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TMI Blog2024 (6) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the present case. Moreover, after the Larger Bench order, this case has been listed before this Division Bench to decide the issue of refund on merits. Therefore, the present appeal is very much maintainable and its maintainability cannot be questioned at this stage. Accordingly, the objections raised by the Department on maintainability are hereby overruled. Whether the services by the appellant to JDSU USA qualified as export of service and hence not exigible to service tax? - HELD THAT:- The place of provision of business promotion service shall be the location of the recipient of service which is outside India and such services shall qualify as export of service and hence not subject to service tax and this view has been taken by the Tribunal in various decisions stated/ relied upon by the appellant. Intermediary services or not - HELD THAT:- From the perusal of the definition of the Intermediary during the period prior to 01.10.2014, it only pertained to facilitation of provision of service but facilitation of supply of service was inserted only w.e.f. 01.10.2014. Here it is pertinent to note that the period of dispute in the present case is from October 2013 to March 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion/ Marketing of JDSU USA products by directly liasing with customers and providing demonstration of JDSU USA's products as and when required; (b) Identification of prospective customers (in India) for JDSU USA; (c) Liasing between JDSU USA and prospective channel partners/customers. 3. For the provision of such promotional and marketing activity of JDSU USA's products, the Appellant received a consideration in form of commission from JDSU USA. It is further alleged that during the period from 01.10.2013 to 31.03.2014 (period of dispute), the appellant raised the following invoices on JDSU USA for the services provided under the Agreement: S. No. Name of Recipient Address of Recipient Invoice No. Date of Invoice Value of Invoice (Rs.) 1. JDS Uniphase USA 84904731 31.01.2014 10,11,48,510 2. JDS Uniphase USA 84904732 20.02.2014 17,50,26,867 Total value of Invoice 27,61,75,377 4. The Appellant did not charge Service tax on these invoices since the Appellant was under the bona fide belief that in terms of the Finance Act, 1994 ("the Act") read with Service Tax Rules, 1994 ("ST Rules") and Rule 3 of the Place of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the technical services provided by the Appellant had been performed in India and therefore were covered under Rule 4 of the POPS Rules (Place of Provision of Service Rules 2012). Further, the marketing services which included "Business Auxiliary Services" provided by the Appellant fell under the definition of intermediary services as provided under Rule 2(f) of POPS Rules. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) upheld the Order-in-Original and held that the services provided by the appellant qualified as intermediary and dismissed the appeal of the appellant. Aggrieved by the said order, the appellant has filed the present appeal. 7. Heard both sides and perused the material on record. 8. During the hearing, the Department raised a preliminary objection that the Hon'ble Apex Court, in the case of ITC Ltd. Vs CCE, Calcutta reported 2019 (368) ELT 216 (SC), has held that the refund claim is not maintainable in the absence of any challenge to assessment or selfassessment in appeal. Accordingly, the refund claim filed by the appellant was not maintainable. The Tribunal observed that two differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt verdict in BT India Judgment is sub silentio on the issue of permissibility of filing an appeal against a self-assessed return. Learned Counsel further submits that Larger Bench order was passed based on judgments of various High Courts which was not considered in BT (India) judgment. He further submits that the Larger Bench order has been passed in the appellant's own case and after the decision of the Larger Bench, the matter is now listed before the Division Bench for an order on merits of the case. He also submits that the Larger Bench has not been challenged yet in an appeal before the Hon'ble High Court and accordingly, the Larger Bench order continuous to remain binding on the Division Bench of this Tribunal and even the Hon'ble High Court of Delhi has not reversed or even considered the Larger Bench order in the case of BT (India). 12. In reply to this submission on maintainability, learned DR fairly conceded that BT (India) judgment has not considered the Larger Bench but he still submits that BT (India) judgment has also relied upon the Hon'ble Apex Court judgment in the case of ITC Limited and therefore, he submits that the present appeal is not maintainable. 13. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took us through the Paras 7 & 8 of the impugned order wherein it is observed that the appellant is involved in the business of promotion of selling of goods, providing of warranties on goods and it is also observed that the appellant was involved in dealing with goods and the Adjudicating Authority has rightly held that where goods are involved then Rule 4 of the POPS Rules 2012 are applicable and the said service with respect to goods cannot be treated as export of service. He further submits that in Para 8 of the impugned order, the learned Commissioner (Appeals) has observed that in the instant case, the appellant arranged supply of goods between JDSU Corporation and their customers in India, JDSU India is providing services on his own account. He further submits that in view of this finding of the learned Commissioner (Appeals), the appellant would not fall under the definition of "Intermediary" applicable at the relevant time. Learned Counsel also referred to the Education Guide 2012 wherein in Para 5.9.6 of the said Guide, it is observed as under: 5.9.6 What are "Intermediary