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TMI Blog2023 (2) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat account of the claimant. 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 service then the Revenue ought to have initiated the proceedings against the appellants for demanding the Service Tax in respect of taxable service provided by the appellants. Admittedly no such proceedings have been initiated by the Revenue as borne out from the records of the case and therefore in a way Revenue itself has allowed this taxable service provided by appellants as export of service. If that is so then in the proceeding under Rule 5 ibid Revenue cannot deny refund by treating the service provided not to be export of service. There is no iota of doubt that the Appellant is an independent contractor and not an agent or representative or to be more precise an intermediary. They are providing the service of marketing and market research to the overseas recipient of service. The services are provided on principal to principal basis and consideration is also decided, the cost plus mark up - Undoubtedly there is no tripartite agreement at any given point of time. Rule 4 of POP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e categories of Business Support Service, Internet Telecommunication Services, Information Technology Software and Legal Consultation Services since October, 2013. They are providing Business Support Services to its overseas holding company, M/s. Idex Corporation, USA and its subsidiaries such as Idex, Japan etc. The main activity of the holding company is to manufacture and sell precision engineered products through its various business units worldwide falling under Fluid Metering Technology, Health Science Technology and Fire, Safety and diversified product categories. The appellants aid the selling activities of various business units of Idex Corporation by rendering the services viz. Marketing and Promotion Services, Engineering Support Services to the distributors/customers and Accounting Management Reporting Services. During the period in issue i.e. April, 2015 to June, 2016, the appellants filed five refund claims under notification no. 27/2012-CE(NT) (supra) read with Rule 5 ibid for unutilised accumulated Cenvat Credit, the details of which are as under:- S.No. Quarter for which the Claim was filed Amount involved ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roup companies on its own and does not involve facilitation or procurement of goods or services for the group entities. While referring to the agreements between the appellant and its holding company overseas, learned Counsel submits that the appellant is an independent contractor in the performance of the services and cannot be construed as an agent, representative, servant or employee of service recipient and also that the appellant has no authority to commit or obligate in any manner whatsoever nor he has any authority to conclude the contract on behalf of the service recipient and therefore they cannot be termed as intermediary. He further submits that in case of after sales support service or Engineering Support Service, the services are in respect of providing technical parameters of the product and design and no way make the goods physically available to the appellant i.e. to the service provider. Learned Counsel further submits that the impugned order travels beyond the scope of show cause notice as there were no reference in the show cause notice with respect to after sales support services and Account Management Reporting Services or Rule 4 of POPS Rules whereas the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude the person who supplies such goods or services or both on his own account. Therefore there is no doubt that in cases wherein the person supplies the main supply either fully or partly, on principal to principal basis, the said supply cannot come within the ambit of intermediary . Sub-contracting for a service is also not an intermediary service. The supplier of main service may decide to outsource the supply of main service, either fully or partly, to one or more sub- contractors. Such sub-contractor provides the main supply, either fully or a part thereof and does not merely arrange or facilitate the main supply between the principal supplier and his customers and therefore clearly not an intermediary. Who is an intermediary and what is intermediary service has been clarified by Central Board of Indirect Taxes and Customs (CBIC) vide Guidance Note dated 20.06.2012 and under GST regime also a clarification has been issued by CBIC on 20.09.2021 both of which are in line with the discussions made hereinabove about intermediary . In view of the facts involved herein the Appellant cannot be termed as an intermediary. 7. Admittedly the refund claims have been filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le out of those as and when fructify, also are covered in the P L account of the respective business units outside India. I have also carefully gone through the agreements placed on record along with the Appeal and what has been gathered from the perusal of them is that the Appellant can in no way be construed as an agent, representative, servant of Idex holding company nor they have any authority to commit or obligate their holding Company Idex in any manner whatsoever and neither the holding Company is restricted to appoint any other service provider in India nor the appellants is restricted from providing services to any other third parties. Therefore there is no iota of doubt that the Appellant is an independent contractor and not an agent or representative or to be more precise an intermediary. They are providing the service of marketing and market research to the overseas recipient of service. The services are provided on principal to principal basis and consideration is also decided, the cost plus mark up. 9. Undoubtedly there is no tripartite agreement at any given point of time. I am in agreement with the submission of the Learned Counsel that Rule 4 of POPS Rules, 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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