TaxTMI 
TaxTMI 
2025 (5) TMI 1898
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....cts, attending pre-production meetings, tracking shipments etc; the appellants treated the services rendered by them as export of service and had not paid any service tax. Revenue, on conducting an investigation, entertained an opinion that the services provided being in India, in terms of Place of Provision of Service Rules, 2012, cannot be treated as an export. Accordingly, a show cause notice dated 22.10.2021, proposing to demand service tax of Rs. 5,93,92,952/- along with interest and penalty, covering the period April 2016 to June 2017, was issued to the appellants. The proposals in the show cause notice were confirmed, vide OIO dated 30.03.2022, passed by Commissioner, CGST, Gurgaon. Hence, this appeal. 2. Shri B.L. Narasimhan, learned Counsel for the appellants, submits that the impugned order has travelled beyond the show cause notice, inasmuch as, whereas the show cause notice proposed to deny the credit of export on the grounds that the services are provided in India at its office or place of the vendor and therefore in terms of Rule 4 of POPS, cannot be treated as export, learned Commissioner confirms the demand on the ground that the place of provision of services is....
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....ich cannot be performed without the physical presence of the goods; in the impugned case, no services are performed in respect of the goods and therefore, Rule 4(a) of POPS Rules has no applicability. He relies on Medgenome Labs Ltd - 2023 (73) GSTL 586. Learned Counsel would submit that Rule 4(b) of POPS Rules is also not applicable as it pre-supposes the physical presence of the recipient or the person acting in his behalf; Education Guide, dated 20.06.2012 issued by CBEC, clarifies that the services like plastic surgery, beauty parlour, health and fitness are covered under this Rule; in the instant case, the recipient of the service is WECA HK who are present in Hongkong and not in India and therefore, Rule 4(b) is also not applicable; he relies on All India Haj Umrah Tour Organizer Association Mumbai - 2022 (63) GSTL 129 (SC). 6. Learned Counsel submits, in addition, that Rule 9 is also not applicable in the instant case; WECA HK is required to identify suitable vendors for their clients; for this they need to have understanding of the goods required by their vendors; to achieve this purpose, they have outsourced the work to the appellants to assessment of production by vend....
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....* Comparex India Pvt. Ltd. - 2021 (47) GSTL 355 (Tri. Del.) maintained by the Hon'ble Supreme Court in 2021 (50) GSTL J9 (SC). * SNQS International Socks Private Limited (Trading Division) v. Commissioner of G.S.T. and Central Excise, Coimbatore Commissionerate, Final Order No. 41059/2023 dated 23.11.2023 [affirmed by the Hon'ble Supreme Court in 2024 (388) E.L.T. 530 (SC)] * M/s. Chevron Phillips Chemicals India Pvt. Ltd. v. Commissioner of Central Tax & Central Excise, Navi Mumbai, Final Order No. A/86318/2022 dated 20.12.2022 [affirmed by the Hon'ble Supreme Court in 2024 (388) E.L.T. 135 (SC)] * Infodesk India Pvt. Ltd. v. The Union of India & Ors., 2025-TIOL-118-HC-AHM-GST * Boks Business Services Pvt. Ltd. v. Commissioner of Central Goods and Services Tax Delhi South and Anr., 2023 (78) G.S.T.L. 393 (Del.) * Xilinx India Technology Services Pvt. Ltd. v. The Special Commissioner Zone VIII & Anr., 2023 (78) G.S.T.L. 24 (Del.) * M/s. Saxo India Private Limited v. Commissioner of Central Excise and Service Tax, Gurugram and Commissioner of Central Excise and Service Tax, Gurugram v. M/s Saxo India Private Limited, Fina....
