2015 (7) TMI 97

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....ption Period Amount (Rs.) 1. Maintenance of computer software 9-7-2004 to 31-3-2006 31,56,723/- 2. Lease Line Connectivity 5-9-2002 to 20-3-2007 6,90,674/- 3. Calibration of Machine July 2003 and March 2004 28,800/- 4. Cartridge Refilling 2004-05 to 2006-07 97,898/- 5. Technical Support Charges 2002-03 to 2004-05 10,83,360/-   Total   50,57,455/- 2. Each of the aforesaid five components of the impugned demand is taken up for discussion and finding in the following paragraphs duly taking into account the contentions/submissions of both sides. 3. With regard to the demand relating to maintenance of computer software, it is seen that Management, Maintenance or Repair was defined under Section 65(....

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.... v. CCE, Visakhapatnam - 2011 (22) S.T.R. 400 (Tri. - Bang.) referred to by the appellants in this regard also supports them one hundred percent as the said judgment clearly held that the said amendment was made to clarify doubts and therefore the allegation of suppression is not invokable. In the case of Kasturi & Sons Ltd. v. Union of India - 2011 (22) S.T.R. 129 (Mad.), the Hon'ble Madras High Court has also held that the amendment made to the definition of Management, Maintenance or Repair is not retrospective in effect and held that the Board's Circular dated 7-10-2005, in this regard was contrary to the statutory provisions. Without going into the aspect whether the said explanation expands the trajectory of the existing legislation a....

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....y did not provide any data or information. As per Section 105(75) of Finance Act, 1994 "Online Information and Database Access and Retrieval Services means "providing data or information, retrievable or otherwise to a customer, in electronic form through a computer network". When no data or information was provided by the appellants nor does the show cause notice contain any allegation to that effect, the question of sustaining this component of impugned Service Tax demand under Online Information and Database Access and Retrieval Service simply does not arise. Therefore the demand of Rs. 6,90,674/- under this category is not sustainable on merit itself. 4. Coming to the next component of demand relating to Calibration of Machine, it ....

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.... that refilling of ink in cartridges of customers actually tantamount to sale and therefore cannot be liable to Service Tax. In the impugned Order-in-Original, the following observation is made on this issue : "As discussed in earlier paras the noticee are doing activity of maintenance of computer/software. The goods consumed i.e. refilling of cartridge and amount collected towards refilling of ink in the process of such maintenance of computer/software are also liable to Service Tax." Thus, even the impugned order admits that this component of the impugned demand relates to charges for refilling of ink which evidently is in the nature of sale as contended by the appellants. Thus this component of the impugned demand also does not sustain....

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....s have argued they also cannot be called science or technology organisation. Even if it is possible for some with seemly soft corner for Revenue to adopt some innovative logic and reasoning to show that having regard to the nature of expertise of the appellants, it would not be absurd to call them science or technology organisation, the fact remains that the term "science or technology organisation" is not defined in the Finance Act, 1994 and arguably in common parlance organisations like the appellants are not generally referred to as science or technology organisations. In such a situation and having regard to the fact that the show cause notice or the impugned order does not elucidate as to on what basis this component of demand was cove....