TMI Blog2017 (5) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the service was made taxable. Taking all factors into consideration, the Tribunal has held that there is no retrospective application by insertion of the explanation. The period under dispute in the present case is from 9th July 2004 to 6th October 2005 - the demand of service tax is not sustainable - appeal allowed - decided in favor of appellant. - ST/285/2012 - A/86593/17/STB - Dated:- 3-4-2017 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri H G Dharmadhikari, Advocate for the appellant Shri D Nagvenkar, Additional Commissioner (AR) for the respondent ORDER Per: C J Mathew M/s Larsen Toubro Infotech Limited is in appeal against order-in-original no:20/ST-II/WLH/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - III [2011 (21) STR 303 (Tri.-Bang.)]. The said decision held that '5.5. Going by the explanation (supra), we find from the above text of Section 65(64) that maintenance or repair of information technology software is specifically covered under sub-clause (b) whereas maintenance or repair of computer software is specifically covered under sub-clause (c). It is obvious that the legislature has understood information technology software to be distinct and different from computer software. The Circulars and decisions cited before us, all, discuss computer software. No material has been placed before us, other than the literature supplied by the learned Special Consultant for the Revenue, to show that activities of the kind undertake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's service'. It may be noted that 'works contract' came to be introduced as a ' taxable service w.e.f. 01.06.2007 only. The service rendered by the above company was for a period prior to the said date. The Revenue wanted to levy Service Tax under the pre-existent head consulting engineer service , which was negatived by the Hon'ble High Court. 6. For the reasons already noted, we hold that the maintenance charges collected by the appellant from their customers during the period from 09.07.2004 to 31.01.2006 are not liable to be subjected to levy of Service Tax under the head 'maintenance or repair service' under Section 65 (105) (zzg) read with Section 65 (64) of the Finance Act, 1994. The services ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adding explanation to insert provision to remove doubt, the same cannot be retrospectively applied to demand tax. In the clarification issued by the department after Budget 2007-2008, it was stated that Section 65(64) of Finance Act, 1994 has been amended to clarify that goods for the purpose of this service (Management, Maintenance or repair service) includes computer software. It was also clarified that development of computer software would be liable to tax under Information and Technology service whereas maintenance and repair of computer software would be coming under management, maintenance or repair service. 14. It is the submission of the appellant that maintenance and repair includes development of software and in fact dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion, should not be construed to have a retrospective operation on the premise that it is clarificatory or declaratory in nature. There is no doubt this clarification widen the scope of taxation of service. In any case, the appellants themselves have submitted that the liability can arise after 1-6-07. Therefore, in view of the ratio of the decision in the case of Martin Lottery Agencies Ltd., we consider that it would not be appropriate to apply the explanation retrospectively and levy Service Tax w.e.f 9-7-04. In any case, the very fact that explanation has been added to clarify' doubts, would show that suppression of facts could not have been invoked in this case. In view of the above decision, we hold that maintenance of softwa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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