TaxTMI 
TaxTMI 
2025 (5) TMI 1820
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....fund claims of accumulated cenvt credit under Rule 5 of the Cenvat Credit Rules, 2004 (CCR, 2004, for short) on export of their taxable output services following the procedure laid down under Notification No.27/2012-CE(NT) dated 18.06.2012. The refund claims were rejected by the original authority. Aggrieved by the said order, they filed appeals before the learned Commissioner(Appeals) who vide Orders-in-Appeal No.1351-1361/2016 and Orders-in-Appeal No.542 to 550/2018 dated 25.05.2018 remanded the matter to the adjudicating authority for fresh decision. In the de novo proceedings, the adjudicating authority again rejected the refund claims holding that the services rendered by the appellant are in the nature of intermediary service; hence the place of provision of service as per Rule 9(c) is the place of service provider i.e. India; hence, appellant failed to satisfy condition (d) of Rule 6A(1) of the Service Tax Rules, 1994 and hence, service rendered by the appellant cannot be considered as an export of service. Aggrieved by the said order, the appellant approached the lerned Commissioner(Appeals) who upheld the rejection of the refund claims. Hence the present appeals. 3. At ....
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....) 15 Centax 103 (SC) • SNQS International Socks Pvt. Ltd. v. Commissioner of GST and Central Excise, Coimbatore (2024) 16 Centax 412 (Tri.-Mad.) affirmed by the Supreme Court in (2024) 16 Centax 413 (SC) • Blackberry India Pvt. Ltd. v. Commissioner (2023) 10 Centax 236 (Tri. - Del.) affirmed by Delhi High Court in (2023) 9 Centax 113 (Del.) • Genpact India (P.) Ltd. v. Union of India (2022) 1 Centax 226 (P&H) read with (2023) 9 Centax 398 (P&H) wherein the Respondents affirmed that as per the letter dated 08.05.2023 issued by CBIC, the respondents have decided not to file SLP against the said judgment reported in (2022) 1 Centax 226 (P&H) • Commissioner of Central Tax, Bengaluru East v. Informatica Business Solutions Pvt. Ltd. in Final Order 21125/2024 dated 18 November 2024 in ST/20390/2019 4. Learned AR for the Revenue has reiterated the findings of the learned Commissioner(Appeals). 5. Heard both sides and perused the records. 6. The short question involved in the present appeals for consideration is whether the appellant are entitled to refund of the accumulated credit on export of the services under Rule 5 of the Cen....
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....er party. 9. A plain reading of the said services rendered by the appellant to the overseas company, it cannot be construed that the appellant rendered service in the nature of 'intermediary service' if the clarficatiory circular issued by the Board bearing No.159/13/2021-GST dated 20.09.2021 is considered though it is issued in the context of GST, but the concept has been borrowed from the definition of Rule 2 of the POPS Rules, 2012. The said circular has been considered by the Tribunal in the case of CCT, Bengaluru East Vs. Informatica Business Solutions Pvt. Ltd. [ST/20390/2019 - Final Order No.21125/2024 dated 18.11.2024], and following the precedents on the issue the Tribunal held as under: "10. We find that recently Board has issued a circular bearing No.159/15/2021-GST dated 20.09.2021 clarifying who should be considered as an 'intermediary' in the context of GST, which is borrowed from the definition of Rule 2(f) of the POPS Rules, 2012. The said circular has been noted in various judgments of this Tribunal and which are referred in the case of Commissioner of CG&ST &CE, Delhi South Vs. Grant Thornton Advisory Pvt. Ltd. [2024(10) TMI 147 - CESTAT NEW DELHI]. Th....
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....s, he gets commission which is covered under Business Auxiliary Service which is not the main service provided by the main service providers namely banks/university. As the appellant did not arrange or facilitate main service i.e. education or loan rendered by colleges/banks. In that circumstances, the appellant cannot be called as intermediary." (emphasis supplied) 18. The definition of 'intermediary services' in section 2(13) of the Integrated Goods and Service Tax Act, 2017 is pari-materia with the definition of 'intermediary services' in rule 2 (f) of the 2012 Rules. The meaning of 'intermediary services' has been considered by the Punjab and Haryana High Court in Genpact India Pvt. Ltd. vs. Union of India [2023 (68) GSTL 3 (P&H)]. The issue that arose for consideration before the High Court was whether the services rendered by the petitioner under the agreement could be treated as 'intermediary services' under the provisions of the IGST Act. The observations of the High Court are as follows: "28. As per definition of "intermediary" under Section 2(13) of the IGST Act the following three conditions must be satisfied for a person to qualify as an "intermedia....
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....the definition of "intermediary" both under Rule 2(f) of the Place of Provision of Service Rules, 2012 and under Section 2(13) of the IGST Act clearly states that there is broadly no change in the scope of "intermediary" services in the GST regime vis-a-vis the service tax regime except addition of supply of securities in the definition of "intermediary" in the GST law." (emphasis supplied) 19. The Delhi High Court in Ernst and Young vs. Additional Commissioner, CGST, Delhi [2023 (73) GSTL 161] also considered whether the services claimed were actually exported and convertible foreign exchange was received by the party in lieu of the said export of services. The observations of the High Court are as follows: "33. In terms of sub-section (8) of Section 13 of the IGST Act, the place of supply of certain services would be the location of the supplier of the services. In terms of clause (b) of sub-section (8) of Section 13 of the IGST Act, the place of supply of intermediary services is the location of the supplier of services. In the present case, the place of supply of services has been held to be in India on the basis that the petitioner is providing intermediar....
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....ement between the appellant and the foreign university the services were delivered outside India as the recipient of service is the foreign universities who are located outside India and the benefit of service rendered by the appellant also accrued outside India, coupled with the fact that the appellant received the payment against the services in convertible foreign exchange and the appellant and the recipient of service are independent legal identities and are not merely establishment of distinct person. It is thus evident that the appellant met the criteria under Rule 6A(1) of the ST Rules and therefore being "export of service" was not amenable to service tax. 17. We may now consider the stand of the department that the services rendered by the appellant has to be treated as "intermediary services" defined under Rule 2(f) of the Rules, 2012. From the definition of "intermediary services", we find that activity between two parties cannot be considered as an intermediate service as intermediary essentially arranges or facilitates the main supply between two or more persons, which is not the case here. Further, the definition of intermediary service excludes any person wh....
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....stomer and not the third party. For example, when a florist delivers a bouquet on your request to your friend for which you make the payment, as far as the florist is concerned you are the customer and not your friend." 23. The aforesaid discussion leads to the inevitable conclusion that Grant Thornton, India is not an 'intermediary' and that the services provided by it to Grant Thornton, London are 'export of services'. 11. The basic requirement to be an intermediary is that there should be at least three parties; an intermediary is someone who arranges or facilitates the supply of goods or services or securities between two or more persons. In other words, there is main supply and the role of the intermediary is to arrange or facilitate another supply between two or more other persons and, does not himself provide the main supply. The present case is more or less similar to the Illustration 4 of the said Circular dated 20.09.2021, which is reproduced below:- Illustration 4 'A' is a manufacturer and supplier of computers based in USA and supplies its goods all over the world. As a part of this supply, 'A' is also required to prov....