9911796707
TMI Blog2014 (9) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, appellants are liable to pay service tax with effect from 16.6.2005 - The demand prior to 16.6.2005 is set aside - Decided partly in favor of assessee. Intellectual Property Service - Held that:- admittedly the fact is that the appellants have the property right over a software which they allowed to be used by their clients. - demand within limitation confirmed with penalties - Decided against the assessee. - Appeal No.ST/573/11 - Final Order No. A/1099/2014-WZB/C-I(CSTB) - Dated:- 28-5-2014 - S S Kang and P S Pruthi, JJ. For the Appellant : Mr M H Patil, Adv. For the Respondent : Mr V K Agarwal, Additional Commissioner (AR) JUDGEMENT Per: S S Kang: 1. Heard both sides. 2. Appellant filed this appeal against the adjudication order whereby a demand of ₹ 4,99,07,210/- is confirmed with interest and penalty is also imposed under Section 78 of the Finance Act, 1994. The adjudicating authority confirmed the following demands after taking into consideration the activities undertaken by the appellant: (a) Computer Training ₹ 4,56,86,059/- (b) Manpower Recruitment ₹ 36,83,790/- (c) Intellectual Property Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant had also written a letter dated 31.12.2004 to the Revenue where the appellant specifically mentioned that the appellants are paying service tax in respect of computer training to professionals and corporate clients and are not paying service tax in respect of computer training to students and appellant sought clarification in this regard. This letter was duly received by the Revenue. However, no reply was received by the appellant in this regard. In these circumstances, the contention is that the allegation of suppression with intent to evade payment of tax is not sustainable and the demand beyond the normal period of limitation is not sustainable. The appellant relied upon the decision of the Tribunal in the case of Gargi Consultant Pvt Ltd reported in 2013 (32) STR 654 where the Tribunal in a similar situation held that the demand is time barred after taking into consideration the decision of the Hon'ble Supreme Court in the case of Sunwin Technosolution (supra). 6. In respect of demand of ₹ 36,83,790/- which was confirmed under the Manpower Recruitment Supply Agency Service, the contention is that prior to 16.6.2005, as per the provisions of Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned A.R. submitted that the appellant allowed their clients to use their software and the appellant had right over that software. The Revenue relied upon the definition of Intellectual property as provided under Section 65 (55a) of the Finance Act, 1994 to submit that Intellectual Property means any right to intangible property, namely, trademarks, designs, patents or any other similar intangible property. In the present case the appellants are allowing their clients to use their software on which the appellants has a property right. Hence the demand is rightly made. 13. Similar argument is made on Business Support Service. The contention is that the appellant provided space for consideration to various clients to conduct examination or other business purpose which is clearly covered under the Business Support Service. Hence the demand is rightly made. 14. In respect of computer training we find that the demand is for the period from 1.11.2004 to 30.09.2007 and the Show Cause Notice is issued on 25.6.2008 and the demand is made by invoking the extended period on the ground of suppression of facts with intent to evade payment of tax. 15. We find that Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand in the present case stand raised for the period July 2004 to March 2005 by way of issuance of show cause notice on 22-09-2010. During the relevant period all the decisions of the Tribunal were in favour of the assessee, laying down that a computer training institute is covered by the expression vocational training institute and as such, was exempted from service tax. As such when the Tribunal, an expert appellant body, has interpreted the law in favour of the assessee, no fault can be found on the part of the assessee to interpret the law in the same manner and not to pay service tax on the computer training services . It is only subsequently that the law declared by the Tribunal was reversed by the Hon'ble Supreme Court in the case of Sunwin Techno Solutions Pvt. Ltd. As such we are of the view that there was a bonafide belief on the part of the assessee not to pay service tax on the computer training services provided by them. There is no evidence indicating any malafide suppression or mis-statement with an intent to evade duty on the part the appellant. In as much as the demand stands raised against the appellant by invoking the longer period of limitation, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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