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2020 (2) TMI 1392 - AT - Service TaxNon-payment of Service Tax - Maintenance & Repair Service - Business Support Service - Management Consultancy Services - Business Auxiliary Services - it appeared to Revenue that appellant had not discharged their service tax properly. Maintenance and Repair Service relating to software - HELD THAT:- The issue is no longer res integra and the said issue was decided in appellant’s own case by coordinate Bench of this Tribunal, reported as M/S SAP INDIA PRIVATE LIMITED VERSUS CCE, BANGALORE-III [2010 (9) TMI 289 - CESTAT, BANGALORE] wherein the issue was whether the software maintenance was taxable under the head Management, Maintenance and Repair Service under Service Tax Provisions, as information technology support services was introduced w.e.f. 16/05/2008. Further there was amendment in the maintenance or repair services w.e.f. 01/06/2007, clarifying that goods are inclusive of computer software and including maintenance or repair of information technology software. Business Support Services - Appellant submits that it is with respect to using of dedicated leased line provided by the overseas service provider - HELD THAT:- This issue is also settled in favour of the appellant as has been held by co-ordinate Bench in TCS E-SERVE LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2014 (6) TMI 655 - CESTAT MUMBAI], that for eligibility, the service provider has to be a ‘Telegraph Authority’ as defined in Section 65(105)(zzzx) of the Finance Act. Further as per CBEC instructions F.No.137/21/2011 dt. 15/07/2011, the service tax shall not be payable where service is provided by foreign vendor and such foreign vendor is not the ‘Telegraph Authority’ under the Indian Telegraph Act. Management consultancy services - issue is in respect of implementation of ‘Enterprise Resource Planning’ (ERP) - Case of appellant is that such activity of the ERP falls under ‘Consulting Engineering Services’ and further ‘Software Engineering Consultancy’ is exempted from the purview of service tax - HELD THAT:- The said issue has also been considered by the Tribunal in the case of IBM INDIA PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, BANGALORE [2009 (4) TMI 314 - CESTAT, BANGALORE] wherein it was observed that ERP implementation service is definitely for use in furtherance of business and commerce and the service is for implementation. Such implementation of ERP service is specifically covered under clause (iii) in the definition of ITSS, where it is provided that – (iii) adaptation, upgradation, enhancement, implementation and other similar services related to information technology software. Although in appeal No.ST/1881/2011, the period falls partly before and after 16/05/2000, however, there is no proposal to levy tax under the head ITSS, we hold that the appellants are not liable to pay service tax under the ‘Management Consultancy Services’ - decided in favor of appellant. Engagement of overseas agency by the appellant for advertising and sales promotion outside India (Srilanka and Bangladesh) - HELD THAT:- This Tribunal in the case of Genom Biotech Pvt. Ltd. Vs. CCE&C, Nashik [2016(42) STR 918 (Tri. Mum.)] has held that the assessee had availed advertising agency services through overseas service providers for providing advertisement and sales promotion service in the territory of Ukraine, the appellant M/s. Genom Biotech was manufacturers of trucks which was exported to Ukraine. Under such circumstances, this Tribunal held that the services that are not connected with the manufacture or with the transport of goods till the customs frontier of the country, can be disassociated from use within the country and hence would not lie within the ambit of legal fiction of import of services. Appeal allowed - decided in favor of appellant.
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