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Explanation - For removal of doubts, it is hereby declared that for the purpose of this clause,- 

   (a)     "good" includes computer software;
   (b)     "properties"      includes      Information           technology
           software.

Thus it is seen from the definition that "maintenance and repair service" includes reconditioning or restoration, or servicing of any goods or equipments. In the case of "Software maintenances" actually the services offered in most of the cases is "software up-gradation and its smooth functioning. The party in their defence reply dated 15.09.2008 have themselves admitted that they provide services for (1) Installation or implementation of customized software; (2) Customization of software to be installed; (3) Development of patches or intermediary software which enable the main software to run smoothly onto the operating system environment of the client; (4) Up-gradation of installed software with newer versions, Service Tax Appeal No.55382 & 56090 of 2013 and (5) Enhancement or modification of software by either opening or closing some of the inbuilt features or reports of the software. Therefore I find that by their own admission the services being provided by them are classifiable under "repair and maintenance services" and not "information technology services". The party in their defence has submitted that software maintenance is not covered under maintenance of goods, however I find that definition of the goods has been expanded to include computer software as well. Consequently maintenance and repair of computer software would be leviable to service tax under this category.

(c). It is obvious that the legislature has understood information technology software to be distinct and different from computer software. The Circulars and decisions cited before us, all, discuss computer software. No material has been placed before us, other than the literature supplied by the learned Special Consultant for the Revenue, to show that activities of the kind undertaken by the appellant during the material period would be encompassed in the ERP regime. To our mind, these are activities very much within the coverage of sub-clause (zzzze)(iii) of Clause 105 of Section 65 of the Finance Act, 1994. Any incidental advice, consultancy or assistance given by the service provider will be squarely covered by sub-clause (zzzze)(iv). It is pertinent to note that adaptation, upgradation, enhancement, implementation, etc. of information technology software are expressly covered by the definition of 'information technology software' service and that these very operations have also been specified as different categories on software maintenance in the literature supplied to us. Thus there is almost total convergence between the technical literature on software and the definition of information technology software service given under Section 65(105)(zzzze) of the Finance Act, 1994.