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TMI Blog2024 (12) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... services. This issue has been considered by this Tribunal more or less in a similar circumstances in the case of CCT vs. M/s. Informatica Business Solutions Pvt. Ltd. [ 2024 (11) TMI 922 - CESTAT BANGALORE ], where it was held that ' The basic requirement to be an intermediary is that there should be at least three parties; an intermediary is someone who arranges or facilitates the supply of goods or services or securities between two or more persons. There is main supply and the role of the intermediary is to arrange or facilitate another supply between two or more other persons and, does not himself provide the main supply.'. The refund cannot be denied - the impugned order is set aside - appeal allowed. - HON'BLE DR. D. M. MISRA , MEMBER ( JUDICIAL ) And HON'BLE MRS. R. BHAGYA DEVI , MEMBER ( TECHNICAL ) Shri Prasad Paranjape , Advocate for the Appellant Shri P. Saravana Perumal , Additional Commissioner ( AR ) for the Respondent ORDER PER : D. M. MISRA These two appeals are filed against respective Order-in-Appeal passed by Commissioner of Central Tax, Bangalore. Since the issue involved is common in both these appeals, these are taken up together for hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or product warranty services. The appellant has no contractual relationship or obligation with the customers who have purchased the software from MS Corp. The accountability of the appellant is vis- -vis MS Corp. alone. These services provided by the appellant are on principal-to- principal basis to MS corp. and the consideration for such services are received in foreign exchange. Thus, there are only two parties to the contract. He submits that the definition of intermediary prescribed under Ruel 2(f) of the Place of Provision of Services Rules (POPS), 2012 is not satisfied in the present case. In support, he has referred to the CBIC Circular No.159/15/2021/GST dated 20.09.2021, therefore, the appellant is not an intermediary. Hence, the services rendered by the appellant to MS Corp. be considered as Export of Services and they are eligible to avail cash refund of accumulated cenvat credit. In support, they have referred to the decision of this Tribunal in the case of CCT vs. M/s. Informatica Business Solutions Pvt. Ltd. vide Final Order No.21125/2024 dated 18.11.2024 and also decision rendered in appellant s own case as reported 2015 (38) STR 838 (Tri.-Bang.). 4. Learned Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistance to Informatica's third party distributors, systems integrators, resellers and influencers; ➢ Providing technical support and maintenance services by telephone to customers, distributors, systems integrators, resellers and influencers of Informatica's Products in the Asia-Pacific market from time to time; ➢ Providing such other marketing, sales, maintenance and support services for the Products as Informatica may request from time to time; ➢ M S Services shall not include direct sales of the Products to customers. 8. It is alleged that the product for which the appellant rendered marketing sales services and Customer Support Services are in the nature of ITSS covered under Section 66E(d) of the Finance Act, 1994 as declared service viz. (a) identification of customers, (b) providing information and educating potential customers, (c) procuring information from the clients in terms of their requirements / expectation regarding the pricing of their product, (d) passing on the information to their foreign company, (e) providing demonstrations and presentations to the customer on the application of the products and (f) maintenance and support service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are referred in the case of Commissioner of CG ST CE, Delhi South Vs. Grant Thornton Advisory Pvt. Ltd. [2024(10) TMI 147 CESTAT NEW DELHI]. The relevant portion of the order reads as follows:- 15. The relevant clauses of the Cost Reimbursement Agreement do not indicate that Grant Thornton, India was to act as an intermediary . The activities undertaken by Grant Thornton, India are for promoting the brand name of Grant Thornton in India. Grant Thornton in India had to provides services on its own account and merely because Grant Thornton, India outsourced certain services would not mean that it became an intermediary . 