TMI Blog2015 (10) TMI 2410X X X X Extracts X X X X X X X X Extracts X X X X ..... value of service, without allowing cum tax benefit. Held That:- Maintenance of computer software - Board clarified that software is considered as "Goods" under section 65 (64) towards "Maintenance or Repair Service" - Amendment cannot have retrospective effect prior to 1.6.2007 – Demand liable to be set aside. Man Power Recruitment Service - Appellant's contention that they are not covered under Man Power Recruitment Service on ground that they have not utilized service and their another contention that providing of technical engineers from company is only incidental to software service is not acceptable – Demand is sustainable. Credit on input service utilized towards "Man Power Recruitment Service" during the period 10.9.2004 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also proposed for penalty. The adjudicating authority in the impugned order confirmed the demand of service tax of ₹ 83,93,309/- and ₹ 16,61,679/- as service tax under respective services and also appropriated an amount of ₹ 55,15,784/- towards maintenance and repair service and ₹ 11,78,505/-towards man power recruitment or supply agency service and also appropriated interest paid by them of ₹ 1,96,861/- and also appropriated ₹ 1,33,886/- towards Educational Cess and also imposed penalty of ₹ 1,00,54,988/- and also imposed penalty of ₹ 1000/ under section 77. Hence the present appeal. 3. Heard both sides. Ld. Advocate appearing for the appellant submits that the period involved in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recruitment or supply agency service, he submits that they are not covered under the definition of man power recruitment or supply agency service and they are providing IT services which is a specialized service. They are not recruiting any person and the service became taxable only w.e.f. 16.5.2008 where the software services brought under service tax net. He further submits that if Man power recruitment service is held to be taxable, they are entitled to avail cenvat credit on various input services availed during the relevant period. He submits that during that period they were entitled to avail upto 20% of cenvat credit on the input services. He drew our attention to para-25 of OIO wherein they have submitted before the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, he submits that appellants are not eligible for cenvat credit as input services were not related to output services which is maintenance of computer software services. 5. In rejoinder, learned advocate countered the arguments and submits that Hon'ble High Court and Tribunal have consistently taken a view that maintenance of computer software is taxable only w.e.f. 1.6.2007. Prior to 1.6.2007, maintenance of software is not covered under the definition of Maintenance or Repair Service . 5.1. On the man power recruitment service, Ld. counsel submits that they have all the documents and original invoices on the input services which can be readily verified. He submits that the adjudicating authority has not considered cum-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment by way of Explanation under Management and Maintenance or Repair Service that for the purpose of this clause, goods includes computer software. We find that the issue is already settled by the Hon'ble High Court of Madras in the case of M/s.Kasturi Sons Ltd. Vs UOI (supra) and also Hon'ble Supreme Court's decision in the case of UOI Vs Martin Lottery Agencies Ltd. 2009 (14) STR 593 (SC). This Bench of the Tribunal in the case of Financial Software Systems Pvt. Ltd. Vs CST Chennai (supra) by relying Hon'ble Madras High Court's decision in the case of Kasturi Sons Ltd. (supra) allowed the appeal of the assessee. The relevant paragraph of this Bench Tribunal's order is reproduced as under :- 9. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or Agency Supply Service is wide enough to include any commercial concern engaged in providing any service, directly or indirectly in any manner for recruitment or supply of manpower, temporarily or otherwise to a client. The appellant's contention is that they are not covered under Man Power Recruitment Service on the ground that they have not utilized the service and their another contention that providing of technical engineers from the company is only incidental to software service is not acceptable. Accordingly, the service tax demand in respect of Man Power Recruitment Service is sustainable. 9. We find that appellants also claimed cenvat credit on the input service utilized towards Man Power Recruitment Service during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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