TMI Blog2018 (12) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside for the period upto 17.04.2006. Period from 18.04.2006 to January, 2007 - Held that:- It is not in dispute that the software has been downloaded from the internet from foreign based service providers. We are of the view that such activity will be covered within the definition of “Online Information and Data Base Access and Retrieval Services”. As such for the period from 18.04.2006 to January, 2007, i.e. for the period after the introduction of Section 66A, we are of the view that the liability for service tax arises on the assessees - if service tax is paid on reverse charge basis, the same will be available to the appellant who is a manufacture of the Public Address System as cenvat credit in the form of input services. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of the above goods, these assessees, as per agreement with M/s Marctec Int l Co. Ltd., Taiwan, were downloading software on a flash Rom individually thorough a computer network. The software in ROM was being loaded on to the Public Address System and subsequently cleared on payment of Central Excise Duty. The department was of the view that the activity of downloading the software through computer network is liable to payment of service tax under the category of Online Information and Data Base Access and Retrieval Services defined under Section 65(105)(zh) of the Finance Act, 1994. Show Cause Notices were issued against both the assessees covering different periods from January, 2005 to January, 2007. The Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in UOI vs. Indian National Shipowners Association [2010(17) STR J57(S.C.)]. He also brought to notice that these facts were circulated by the CBEC through their Circular dated 26.09.2011, in which it has been made clear that levy of service tax on taxable services provided by a non-resident or a person located outside India to a recipient in India would arise only w.e.f. 18.04.2006. iii) Ld. Advocate further submitted that in respect of Appeal No.ST/78/2008, wherein demand made also covers the period from 18.04.2006 to January, 2007 the service tax demand is not sustainable. In this connection he advanced the argument that the softwares which were downloaded by the assessees from Taiwan, was not a service, but a commodity which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 to January, 2007 is in dispute only in respect of the Appeal No.ST/78/2008. Even for this period, the levy of service tax has been strongly resisted. It has been argued that the downloading of software is not in the nature of service, but is in the nature of purchase of software which is to be considered as goods in the light of the Hon ble Supreme Court s decision in the case of TCS (supra). But we note that the decision of the Hon ble Supreme Court in the case of TCS is in respect of entirely different facts. The question before the Hon ble Supreme Court was whether such software will be liable for payment of Sales Tax. As such we are of the view that the decision has no application in the facts of the present case. 10. It is not in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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