VGL SOFTTECH LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appellant filed appeal on 15 -7 -2008 along with stay application challenging that both the authorities held maintenance of software taxable although at the relevant time i.e. during the period 9 -7 -2004 to 30 -7 -2005 that was not taxable. Stay application was decided ex parte in the absence of party by Single Member Bench with direction to make deposit of entire amount of tax and penalty within a period of 8 weeks and to make compliance on 18 -11 -2008. Present Misc. application was filed by the appellant on 14 -11 -2008 praying that a letter dated 1 -8 -2008 was filed indicating that jurisdiction of Division Bench was exercisable over the matter.

(2.) Shri A.P. Kothari, learned C.A. appearing on behalf of the appellants submits that whether impugned service provided during the impugned period is taxable or not, is a matter of determination of liability required to be considered by the jurisdiction of Division Bench. Accordingly, on ground of maintainability of the order passed by the Single Member Bench, the previous stay order may be recalled by Division Bench and such Bench may exercise jurisdiction.

(3.) ON merits, Shri Kothari says that by Notification No. , dated 21 -8 -2003 exemption was granted to maintenance and repair of computer and computer software not being taxable at that time, the Notification granted benefit to hardware maintenance. Thereafter such notification was rescinded by Notification No. , dated 9 -7 -2004. Software was considered as goods in terms of Section 65(105)(zzg) by Finance Act, 2007 and levy on computer software became effective from 1 -6 -2007. Therefore during the interim period the activity of repair shall not be brought under the ambit of tax against maintenance of software.