B.S.V. Murthy, Technical Member - The appellant has entered into agreements with several clients for providing service, what the parties to the agreement call as software development. After taking up verification of the records and investigation, department entertained a view that appellant was in fact engaged in providing manpower for development of software and therefore the services provided by them during the period from October, 2005 to March, 2007 has to be treated as "manpower supply service" and therefore the appellant is liable to pay Service Tax for rendering the said service. Further it was also found that appellant had received certain services from abroad for development of market, etc. in respect of some products and a view was taken that this would amount to importation of services. Since the service providers did not have an office in India, the appellant was liable to pay Service Tax as per the provisions of Section 66A of Finance Act, 1994. Accordingly, proceedings were initiated. After considering the submissions made by the appellant, the impugned order has been passed wherein the demand for Service Tax amounting to more than Rs. 12.84 crores with interest has been confirmed in respect of manpower supply service and demand for an amount of Rs. 12,02,940/- has been confirmed towards imported services and penalties under various sections of Finance Act, 1994 have also been imposed. In addition to the stay application filed by the appellant, after going through the records we find that both the Revenue as well as the appellant have filed Miscellaneous Applications for early hearing of the stay application. Even though these applications have not been listed, since the stay application has been heard and is being decided in this order, we consider both these applications to be infructuous and therefore liable to be rejected. Accordingly, the Miscellaneous Application No. ST/EH/25709/2013 filed by the Revenue and Miscellaneous Application No. ST/EH/25517/2013 filed by the appellant are rejected.

2. The learned Chartered Accountant on behalf of the appellant took us through the agreements and material on record and pointed out that the appellant is not providing simple 'manpower supply service' to their clients at all; he submits that as can be seen from the agreements read with the work orders, what has to be done by the appellant are specified and these are what they call in software industry 'deliverables' and the responsibility of the appellant does not end with the supply of manpower but the appellant is responsible for ensuring that what is expected to be delivered is delivered by the manpower; he also submits that a Project Manager is required to be appointed by the client; he also draws our attention to the impugned order wherein the Commissioner has reached a conclusion that the activity undertaken by the appellant is 'manpower supply service' because even though they call the service provider a software developer, the payment terms are only in terms of manpower and payments are calculated in terms of per diem or per man hour. He also submits after 16-5-2008, the appellants have been paying Service Tax classifying the service provided by them as 'information technology service' and the department has accepted the same; further, he also submits that the audits were conducted as early as 2007-08 but show cause notice has been issued after more than three years and therefore on the ground of limitation also appellant has a strong case. He also relies upon the decisions of the Tribunal in the case of SAP India (P.) Ltd. v. CCE [2011] 30 STT 88 (Bang.-CESTAT) and Integra Micro Software Services (P.) Ltd. v. CST [2012] 36 STT 16 to submit that if a service has been classified under one category at a later date, for the earlier period, the department cannot contend the same to be classifiable under another service.

3. The learned Commissioner (A.R.) on the other hand submits that in this case what they are s