2015 (6) TMI 161

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....rom the same after browsing. The viewer is allowed to view photographs free of cost. However, he can download the data only after he enters into an agreement with the appellant and agree with the terms and conditions as stipulated by appellant. It is also one of the conditions of the appellant that the viewer has to pay for the amount as quoted by the appellant and on such payment the link is provided to the viewer/client for downloading the image. Revenue authorities are of the view that the services provided by the appellant would be covered under the category of 'Online information and Data base access or Retrieval service' inasmuch as they are storing data on website charging and recovering fees for allowing downloading of data ....

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....photograph, it would mean that the said services would not get categorised under 'Online information and Data base access or Retrieval service.' He would also submit that the appellant has got copyright over the photographs which are displayed in the website, hence charges an amount of copyright and during the relevant period said services were not covered under the service tax net. He would draw out attention to the decision of the Tribunal in Dewsoft Overseas P. Ltd. 2008 (12) STR 730 (Tri-Del); and submits that in the said case law, Tribunal was considering the service tax liability under the head 'Online information and Data base access or Retrieval service' for accessing the online study material which was extended by t....

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....ce the said definition as also the taxable services. "S.65(75) "on-line information and data base access or retrieval" means providing data or information retrievable or otherwise, [to any person] in electronic form through a computer network; ... ... (zh) [to any person], by [any person], in relation to on-line information and database access or retrieval or both in electronic form though computer network, in any manner" 6. It can be seen from the above reproduced definition of the services, that the on-line information means providing data or information which is retrieved or otherwise in electronic form through a computer network. It is an admitted fact in the case in hand, that the appellant's client has an access to ....

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....ded on 27th February 2015 in the case Hon'ble High Court was considering an issue of whether consideration paid towards supply and software along with hardware - rather software embedded in hardware amounted to Royalty. In the said judgement, Hon'ble High Court in para no. 5, quoting extensively from a earlier decision stated:- "That a computer programme may be copyrightable as intellectual property, does not alter the fact that once in the form of floppy disc or other medium, the programme is tangible, movable, and available in the market place." The aforesaid observation of Hon'ble High Court can be applied to the case in hand as we find that large collection of photographs may be copyrightable but the access to said pho....