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2023 (11) TMI 101 - CESTAT ALLAHABADRecovery of Service tax alongwith interest and penalty - non-payment of service tax - Management, Maintenance and Repair Services - providing IT support services to its clients in and outside service - period 2006-07 - HELD THAT:- Hon’ble Madras High Court in case of KASTURI & SONS LTD, CHENNAI VERSUS UNION OF INDIA & OTHERS [2011 (2) TMI 76 - HIGH COURT OF MADRAS] was in any case not even concerned with the taxation under the category of repair and maintenance service, the issue in case of Kasturi & Sons was in respect of taxation under the category of “Business Auxiliary Service” as has been noted in the order of Hon’ble High Court. Hon’ble High Court did not decide the issue in respect taxability under the category of Management Repair and Maintenance Services but had observed that the circular issued giving retrospective effect to the amendments made by Finance Act, 2007, cannot be upheld and the same should have no application while deciding the cases for the past period. Thus it is observed that on the issue of the taxation under category of “Management Maintenance and Repair Services” various benches of tribunal has consistently taken the view that the software maintenance services which are akin to the services provided by the appellant in present case are only taxable from 01.06.2007. Nothing contrary is available on records. Appellant has been paying service tax in respect of these services as submitted by the counsel for appellant with effect from 01.06.2007 - there are no merits in the impugned order. Levy of penalties under Section 76, 77 and 78 of the Finance Act, 1994 - It is contended in the appeal that separate penalties should have been imposed under each section - HELD THAT:- As it is held that the demand is not maintainable in the present case, the issue of imposition of any penalty on the appellant cannot survive. Accordingly, this appeal filed by the revenue asking for imposition of penalties under Section 76, 77 & 78 is without any merit. Appeal of Revenue dismissed.
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