Services"? Generally, an "intermediary" is a person who arranges or facilitates a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gory of exporter of service. He also submits that the place of provision of service by the appellant to JDSU USA is outside India as per Rule 3 of POPS Rules which provide that the place of provision of services is location of the service recipient. He also submits that the services of the appellant does not fall under Rule 4 to 12 of POPS Rules which provide specific provisions for specified services. In support of his submission, he relied upon the following decisions: Verizon Communication India pvt. Ltd. Vs. Assistant Commissioner, Service Tax, Delhi-III, 2018 (8) G.S.T.L. 32 (Del.) Delhi High Court (relied upon Paul Merchant Decision) Paul Merchants v. CCE, Chandigarh, 2013 (29) STR 257 (Tri-Del) IBM India (P) Ltd. v. CCE, Customs and Service Tax, [2016] 68 taxmann.com 94 (Tri-Bang) Vodafone Essar Cellular Ltd. v CCE., Pune-III, 2013(31) STR 738 (Tri-Mum) KSH International Pvt. Ltd. Vs. Commissioner of C.Ex, Belapur, 2018 (18) S.T.R 404 (Tri. - Mumbai) Microsoft Corporation (I) (P) Ltd. v. CST, New Delhi - 2014 (36) STR 766 (Tri-Del) Gap International Sourcing India Pvt. Ltd. v. CST, Delhi- 2015 (37) STR 757 (Tri- Del) Alpine Modular Interiors (P.) Ltd. v. CST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding demonstration of JDSU USA‟s products as and when required; b) Identification of prospective customers (in India) for JDSU USA; c) Liasing between JDSU USA and prospective channel partners/ customers. 22. If we examine the services provided by the appellant as per their Agreement and the provisions of Rule 6A of the Service Tax Rules, we will find that the services provided by the appellant squarely fall within the ambit of export of services because: i. Location of the service provider- The Appellant is located within the taxable territory; ii. Location of the service recipient - The principal place of business of JDSU USA is at 430, North McCarthy Boulevard, Milpitas, CA 95035, USA. In other words, the service recipient is located outside the taxable territory; iii. The services provided by the Appellant to JDSU USA are not covered by the list of negative services; iv. The Appellant is receiving payment in convertible foreign exchange; v. In terms of Rule 3 of the POPS Rules which is the general rule, the place of provision of a service would be the location of the service receiver. Accordingly, the place of provision in this case is outside India. vi. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a person who provides the main service on his account" ( Emphasis Supplied ) 26. The definition of "Intermediary" which was applicable after 01.10.2014 is reproduced below: "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" (Emphasis Supplied) 27. From the perusal of the definition of the "Intermediary" during the period prior to 01.10.2014, it only pertained to facilitation of provision of service but facilitation of supply of service was inserted only w.e.f. 01.10.2014. Here it is pertinent to note that the period of dispute in the present case is from October 2013 to March 2014 and the definition of "Intermediary" during that time is applicable wherein the learned Commissioner (Appeals) in the impugned order in Para 7 & 8 has wrongly observed that the appellant is involved in the business promotion of selling of goods, providing of warranties of goods and hence covered under Rule 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by said Rules ibid. Since Rule 9 is applicable to specified services and the services provided in this case being not the intermediary services, this Rule will not be applicable for determination of place of provision of service." ( Emphasis supplied ) 28. Further, in the case of Lubrizol Advanced Materials India Pvt. Ltd. v. C.C.E. Belapur, 2019 (22) GSTL 355 (Tri.- Mumbai), the Tribunal has held as under: "6. I find that the Learned Commissioner (Appeals) has denied the benefit of export with effect from 1-10-2014 under the Place of Provision of Services Rules, 2012, holding that the appellant had facilitated supply of goods between its foreign counterpart and processing of goods and thus, it should be considered as an intermediary. On perusal of the contracts, I find that the service fee charged by the appellant to its overseas group entities for provision of service has no direct nexus with the supply of goods by the overseas group entities to its customers in India. Further, the appellant had provided the service to the overseas entities on principal to principal basis. Thus, the appellant cannot be termed as an intermediary between the overseas entity and the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is only facilitating the aspirant student and introduced them to the college and if these students gets admission to the college, the appellant gets certain commission which is in nature of promoting the business of the college and for referring investors borrow loan from foreign based bank to the people who wishes settled in Canada on that if the deal matures, the appellant is getting certain commission. So the nature of service provided by the appellant is the promotion of business of their client, in terms, he gets commission which is covered under Business Auxiliary Service which is not the main service provided by the main service providers namely banks/university. As the appellant did not arrange or facilitate main service i.e. education or loan rendered by colleges/banks. It was held by the authority that the referral services and visa felicitation services provided by Sunrise Immigration Consulting to a foreign-based university qualifies as export of service and not an intermediary service. ( Emphasis supplied ) 31. After considering the submissions of both the parties and after examining the facts and the relevant clause of the Agreement between the JDSU India and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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