TaxTMI 
TaxTMI 
2023 (7) TMI 719
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....e Commissioner (Appeals) rejecting the respondent's appeal against an Order-in-Original dated 31.08.2020 passed by the Adjudicating Authority. 3. By the said Order-in-Original dated 31.08.2020, the Adjudicating Authority had rejected the respondent's claim for refund of Rs.8,55,34,345/- on account of unutilised CENVAT Credit for three mentioned periods, that is, (i) April to June 2012; (ii) April to June 2013, and (iii) July 2013 to September 2013. 4. The respondent (hereafter 'BlackBerry India') was registered with the Department for payment of service tax in respect of Business Auxiliary Services provided by it. BlackBerry India had filed claims for refund of unutilised CENVAT Credit amounting to Rs.8,55,34,345/-. The said Credit was accumulated on account of various input services such as security services, manpower services, sponsorship services, legal consultancy services etc., which were utilized by BlackBerry India for providing output services - Business Auxiliary Services. BlackBerry India claimed that its output services were exported to its overseas client. A Tabular statement indicating the claims filed by the respondent is set out below: " Sl. No. ....
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....udicating Authority held that for the period prior to 01.07.2012, the benefit of export services was covered under Rule 3 of the Export of Service Rules, 2005 and the same did not extend to services covered under Section 65(105)(zzb) of the Act. Consequently, BlackBerry India's claim for CENVAT Credit for the period prior to 01.07.2012 was not tenable. 10. Aggrieved by the Order-in-Original dated 31.08.2020, BlackBerry India preferred an appeal before the Appellate Authority. However, the said appeal was rejected by the Appellate Authority as it found no infirmity with the Order-in-Original dated 31.08.2020 passed by the Adjudicating Authority. 11. Aggrieved by the same, BlackBerry India preferred an appeal before the learned CESTAT. 12. The principal controversy required to be addressed by the learned CESTAT was whether BlackBerry India is an intermediary within the definition of Rule 2(f) of the Place of Provision of Services Rules, 2012. Thus, in terms of Rule 9 of the Place of Provision of Services Rules, 2012, even though the service recipient (BlackBerry Singapore) was located outside India, the place of provision of services would be where the service provider is lo....
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.... and the appellant. The arrangement between the appellant and Blackberry Singapore is on a principal-to-principal basis. Further, the appellant does not have any authority to represent or bind Blackberry Singapore, which further supports the fact that the appellant is not an agent of Blackberry Singapore and, therefore, is not an intermediary; (iii) The appellant is not engaged in facilitating any supply between Blackberry Singapore and its Customers. The Agreement is only between the appellant and Blackberry Singapore wherein the appellant is providing the aforesaid services to Blackberry Singapore. The customers of Blackberry Singapore are not a part of the contract and the appellant at no point in time is involved in providing any service to the customers of Blackberry Singapore. The appellant does not even have any knowledge about the final customers of Blackberry Singapore; (iv) The appellant receives consideration on a Cost-Plus basis. The consideration is not dependent on the sale made by the Blackberry Singapore to their customers; and (v) The appellant raises invoices on Blackberry Singapore for the services provided by it in US dollars and Black....
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....e 2(f) of Place of Provision of Service Rules, 2012 issued vide Notification No. 28/2012-S.T., dated 20-06-2012 was as follows: "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 own account." 3. Primary Requirements for Intermediary services The concept of intermediary services, as defined above, requires some basic prerequisites, which are discussed below: 3.1 Minimum of Three Parties: By definition, an intermediary is someone who arranges or facilitates the supplies of goods or services or securities between two or more persons. It is thus a natural corollary that the arrangement requires a minimum of three parties, two of them transacting in the supply of goods or services or securities (the main supply) and one arranging or facilitating (the ancillary supply) the said main supply. An activity between only two parties can, therefore, NOT be considered as an intermediary service. A....