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TMI Blog2024 (10) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... akh forty six thousand four hundred ninety) along with the interest and the penalty as mentioned in the order. 2. The facts, in brief, culminating into the order under challenge are as follows: The appellant M/s Trivedillc Marketing Pvt Ltd, is the service provider but not registered with the Department of Service Tax. Based on the intelligence about evasion of service tax by the appellant, department found that appellant had provided services to M/s Trivedllic Global Ink, USA as their sole client. The services were delivered online to the client and these services involved continuous online assessment and the outcome of the efforts could be utilized by the appellant's client on a continuous basis through the interest. Department formed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of department is the result of presumption. Since beginning department has wrongly presumed the activity of appellant as OIDAR services. Learned Counsel further mentioned that the services as e-library where only data is accessed can be called as OIDAR services whereas the appellant is developing website for the USA company, not only this, after the developing the customized products those are delivered under password security. Hence the services provided by the appellant are rendered over the internet from the location in India (appellant's office is in Bhopal) to their recipient who is located outside India (USA). Thus the activity of appellant is the "Export of Services" on which there arises no tax liability on the service provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012. To Adjudicating this controversy the only point of determination is: Whether the activity rendered by the appellant amounts to rendering OIDAR services. For the purpose, foremost we need to look into the section 65(19) of finance act 1994 which defines OIDAR to mean providing data or information retrivial or otherwise to a customer in electronic form through a computer network. The words 'Data' 'Information' 'Electronic' 'Form' and 'Computer' 'Network' in the definition have been assigned the same meaning as in Information Technology Act 2000. The said definitions in IT Act are as follows: "Data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen through the lens of the above definitions, it stands established beyond all doubts that the activities rendered by the appellant cannot be categorised as OIDAR service. 8. As per circular no. 11/1/2001-TRO-dated 09.07.2001, annexure IV thereof, it has been clarified that the online data base access/retrival is firstly available through Internet Service Providers (ISP). Secondly it includes data base services, provision of information on websites, provision of online data retrieval services from data bases and other information to all or to limited number of users and provision of online information by content provider. The services as quoted above do not require any of these two elements. 9. CEC had also published circular dated Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rendered over the internet, such as an architectural drawing or management consultancy through e-mail. iv. Repair of software or of hardware; through internet, from a remote location. v. Internet backbone services and internet access services." 11. In the light of definitions above and the circulars clarifications discussed above, we hold that the activity rendered by appellant is not merely of accessing or retrieving online data. It is rather a service of developing softwares/websites or consultancy on internet which require too much of human intervention. Hence we hold that the appellant's activity is wrongly hold as OIDAR. The confirmation of demand is held to be based on wrong presumption (as elaborated above) is denied to be ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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