TMI Blog2021 (3) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... the show-cause notice and also on merit, the services rendered by the appellant fall in the definition of Export of Service and the appellant is entitled to refund of the said amount - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 20186 of 2020 - Final Order No. 20092 /2021 - Dated:- 29-3-2021 - SHRI S.S GARG, JUDICIAL MEMBER For the Appellant : Shri HARISH BINDUMADHAVAN, Advocate For the Respondent : Smt. C.V. Savitha, Superintendent(AR) ORDER The present appeal is directed against the impugned order dt. 03/03/2020 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has upheld the Order-in-Original and dismissed the appeal of the appellant. 2. Briefly, the facts of the present case are that the appellant are registered under service tax for providing taxable services falling under the categories of commercial training and coaching, Manpower recruitment agency service and information technology software service and Business Auxilliary service. Appellant filed a refund claim on 26/07/2018 for ₹ 8,47,354/- consequent to passing of Order-in- Appeal No.676/2018 dt. 27/06/2018 by the Commissioner of Central T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id order, appellant filed appeal before the Commissioner(Appeals) who rejected the appeal. hence the present appeal. 3. Heard both sides and perused the records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the first Order-in-Original dt. 16/01/2018 and remand Order-in-Appeal dt. 27/06/2018 and the impugned order have all travelled beyond the show-cause notice which is not permitted by law as settled by the Hon ble Supreme Court in the following decisions:- a. CCE Cus., Surat Vs. Sun Pharmaceuticals Inds. Ltd. [2015(326) ELT 3 (SC)] b. Caprihans India Ltd. Vs. CCE [2015(325) ELT 632 (SC)] c. CC, Mumbai Vs. Toyo Engineering India Ltd. [2006(201) ELT 513 (SC)] He further submitted that the show-cause notice is the foundation of any demand as settled in the case of CCE, Bangalore Vs. Brindavan Beverages (P) Ltd. [2007(213) ELT 487 (SC)] and therefore to divert from the allegations made in the show-cause notice and confirm demands on new grounds is wholly incorrect. He further submitted that the remand Order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t between the appellant and its foreign entity, appellant is compensated for its efforts in the marketing support activity under a cost plus mark-up model of fees and not under a success fee or sales commission model. Further fees of the appellant is not contingent upon fructified sales, as against a typical arrangement of broker / commission agent / intermediary whose revenue is contingent upon the success of marketing activity. He further submitted that mere rendering of marketing and sales support services on principal to principal basis such as customer identification, market analysis and coordination with the customers for meeting with CSG group etc. cannot be construed as arranging provision of intermediary services as contemplated in clause 2(f) of the POPS Rules read with Rule 9 of the said Rules. For this submission, he relied upon the decision in the case of CCE ST, Bangalore Vs. Analog Devices India pvt. Ltd. [2017(12) TMI 830 CESTAT Bangalore] wherein it has been held that appellant are not rendering the intermediary service and they are rendering consulting engineer services and BAS and fall in definition of export. He also submitted that the services provided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice because in the show-cause notice, there is no allegation regarding the intermediary service which has been upheld by both the authorities by ignoring the earlier direction of the remand order passed by the Commissioner(Appeals). The learned counsel cited the decision of the Hon ble Supreme Court in the case of Brindavan Beverages (P) Ltd. and other decisions, wherein it has been consistently held that the show-cause notice is the foundation of any demand and any order passed beyond the show-cause notice is not legally permissible and only on this ground, the impugned order can be set aside and I hold that the impugned order is beyond the show-cause notice and therefore bad in law. Further as far as merit is concerned, even the appellant has proved by referring to Master Service Agreement that the sales marketing and support services provided to its group companies are export of service because the said services have been provided on principal to principal basis and there is no element of principal-agent relationship. Further, I find that the Commissioner(Appeals) has selectively picked up the clauses in the Master Agreement without analyzing the agreement as a whole which is ..... 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