Custom, Excise & Service Tax Tribunal
Dubond Infotech Private Limited vs Service Tax - Ahmedabad on 23 January, 2026
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench at Ahmedabad
REGIONAL BENCH-COURT NO.2
Service Tax Appeal No. 12020 of 2015-DB
(Arising out of OIA-AHM-SVTAX-000-APP-057-15-16 dated 08/09/2015 passed by the
Commissioner (Appeals), Central Excise - Ahmedabad)
Dubond Infotech Private Limited ........Appellant
C-3, 1006, Anushruti Tower,
Opp. New York Tower, S G Highway,
Thaltej, Ahmedabad, Gujarat
VERSUS
COMMISSIONER OF SERVICE TAX - AHMEDABAD ........Respondent
7th Floor, Central Excise Bhawan, Nr. Polytechnic, Central Excise Bhavan, Ambawadi, Ahmedabad, Gujarat-380015 With
(i) Service Tax Appeal No. 12021 of 2015 (Dubond Infotech Services LLP)
(ii) Service Tax Appeal No. 12022 of 2015 (Dubond Infotech Private Limited)
(iii) Service Tax Appeal No. 12023 of 2015 (Dubond Infotech Services LLP)
(iv) Service Tax Appeal No. 12024 of 2015 (Dubond Infotech Private Limited) [(Arising out of OIA-AHM-SVTAX-000-APP-093-15-16 dated 03/11/2015 passed by the Commissioner (Appeals), Central Excise - Ahmedabad), (Arising out of OIA-AHM-SVTAX-000-APP-092-15-16 dated 03/11/2015 passed by the Commissioner (Appeals), Central Excise - Ahmedabad), (Arising out of OIA-AHM-SVTAX-000-APP-094-15-16 dated 03/11/2015 passed by the Commissioner (Appeals), Central Excise - Ahmedabad), (Arising out of OIA-AHM-SVTAX-000-APP-088-15-16 dated 23/10/2015 passed by the Commissioner (Appeals), Central Excise - Ahmedabad)] APPEARANCE:
Shri Gunjan Shah, Chartered Accountant appeared for the Appellant Shri M P Solanki, Assistant Commissioner (AR) appeared for the Respondent CORAM:
HON'BLE DR. AJAYA KRISHNA VISHVESHA, MEMBER (JUDICIAL) HON'BLE MR. SATENDRA VIKRAM SINGH, MEMBER (TECHNICAL) FINAL ORDER NO. 10039-10043/2026 DATE OF HEARING: 23.09.2025 DATE OF DECISION: 23.01.2026
2|Page ST/ 12 020 -120 24 /2 01 5 -D B SATENDRA VIKRAM SINGH M/S Dubond Infotech Pvt Ltd, Ahmedabad (Appellant) have filed following refund claims in respect of accumulated Cenvat credit for export of service, under Rule 5 of the Cenvat Credit Rules, 2004 (herein after referred to as CCR, 2004).
Sr. Period Refund Date of OIO OIA
No. amount claim file
1. Quarter ending Rs.5,09,730/- 06.05.2014 117 dated 57 dated
march-14 03.11.2014 10.09.2015
2. Quarter ending Rs.74,724/- 21.11.2014 143 dated 93 dated
June-14 19.01.2015 23.11.2015
3. Quarter ending Rs.1,75,264/- 21.11.2014 141 dated 92 dated
June-14 19.01.2015 23.11.2015
4. Quarter ending Rs.1,86,128/- 21.11.2014 142 dated 94 dated
Sept-14 19.01.2015 23.11.2015
5. Quarter ending Rs.5871/- 21.11.2014 140 dated 88 dated
Sept-14 19.01.2015 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 appeals. He held that the appellant had amended their registration certificate for incorporating 'Information Technology Software Service' only w.e.f. 19.12.2014 i.e. after their refund claim was rejected by
3|Page ST/ 12 020 -120 24 /2 01 5 -D B the lower authority. Such an action by the appellant shows that they have agreed that as per Rule 9 of the POPS Rules, 2012, place of provision of service is the location of the service provider and hence, services provided by them are not export of service. Aggrieved with the above orders, the appellant filed appeal before this Tribunal. As same issue is involved in all the appeals, facts as per appeal No. 12020/2015 are being reproduced.
2. In appeal, the appellant has taken the following grounds: -
• They entered into an agreement with M/s CDA Holding LLC, New York for development of software program, as per which, they were to design and develop the product which shall mean the software program together with user manuals, other documentations and any other ancillary materials. The activity undertaken by them falls under 'Information Technology Software Service' and not under OIDAR service.
• As per Section 65B(28) "'information technology software' means any representation of instructions, data, sound or image, including source code and object code, recorded in a machine readable form, and capable of being manipulated or providing interactivity to a user, by means of a computer or an automatic data processing machine or any other device or equipment;" From the above, it is clear that they were providing services in relation to creation of website and development of software and also maintenance of websites/ software for the clients on routine basis.
• The scope of 'Information Technology Software Services' has been elaborated by CBIC vide M.F. (D.R.) Letter D.O.F. No. 334/1/2008-TRU, dated 29.02.2008 which makes it clear that development or maintenance of IT software would fall under 'Information Technology Software Service'.