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....GST, Gurgaon-ll v. Orange Business Solutions Pvt. Ltd., 2019 (27) G.S.T.L. 523 (Tri. - Chan.) 8. Learned Counsel further submits that the appellants do not fall under the inclusive definition of the "Intermediary" and therefore, there is no need to look into the fact whether they are excluded from the definition; the appellant provided the main service on their own account to WECA HK on principal to principal basis; the appellants do not create any liability or obligate in any manner the principals and they are not facilitating any service between the principals and their customers i.e the third parties. He relies on the following cases: * Genpact India Pvt. Ltd. (supra) * Genpact India Pvt. Ltd. v. Principal Commissioner of GST and Cx, Gurugram and Another, 2023 (77) G.S.T.L. 512 (P&H) * M/s. Ohmi Industries Asia Pvt. Ltd. v. Assistant Commissioner, CGST, 2023 (75) G.S. T. L. 26 (Del.) * M/s. Airbnb India Pvt. Ltd. v. Commissioner of Central Goods and Service Tax, Gurugram, Final Order No. 60352/2025 dated 04.03.2025 (Tri.- Chan.) * M/s. Airbnb Payments India Private Limited v. CCE&ST, Final Order Nos. 60505-60506/2024 dated 04.09.20....
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....on 67 (2) of the Finance Act, 1994 and in that case, demand would be Rs.5,16,72,112/-. 11. Learned Counsel for the appellants submits that the impugned order confirms the demand under extended period on the grounds that the appellants have suppressed the intermediary services rendered by them to WECA HK with intent to evade payment of duty and that the true nature of the service could only be found on detailed examination of the books of accounts of the appellant as the relevant facts were not disclosed to the Department at any stage prior to investigation. Learned Counsel submits that the appellants had a bona fide belief that the services rendered by them qualified as exports and were not of an intermediary in nature. Revenue has not pointed out any positive act on the part of the appellants to allege suppression of facts etc. with intent to evade payment of tax. He relies on the following cases and submits that for this reason, interest and penalty are also not payable: * M/s. Avery India Ltd. v. CCE&ST, Patna, Final Order No. 75014/2024 dated 09.01.2024 (Tri.-Kol.) * M/s. Sunrise Immigration Consultants Pvt. Ltd. v. CCE&ST, 2018-TIOL-1849-CESTAT-CHD ....
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....une 2017. * As the issue involves interpretation of legal provisions, extended period cannot be invoked. 14. We find that in addition to procedural violations and legal incursions, by the adjudicating authority, as pointed out by the learned Counsel for the appellants, the entire case of the adjudicating authority rests on the surmise that the appellants are an intermediary between WECA HK and their customers and as such, they are intermediary in terms of Rule 9 of POPS Rules. We find that the appellants have entered into two agreements in the year 2015 and in the year 2017 with WECA HK; under these agreements, the appellants provided support services to WECA HK in market research for potential vendors in India, reviewing purchase orders, verifying sample products, attending pre-production meetings, tracking shipment status etc. The appellants submit that they have no agreement with the customers of their principals i.e. WECA HK and the agreement between the appellant and WECA HK are on principal-to-principal basis. In order to see the status of the appellants vis-à-vis WECA HK, it will be beneficial to have a look at the terms of the contract/ agreement. ....
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....iving from it, are personal and cannot be assigned or transferred in whole or in part, by either party to any third party whatsoever, except with the prior written consent of the other party. 15. On going through the terms of the Agreement, we find that the Agreement is between two principals. There is nothing in the agreements even to remotely indicate that the appellants are agents of WECA HK. The Revenue also did not come up with any evidence in the form of tripartite agreements between the appellants, their principal WECA HK and their vendors. In view of the same, it is difficult to accept that the appellants are agents/ brokers of WECA HK so as to be covered under Rule 9 of POPS Rules. We find that this Bench in the case of M/s Oceanic Consultants Pvt. Ltd, vide Final Order No.60469/2024 dated 06.08.2024 held as follows : 14. We find that Circular No.159/15/2021-GST dated 20.09.2021 issued by CBIC envisages that in respect of Intermediary Services, there should be a minimum of three parties and two distinct supplies i.e. main supply and ancillary supply; it also clarifies that a person involved in supply of main supply on principal-to-principal basis to another per....