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2019 (12) TMI 183 - AT - Service Tax100% EOU - Classification of services - Online Information Database Access and Retrieval (OIDAR service) or not - developing and export of software - agreements with their group companies in Netherlands to avail various services which in the nature of providing internet connection and communication - Rule 2(1)(d)(iv) of Service Tax Rules, 1994 - Notification 36/2004 dated 31/12/2004 - Section 66A of Finance Act 1994 w.e.f. 18/04/2006 - CBEC Circular 275/7/2010-CX 8A dated 30/06/2010 - Services availed with respect to maintenance of various software - Commercial Coaching or Training Services -d Management Consultancy Services - penalty. HELD THAT:- Regarding the OIDAR, Commissioner observes that there is a difference in the submissions of the appellant vide a written reply dated 03/11/2010 and 28/09/2010 and the submissions given during the personal hearing. However, learned Commissioner has not put forth any reasoning based on the facts of the case or the provisions under any contract. Therefore, it is to be held that the appellant’s contentions were not countered with facts and therefore nothing has been brought on record to show that the appellant’s contentions are factually incorrect - the appellants have a strong case in their favour. The appellants are not liable to pay any service tax regarding the OIDAR. Classification of services - Management, Maintenance or Repair Service or Information Technology Services - Services availed with respect to maintenance of various software - HELD THAT:- Learned Commissioner has failed to appreciate the fact that upgradation of software etc falls under ‘Information Technology Services’ - contentions of appellant are accepted that these are availed with respect to maintenance of various software and therefore it falls under Information Technology Services levied w.e.f. 16/05/2008 as has been held by this Bench in the case of SAP India Pvt. Ltd. [2010 (9) TMI 289 - CESTAT, BANGALORE]. Commercial Coaching or Training Services - Management Consultancy Services - appellants have submitted that these services were mainly provided abroad and whenever they were performed in India they have discharged service tax - HELD THAT:- Learned Commissioner observed that they have not produced any sort of evidence to prove this contention. No data has been provided in the appeal papers so as to enable this Bench to come to a conclusion - the issue requires to go back to the authorities to ascertain the duty liability on the appellant vis-à-vis their claims - matter on remand. Penalty - HELD THAT:- No service tax can be levied against the appellants in respect of OIDAR services and Management, Maintenance or Repair Services, the penalty levied to that extent under Section 76 & Section 77 shall have to be set aside - the appellants are liable to pay service tax on Commercial Coaching Service and Management Consultancy Services rendered by the overseas agents availed in India. For the reason that the show-cause notice cannot invoke extended period, such liability will be restricted to normal period - Penalty under Section 76 & 77 will be levied by the original authority after re-quantifying the duty payable by the appellants in respect of Commercial Coaching Service and Management Consultancy Services for the normal period. The case remanded back to the original authority for the limited purpose of quantifying the service tax payable on Commercial Coaching Service and Management Consultancy Services for the normal period - appeal allowed in part by way of remand.
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