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TMI Blog2022 (12) TMI 1489X X X X Extracts X X X X X X X X Extracts X X X X ..... r customers in India. To qualify as an intermediary, service as per the statutory provision, the essential element for consideration is that the parties to the contract should act as principal-agent and that the agent shall be in a position to represent and bind the principal. On reading of the clauses in the agreement vis- -vis the statutory provisions, it is abundantly clear that the services provided by the appellant to the overseas entity qualify as export in terms of Rule 6A of the Service Tax Rules, 1994 read with Rule 3 of the Place of Provision of Services Rules, 2012. By reading the contents of the said agreement dated 14.09.2009 entered into between the appellant herein and the self same overseas entity, this Tribunal in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f facts of the case are that the appellant is providing sales promotion and other sales support services to its associated company namely, M/s Chevron Philips Chemicals Global FZE ( CPC Global ) located outside India. The services provided by the appellant are classifiable under the taxable category of Business Auxiliary Service , defined under the Finance Act, 1994. For providing such taxable service, the appellant got itself registered with the Service Tax Department. Since the entire output services provided by the appellant were exported to its associated company, there was no scope on the part of the appellant to discharge the service tax liability on such output services. Thus, for claiming the accumulated balance of unutilised Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f refund application and subsequent confirming the adjudged demands cannot be sustained. 5. On the other hand, learned AR appearing for the Revenue reiterated the findings recorded in the impugned order. 6. Heard both sides and perused the case records. 7. We have examined the contract dated 14.09.2009 entered into between the overseas entity M/s CPC Global and the appellant. Clauses in the agreement provide that the appellant shall not be empowered to make any pricing decisions, to sign any contracts, or to make any commitments on behalf of the overseas entity; that the consideration received by the appellant from M/s CPC Global as a service provider, is not directly linked with the sale of products by the selling companies in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein below:- 17. For the period after 1.10.2014, on merit also, the appellant cannot be called as an intermediary . On a simple reading of the agreement analyzed as above, it is clear that the appellants are appointed by their overseas counterpart CPC Global for sales promotion of the goods for their client in the defined territory. The appellant has no role in fixation of price nor they negotiate in any manner between CPC Global and their clients relating to sales promotion of the goods sold. Therefore, in my view, the appellant cannot be called as an intermediary. consequenlty, fall outside the amended definition of intermediary under Rule 2(f) and Rule 9 of the POPS Rules, 2012. Similar view has been expressed by the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice and should be governed under the provisions of Rule 9 of the rules. Also, in the case of R.S. Granite Machine (supra), this Tribunal has held as under: - 5. The facts of the case as analysed elsewhere in this order, make it clear that obtaining/procuring order for its foreign Principals is the main service rendered by the appellant and consequently, rigors Rule 9 vis- -vis Rule 2 (f) are not applicable. In view of the above, I am of the considered opinion that Rule 3 of POPS Rules would only apply and therefore the appellant cannot be fastened with tax liability. For the above reasons, demand as well as the impugned order are not sustainable and consequently, the same are set aside and the appeal stands allowed with conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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