9911796707
TMI Blog2025 (2) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 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. The appellants were facilitating and arranging for the services between the buyers of Koch Membrane, and Koch Membrane Systems, USA who was otherwise required to provide such services in India. Such services were very much within the ambit of Notification No. 28/2012-ST dated 20.06.2012 even prior to the amendment carried out by Notification No. 14/2014-ST dated 11.07.2014 which only widened the scope to include even those intermediaries which arrange for supply of goods between two or more persons which term would include importing of goods on behalf of the main producer or client or between two or more persons and therefore, would include those intermediaries or brokers or agents who act from the point of importation to the point of consumption and supply of goods which is not the case in this instance as only installation and designing and such other services in India were provided were being provided in relation to and for Koch Membrane Systems, USA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 within the ambit of the service. He draws attention to Rule 2 of Clause (f) which after substitution (w.e.f. 01.10.2014) reads as follows: "(f) "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;‟ Prior to this as per Notification No. 28/2012-ST dated 28.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole 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 would be proper to refer to the definition of intermediary as defined in Rule 2(f) of the Place Of Provision of Service Rules (POP),2012 reads as follows [From July 2012 to September 2014]: "(f) "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) between two or more persons, but does not include a person who provides the main service on his account.;" As per the contract dt 08.02.2011 made be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept 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' which is one of the specified services under Rule 9, thus the service has to be treated as provided from the location of the service provider, which in this case is located in the taxable territory and therefore, liable to pay service tax. Thus, I find that Rule 9 shall prevail over Rule 3 for the purpose of determining taxability. Moreover, in the present case, condition (d) of Rule 6A of Service Tax Rules, 1994 has not been fulfilled as the place of provision of service is within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 even prior to amendment. It is clear from the facts of the matter read with terms of the contract especially the object clause that the appellants were not acting on principal to principal basis in relation to goods but only as intermediary on behalf of Koch Membrane, USA. The appellants were facilitating and arranging for the services between the buyers of Koch Membrane, and Koch Membrane Systems, USA who was otherwise required to provide such services in India. Such servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
