TaxTMI 
TaxTMI 
2018 (11) TMI 461
X X X X Extracts X X X X
X X X X Extracts X X X X
....gs were initiated against the appellant and demands of service tax have been confirmed along with interest and various penalties have also been imposed on them by way of various impugned orders. Against those orders, the appellants are before us. 3. Heard the parties. 4. We find in this case various services are in dispute, therefore, each service is to be taken separately to decide the issue. (1) The demand for the period 01.01.2005 to 30.04.2011 has been confirmed under the category of Online Information and Data base Access & Retrieval service for which they have entered into an agreement with M/s. Globe Centre, a division of Nestle Australia to share expenses towards establishing and maintaining a SAP software system providing standardized information infrastructure. 4 (1) (i). The contention of Ld. Counsel for the appellant is that the said service covered by the decision of this Tribunal in the case of United Telcom Limited -2009 (14) STR 212 (Tri.-Bang.) which has been affirmed by Hon'ble Karnataka High Court reported in 2014 (33) STR J193 (Kar). The same view has been followed by this Tribunal in the case of State Bank of India- 2015 (37) STR 340 (Tri.-Mum.) and BASF I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce". Therefore, relying on the decision of this Tribunal in the case of BASF India Ltd. (supra) wherein this Tribunal has held as under: 5. Accordingly, in the absence of any acceptable evidence that the assessee had access to data of others on the common server for which consideration was made over on which they are liable to tax under Section 66A of Finance Act, 1994, the charging of tax on the respondent would not be correct in law. For the above reasons, we find no reason to interfere with the impugned order." 8. Further, we find that the same view has been taken by Hon'ble Karnataka High Court in the case of United Telcom Limited (supra), wherein the Hon'ble High Court has observed as under:- "Appellate Tribunal in its impugned order had held that appellant provided Wide Area Network (WAN) to Andhra Pradesh Government connecting all Government offices in State capital and District Centres for which equipments like network interfaces provided and ensured effective working of ports. Flow of information from different Centres to Headquarter and vice versa cannot be equated to online information and data retrieval. It was further held that private network service like WAN cove....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eport available to the appellant. The whole of the demand pertains to the period 1.1.2005 to 17.4.2006. 4 (3) (i). We find that the decision of the Hon'ble Bombay High Court in the case of Indian National Ship-owners Association vs. Union of India-2009 (13) STR 235 (Bom.) which has been affirmed by the Hon'ble Supreme Court reported in 2010 (17) STR J57 (SC) has observed that prior to 18.4.2006, no service tax is payable by the recipient located in India on the service received from abroad under reverse charge mechanism. As the period pertains prior to 18.4.2006, therefore the demand is not sustainable and the same is set aside. (4) With regard to the demand of Rs. 76,820/- has been confirmed under Commercial Training or Coaching service. 4(4) (i). We find that the appellant received books from M/s. Competitive Dynamics and SGV Development, which is sought to be taxed in the present proceedings. Further amounts were remitted abroad towards training of employees outside India. Mere supply of reading material cannot be equated to postal coaching. Further training services for employees were rendered outside India and not taxable as import of service. Services, if any, having bee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(4) (ii). Therefore, we hold that the appellant is not liable to pay service tax the category of Commercial Training or Coaching service. (5) Another demand of Rs. 718029/- has been confirmed under the category of Online Information and Data base Access & Retrieval service paid for internet charges. 4 (5) (i). We find that the appellant has availed leased line services from Equant Network Services Ltd, a global network connectivity provider to communicate with Nestle Environment and outside. The services provided to the appellant is only for connectivity between two places and therefore, in the absence of provision of data or information, internet charges cannot be liable to tax under the category of Online Information and Data base Access & Retrieval service as held by this Tribunal in the case of State Bank of India (supra) wherein this Tribunal has observed as under:- "9. If we examine the case vis-à-vis the coverage of Section 65(105)(zh), here again the department is on a weak footing. The very description under the contract between SBI and Equant shows that Equant IP VPN is a managed network service that provides secure IP internet working which enables connectivity....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re aptly fall under telecommunication service if provider is licensed under Indian Telegraph Act. Reliance is placed on the case of United Telecom Ltd. (supra). However, the provider of telecommunication service would be Equant but this is not the subject matter of the present dispute." Therefore, we set aside the above demand. (6) The demand of Rs. 4,798/- has been confirmed under the category of club or association service for the period 16.6.2005 to 17.4.2006. 4(6) (i). We find that prior to 18.4.2006 any service received from outside India is not taxable under the reverse charge mechanism in view of the decision of the Hon'ble Bombay High Court in the case of Indian National Ship-owners Association (supra), the demand confirmed under the category of club or association service is not sustainable against the appellant and the same is set aside. (7) The demand of Rs. 8,97,936/- has been confirmed under the category of advertising and advertising agency for the period 1.1.2005 to 17.4.2006. 4 (7) (i) We find that the demand has been confirmed for the period 1.1.2005 to 17.4.2006 under the reverse charge mechanism prior to 18.4.2006, therefore, the said demand is not sustai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts are not managing the appellant's organizaiton as they have to do nothing with management of organization. In that circumstance, no service tax is payable under management consultancy service. We find that prior to 18.4.2006, therefore, the said demand is not sustainable under the reverse charge mechanism against the appellant in view of the decision of the Hon'ble Bombay High Court in the case of Indian National Shipowners Association (supra). (10) The demand has been confirmed under consultancy engineer services for the period 1.1.2005 to 31.12.2008. 4 (10) (i). The visiting fees paid by the appellant for providing services in India and outside India. 4 (10) (ii). We find that the expenses incurred towards licence renewal of job evaluation system to reward technologies Pty Limited and for spares paid to Gambo B.V. which cannot be categorized under consultancy engineer services, no service tax is payable by the appellant. (11) The demand has been confirmed on account of misc. expenses for the period 1.1.2005 to 31.12.2008. 4 (11) (i). We find that the appellant has incurred miscellaneous expenses in convertible foreign exchange which includes legal charges, courier charge....