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2023 (7) TMI 719 - HC - Service TaxRefund of unutilised CENVAT Credit - intermediary services or not - POPOS Rules - export of services - rejection of refund on the ground that the place of provisions of service appeared to be in India as the services rendered by BlackBerry India were as an intermediary - HELD THAT:- It is apparent from the definition of intermediary that an intermediary merely arranges or facilitates provision of services. In the present case, the services rendered by BlackBerry India to BlackBerry Singapore under the Agreement, were not in the nature of facilitating services from another supplier. BlackBerry India, as an independent service provider, was required to render the promotional and marketing services; technical marketing assistance; and other related services. BlackBerry India did not arrange or facilitate these services from another supplier. It is clear from the Circular dated 20.09.2021 that BlackBerry India cannot be considered as an intermediary in the context of the services rendered by it under the Agreement. This Court had also considered a similar question albeit in the context of refund of input tax credit under the Integrated Goods and Services Tax Act, 2017 in M/S. ERNST AND YOUNG LIMITED VERSUS ADDITIONAL COMMISSIONER, CGST APPEALS -II, DELHI AND ANR. [2023 (3) TMI 1117 - DELHI HIGH COURT] where it was held that There is no dispute that the recipient of Services – that is EY Entities – are located outside India. Thus, indisputably, the Services provided by the petitioner would fall within the scope of the definition of the term ‘export of service’ under Section 2(6) of the IGST Act. The conclusion of the Adjudicating Authority that the services covered under Section 165(105)(zzb) of the Act were excluded from the scope of Export of Taxable Services under Rule 3(1) of the Export of Service Rules, 2005 is, plainly, erroneous. The learned CESTAT has rightly concluded that all services except those specifically mentioned in Rule 3(1) of the Export of Services Rules, 2005 are covered within the scope of Export of Taxable Services. The Adjudicating Authority had clearly misread the said Rule. The present petition does not raise any substantial question of law - Appeal dismissed.
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