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TMI Blog2025 (1) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... trieval' (OIDAR) services and whether they are liable for payment of service tax under Reverse Charge Mechanism (RCM) under section 66A read with section 65 (105) (zh) from 2004 to 2006, since the liability to pay service tax in respect of services received from outside India is introduced only w.e.f. 18.04.2006 under Section 66A of the Finance Act, 1994. 2. The facts in brief are Toyota Kirloskar Auto Parts Pvt., Ltd., the appellant had entered into 'Basic Agreement on Utilisation of Facility' dated 13.04.2004 with Toyota Motor Asia Pacific Pte Ltd, Singapore for utilizing certain Infrastructure facilities including, hardware like servers and computers, software required, data centre space and rack, providing uninterrupted pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal and set aside the demand prior to 18.04.2006. However, the demand for the period from 18.04.2006 was confirmed with interest and penalty was imposed under Section 76 and 78 of the Finance Act, 1994. Aggrieved by said order, present appeal is filed. 5. When the appeal came up for hearing, the learned counsel for the appellant drew our attention to the definition of "Online Information and Database Access or Retrieval" Services, as per section 65 of the Finance Act, 1994; 65 (75), information and database access or retrieval" means providing data or information, retrievable or otherwise, to person, in electronic form through a computer network; 6. The learned counsel further submitted that; they are not doing any such activity fallin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant is responsible for keeping up the uptime. Uptime means the duration when the equipment work without fail. So the responsibility of the appellant is keeping all the elements (ports, connected in the network, they have to function properly) in working condition. The standards are given in Annexure-II. It is also seen that the equipments are connected by leased line. The Andhra Pradesh Government itself has leased the lines from the BSNL. That is not the responsibility of the appellant because the Andhra Pradesh Government has leased the lines from BSNL and the appellants uptime calculations are specific to the equipment placed by them in the DNCs and SNC. The appellants receive the payment only towards upkeep of the equipments su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Data or Information Retrieval or otherwise to any person in electronic form through a computer network. Further under Section 65 (105) (zh) of the Act, taxable service means any service provided or to be provided to a client by any person in relation to Online Information and Database Access or Retrieval or both, in electronic form through computer network in any manner. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronics India Ltd (supra), learned AR submitted that the issue is pending before the Hon'ble Supreme Court. 10. In his rejoinder, the learned counsel also drew our attention to Annexure 'A' services to the contract, which enumerates the service details and submitted that the services availed by them from the Toyota Motor Asia Pacific Pte Ltd, Singapore computer network facility was to generate, store and access their own data and information pertaining to their business operations and not the data belonging to Toyota Motor Asia Pacific Pte Ltd, Singapore. Learned counsel also drew our attention to the judgment of the High Court of Bombay in the matter of Indian National Shipowner's Association Vs. Union of India 2009 (13) S.T.R. 235 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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