2014 (9) TMI 412

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..... nder 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.
P R Chandrasekharan and Ramesh Nair, JJ. For the Appellant : L Badrinarayanan, Adv. For the Respondent : D Nagvenkar, Addl. Commissioner (A.R.) JUDGEMENT Per: P R Chandrasekharan: The appeal and say petition are directed against Order-in-Original No. 56/ST-II/RS/2013 dated 25/09/2013 passed by the Commissioner of Service Tax - II, Mumbai. 2. Vide the impugned or .....

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..... ance charges which the service provider pays to various vendors of the software. 3.1. The learned counsel also submits that in terms of the agreement, apart from receiving the software through the internet, the appellant also receives upgrades and amendment to the software. However, since these amendments and upgrades are received electronically, the software received cannot be considered as goods and since management, maintenance or repair service relates to those activities in respect of goods, the activity will not fall within the purview of 'management, maintenance or repair service'. 3.2. He also refers to the amendments made to Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 wherein it has been .....

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..... 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. On this ground also the impugned demands do not appear to be sustainable in law. It is a well settled position in law that measure of levy does not determine the nature of levy as affirmed by the hon'ble apex Court in the case of Bombay Tyre International [ 1983 (14 .....

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