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2023 (4) TMI 1074 - CESTAT MUMBAIRefund of Service Tax paid on input services - appellant performs the role of intermediary for the overseas service receiver - place of provision of services - export of services or not - HELD THAT:- The relationship between the appellant and the overseas entities are that of Principal to Principal, and there is no otherwise relationship namely joint venture, partnership or agencies. It is not the case of revenue that the appellant had failed to export the taxable output service or failed to receive the payment for such services in convertible foreign exchange. Thus, the condition of Rule 6A (1) ibid have been fulfilled by the appellant for consideration of the disputed services as export of service for the purpose of grant of benefit of refund provided under the Rule 5 ibid read with notification issued thereunder. Further, it is also found that the concept of ‘intermediary’ appearing in the Rule 2(f) of the POPS Rules, 2012 has been dealt with by the CBIC under the GST regime. The concept of ‘intermediary’ appearing in the Rule 2(f) of the POPS Rules, 2012 has been dealt with by the CBIC under the GST regime by Circular No. 159/15/2021-GST dated 20.09.2021 - though the said circular was issued under the GST regime but for the purpose of consideration of such phrase under the service tax regime, it should apply mutatis mutandis - the said circular has been issued on the basis of representations received, citing ambiguity caused in interpretation of the term ‘Intermediary services’, and after examination of the difficulties faced by the trade and industry, the said circular was issued, with a view to ensure uniformity in the implementation of the provision of the law across field formations. In an identical case, this Tribunal in the case of M/S. BLACK ROCK SERVICES INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CGST, COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX GURGAON, HARYANA [2022 (8) TMI 874 - CESTAT CHANDIGARH] has defined the true meaning and purpose of the phrase intermediary holding that the appellant therein cannot be considered as an intermediary and accordingly, allowed the benefit of refund provided under Rule 5 ibid. - Rather, the contract referred in the case is the sub-contracting agreement for the services being provided by the appellant to overseas entity as the main contractor and thus, under no stretch of imagination, it can be held that the appellant is an agent or intermediary, engaged for facilitating business of overseas entity. There are no merit in the impugned order, in so far as it has upheld the rejection of refund benefit to the appellant. Therefore, by setting aside impugned order, the appeal is allowed in favour of the appellant.
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