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TMI Blog2025 (2) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed against the party. Being aggrieved, the appellant filed appeal before Commissioner (Appeals) who vide order dated 19.05.2017 rejected the appeal and upheld the order-in-original. 2. Pleading for the party, learned consultant submits that they were promoting and providing design and installation facilities on the goods manufactured by M/s Koch Membrane INC. U.S.A. and since they were dealing with the goods, prior to the period of October 2014 i.e. the date on which Notification No. 14/2014 became effective i.e. 01.10.2014, they could not have been called upon to pay duty as the services related to goods were never in ambit of Place of Provision of Services Rules and only services related to various services provided as intermediary services were earlier (i.e. prior to 01.10.2014) within the ambit of taxation. While there is no serious dispute that they were or not intermediary as such but that by virtue of amendment being brought in Place of Provision of Service Amendment Rules 2014 the definition of "intermediary‟ could not have been given the retrospective effect and therefore dealing with goods or supply of goods between two or more persons could not have brought w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and M/s Koch Membrane USA was to have an agreement for provision of Services in India by the Indian Entity i.e. the present appellant. He also reiterated various findings of Commissioner (Appeals) which indicated that the services being object of the agreement, it cannot be said that prior to amendment dated 01.10.2014, the ambit of definition of intermediary services did not cover their kind of services. Therefore, the services having been provided in India by an Indian entity, same is with the ambit of service tax in the impugned period, whole of which is negative list period. He also justified the extended period as there was no interpretational issue involved and the judgments quoted by appellants were of cosmetic value, irrelevant, cited out of context and just for the sake of taking some argument, when statute itself was clear and company operating in international environment was generally expected to be better aware of tax laws. 4. This court has gone through the adversarial submissions, it is found that the Ld. Commissioner (Appeals) has given his relevant findings which are contained in para 5.1-6 of his order reproduced below: "5.1 Before I take up the issue, it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "9. Place of provision of specified services. The place of provision of following services shall be the location of the service provider:- (a) Services provided by a banking company, or a financial institution, or a non- banking financial company, to account holders; (b) Online information and database access or retrieval services (c) Intermediary services; (d) Service consisting of hiring of all means of transport other than, (i) aircrafts, and (ii) vessels except yachts, upto a period of one month 5.2 Now, coming to the main plea that in the present case there has been export of service in terms of Rule 3 of the Place Of Provision(POP) Rules, 2012. I observe that the adjudicating authority had rightly pointed out that Rule 3 is applied in case when none of the other Rules apply. Thus, if a service is not covered by an exception under one of the later rules (Rule 4 to Rule 12 of POP Rules) then only it will be covered under default rule i.e Rule 3, wherein the receiver's location will determine whether the service is levaïble to tax in the taxable territory. But in the present case, the appellant has provided the service of 'intermediary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... och Membrane, USA through the intermediary which in this case was the appellant, same as discussed by the Commissioner in order, cited above, cannot be treated as "Export of Services‟. Secondly, this court is also not impressed by the argument advanced by the appellants that they having provided technical services and technical promotional quality design installation, commissioning and testing services to clients of Koch Membrane Systems, USA in India, such services were not covered as intermediary services prior to amendment of 2014 in Section 2(f) as they prior to the period of Notification 14/2014 dated 01.10.2014 were only dealing with the goods and prior to amendment vide above notification for the impugned period i.e. July 2012 to September 2014 they were not providing service in relation to services but only in relation to the goods. This position is untenable as is evident from the agreement and has been rightly pointed out by the Commissioner (Appeals) in the impugned order, the amendment had no effect as they were providing services as an intermediary between Koch Membrane Systems, USA and their client in India. The same were clearly covered as intermediary services ..... X X X X Extracts X X X X X X X X Extracts X X X X
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