TMI Blog2019 (11) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... g taxable entry coupled with the express intent to discard it from such entry while including the service in a substitute entry. It is the finding of the original authority that the said activity would, within the territory, have been liable to tax in the hands of a domestic provider of service as online information and data base access and retrieval service . However, from our examination of the relevant entries, we do not find information technology software service to have originated from a discarded entry or carved out of an existing entry. There has to be an allegation in the show cause notice beyond mere reference to the agreement between the appellant and the overseas entity and its elaboration by extracting appendix I. Beyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 76 of Finance Act, 1994. 2. The appellant, as a distributor of spare parts in its own right, also acts as agent for transfer among group companies for which remuneration is also agreed upon. It is the commission amount received for the said period amounting to ₹ 110,01,38,251/- which was sought to be subjected to tax of ₹ 12,06,39,710/- in the show cause notice. 3. It is contended by Learned Counsel that the service itself, being exported, is not liable to tax and that, for the period from April 2008 to March 2009, proceedings initiated against them that were dropped in adjudication, and, after dismissal of appeal of Revenue before the Tribunal, was upheld by the Hon'ble High Court. 4. On a perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India (P) Ltd., v/s. Commissioner of Service Tax 34 STR 554 and held that services of procuring orders and passing it to its overseas principal/parties and receiving payments for the same in foreign exchange, is an activity of export of services covered by the Export of Service Rules, 2005. Therefore, the issue stands concluded in favour of the Respondent and against the Appellant by the decision of this Court in ATE. Enterprises (P) Ltd., (supra). Further, Circular No.111 of 2009 dated 24th February, 2009 issued by the CBEC also supports the case of the Respondent. Nothing has been shown to us as to why above Circular cannot be read in the manner in which the Commissioner of Service Tax and the Tribunal has read it. 9. The decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived fall within the definition of Information Technology Software service except the fact that they will pay the Service Tax under Information Technology Software service from the subsequent date. I, therefore, do not find any merit in the argument of the Noticee that the service received by them is not liable to Service Tax under On-line information and database access or retrieval service . I, therefore, conclude that Service Tax of ₹ 1,16,84,140/- is liable to be demanded from the Noticee under On-line information and database access or retrieval service for the period 18.04.2006 to 31.03.2008. 8. Learned Counsel contends that the burden of classification, which falls on the adjudicating authority, has not been disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Learned Counsel that the tax was not liable to be discharged for the period prior to such imposition would appear to be tenable. The only way in which the tax liability could crystalise before 16th May 2008 is its coverage by an existing taxable entry coupled with the express intent to discard it from such entry while including the service in a substitute entry. It is the finding of the original authority that the said activity would, within the territory, have been liable to tax in the hands of a domestic provider of service as online information and data base access and retrieval service . However, from our examination of the relevant entries, we do not find information technology software service to have originated from a discarded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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