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16. Agreement between the parties did not prohibit the appellant to have access to the data base maintained by the CRS companies in their system at any time to protect its interest. So also there was no bar on the appellant in that regard while only prohibition for the appellant was to provide no access to a third party through its own system to the CRS system of CRS companies under Article 2(H) of the agreement. This establishes that online data base access and retrieval of the data by the appellant from CRS companies was its absolute right being an inevitable necessity to make it litigation free ensuring storage of error free information in the CRS by CRS companies for use of Air travel Agents to promote its business.

17. Understanding of the parties also did not reveal forgoing of the right of access by the appellant to the data base maintained by CRS Companies for the obvious reason that reservation data/information was its property and liability of the CRS Companies to the appellant was limited only to the extent of booking fees paid by the appellant in the event of damages arising out of the performance or breach of the agreement between the parties. It may be appreciated that no one would prefer to cause prejudice to himself surrendering his right of self-protection. The Appellant was not an exception to that. Thus existence of right of appellant to access data base on line including retrieval thereof by appellant is undeniable.

Explanation 1.  A person carrying on a business through a branch or agency in any country shall be treated as having a business establishment in that country.

Explanation 2.  Usual place of residence, in relation to a body corporate, means the place where it is incorporated or otherwise legally constituted.]

25. The appellant having its place of business in India was recipient of online data base access and retrieval thereof to promote its business in India ensuring error free information to the travel agents in India. Storage of such data in the computer of CRS companies for use thereof was an inevitable necessity since liability of the subscribers to the appellant was limited to the service charge paid by it in respect of each service of ticket booking. Therefore the appellant did not remain silent without exercise of its right of access to such data base and/or retrieval thereof to ensure that that it becomes litigation free. The appellant having right of access to the data base and for such service of access, it had made payments to the CRS Companies. Appellants plea that service was provided to the head office is baseless. Appellant failed to establish that its existence in India was of no use to it. Revenues arguments that appellants remittances came to notice of investigation proved quid pro quo is well founded. So also when the appellant failed to prove that it had not enjoyed any connectivity to the CRS system of CRS companies to respond to travel agents in India, it failed to succeed in adjudication. This rules out appellants plea that its head office was only recipient of service but not the appellant.

36. The above five appeals were heard together. Since the arguments made on behalf of the appellant and on behalf of the Revenue have been recorded in the order prepared by my learned brother, I am not repeating the same in this order.

37. I have considered the submissions from both the sides and perused the records. While the case of the Department against the appellant is that the CRS Companies located abroad are providing services of online data base access and/or retrieval taxable under section 65(105)(zh) read with section 65 (75) and Section 65(36) of the Finance Act, 1994 and the same has been received by the appellant in India and, therefore, the Appellant would be liable to pay service tax in respect of the same in terms of Provisions of Section 66A of the Finance Act, 1994 read with Rule 2(1)(d)(iv) of the service tax Rule 1994, the main contentions of the appellant are that  firstly no service has been received by the appellant, who are a branch office of the Thai Airways in India, as the entire transaction is between their Head Office at Bangkok and the CRS Companies located abroad and in terms of the Provisions of sub-section (2) of 66A, the branch office of Thai Airways in India has to be treated as a person separate and distinct from the head office and, therefore, in respect of the service transactions between the CRS Companies located abroad and Thai Airways, Bangkok, the Appellant can not be treated as the service recipient, and secondly the service being provided by the CRS Companies is not covered by the definition of online information and data base access and/or retrieval service as defined in Section 65(105)(zh) read with Section 65 (75) and Section 65(36) of the Finance Act, 1994 and hence the same is not taxable.