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2014 (11) TMI 310 - AT - Service TaxNature of Virtual Private Network (VPN) services - import of services - Information access/retrieval or Online information and database access or retrieval service - Receipt of service from foreign service provider - Held that:- data centre is located abroad to which the foreign offices have access for data and its retrieval. The ownership of data is quite clearly with the SBI foreign offices. Equant have not provided any data for access/retrieval. They have simply enabled the connectivity. They have provided connectivity which enables the FOs to access/retrieve data online. The responsibility of Equant is to ensure that network VPN functions properly. The Commissioner has totally misread the meaning of “Services provided in relation to online information and database access or retrieval”. Clearly the service provided has to relate to information access/retrieval. And EQuant has not provided information and database. The ownership of data is with the FOs. This is a vital fact. The Commissioner's finding that it is not necessary that the original data should emerge or originate from the provider of VPN network is an incorrect reading of section 65(75) and 65(105)(zh). The service provided by Equant will more aptly fall under telecommunication service if provider is licensed under Indian Telegraph Act. Reliance is placed on the case of United Telecom Ltd. (2008 (8) TMI 191 - CESTAT, BANGALORE). SBI India have not received “Online information and database access or retrieval” service from foreign service providers. Therefore, demand of service tax, interest, fees and penalty is not sustainable. - Decided in favour of assessee.
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