ORDER
S.L. Peeran, Member (J)
1. The appellants are required to pre-deposit Service Tax amount of Rs. 52,84,956/- out of which a sum of Rs. 4,99,973/- has already been paid; and penalty of Rs. 80,00,000/- under Section 78 of the Finance Act, 1994. They pray for waiver of pre-deposit of balance amount of service tax and penalty. Section 65(108)(g) of the Finance Act, 1994 excludes the services of Inspection and Testing of Computer Software from the levy of Service Tax. For the purpose of development of software, the most vital portion of the activity is final testing of the software. The testing is also being done while software is being prepared. Without testing of software which is a vital and important activity done by the experts, the software cannot be developed. This is the contention of the appellants against the charge of the Revenue to bring the activity of inspection and testing of the computer software under the heading “Technical Inspection and Certification Services” for raising service tax amount as indicated supra. A small portion of the demand pertains to “Commercial Training or Coaching” services to an extent of Rs. 11,00,793/-.
2. We have heard both the sides in detail. The learned Counsel while arguing with regard to the second portion of demand, relied on the Tribunal’s (Kolkata Bench) decision rendered in the case of Sunwin Technosolutions Pvt. Ltd. v. Commissioner of Central Excise, Ranchi 2007 (7) STR 700 wherein in an identical situation the Bench held that such activity comes within the ambit of ‘Commercial Training’ services. With regard to the first portion of the demand, the learned Counsel refers to various pieces of evidence. He explained that the Computer Software Industry has been exempted from the service tax. A portion of the vital activity which completes the functioning of software cannot be segregated for the purpose of service tax under the said category. He prays for full waiver of the amounts as prima facie, there is full exemption to the Computer Software Industry itself. The learned Counsel refers to the payment of Rs. 4,99,973/- towards the second category of the activity.
3. The learned SDR refers to the cross objection filed by the Revenue and contends that testing of software was done after the activity of software development and therefore it is to be taken as independent activity. She submits that the findings given by the Commissioner for levy of service tax on such activity is justified and the appellant is to be put to terms as there is no plea of financial hardship.
4. In counter, the learned Counsel refers to the cross objection wherein the Commissioner has admitted that – “Hence the two activities though go hand-in-hand for release of a software product and form an integral part of software development, are handled separately by two different teams and hence are distinct from each other.”
5. We have carefully considered the submissions made by both the sides including the cross objection filed by the Revenue. There is a clear admission by the Commissioner in the cross objection noted supra that the two activities go hand-in-hand for release of a software product and form an integral part of software development. We are of the considered opinion that testing of software is a vital activity and software development cannot be completed without testing of software. Prima facie, the computer software industry itself is exempted from service tax in terms of Notification. The appellants have made out a strong prima face case with regard to non-applicability of Finance Act pertaining to computer software industry in which vital activity is inspection and testing of software. The appellant has already pre-deposited more than Rs. 4 lakhs. Therefore the stay application is allowed by granting waiver of pre-deposit of the balance amount and staying its recovery till the disposal of the appeal. In terms of Section 35F read with Section 83 of the Finance Act, the appeal is required to be disposed of within 180 days when full waiver is granted.
6. The matter to come up for final hearing on 04th January 2008.
(Pronounced and dictated in the open court)