2014 (9) TMI 412 - AT - Service Tax

Waiver of pre-deposit - Management, Maintenance or Repair Service versus Information Technology Services - software usage agreement - annual maintenance contract - period prior to 16/05/2008 - Held that - We are prima facie of the view that the services received by the appellant do not fall within the category of Management, Maintenance or Repair service and would fall more appropriately under Information Technology Service which was brought under the tax net w.e.f 16/05/2008. Even if hypothetically it is assumed that the services fall under management, maintenance or repair service prior to 01/03/2008 there was no provision in law enabling Revenue to tax this activity under management, maintenance or repair service when the services were rendered electronically or through a computer network. - stay granted.

Summary

Issues:
Service tax demand classification under 'Management, Maintenance or Repair Service' for the period 18/04/2006 to 15/05/2008.

Analysis:
The appeal challenged an Order-in-Original confirming a service tax demand against the appellant for the specified period. The adjudicating authority classified the service under 'Management, Maintenance or Repair Service,' imposing penalties as per the Finance Act, 1994. The appellant argued that they entered a software usage agreement with a US company, paying for software usage, not maintenance. The appellant had been discharging service tax liability under 'Information Technology Services' from 16/05/2008. The Revenue sought to classify services under 'Management, Maintenance or Repair Service' for the earlier period based on payments linked to annual maintenance charges. The appellant received software upgrades electronically, not as goods, challenging the classification.

The agreement between the appellant and the US company indicated payment for software usage, not maintenance or repair. The consideration for services was linked to annual maintenance charges paid by the US company, but it did not imply payment for software maintenance. The Tribunal opined that the services did not fall under 'Management, Maintenance or Repair Service' but more appropriately under 'Information Technology Service,' taxable from 16/05/2008. Even hypothetically assuming the services fell under the former category before 01/03/2008, the law did not allow taxation for electronically rendered services under 'management, maintenance or repair service.' The Tribunal cited legal precedent to emphasize that the measure of levy does not determine the nature of levy, supporting the appellant's case for waiver of pre-deposit. Consequently, the Tribunal granted unconditional waiver from pre-deposit and stayed recovery during the appeal's pendency.