TaxTMI 
TaxTMI 
2026 (1) TMI 1289
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....4 143 dated 19.01.2015 93 dated 23.11.2015 3. Quarter ending June-14 Rs.1,75,264/- 21.11.2014 141 dated 19.01.2015 92 dated 23.11.2015 4. Quarter ending Sept-14 Rs.1,86,128/- 21.11.2014 142 dated 19.01.2015 94 dated 23.11.2015 5. Quarter ending Sept-14 Rs.5871/- 21.11.2014 140 dated 19.01.2015 88 dated 04.11.2015 The said claims after verification by the jurisdiction officer, were rejected on the ground that the services rendered by the appellant were not covered under export of services as conditions specified under Rule 6A of the Service Tax Rules, 1994 are not satisfied. Further, as per Rule 9 of the Place of Provision of Services (hereinafter referred to as POPS) Rules, 2012, services in relation to Online Information and Data base access or Retrieval Services (herein after to as OIDAR services), location of the service provider shall be treated as the place of provision of service. 1.1 Against the order of the Asst./Deputy Commissioner, the appellant filed appeals before the Commissioner (Appeals) who vide impugned orders (mentioned in above table) upheld the order of the lower authority and rejected their appea....
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....ly automated and involving minimal human intervention, and impossible to ensure in the absence of information technology and includes electronic services such as, - (i) advertising on the internet; (ii) providing cloud services; (iii) provision of e-books, movie, music, software and other intangibles via telecommunication networks or internet; (iv) providing data or information, retrievable or otherwise, to any person, in electronic form through a computer network; (v) online supplies of digital content (movies, television shows, music, etc.); (vi) digital data storage; and (vii) online gaming; * In the Education guide released by CBEC at para 5.9.5, against the question what are "Online information and database access or retrieval services?", it has been clarified as under: - "5.9.5 What are "Online information and database access or retrieval services"? "Online information and database access or retrieval services" are services in relation to online information and database access or retrieval or both, in electronic form through computer network, in any manner. Thus, these services are essen....
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....d under one code i.e. 00441089. If by mistake, they get registered under a particular service, revenue cannot take plea that they are providing that particular service as classification of service must always be decided on the characteristics of the service. They rely on the decision in the case of SPL Developers (P) Ltd Vs. Commissioner of S.T. Bangalore reported as 2015 (39) STR 455 (Tri. -Bang.) wherein it has been held that: - "10. The classification of a service must always be on analysis of the characteristics of the service, analyzed in terms of the provisions of the Act; considered in the light of the guidance provided in Section 65A of the Act; and identification of which of the clauses of Section 65(105), the service in issue falls into." * They also rely on the decision in the case of Commissioner of Service Tax, Chennai Vs. E-Care India Pvt Ltd reported in 2011(22) STR 529 (Tri.- Chennai) wherein it was held that non-registration is not a ground for rejecting refund, under Rule 5 of the Cenvat Credit Rules, 2004. The relevant para of the judgments is as under: - "The respondents have claimed refund of unutilized credit of service tax which was....
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....ey have corrected the mistake by amending registration as the services provided by them are classifiable under "Information Technology Software Services" and not the "OIDAR services". They rely on the decision of Hon'ble Bombay High Court in the case of Sainet Private Ltd and Ors. Vs. U.I.O and Ors. reported in 1984 (18) ELT 141 (Bom.), wherein it was held that classification of product must be done based on evidence. Similar ruling was given in the case of Indian Metals & Ferro Alloys Ltd Vs. Commissioner of Central Excise, Bhubaneshwar reported in 1985 (21) ELT 584 (Tribunal). In view of the above, they prayed to allow their appeal and grant them refund. 3. During arguments, learned Counsel highlighted the relevant provisions of their agreement/contract with the client to impress that they were providing Information Technology Software Services and not the OIDAR services for which they had wrongly obtained the registration certificate. The mistake so caused while obtaining registration certificate, has also been rectified on 19.12.2014. He also argued that the lower authorities have rejected refund claims on the sole ground of wrong registration and did not decide the issue....