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2021 (12) TMI 481 - AT - Service TaxRefund of unutilized CENVAT Credit - Intermediary Services - Rule 9 of the Place of Provision Rules, 2012 - export of services as per Rule 6A of the Service Tax Rules, 1994 - transfer pricing (Softex Form, Transfer Pricing Documents, Form 3 CB, and other related documents and information) - HELD THAT:- A person to be said to be intermediary, there should be two distinct services and three persons involved. The intermediary should be the person who is facilitating the provision between the other two persons. While considering the issue on the ground of “intermediary services” both the authorities have at no stage identified the three persons, and have solely relied upon certain analysis, transfer pricing document prepared by EY, in respect of appellants. Interestingly Commissioner (Appeal) observes “I agree that transfer pricing is sometimes a means adopted by companies to reduce its tax liability. OECD in its report on Developing Capacity in BEPS and Transfer Pricing - TASK FORCE ON TAX & DEVELOPMENT WORK ON BEPS AND TRANSFER PRICING has stated that In Transfer pricing rules raise the question as to whether an "arm’s length" price has been set between the producing, intermediary and selling companies”, however he too do not speaks of the relevance of this document for determination of the issue of “intermediary services” under consideration. The authorized representative has vehemently argued stating that Commissioner (Appeal) has not considered the refund claim and issue on merits and have remanded back the matter to be decided by the original authority for consideration of issue. From the perusal of the decisions which have been referred by the authorized representative, we find that the decisions, were in the case where the appeals have been dismissed by the Commissioner (Appeal) on the ground of limitation or for failure to comply with the requirements of pre-deposit. However from the observations reproduced from the order of Adjudicating Authority and Commissioner (Appeal), it is quite evident that the only issue under consideration by both the authorities was in respect of the “intermediary services”. Appellant has filed this appeal challenging the impugned order claiming that the services provided by them do not qualify as “intermediary services”. To dispel the fears expressed by the learned Authorized Representative, it is made clear that the impugned order and allowing the appeal vis a vis the issue in respect of the “intermediary services” only. Our order should not be construed as allowing the refund claims made by the appellant, which are completely in the jurisdiction of the jurisdictional Assistant/ Deputy Commissioner and need to be examined and decided by him. Appeal allowed - decided in favor of appellant.
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