TaxTMI 
TaxTMI 
2020 (2) TMI 1392
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....reign exchange. Appellant was registered with the Service Tax Department. Pursuant to audit, it appeared to Revenue that appellant had not discharged their service tax properly and accordingly, service tax was not paid as follows under various heads:- Sl. No. Particulars / classification Appeal No. ST/489/2011 for period 01/04/2004 to 31/03/2008 Appeal No.ST/1881/2011 for period 01/04/2008 to 31/03/2009 Total 1. Maintenance & Repair Service Rs. 17,19,50,447/- Rs. 13,35,63,272/- Rs. 30,55,13,719/- 2. Business Support Service Rs. 15,83,820/- Rs. 12,45,888/- Rs. 28,29,708/- 3. Management Consultancy Services Rs. 27,34,97,260/- Rs. 17,52,47,619/- Rs. 44,87,44,879/- 4. Business Au....
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.... "goods". The question whether maintenance or repair of software was a taxable service within the ambit of Section 65(64) of the Finance Act, 1994 was not apparently considered in any of those cases. That software (branded or customised) has the attributes of "goods" is just a postulate for us and we shall proceed accordingly. Maintenance or repairs of goods will not normally result in upgradation of its value or functional capacity or efficacy to higher levels than what originally existed. But maintenance of software, as per technical literature, can improve its applicability to new functional areas to benefit the customer thereby enhancing its functional capacity/efficacy and value. Perhaps, the only category of maintenance referred to by....
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.... (a) "goods" includes "computer software"; (b) "properties" includes "information technology software", (underlining added) In this context, we think, we must also reproduce the full text of Section 65(64) as it stands post-16-5-2008. "Section 65(64) "maintenance or repair" means any service provided by - (i) any person under a maintenance contract or 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 (c) maintenance or repair including reconditioning or restoration, or servicing of any goods, excluding ....
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....software and the definition of information technology software service given under Section 65(105)(zzzze) of the Finance Act, 1994. 6. For the reasons already noted, we hold that the maintenance charges collected by the appellant from their customers during the period from 9- 7-2004 to 31-1-2006 are not liable to be subjected to levy of Service Tax under the head 'maintenance or repair service' under Section 65(105)(zzg) read with Section 65 (64) of the Finance Act, 1994. The services rendered by the appellant to their customers are in the nature of information technology software service which was made taxable w.e.f. 16-5-2008 only. Such service is not to be subjected to levy of Service Tax under any other entry. Therefore, the de....
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....le service tax under ITSS with regard to software repair services and also ERP implementation under the head of ITSS w.e.f. 16/05/2008 and he further states that appellant was not applied for refund of the same. The said issue has also been considered by the Tribunal in the case of IBM India Pvt. Ltd. Vs. CST, Bangalore [2010(17) STR 317 (Tri. Bang.)] wherein it was observed that ERP implementation service is definitely for use in furtherance of business and commerce and the service is for implementation. Such implementation of ERP service is specifically covered under clause (iii) in the definition of ITSS, where it is provided that - (iii) adaptation, upgradation, enhancement, implementation and other similar services related to informati....
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....rvice' it would appear that these are intended to relate to the activities of the appellant in relation to export goods after their arrival in Ukraine. At no stage are they required for any activity of the appellant in India. The service itself is not warranted except in relation to export by the appellant and hence tax, even if leviable, is not to be burdened onto the export goods. 19. The original authority has failed to take note of the destination of the goods manufactured by the appellant and has deemed the services rendered in Ukraine to have been imported into India for business and commerce. From our examination of the scheme of 'deeming of import of services' for taxation supra, it can be reasonably inferred that the 'busi....