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2019 (12) TMI 1066 - AT - Service TaxCash refund of accumulated CENVAT Credit - ‘intermediary services’ - Rule 2(f) - export service or not - providing taxable output services namely, Business Auxiliary Service viz. marketing and sale promotion of chemicals to their overseas counterpart M/s Chevron Philips Chemicals Global FZE (CPC Global) - POPOS rules - credit denied alleging that the service provided by the appellant is not an ‘export service’ since they acted as an ‘intermediary’ defined under Rule 2(f) of the Place of Provision of Services Rules, 2012 (POPS Rules in short), consequently as per Rule 9 of the said Rule the service provider is deemed to be situated in India, hence there can be no export. HELD THAT:- The appellant by an agreement with overseas company CPC Global agreed to provide service of sales promotion of the chemicals in the territory specified in the said agreement. The detailed of services required to be rendered in connection with sales promotion in defined territory are stated under the clause (3) of the said agreement. A plain reading of the same reveals that it is an agreement between the Appellant and the CPC Global and no mention of rendering of service to the clients of CPC Global or any other third party. For rendering such services, the appellants are entitled to commission stipulated under clause (5) of the agreement - It is the contention of the appellant that they did not act as an intermediary between the CPC Global and any other person while rendering the service of promotion of sale of the goods in the defined territory. The Appellant are neither concerned the fixation of selling price of the goods and their role is an independent contracting as stipulated under clause (10) of the said agreement. There is merit in the contention of the appellant that since ‘goods’ was not covered under the scope of definition of ‘intermediary’, therefore, for the period prior to 1.10.2014 confirmation of demand is bad in law. I find that the definition of intermediary cannot be made applicable to sale of goods for the period prior to 01.10.2014 in view of the principle law laid down by the Tribunal in CRODA INDIA COMPANY PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX-VII MUMBAI [2019 (5) TMI 1139 - CESTAT MUMBAI]. Period after 1.10.2014 - HELD THAT:- On merit also, the appellant cannot be called as an ‘intermediary’. On a simple reading of the agreement analyzed as above, it is clear that the appellants are appointed by their overseas counterpart CPC Global for sales promotion of the goods for their client in the defined territory. The appellant has no role in fixation of price nor they negotiate in any manner between CPC Global and their clients relating to sales promotion of the goods sold - Therefore, the appellant cannot be called as an intermediary. consequenlty, fall outside the amended definition of ‘intermediary’ under Rule 2(f) and Rule 9 of the POPS Rules, 2012. Denial of credit on various input services - HELD THAT:- The finding of the learned Commissioner (Appeals) that it is not an ‘input service’ is contrary to the principles of law laid down by this Tribunal in various judgments as submitted by the Advocate for the Appellant. No contrary decision has placed by the Revenue. Therefore, on this count also the order of the learned Commissioner (Appeals) is unsustainable. Appeal allowed - decided in favor of appellant.
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