2018 (12) TMI 1242 - AT - Service Tax

Refund of unutilized CENVAT Credit - input services used for providing taxable services under the category of Business Auxiliary Services in respect of Export of Services - Rule 5 of CCR 2004 read with N/N. 27/2012 dated 18.06.2012 - Held that - Identical issue decided in the case of M/S. EVALUESERVE. COM PVT. LTD. VERSUS CST, GURGAON 2018 (3) TMI 1430 - CESTAT CHANDIGARH , where it was held that the appellants are not liable to pay service tax being provider of service in India in terms of Rule 9 of the Place of Provision of Service Rules, 2012 - refund allowed - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Admissibility of refund claims under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012 dated 18.06.2012.
2. Determination of whether the services provided by the assessee qualify as intermediary services under Rule 2(f) of the Place of Provision of Services Rules, 2012.
3. The impact of previous tribunal decisions and Advance Rulings on the current case.

Issue-wise Detailed Analysis:

1. Admissibility of Refund Claims:
The primary issue is whether the refund claims filed by the assessee under Rule 5 of the Cenvat Credit Rules, 2004, read with Notification No. 27/2012 dated 18.06.2012, are admissible. The assessee, registered under the category of Business Auxiliary Services, filed refund claims for unutilized Cenvat credit availed on input services used for providing taxable services in respect of Export of Services. The tribunal noted that in some cases, the refund claims were sanctioned, while in others, they were denied, leading to appeals from both sides.

2. Determination of Intermediary Services:
The tribunal examined whether the services provided by the assessee qualify as intermediary services as defined under Rule 2(f) of the Place of Provision of Services Rules, 2012. According to Rule 2(f), an intermediary is a person who arranges or facilitates the provision of a service or supply of goods between two or more persons but does not include a person who provides the main service on his own account. The tribunal reviewed the agreement between the assessee and Evalueserve Ltd., Bermuda, and concluded that the assessee provided services directly to the customers of their client and not on behalf of a third party. Therefore, the assessee's services did not qualify as intermediary services.

3. Impact of Previous Tribunal Decisions and Advance Rulings:
The tribunal considered previous decisions in the assessee's own case, where similar refund claims were allowed. The tribunal also referred to the Advance Rulings Authority of India in the cases of Universal Services India Pvt. Ltd. and Godaddy India Web Services Pvt. Ltd., which supported the view that entities providing services on their own account are not intermediaries. The tribunal noted that the same Commissioner (Appeals) had taken a contrary view in another case, but the tribunal found the assessee's arguments and supporting decisions more persuasive.

Conclusion:
The tribunal concluded that the assessee is not an intermediary under Rule 2(f) of the Place of Provision of Services Rules, 2012, and therefore, the services provided by the assessee are not subject to service tax in India under Rule 9 of the Place of Provision of Services Rules, 2012. Consequently, the refund claims filed by the assessee are admissible. The tribunal set aside the impugned orders denying the refund claims and allowed the appeals filed by the assessee while dismissing the appeals filed by the Revenue.

Final Order:
The appeals filed by the assessee are allowed, and the appeals filed by the Revenue are dismissed. The tribunal's decision was pronounced in the open court.

← Previous Next →