TaxTMI 
TaxTMI 
2023 (1) TMI 1141
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....2012. The adjudicating authority held that the assessee had received service provided from outside India by its subsidiaries and, while upholding demand of Rs.16,55,12,985 for 2014-15, against which assessee is in appeal, dropped recovery of Rs. 28,66,36,348 for the preceding years on ground of bar of limitation which is cause of grievance to the exchequer. 2. Proceedings were initiated against the appellant in the peculiar circumstances of the activities undertaken by them; they provide 'information technology and software services' to overseas customers which, admittedly, are considered as exports with no tax liability arising on the consideration thereof but six subsidiaries of theirs located outside India, in addition to seven branch offices, in addition to contracting with customers on their own, also undertake certain 'on-site' activities that constitute 'finishing touches' to the 'output service' rendered by the holding/principal to customers for which invoices raised on the appellant. For the period in dispute, the appellant had remitted Rs. 379,93,98,418.29 which, service tax authorities alleged to be consideration for 'support services business and commerce' rendered by ....
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....ioned as "charges for software development services". The PSL has entered into same type of agreement and invoices with similar description of service rendered for charges for software development services have been issued by other subsidiaries. Accordingly payments of the consideration in foreign currency have been made by the noticee to the respective foreign subsidiaries. 24.4. Amongst others, the noticee in their defense submitted contract wise summary of onsite work under taken by their subsidiaries so as to substantiate classification of the services under management, maintenance or repair services. From the perusal of the same it is seen that subsidiaries are providing bundle of services in the field of software development which includes development, design, supports, validations, training, implementation, installation, enhancement, up gradation etc.... It is apparent that the every contract is for providing composite/bundled service and the same cannot be said only to be for providing management, maintenance or repair services. It could be seen that agreement also contains provisions for development, design etc. of the software. 24.5 As per the principles of classifi....
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....medium with username and password and when there is no CD or storage media for the item, it does not satisfy the requirement of being goods. The interchangeability of software from service to goods and vice versa therefore cannot be ruled out and it always depends upon intention of the contracting parties and mode of delivery of the software. The noticee in the instant case failed to substantiate/give documentary evidence to the effect that the software in relation to which onsite services are being provided by the subsidiaries possesses characteristics of the goods as settled in the judicial precedence cited above. In absence of the same it could be viewed only as argument based on the general statement that software are "goods" and the onsite services rendered by subsidiaries are performance based services performed on such goods made available by the recipient. Apparently the software accessed by the subsidiaries is neither in packaged form nor put in any media e.g. hard disk, CD etc. which can be sold off the shelf; therefore cannot to be said to have characteristics of goods unlike TCS judgment. Moreover, the subsidiaries gets remote access of the software for rendering servic....
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....that the reliance placed by the adjudicating authority on the decision of the Tribunal in Jet Airways India Ltd v. Commissioner of Central Excise, Mumbai [2016-TIOL- 2072-CESTAT-MUM] and other similar cases is sought to be challenged by Revenue solely by claiming precedence owing to some later decisions that took a different stand. He submitted that the decision in Larsen & Toubro v. Commissioner of Central Excise, Pondicherry [2008 (227) ELT 65], in Motif India Infotech Private Limited v. Commissioner of Service Tax, Ahmedabad [2015-TIOL- 814-CESTAT] and in Indus Theco Pvt Ltd v. Commissioner of Central Excise, Raigad [2007 (212) ELT 85], pre-dating the decision in re Jet Airways India Ltd, reflect the consistent position of the Tribunal and had not been taken into account by the Tribunal in re Board of Control for Cricket in India (BCCI). 6. As the adjudicating authority has held that tax is leviable, which assessee has challenged, but that limitation barred recovery beyond normal period, which is cavil of Revenue in its appeal, the entire issue needs to be looked into. We take up the legality of limiting the recovery to normal period first. Limitation is matter to be considered....