TMI Blog2018 (8) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... charge mechanism. Post 18.04.2006 - for the period in question, i.e., 19.04.2006 to 31.05.2007, the demand has been raised under maintenance or repair services, the reasoning given by adjudicating authority is that software maintenance is also a maintenance of goods - Held that:- The explanation which was added to bring into tax net, the computer software as goods was held to be effective from 01.06.2007 only - In the case in hand, it is submitted and not disputed by the revenue that from 01.06.2007 appellant has started discharging appropriate Service Tax liability on the payments made by them under reverse charge mechanism - period post 19.04.2006 to 31.05.2007; the demands confirmed by the adjudicating authority are unsustainable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of management, maintenance and repair services which was with effect from 01.06.2007. The adjudicating authority after following due process of law, confirmed the demands raised along with interest and imposed penalties. 3. Learned Counsel submits that prior to 18.04.2006 demand is unsustainable in view of the law being settled by the Apex Court by upholding the decision of Bombay High Court in the case of Indian National Ship Owners Association [2009-TIOL-129-SC-ST] as regards the period pertaining to 19.04.2006 to 31.05.2007, it is his submission that software were not considered as goods for the period in question and had a similar issue, as to whether the said activity of maintenance fall under category of managemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod 01.01.2005 to 18.04.2006, the demand on the Service Tax liability under reverse charge mechanism is not sustainable, has got strong force. Provisions of Sec.66A of the Finance Act, 1994 was brought into statute with effect from 18.04.2006, which enabled the Government to tax the amounts under reverse charge mechanism holding service recipient as service provider. This law is now settled by the Apex Court in the case of Indian National Ship Owners Association by holding decision of the Hon ble High Court of Bombay in the same case (supra) wherein the Lordships have categorically held that before enactment of Sec.66A, there was no authority vested with the Government to levy service tax on the amounts paid for services received from outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not leviable to service tax being an information technology service. 8. This was also considered by the learned Commissioner in the impugned order but misconstrued the clarification. On plain reading of the above clarification given by Board, it would mean that amendment to word that goods would also include software and will be leviable under management, maintenance or repair service with effect from 01.06.2007 when the said explanation was brought in to the definition of management, maintenance or repair service. We find that learned counsel was correct in pointing out that similar issue came up before the Tribunal in the case of Larsen and Tubro Infratech Ltd (supra) (one of us, M.V.Ravindran was a member in that order) the Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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