2013 (8) TMI 786 - AT - Service Tax

On-line Information Retrieval Service - Taxable services u/s 65(105)(zh) reverse charge - IP Services - DIAMIND basic (Deploying Intranet, Applications and Messaging On Notes Domino) - Philips E-mail to Applications Connectivity Enablement (PEACE) - CODE Desktop Client Service - Systems Management Infrastructure - Held that - Revenue had not been able to demonstrate that the service results in providing access to the applicant to any data other than their own data - if access was provided only to their own data such services will not be covered by the entry for On-line Information Retrieval Service. Waiver of pre deposit waiver was allowed on pre-deposit of dues stay application allowed.

Summary

Issues:
Classification of services under Section 65(105)(zh) for service tax liability.

Analysis:
The judgment by the Appellate Tribunal CESTAT Chennai revolves around the classification of services provided by M/s. Philips International BV, Netherlands (PIBV) to the appellant company for the purpose of service tax liability under Section 66A of the Finance Act, 1994. The Revenue contended that the services received by the appellant were subject to service tax under the reverse charge mechanism. The services in question included IP Services, Diamond Basic, Systems Management Infrastructure, PEACE, and CODE Desktop Client Service. The Revenue issued a show-cause notice demanding service tax not paid during a specific period, leading to a confirmed demand against the appellant along with interest and penalty. The appellant challenged this order, seeking a waiver of pre-deposit.

In response to the Revenue's arguments, the appellant's counsel contended that the services provided by PIBV did not involve providing access to data belonging to any other company but only to the appellant's own data stored in Holland. The counsel relied on Section 65(105)(zh) of the Finance Act, which defines taxable services related to online information and database access or retrieval. The counsel highlighted a previous Tribunal order and a case involving Nestle India Ltd. to support their argument that services involving access only to the appellant's own data should not be subject to service tax under the said section.

The Revenue's representative argued that PIBV provided a range of services related to database maintenance, intranet maintenance, and software maintenance for the appellant, and thus, should be required to make a pre-deposit. The representative contended that even if the data accessed belonged to the appellant, the services provided by PIBV fell under the definition of online data retrieval services as per Section 65(105)(zh) of the Finance Act.

After considering both sides' submissions, the Tribunal concluded that the Revenue failed to establish that the services provided by PIBV resulted in access to data other than the appellant's own data. The Tribunal noted that if access was limited to the appellant's data, such services would not fall under the category of On-line Information Retrieval Service. Consequently, the Tribunal granted a waiver of pre-deposit for the dues arising from the impugned order, allowing the appeal to proceed with a stay on the collection of dues during the appeal's pendency.