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TMI Blog2018 (7) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... with the maintenance of immovable property. The definition has been amended to include goods also w.e.f. 01.06.2007. But w.e.f. 16.05.2008 a separate category of service has been defined under ‘Information Technology Software Service’. It is seen that the nature of activity carried out involves development and maintenance of software. These activities are covered only by the definition of Information Technology Software Service and cannot be brought within the definition of MMRS for the period prior to 16.05.2008 - It cannot be said that such activity related to software is includible under MMRS for the prior period - demand set aside. Online Information and Data Base Access or Retrieval Service - the appellant’s agreement with M/s National Security Depository Limited (NSDL), for setting up and renting a Facilitation Centre on behalf of the Income Tax Department - Held that:- The issue involved in the present case has been decided by the Tribunal in favour of the appellant in the case of S. V. Engineering Constructions [2016 (11) TMI 108 - CESTAT HYDERABAD], where it was held that When main contractor has discharged the service tax liability, there can be no demand against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order is ₹ 4,05,97,745/-alongwith interest and penalties. The following table indicates the demand of service tax made under the different services. Sl. No. Particulars Amount Rs. 1 Storage Warehouse Services 5,44,074/- 2 Renting of Immovable Property 1,17,449/- 3 Stock Broker Services Transaction charges 6,24,304/- 4 Account opening charges, ID charges, reimbursements, SEBI charges, penalty, interest. 46,01,091/- 5 Business Support Services 11,77,050/- 6 MMR 9,73,350/- 7 On-line Information and Data Base Access or retrieval Demand on consideration received from clients. 62,04,393/- 8 Demand on reimbursements claimed from NSDL 8,18,756/- 9 Registrar to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 (29) STR 591 (Tri. Del.). Such charges have also been held to be not liable for service tax under the category of stock broker services. 5.3. After hearing the ld. AR for the Revenue and on perusal of the decision of the Tribunal in the case of LSE Securities (supra) we find that the Tribunal has observed as follows: 16. The appellants in these appeals received turnover charges , stamp duty, BSE charges, SEBI fees and DEMAT charges contending that the same was payable to different authorities and claimed that the same is not taxable. But Revenue taxed the same on the ground that such receipt by stock broker was liable to tax. Revenue failed to bring out whether the turnover charges and other charges in dispute in these appeals received by appellant were commission or brokerage. The character of receipts was claimed by appellants as recoveries from investors to make payment thereof to respective authorities in accordance with statutory provisions of Indian Stamp Act and SEBI guidelines and were not received towards consideration in the nature of commission or brokerage of sale or purchase of securities. While burden of proof was on Revenue to establish that such receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sub-brokers. Evidently there is no service provider service receiver relationship between the appellant and the sub-brokers. A part of the cost involved in the VPN has been recovered from sub-brokers as their share of the expenditure. It appears to us that this is a cost sharing arrangement and not in the form of a service provider-service receiver relationship. Consequently, we are of the view that there is no justification for levy of Service tax under the category of Business Support Services . Further, after going through the relevant definition appearing in Section 65(104c) of the Finance Act, 1994 we find that the activity is not covered by any of the services listed therein. Consequently, we set aside the demand for Service Tax under this category. 7.1 Demands for Service Tax have been raised under the category of Management, Maintenance and Repair Service for the consideration received by the appellant for providing computer software Consultancy Services to their customers. It is the claim of the appellant that such service rendered was for development and maintenance of software for companies. The appellant started discharging Service Tax liability on such consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation 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 . 7.3 By following the said decision, we set aside the demand under this category. 8.1 Service Tax demand has been raised under the category of Online Information and Data Base Access or Retrieval Service . There are two parts to such demand. 8.2. The first point covers the appellant s agreement with M/s National Security Depository Limited (NSDL), for setting up and renting a Facilitation Centre on behalf of the Income Tax Department. The consideration received by the appellant from the clients (which included Service Tax) was entirely remitted to NSDL. NSDL in turn has discharged the Service tax in full. It is submitted by the appellant that since the Service tax on the entire activity has already been discharged by NSDL, the same cannot be demanded from the appellant once again. In this conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction vs. Commr. of Service tax, Ahmedabad [2010 (17) STR 302 (Tri. Ahmd)] vii. CCE, Pune-III vs. Akruti Projects [2014-TIOL-1925-CESTAT-Mum)] viii. DNS Contractor vs. CCE, Delhi-I [2015 (37) STR 849 (Tri. Del.) ix. Jac Air Services Pvt. Ltd. vs. Commr. of Service Tax, Delhi [ 2013 (31) STR 155 (Tri. Del)] Following the principle laid in the above decisions, we hold that the impugned order is not sustainable, and requires to be set aside, which we hereby do. 4. In the result, the appeal is allowed with consequential reliefs, if any. 8.4. By following the above decision, we set aside the service tax demand. 8.5 The second part of the dispute is regarding reimbursement claimed by the appellant from NSDL. It is the view of the Revenue that the charges reimbursed by NSDL should also be included for payment of Service Tax under the category of On-line Information and Data Base Access or Retrieval service . We have held (supra) that since NSDL has discharged the Service Tax, the appellant cannot be called upon to pay Service Tax once again. This is also applicable for the reimbursement. Further, it s seen that the issue regarding Service Tax liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l.), the Tribunal came to the conclusion that Service Tax cannot be charged on such amounts under the category of Banking and Financial Services , since such charges are collected by the appellant and paid to the depository participants who are authorised to levy such charges under the Depository Act, 1996. By following the above decision (supra), we set aside the demand for Service Tax on this ground. 11.1 The appellant acted as an agent of NSDL and recovered charges from the clients in connection with National Skill Registry. They also recovered courier charges, movement charges, delayed payment charges, bank charges etc. Such charges were remitted to NSDL and NSDL have already discharged Service Tax thereon. The Department levied Service Tax on such amounts under the category of BAS. 11.2 The appellant has resisted such levy of Service Tax by taking the support of case law in the case of S.V. Engineering Constructions (supra). 11.3 We have already held above that various charges received by the appellant, which was inturn remitted to NSDL, on which they have already discharged Service Tax cannot be levied to Service Tax in the hands of the appellant. We find no reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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