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TMI Blog2019 (2) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... any data stored outside India have been retrieved or used by the appellant so as to qualify or fall under the category of Online Information and Database Access or Retrieval Service prescribed under Rule 9(b) of the Place of Provision of Service Rules, 2012. The intermediary is a broker or an agent who arranges or facilities the provision of service between two or more persons, but does not include the person who provides the main service on his account - In the present case, the appellant has directly provided services to the foreign clients and not acted as an intermediate in the provision of development of software and maintenance service - the findings and conclusion of the learned Commissioner (Appeals) that the appellant is an int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der before the learned Commissioner (Appeals), who in turn, allowed the Revenue's appeal. Hence, the assessee is in appeal. 3. Learned Advocate Dr. Shrikant Kamat for the appellant has submitted that taking note of the services rendered by the appellant to the foreign entity, the adjudicating authority arrived at the conclusion that the services provided are in the nature of export of service and since they complied with all the conditions of the relevant Notification i.e. receipt of export proceedings etc. in foreign exchange, he has sanctioned an amount of ₹ 34,58,451/-. He has fairly submitted that the assessee has not filed any appeal against rejection of the claim of ₹ 8,51,483/-. Assailing the impugned order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the judgment of this Tribunal in the case of State Bank of India Vs. Commissioner of Service Tax, Mumbai-II- 2015 (37) STR 340 (Tri-Mum). 4. Per contra, the learned AR for the Revenue reiterating the findings of the learned Commissioner (Appeals) submitted that software being 'goods' and the same being developed in India and transferred online to the foreign counterpart, therefore, the place of provision of service is in India, accordingly, no export of service is involved. In support, he has referred to the judgment of the Hon ble Supreme Court in the case of Tata Consultancy Services Vs. State of Andhra Pradesh - 2004-TIOL-87-SC-CT-LB. 5. Heard both sides and perused the records. 6. The short issue involved in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply of goods, between two or more persons, but does not include a person who provides the main service or supplies the goods on his account. From the above definition, it is clear that the intermediary is a broker or an agent who arranges or facilities the provision of service between two or more persons, but does not include the person who provides the main service on his account. In the present case, the appellant has directly provided services to the foreign clients and not acted as an intermediate in the provision of development of software and maintenance service. Therefore, the findings and conclusion of the learned Commissioner (Appeals) that the appellant is an intermediary is without any basis and therefore, not sustainable i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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