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TMI Blog2014 (1) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... ate consumer, i.e., the mobile phone users had availed the services and had paid service tax and second or double taxation for the same service should not be permitted and was unacceptable. - Stay granted on this issue. Regarding demand of service tax on Software or development and maintenance of websites service - Held that:- Software or development and maintenance of websites service were exempt from service tax in terms of Circular No. 70 dated 17th December, 2003 till 1st June, 2007. It is pointed out that the demand in question relates to the period 2004-05 to 31st March, 2006 - appellant themselves had started paying service tax on the aforesaid service, with effect from 1st April, 2006 under the head “online information” The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Business Auxiliary Service from M/s TIME under proviso to sub-section (1) of Section 73, read with Section 66 and 68 of the of the (sic) Act. (ii) I confirm and demand ST amounting to Rs.2,75,95,438/- (Rs. Two Crores Seventy-Five Lakh Ninety-Five Thousand Four Hundred Thirty-Eight only) including Education Cess Higher Secondary Education Cess short paid on the total taxable value of the MMR services from M/s TIME under proviso to sub-section (1) of Section 73, read with Section 66 and 68 of the of the (sic) Act. (iii) I also order recovery of Interest on the amount of ST short paid till the date of actual payment of ST by M/s TIME, at the appropriate rate under section 75 of the Act. (iv) I impose a Penalty of Rs.5,71,58,755/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive portion of the adjudication order, the service tax demand is on two accounts; Business Auxiliary Service and Management, Maintenance and Repair Services (MMR Services, for short). 8. On the first account, it is pointed out that the appellant had entered into contracts with cellular mobile service providers and it was a joint business venture. The mobile service users or subscribers had used the data provided by the appellant and while making payment to the cellular mobile service providers had also paid the service tax. The adjudication order holds that the cellular service providers should have again charged or deducted service tax on the payments made to the appellant, notwithstanding the position that the mobile service subscr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Andhra Pradesh, (2005) 1 SCC 308 which held that software were goods. We also notice that the appellant themselves had started paying service tax on the aforesaid service, with effect from 1st April, 2006 under the head online information . 10. Keeping in view the aforesaid facts, we feel that the appellant should pay and deposit Rs.1 crore as a pre-condition for hearing of the appeal. While fixing the amount, we have taken into consideration the Circular No.81/2/2005-ST issued on 7th October, 2005 and also examined the definition of MMR Services as defined in Section 65(4) of the Finance Act, 1994. The aforesaid payment of Rs.1 crore will be made in two equal instalments and the first instalment will be paid on or before 31st January, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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