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TMI Blog2025 (1) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ory of 'Online Information Data and Access Retrieval' (OIDAR) Service by application of Rule 9 of Place of Provision of Service Rules, 2012. These provisions of service would be applicable within India and cannot be treated as export of service. Hence, the refund claim under Rule 5 of Cenvat Credit Rules would not be admissible to them. 2.1 Appellant is engaged in providing taxable services and have registered for providing output services namely Online Information and Database Access or Retrieval Services through Computer Network falling under Section 65 (75) read with 65 (105) (zzzb) of the Finance Act, 1994 for the material period. 2.2 They are availing facility of Cenvat credit in respect of input services being used for providing output services under Cenvat Credit Rules. 2.3 Appellant filed refund claims under Rule 5 of the CENVAT Credit Rules, 2004 claiming that the services provided by them qualify as export off services. 2.4 OIDAR Services as per Rule 6A of Service Tax Rules read with Rule 9 of Place of Provision of Service Rules, 2012 or to be treated as provided at the location of service provider i.e. in India. These refund claims have been rejected for the reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Service Rules 2012, and in this case the place of provisions of service is location of service provider, hence the said services provided by the appellant did not amount to export of service as the service provider was located in India. The appellant has contended that their services are in the nature of Business support services which is governed by Rule 3 of Place of Provisions of Service Rules 2012, under which location of service recipient determines the place of provisions of service. 7. The appellant has contended that they had obtained registration for providing services classified by them as Online Information and Database Access or Retrieval (OIDAR) Service and submitted various reports and returns accordingly. Subsequently, on the advice of the consultant they amended their registration n 2014-15 and started declaring the same as "Support of Business and Commerce service" in their returns. 8. I find that in the instant case the refunds were rejected on the ground that in case of OIDAR service place of provision of service is location of service provider as per the law and as such service provided in subject case can not be treated as export of service. The origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de available during the investigation as mentioned in adjudication order No. 286/AC/Div.-III/Noida/17 dated 31.3.2017. 10. From the two agreements it is noticed that both the agreements mention that KGL/Cenveo India are engaged in the business of providing "content/ data processing and data management services". However, in none of the agreements the nature and scope of the service agreed to be provided by the appellant in terms of these agreements, have been disclosed. The mere mention that KGL/Cenveo India are engaged in the business of providing "content/data processing and data management service" is not enough to establish the nature of services provided by the appellant. I thus observe that none of the agreements give the exact nature and scope of the services provided by the appellant. 11. Further, one of the important criteria for deciding whether the service provided by the appellant is OIDAR service or not, the ownership of data is a very relevant factor, as held in number of cases relied upon by the appellant also. It is not forthcoming from any of the agreements that the data pertained to service recipient and no evidence was provided by the appellant either durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Journal Services Inc. is also a USA subsidiary of Cenveo Inc., USA. The Appellant has entered into an agreement with Cenveo USA/Cadmus (hereinafter referred to as foreign entity) for the provision of such services and receives consideration on a cost-plus basis in convertible foreign exchange. As per the above agreement, foreign entity provides raw data to the Appellant in form of manuscripts, articles, photographs and other content required for carrying out the various activities by the Appellant such as copyediting, typesetting, formatting, proofreading, graphic designing, indexing, coding, etc. by using human skill and labour on such data and sends the same in electronic form through internet for access by foreign entity. In this whole process, the ownership of the data vests solely with the foreign entity and is not transferred to the Appellant. The services provided by the appellant do not qualify as OIDAR services as per the above definition. 4.5 As per the provisions of the said services, appellants are not owing or providing any data through the network of computers to anybody, their services do not fall under the category of OIDAR Services. A basic requirement for class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claims filed by the appellants under Rule 5 of Cenvat Credit Rules read with Notification No.27/2012-ST dated 18.06.2012. 4.8 It has been submitted that during the pendency of the Appeals before the Hon'ble CESTAT, the Commissioner (Appeals) has also set aside the Order-in-Original Nos. R34/AC/DIV-1V/N01DA/2017 and R-40/AC/DIV-1V/N01DA/2017 both dated 28.03.2018 and allowed for the refund of INR 4,83,502/- and INR5,44,695/- for the periods April 2013 to June 2013 and January 2014 to March 2014, respectively vide Order- in -Appeal No. NOI-EXCUS-001-APP-1931 & 1932-18-19 dated 04.02.2019. 4.9 It is also seen that similar view has been taken by various Courts and Tribunals in the decisions referred bellow:- Tata Steel Limited v. Commissioner of Central Excise, Jamshedpur, 2016 (Tri. - Kolkata ) Municipal Corporation of City of Thane v. Vidyut Metallics and Anr., 2007 (8) scc 688 Radhasoami Satsang v. Commissioner of Income Tax, 1992 (1) SCC 659 Commissioner of Income Tax v. Gopal Purohit, 2010 (1) TMI 7 BOMBAY HIGH COURT CIT v. Excel Industries Ltd., 2014 (309) ELT 386 (S.C.) Havells Electronics Pvt. Limited vs. CCE Final Order No. A/70244-70261/2017 date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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