition of Interest and Penalties:
Since the appellant was not liable to pay service tax during the disputed period, the demand for interest and imposition of penalties were deemed unwarranted. The Tribunal set aside the impugned order and allowed the appeal with consequential relief.

Conclusion:
The Tribunal concluded that the appellant's services were exempt from service tax during the disputed period, and the Additional Commissioner had the jurisdiction to adjudicate the matter. Consequently, the demand for service tax, interest, and penalties was set aside, and the appeal was allowed with consequential relief.