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TMI Blog2015 (5) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner also, in his order, did not impose the mandatory penalty under Section 78 which involves invocation of the extended period. Therefore, we find that the demand is also hit by limitation. - Decision in the case of Kasturi & Sons Ltd. Vs. UOI [2011 (2) TMI 76 - HIGH COURT OF MADRAS] followed. - Decided in favour of assessee. - Appeal No. ST/206/08 - Final order No. A/1100/2015-WZB/STB - Dated:- 31-12-2014 - Anil Choudhary, Member (J) And P S Pruthi, Member (T),JJ. For the Appellant : Shri Vinay Jain, CA For the Respondent : Dr B S Meena, Addl. Commissioner (AR) ORDER Per: P S Pruthi: The appellant is in appeal against the impugned order passed by the Commissioner of Service Tax, Mumbai confirming demand of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this service. The other development which took place was the amendment to the 'Maintenance or Repair' service on 1.6.2007 by insertion of an explanation clarifying that the maintenance of goods would also include the maintenance of computer software. The learned C.A. relies on the judgement of the Hon'ble Madras High Court in the case of Kasturi Sons Ltd. Vs. UOI - 2011 (22) STR 129 (Mad) on the issue in which the Hon'ble High Court held that Service Tax will be leviable on maintenance and repair of computer software only from 1.6.2007 when the Explanation was added to the definition of 'Management Maintenance and Repair service'. 4.1 On the issue of limitation, the learned C.A. contends that the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputer software. But earlier in the Finance Act, 2003 in which the terms, 'business auxiliary service' and 'maintenance or service' were introduced for the first time. There was specific exclusion of information technology service including maintenance 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; or (iii) any customer care se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the respective financial years. 8. Therefore, on fact, it is clear that till the advent of the Finance Act, 2007, the information technology which included maintenance of computer software, had been outside 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 v. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itus of contract of sale and/or whether the contract is a service contract may arise. 9. While deciding the same, there was no occasion to consider the implications of the Finance Act 2003 to 2006 in respect of the terms 'information technology' and 'maintenance of software' and the decision rendered in Tata Consultancy Service v. State of Andhra Pradesh [(2005) 1 SCC 308] in the context of the said Act under Entry 54, List-II of VII Schedule to the Constitution cannot be cited for a clarification in respect of the Finance Act, 1994 which is a Parliamentary enactment. 6.1 As observed from the extract of the judgment above, the Hon'ble High Court observed that the apex Court had no occasion to consider the implicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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