9911796707
TMI Blog2017 (10) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 passed by the Commissioner of Central Excise (Appeals), MumbaiI. 2. According to the case of the appellant, it is engaged in the business of licensing of images through its website. The case of the appellant was that no service tax was liable to be paid by the appellant as the appellant was dealing with copyrights and services of copyrights were not within the purview of service tax. A letter dated 15th February 2007 was received by the appellant from the office of the Assistant Commissioner of Service Tax, Mumbai by which the appellant was informed that the services are taxable under the category of "Online Information and Database Access or Retrieval". The said decision was challenged by the appellant by preferring an appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned senior counsel appearing for the appellant is that the appellant's website contains collection of various images. Intellectual property in the said collection of images vests in the appellant. He submitted that no consideration is charged, if someone accesses to the website of the appellant and sees the images. He submitted that the accessing and viewing of its website is purely free, incidental to the licensing agreement being entered into with the customer. He pointed out that if the customer of the appellant wishes to use the image for the purpose of advertisement etc., a certain price is charged by the website for providing a nonexclusive licence to the customer for use of the said image. He submitted that access to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h computer network, in any manner, is a taxable service. Clause (75) of section 65 defines online information and database access or retrieval, which reads thus: "65. Definitions. In this Chapter, unless the context otherwise requires, (1) to (74) ..... ..... ..... ..... ..... ..... ..... (75) "online information and database access retrieval" means providing data or information, retrievable or otherwise, to a customer, in electronic form through a computer network." Thus, providing a data or information to the customer through computer network, whether retrievable or not is covered by clause (75) of section 65. The service provided to the customer by a commercial concern i.e. appellant in relation to online information and database ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et; (ii) Telecommunication services provided over the internet, including fax, telephony and conferencing, and video conferencing." It is stated in clause 5.9.5 that web-based services providing access or download of digital content is a service covered by online information and database access or retrieval services. We have perused paragraph2.3 of the memorandum of appeal and in particular clause (b) thereof. This paragraph shows that various images or photographs are visible on the website of the appellant. Those images and photographs are visible to a person who logs on to its website. The photographs or images, which are available on the website, are digital contents which are permitted to be downloaded by the appellant on payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s website allows access and retrieval of data or information contained therein which are free for the purpose of viewing on the monitor. However, the customer has to pay for downloading the data in the form of images for commercial use. The Appellate Tribunal has held that the copyright of the images becomes incidental as the main activity is of making the information available. 9. The Appellate Tribunal has also dealt with the law laid down in the case of Dewsoft Overseas Pvt.Ltd. (supra). In the said case, the appellant was rendering an online computer teaching through website and was discharging the liability of service tax under the category of Commercial Training and Coaching Classes. The Revenue wanted to classify the services as Onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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