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2013 (4) TMI 213 - AT - Service TaxManagement, Maintenance or Repair Service - Software Services Agreement - period in question from February 2007 to March 2009 - appellant seeks waiver and stay in respect of the adjudged dues - assessee's claim for the benefit of Notification No. 12/03-ST - Held that:- The terms and conditions of the Software Services Agreement (between the appellant and ICICI Bank Corporation Ltd.) produced by the appellant indicate that the service rendered by the appellant comprises adaptation, upgradation, enhancement, implementation etc of IT software. These processes are expressly covered by the definition of "IT Software Service" under Section 65(105)(zzzze) of the Finance Act 1994. This service became taxable with effect from 16/5/2008 only. Admittedly, the appellant has paid service tax under the Head “IT Software Service” from 16/5/2008. In the case of SAP India Ltd. (2010 (9) TMI 289 - CESTAT, BANGALORE) the question whether the same activity could be alternatively classified as maintenance or repair of software was examined by a coordinate Bench and the same was answered in the negative. Also in EBZ Online Pvt. Ltd. (2010 (12) TMI 101 - CESTAT, MUMBAI) was decided in favour of assessee, following the decision in SAP India case. Thus the appellant seems to have reasons to claim support from the said decisions of this Tribunal. Also the reasons stated by the adjudicating authority for rejecting the claim for abatement under Notification No.12/03-ST are questionable. In this scenario, predeposit and stay of recovery in respect of the adjudged dues waived.
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