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TMI Blog2020 (2) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... g of dedicated leased line provided by the overseas service provider - HELD THAT:- This issue is also settled in favour of the appellant as has been held by co-ordinate Bench in TCS E-SERVE LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [ 2014 (6) TMI 655 - CESTAT MUMBAI] , that for eligibility, the service provider has to be a Telegraph Authority as defined in Section 65(105)(zzzx) of the Finance Act. Further as per CBEC instructions F.No.137/21/2011 dt. 15/07/2011, the service tax shall not be payable where service is provided by foreign vendor and such foreign vendor is not the Telegraph Authority under the Indian Telegraph Act. Management consultancy services - issue is in respect of implementation of Enterprise Resource Planning (ERP) - Case of appellant is that such activity of the ERP falls under Consulting Engineering Services and further Software Engineering Consultancy is exempted from the purview of service tax - HELD THAT:- The said issue has also been considered by the Tribunal in the case of IBM INDIA PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, BANGALORE [ 2009 (4) TMI 314 - CESTAT, BANGALORE] wherein it was observed that ERP implementation ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars / classification Appeal No. ST/489/2011 for period 01/04/2004 to 31/03/2008 Appeal No.ST/1881/2011 for period 01/04/2008 to 31/03/2009 Total 1. Maintenance Repair Service ₹ 17,19,50,447/- ₹ 13,35,63,272/- ₹ 30,55,13,719/- 2. Business Support Service ₹ 15,83,820/- ₹ 12,45,888/- ₹ 28,29,708/- 3. Management Consultancy Services ₹ 27,34,97,260/- ₹ 17,52,47,619/- ₹ 44,87,44,879/- 4. Business Auxiliary Services ₹ 25,64,915/- ₹ 3,67,339/- ₹ 29,32,254/- Total ₹ 44,95,96,442/- ₹ 31,04,24,118/- ₹ 76,00,20,560/- Being aggrieved, appellants are before this Tribunal. 2. As regards the first issue of Maintenance an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection with tangible goods. In this view of the matter, we would now have a look at the new levy introduced on 16-5- 2008. 5.4 The above new taxable service pertains to information technology software. The debate before us was, by and large, in relation to computer software. The Circulars and case-law cited before us were also in the context of discussion on computer software. The new levy w.e.f. 16-5-2008 is in relation to information technology software. The question is whether the computer software and information technology software were treated differently or as same by the legislature. At this juncture, our mind travels to an explanation added to Section 65(64) of the Finance Act, 1994. This explanation which was added w.e.f. 1-6-2007 reads as follows :- For the removal of doubts, it is hereby declared that, for the purposes of this clause, goods includes computer software . This explanation was amended w.e.f. 16-5-2008 as follows :- For the removal of doubts, it is hereby declared that for the purposes of this clause - (a) goods includes computer software ; (b) properties includes information technology software , (underlining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable to be subjected to levy of Service Tax under the head maintenance or repair service under Section 65(105)(zzg) read with Section 65 (64) of the Finance Act, 1994. The services rendered by the appellant to their customers are in the nature of information technology software service which was made taxable w.e.f. 16-5-2008 only. Such service is not to be subjected to levy of Service Tax under any other entry. Therefore, the demand of Service Tax and the connected penalties are only liable to be set aside. On this issue, learned AR relied on the impugned order. In view of the precedent order, we find that this issue is squarely covered in favour of the appellant and accordingly this issue on ground is allowed. 3. Next issue is regarding Business Support Services. Regarding this, the learned counsel submits that it is with respect to using of dedicated leased line provided by the overseas service provider. We find that this issue is also settled in favour of the appellant as has been held by co-ordinate Bench in TCS E-Serve Ltd. Vs. CST, Mumbai [2014(33) STR 641 (Tri. Mum.)], that for eligibility, the service provider has to be a Telegraph Authority as defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturers of trucks which was exported to Ukraine. Under such circumstances, this Tribunal held that the services that are not connected with the manufacture or with the transport of goods till the customs frontier of the country, can be disassociated from use within the country and hence would not lie within the ambit of legal fiction of import of services. We further reproduce para 18 and 19 of the ruling for clarity and reference. 18. From the context in which the appellant has entered into agreements with the three providers who were held to be rendering advertising agency service it would appear that these are intended to relate to the activities of the appellant in relation to export goods after their arrival in Ukraine. At no stage are they required for any activity of the appellant in India. The service itself is not warranted except in relation to export by the appellant and hence tax, even if leviable, is not to be burdened onto the export goods. 19. The original authority has failed to take note of the destination of the goods manufactured by the appellant and has deemed the services rendered in Ukraine to have been imported into India for business and com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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