Decided on May 01,2015

Photolibrary India P. Ltd. Appellant


M.V.RAVINDRAN,J - (1.)THIS appeal is directed against Order -in -Appeal No. SB (56)56/STC/2009 dated 21.08.2009.
(2.)The relevant facts that arise for consideration are the appellants have website where a number of photographs are available for a viewer to see and choose from the same after browsing. The viewer is allowed to view photographs free of cost. However, he can download the data only after he enters into an agreement with the appellant and agree with the terms and conditions as stipulated by appellant. It is also one of the conditions of the appellant that the viewer has to pay for the amount as quoted by the appellant and on such payment the link is provided to the viewer/client for downloading the image. Revenue authorities are of the view that the services provided by the appellant would be covered under the category of Online information and Data base access or Retrieval service inasmuch as they are storing data on website charging and recovering fees for allowing downloading of data as the image of photo in electronic form through picture network. Accordingly, on a representation made by the appellant, the office of the Asst. Commissioner, Service tax, Div -II informed the appellant that the said service provided by the appellant would fall under taxable category. Unsatisfied with the clarification to the query by the Adjudicating Authority, the appellant preferred an appeal before the first appellate authority. The first appellate authority after following the due process of law upheld clarification issued by the Adjudicating Authority and held that the service provided by the appellant would fall under the Online information and Data base access or Retrieval service as per Section 65(75) of the Finance Act, 1994.
(3.)LD . CA would submit that the categorisation of the service under the taxable service is incorrect. He would submit the service is not falling under the said category as the appellant is restricting the client to the usage of the photographs which are downloaded by them. To substantiate his claim, he would draw our attention to the invoices raised by the appellant. He would submit that the invoice categorically indicates that the client who has downloaded the photograph is allowed to use the same for a limited purpose and limited period, for the purpose of ad insertion in magazine or purpose of enhancement of brand etc. It is his submission that when there is a specific restriction from the appellant from downloading of the image or photograph, it would mean that the said services would not get categorised under Online information and Data base access or Retrieval service. He would also submit that the appellant has got copyright over the photographs which are displayed in the website, hence charges an amount of copyright and during the relevant period said services were not covered under the service tax net. He would draw out attention to the decision of the Tribunal in Dewsoft Overseas P. Ltd. : 2008 (12) STR 730 (Tri -Del); and submits that in the said case law, Tribunal was considering the service tax liability under the head Online information and Data base access or Retrieval service for accessing the online study material which was extended by the said Duesoft Overseas for rendering services of commercial coaching or training. He would submit that the ratio of the said judgment would apply in this case also, as the client of the appellant is not in any way interacting, is only selecting an image or photograph for the purpose of downloading for his usage. He would also draw our attention to the judgment of the Tribunal in the case of GE India Technology Centre P. Ltd. : 2014 (36) STR 1109 (Tri -Bang) to canvas an argument that the service rendered by the appellant would not fall under the category of Online information and Data base access or Retrieval service.

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