16. The transaction would, therefore, not be covered by rule 9 of the 2012 Rules. Under rule 3 of the 2012 Rules, which would be applicable in the present case, the place of provision of service shall be the location of the recipient of service. The recipient of service is Grant Thornton, London, which is outside India. There is no dispute that the payment for the services had been received by Grant Thornton, India in covertable foreign currency. Thus, the conditions set out in rule 6A of the Service Tax Rules 1994 stand satisfied. Thus, there can be no manner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree conditions must be satisfied for a person to qualify as an intermediary ; - 29. First, the relationship between the parties must be that of a principal-agency relationship. Second, the person must be involved in arrangement or facilitation of provisions of the service provided to the principal by a 3rd party. Third, the person must not actually perform the main service intended to be received by the service recipient itself. Scope of an intermediary is to mediate between two parties i.e. the principal service provider (the 3rd party) and the beneficiary (the agents principal) who receives the main service and expressly excludes any person who provides such main service on his own account . 30. A bare perusal of the recitals and relevant clauses of the MSA reproduced hereinabove do not in any manner indicate that petitioner is acting as an intermediary so as to fall within the scope and ambit of the definition of intermediary under Section 2(13) of the IGST Act. Such clauses cannot also be interpreted to conclude that the petitioner has facilitated the services. The said clauses are in relation to the modalities of how the actual work would be carried out and do not in any manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussed above, the Services rendered by the petitioner are not as an intermediary and therefore, the place of supply of the Services rendered by the petitioner to overseas entities is required to be determined on basis of the location of the recipient of the Services. Since the recipient of the Services is outside India, the professional services rendered by the petitioner would fall within the scope of definition of export of services as defined under Section 2(6) of the IGST Act. 34. There is no dispute that the recipient of Services- that is EY Entities - are located outside India. Thus, indisputably, the Services provided by the petitioner would fall within the scope of the definition of the term export of service under Section 2(6) of the IGST Act. 20. This issue was also examined by the Tribunal in M/s Medway Educational Consultant P. Ltd. vs. Commissioner, CGST Commissionerate, Delhi-West [2024 (3) TMI 1178 CESTAT New Delhi] and it was observed : 13. Coming to export of service post 1st July, 2012, the basic principle to be seen is who is the recipient of the service, whether the place of provision of service is outside India and the party abroad is deriving benefit from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant has provided the service on his own account to the recipient of service, i.e. the foreign university placed beyond the taxable territory of India. Referring to Rule 6 of Rules, 2012, the learned Counsel submitted that they were providing services relating to specific event, i.e. recruitment of students for admission in educational institution/universities, i.e. recipients located outside India and therefore the place of provision of service shall be the place where the event is actually held. On the other hand, intermediary services are broader category and is not applicable to specific category. We find force in the submission of the learned counsel. 21. In Verizon Communication India Private Limited the Delhi High Court had observed:- 51. In the considered view of the Court, the judgment of the CESTAT in Paul Merchants Ltd. v. CCE, Chandigarh (supra) is right in holding that The service recipient is the person on whose instructions/orders the service is provided who is obliged to make the payment from the same and whose need is satisfied by the provision of the service. The Court further affirms the following passage in the said judgment in Paul Merchants Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omer care services to a BPO firm, 'B'. 'B' provides customer care service to 'A' by interacting with the customers of 'A' and addressing / processing their queries / complains. 'B' charges 'A' for this service. 'B' is involved in supply of main service 'customer care service' to 'A', and therefore, B' is not an intermediary. 12. Similar principle has been laid down by the Tribunal in the following cases:- i. Excelpoint Systems India Pvt. Ltd. Vs. CST, Bangalore [2022-TIOL-303-CESTAT-BANG]; ii. Blackberry India Private Limited Vs. CCT/CCE, Delhi [2022(12) TMI 660 -CESTAT NEW DELHI] iii. AMD India Pvt. Ltd. Vs. CST, Bangalore [2017(12) TMI 772 -CESTAT, Bangalore] 13. In view of the above, we do not find merit in the appeal filed by the Revenue. Consequently, the impugned order is upheld and the Revenue s appeal being devoid of merit is rejected. Cross-objection also disposed of. 8. In view of the above, the impugned orders are set aside and the appeals are allowed with consequential relief, if any, as per law. ( Operative portion of the order was pronounced in open court on conclusion of hearing. ) - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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