TMI Blog2022 (1) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... in India. The appellant is neither related to import of goods nor any sale of goods and also nor concern with the payment against those goods, therefore, it cannot be said that the appellant is an Intermediary as per Rule 2(f) of POPS Rules, 2012. The appellant do not qualify as Intermediary in terms of Rule 2(f) of POPS Rules, 2012, therefore, no demand of service tax sustainable against the appellant - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 61396 of 2018 and Service Tax Appeal No. 60285 of 2018 - FINAL ORDER NO. 60026-60027 /2022 - Dated:- 11-1-2022 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Present for the Appellant: Sh. Monish Panda, Sh. Mrinal Bharat Ram, Advs. Present for the Respondent: Ms. Shivani, Authorized Representative ORDER The appellant is in appeal against the impugned orders wherein demand of service tax has been confirmed against the appellant by holding that the services rendered by the appellant falls under the category of intermediary services as per rule 2(f) of Place Of Provision of Service Rules, 2012 (POPSR), 2012. 2. The facts of the case are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is not associated in arranging any service for the overseas customer but in fact the service for arranging sale of mobile phones through the distributer network, this finding of the Commissioner (Appeal) is based on submission made by the appellant therefore the appellant is in their own submission before commissioner appeal have claimed that they are facilitating in sale of goods by M/s STLH and not facilitating the provision of service by M/s STLH therefore even by their own submission the appellant has become an intermediary for the period after 01.10.2014. In view of this, two show cause notices were issued to the appellant to demand service tax on the premise that the appellant appears to be covered under intermediary as the scope of intermediary which includes any activity that facilitates supply of goods. The matters were adjudicated, the demand of service tax was confirmed along with interest and penalties were also imposed. Against the said orders, the appellant is before us. 3. The Ld. Counsel appearing on behalf of the appellant submits that the impugned order is based on incorrect facts as it has been held that the appellant has taken a plea before the Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). He also relied on the decision of M/S Sunrise Immigration Consultants Private Limited Vs. CCE ST, Chandigarh vide Final Order No: 62221/2018 dt. 16.03.2018 in Appeal No. St/52205/2015 and the decision of IDB Education India Private Limited Vs. Additional Director General Of Central Excise Intelligence, New Delhi vide FINAL ORDER NO. 51901/2021 dt. 28.10.2021. 4. On the other hand, Ld. AR opposed the contentions of the Ld. Counsel who submits that the department has not gone beyond the allegation in the show cause notice as in the impugned orders has examined the term intermediary services by taking activity of marketing office and liaising office under intermediary service which was the allegation raised in the show cause notice. In the present case, the activities of appellant certainly constitute a supply of its own service to overseas company and the same do qualify as an intermediary under the purview of rule 9 of POPS Rules, 2012. She further submitted that as per the agreement between STLH and the appellants, it is the appellant who has to appoint distribution partners for short listed states to establish India office set up, recruitment service company, advertise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, an agent or any other person, by whatever name called, who arranges or facilitate a provision of a service (herein called the main service) or supply of goods between two or more persons, that does not into a person who provide the main service or supply of goods on his account. From the facts of case, we find that the appellant nowhere of providing service amongst two or more persons, in fact, the appellant is providing service to set up STLH office in India, recruitment service companies, advertisement agency, service staff and also appoint Distribution partners for states short listed for launch of Gionee mobile phones. These services nowhere include any sale of goods and the appellant is nowhere involved in the providing the service of sale of goods. In fact, for sale of goods, M/s STLH has separately entered into contract with the Distribution partners who import goods in their own names and sell in India. The appellant is neither related to import of goods nor any sale of goods and also nor concern with the payment against those goods, therefore, it cannot be said that the appellant is an Intermediary as per Rule 2(f) of POPS Rules, 2012. This issue has been examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments, applicant drew our attention to one of the illustration given under paragraph 5.9.6 of the Education Guide, 2012 issued by C.B.E. C. Relevant is extracted as under; Similarly, persons such as call canters, who provide services to their clients by dealing with the customers of the client on the client s behalf, but actually provided these services on their own account , will not be categorized as intermediaries. Applicant relying on above paragraph submitted that call centres, by dealing with customers of their clients, on client s behalf, are providing service to their client on their own account. Similarly, applicant is providing business support service such as marketing and other allied services like oversight of quality of third party customer care centre operated in India and payment processing services, on behalf of GoDaddy US. Therefore, these services provided by the applicant to GoDaddy US cannot be categorized as intermediary or services, as intermediary service. 12. We further take note of the fact that the provisions of Rule 6A of the POPS Rules, 2012 has been declared ultra virus by the Hon ble High Court of Delhi in the case of Associatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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