2023 (10) TMI 503 - AT - Service Tax

Refund of Service Tax - export of services - place of provision of services - failure to upload revised ST-3 return for the period from October 2012 to March 2013 and that for the period from October 2012 to March 2013 - HELD THAT - The appellant is providing guidance to Indian students without charging any consideration from them. In view of the definition of service, the appellant is not providing any service to prospective students in India. The appellant is providing service to universities located in foreign countries who are paying consideration to the appellant - the services covered by these proceedings are export of services. Reliance placed in the the decision of this Tribunal in the case of M/S SUNRISE IMMIGRATION CONSULTANTS PRIVATE LIMITED VERSUS CCE ST, CHANDIGARH 2018 (5) TMI 1417 - CESTAT CHANDIGARH decided by Chandigarh Bench of this Tribunal - It is noted that this Tribunal has held that such organisations cannot be treated as intermediaries under the definition of Rule 2(f) of Place of Provision of Service Rules, 2012. The contention of Revenue that the appellant is an intermediary is not in accordance with law. It is further noted that the appellant has foregone the refund of Rs.26,43,969/-. Therefore, now the refund claim works out to the tune of Rs.24,30,172/- - It is noted that the appellant has not provided all the foreign inward remittance certificates covering the transactions involving service tax of Rs.24,30,172/-. Matter remanded to the original authority with a direction not to rake up any other issue but to collect foreign inward remittance certificates from the appellant in respect of those transactions which involve refund of Rs.24,30,172/- out of the refund claim of Rs.50,73,141/- and allow the refund out of Rs.24,30,172/- in respect of such transactions where FIRCs get produced by the appellant before the original authority - appeal allowed by way of remand.

Summary

Issues involved:
The issues involved in the judgment are whether the appellant's services qualify as export of services, whether the appellant can be considered an intermediary under the Place of Provision of Services Rules, 2012, and whether the appellant is eligible for a refund of service tax.

Export of Services:
The appellant, engaged in guiding students seeking admissions in foreign universities, claimed that their services were export of service as they did not collect consideration from prospective students. The appellant filed a refund claim for the service tax paid, contending that their services were provided outside India. The original authority rejected the refund claim. The appellant argued that they were not providing services to Indian students but to universities abroad, making their services export of services. The Tribunal held that the appellant's services were indeed export of services, citing a similar case precedent.

Intermediary Status:
The Revenue contended that the appellant functioned as an intermediary under Rule 2(f) of the Place of Provision of Services Rules, 2012. The appellant, however, argued that they were not intermediaries as they did not receive consideration from prospective students. The Tribunal referred to a previous case where similar organizations were not considered intermediaries. The Tribunal held that the Revenue's contention that the appellant was an intermediary was not in accordance with the law.

Refund Claim:
The Revenue argued that the appellant was not eligible for a refund as they had not revised their ST-3 return for a specific period. The appellant later submitted a letter agreeing to forego a part of the refund claim. The Tribunal noted that the appellant had foregone a portion of the refund claim and reduced the refund amount accordingly. The Tribunal remanded the matter to the original authority to collect foreign inward remittance certificates for the remaining refund amount and allowed the refund upon submission of the required certificates.

Decision:
The Tribunal allowed the appeal by way of remand, holding that the appellant's services were export of services and that they were not intermediaries as per the law. The Tribunal directed the appellant to produce all necessary foreign inward remittance certificates to receive the refund amount. The impugned order was set aside for this purpose.