2025 (4) TMI 8 - AT - Service Tax

Classification of services - commission received by the appellant as an intermediary service - export of services or not - demand only from October 2014 onwards - HELD THAT - The Commissioner (Appeals) having observed that the appellant is only facilitating the sale of goods between foreign sellers and Indian buyers; and his services are in the nature of business facilitator cannot confirm the demand as an intermediary service since there are large number of decisions wherein it has been held that the Scope of an intermediary is to mediate between two parties i.e. the principal service provider (the 3rd party) and the beneficiary (the agents principal) who receives the main service and expressly excludes any person who provides such main service on his own account. In the instance case there is no dispute that the appellant had received the commission from the customer located outside India in convertible foreign exchange for facilitating sale of goods between foreign seller and any India buyer. Therefore the services rendered by him is only export of service. This Tribunal in the case of M/s. Textron India Private Limited 2024 (12) TMI 1546 - CESTAT BANGALORE observed that Grant Thornton India is not an intermediary and that the services provided by it to Grant Thornton London are export of services . Conclusion - The services rendered by the appellants are not intermediary services but only export of service. The impugned order is set aside - appeal allowed.

ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment are:

Whether the services provided by the appellant qualify as "intermediary services" under the relevant tax laws.
Whether the services provided by the appellant qualify as "export of services" and are thus exempt from service tax.
The applicability of the extended period of limitation for demanding service tax.
The correctness of the demand for service tax on services rendered to Special Economic Zone (SEZ) units.

ISSUE-WISE DETAILED ANALYSIS

1. Classification of Services as Intermediary Services

Relevant Legal Framework and Precedents: The definition of "intermediary services" under Rule 2(f) of the Place of Provision of Service Rules, 2012, and Section 2(13) of the Integrated Goods and Service Tax Act, 2017, were considered. The Tribunal referenced multiple precedents, including cases like Grant Thornton Advisory Pvt. Ltd., Sunrise Immigration Consultants, and Genpact India Pvt. Ltd., to elucidate the definition and scope of intermediary services.
Court's Interpretation and Reasoning: The Tribunal observed that an intermediary must mediate between two parties and not provide the main service on their own account. The appellant facilitated the sale of goods between foreign sellers and Indian buyers and received commissions from foreign entities, indicating the provision of services on its own account.
Key Evidence and Findings: The Tribunal found that the appellant received commissions in convertible foreign exchange for facilitating sales, which aligns with the characteristics of export services rather than intermediary services.
Application of Law to Facts: The Tribunal applied the legal definitions and precedents to conclude that the appellant's activities did not constitute intermediary services since they were providing services on their own account.
Treatment of Competing Arguments: The respondent's argument that the appellant's services were intermediary was rejected based on the lack of a principal-agent relationship and the nature of the services rendered.
Conclusions: The Tribunal concluded that the appellant's services were not intermediary services but rather export services.

2. Classification of Services as Export of Services

Relevant Legal Framework and Precedents: The Tribunal referenced Rule 6A of the Service Tax Rules, 1994, and Section 2(6) of the IGST Act, which define "export of services." Precedents from cases like Ernst and Young vs. Additional Commissioner and Medway Educational Consultant P. Ltd. were considered.
Court's Interpretation and Reasoning: The Tribunal emphasized that for a service to qualify as an export, the recipient must be located outside India, and the payment must be received in convertible foreign exchange.
Key Evidence and Findings: It was established that the appellant received payment in foreign currency, and the service recipient was located outside India, fulfilling the criteria for export of services.
Application of Law to Facts: The Tribunal applied the legal definitions and found that the appellant's services met the criteria for export of services, thus exempting them from service tax.
Treatment of Competing Arguments: The respondent's position that the services were not exports was dismissed due to the clear evidence of foreign exchange receipt and service provision to foreign entities.
Conclusions: The Tribunal concluded that the appellant's services were export services and not subject to service tax.

3. Applicability of Extended Period of Limitation

Relevant Legal Framework: The extended period of limitation under the service tax law can be invoked in cases of fraud, collusion, willful misstatement, suppression of facts, or contravention of any provisions with intent to evade payment of service tax.
Court's Interpretation and Reasoning: The Tribunal did not find sufficient grounds to justify the invocation of the extended period of limitation, given the nature of the services and the evidence presented.
Conclusions: The demand based on the extended period of limitation was not upheld.

4. Demand for Service Tax on Services to SEZ Units

Relevant Legal Framework: Services provided to SEZ units are generally exempt from service tax, subject to compliance with specific documentation requirements.
Court's Interpretation and Reasoning: The Commissioner (Appeals) had already set aside the demand related to SEZ services due to the appellant's failure to file necessary documents, which was not contested further.
Conclusions: The Tribunal upheld the decision to set aside the demand related to SEZ services.

SIGNIFICANT HOLDINGS

Preserve Verbatim Quotes of Crucial Legal Reasoning: The Tribunal noted, "The services rendered by the appellants are not intermediary services but only export of service; the demand is set aside."
Core Principles Established: The Tribunal reinforced the principle that services provided on one's own account, with the recipient located outside India and payment received in foreign currency, qualify as export services and are exempt from service tax.
Final Determinations on Each Issue: The Tribunal set aside the demand for service tax on the grounds that the appellant's services were export services. The appeal was allowed, and the impugned order was overturned.

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