TMI Blog2018 (6) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice Tax - Management, Maintenance and Repair Services - activities carried out by the appellant for ETTSA - Held that:- The activities which the appellant was required to carry out to for ETTSA included supply of hardware, software, UPS, LAN equipment and also paying the structural cabling and setting up of the WAN network - The maintenance, if at all carried out by the appellant, was done as part of the operation of the computer systems. Hence, such activities will not fall within the Management Maintenance or Repair Service. It appears to us that the activities outlined in the contract would more appropriately be covered within the definition of ‘Business Support Services’ which were included with effect from 1/05/2011, under Section [65/105(104(c)] - demand set aside. MMR for maintenance of software - Held that:- For the period under dispute, it cannot be presumed that the maintenance or software service is covered under the category of MMR. Consequently the demand of service tax on maintenance of software, under the category of MMR is not justified and hence set aside. Appeal allowed - decided in favor of appellant. - Appeal No. ST/666/2012-DB - Final Order No. 52251 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant 1.10.200 4 to 31.3.200 7 7,68,9 0,796/ - 85,93,5 75/- 4 . Short paid 2006- 2009 1,85,60 1 5 . Total 3,61,72 ,988/- 2,01,93,493 /- 21,37,962 /- 2. The Department of Excise and Taxation of the State of Punjab started a programme for comprehensive computerization of operations relating to collection of VAT. ETTSA was the implementing Agency of the said Department. ETTSA floated tenders for execution of different aspects of the work and certain work was awarded to the appellant. The work awarded to the appellant covered areas associated with computerization other than application software. Broadly the following aspects were covered (a)Supply of; (i) hardware (ii) Software (iii) UPS (iv) LAN equipment (v) Printer etc. and doing structured cabling. (b) Providing WAN connections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or doubts, it is hereby declared that the purpose of this clause, (a) goods includes computer software; (b) Properties includes information technology software . 6. The appellant submits that the above Explanation imposes additional tax liability contrary to the position clarified by the CBEC in its clarification issued prior to that date. So the contention is that this Explanation cannot have retrospective effect. In this matter, the appellant relies on the decision of Hon ble Supreme Court in the case of UOI vs. Martine Lottery Agency Ltd reported in 2009 (14) STR 593 (SC). 7. The appellants are also relying on the decision of the Tribunal in the case of SAP India Ltd 2011 (21) STR 303 (Tri-Bang|) holding that prior to 1.6.2007 maintenance or repair of IT software could not be brought under the service defined in Section 65(64) of Finance Act, 1994. 8. The Ld. Counsel for the appellant further argued that the Revenue has demanded service tax under BAS, in respect of the outsourced WAN contract. The rest of the contract with ETTSA has been lumped together for levy of service tax under MMR Service. He opposed such vivi Section of the contract and contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or marketing or sale of goods produced or provided by or belonging to the client; or (ii) Promotion or marketing of service provided by the client; or (iii) Procurement of goods or services, which are inputs for the client or (iv) Production or processing of goods for, or on behalf of the client; or (v)Provision of service on behalf of the client; or (vi) A service incidental or auxiliary to any activity specified in sub-clause (I) to (VI) such as billing, issue or collection or recovery of cheques, payments, maintenance of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any information technology services and any their activity that amounts to manufacture within the meaning or clause (f) of Section 2 of the Central Excise Act, 1944. Explanation:- For removal or doubts, it is hereby declared that for the purpose of this clause, Information technology service means any service in relation to designing developing or maintaining of computer software, or computerization, data processing or system networking or any other service primarily in relation to operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess but in rendering public services. Hence the procurement of service for ETTSA cannot be brought within the levy of service tax under BAS. This view finds support in the very many case laws cited by the appellant. In the result we conclude that the levy of service tax on the activity of setting up of WAN, which has been outsourced to HSCL is not justifiable and hence, the demand is set aside. 17. Next we deal with the levy of service tax under the category of MMR. Under the above category, services tax has been demanded on all activities carried out for ETTSA ( other than WAN). In addition, in respect of various other contracts in which maintenance of software has been undertaken by the appellant have also been brought under the same category. The definitions of MMR service are produced below for ready reference; Section 65(64) Management, Maintenance of Repair Service means any service provided by- (i) any person under a contract or an agreement: or (ii) a manufacturer or any person authorized by him, in relation to- (a) management of properties, whether immovable or not; (b) maintenance or repair of properties, whether immovable or not; or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
