Document Fragment View

Matching Fragments

7. The Appellant has also undertaken an agreement with Mobizone S.r.l. for provision of Value-Added Services (VAS) to WIND Telecommunicazioni, Italy and under the said agreement, they have agreed to be a technology and platform partner to Mobizone in providing VAS Solutions to WIND and is required to install the hardware and software required for VAS solutions at the premises of WIND. It is Mobizone's responsibility to fulfil all the content related obligations and to ensure free and safe access to such content by the Appellant. The consideration under the said agreement is in the form of revenue-sharing. It is further submitted that the Appellant being a technology infrastructure provider, there is no form of access or retrieval of the database/information made available by them. There is no ST/20430,20434-20436/2021 download of content, or any access of the content by the customers. The Appellant merely provides the software to the telecom operator who then renders the ring back tone to the end-users. For the purpose of provision of OIDAR services, the customer ought to be able to download the content. However, the customer cannot download the content from the platform. The telecom operator is required to deploy the mobile exchange for integration with the MVAS solution software for the customer to be able to access the MVAS services.

10. The Appellant further submits that in the case of L.M.L. Ltd vs. Commissioner of Customs reported at 2010 (258) E.L.T. 321 (S.C.), the definition of software was analyzed to say that a software is a set of instructions, which renders the hardware functioning in a particular manner. In the present case also, the server containing the data pushes the content to the hardware located at the premises of the telecom operator and this content is accessed by using a software which has been developed by the Appellant and hence, the service provided by the Appellant is in the nature of 'ITSS'. Further, the Appellant submits that even the contract between the Appellant and the overseas telecom operator clearly indicates that the MVAS solution is actually a software application which enables the telecom operators to provide the MVAS to its end-users and the Appellant's service is specifically in relation to licensing of the software, its integration and customization to successfully deploy it on to the telecom operators network such that they are able to provide the value added services to its subscribers. Further, in certain contracts, the Appellant merely provides the platform and the content is either procured by the Telecom operator or any other service provider and the Appellant merely receives the data, undertakes necessary changes in the formatting and ingests the data onto the hardware maintained at telecom operators premises. Further, it is submitted that the as per ST/20430,20434-20436/2021 Section 66F of the Finance Act, 1994 provides that where number of services are bundled together, then the principal service, which gives the essential character to such bundled service will be the service which is deemed to be provided and the tax liability will be determined accordingly. In the present case, the Appellant mainly provides a software which establishes and maintains the technology infrastructure enabling the telecom operators to provide the RBT value added services to its end- user.

22.7. Shri Verghese Antony Joji, Associate Vice-President-

Technology Solutions in his statement dated 16.06.2016 submitted as follows:

'M/s OnMobile is a value added service provider in the telecommunication space in multiple telecom operators around the world. The company is based in Bengaluru and the central infrastructure is placed in Bengaluru offices and they have third party data centres also located in Bengaluru. He clarified that the third party data centres means where M/s. OnMobile has installed its servers, hardware and software in rented space provided by these third party data centres. Further, at the customers' site, M/s. OnMobile deploys hardware and software solutions which are connected to the Operator network (e. Telecom operators). The company has the Global Network Operations Centre (GNOC) at Bengaluru which manages the day to day operations of the online platforms deployed by the ST/20430,20434-20436/2021 company. The Central infrastructure deployed at Bengaluru is connected online (24/7) to all the customer sites vin communications lines i.e. leased lines. MPLS or Internet bandwidth via VPN. They provide those services by operating and maintaining the solutions on a real time basis to the telecom operators for accesses by their and customers. For example, whenever the end customer (the mobile user) who has opted for Ring Back Tone receives a call, the telecom operator sends a service signal to their Ring Back Tone system and the Ring Back Tone system plays the song selected by the mobile user and this song can be heard by the person who is making the call. Each time the subscribed person receives a call, the calling party will hear the song which is accessed from their Ring Back Tone system, on a real-time basis. In similar way, the other services are also provided by them on a real time basis for access by the customer who has opted for the respective services with their telecom operators. Regarding the infrastructure installed/maintained by M/s.OnMobile for providing the aforesaid online value added services, he stated that they have the Central infrastructure at their Bengaluru location. Other than this, at the customer premises i.e. telecom operator's place) they also install the necessary infrastructure including the hardware, software and platform solutions which are integrated with the operators' network and are necessary to ensure the seamless functioning of the value added services. The customer premises can be in India or places outside India like Bangladesh. Malaysia. Qatar. Chile, Romania, Ecuador, Peru etc. The Central infrastructure in Bengaluru is connected to all the installations at customer premises (in India or outside India) through online communication lines. The Central infrastructure maintained online in Bengaluru office mainly includes various servers which are responsible for (i) online monitoring and operations of the value added services, (ii) reporting platform, (iii) the content distribution platform etc.
Clause 1.1.19 hardware includes hardware system, platform, applications, customized applications as is specified at Annexure-B of the agreement. The service charges and revenue share details are provided at Annexure-C of the agreement.
Clause 1.1.27 states 'Platform' shall mean and refer to OnMobile proprietary voice portal platform software provided to customer under this agreement.

23.1. From the above clauses of the agreement read wwith the statements, the services rendered by the appellant clearly fall under the category of OIDAR services since the Mobile Value Added Services (MVAS) are owned by the appellant and allowed to be retrieved by the subscribers on payment through the telecom operators. This kind of online retrieval information of ringtones, horoscope, jokes, games etc., being the property of the appellant which are allowed to be retrieved through online by Global Network Operation Centre (GNOC) at Bangalore under no ST/20430,20434-20436/2021 circumstances can be considered as Information Technology Software Services (ITSS). As per the definition of OIDAR, data is to be owned and allowed to be retrieved through electronic form or computer networks which is exactly the services rendered by the appellant, therefore, we confirm the services rendered by the appellant is rightly classifiable as OIDAR services. It is also to be noted that the appellant had declared the very same services as OIDAR services since 2008 and only from 2016 onwards they claimed it as other services.