TaxTMI 
TaxTMI 
2025 (7) TMI 2042
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....artly sanctioned the refund and partly rejected their refund claims. On rejection of refund claims, the appellant filed appeals before the Commissioner (Appeals) and the Commissioner (Appeals) in the impugned order upheld the rejection on various grounds. Aggrieved by this order, the appellant is in appeal before us. 3. The Learned Chartered Accountant for the appellant submits that they are into Software Development Services and render Customer Support Service and Marketing and Sale Support Service to Informatica USA. Since, there services fall under export of services, they had filed refund claims under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No.27/2012-CE(NT) dated 18.06.2012. It is submitted that their services do not fall under the definition of 'intermediate services' as held in the impugned order and hence, the question of rejection of refund does not arise. 3.1 The Commissioner (Appeals) has rejected some of the refunds on the ground of nexus and on this issue they rely on the decisions of Deolitte Tax Services India Pvt. Ltd. 2008-TOIL -629 (Tri.), ABB Ltd. Vs. CCE: 2009 (21) STT 77 (Tri.) and KPMG Vs. CCE. New Delhi 2014 (33) STR 96. 4. The lea....
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.... rule 6A of the Service Tax Rules 1994 stand satisfied. Thus, there can be no manner of doubt that the services provided by Grant Thornton, India to Grant Thornton, London would be 'export of services'. 17. This issue was examined by the Tribunal in Sunrise Immigration Consultants Private Limited vs. Commissioner of Central Excise and Service Tax, Chandigarh [2018-TIOL-1849- CESTAT-CHD]. The Tribunal considered whether the assessee would be an 'intermediary' with reference to the services provided to universities, colleges and banks and whether any service tax could be levied. The observations of the Tribunal are as follows: "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 ....
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....at the petitioner has facilitated the services. The said clauses are in relation to the modalities of how the actual work would be carried out and do not in any manner establish that the petitioner was required to arrange/facilitate a 3rd party to render the main service which has actually been rendered by the petitioner. xxxxxxxxxxx 36. In the pre-GST regime the term "intermediary services" was defined under Rule 2(f) of the Place of Provision of Service Rules, 2012. Under the 2012 Rules "intermediary services" were defined to mean 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 on his account. 37. A perusal of the definition of "intermediary" under the service tax regime vis-a-vis the GST regime would show that the definition has remained similar. Even as per circular dated 20-9- 2021 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (GST Policy Wing), the scope of ....
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....] and it was observed: "13. Coming to "export of service" post 1st July, 2012, the basic principle to be seen is who is the recipient of the service, whether the place of provision of service is outside India and the party abroad is deriving benefit from the service in India. The High Court of Delhi in Verizon Communication India Private Limited vs. Assistant Commissioner, ST, Delhi [2018 (8) GSTL 32 (Del.)] observed that the recipient of the service is determined by the contract between the parties and who has the contractual right to receive the service and who is responsible for the payment for the service and the department has lost sight of this essential difference. The High Court of Delhi then considered the decision of the Larger Bench of the Tribunal in Paul Merchants Ltd. vs. CCE, Chandigarh [2012 (12) TMI 424- CESTAT-DEL.-LB], which was rendered with reference to ESR, 2005 where the assessees were intermediary agents, providing money transfer services to foreign travellers, who were the end user on behalf of their principals and the contention of the department that this did not qualify as export of service was rejected referring to the CBEC clarification letter....
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....pra) is right in holding that "The service recipient is the person on whose instructions/orders the service is provided who is obliged to make the payment from the same and whose need is satisfied by the provision of the service." The Court further affirms the following passage in the said judgment in Paul Merchants Ltd. v. CCE, Chandigarh (supra) which correctly explains the legal position: "It is the person who requested for the service is liable to make payment for the same and whose need is satisfied by the provision of service who has to be treated as recipient of the service, not the person or persons affected by the performance of the service. Thus, when the person on whose instructions the services in question had been provided by the agents/subagents in India, who is liable to make payment for these services and who used the service for his business, is located abroad, the destination of the services in question has to be treated abroad. The destination has to be decided on the basis of the place of consumption, not the place of performance of Service." 22. In Vodafone Essar Cellular Ltd. vs. CCE, Pune III [2013 (7) TMI 178 - CESTAT- MUMBAI] the Tribunal ....
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.... of the above, we do not find merit in the appeal filed by the Revenue. Consequently, the impugned order is upheld and the Revenue's appeal being devoid of merit is rejected". In view of the above, the first issue for rejection of refund is devoid of any merit. (ii) The FIRC's are not in order. The Commissioner (Appeals) in the impugned order has recorded that the FIRC's do not bear the specific name of the appellant/exporter who has filed the refund claims. The appellant before us has placed on record some of the FIRC's to claim that they are in order. For the limited purpose of verification of the FIRC's, we remand the matter to the original authority. (iii) Some of the services have no nexus with the input services The impugned order rejects refund claim on the ground that some of the services such as sponsorship service, insurance auxiliary service, event management service etc., have no nexus with the output services. The appellant has submitted that some of the services are required for maintenance of office working space for promoting healthy environment for the employees. We find that the Hon'ble Telangana High Court in the case ....