TMI Blog2020 (1) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... greement which as whole described as Ship Management service. Interpreting one of the said services particularly Agency Services , the learned Commissioner (Appeals) has concluded that the relation between the appellant service provider and the overseas service recipient are not on principal to principal basis but as a principal and agent which falls within the scope of intermediary as defined under Rule 2(f) of POPS Rules, 2012, hence not an export service. This issue has been considered by the Tribunal in the case of M/S SEASPAN CREW MANAGEMENT INDIA PVT. LTD. VERSUS COMMISSIONER OF CGST, MUMBAI [ 2019 (5) TMI 1813 - CESTAT MUMBAI] where M/s Seaspan Crew Management Pvt. Ltd. were supplying the manpower to their overseas associate company Seaspan Canada. The allegation of the Department was that the services provided by Seaspan India to Seaspan Canada as an intermediary, hence the services rendered cannot qualify as export services, consequently, refund under Rule 5 of the CENVAT Credit Rules, 2004 is not admissible to them - This Tribunal in more or less similar circumstances held that the service provided by the assessee in the said case was not an intermediary service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the appellants are primarily engaged in providing Ship Management and Crew Management Services to their associate company Torm Bermuda for which they have entered into an agreement dated 1.4.2013 with Torm Bermuda. The appellants were primarily required to provide the following services: - a. Supervising marine operations. b. Liasoning for transportation, training, accommodation while in transit, welfare amenities for officer and crew c. coordinating medical test of all the crew members of ship in accordance with appropriate flag state requirements d. Assist in safety, quality and environment service, i.e. to provide consultancy on how to manage and maintain the vessels, quality and environment management e. Organize for briefing to seafarers and its customers before joining the ship f. Arrange for travelling of seafarers while signing on and signing off the ship g. Assist in vetting service as and when required and other incidental or ancillary activities in relation to ship management service. h. Providing navigational support to vessels in Indian territorial waters i. Ensuring compliance of vessel with requirements of the law of Flag State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le is not as an agent or facilitator but a provider of service. It is their contention that if the services are provided by a service provider on his own account, he cannot be considered as an intermediary. He referred to the judgment in the case of Firstrand Service Pvt. Ltd. Vs. Commissioner of CGST 2019 (2) TMI 579 (Mum) . It is his submission that the very first condition of the definition of Intermediary is not fulfilled in their case. They have further submitted that they have been allowed refund of accumulated CENVAT Credit for the earlier period, therefore, denying the refund claim on the same set of facts and circumstances without any change in law, for the subsequent period, is bad in law. Hence, the appellants are entitled to refund claims for the subsequent period also. The appellant also referred to the judgment of this Tribunal in the case of Chevron Phillips Chemicals India Pvt. Ltd. Vs. Commissioner (Appeals) of CGST 2019 (12) TMI 1066-CESTAT Mumbai and Sunrise Immigration Consultants Pvt. Ltd. Vs. CCE ST 2018 (5) TMI 1417 CESTAT, Chandigarh. 5. Per contra, the learned AR for the Revenue reiterated the findings of the learned Commissioner (Appeals). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f goods, between two or more persons, but does not include a person who provides the main service on his account. 9. Since the Commissioner (Appeals) mainly focused on the Agency Service as mentioned in clause 3.2 of the agreement dated 1.4.2003 the same is placed below which reads as follows:- When required, Ship Manager will provide the agency services which shall include the following services; (i) Appointment of agents; (ii) Recording the expenses incurred (disbursement account) by the agents appointed for the particular vessel; (iii) Making the payment of disbursement accounts of agents; and (iv) Providing such other services as may be necessary to the effective operation of the Vessel. 10. From scope of the said agency services rendered by the appellant to their overseas associate company, it is clear that they were required to appoint agent, the recording of expenses incurred by the agents appointed for a particular vessel, making payment to disbursement account of the agent and providing such services as may be necessary to the effective operation of the vessels cannot make them ipso facto an intermediary. In their submission, the learned Advocate fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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