TMI Blog2011 (3) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... ie appears to be 'online database access and / or retrieval' and the contention of the appellant that the service received was service in relation to information technology does not appear to be acceptable - Since parent company does not have any office or establishment in India, by virtue of the provisions of Section 66A of Finance Act, 1944 read with Rule 2(1) (d) of the Service tax Rules, 1994, the appellant would be liable to pay service tax in respect of taxable service received by them - The appellant, therefore, have not been able to establish prima facie case in their favour and, therefore, this is not a case for total waiver. - 951 & 952/2010 - 304 & 305/2011 - Dated:- 29-3-2011 - R M S Khandeparkar, Rakesh Kumar, JJ. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 66A of the Finance Act, 1994 read with Rule 2 (1) (d) (iv) of the Service Tax Rules, 1994, the appellant, as service receiver, would be liable to pay service tax on the value of the service received by them. On this basis, two show cause notices - SCN dated 31/3/08 for demand of service tax amounting to Rs. 48,49,666/- for the period from 1/9/2006 to 28/2/2008 and SCN dated. 19/3/09 for demand of service tax amounting to Rs. 2,35,177/- for March 2008, were issued to the appellant. The SCNs, in addition to service tax, also sought recovery of interest at the applicable rate under Section 75 and also imposition of penalty on them under Section 76 77 of the finance Act, 1994. 1.1 SCN dated 19/3/09 was adjudicated by the Deputy Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l dated 23/2/10 by which tax demand along with interest for the period from 1/10/06 to 28/2/08 was upheld and the demand for period prior to 1/10/06 was set aside as time barred. The penalty under Section 76 was also upheld. The tax demand upheld comes to Rs. 47,22,468/-. Against this order of the Commissioner of Central Excise (Appeals). Appeal No. ST/951/10 along with stay application has been filed. 2. Heard both sides in respect of stay. 2.1 Shri J.S. Bhanu Murthy, Advocate, the learned Counsel for the appellant submits that the services received by the appellant are in the nature of 'Information Technology Services', which being excluded from the purview of 'Business Auxiliary Services' was not taxable, that the agreement of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udan, they could perform daily operations for formula management and global project management by access to the data and product library of Givaudan; (b) the appellant for their business of manufacture and marketing of flavours and fragrances had access to the data warehouse system of Givaudan through a dedicated intranet, which is nothing but a complete network; (c) in this case, there is no development or designing of software and only the available database is being used for day-to-day activities which is retrieved through the computer network; and (d) In view of the above facts, the service received by the appellant is not the service in relation to information technology but is the 'online information or database acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson in relation to online information and database access or retrieval or both in electronic form through computer net work, in any manner. As per Section 65 (75) ibid "online information and database access or retrieval" means providing data or information, retrievable or otherwise to a customer in electronic form through a computer network. The word 'data' defined under Section 65 (35) has been assigned the same meaning assigned to it in Section 2 (1) (o) of the Information Technology Act, 2000 and as per 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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