TaxTMI 
TaxTMI 
2018 (3) TMI 1430
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....xport of Services. The adjudicating authority sanctioned the refund claim but on appeal the Commissioner (Appeals) held that the appellant is providing intermediary services in terms of Rule 2(f) of Place of Provision of Rules, 2012, therefore, as per Rule 9 of the said Rules, location of service provider is the place of provider of service, hence the appellant was required to pay service tax under reverse charge mechanism. Therefore, the appellant cannot claim refund of Cenvat credit lying unutilized in their Cenvat account. Against the said order, the appeal is before us. 3. Ms. Reena Khair, learned Counsel for appellant appeared before us who submitted that as per Rule 2(f) of Place of Provision of Rules, 2012, intermediary services have been defined and the appellant do not qualify the said definition of intermediary, therefore, their services is not covered in terms of Rule 9 of Place of Provision of Rules, 2012 and are not liable to pay service tax. She further submits that the appellant are providing main service to their client Evalueserve, Bermuda and all the services provided by the appellant to Evalueserve Ltd., Bermuda and not to their client directly. It is further ....
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....f the Client. 2.A For the Services provided by the Company on behalf of the Client in relation to inter alia, Business Research (including financial services), Market research and intellectual Property activities during the period from April 1^st, 2015 till September 30^th, 2015, the margin during every month in convertible foreign currency, where the operating expenses are the aggregate of operating, selling distribution, administrative expenses, depreciation, lease rent and amortization, excluding non-recurring expenses, interest and financial charges. 7. Further, as per Rule 2(f) of Place of Provision of Services Rules, 2012 intermediary is defined which is reproduced as under:- "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." 8. Further Rule 9 of Place of Provision of Services Rules, 2012 is also placed on record. For better appreciation, the same is also reproduced below:- 9. The place of....
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....vice. Further, during arguments, applicant drew our attention to one of the illustration given under Paragraph 5.9.6 of the Education Guide, 2012 issued by C.B.E. & C. Relevant portion is extracted as under; Similarly, persons such as call centers, who provide services to their clients by dealing with the customers of the client on the client's behalf, but actually provided these services on their own account', will not be categorized as intermediaries. Applicant relying on above paragraph submitted that call centers, by dealing with customers of their clients, on client's behalf, are providing service to their client on their own account. Similarly, applicant is providing business support service such as marketing and other allied services like oversight of quality of third party customer care centre operated in India and payment processing services, on behalf of GoDaddy US. Therefore, these services provided by the applicant to GoDaddy US cannot be categorized as intermediary or services, as intermediary service. 11. Applicant proposes to provide support services in relation to marketing, branding, offline marketing, oversight of quality of third ....
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....urther, we find that the same Commissioner (Appeals) who has adjudicated these matters has also adjudicated the matter in the case of M/s.LBF Travel India Pvt.Ltd vide OIA No.95/ST/APPEAL-II/MK/GGN/2016 dt.8.7.2016 on an identical issue took contrary view in the appellant's case and observed as under:- "I have gone through the case records and the submissions made by the appellant as well as by the respondent, the appellant had submitted that M/s.LBF Travel India Pvt.Ltd has been asked to carry out such support on behalf of M/s. LBF Travel India Pvt. Ltd. Inc., effectively. The services are being provided by M/s. LBF Travel India Pvt.Ltd. Inc. Hence, the services are qualified as "Intermediary Services". Rule 9 of POPS Rules, 2012 will apply which states that the place of provision of services provided will be the location of service provider. Since the place of provision of services in the taxable territory, hence services do not qualify as export under Rule 6A of the Service Tax Rules, 1994. In view of the above, it is clear that M/s. L BF is providing intermediary services and are not eligible to claim refund of unutilized Cenvat credit. The respondent had submitted th....