2015 (4) TMI 321

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....said Order-in-Original alongwith interest and penalties is segmented as under: S.No. Category Period Service Tax 1. Outstanding Balance regarding Debtors/Creditors for service provided/received 01.04.2008-31.03.2009 75,05,21,939 2. Franchise Service (Reverse Charge) 18.04.2006-31.03.2009 10,50,77,665 3. Management, Maintenance or Repair 09.07.2004-30.09.2005 2,90,25,359 4. Commercial Coaching or Training 09.07.2004-31.03.2009 1,74,93,813 5. Management, Maintenance or Repair from Siemens, USA (Reverse Charge) 18.04.2006-31.03.2008 1,38,78,728 6. Banking and Other Financial Service (Reverse Charge) 18.04.2006-31.03.2009 1,27,79,485 7. Commercial Coaching or Training (Reverse Charge) 18.04.2006-31.03.2009 16,82,....

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....payable to employees etc.. c. The outstanding debtors balance includes: i. Debtors pertaining to transactions with overseas customers for exports; ii. Debtors pertaining to repairs, maintenance and training services provided by the appellants on which service tax was already paid. iii. Debtors pertaining to sale of goods by the appellants on which sales tax was being paid; iv. Provisions created for bad debts, accounting code forming part of loans & advances, amount receivable from employees, audit adjustments entries etc. which do not fall within service tax net. d. The services wherever taxable, are being taxed separately. Therefore, taxing debtors/creditors again amounts to double taxation; e. Without prejudice, the appellants are....

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....rvice, the appellants have contended that: (i) They entered into Software Duplication, Reproduction and Distribution Agreement dated 01.12.2006 with Siemens, USA wherein they were granted right to duplicate, reproduce, distribute and sublicense the softwares and were paying royalty for the said rights. On this the impugned order has confirmed service tax under Franchise Service [Section 65(47) read with 65(105)(zze) of the Finance Act, 1994]. (ii) The rights granted under the agreement are not representational right. Therefore, the transaction is not classifiable under Franchise Service; (iii) They have obtained copyright in the software so as to provide license to their customers; (iv) The transaction is classifiable under Information ....

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....ey are liable to pay service tax on the payments received/ made but upgradation/enhancement of the softwares is held to be covered under Information Technology Software Service and not under Management, Maintenance or Repair Service as per the judgment in the case of SAP India Private Limited Vs. CCE, 2011 (21) STR 303 (Tri-Bang) and Kasturi and Sons Limited V. UOI, 2011 (22) STR 129 (Mad.) wherein decision of Tata Consultancy Services (supra) was distinguished. (ii) They started paying service tax under Management, Maintenance or Repair Service w.e.f. 01.10.2005. In the above circumstances, the request for waiver of pre-deposit of this component of demand is not unacceptable. 6. As regards the component of the impugned demand pertaining....