TaxTMI 
TaxTMI 
2021 (2) TMI 513
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.... (hereinafter referred to as 'the tribunal' for short). The subject matter of the appeal pertains to the period from 09.07.2004 till 06.10.2005. The appeal was admitted by a bench of this Court vide order dated 22.04.2020 on the following substantial questions of law: "(i) Whether, in the given facts and circumstances of the case, the Tribunal is correct overlooking the facts and then overruling the statutory provisions enacted by Parliament?" "(ii) Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the demand is raised beyond the normal period of limitation, resulting in undue gains to the Respondent?". 2. Facts leading to filing of this appeal briefly stated are that th....
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.... Court held that software maintenance is exigible for levy of service tax only with effect from 01.06.2007 whereas, the period in question is from 09.07.2004 to 06.10.2005. It was further held that the demand is barred by limitation as it has been raised beyond the period of limitation and it was also held that no allegation of any suppression or misstatement can be cast upon the respondent as there was a doubt with regard to levy of the tax in question. In the result, the appeal preferred by the respondent was allowed. In the aforesaid factual background, this appeal has been filed. 3. Learned counsel for the appellant submitted that the exemption was withdrawn with effect from 09.07.2004 therefore, the respondent was liable to pay serv....
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.... of computer software from the purview of business auxiliary service. The term 'business auxiliary service' as introduced in the Finance Act, 2003 with explanation contained therein is as follows: 65(19) "business auxiliary service" means any service in relation to- (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; (iii) any customer care service provided on behalf of the client; or (iv) any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation ....
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....e the purview of 'business auxiliary service', especially under Section 65 and the term, 'goods' in the Finance Act, 2007 has included 'computer software' under Section 65(105)(zzg). However, under the impugned circular the second respondent placed reliance on the judgment of the Supreme Court in Tata Consultancy Service vs. State of Andhra Pradesh [2005) 1 SCC 308] to conclude that software being goods, any service relating to maintenance, repairing and servicing of the same is also liable for service tax. The Supreme Court in that case decided about the term 'goods' in the light of Andhra Pradesh General Sales Tax Act and farmed the question as follows: The appellants provided consultancy services ....
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....reme Court by the appellant. It is also pertinent to mention here that in para 17 of the aforesaid judgment, the stand of the appellant has been recorded, which reads as under: 17. While it is admitted by the respondents in the counter affidavit that there has been exemption in respect of maintenance of computer software prior to 2006, it is not even their case thst in 2007, when the amendment was brought in the Finance At, it was given retrospective effect and even the altered definition of the term 'goods' in the amendment of 2007 in the Finance Act, 1994 under Section 65(105)(zzg) also was not given retrospective effect and hence, it cannot be said tsht the impugned circular attempts togive effect o the provisions or exp....