4|Page ST/ 12 020 -120 24 /2 01 5 -D B • Rule 2(1) (ccd) of service Tax Rules 1994 (inserted w.e.f if 01/12/2016 vide notification no. 48/2016-ST dated 09.11.2016) defines OIDAR services to mean -
"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 nature of which renders there in supply essentially 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 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: -
5|Page ST/ 12 020 -120 24 /2 01 5 -D B
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 publications, subscription of online newspapers and journals, online news, flight information and weather reports;
iii) Web-based services providing access or download of digital content."
• They are not providing data or information to the clients. It is also not the case of the department that they are providing digitized content of books and other electronic publications, subscription of online news papers and journals, online news, flight information and weather reports. They are also not providing Web-based access or download of digital content. Therefore, their services do not fall under OIDAR service. They have been issued ISO 9001:2008 Certificate for providing "Information Technology and Software Development" Services. • The refunds have been rejected only on the ground that they have taken registration under OIDAR services which was a mistake on their part which they corrected by amending Registration Certificate on 19.12.2014. The classification of service provided by the appellant, can only be decided by the nature of service as per contract/agreement between the service provider and the service receiver and not on the basis of Certificate of Registration.
• As per Section 65A (2) of the Finance Act, 1994 "When a service is classifiable under two categories sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description." Similarly, Section 66F (2) provides that "where a service is capable of differential treatment for any purpose based on its description, the most specific description shall be preferred over a more general description."
• In Negative List regime, Circular No. 161/12/2012 dated 06.07.2012 prescribed that all Taxable Services will be accounted under one code
6|Page ST/ 12 020 -120 24 /2 01 5 -D B 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 taken by them in relation to export of services. The claims were rejected by the original authority on the ground that the respondent-assessees had taken registration later on and the refund claim pertains to a period prior to that date. The lower appellate authority has set aside the order of the original authority on the ground that registration is merely required for the purpose of maintenance of accounts and for following the procedure and that non- registration cannot be a ground for not enforcing a demand or not allowing a refund. Further, he has also taken into account the fact that it is the Government's policy not to burden export with domestic taxes. I find that the reasoning adopted by the lower appellate authority is sound. Further, the relevant rules require only those assessees to take registration who are required to pay service tax. This is a case where the respondent-assessees were not liable to pay any service tax but are merely claiming refund of the unutilized credit of tax paid on input service. As such, the order passed by the lower appellate authority requires no interference. Consequently, the Department's appeals are rejected. Both the stay applications also stand disposed of."
• They also rely on the decision of Hon'ble Karnataka High Court in the case of mPortal India Wireless Solution P. Ltd reported in 2017 (27) STR
7|Page ST/ 12 020 -120 24 /2 01 5 -D B 134 (Kar.), wherein it has been held that Registration with department is not a pre-requisite for claiming refund. The relevant para 7 of the judgment is reproduced below: -
"Para 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside."
• Classification of service is a question of law which can be raised at any stage of proceedings. They 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 on merits. He states that where service is liable to be classified under two
8|Page ST/ 12 020 -120 24 /2 01 5 -D B different categories, classification which is more specific, has to be preferred, as compared to a general description. He prays for allowing refund of accumulated credit by setting aside the impugned orders. 3.1 He made specific mention of final order of this Tribunal in the case of M/s Mednautix Outsourcing Pvt Ltd. Vs. Principal Commissioner, CGST & Central Excise, Ahmedabad-South involving similar issue which was decided in favour of the party. He also referred to the decision in the case of M/s Innodata Pvt Ltd Vs. Commissioner, CGST & Central Excise, Gautam Buddh Nagar reported in 2024 (1) TMI 183- CESTAT Allahabad. He also states that the department issued them a show cause notice dated 10.03.2003 for demanding service tax of Rs. 10,96,473/- for the period April 2014 to September 2014 under the category of OIDAR services, which was dropped by the Adjudicating authority vide order No. ST/03/KM/AC/D-III/17-18 dated 28.04.2017. This order also proves their stand. Relying on various other case laws as stated above, he prayed for allowing their appeals.
4. Arguing in the matter, Learned AR reiterated the findings of the lower authority and emphasized that the appellant had obtained registration under OIDAR services which do not come within the definition of export of service. Therefore, refund of accumulated credit has correctly been rejected by the lower authorities. The appellant amended their certificate on 09.12.2014 which was an afterthought post rejection of their refund claims. He prayed for dismissing the appeals filed by the appellant.
5. We have heard the rival submissions. The department has rejected refund claims of the appellant solely on the ground that the appellant had obtained registration under OIDAR services which according to Rule 9 of the POPS Rules, 2012, do not amount to export of service. In respect of OIDAR service, place of provision of service is the location of the service provider. The lower authorities have also termed the appellant's action to rectify their registration certificate as an afterthought. In the entire order, no efforts seem
9|Page ST/ 12 020 -120 24 /2 01 5 -D B to have been made to analyze the agreement between the appellant and his client for deciding classification of service rendered by the appellant. 5.1 We accordingly set aside the impugned orders of the learned Commissioner (Appeal) and remand the matter to the Adjudicating authority to re-examine these refund claims in the light of order dated 28.04.2017 passed by the Assistant Commissioner, Service Tax Division -3 on the issue of classification of service and pass fresh orders within a period of four months from the date of receipt of this order
6. With these directions, the appeal is partially allowed by way of remand.
(Order Pronounced in the open court on 23.01.2026) (DR. AJAYA KRISHNA VISHVESHA) MEMBER (JUDICIAL) (SATENDRA VIKRAM SINGH) MEMBER (TECHNICAL) Raksha