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TMI Blog2016 (11) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... t while canned software can be treated as goods the customer specific software would be classified as Information Technology software - service tax can only be demanded on the service received w.e.f. 16.05.2008 - Decided partly in favor assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... t or Supply Agency services for the reason that SBL is not Manpower Recruitment or Supply Agency. Ld. counsel argued that SBL is a distributor of their goods and is employing these staff on behalf of the appellant to promote the sale of J&J range of products. 4. Ld. counsel argued that no staff has been supplied by SBL to the appellant. Furthermore, Ld. counsel argued that the actual cost and related expenditure is reimbursed to SBL and therefore it can be considered as reimbursement of expenditure and not provision of service. Ld. counsel relied on the decision of the Hon'ble High Court of Gujarat in Arvind Mills Ltd. 2014 (35) STR 496 (Guj). Para 5 of the decision reads as follows:- "5. It is true that in the present form, the definition of Manpower Supply Recruitment Agency is wide and would cover within its sweep range of activities provided therein. However, in the present case, such definition would not cover the activity of the respondent as rightly held by the Tribunal. To recall, the respondent in order to reduce his cost of manufacturing, deputed some of its staff to its subsidiaries or group companies for stipulated work or limited period. All throughout the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able property; After 01.05.2006 the definition became as follows:- (64) management, maintenance or repair means any service provided by (i) any person under a contract or an agreement; or (ii) a manufacturer or any person authorised by him, in relation to, (a) management of properties, whether immovable or not; (b) maintenance or repair of properties, whether immovable or not; or (c) maintenance or repair including reconditioning or restoration, or servicing of any goods, excluding a motor vehicle. With effect from 01.06.2007, Explanation was added to the said definition vide Finance Act, 2007, which reads as follows:- "Explanation For the removal of doubts, it is hereby declared that for the purposes of this clause, goods includes computer software;" The said explanation to the said definition was substituted by Finance Act, 2008 w.e.f. 16.05.2008 which reads as under:- Explanation For the removal of doubts, it is hereby declared that for the purposes of this clause, (a) goods includes computer software; (b) properties includes information technology software; Ld. counsel argued that only w.e.f. 16.05.2008 can service tax be demanded on the services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l argued that the agreement with SBL is not an agreement of service provision but it is an agreement involving only reimbursement. Ld. counsel has relied on the decision of the Hon'ble High Court of Delhi in Intercontinental Consultants & Technocrafts (supra). Ld. counsel has also relied on the decision of Arvind Mills Ltd. (supra) wherein the Tribunal has held as follows:- "5. It is true that in the present form, the definition of Manpower Supply Recruitment Agency is wide and would cover within its sweep range of activities provided therein. However, in the present case, such definition would not cover the activity of the respondent as rightly held by the Tribunal. To recall, the respondent in order to reduce his cost of manufacturing, deputed some of its staff to its subsidiaries or group companies for stipulated work or limited period. All throughout the control and supervision remained with the respondent. As pointed out by the respondent, company is not in the business of providing recruitment or supply of manpower. Actual cost incurred by the company in terms of salary, remuneration and perquisites is only reimbursed by the group companies. There is no element of profi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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