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TMI Blog2019 (12) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... not countered with facts and therefore nothing has been brought on record to show that the appellant s contentions are factually incorrect - the appellants have a strong case in their favour. The appellants are not liable to pay any service tax regarding the OIDAR. Classification of services - Management, Maintenance or Repair Service or Information Technology Services - Services availed with respect to maintenance of various software - HELD THAT:- Learned Commissioner has failed to appreciate the fact that upgradation of software etc falls under Information Technology Services - contentions of appellant are accepted that these are availed with respect to maintenance of various software and therefore it falls under Information Technology Services levied w.e.f. 16/05/2008 as has been held by this Bench in the case of SAP India Pvt. Ltd. [2010 (9) TMI 289 - CESTAT, BANGALORE] . Commercial Coaching or Training Services - Management Consultancy Services - appellants have submitted that these services were mainly provided abroad and whenever they were performed in India they have discharged service tax - HELD THAT:- Learned Commissioner observed that they have not produced a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. The appellants also received some services which are in the nature of Commercial Training or Coaching. They have also availed Management Consultancy Services. Revenue has issued a show-cause notice dated 19/03/2009 demanding service tax of ₹ 6,71,95,540/- (Rupees Six Crore Seventy One Lakhs Ninety Five Thousand Five Hundred and Forty only). The show-cause notice was adjudicated, vide order No. 82/2010 dated 22/11/2010, by Commissioner of Service Tax, Bangalore wherein an amount of ₹ 5,70,20,902/- (Rupees Five Crore Seventy Lakhs Twenty Thousand Nine Hundred and Two only) of service tax was confirmed for the period 01/01/2005 to 30/09/2008. He also imposed penalties under Section 76 77 of the Finance Act, 1994. 2. Learned counsel for the appellant submits in respect of OIDAR services that the taxable service under Section 65 (105) (zh) means any service provided or to be provided to a client by any person in relation to OIDAR or both, in electronic form through computer network in any manner. In order to attract tax under this category, the service provider should provide data or information to a client through a computer network for some consideration; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of of the same was demonstrated before the Commissioner; as the services are rendered outside India and the same will not be liable for service tax in the hands of the appellants. 5. Coming to the Management Consultancy Services, the learned counsel submits that these services are received by the appellants outside India and as and when these are rendered in India the appellants have paid service tax and the same was demonstrated before the Commissioner; as the services are rendered outside India and the same will not be liable for service tax in the hands of the appellants. 6. The learned counsel for the appellants further submits that in view of the CBEC Circulars 275/7/2010-CE, 8A dated 30/06/2010; 276/8/2009-CX, 8A dated 26/09/2011 and the decision in the case of Indian National Shipowner s Association Vs. Union of India 2009 (13) STR 235 (HC-Bom.) [(affirmed by Hon ble Supreme Court 2010 (17) STR J57 (SC)], the demand confirmed by the Commissioner for the period 18/04/2006 is not sustainable as the charging Section itself, i.e. Section 66A of the Finance Act, 1994 was introduced with effect from 18/04/2006. 7. Learned counsel also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that 5.3 The main take away from the definitions is that services provided should facilitate not only online information but also Database Access or Retrieval. From the facts on record, it appears to reason that the infrastructure services are nothing but a spider web group which connects Philips Netherlands to all its locations worldwide through the Wide Area Network (WAN) of internet protocol. For such Philips Global Network Services, payment is made on the basis of invoices raised by Philips Netherlands towards maintenance of server/portal, license fees, server software maintenance cost, infrastructure for global platform, hiring of web space for storing data, management and maintenance of web portal, licence cost for access for wireless WAN environment, Directory services for listing etc. Some of these services which can be availed by Philips locations and employees are of the nature of Calendaring and Scheduling Directory, Philips e-mail, file back up etc. In any case, all these infrastructure services are only in the nature of providing intra connectivity between Philips locations worldwide and the payments made are obviously then for sharing of the mainte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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