2016 (5) TMI 375

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....ST/452/10 is filed by the appellant/assessee as also cross objection to Revenue's appeal. Two appeals and cross objection are disposed of by a common order as the issue is interlinked. 3. The relevant facts that arises for consideration is during the period July, 2003 to 31.03.2006, Revenue authorities were of the view that the services rendered by the respondent in respect of the installation, operation and maintenance of Automated Teller Machines, will be covered for taxability under the category of Maintenance & Repair Services, "Business Auxiliary Services" and it was also noticed that the appellant assessee has not discharged the Service Tax liability in respect of Goods Transport Agency. A show-cause notice was issued to appellant de....

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.... our attention to the agreement with the service provider as to the movement of ATM machines. It is his submission that the said agreement talks about action that needs to be undertaken by the said contractor. On specific query from the Bench he draws our attention to the clauses in the agreement. 5. Learned Departmental Representative reiterates the findings of lower authorities. 6. On perusal of the records, we find that the issue needs to be settled in this case is whether the activity of the appellant in supplying and maintenance with repairs the ATM machine are liable to be tax or otherwise. 7. On perusal of the provisions of Section 65(9a) & (9b), we find that this Section was brought into statute by Finance Act, 2006 w.e.f. 01.05.....

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....maintenance or management service], taxable service means any service provided or to be provided to any person, by any other person, in relation to automated teller, machine operations, maintenance or management service, in any manner." We also find that the self same issue for the very same period was before the Tribunal in the appellant's case wherein, Revenue authorities wanted to tax these services under Erection, Commission and Installation Services or under Works Contract Services. The Tribunal vide final Order dated 28.11.2007 held that the services rendered by the appellant in respect of Automated Teller Machines cannot be taxed prior to 01.05.2006. This view of the Bench in the appellant/assessee in his own case is reproduced:- ....

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....was introduced in July 2003 when the other service was already on the statute book. After noting that the definition of Management Consultancy Service remained the same even after introduction of Business Auxiliary Service as a taxable service, the Tribunal rejected the Revenue's plea that the service provided by the assessee could still be taxed as Management Consultancy Service for the period prior to July 2003. In the present case, the assessee is also supported by the decision in Widia GMBH case. That company had transferred technology to another company for manufacture of certain tools and parts thereof and had received consideration therefor during 1993-99. The department sought to levy service tax on the amount received by the assess....