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TMI Blog2023 (6) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... d which is disputed up to 15.05.2008 is not sustainable under Management or Business Consultant Service . The very same issue under identical fact has been considered by CESTAT Bangalore in the case of IBM INDIA PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, BANGALORE [ 2009 (4) TMI 314 - CESTAT, BANGALORE ] wherein it was held that it cannot be liable to Service Tax for a period prior to that. In the present case, the entire period is prior to 16-5-2008. The appellants 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. The service tax demand under the head of management or business consultant service for the period prior to 16.05.2008 is not sustainable - As regard the service tax liability for the period from 16.05.2008, the same has been discharged by the appellant along with interest. Hence, the same is maintained. Since the issue involved is of pure interpretational nature no mala-fide can be attributed to the appellant for non-payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Information Technology Software Service . The appellant paid service tax of 23,81,235/- under the category of Information Technology Software Service along with interest of Rs 1,44,179/- on 22.10.2010 on total value of Rs 2,47,35,691/- which was paid by the appellant towards ERP related services during the period 2009- 2010. The appellant further paid service tax of 10,13,121/- along with interest of Rs. 3,00,600/- after audit and during investigation carried out by the department. The appellant was issued with show cause notice dated 04.10.2011 demanding amount of Rs. 58,54,029/- under reverse charge mechanism in terms of Section 66 A read with Rule 2 (1) (d) (iv) of Service Tax Rules, 1994 along with interest and penalty under Section 76,78,77(1) and 77 (2) of the Finance Act for the period 2006-07 to 2009-10. The department alleged that the ERP related services received by the appellant were taxable under Management Consultant Services for the period up to 15.05.2008and thereafter from 16.05.2008 under Information Technology Software Service on introduction of said service. The show cause notice invoked extended period of limitation under section 73 of the act on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is for sharing of costs and not for provision of service and hence, no liability of service tax could arise. He placed reliance on the following judgments:- Intercontinental Consultants Technocrafts Pvt. Ltd 2013 (29) STR 9 (Del.) Sercon India Pvt Ltd 2013 TIOL 223- HC- DEL-ST Hazira LNG Pvt. Ltd 2022 (11) TMI 437 Gujarat Sidhee Cement Ltd - 2019 (5) TMI 1459 Reliance Ada Group Pvt. Ltd - 2016 (3) TMI 810 UOI vs. Intercontinental Consultants Technocrats Pvt. Ltd 2018 (3) TMI 357 CST vs. Bhayana Builders (P) Ltd 2018 (2) TMI 1325 2.3 He further submits that implementation of software is not leviable to service tax under the category of Management or Business Consultant Service . He referred to the definition of Management Consultant in term of 65(65) and 65 (105)(r) of the Finance Act, 1994. He also refer to research publication namely Consulting to Management by Englewood Cliffs, NJ. Prentice- Hall,1983. 2.4 By referring to the above he submitted that the appellant was not receiving advice consultancy or technical assistance and therefore, cannot be covered under the ambit of management consultancy. 2.5 Without Prejudice, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 214) ELT 321 (SC) CCE VS. Coca Cola India (Pvt.) Ltd 2007 (213) ELT 490 (SC) Alembic Vs CCE, 2007 (218) E.L.T. 607 CCE VS Indeos Abs Ltd., 2010 (254) ELT 628 (Guj) 2.8 He further submits that penalties in the present case are not imposable as the issue involved in the present case is interpretation of statutory provision. Moreover, simultaneous penalty under section 76 and 78 of the FA, 1994 cannot be imposed in view of the decision of Gujarat High Court in the case of M/s. Raval Trading Company vs. Commissioner of Service Tax 2016 (2) TMI 172. In the facts of the case no penalty is applicable invoking section 80 of the Finance Act, 1994. 3. Shri Ajay Kumar Samota, Learned Superintendent (AR) reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the record. We find that the appellant have received services from foreign based provider namely CIBA, Switzerland and BASF, SEA, Singapore towards ERP system related services. As per the revenue, the said service up to 15.05.2008 is classifiable under management or business consultant service whereas revenue itself has admitted that the same service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ware, (iv) providing advice, consultancy and assistance on matters related to information technology software, including conducting feasibility studies on the implementation of a system, specifications for a database design guidance and assistance during the start-up phase of a new system, specifications to secure a database, advice on proprietary information technology software, (v) acquiring the right to use information technology software for commercial exploitation including right to reproduce, distribute and sell information technology software and right to use software components for the creation of and inclusion in other information technology software products. (vi) Acquiring the right to use information technology software supplied electronically. 7 . In the present case, the ERP implementation service is definitely for use in furtherance of business and commerce and the service under dispute is for the implementation. So, implementation of the ERP services is specifically covered under the information technology service, which was effective only from 16-5-2008. Under these circumstances, it cannot be liable to Service Tax for a period prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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