TaxTMI 
TaxTMI 
2024 (6) TMI 187
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....on ("JDSU USA") on 01.04.2013 ("Agreement") and as per the terms of the Agreement, the Appellant was engaged in the following: (a) Promotion/ Marketing of JDSU USA products by directly liasing with customers and providing demonstration of JDSU USA's products as and when required; (b) Identification of prospective customers (in India) for JDSU USA; (c) Liasing between JDSU USA and prospective channel partners/customers. 3. For the provision of such promotional and marketing activity of JDSU USA's products, the Appellant received a consideration in form of commission from JDSU USA. It is further alleged that during the period from 01.10.2013 to 31.03.2014 (period of dispute), the appellant raised the following invoices on JDSU USA for the services provided under the Agreement: S. No. Name of Recipient Address of Recipient Invoice No. Date of Invoice Value of Invoice (Rs.) 1. JDS Uniphase USA 84904731 31.01.2014 10,11,48,510 2. JDS Uniphase USA 84904732 20.02.2014 17,50,26,867 Total value of Invoice 27,61,75,377 4. The Appellant did not charge Service tax on these invoices si....
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.... information/ documents before the Adjudicating Authority. However, the Adjudicating Authority vide Order-in-Original dated 09.05.2019 again rejected the refund claim filed by the Appellant on the ground that the technical services provided by the Appellant had been performed in India and therefore were covered under Rule 4 of the POPS Rules (Place of Provision of Service Rules 2012). Further, the marketing services which included "Business Auxiliary Services" provided by the Appellant fell under the definition of intermediary services as provided under Rule 2(f) of POPS Rules. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) upheld the Order-in-Original and held that the services provided by the appellant qualified as intermediary and dismissed the appeal of the appellant. Aggrieved by the said order, the appellant has filed the present appeal. 7. Heard both sides and perused the material on record. 8. During the hearing, the Department raised a preliminary objection that the Hon'ble Apex Court, in the case of ITC Ltd. Vs CCE, Calcutta reported 2019 (368) ELT 216 (SC), has held that the refund claim is n....
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....t, 1994 to hold that no appeal could be filed against a self-assessed return because the return is not an order passed by an adjudicating authority. Learned Counsel further submits that the Hon'ble Delhi High Court verdict in BT India Judgment is sub silentio on the issue of permissibility of filing an appeal against a self-assessed return. Learned Counsel further submits that Larger Bench order was passed based on judgments of various High Courts which was not considered in BT (India) judgment. He further submits that the Larger Bench order has been passed in the appellant's own case and after the decision of the Larger Bench, the matter is now listed before the Division Bench for an order on merits of the case. He also submits that the Larger Bench has not been challenged yet in an appeal before the Hon'ble High Court and accordingly, the Larger Bench order continuous to remain binding on the Division Bench of this Tribunal and even the Hon'ble High Court of Delhi has not reversed or even considered the Larger Bench order in the case of BT (India). 12. In reply to this submission on maintainability, learned DR fairly conceded that BT (India) judgment has not considered the....
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....nt was engaged in the development and maintenance of volume of sales of goods of JDSU USA which is acknowledged in Para 7 & 8 of the impugned order passed by the learned Commissioner (Appeals). Thereafter, learned Counsel took us through the Paras 7 & 8 of the impugned order wherein it is observed that the appellant is involved in the business of promotion of selling of goods, providing of warranties on goods and it is also observed that the appellant was involved in dealing with goods and the Adjudicating Authority has rightly held that where goods are involved then Rule 4 of the POPS Rules 2012 are applicable and the said service with respect to goods cannot be treated as export of service. He further submits that in Para 8 of the impugned order, the learned Commissioner (Appeals) has observed that in the instant case, the appellant arranged supply of goods between JDSU Corporation and their customers in India, JDSU India is providing services on his own account. He further submits that in view of this finding of the learned Commissioner (Appeals), the appellant would not fall under the definition of "Intermediary" applicable at the relevant time. Learned Counsel also referred to....
