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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 ..... ed by the appellant do not qualify as OIDAR services as per the above definition. 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 classification under the said category that services should have been in respect of the data owned by the person by way of providing access and retrieval of the same to some other person. Nothing has been brought on record to show that appellants have provided any of such services. Just for the reason that appellants have got themselves registered under this category, cannot be a reason for holding that the services provided by the appellants fall under this category. The services provided by the appellants do not fall under the category of OIDAR Services, there are no merits for denial of 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. Conclusion - The classification of services must be based on the nature of the services provided, not merely on registration categories. Export of services is dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-original No. R-01/DC/DivIII/ST/N0ida/17-18 dated 10.04.2017 October 2015 to December 2015 INR 6,47,862/- 2. Order-in-Original No. R-02/DC/DivIII/ST/N0ida/17-18 dated 10.04.2017 January 2016 to March 2016 INR 7,64,574/- 3. Order-in-original No. R-51/DC/DivIII/ST/N0ida/17-18 dated 09.05.2017 April 2016 to June 2016 INR 6,68,507/- 4. Order-in-original No. R-50/DC/DivIII/ST/N0ida/17-18 dated 09.05.2017 July 2016 to September 2016 INR 8,02,483/- 5. Order-in-original No. R-49/DC/Div11/CGST/N0ida/17-18 dated22.09.2017 October 2016 to December 2016 INR 7,21,389/- 6. Order-in-Original No. R-48/DC/Div11/CGST/N0ida/17-18 dated22.09.2017 January 2017 to March 2017 INR 11,39,249/- 7. Order-in-Original No. R-205/ AC/Div11/CGST/N0ida/2018-19 dated09.05.2018 April 2017 to June 2017 INR 9,00,142/- 8. Order-in-Original No. R-164/ AC/DivIII/ST/N0ida/16-17 dated 29.12.2016 April 2015 to June 2015 INR 5,75,063/- 9. Order-in-Original No. R-165/AC/DivIII/ST/N0ida/16-17 dated 29.12.2016 July 2015 to September 2015 INR 6,71,781 /- 2.4 Aggrieved appellants filed appeal before Commissioner (Appeals), who have dismissed the appeal of the appellants. 2.5 Aggrieved appellants have filed these appeals. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since there was no evidence in the form of any written agreement elaborating the terms and conditions agreed upon between service provider and service recipient, nature and scope of the service provided etc. on record before the adjudicating authorities to ascertain the nature of services provided, the adjudicating authorities put emphasis on the definition of the OIDAR services which means providing data or information to any person in electronic form through a computer network. Accordingly, it was observed that the only requirement for service to qualify as OIDAR service is that data or information should be provided to any person in electronic form through a computer and the impugned services were held as OIDAR service. As regards the rejection of the last two refund claims for the period from April 2014 to Sept, 2014, the adjudicating authorities had taken a view that the registration certificate had been amended suo moto without any evidence to prove the change in nature of service provided and the same was done to claim refunds. 9. At appeal stage the appellant has submitted copies of two agreements, one dated 12.04.2011 effective from 01.04.2011 and another dated 19.11.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Support of Business and Commerce service instead of OIDAR services as declared by them initially. 12. Further as regards the admissibility of Cenvat credit Rs. 50,708/-on the invoices for address other than the registered address, 1 find that the appellant has neither stated nature of input services nor put forth any evidence to establish that these services received at unregistered premises have actually been used in providing output services for which registration was obtained. The services received at unregistered premise would prima facie not be eligible for Cenvat credit and resultant refund. In the present era of self assessment the onus lies on the service provider ie. appellant to establish the nature of the services received and their use in export of services which the appellant has failed to do. Therefore I hold that the credit on the said invoices is not admissible to them. 4.3 OIDAR Services have been defined by the Serviec tax Rules, 1994 for the relevant period read as follows:- (ccd) online information and database access or retrieval services means services whose delivery is mediated by information technology over the internet or an electronic network and the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such services. Just for the reason that appellants have got themselves registered under this category, cannot be a reason for holding that the services provided by the appellants fall under this category. 4.6 We also take note of the education guide wherein following has been provided as per para 5.9.5- 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 essentially delivered over the internet or an electronic network which relies on the internet or similar network for their provision. The other important feature of these services is that they are completely automated and require minimal human intervention. Examples of such services are :- (i) online information generated automatically by software from specific data input by the customer, such as web-based services providing trade statistics, legal and financial data, matrimonial services, social networking sites; (ii) digitized content of books and other electronic publica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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