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TMI Blog2017 (10) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... onic form through computer network is a taxable service, whether it includes retrieval or not. In paragraph3 of the impugned judgment, the Appellate Tribunal has noted the submissions canvassed on behalf of the appellant. A specific submission canvassed was that the appellant has got copyright over the photographs which are visible on its website and hence, the appellant charges the amount for copyright - The Appellate Tribunal has confirmed the findings of fact recorded by the first appellate authority about the nature of activities carried out and services rendered by the appellant. The said findings are in conformity with the factual statements made by the appellant in paragraph2.3 of the memorandum of appeal - information technology ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals), Mumbai. The said appeal was dismissed by the Commissioner holding that the appellant was charging the monies to the customers for allowing them to download the images hosted on its website and, therefore, the service is covered under the category Online Information and Database Access or Retrieval . The view taken by the Commissioner has been confirmed by the Customs, Excise and Service Tax Appellate Tribunal (for short Appellate Tribunal ). 3. The learned senior counsel appearing for the appellant has invited our attention to the questions of law formulated in the memorandum of appeal, which read thus: a) Whether in the facts and circumstances of the present case, the Hon'ble Tribunal erred in holding that the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of images does not amount to rendering of taxable service. He also invited our attention to subclause (zzzze) incorporated in clause (105) of section 65 of the Finance Act, 1994. He also invited our attention to the Circular No.334/1/2008TRU dated 29th February 2008 and in particular paragraph4 thereof which deals with information technology software service. Inviting our attention to the copy of the purchase order and the invoice, he would urge that the service rendered by the appellant will not be covered by the category Online Information and Database Access or Retrieval . 4. We have given careful consideration to the submissions advanced. In paragraph2.3 of the memorandum of appeal, the nature of activities carried out by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic form through computer network is a taxable service, whether it includes retrieval or not. 6. The learned senior counsel relied upon CBEC's Education Guide and in particular clause 5.9.5 thereof, which reads thus: 5.9.5 What are Online information and database access or retrieval services ? Online information and database access or retrieval services are services in relation to online information and database access or retrieval or both, in electronic form through computer network in any manner. Thus, these services are essentially delivered over the internet or an electronic network which relies on the internet or similar network for their provision. The other important feature of these services is that they are comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant on payment of price. Thus, the appellant may not be charging anything for having accessed to its website on which images are visible but the appellant is charging its customers for downloading of the digital contents (photographs) hosted on the website. Thus, going by what is set out in paragraph2.3 of the memorandum of appeal, the services rendered by the appellant will fall under the category of online information and database access or retrieval services. A copy of invoice, which is a part of the appeal compilation, shows that the amounts are charged by the appellant for images sales and the transaction is of purchase of images by downloading the same from the website of the appellant. 7. We have perused the impugned judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classify the services as Online Information and Database Access or Retrieval Services. Therefore, the Tribunal found, in our view rightly, that the fact situation in the said case was completely different. 10. The Appellate Tribunal has confirmed the findings of fact recorded by the first appellate authority about the nature of activities carried out and services rendered by the appellant. The said findings are in conformity with the factual statements made by the appellant in paragraph2.3 of the memorandum of appeal. In our view, information technology software service is completely different from the service rendered by the appellant in the facts of the case. 11. Hence, we find no merit in the appeal. No substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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