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....ce of the same person. 17. He further submits that in view of the above said criteria, the services provided by the appellant squarely falls within the ambit of export of service because the appellant in view of the agreement as well as the definition of export of service falls in the category of exporter of service. He also submits that the place of provision of service by the appellant to JDSU USA is outside India as per Rule 3 of POPS Rules which provide that the place of provision of services is location of the service recipient. He also submits that the services of the appellant does not fall under Rule 4 to 12 of POPS Rules which provide specific provisions for specified services. In support of his submission, he relied upon the following decisions: Verizon Communication India pvt. Ltd. Vs. Assistant Commissioner, Service Tax, Delhi-III, 2018 (8) G.S.T.L. 32 (Del.) Delhi High Court (relied upon Paul Merchant Decision) Paul Merchants v. CCE, Chandigarh, 2013 (29) STR 257 (Tri-Del) IBM India (P) Ltd. v. CCE, Customs and Service Tax, [2016] 68 taxmann.com 94 (Tri-Bang) Vodafone Essar Cellular Ltd. v CCE., Pune-III, 2013(31) STR 738 (Tri-Mum....
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....at in case the location of the service receiver is not available in the ordinary course of business, the place of provision shall be the location of the provider of service." 21. Further, as per the Agreement dated 01.04.2013 entered into by the appellant and JDSU USA, the appellant is providing following services: a) Promotion/ Marketing of JDSU USA products by directly liasing with customers and providing demonstration of JDSU USA‟s products as and when required; b) Identification of prospective customers (in India) for JDSU USA; c) Liasing between JDSU USA and prospective channel partners/ customers. 22. If we examine the services provided by the appellant as per their Agreement and the provisions of Rule 6A of the Service Tax Rules, we will find that the services provided by the appellant squarely fall within the ambit of export of services because: i. Location of the service provider- The Appellant is located within the taxable territory; ii. Location of the service recipient - The principal place of business of JDSU USA is at 430, North McCarthy Boulevard, Milpitas, CA 95035, USA. In other words, the service recipient i....
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....nal in various decisions stated/ relied upon by the appellant cited supra. 25. Now, coming to the issue of intermediary, it is appropriate to reproduce first the definition of "Intermediary" as provided in Rule 2(f) of the POPS Rules which was applicable before 01.10.2014: "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) between two or more persons, but does not include a person who provides the main service on his account" ( Emphasis Supplied ) 26. The definition of "Intermediary" which was applicable after 01.10.2014 is reproduced below: "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" (Emphasis Supplied) 27. From the perusal of the definition of the "Intermediary" during the period prior to 01.10.2014, it only p....
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....rmediary in respect of sale of goods, but legislature has while framing these rules deemed it fit to exclude the intermediaries in respect of sale of goods from the definition of intermediary. Hence we cannot sustain the view expressed by the Commissioner, contrary to the express definition of intermediary provided by the Place of Provision of Service Rules, 2012. Hence in our view the services provided by the appellant in respect of the sale of goods of associated group companies cannot be said to be services provided by intermediary as defined by said Rules ibid. Since Rule 9 is applicable to specified services and the services provided in this case being not the intermediary services, this Rule will not be applicable for determination of place of provision of service." ( Emphasis supplied ) 28. Further, in the case of Lubrizol Advanced Materials India Pvt. Ltd. v. C.C.E. Belapur, 2019 (22) GSTL 355 (Tri.- Mumbai), the Tribunal has held as under: "6. I find that the Learned Commissioner (Appeals) has denied the benefit of export with effect from 1-10-2014 under the Place of Provision of Services Rules, 2012, holding that the appellant had facilitated supply o....
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....y undertaken by the appellant does not qualify intermediary as defined in Rule 2(f) of Place of Provision of Services Rules, 2012..." ( Emphasis supplied ) 30. In the case of Sunrise Immigration Consulting Private Limited v CCE & ST, Chandigarh 2018-VIL-539-CESTAT-CHD-ST, the Tribunal Chandigarh has held as under: "10. We find that the appellant is nowhere providing services between two or more persons. In fact, the appellant is providing services to their clients namely banks/colleges/university who are paying commission/fees to the appellant. The appellant is only facilitating the aspirant student and introduced them to the college and if these students gets admission to the college, the appellant gets certain commission which is in nature of promoting the business of the college and for referring investors borrow loan from foreign based bank to the people who wishes settled in Canada on that if the deal matures, the appellant is getting certain commission. So the nature of service provided by the appellant is the promotion of business of their client, in terms, he gets commission which is covered under Business Auxiliary Service which is not the main service....