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TMI Blog2017 (7) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ice under consideration similar to the service referred in the letter issued by CBEC to Controller of Certifying Authorities to the effect that issuance on digital signature certified by the certifying authorities does not fall under the specified taxable services. As the impugned service is not a speaking order, the matter is remanded for fresh adjudication - appeal allowed by way of remand. - ST/609/12 - A/88064/17/STB - Dated:- 16-6-2017 - Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) Shri. B Kumar Iyer, Supdt.(AR), for appellant Shri. D. H. Nadkarni, Advocate, for respondent ORDER Per: Raju 1. This appeal has been filed by the Revenue against dropping of penalties under Section 76, 77 78 of the Finance Act, 1994 by the Commissioner (Appeals) against M/s.Adweb Technologies. The Commissioner (Appeals) had however confirmed the demand of ₹ 43,82,065/-. The review order also seeks the remand of the impugned order on the ground that it fails to give any justification for dropping of the demands for the period from 01/05/2006 to 15/05/2008. 2. Learned AR informed that the respondent M/s.Adweb Technologies are engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc. were developed and supplied by the certificate issuers for use in course of on-line data access or retrieval services, and Information Technology Software Services (ITSS) w.e.f 16/05/2008 since the services were provided of adaptation, up-gradation, enhancement, implementation and similar services related to information technology software installed on servers of website as well as on web-browsers. 2.2 Ld. AR argued that the Commissioner has confirmed the demand only for the period subsequent to 16/05/2008 under ITSS and dropped the entire demand for the prior period. He also pointed out that the Commissioner has failed to impose any penalty on the appellant under Section 76, 77 78 of the Finance Act. He pointed out that the Commissioner has not applied his mind to the possible classification of the service under the business support services or Development Supply of content Services for the period 01/05/2006 to 30/05/2007 and from 01/06/2007 to 15/05/2008 respectively. He pointed out that the Commissioner has relied on the letter issued by CBEC to Controller of Certifying Authorities to the effect that issuance on digital signature certified by the certifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s w.e.f 16/05/2008. As a consequence, he has argued that this being new taxable service covered by new specific entry cannot be classified under any of the pre-existing entry. In view of the decision of the Hon ble High Court of Karnataka in the case of Turbotech Precision Engineering Pvt. Ltd. He has also relied on the decision of Tribunal in the case of Wipro Ltd. - 2010 (20) STR 62 (Tri-Bang), Info Tech Software Dealers Association - 2010 (20) STR 289 (Mad), SAP India Pvt. Ltd. - 2011 (21) STR 3030 (Tri-Bang). Ld. AR pointed out that in the case of South City Motors Ltd. - 2012 (25) STR 483 , the Tribunal has distinguished the decision in the case of Indian National Ship-owners Association - 2009 (14) STR 289 (Bom) . He further pointed out that the case laws relied upon by the Commissioner has been given in the circumstances where a specific finding has been given that the said new service was not classifiable under any of the pre-existing services. 3. Ld. Counsel for the respondent argued that in respect of certificates imported by them even if it is tax is demanded they would be entitled to the Cenvat credit of the same and consequently it will be a revenue neutra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued that there was no confusion at the material time about the recovery of tax on reverse charge basis, the matter was clarified way back in 18/04/2006. In these circumstances failure to pay service tax on reverse charge basis is obviously a case of lack of bonafide. In these circumstances, it has been argued that the penalty should have been imposed under Sections 76, 77 78 of the Finance Act, 1994. 5. It is seen that in the case of Turbotech Precision Engineering Pvt. Ltd. - 2010 (18) STR 545 , the dispute was relating to classification between Consulting engineering services and the works contract service. It is obvious that work contract cannot be classified them Consulting engineering services and therefore, it was a case where it was not possible to classify the services under a pre existing service like Consulting engineering service. In the case of Wipro Ltd. - 2010 (20) STR 62 is a interim order relating to stay and therefore, no reliance can be placed on the same. In the case of SAP India - 2011 (21) STR 303 (Tri-Mum) also in para 5.1 it has been clearly held that the services provided in that case would not be covered by the definition of maintenance or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] [(3) The provisions of this section shall not apply with effect from such date as the Central Government may, by notification, appoint.] It is apparent that the Finance Act itself recognizes that it is possible for a service to be classified in more than one classification and in such case the more specific classification is to be preferred. Thus merely because a service is more specifically classifiable in one entry does not mean it cannot be classified in any other entry less specifically. Thus the entire premise of the impugned order that since a new service describes a service specifically it cannot be classified in any other service cannot be sustained. Moreover the impugned order does not specifically deal with the possibility of classification of the service provided under Business Support Services (BSS) during the period 01/05/2006 to 30/05/2007 and Development Supply of content services (DSCS) during the period 01/06/2007 to 15/05/2008. The impugned order also does not give any reasons for treating the service under consideration similar to the service referred in the letter issued by CBEC to Controller of Certifying Authorities to the effect that issuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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