2025 (5) TMI 1371 - AT - Service Tax

Place of Supply - Intermediary services related to goods - Design and development services - Business support services - Place of Provisions of Services Rules 2012 ( POPS) - Export of service or not - HELD THAT - In relation to the intermediary services in relation to goods for the period from 01.04.2014 to 30.09.2014 the definition of the term Intermediary under Rule 2(f) of the POPS Rules 2012 has changed. Going through the amendments in the definition of the term intermediary and relying upon the judgments in the cases of Chevron Phillips Chemicals India Pvt. Ltd. 2019 (12) TMI 1066 - CESTAT MUMBAI and Viavi Solutions India Pvt. Ltd. 2024 (6) TMI 187 - CESTAT CHANDIGARH I hold that intermediary services in relation to goods became taxable with effect from 01.10.2014 by virtue of amendment in the definition of the term intermediary in Rule 2(f) of the POPS Rules 2012 vide Notification No.14/2014-ST dated 11.11.2014 with effect from 01.10.2014. In relation to design and development services looking at the process of providing these services and the fact that no third party is involved I further hold that the Appellant is not providing Intermediary Services and place of provision shall be the location of recipient of service which is outside India. Since all the clauses of Rule 6A of the Service Tax Rules are satisfied design services will be considered as export of service. So far as invoking of extended period of limitation audit of the Appellant was concluded on 30.01.2020; the Appellant already furnished the details of design and intermediary services provided during the years 2014-15 to 2016-17; the Appellant voluntary obtained service tax registration with effect from 01.10.2014 and started paying service tax on intermediary services; hence I do not find any ingredient of suppression of facts or any willful misstatement or fraud or collusion or contravention of the provisions of the Act or of the Rules made thereunder with an intent to evade payment of service tax. Demand set aside.

Summary

The core legal questions considered by the Tribunal in this appeal are as follows:

(1) Whether service tax was payable on intermediary services related to goods provided by the appellant prior to 01.10.2014;

(2) Whether the design and development services supplied by the appellant to an overseas buyer constitute export of service and are thus not taxable under service tax;

(3) Whether the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994, could be invoked for demanding service tax from the appellant for the disputed period.

Issue 1: Taxability of Intermediary Services Related to Goods Prior to 01.10.2014

The relevant legal framework centers on the definition of "intermediary" under Rule 2(f) of the Place of Provision of Services Rules, 2012 (POPS Rules), as amended by Notification No. 14/2014-ST dated 11.07.2014, effective from 01.10.2014. Prior to this amendment, the definition of "intermediary" included only those who arranged or facilitated provision of services, excluding goods. Post amendment, the definition was expanded to include intermediaries in relation to goods as well.

Pre-amendment, the place of provision of intermediary services in relation to goods was considered to be the location of the recipient of service, which in the appellant's case was outside India, thereby qualifying such services as export of services and exempt from service tax. The appellant voluntarily registered for service tax from 01.10.2014 onwards and paid tax accordingly.

The Tribunal relied heavily on precedents such as the decision in Chevron Phillips Chemicals India Pvt. Ltd., where it was held that intermediary services related to goods prior to 01.10.2014 were not taxable as the definition did not cover goods. The Tribunal emphasized the exclusion of intermediaries in respect of goods from the definition prior to the amendment, as supported by the Education Guide issued by the CBEC, which explicitly excluded commission agents and similar intermediaries in relation to goods from intermediary services for the relevant period.

The Court interpreted these provisions to conclude that the demand of service tax on intermediary services in relation to goods for the period 01.04.2014 to 30.09.2014 was unsustainable. The appellant's services during this period were rightly classified as export of services, not subject to service tax.

Competing arguments from the revenue, which sought to tax these services, were rejected on the basis that the statutory definition and place of provision rules did not support such taxation prior to the amendment.

Issue 2: Taxability and Export Status of Design and Development Services

The appellant provided design and development services to foreign customers, involving receipt of broad product descriptions, creation of designs via computer software, and manufacture and dispatch of sample products. The appellant contended that these were principal-to-principal services and not intermediary services, as there was no third party involved, no facilitation or brokerage, and the appellant supplied the services on its own account.

The Tribunal examined the nature of these services and distinguished them from intermediary services, which require a broker or agent facilitating between two parties. The appellant's role was direct provision of services to the foreign buyer.

Relevant legal provisions include Rule 3 of the POPS Rules, which states that the place of provision of services like design and development is the location of the recipient. Since the recipient was outside India, the services qualified as export of services under Rule 6A of the Service Tax Rules, 1994, provided all conditions therein were met.

The Tribunal also relied on authoritative precedents such as Verizon India Pvt. Ltd., where similar business auxiliary services rendered directly to foreign clients were held not to be intermediary services, but principal services qualifying as export of service.

Circular No. 159/15/2021-GST issued by CBIC was cited to clarify the scope of intermediary services, reinforcing the appellant's position.

The Tribunal concluded that the design and development services were export of services and not taxable under service tax, setting aside the demand made by the revenue.

Issue 3: Invoking Extended Period of Limitation

The revenue invoked the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994, for recovery of service tax, alleging suppression of facts and evasion of tax by the appellant. The appellant countered that the audit of its business affairs had been completed on 30.01.2020, with full disclosure and payment of additional service tax as detected by the audit team. It argued that there was no willful misstatement, fraud, or suppression warranting extended limitation.

Judicial precedents were relied upon, including Anand Nishikawa Co. Ltd. (SC), Tamil Nadu Housing Board (SC), Bharathi Cement Corporation (CESTAT-Hyd.), and Khoday Glass Company (CESTAT-Bang.), which establish that the extended period of limitation can only be invoked where there is clear evidence of suppression or intent to evade tax, not mere failure to pay tax.

The Tribunal found no ingredient of suppression or evasion in the appellant's conduct. The appellant had voluntarily registered and paid service tax from 01.10.2014 and had cooperated with the audit. Therefore, the invocation of the extended period of limitation was held to be improper, and the demand based on it was set aside.

Additional Issue: Penalty Imposition under Sections 77 and 78 of the Finance Act, 1994

Since the Tribunal found no willful suppression or intent to evade tax, it also set aside penalties imposed under Sections 77 and 78, which penalize failure to pay tax and suppression of facts with intent to evade tax, as not justified in the facts of the case.

Significant Holdings:

"Intermediary services in relation to goods became taxable with effect from 01.10.2014 by virtue of amendment in the definition of the term 'intermediary' in Rule 2(f) of the Place of Provision of Services Rules, 2012 vide Notification No.14/2014-ST dated 11.07.2014."

"Hence, I set aside the imposition of service tax on services provided from 01.04.2014 to 30.09.2014, which were of the nature of 'export of services' at the relevant time, and not taxable."

"Looking at the process of providing these services and the fact that no third party is involved, I further hold that the Appellant is not providing 'Intermediary Services', and place of provision shall be the location of recipient of service, which is outside India."

"Since all the clauses of Rule 6A of the Service Tax Rules are satisfied, design services will be considered as export of service."

"I do not find any ingredient of suppression of facts or any willful misstatement or fraud or collusion or contravention of the provisions of the Act or of the Rules made thereunder with an intent to evade payment of service tax."

"Relying upon the judgments ... I hold that the extended period of limitation cannot be invoked in the present case."

"Since, I also do not find any element of suppression of facts or any willful misstatement with an intent to evade payment of service tax, I find it appropriate to set-aside the penalties imposed under Sections 77 and 78."

"In the result, the impugned order is set aside and the appeal filed by the Appellant is allowed with consequential relief, if any, as per law."