TaxTMI 
TaxTMI 
2022 (12) TMI 723
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....er, 2015 to December, 2016 and for the period of January, 2017 to June, 2017, respectively. Factual Context 2. The controversy, in the present petition, relates to the petitioner's claims for unutilised input tax credit relating to three separate periods: July, 2015 to September, 2015; October, 2015 to December, 2016; and January, 2017 to June, 2017. 3. The petitioner is, inter alia, engaged in providing telecommunication services and claims that a part of its services are exported. The petitioner claims that export of services are zero rated, and the input tax credit available to it remained unutilised. The petitioner applied for a refund of input tax credit for an amount of Rs.1,32,70,532/- for the period July, 2015 to September, 2015. 4. The adjudicating authority (the Assistant Commissioner) examined the said claim and had found that the petitioner was engaged in the export of services and therefore, was entitled to refund of the unutilised input tax credit in relation to the said services. The petitioner's claim was duly verified and the learned Assistant Commissioner held that a refund of a sum of Rs.1,32,70,532/- was found due to the petitioner. The said amount w....
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.... by the learned Commissioner (Appeals), before the learned CESTAT. 11. The petitioner's claim for refund of input tax credit against export services for the period January, 2017 to June, 2017 met the same fate as the petitioner's claim for the October, 2015 to December, 2016 period. The adjudicating authority declined the said claim and accordingly, passed an order dated 23.07.2019. By an order dated 01.11.2019, the learned Commissioner (Appeals) allowed petitioner's appeal against the said order. 12. The Revenue appealed the said decision before the learned CESTAT. 13. The learned CESTAT had disposed of the appeals preferred by the Revenue for the aforementioned three periods by a common order dated 07.12.2022. The learned CESTAT held that the petitioner was not an intermediary and was, inter alia, engaged in the export of telecommunications services. The relevant extract of the said order reads as under: - '23. In the present case, what transpires from the aforesaid Agreement dated 14.07.2011 is that SingTel is a licensed telecommunication service provider in Singapore. It, on its own or through one or more of its affiliates or suppliers, has the capability to p....
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....e Agreement also specifically provides that the relationship of the parties to the Agreement shall always and only be that of independent contractors and nothing shall create or be deemed to create a partnership or the relationship of principal and agent or employer and employee between the parties. The terms of the Agreement also perse do not create any relationship of principal and agent or employer and employee. An agent is a person employed to do any act for another or to represent another in dealing with third persons. The persons for whom such act is done, or who is so represented, is the principal. A broker is a middleman or an agent who, for a commission on the value of the transaction, negotiates for others the purchase or sale of stocks, bonds, commodities, or a property. These two situations do not arise in the present case. 25. An intermediary is a person who arranges or facilitates provision of the main service between two or more persons. SGIPL is not involved in the arrangement or facilitation of the supply of service. In fact, it has entered into two Agreements; one with SingTel and the other with the Indian telecommunication service providers. It needs to ....
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.... ACST [2018(8) GSTL 32 (Del)] and intermediary essentially excludes any person who has provided the service on their own account. The matter heavily relied upon the above said judgment but they did not appreciated the fact that the said order is pending before the Hon'ble Supreme Court of India and the same has not attained its finality till date. In other words, it is sub- judice and the decision of Hon'ble High Court cannot be considered as conformity of the issue in this scenario, rely on such case could not be framed in the instant case 9.4 Further, I have also peruse the said case of Verizon Communication India Pvt Ltd: and it is observed that the Judgment taken chronically from the previous provision prior to July 2012 but after w.e.f 01.07.2012 there is no specific discussion was made in respect of Rule 6A of the Service Tax Rules, 1994, as amended and Place of Provision of Service Rules, 2012, as amended The chronological point comes to in conclusive stage but when came to w.e.f 01.07 2012 there is only observation noted after perusal of Para 22 Para 30, Para 32 Para 46 to Para 49 as already noted provision of telecommunication services does not ha....