Intermediary services and export of services test failed, so refund of unutilised CENVAT credit was denied.

Marketing and technical support arrangements with a foreign company were treated as intermediary services because the appellant collected and analysed market data, liaised with customers, received orders, assisted in collection of sale proceeds, and supported product promotion on the company's behalf. Applying Rule 2(f) and Rule 9 of the Place of Provision of Services Rules, 2012, the place of provision was the service provider's location, so the activity did not qualify as export of services under Rule 3 of the Export of Service Rules, 2012. Refund of unutilised CENVAT credit under Rule 5 of the CENVAT Credit Rules, 2004 was therefore not admissible.

---

---

Issues: Whether the appellant was an intermediary under the Place of Provision of Services Rules, 2012 and, if so, whether the services were export of services so as to entitle the appellant to refund of unutilised CENVAT credit under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 27/2012-CE(NT) dated 18/06/2012.

Analysis: The agreement required the appellant to provide marketing support and technical support to the foreign company by collecting and analysing market data, liaising with customers, receiving orders on behalf of the company, assisting in collection of sale proceeds, supporting product promotion, and providing technical advice and assistance to customers on behalf of the company. On this reading of the contractual clauses and the supporting record, the services were not treated as independent export services rendered to the foreign entity outside India. The appellant was held to be facilitating the provision of the foreign company's services to Indian customers, which brought the activity within the definition of intermediary under Rule 2(f) of the Place of Provision of Services Rules, 2012. By Rule 9 of those Rules, the place of provision in intermediary services is the location of the service provider. The claim therefore failed the export test under Rule 3 of the Export of Service Rules, 2012, and the refund was also denied on the service tax rules basis noted in the order.

Conclusion: The appellant was held to be an intermediary and the services were held not to be export of services; the refund claims were not admissible and the appeals were dismissed.

---