TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 125
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....h these lines. After completion of the installation, of common server and implementation of SAP in the premises of M/s. BPLSL, the said facility was rendered for use by the appellant also for accessing and retrieving date from the common server with the aid of SAP software for accounting and other purpose through private international lease lines. It appeared that this service is rightly classifiable under the category of 'Computer Network Services' / 'Online Information and Database Access or Retrieval Service', which are liable to pay service tax on the reverse charge mechanism basis. The appellant agreed that leased line services are classifiable under 'Computer Network Services' from 2006 onwards and paid the service tax thereon. The same was duly recorded in para 11 of the SCN dated 19/10/2012 and para 9 of the impugned order. The appellant claimed that the activity relating to graphical tool, Microsoft license, SAP implementation, SAP maintenance, server depreciation, provision are classifiable under 'Information Technology Services' only with effect from 16.5.2008, when the service was introduced and not during the period 2006, 2007 and 2008 upto 16.5.2008. Hence they are no....
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....s' under which their services should be classified was introduced only in 2008. As per the decision of the Hon'ble Tribunal in the case of Dr. Lal Path Labs Pvt. Ltd. Vs. CCE, Ludhiana reported in 2006 (4) STR 527 (Tri. Del.) services that are brought under the service tax net for the first time are not liable to discharge service tax for the preceding period. Further, he also referred to the judgment of the Bangalore Bench of the Tribunal in the case of IBM India Pvt. Ltd. Vs. Commissioner of Service Tax reported in 2010 (17) STR 317 (Tri. Bang.) wherein it was held that ERP implementation falls under the category of 'Information Technology Service' only with effect from 16.5.2008. Hence they were not liable to service tax before this date and the allegations of suppression / deliberate attempt to evade duty holds no ground. Moreover, this matter has been in dispute for some time and hence the extended time limit cannot be invoked. He prayed that the impugned order may be set aside and the appeal allowed. 6. The learned ADC (AR) Smt. K. Komathi appearing for the Revenue has submitted that the appellant in this case had not only accessed the data but they also manipulated data acc....
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.... computer software, or communication facilities which are connected or related to the computer in a computer system or computer system network. Online Information and Data Base Access or retrieval Service (was introduced in the service tax net with effect from 16.07.2001 vide notification No.4/2001-ST, dated 09.07.2001) 2. As per section 65(75) of the Finance Act, 1994, as amended by Finance Act, 2008, "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. 2.1 As per section 65(36) of the Finance Act, read with section 2(1)(o) of the Information Technology Act, 2000, "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer print outs magnetic or optical storage media, punched cards, punched tapes) or stored internally on the memory of the computer." 2.2 As per section 65(33) of the Finance A....
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....t leased line services used by them which provided for a computer network, are classifiable under 'Computer Network Services' from 2006 onwards and have paid the service tax thereon, as noted earlier. This being so, the classification of the service under dispute as a computer network service is not correct. The services are correctly classifiable under 'Information Technology Software services' which have been introduced only with effect from 16.5.2008. The nature of the services are such that it can be provided online from a remote location outside the taxable territory also. The service provided from a remote location outside the taxable territory, to recipients in India would be taxable under the reverse charge mechanism. 8.1 The appellant has placed reliance of Hon'ble Bangalore Tribunal's decision in the case of IBM India (P) Ltd. Vs. CST - 2010 (17) STR 317 (Tri. Bang.) wherein it was held that ERP implementation, which the appellant asserts is equivalent to the services rendered in the present case, falls under the category of 'Information Technology Software' services only with effective from May 16, 2008. Prior to that date, it was excluded from the definition of consult....