TMI Blog2018 (5) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... was held in the case that mere access to server does not bring the activity within the purview of 'online information data base access and/or retrieval service. In the absence of any acceptable evidence that the assessee had access to data of others on the common server for which consideration was made over on which they are liable to tax under section 66A of Finance Act, 1994, the charging of tax on the respondent would not be correct in law. Appeal dismissed - decided against Revenue. - APPEAL NO: ST/87622/2013, CROSS-OBJECTION NO:ST/CO-91141/2013 - A/92299/2017 - Dated:- 22-12-2017 - Shri M.V. Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri Dilip Shinde, Assistant commissioner (AR) for appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r their calculation, on such services received including. for the period 2005-06 to.2007 vide TR-6 challans 2006-07/4 and 2006-07/3, both dated 22.05.2007 and the ST-3 returns were filed on 23.10.2007. They have also confirmed the same vide their letter dared 28.05.2010.' And, relying upon rule 2(1)(d)(iv) of service Tax Rules, 1994 and section 66A for the period after 18 th April 2006, sought to fasten liability on the respondent. 2. While the appeal relies on the disregard of various contentions of the show cause notice by adjudicating authority who, instead, found fault with the contents for lack of clarity and for failing to evidence the allegations. .Drawing attention to the contents of impugned order, Learned Authorise Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. The appellants have made a positive statement to the effect that the foreign offices are connected to the data centre abroad through VPN and it is not possible for the domestic offices to have any access to FO network. In the absence of contradiction by the revenue on these facts, we cannot but agree with the appellant that the said service is not covered under section 66A read with rule 3(iii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. 9. If we examine the case vis- -vis the coverage of section 65 (105)(zh), here again the department is on a weak footing. The very description under the contract between SBI and Equant shows that Equant IP VPN is a managed network service that provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of VPN network is an incorrect reading of section 65(75) and 65(105)(zh). It would be pertinent to refer to another taxable service on the telecommunication service under section 65(109)(A) brought into effect on 01.07.2007 which means service of any description provided by means of a transmission, emission or reception of signs, signals, writing, images and sounds or intelligence or information of any nature, by wire, radio, optical, visual or other electro-magnetic means or systems, including the related transfer or assignment of the right to use capacity for such transmission, emission or reception by a person who has been granted the licence under the first proviso to sub-section (1) of section 4 of the Indian Telegraph Act, 1885 and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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