2025 (5) TMI 1994

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....by the Officers of the AG audit, it appeared to the Revenue that the services provided by the appellants fall under Online Information and Database Access Retrieval Services ('OIDAR Services'). A show cause notice dated 13.04.2009 demanding service tax of Rs. 43,03,180 along with interest and penalty extending normal period has been issued covering the period 2003-2004 to 2007-2008; the proposals in the show cause notice were confirmed by Order-in-Original dated 09.11.2011 on an appeal filed before the Commissioner (Appeals). Learned Commissioner vide the impugned order dated 19.08.2013 and upheld the Order-in-Original. Hence, this present appeal. 2. Ms. Krati Singh, Learned Counsel for the appellant submits that as far as the demand is ....

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....der. 4. Heard both sides and perused the records of the case. 5. We find that the appellants are basically providing in internet service giving gateway access available from Power Grid Corporation Of India, VSNL, BSNL etc. to their customers. Revenue seeks to demand duty of Rs. 19,61,773 under OIDAR services. On going through the case laws in this regard and produced by the learned counsel for the appellants, we are of the considered opinion that to become taxable under the category of OIDAR the ownership of the data is essential. Understandably, the appellants are mere internet service providers and do not give access to any data owned by them for payment of a consideration. This issue has been considered by the Tribunal in the case ....

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.... this Bench is reproduced there in below: "After considering the submissions of both the parties and perusal of the material on record, we find that the show cause notice was issued to the appellant proposes to classify the demand under 'Commercial or Industrial Construction Service' under Section 65(105)(zzq) of the Act, whereas in the impugned order the demand has been confirmed by changing the classification under the head 'Site Formation and clearance, excavation and Earthmoving and Demolition' which cannot be done in view of the various decisions cited (Supra) and hence the impugned order is bad in law. Secondly, it is undisputed that the services rendered by the appellant is classifiable under 'Works Contr....