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3.1 It is further submitted that the allegation that the said services are OIDAR services because the appellant had access to the parent company is erroneous since the access was limited to usage of various software tools and not to the records of the foreign company. Running a dedicated server, allowing access to the said server and allowing usage of various software/ operating systems/ tools for day-to-day operations and also providing IT disaster recovery support services cannot be termed as access to data and retrieval of data/ information. Referring to the various clauses of the agreement, it is submitted that during the term of the agreement, the operating software related to various applications such as maintenance services which includes providing upgrades, technical support, security administration, backup, Application development and support, Application Training. Thus, the essence of the agreement is IT services including IT infrastructure usage and management, usage of ERP systems providing required Hardware and also providing maintenance and upgrades and also providing support services functional service relating to data management, bio statistics and reporting etc., fall under the category of Information Technology Software Services. The remuneration for the services of use of software, hardware and network is determined based on total cost incurred by Givaudan SA and number of users at Vinarom (Givaudan India). Since, the nature of services covered under agreement fall under IT services and Information ST/951, 952/2010 Technology Software Services' being taxable only w.e.f 16.05.2008, they were not liable to pay any service tax. He relied upon the following judgments:

4.1 It is further submitted that the services received by the Appellant are in the nature of database access as they are not getting the software program but only access to the data base for hosting the software, which can be used by them on a daily basis for their operations. They have access to data warehouse containing information and data about formulation of fragrances, product formulas, product information, product library is allowed to be accessed. Therefore, the services are rightly classifiable under OIDAR services and are liable to pay service tax under reverse charge basis.

Therefore, the observations of the Commissioner in the impugned order that the contract specifically provides for remote use and access of the data warehouse systems of their holding company through a dedicated Internet which is nothing but a computer network and the fact that the agreement allows access for automatic global directory update with mailing interfaces, clearly establishes that the services provided under the agreement cited above squarely fall into the category of 'online information and database access or retrieval service' cannot be ignored. The Commissioner also observed that the appellant's contention that these services are in the nature of 'information technology services' is not acceptable in as much as the agreement not only provides for use of the reserved capacity of the regional server but also grants access to the databases on flavours, fragrances product, library EC based on the definition under section 65 (75) of the Finance Act 1994, it is clear that any information knowledge concepts or instructions which are prepared in a formalised manner and intended to be used or ST/951, 952/2010 processed in a computer system would get covered under the aforementioned services. In view of the above, based on the services received by the appellant, it is clear that it is not mere Information Technology Services but the services received include whole lot of access to the data worldwide with regard to technology, production and various other services essential for day-to-day manufacturing activities. Therefore, we are in agreement with the Commissioner that the services received by the appellant fall under OIDAR services. The decisions relied upon by the appellant are purely on IT services and hence, they are not applicable for the present set of facts. For instance, in the case of Philips Electronics India Ltd. vs. Commissioner of S.T., Chennai: 2019 (21) G.S.T.L. 450 (Tri. - Chennai), the Tribunal observed as follows:

5.5 In the instant case there is no doubt that the agreement entered between the appellant and the holding company was not mere exchange of data but access and retrieval of data for manufacturing purposes, supply chain meant for marketing purposes, their finance systems, data access to the quality and ST/951, 952/2010 laboratory information systems and usage of data warehouse goes to prove that the entire gamut of manufacturing/marketing/ finance were made accessible to the appellant through computer network systems. Therefore, distinguishing from the facts of cases relied upon by the appellant, we uphold the classification of the services under OIDAR.