TMI Blog2019 (5) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... oviding of back office process outsourcing should be treated as intermediary - the respondent is not providing any intermediary service, therefore, no service tax is payable by the respondent. Appeal dismissed - decided against Revenue. - Appeal No.ST/60579/2018-Cu (DB) with ST/60337/2018 - Final Order No.60543/2019 - Dated:- 5-4-2019 - Mr. Ashok Jindal, Member (Judicial) And Mr. C.L. Mahar, Member (Technical) Present for the Appellant: Shri G.M. Sharma, AR Present for the Respondent: Sh. Sujit Gosh and Ms. Mannat, Advocates ORDER PER. AHSOK JINDAL The Revenue is in appeal against the impugned order. 2. The facts of the case are that the respondent filed refund claims for the quarters July, 2012 to September, 2016 in terms of Notification No.27/2012-CE (NT) dt.18.6.2012 for unutilized Cenvat credit availed on input services used in providing taxable service of the nature of Business Auxiliary Service exported to its client located outside India. The refund claims sanctioned by the Assistant Commissioner of Service Tax, Gurgaon. Against the said order, the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order and provided the case law in support of his submission. 6. Heard the parties and considered the submissions. 7. We find that the respondent has provided the agreement in question and relevant clauses of the said agreement which is reproduced below:- We Orange Business Services India Solution Private Limited (OBSISPL) (Formerly known as Equant Solutions India Private Limited) had attended a personal hearing in relation to the captioned appeal on 28th September, 2017 along with our legal representatives. During the course of our hearing, we reiterated the submissions filed on 12 July,2017, and explained the services performed by OBSISPL along with a reasoning as to why such services do not qualify as an intermediary. The services under consideration are provided by OBSISPL in accordance with a service agreement dt.18.9.2006 entered with Equant Network Services International Limited (ENSIL) located at Ireland. Further, during the hearing proceedings, we were asked by your good self to share the principal agreement with customers pursuant to which the services are being provided by OBSISPL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and other related back office support services including: i. Computer Network Implementation Management ii. Customer Network Management iii. Equipment order processing iv. Network Monitoring and Fault Management Services b. Contract Software development including design, coding and unit testing, system testing and ongoing maintenance of applications. c. Any other related services as may be mutually agreed between the parties. 4. The internal arrangement among Orange Group is such that the administration is done through ENSIL, whereby the GCSC execute a contract with ENSIL for proviso of services. The consideration for such services is also paid by ENSIL. 5. The above facts are depicted below in a flowchart diagrammatically: Considering the above facts, it is evident that role of OBSISPL is to provide services for Oranges Group entities and has no privy contract with any customer of Orange Group entities. This is akin to any services provided by a call centre providing the main services of business process outsour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore the benefit of export services is not available to them. 9. We find that CBEC by Guidance Note on 20.6.2012 has the clarified the meaning of intermediary as under:- Para 5.9.6 what are intermediary services? Generally, an intermediary is a person who arranges or facilitates a supply of goods, or a provision of service, or both, between persons, without material alteration or further processing. Thus, an intermediary is involved with two supplies at any one time: The supply between the principal and the third party; and The supply of his own service (agency service) to his principal, for which a fee or commission is usually charged. For the purpose of this Rule, an intermediary in respect of goods (such as commission agent i.e. buying or selling agent or a stockholder) is excluded by definition. Also excluded from this sub- Rule is a person who arranges or facilitates a provision of a service (referred to in the Rule as the main service ), but provides the main service on his own account. In order to determine whether a person is acting as an intermediary or not, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before us and arguments adduced before us, we find that the activity of computer networking is networking service which is an application running at the network application layer and above, that provides data storage, manipulation, presentation, communication or other capability which is often implemented using a client-server or peer-to-architecture based on application layer network protocols. 12. In view of the above, we do not find any arrangement or facilitation of the main service between two parties by a third person under the category of computer networking services. 13. We further find that the mandate from the group involves various companies more than two. So it is delivered to third entity on the direction of one M/s. Equant Network Services International Limited (ENSIL) and they act as intermediary. The appellant are processing equipment supply order s including liaison/coordination , so the liaison/coordination is also equivalent to solicitation and is more near to intermediary nature that the act of solicitation. Each mandate where there are two or more than two companies are involved would not automatically by termed as intermedia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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