2018 (4) TMI 537 - AT - Service Tax

Liability of service tax or VAT - packaged software - Extended period of limitation - Held that - It is not the issue that the revenue is demanding service tax on sale of software. The demand is on services rendered by the Appellant post sales and the demand on the same under the category of Information Technology Software Services has been correctly made. There was no attempt on the part of the Appellant to suppress the facts of services in question - the demand raised by invoking extended period is not sustainable. Appeal allowed in part.

Summary

Issues Involved:
- Demand for service tax on sale of software
- Applicability of service tax on post-sale services
- Invocation of extended period for demand
- Imposition of penalties under Section 80 of the FA 1994

Analysis:
1. Demand for service tax on sale of software:
The case involved the Appellant, engaged in manufacturing excisable goods and trading packaged software, facing a demand for service tax on the sale of software to customers based on an audit. The Appellant contended that they added a margin of 25-30% to the software procured from a supplier for services like octroi, courier, and after-sales technical support. The adjudicating authority confirmed the demand, leading to the present appeal.

2. Applicability of service tax on post-sale services:
The Appellant argued that the demand was unsustainable as they sold goods at a margin and since the software was liable to VAT, it was not subject to service tax. They cited the Supreme Court judgment in Tata Consultancy Services Vs. State of Andhra Pradesh 2005 1 SCC 308 to support their position. The Tribunal, however, noted that the demand was not on the sale of software but on post-sale services categorized as "Information Technology Software Services," which was deemed correctly made.

3. Invocation of extended period for demand:
The Tribunal observed that the Appellant had disclosed charging a margin over the software value for various services. Despite this, there was no attempt to suppress the facts of the services provided. Consequently, the Tribunal held that the demand raised using the extended period was not sustainable, as there was no suppression of facts by the Appellant.

4. Imposition of penalties under Section 80 of the FA 1994:
The penalties imposed on the Appellant were deemed unsustainable by the Tribunal, citing Section 80 of the Finance Act 1994. As the demand for service tax during the normal period and interest thereupon was upheld, the penalties were set aside. The impugned order was partially upheld, allowing the appeal in part by maintaining the demands for service tax for the normal period and interest, while rejecting the penalties.

This detailed analysis of the judgment highlights the key issues of the case, the arguments presented by both parties, and the Tribunal's findings and reasoning leading to the final decision.