2018 (5) TMI 1417 - AT - Service Tax

Demand of service tax - referral services provided to foreign universities/colleges and banks - period post 01.07.2012 - Place of Provision Rules - export of services - case of appellant is that the appellant is not intermediary, therefore, they are not liable to pay service tax post 01.07.2012 - extended period of limitation. Whether the appellant is intermediary in terms of Rule 2(f) of POPS Rules, 2012 or not? - Held that - As the appellant did not arrange or facilitate main service i.e. education or loan rendered by colleges/banks. In that circumstances, the appellant cannot be called as intermediary in the light of the judgment issued by the Advanced Ruling Authority in the case of Godaddy India Web Services Pvt. Ltd. 2016 (3) TMI 355 - AUTHORITY FOR ADVANCE RULINGS , where it was held that The definition of intermediary as envisaged under Rule 2(f) of POS does not include a person who provides the main service on his own account - the provisions of Rule 6A of the POPS Rules, 2012 has been declared ultra virus - appellant is not liable to pay tax for referral service - decided in favor of appellant. Whether the referral services in question rendered by the appellant amount to export of service or not? - Held that - the appellant is not an intermediary and the appellant is providing Business Auxiliary Service to their clients, who are located outside India, therefore, the services rendered by the appellant duly qualified as export of service in terms of Rule 3 of POPS Rules, 2012 - decided in favor of appellant. Extended period of limitation - Held that - as the issue relates to the interpretation of the POPS Rules, 2012, therefore, the extended period of limitation is not invokable. Appeal disposed off.

Summary

Issues:
(A) Whether the appellant is intermediary in terms of Rule 2(f) of POPS Rules, 2012 or not?
(B) Whether the referral service in question rendered by the appellant amount to export of service or not?
(C) Whether the extended period of limitation is invokable or not?

Analysis:

(A) Intermediary Status:
The appellant contended that they are not an intermediary as per Rule 2(f) of POPS Rules, 2012. They argued that they provide Business Auxiliary Service to clients like banks and universities, not facilitating the main services of education or loans. The Tribunal agreed, citing precedents where service providers acting on their account were not classified as intermediaries. Additionally, the High Court had declared Rule 6A of POPS Rules, 2012 ultra vires, further supporting the appellant's position. Thus, the Tribunal ruled in favor of the appellant on this issue.

(B) Export of Service:
Given the appellant's non-intermediary status, the Tribunal found that the services provided, namely Business Auxiliary Service to foreign clients, qualified as export of service under Rule 3 of POPS Rules, 2012. This determination aligned with the appellant's argument and led to a ruling in their favor on this issue as well.

(C) Extended Period of Limitation:
Since the issues primarily revolved around the interpretation of POPS Rules, 2012, the Tribunal concluded that the extended period of limitation was not applicable. Consequently, demands related to this extended period were deemed unsustainable.

In conclusion, the Tribunal modified the impugned order, ruling that the appellant was liable to pay service tax on visa facilitation services post-July 2012 but not on referral services. No penalties were imposed on the appellant. The appeal was disposed of accordingly.