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TMI Blog2017 (1) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the dispute in this appeal, has become taxable only with effect from 01.06.2007. This being the case as the period of dispute is prior to this date, the impugned order will not sustain - appeal allowed. Software maintenance services - period from April 2007 to March 2008 - Held that: - for the period prior to 01.06.2007, the activity of software maintenance provided by the appellant to APEPDCL will not be liable to service tax liability. However, for the period subsequent to 01.06.2007, said activity will definitely be liable to service tax under the management, maintenance, repair services - the issue has already been in agitation and that periodical SCN have been issued to the appellant, issue being one of interpretation, the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir own case, for an earlier period, by the Tribunal in Phoenix IT Solutions Ltd., Vs CCE, Visakhapatnam reported in [2011 (22) STR 400 (Tri-Bang)]. In the circumstances he prayed that the present appeal may also be allowed in their favour. Ld. AR fairly reiterated the correctness of the impugned order. 3. Heard both sides and gone through the facts. Ld. Counsel submitted that the matter is already been decided by this Tribunal in the case cited. Relevant portions of the said decision viz, of para 13,14 and 15 are reproduced below for easy reference. 13. The next service under dispute is software maintenance. The learned Commissioner in impugned order has held that e-Care maintenance, website maintenance and data base maintenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in fact development of software is outside the preview of service tax since the Information Technology service became liable to Service Tax on the development of software only w.e.f. 16-5-08. However, there is no bifurcation of the cost of development and the cost of maintenance. Further, the contract also speaks of BMS software maintenance, e-care maintenance, maintenance of software and website maintenance. In every case, word 'maintenance' has been used. In the absence of the word 'development' and presence of word 'maintenance ' in the agreement, 'and also in view of the failure of the appellant to submit bifurcation, we have to take a view that the agreement covers maintenance only. 15. The next qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tware became taxable only from 1-6-07. 4. In the circumstances, adopting the ratio already set down by Tribunal, we hold that the activity of software maintenance provided by the appellant, which is subject matter of the dispute in this appeal, has become taxable only with effect from 01.06.2007. This being the case as the period of dispute is prior to this date, the impugned order will not sustain and will have to be set aside in toto which we hereby do. Appeal No. ST/1002/2010 allowed with consequential reliefs, if any. APPEAL No. ST/821/2010 and ST/2352/2010: 5. Appeal No. ST/1821/2010 is also filed on identical issue. However, involves period from April 2007 to March 2008. 6. In view of the same discussions and conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een discharged by them along with interest and that the same is already been taken note of impugned order, and has been dropped by adjudicating authority. Appeal No. ST/1821/2010 disposed of as above. Appeal ST/2352/2010 has been filed against the same impugned order by the department O-I-O No. dated 04.05.2010, which had also been appealed against assessee in ST/1821/2010 discussed above. Department has came in appeal only on the grounds that Commissioner has erred in not imposing penalty under section 77 ibid respect of both the tax liabilities confirmed. That penalty under section 78 of the act has not also been imposed. In view of the discussions, herein above in respect of ST/2352/2010 we do not find any merit in the appeal of the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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