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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 ..... d in this appeal relates to demand of service tax on software maintenance services carried out by the appellant for APEPDCL during the period 01.10.2006 to 01.03.2007. This demand has been raised by department, inter alia, on the grounds that such software maintenance activity would fall under the category of management, maintenance or repair service and hence appellants were liable for payment of service tax from 09.07.2004. 2. Today, when the matter carne up for hearing, on behalf of the appellant Ld. Counsel K. Dakshinamurthy submitted that the issue in dispute has been settled in their favour, in their own case, for an earlier period, by the Tribunal in Phoenix IT Solutions Ltd., Vs CCE, Visakhapatnam reported in [2011 (22) STR 400 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued by the department after Budget 2007-2008, it was stated that Section 65(64) of Finance Act, 1994 has been amended to clarify that "goods" for the purpose of this service (Management, Maintenance or repair service) includes computer software. It was also clarified that development of computer software would be liable to tax under Information and Technology service whereas maintenance and repair of computer software would be coming under management, maintenance or repair service. 14. It is the submission of the appellant that maintenance and repair includes development of software 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 dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this clarification widen the scope of taxation of service." In any case, the appellants themselves have submitted that the liability can arise after 1-6-07. Therefore, in view of the ratio of the decision in the case of Martin Lottery Agencies Ltd., we consider that it would not be appropriate to apply the explanation retrospectively and levy Service Tax w.e.f. 9-7-04. In any case, the very fact that explanation has been added to clarify doubts, would show that suppression of facts could not have been invoked in this case. In view of the above decision, we hold that maintenance of software 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 mainten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncture Ld. Counsel submits that the said tax liability has been already calculated by them and paid along with interest. This aspect will also be verified and confirmed by the denovo adjudication. Adjudicating authority will ensure that an opportunity is given to the appellant to produce evidence in support of his claim regarding payment. Ld. Counsel also stated that the impugned order also concerns an amount of Rs. 18,17,375/- demanded on business auxiliary services rendered during the period from April 2007 to March 2008. He submits that the said demand has already been 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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