2023 (2) TMI 482

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....fund of unutilised credit under the provisions of Notification No. 27/2012-CE(NT) dated 18.06.2012 issued under Rule 5 of Cenvat Credit Rules, 2004. 2. The issue involved herein is whether the appellants are eligible for the refund of unutilised credit under Rule 5 ibid read with Notification No. 27/2012-CE(NT) dated 18.06.2012 and whether the Place of Provision of Service herein is to be decided under Rule 3 or Rule 4(a) of Place of Provision of Service Rules, 2012? 3. The facts leading to the filing of the appeals are stated in brief as follows. The appellants i.e. M/s Idex India Pvt. Ltd. are into the business of providing taxable services in the categories of Business Support Service, Internet & Telecommunication Services, Informa....

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....on certain aspects which, according to the appellants, were submitted to the department immediately. Thereafter, the Adjudicating Authority vide Order-in-Original dated 31.05.2017 rejected all the five refund claims filed by the appellant on the ground that the services provided by the appellants to their clients cannot be treated as export of service as provided under Rule 6A of the Service Tax Rules and therefore they are not eligible for refund of the Cenvat Credit lying in balance under the provisions of Rule 5 ibid rather they are covered under Rule 4(a) of Place of Provision of Service Rules, 2012(hereinafter referred to as POPS Rules) and the place of provision of service in the instant matter, is the location of the service provider....

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....nt and therefore they cannot be termed as 'intermediary.' He further submits that in case of after sales support service or Engineering Support Service, the services are in respect of providing technical parameters of the product and design and no way make the goods physically available to the appellant i.e. to the service provider. Learned Counsel further submits that the impugned order travels beyond the scope of show cause notice as there were no reference in the show cause notice with respect to after sales support services and Account & Management Reporting Services or Rule 4 of POPS Rules whereas the impugned order relied upon them also while rejecting the refund claim of the appellant and therefore the orders of authorities below are....

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.... provision makes it clear that to attract the said definition there should be two or more persons besides the service provider. In other words an "intermediary" is someone who arranges or facilitates the supplies of goods or services or securities between two or more persons. It is thus necessary that the arrangement requires a minimum of three parties, two of them transacting in the supply of goods or services or securities (main supply) and one arranging or facilitating the said main supply. Therefore, an activity between only two parties cannot be considered as an intermediary service. An intermediary essentially arranges or facilitates the main supply between two or more persons and does not provide the main supply himself. The intermed....

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....um of admissible refund from the accumulated Cenvat Credit. It cannot be considered to be a proceeding for denial of Cenvat Credit available in the account of the claimant and therefore even if the refund is denied, then also the amount continues to remain in the Cenvat account of the claimant. If the Revenue is not in agreement with the claims of the appellants and if, according to Revenue, the services in issue do not fall within the ambit of 'export of service' then the Revenue ought to have initiated the proceedings against the appellants for demanding the Service Tax in respect of taxable service provided by the appellants. Admittedly no such proceedings have been initiated by the Revenue as borne out from the records of the case and t....

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....o carefully gone through the agreements placed on record along with the Appeal and what has been gathered from the perusal of them is that the Appellant can in no way be construed as an agent, representative, servant of Idex holding company nor they have any authority to commit or obligate their holding Company Idex in any manner whatsoever and neither the holding Company is restricted to appoint any other service provider in India nor the appellants is restricted from providing services to any other third parties. Therefore there is no iota of doubt that the Appellant is an independent contractor and not an agent or representative or to be more precise an intermediary. They are providing the service of marketing and market research to the ....