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TMI Blog2023 (9) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant period - the service received by the appellant is indeed Information Technology Service and during the relevant period, the same was not taxable in terms of exclusion from Business Auxiliary Service. It is settled that the ERP Service is clearly an Information Technology Service. The same being excluded from the Business Auxiliary Service cannot be charged to service tax under Business Auxiliary Service. There are force in the argument of the learned counsel with regard to the limitation in the present case, if at all there is any service tax liability, the appellant is entitled for cenvat credit of the same and due to which the entire exercise will amount to Revenue neutral. In this position as settled in various judgments wherever there is a revenue neutral situation, the malafide cannot be attributed to the assessee. In the present case also, there is no mens rea or suppression of fact etc., on the part of the appellant, therefore, the demand is not sustainable on the ground of time bar also. The impugned order is not sustainable - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 07-08 respectively) under Section 73(1) read with Section 68 of the Finance, 1994, invoking extended period of five years, on said amount paid by them to their parent company under "Business Auxiliary Service" along with interest at applicable rate under Section 75 and also proposed penalties under Sections 76,77 & 78 of the Finance Act, 1994. The said SCN was adjudicated by the adjudicating authority vide impugned order and demand was dropped. 1.1 Being aggrieved with the impugned order the appellant preferred the appeal before the Commissioner, (Appeals). The Commissioner (Appeals) vide Order-In-Appeal dated 07.02.2013 allowed the appeal filed by the appellant and set aside the impugned order. 1.2 On appeal being filed by the appellant against said order 07.02.2013 issued on 12.02.2013 of the Appellate Authority, the CESTAT, Ahmedabad vide its Order No. A/11127/WZB/AHD/2013 dated 27.08.2013 allowed the appeal by way of remanding the case back to the Appellate Authority for fresh adjudication after following the principles of natural justice. While remanding back, the Tribunal has specifically observed that- "Learned counsel brought to our notice that adjudicating authority ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the service in question, the appellant are entitled for the cenvat credit, therefore, the entire exercise is Revenue neutral and for this reason also the demand for extended period cannot be made. 3. Shri A.K. Samota, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of records, we find that there is no dispute that the appellant have received ERP System for their use from their head office USA. In case of service tax liability and reverse charge mechanism, the service tax is payable considering the service provided by the service provider in the present case head office USA is a service deemed to have been provided by the service recipient, therefore, in case of procurement of ERP System, the appellant's head office USA is a service provider of ERP system which is nothing but Information Technology Service, therefore, in the hand of the appellant, the classification service must be same as IT Service. In the present case, the demand was raised under BAS which admittedly excluded the IT Service, which is not in dispute for the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exception lists; (4) Abstract of Exceptionals; (5) Performance Parameters Section-wise; (6) Consumption pattern; (7) Month-wise collection Revenue Cashiers; (8) Cumulative performance of E.R.O Collections; (9) Consumer Ledger (1 copy); (10) Ledger Abstract; (11) Ledger Summary; (12) Bill Book Abstract (2 copies); (13) Demand Collection and balance; (14) Financial Progress Report; (15) Credit Reconciliation Statement; (16) C.C. Charges Arrears Report; (17) A.C.D Revenue Report; (18) Journal Entry; (19) List of New Services released and added to master specifying the periods; (20) Category changes effect in Master; (21) Phase and Load changes effected in the Master; (22) Name Transfers effected in Master; (23) Services dismantled and deleted from Master; (24) Electricity duty return; (25) Abstract of cycle-wise services for billing; (26) Half-yearly ledgers / annual ledgers (1 Copy); (27) Annual Master for all the services (2 Copies); (28) Any other reports periodically devised by APCPDCL and called for shall have to be furnished (2 copies). (7) The agency shall furnish the C.A. T Rolls & Sales Data Base of the services maintained w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 services is classified under "Information Technology Software Service" w.e.f 16.05.2008. This clearly shows that the service received by the appellant towards implementation of ERP system related services is falling under "Information Technology Software Service". Under this admitted position by the Revenue itself the said service cannot be taxed prior 16.05.2008 under "Management or Business Consultant Service" therefore, the service tax demand 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. - 2009 (4) TMI 314 wherein it was held as under :- "6. We have carefully gone through the records of the case. The point at issue is the leviability to Service Tax under the category of "management consultancy service" in respect of the ERP implementation services. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 Service 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." From the above decision it can be seen that the service of ERP system implementation in the above cited decision and that of appellant case are absolutely identical. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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