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2019 (10) TMI 1324 - AT - Service TaxRefund of service Tax - export of services or not - POPOS Rules - denial on the ground that appellant was providing intermediary services and not manpower recruitment/supply agency services which as per Rule 9 of POPS Rules, 2012 (Place of Provision of Service) is not export of services and there was no nexus between input and output activities. HELD THAT:- The ground of rejection cited by the Commissioner (Appeals) is that the content of agreement reveals that appellant was an agent of employer (intermediary) engaged for the purpose of providing Seafarer recruitment service to third parties for which as per Rule 6(a) of Export of Services that stipulates under sub-rule (1)(d) that the Place of Provision of Service is to be outside India to bring the activities into the purview of Export but Rule 9 of the Place of Provision of Services Rules, 2012 stipulates under sub-clause (c) that in case of intermediary service, the location of service provider since been in India, such service rendered by agent to the principal cannot be treated as export of services for which refund was not admissible. From the Seafarer recruitment agreement executed between the parties, it is abundantly clear that first party to the agreement i.e. employer is an intermediary between the principal (third party but not a signatory to the agreement) and the appellant who is, as per sub-clause (a) is in the business of Seafarer recruitment service duly licensed to provide Seafarer recruitment service to third party. This being the status of the appellant as referred in the agreement, the findings of the Commissioner (Appeals) that the first party i.e. employer is the principal under whom the appellant had worked as an agent is erroneous. Admittedly payments were received from the first party i.e./employer who has its office in Singapore and such payment has been made in convertible foreign exchange, which remains undisputed. Therefore, appellant cannot be treated as an intermediary of the first party when the agreement indicates that it is the vice versa. In view of Circular No. 120/01/2010-S.T., dated 19th January, 2010 issued by the Board which clarified that no correlation or nexus is required to be established between input service and export and since credits were validly taken by the appellant, refund cannot be rejected on the ground that there was no nexus between input and output services without any findings on its adverse impact on the quality and efficiency of the provision of services exported. Appeal allowed - appellant is entitled to get refund of ₹ 11,45,551/- with interest as per Section 11BB of the Central Excise Act, 1944 from the respondent department - decided in favor of appellant.
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