M/s Firstrand Services Pvt. Ltd. Versus Commissioner of CGST & CX, Mumbai East
Service Tax
2019 (2) TMI 579 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 4-1-2019
Appeal No. ST/88575/2018 – A/85081/2019
Service Tax
DR. D.M. MISRA, MEMBER (JUDICIAL)
Dr. Shrikant Kamat, Advocate for Appellant
Shri S.B. Mane, AC (AR) for Respondent
ORDER
Per: Dr. D.M. Misra
This is an appeal filed against Order-in-Appeal No. MUM/DGPM/WRU/APP-215/17-18 dated 29.05.2018 passed by the Principal Additional Director General, DGPM, WRU, Mumbai.
2. Briefly stated the facts of the case are that the appellants are engaged in providing taxable services under the category of 'Business Support Service' and 'Market Research Agency Service', for which they are registered with the Central Excise Department. Since the services are exported, during the period from April to Sept, 2015, they have filed 7 quarterly refund claims totalling to Rs. 43,09,934/- claiming refund of
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.e. receipt of export proceedings etc. in foreign exchange, he has sanctioned an amount of Rs. 34,58,451/-. He has fairly submitted that the assessee has not filed any appeal against rejection of the claim of Rs. 8,51,483/-. Assailing the impugned order of the learned Commissioner (Appeals), the learned Advocate has submitted that the Commissioner (Appeals) has travelled beyond the grounds on which the order of the adjudicating authority was challenged by the Revenue, hence the order is bad in law. He has submitted that the Revenue has filed appeal against the order of the adjudicating authority on the ground that services provided by the appellants are IT Enabled Services, whereas services rendered by the assessee falls under the scope of Rule 9 of the Place of Provisions of Service Rules, 2012. Hence, there was no export of service. In contrast of the said ground, the learned Commissioner (Appeals) observed that the respondent is an intermediary and the place of provisions of service
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ner (Appeals) submitted that software being 'goods' and the same being developed in India and transferred online to the foreign counterpart, therefore, the place of provision of service is in India, accordingly, no export of service is involved. In support, he has referred to the judgment of the Hon'ble Supreme Court in the case of Tata Consultancy Services Vs. State of Andhra Pradesh – 2004-TIOL-87-SC-CT-LB.
5. Heard both sides and perused the records.
6. The short issue involved in the present appeal for consideration is whether the services rendered by the appellant qualify as an export service within Rule 6A of the Service Tax Rules, 1994 and accordingly eligible for refund of the CENVAT Credit availed on inputs used in providing the taxable output service claimed to have been exported during the period April, 2013 to Sept, 2015. The adjudicating authority has allowed the refund claim holding that the services rendered by the appellant to their counterpart situated outsi
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y 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.”
From the above definition, it is clear that the intermediary is a broker or an agent who arranges or facilities the provision of service between two or more persons, but does not include the person who provides the main service on his account. In the present case, the appellant has directly provided services to the foreign clients and not acted as an intermediate in the provision of development of software and maintenance service. Therefore, the findings and conclusion of the learned Commissioner (Appeals) that the appellant is an intermediary is without any basis and therefore, not sustainable in law. On the other hand, I am of the view that the services rendered by the appellant to the foreign clients squarely fall under Rule 3 of the Place of Provision of Service Rules.
7. The reference of the judgment of the Hon'ble Supreme Court in Tata
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