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2019 (6) TMI 271 - AT - Service TaxRefund of accumulated CENVAT credit - Export of services or not - POPOS Rules - Intermediary services or not - Bundled services or not - Whether the Services provided by the claimant to Globecast, located outside in respect of Broadcast of “Russia Today” channel in India is export of service or otherwise? - Rule 5 of CENVAT Credit Rules, 2004 - HELD THAT:- In the present case the Channel Carriage for which Channel Carriage Fees is paid by GlobeCast, to Channel Distribution Partner through claimant is the main service which has been provided by the Channel Distribution Partner and not the claimant who has acted only to mediate the provision of service by the Channel Distribution Partner to GlobeCast. This service has in no manner been provided by the claimant to the GlobeCast. In our view the services of mediation of this nature are covered by the term “intermediary” as defined by Rule 2(f) of the Place Of Provision of Services Rules, 2012. Since these services are covered by the term intermediary, in term of Rule 9 ibid, the place of provision of these services will be the location of the service provider that is in India. Hence these services cannot be considered as export of service as per Rule 6A of Service Tax Rules, 1994. In terms of 6A(1)(d) for a service to qualify as export of service the place of provision service should be outside India. Since in the present case these services have been provided in India as per Place of Provision of Services Rules, 2012 they cannot be termed as export of services. Intermediary services or not? - HELD THAT:- In the present case the except for routing the payment through LAMHAS, who have entered into the Channel Distribution Agreement with Channel Distribution Partners, the services of Channel Carriage were provided by the Channel Distribution Partners to TV-NOVOSTI directly. Hence the services provided by the LAMHAS in this respect qualify as “intermediary services”. Bundled services or not - HELD THAT:- The present case is not a case of bundled services, naturally bundled, but is case of providing services which as per the contract itself are not bundled together and hence needs to be examined on its own. In the present case the “Channel Carriage Service” is in no way provided by the claimant on his own account, and hence is an intermediary service. Thus the “Channel Carriage Fees” which is towards the Channel Carriage by Channel Distribution Partners cannot be added to the export turnover for determination of the refund of accumulated CENVAT Credit in terms of Rule 5 of the CENVAT Credit Rules, 2004. However the charges recovered as “Lamhas Professional Fee” and “Lamhas Service Fees” which are towards the services provided by Claimant to Globecast on their own account will continue to be part of the Export Turnover of the claimant - refund is to be allowed. The matter remanded back to the original authority for redetermination of the amount of refund as per Rule 5 of CENVAT Credit Rules, 2004 - appeal allowed by way of remand.
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