TMI Blog2014 (9) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... on made by the appellant under ‘Information Technology Services' has been accepted by the department. If that be so, we do not understand why the same service would merit classification under ‘On-line Information and Database Access and/or Retrieval Service' for the period prior to May 2008 inasmuch as ‘Information Technology Service' has not been carved out of ‘On-line Information and Database Access and/or Retrieval Service'. Appellant has made out a strong prima facie case for grant of stay. - stay granted. - Appeal No.ST/89438/2013 - Stay Order No. S/903/2014-WZB/C-I(CSTB) - Dated:- 19-8-2014 - P R Chandrasekharan and Ramesh Nair, JJ. For the Appellant : Mr Naresh Thacker, Adv. For the Respondent : Mr P M Saleem, Commissioner (AR) ORDER Per: P R Chandrasekharan: The appeal and stay petition are directed against Order-in-Original No. 45/ST-II/RS/2013 dated 12/08/2013 passed by the Commissioner of Service Tax, Mumbai - II. 2. Vide the impugned order, the learned adjudicating authority has confirmed a service tax demand of ₹ 13,23,23,850/- comprising of ₹ 12,06,39,710/- in respect of Business Auxiliary Services' for the period 01/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reverse charge basis under On-line Information and Database Access and/or Retrieval Services'. The notice was adjudicated and the demands confirmed along with interest and also by imposition of penalties. Aggrieved of the same, the appellant is before us. 3.1 The learned counsel for the appellant made the following submissions: 3.2 The activity of the appellant in procuring orders for the foreign supplier would, no doubt, falls under Business Auxiliary Services'. However, the same comes within the purview of export of services inasmuch as the services has been rendered to a foreign entity and the consideration has been received for the services rendered in convertible foreign exchange. Prior to 01/07/2003, if consideration for services rendered was received in convertible foreign exchange, the same was considered as export of services and exempt under Notification 6/99-ST dated 09/04/1999. The said Notification was withdrawn on 01/03/2003. However, the CBEC vide Circular No. 56/5/2003-ST dated 25/04/2003 had clarified that export of services would continue to remain tax free even after withdrawal of Notification 6/99-ST, if the amount is received in convertible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period 18/04/2006 to 31/03/2008, for which a service tax demand of ₹ 1,16,84,140/- has been confirmed, the learned counsel submits that the product received by the appellant was Information Technology Software Service which became taxable w.e.f. 16/05/2008 and the appellant has been discharging service tax accordingly and the department has not disputed this classification. Therefore, for the period prior to 16/05/2008, the services received cannot be classified under On-line Information and Database Access and/or Retrieval Service.' Accordingly, it is submitted that this demand is also not sustainable. 3.4 The learned counsel submits that bulk of the demands are time-barred and only an amount of ₹ 3.42 crore in respect of Business Auxiliary Service' and ₹ 45 lakhs in respect of On-line Information and Data Base Access and/or Retrieval Service' would fall within normal period of limitation. 3.5 The appellant also relies on the decisions of this Tribunal in the case of GAP International Sourcing (India) Pvt. Ltd. vs. Commissioner of Service Tax, Delhi decided on 28/02/2014 vide stay order No. 50780/2014. In the said case, the appellant therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the appellant would be entitled for the rebate of service tax paid. Reliance is also placed on the decision of this Tribunal in the case of Lenovo (India) Pvt. Ltd. vs. Commissioner of Central Excise, 2010 (20) STR 66 wherein also a similar question arose and it was held that services provided to a person outside India on commission basis in respect of services of procurement of order and forwarding the same to the Principal in Singapore would be a service delivered outside India and would amount to Export of Service and hence not liable to tax in India. 3.6 As regards the demand of service tax under On-line Information and Database Access and/or Retrieval Service', the appellant has submitted copies of the service agreement as per which the appellant is receiving the software and the licence to use the software and also wide area network services and so on, which shows that the services received by the appellant related to Information Technology Software Service' and the consideration was paid for maintenance, support and roll out of a software. Accordingly, the learned counsel prays for grant of stay. 4. The Commissioner (AR) appearing for the Revenue, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the prima facie view that services rendered by the appellant in the present case also amounts to export of services and hence not taxable in India. 5.3 As regards the demand of service tax on the Information Technology Software' received by the appellant through internet, we notice that, it is not in dispute that since 01/05/2008 the classification made by the appellant under Information Technology Services' has been accepted by the department. If that be so, we do not understand why the same service would merit classification under On-line Information and Database Access and/or Retrieval Service' for the period prior to May 2008 inasmuch as Information Technology Service' has not been carved out of On-line Information and Database Access and/or Retrieval Service'. It is a settled position in law that when a levy is introduced on a new category of service, the same would apply only prospectively and the same service cannot be classified elsewhere under other categories prior to the inception of levy. 6. Thus, the appellant has made out a strong prima facie case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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