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TMI Blog2017 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax on Reverse Charge Basis under the classification online information and data access or retrieval services falling under Section 65(105)(zzzzb) have been rightly demanded. 2. Brief facts of the case are that the appellant is engaged in news business and in the business of telecasting other entertainment programs and is registered with the Department. Further, the Appellant was receiving various images and text materials by way of retrieval from the website of foreign companies viz. M/s Reuters, ATPN under proper agreements and was making payments for the same. 3. Subsequently, the Appellant considered it appropriate to separate the Regional General Entertainment Channel Business from the News Business and to continue the business as 24x7 news channels in prominent Indian Regional Languages. Thus, a scheme of demerger was formulated under which the Regional General Entertainment Channels were transferred to Zee Entertainment Enterprises Ltd. (hereafter referred to as ZEEL ). The Appellant and the transferee company (ZEEL) entered into the scheme of arrangement for the above said purpose and the said scheme was submitted before Hon'ble High Court of Bombay. The said scheme w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the audit had bifurcated the credit for the period January 2010 to March 2010, which involves credit of input service relating to the said 6/7 channels to the tune of Rs. 6,67,92,233/- out of total credit aggregating to Rs. 8,47,08,673/-. 6. It further appeared to Revenue that services provided by the appellant fall under Section 65(105)(zzzzb) of the Finance Act, 1994, i.e., 'Online Information and Data Base Access Audit or Retrieval Service', according to findings of the Audit Team. As per definition of the service, Any service provided or to be provided by any other person in relation to Development and Supply of content for use in telecommunication services, Advertising agency service and Online Information and Data Base Access or Retrieval Services. Further, development and supply of content includes development and supply of mobile value-added services, music, movie, movie clips, ring tones, wallpaper, mobile games, data, whether or not aggregated, information, news and animation films. It further appeared to the Revenue that those images, text materials which are assessed by the appellant from the website of service providers like Reauters, ATPN etc, are us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is before this Tribunal. The learned counsel for the appellant has urged that the Cenvat credit in respect of 6/7 outgoing channels were legally and properly taken by the appellant during the relevant period January 2010 to March 2010, as at that time, only a single legal entity that is the appellant company was in existence. The other company namely ZEEL relating to the 6/7 outgoing channels was not operating any business in respect of such channels. It was the appellant company which was performing all the business relating to and including all those 6/7 channels during that period. Thus, the appellant was correctly taking and utilizing credit during the relevant period. Further, he submitted that there is no bar under the law which prohibits from taking the credit before the effective date of the demerger or the approval of the demerger by the Hon'ble High Court. Even for transferring the credit pursuant to demerger, the appellant is required to first take the Cenvat Credit in respect of input services received during the relevant period. The appellant will be able to transfer credit only once such input services credit is taken by them. Further, the learned counsel refers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of the brand name. RSPL availed credit of service tax paid on such royalty charges. Later on, the appellant RSPL merged with M/s Ghari Industries Private Ltd (brand owner) pursuant to amalgamation order of the High Court dated 01.02.2008. The High Court order for amalgamation was with effect from 01 April, 2006. The Revenue had attained a view that in terms of the High Court order that two entities became one and as such there is no warrant of payment of royalty by the appellant RSPL to the brand owner company and the invoice for such payment becomes infructuous for the purpose of availing that credit. Accordingly, the credit availed was held to be inadmissible. Under such facts, this Tribunal held admittedly the dispute arose because of the order of merger dated 1 February, 2008, allowing merger with effect from the retrospective date 01 April, 2006. However, during the material time when Service Tax was discharged by the appellant RSPL, the same was illegally paid and credited to the Government. As such tax paid on input service was held to be correctly utilized by the appellant in terms of Cenvat Credit Rules, 2004. Further, it was noted that eligibility of Cenvat Credit on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable on this score also. 10. The learned AR for the Revenue have relied on the impugned order. 11. Having considered the rival contentions, we find that there is no element of suppression, concealment or any action, inaction on the part of the appellant to evade the payment of duty nor any collusion etc., so as to attract the proviso of Section 73(1) of the Finance Act read with Section 11A of the Central Excise Act. Accordingly, we hold that the show cause notice is bad for invoking the extended period of limitation. We further notice that the as per the show cause notice, Revenue have got all the information from the records maintained by the appellant in the ordinary course of the business. Not a single instance of any manipulation or suppression and/or misinformation have been pointed out, save and except the bald allegations made in the show cause notice. Accordingly, we hold the show cause notice to be not maintainable. Thus, the appeal is allowed by setting aside the impugned order. The appellant shall be entitled for the consequential benefits in accordance with law. As we have decided the appeal on the points of limitation, we have not recorded the findings o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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