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2019 (5) TMI 234 - AT - Service TaxReverse charge mechanism - Management, Maintenance and Repair Services received by the appellant from service providers situated outside India - demand of service tax - HELD THAT:- The definition of ‘Management, Maintenance and Repair Services’ was amended by adding an Explanation only with effect from 01.06.2007. The Explanation stated that “goods” includes computer software. The Department has relied upon the Circular dated 07.10.2005 to hold that the maintenance or repair of computer software is leviable to service tax with effect from 09.07.2004 itself. This is because it is argued by them that there was an exemption granted in the case of computer software under Notification No. 20/2003-ST and the said Notification was rescinded with effect from 09.07.2004 - the demand of service tax under Management, Maintenance or Repair Services cannot sustain and requires to be set aside. Classification of services - Business Support Services or telecommunication services - period 2007-09 - HELD THAT:- Telecommunication Services have been brought into the service tax net with effect from 01.06.2007, which includes the activity of international access and use of inbound/outbound roaming facility. When a subscriber of the appellant travels outside India, he will be able to use the mobile network of the Foreign Telecom Operator as per the agreement entered between the appellant and the Foreign Telecom Operator - When the said services fall under the category of ‘Telecommunication Services’, the very same activity cannot be subjected to levy of service tax by treating them as ‘Business Support Services’. The said service does not in any way fall under the category of Business Support Services, especially when the activity is covered under the definition of ‘Telecommunication Services’ - Demand set aside. Penalties - service tax with interest paid before issuance of SCN - HELD THAT:- The appellants have paid service tax along with interest much before the issuance of the Show Cause Notice. The Hon’ble High Court of Karnataka in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS M/S ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD [2011 (9) TMI 114 - KARNATAKA HIGH COURT] has held that when the service tax along with interest is paid before the issuance of Show Cause Notice, the penalties cannot sustain - Penalty do not sustain, while demand of service tax sustain. Appeal allowed in part,
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