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TMI Blog2015 (7) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... nic form through a computer network”. When no data or information was provided by the appellants nor does the show cause notice contain any allegation to that effect, the question of sustaining this component of impugned Service Tax demand under Online Information and Database Access and Retrieval Service simply does not arise. Therefore the demand of ₹ 6,90,674/- under this category is not sustainable on merit itself. Services of Calibration of Machine - Held that:- The appellants have vehemently stressed that the calibration of machines is done by customers themselves on their own and they only sell their software to the customer, which is used by them for that purpose. The show cause notice also does not elaborate as to how it is covered under Management, Maintenance or Repair service. Seen in this light the demand of ₹ 28,800/- also does not sustain on merit. Services of cartridge refilling - Held that:- The show cause notice does not elaborate as to how cartridge refilling would come under the category of Maintenance or Repair service. It is argued by the appellants that refilling of ink in cartridges of customers actually tantamount to sale and therefore can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06-07 97,898/- 5. Technical Support Charges 2002-03 to 2004-05 10,83,360/- Total 50,57,455/- 2. Each of the aforesaid five components of the impugned demand is taken up for discussion and finding in the following paragraphs duly taking into account the contentions/submissions of both sides. 3. With regard to the demand relating to maintenance of computer software, it is seen that Management, Maintenance or Repair was defined under Section 65(64) of the Finance Act, 1994 as under :- 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; It was only on 11-5-2007, that the following explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... data and therefore it cannot come within the scope of Online Information and Database Access and Retrieval Services. The appellants have also contended that they are not providing any data or information retrievable or otherwise to the customer in the electronic form through a computer network and that they had merely taken lease line connection for their clients and paid Service Tax charged by such authority on such lease line connection. We find that in the show cause notice or in the impugned order it is nowhere elucidated as to how lease line connectivity provided by the appellants fell in the category of Online Information and Database Access and Retrieval services when they did not provide any data or information. As per Section 105(75) of Finance Act, 1994 Online Information and Database Access and Retrieval Services means providing data or information, retrievable or otherwise to a customer, in electronic form through a computer network . When no data or information was provided by the appellants nor does the show cause notice contain any allegation to that effect, the question of sustaining this component of impugned Service Tax demand under Online Information and Databa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as contended by the appellants. Thus this component of the impugned demand also does not sustain on merit. 6. The Technical Support Charges recovered by the appellants are sought to be levied to Service Tax under Scientific or Technical Consultancy Service . Clause (92) of Section 65 of the Finance Act defines Scientific or Technical Consultancy to mean any advice, consultancy or scientific or technical assistance, rendered in any manner, either directly or indirectly, by a scientist or a technocrat, or any science or technology institution or organisation, to a client, in one or more disciplines of science or technology. The appellants argued that the bills raised by them for Technical Support Charges are in relation to designing, developing and maintenance of software etc. which do not come under the scope of Scientific or Technical Consultancy Service. They have stated that the said activity is now covered under the new category of service called Information Technology Software Service introduced with effect from 15-5-2008 and they have been paying Service Tax under this category from that date. Indeed the C.B.E. C. D.O. Letter No. 334/1/2008-TRU, New Delhi dated 29t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in form S.T. 1 and by not filing S.T. 3 return wilfully with an intent to evade payment of Service Tax due on them. Thus extended period of 5 years for issue of show cause notice as contemplated in Section 73 of Finance Act is invokable in the instant case. In the circumstances of this case mere non-registration and non-filing of returns are totally insufficient to sustain the allegation of suppression of facts when the show cause notice nowhere even remotely brings out as to how the appellants bona fides were suspect or what factors indicated the existence of an intention on their part to evade Service Tax. Indeed the show cause notice para quoted above alleges suppression regarding providing of computer network service (among others) while there was no such taxable service during the relevant period. Thus, the show cause notice itself can hardly be said to contain adequate basis/grounds to sustain the allegation of suppression of facts. But as stated in the beginning of this para, for the purpose of judgment in this case, no strength needs to be drawn from this para. 8. In view of the foregoing the appellants appeal is allowed and the impugned order is set aside. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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