TaxTMI 
TaxTMI 
2017 (5) TMI 285
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....; for the period from 9^th July 2004 to 6^th October 2005. 2. The appellant had entered into a contract with eight recipients of service, namely, M/s Ship Building Centre, Visakhapatnam, M/s. MTR Foods Limited, Bangalore, M/s L&T Case Equipment Pvt Ltd. Pithampur, M/s Audco India Ltd, Chennai, M/s L&T Komatsu Limited, Bangalore, M/s Ultra Tech Limited, Mumbai and M/s Larsen & Toubro Limited, Powai, M/s. L & T John-Deerre Pvt Ltd, Pune for various activities including support and maintenance of facilities and maintenance of IT infrastructure services. The appellant had been discharging service tax on 'maintenance of software services' with effect from 7^th August 2005. It is the contention of the appellant that they provided '....
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....rage of sub-clause (zzzze)(iii) of Clause 105 of Section 65 of the Finance Act, 1994. Any incidental advice, consultancy or assistance given by the service provider will be squarely covered by sub-clause (zzzze)(iv). It is pertinent to note that adaptation, upgradation, enhancement, implementation, etc. of information technology software are expressly covered by the definition of 'information technology software ' service and that these very operations have also been specified as different categories on software maintenance in the literature supplied to us. Thus there is almost total convergence between the technical literature on software and the definition of information technology software service given under Section 65(1 05) (zz....
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....Such service is not to be subjected to levy of Service Tax under any other entry. Therefore, the demand of Service Tax and the connected penalties are only liable to be set aside.' 4. In Phoenix IT Solutions Ltd v. Commissioner of Central Excise, Visakhapatnam [2011 (22) STR 400 (Tri-bang.)] it was held that insertion of explanation renders the service to be taxable retrospectively by holding that '13. The next service under dispute is software maintenance. The learned Commissioner in impugned order has held that e-Care maintenance, website maintenance and data base maintenance are all maintenance contracts for the software used in their website etc. Software are goods and repair of the same are chargeable to Service Tax under the cat....
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....only w.e.f. 16-5-08. However, there is no bifurcation of the cost of development and the cost of maintenance. Further, the contract also speaks of BMS software maintenance, e-care maintenance, maintenance of software and website maintenance. In every case, word 'maintenance' has been used. In the absence of the word 'development' and presence of word 'maintenance' in the agreement, 'and also in view of the failure of the appellant to submit bifurcation, we have to take a view that the agreement covers maintenance only. 15. The next question is whether the Service Tax can be levied w.e.f. 9-7-04. Hon'ble Supreme Court in the case of Martin Lottery Agencies Ltd. observed "while discussing the amendment intro....