TMI Blog2015 (12) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... s Support Service. The correctness or otherwise of the Board Circular can be examined only at the stage of final hearing. Accordingly we hold that in respect of service tax demand on IPCL charges, the appellant have strong prima facie case in their favour. As regards the service tax on GAM expenses being paid by the appellant to their holding company, we find force in the appellants’ contention that this service is of the nature of ‘Operational or Administrative Assistance in any manne’ which was brought within the definition of ‘Business Support Service’ as given under section 65(104c) w.e.f. 01.05.11. Accordingly during period prior to 01.05.11, prima facie, this service would not be taxable as Business Support Service. As regards the service tax demand of ₹ 33,64,008/- on alleged receipt of online information and Data Base and Access Retrieval Service, prima facie we are of the view that no evidence in this regard have been produced by the Department. - appellant has strong prima facie case in their favour. As regards alleged short payment of service tax of ₹ 1,71,456/- in April 07, the Appellant plea is that this amount of service tax had been paid withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 65(105(zzzq) as the appellant were liable to pay service tax on the GAM expenses and IPCL charges being paid by them to their holding company in USA as service recipient under section 66A of Finance Act, 1994 read with Rule 2(1)(d)(iv) of the Service Tax Rules 1994. 1.2 Besides this, on scrutiny of their records, the Department was of the view that the appellant have received On line Information and Data Base Access or Retrieval Service from their holding company for which payment have been made by them and on this amount also they are liable to service tax under reverse charges mechanism of section 66A. It was found that the appellant had provided Cargo Handling and Storage and Warehousing services during period from April-06 to Jan-07, March-07 May-07 on which the service tax amounting to ₹ 1,01,367/- were not paid. It was also alleged that service tax of ₹ 1,74,884/- payable during a month was wrongly adjusted against excess payment during some other months. Accordingly Show Cause Notices were issued to the appellant for demand of service tax. 1.3 One group of SCNs dt. 19.10.10, 13.10.11,, 20.04.11 and 20.10.11 were adjudicated by Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, that this service is not covered by Business Auxiliary Service, as defined under section 65(105)(zzb) read with section 65(19), that during the period of dispute, this service was also not covered by definition of Business Support Service as defined under section 65(105)(zzzq) read with 65(104C) of the Finance Act, 1994, that it is only w.e.f. 01.05.11 that section 65(104C) was amended so as to include operational or administrative assistance in any manner, in the definition of support service of business or commerce, that in view of this, during the period prior to 01.05.11 this service was not taxable, that as regards the IPCL charges, though earlier the Board vide Circular No. 137/21/2011-ST dt. 15.07.11 had clarified that while it is not covered by the Telecommunication service section 65(105)(zzzx), the same is covered by Business Support Services under section 65(105)(zzzq) and accordingly IPCL charges being paid in foreign currency by BPOs MNC s against receipt of service from the service provider located abroad would attract service tax, this circular has been modified by the Board vide Circular dt. 19.12.11 according to which the IPCL charges being paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and Data Base Access and Retrieval Service . 6. As regards levy of service tax on the amount paid am IPCL charges which are the appellants share of the expenses incurred by their holding company on setting up and maintaining a Private Leased Circuit linking the holding company with all its subsidiary companies all over the world including the appellant, the Board vide its Circular dt. 19.12.11 has clarified that while this service is specifically covered by the Telecommunication service, it would not attract service tax, as the same has not been provided by Telegraph Authority, andas per section 65(105)(zzzx) read with section 65[109a(iv)], this service would be taxable only when the same has been provided by the Telegraph Authority. This circular also clarifies that this service cannot be classified as Business Support Service. The correctness or otherwise of the Board Circular can be examined only at the stage of final hearing. Accordingly we hold that in respect of service tax demand on IPCL charges, the appellant have strong prima facie case in their favour. 7. As regards the service tax on GAM expenses being paid by the appellant to their holding company, we find fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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