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TMI Blog2022 (8) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... ishing to notice that although for earlier periods the then adjudicating authority allowed the refund claim of the appellant, but without looking into those orders and without giving any reason for not following the earlier orders, this time the concerned Authorities held otherwise by denying the credit. It is observed that the learned Commissioner in the impugned order has also places reliance on the website without confronting the appellant with the said material, which is completely in violation of the principle of natural justice and also beyond the show cause notice as the show cause notice did not rely upon any such website. Admittedly the refund claims have been filed by the appellants under Rule 5 ibid r/w Notification No. 27/2012 dated 18/06/2012. The said rule provides for refund of accumulated Cenvat Credit in respect of goods and services exported under bond or undertaking. This rule is very specific and lays down how to determine the quantum of admissible refund from the accumulated cenvat credit - If the Revenue is not in agreement with the claims of the appellants and if, according to Revenue, the services in issue do not fall within the ambit of export of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible? 3. The facts leading to the filing of instant appeal are stated in brief is follows. The appellant undertakes its business activities through its SEZ unit in Gurugram, Haryana and STPI unit in Mumbai, Maharashtra. Both the units are hundred percent export units. The refund claims of Rs.28,30,015/- for the period April, 2016 to June, 2016 and of Rs.93,61,891/- for the period July, 2016 to March, 2017 were filed by the appellant under Rule 5 of Cenvat Credit Rules, 2004 read with notification No. 27/2012 CE(NT) dated 18/06/2012 for refund of un-utilised Cenvat credit availed on input service used in providing taxable services i.e. business support services . The aforesaid refund claims were rejected by the Adjudicating Authority vide Order-in-Original dated 28/03/2018 and 15/05/2018 respectively on the ground that the service provided by the appellant are intermediary service and therefore in terms of Rule 9(c) of Place of Provisions of Services Rules, 2012 the place of provision of service is in India. On appeal filed by the appellant, the learned Commissioner upheld the order passed by the Adjudicating Authority and rejected the Appeals filed by the appellant. 4. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement is that the appellants have to help in setting up new client accounts who purchased Aladdin data base and also to help in resolving client querries, which means there is involvement of three parties viz appellants, HLX and clients of HLX, therefore the appellants are nothing but an intermediary and hence not entitled for any Credit under Cenvat Credit Rules, 2004. 5. We have heard learned Counsel for the appellants and learned Authorised Representative for the Revenue and perused the case records including the compilation filed by the appellant. The term intermediary has been defined under Rule 2(f) of Place of Provision of Services Rules, 2012 which is reproduced as under:- intermediary means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service (hereinafter called the main service) or a supply 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 . A plain reading of the aforesaid provision makes it clear that to attract the said definition there should be two or more persons besides the service provider. In oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation from HLX in convertible foreign exchange. Commission is being paid to an intermediary not the transfer pricising, whereas the appellant herein was getting transfer pricising. There is nothing on record to show that the appellant is liasioning or acting as intermediary between the HLX and its clients. Therefore, the finding of the lower authorities that the appellant is an intermediary is misplaced. We are astonished to notice that although for earlier periods the then adjudicating authority allowed the refund claim of the appellant, but without looking into those orders and without giving any reason for not following the earlier orders, this time the concerned Authorities held otherwise by denying the credit. One of the reasons for rejecting the refund claim of the Appellants is that the appellants failed to produce the agreement between HLX, USA and its overseas clients. We agree with the submission of learned Counsel that since the appellant is not a partyto those agreements therefore they have no access to the same. Although the reasoning of the appellants for not producing those agreement is proper but the authorities below took it otherwise and presumed, without any ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting similar terms of agreement the Authority of Advanced Rulings (AAR) in the matters of In re Go Daddy India Service Pvt Ltd; 2016-TIOL-08-AAR-ST and In re Universal Service India Pvt. Ltd; 2016 (42) STR 585 (AAR) held that the Place of Provision of Service will be outside India and therefore Rule 3 of Place of Provision of Service Rules are held to be applicable. The Hon ble High Court of Judicature at Bombay in the matter of Bombay Flying Club v/s CST; 2015 (37) STRJ129 has held that the ruling given by Advance Ruling Authority cannot be ignored. We also find force in the submission of learned Counsel about applicability of Rule 3 of Place of Provision of Services Rules, 2012 which provides that generally the place of provision of service is the location of service recipient therefore since in the instant case the location of service receiver M/s. HLX is located outside India i.e. USA therefore the place of provision of service is outside India and hence the service in issue qualify export of services in terms of Rule 6A of Service Tax Rules, 1994. 8. In view of the discussions and findings recorded in the preceding paragraph, we are of the considered view that the orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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