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TMI Blog2025 (3) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... Order of the lower authority. Hence, this appeal. 3. Learned Counsel for the appellants submits that brief question involved in the case is whether the Promotional and Marketing Support Services to their overseas entity qualify as exports or whether they are Intermediary Services. Learned Counsel takes us through various Paras of the Agreement and submits that the Appellate Authority confirmed the demand only on the basis that the appellant interacts with the clients of M/s Airbnb, Ireland in setting up new client accounts on M/s Airbnb online market place & in resolution of client queries and the appellant promotes and markets the M/s Airbnb online market place to prospective users, hosts, guests and associated hospitality providers. Learned Counsel submits that the Master Service Agreement clearly shows that there are only two parties to the Contract and the appellant is providing services to its overseas entity on its own account; it is clearly mentioned in the Agreement that the Agreement is on principal-to-principal basis and the appellant (the service provider) is not an agent of M/s Airbnb, Ireland; therefore, the nature of services provided are not intermediary in nature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvertible foreign exchange, the proof of which is submitted by the appellant in the form of FIRCs; there is no requirement that the same should be certified by an Auditor; 7. The learned Counsel relies on the following to supplement his argument that the appellants are not an Intermediary: * Genpact India (P) Ltd. -2023 (68) GSTL 3 (P&H) * Black Rock Services India Pvt. Ltd. -Appeal No. 61877 of 2018. * SNQS International Sock Private Limited -(Service Tax Appeal No.41459 of 2019] [Civil Appeal No.1431 of 2024] * Infodesk India Pvt. Ltd. -2025-VIL-28-GUJ * Chevron Philips Chemicals India Pvt. Ltd. -2019 (12) TMI 1066-CESTAT Mumbai [Civil Appeal No.4370 of 2024] 8. Learned Counsel further submits that the appellant filed a refund claim under Rule 5 of the CENVAT Credit Rules, 1994 read with Notification No.27/2012 dated 18.06.2012; Revenue cannot raise the question of applicability of CENVAT credit while deciding the refund. In case the Revenue was of the opinion that some credit was taken wrongly, proceedings under Rule 14 could have been initiated. He relies on Black Rock Services India Pvt. Ltd. (supra) and JFE Steel India Pvt. Ltd. - 2021 (44) GSTL 299 (Tri. Chan.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Commissioner (Appeals) goes through the definition of intermediary services and the CBIC circular and finds as follows. 7. From perusal of the Master Service Agreement, I observe that there is an interaction of this appellant with the third-party i.e. the clients of Airbnb Ireland as the agreement clearly specifies that one of the services offered by the appellant would be to help in setting up new client accounts on Airbnb Online Marketplace and helps in resolving client queries. Further the appellant evidently promotes and markets the Airbnb Online Marketplace to prospective users, hosts, guests and associated hospitality providers in the Territory, with the objectives of (1) having such users, hosts, guests and associated hospitality providers register with Airbnb Ireland online and use their online accounts efficiently, and (2) expanding the scope of offerings available through the Airbnb Online Marketplace The appellant has claimed before me that they do not interact with any client of Airbnb Ireland, does not appear to be true. The appellant interface as well as resolves the queries of third parties/prospective clients/hosts/guests in order to get their bookings through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rates the Airbnb Platform, which enables people to list, discover, and book accommodations around the world on both desktops and mobiles devices. The Airbnb Platform allows Guests to connect with Hosts. The ingredients of an intermediary are visibly present in the master service agreement as the appellant interface as well as resolves the queries of third parties/ prospective clients/hosts/guests in order to get their bookings through online marketplace portal of their overseas holding company. I am therefore entirely in agreement with the views of the adjudicating authority that the services offered under the service agreement certainly fall under the definition of intermediary as there are three entities involved in the whole process, the clients, the appellant and their overseas entity i.e. Airbnb Ireland. 12. It appears that the original authority and the appellate authority base their conclusions on the point that find that the appellant has a bare minimum number of employees; the appellant has merely arranged for services to their masters procuring from others; Airbnb platform connects the hosts and the users and Airbnb India promotes the same; the appellants have no say in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performance of the Services, charges for depreciation and amortization of equipment and other capital assets used in performing the Services), plus (ii) a mark-up where deemed appropriate by the parties. Costs and markup will be determined in accordance with applicable transfer pricing regulations and be computed with reference to Service Provider's financial statements, prepared in accordance with U.S. generally accepted accounting principles. It is the intent of the parties to provide Service Provider with an arm's length return for providing the Services to Airbnb Ireland. Accordingly, the parties may adjust the mark-up(s) from time to time, as they deem appropriate. * 1.4 Limitations on Appointment. (a) Airbnb Ireland has sole authority to agree to prices in relation to the Airbnb Online Marketplace, to amend specifications for the Airbnb Online Marketplace, to agree and finalise service terms and conditions and credit terms, and to conclude, accept or reject any online registrations. (b) Service Provider may not accept any orders in its own name or on behalf of Airbnb Ireland or User. (c) Service Provider has no authority to make any agreement on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubcontracting. Service Provider shall not subcontract or otherwise delegate any of its obligations under this Agreement without Airbnb Ireland's express prior written consent on a case-by-case basis. Upon receipt of such consent, Service Provider may subcontract the Services or any portion of the Services to any person or entity which has all of the necessary technical expertise and qualifications to provide the Services contemplated herein. Upon request by Airbnb Ireland, Service Provider shall provide verification of said technical expertise and qualifications. Before allowing any subcontractor to begin performing services, Service Provider shall enter into a binding written agreement with such subcontractor that protects Airbnb Ireland's rights and interests to at least the same degree as this Agreement. Service Provider shall be responsible for the direction and coordination of the services of each subcontractor. Airbnb Ireland shall have no obligation to pay any subcontractor. Airbnb Ireland's consent to a subcontractor shall not in any way relieve Service Provider of any duty or responsibility under this Agreement and Service Provider shall remain primarily obligated for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning, investment planning, creating and designing content, identification of media owners, dealing with media owners, procuring media space, etc. and basically acts like a one stop solution to the client. 16. One of the reasons given by the impugned order for denying refund was that the Appellant has not provided the original agreement and have also not provided the agreement between client and Airbnb Ireland. We find that it is unfair on the part of the Revenue to make an allegation and expect the appellant to disprove the same. The onus to prove the allegation is on the department who is making the allegations. We find that Tribunal held in the case of M/s Blackrock Services India Pvt Ltd. (supra) wherein also the appellant did not have any contract with the customers of overseas client, that it has to be substantiated by the Department. 17. Learned Counsel for the appellants submits that for the Financial Years 2020-21 and 2021-22, the refund with respect to export of services has been sanctioned in the GST regime; the said orders have not been challenged by the GST Department and have thus, attained finality; the Revenue cannot take a different stand for the year 2017-18. He ..... X X X X Extracts X X X X X X X X Extracts X X X X
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