9911796707
TMI Blog2009 (4) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated Period Service Tax and Interest Penalty ST/422/2007 5-9-2007 8-32003 to 8-9-2004 Rs.1,73,23,101/- Rs. 200/- per day u/s 76 Rs. 1000/- u/s 77 Rs. 2,60,00,000 u/s 78 ST/513/2008 17-8-2008 1.-3-2006 to 30.9-2006 Rs.3,57,32,749/- Rs. 200/- per day u/s 76 Rs. 1000/- u/s 77 ST/512/2008 16-8-2008 1-10-2006 to 31-3-2007 Rs.3,94,59,369/- and Interest u/s 75 Rs. 200/- per day u/s 76 As the issues involved in all the above appeals are one and the same, we are passing a common order. 2. We heard both sides. 3. The appellants are providing the following enterprise resource planning (ERP related services). (a) ERP planning and advice. (b) Actual ERP implementation service involving implementation and adaptation of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information technology soft ware for use in the course, or furtherance, of business or commerce, including..... (iii) adaptation, upgradation, enhancement, implementation and other similar services related to information technology software". 4.2 The following cases have held that introduction of new entry im plies that services were not taxable earlier:- (a) BCCI v. CST [2007 (7) S.T.R. 384 (Tribunal - Mumbai)] (b) Glaxo Pharmaceuticals [2006 (3) S.T.R. 711 (Tri.-Mumbai) = 2007 (188) E.L.T. 171 (CESTAT-Mumbai)] (c) CCE v. MRF Ltd. [2004 (179) E.L.T. 472 (Tri.-Chennai)] (d) Kaveri Telecom Products Ltd. [2006 (1) S.T.R. 226 (Commr. Appl.) = 2006 (4) STJ 990 (Commissioner, Appeals, l3angalore)] 4.3 The ERP implementation services would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Implementation of the software package October 16, 1998 to March 31, 2000 SAP India System, Applications & Products in Data Processing (P) Ltd. v. CST Bangalore [2007-TIOL-772-CESTAT-BANG.] Implementation of the software package Post April 1, 2000 4.5 It was stated that the scope of deliverables under the agreement are the same and are in line with SAP India. SAP India and the appellant are treated as competitors in this field and have employees of the same qualifications and skills. 4.6 Applicability of consulting engineer's service: Prior to May 16, 2008, the activities of the appellant would tall under consulting engineer's service. The following should be noted in this regard: (a) For the period prior to September 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing engineer's services' and information technology services from 'business auxiliary services', the following cases have held that once there is a specific entry for an item in the tax code, the same cannot be taxed under a different entry: (a) Federal Bank Limited [2009 (15) S.T.R. 279 (Tribunal) = 2009-TIOL 584-CESTAT-B NG] (b) Led Pathlabs Ludhiana, Collection Centre [Final Order No. 289-292/06-ST (CESTAT-New Delhi) = 2006 (4) S.T.R. 527 (Tribunal)]. 4.11 Our attention was also invited to an existing order in the appellant's case passed by the Dy. Commissioner of Central Excise in relation to implementation and integration of software which is favourable to the appellant. It was also stated that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly and later by excluding it from the scope of 'consulting engineering services' in the definition itself. Once a particular service is excluded from the scope of service tax where it normally is supposed to fall then it cannot be taxed under some other category. This principle has been followed in the case laws of Federal Bank Ltd. and also Lal Pathlabs Ludhiana, Collection Centre cases which have been cited earlier. However, w.e.f. 16-5-2008, information technology service was introduced. The definition of information technology service is "any service provided or to be provided to any person in relation to information technology software for use in the course, or furtherance, of business or commerce, including. (i) development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts have clearly shown that prior to 16-5-2008, even the services rendered by the appellant were excluded from the scope of consulting engineer's service and also the judicial pronouncements made it clear that they would not be covered under the management consultancy services. In view of these, there is no merit in the demands confirming the Service Tax of the services under the category of management consultancy services for the period prior to 16-5-2008. It should be borne in mind that the appellants have already been paying the Ser vice Tax for ERP Planning and advice under the category of management consultancy service. Hence, the impugned orders have not merit. We set aside the same and allow the appeals with consequential relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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