TMI Blog2019 (10) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... third parties for which as per Rule 6(a) of Export of Services that stipulates under sub-rule (1)(d) that the Place of Provision of Service is to be outside India to bring the activities into the purview of Export but Rule 9 of the Place of Provision of Services Rules, 2012 stipulates under sub-clause (c) that in case of intermediary service, the location of service provider since been in India, such service rendered by agent to the principal cannot be treated as export of services for which refund was not admissible. From the Seafarer recruitment agreement executed between the parties, it is abundantly clear that first party to the agreement i.e. employer is an intermediary between the principal (third party but not a signatory to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati, Member (J) Ms. Rebecca Pinto and Shri Rushabh Gandhi, Advocates, for the Appellant. Shri Saikrishna Hatangadi, Asst. Commissioner (AR), for the Respondent. ORDER Denial of refund to the appellant against its claim for benefits of export services on the ground that appellant was providing intermediary services and not manpower recruitment/supply agency services which as per Rule 9 of POPS Rules, 2012 (Place of Provision of Service) is not export of services and there was no nexus between input and output activities has been assailed in this appeal. 2. Learned Counsel for the appellant argued that primarily basing on the word agent available in the agreement between the appellant and its foreign client and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) is required to be set aside. 3. Learned Authorised Representative for the respondent Department, in response to such submissions had supported the reasoning and rationality of the order passed by the Commissioner (Appeals) and argued that though in both previous orders of the authorities below, the services rendered by the appellant were held as manpower recruitment services, on inadmissibility of Cenvat credits, orders went in favour of Revenue against which appellant had not put forth any defence for which he seeks no interference by the Tribunal in the order passed by the Commissioner (Appeals). 4. Heard from both the sides at the length and perused the case record. The ground of rejection cited by the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the Commissioner (Appeals) that the first party i.e. employer is the principal under whom the appellant had worked as an agent is erroneous. Admittedly payments were received from the first party i.e./employer who has its office in Singapore and such payment has been made in convertible foreign exchange, which remains undisputed. Therefore, appellant cannot be treated as an intermediary of the first party when the agreement indicates that it is the vice versa. Further, as has been held by Hon ble Delhi High Court in the case of Indian Association of Tour Operators v. Union of India [W.P. (C) No. 5267 of 2013] [2017 (5) G.S.T.L. 4 (Del.)], Export is different from non-taxable event and unrelated to POPS which deals clearly with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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