Custom, Excise & Service Tax Tribunal
Maersk India Pvt. Ltd vs Commissioner Of Central Excise, Raigad on 13 June, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. ST/237/08-Mum (Arising out of Order-in-Appeal No. SRK/491/RGD/2008 dated 11.8.2008 passed by Commissioner of Central Excise (Appeals), Mumbai-II) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. P.S. Pruthi, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Maersk India Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Raigad Respondent Appearance: Shri Mihir Deshmukh, Advocate, for appellant Shri B.S. Meena, Additional Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President Honble Mr. P.S. Pruthi, Member (Technical) Date of Hearing: 13.6.2014 Date of Decision: 13.6.2014 ORDER NO Per: S.S. Kang Heard both sides.
2. The appellant filed this appeal against the impugned order passed by the Commissioner (Appeals) whereby a demand of Rs.5,10,779/- with interest is confirmed and penalties are also imposed under Sections 76 and 78 of the Finance Act on the ground that the appellants have provided online information and database access or retrieval service as provided under Section 65(75) of the Finance Act.
3. The Commissioner (Appeals) has held as under:-
I have perused the records of the case. The issue involved is service tax liability on the activities of online information and database access or retrieval services.
During the period 1.1.2006 to 31.12.2006, the appellant has accessed the Global network/IT platform developed by M/s. A.P. Moller, for data concerning shipping activities and transaction and have paid charges on annual basis to M/s. A.P. Moller for accessing network connections of data connectivity.
As per Rule 2(1)(d)(iv) of Service Tax Rules, 1994, person liable for paying service tax, on the services received from a non-resident or from outside India, is the recipient of taxable service. Hence the service tax was payable by the appellant on the charges paid for usage of Global IT to M/s. A.P. Moller.
4. The contention of the appellant is that the impugned order is passed without taking into consideration the arguments taken by the appellant and there is no finding on merits. The contention of the appellant in reply to show cause notice that the appellants are providing information technology service which comes under the scope of service tax with effect from 16.5.2008 and the present demand is prior to May 2008. This plea was particularly taken in the reply to show cause notice and before the lower authority also. The Commissioner (Appeals) in the impugned order has not taken into consideration the argument raised by the appellants hence the impugned order is not sustainable.
5. The Revenue relied upon the findings of the lower authority and submitted that the appellants had provided online information and database access or retrieval service, as the appellant has access to the global network/IT platform developed by M/s. A.P. Moller for data concerning shipping activities and transaction and the appellants are also paying consideration amounts on annual basis to M/s. A.P. Moller for accessing and retrieving the data.
6. We have gone through the impugned order passed by the Commissioner (Appeals). The relevant portion of the order is reproduced as above. We find that the Commissioner (Appeals) has not given any finding on the argument raised by the appellants that the appellants had provided the information technology service which comes into the scope of service tax after the period in dispute in the present case. In view of this, we find that the matter requires reconsideration by the Commissioner (Appeals) afresh. The impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh, after affording an opportunity of hearing to the appellant.
(Dictated in Court) (P.S. Pruthi) Member (Technical) (S.S. Kang) Vice President tvu 1 4