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2022 (3) TMI 1258 - CESTAT BANGALORERefund of unutilised CENVAT credit paid - input services used for providing the output services exported during the impugned period - whether the authorities below are justified in treating the appellant as an “intermediary” and consequently justified in rejecting the refund claim of the appellant? - Rule 5 of the CENVAT Credit Rules 2004 read with Notification No.27/2012-CE (NT) dt. 18/06/2012 - HELD THAT:- It is quite clear from the very definition itself, that there should be at least two or more persons, excluding broker agent or any other person by whatever name called. The agreement which is referred to by the lower authorities whereby the appellant was obliged to provide Management and Technical Services to the company, is clearly between the appellant and the company alone with no third person anywhere figuring in it. It is the basic document which binds both the appellant as well as the company which also defines scope of services and hence, the necessary implication is that the Management and Technical Services which are provided by the appellant are only to the company which is located outside India. There is no allegation that the appellant was involved in any way, either in purchase or sale of goods or even in the collection of sale proceeds from the customers of the company. By this alone, it can be safely concluded that the appellant is not acting as an agent or a middleman for anyone, and hence, is not covered by the mischief of the definition of ‘intermediary’ and consequently, Rule 9 of POP. Hence, the same cannot be held that there is no export of services under Rule 6A ibid. The authorities below have grossly misconstrued the relevant provisions to deny the valid refund claims of the appellant and hence, the order of Commissioner (Appeals) cannot sustain and hence, the same is set aside. Learned Chandigarh Bench of CESTAT in MACQUARIE GLOBAL SERVICES PVT LTD VERSUS COMMISSIONER OF CE & ST, GURGAON-I [2021 (12) TMI 481 - CESTAT CHANDIGARH] has analysed the scope of ‘intermediary service’ and it was held that In the present case, the appellants are providing services to their parent company at Japan and they did not involve in any manner in the activity of negotiation for sale and purchase of goods in India or collection of sale proceeds from customers on behalf of the parent company, hence cannot be called as an ‘intermediary’ and, accordingly, do not fall under Rule 9(c) of the Place of Provisions of Service Rules, 2012. The appeals are allowed.
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