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TMI Blog2022 (8) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... /2018 and 31/10/2018 respectively passed by commissioner CGST (Appeals), Gurugram by which the learned Commissioner rejected appellant's appeal and upheld the order of Adjudicating Authority of rejecting the refund of Cenvat Credit on Input Service used in provision of Business Support Service(hereinafter referred to as "BSS") exported outside India, on the ground that the service rendered is not BSS but intermediary service and hence the place of provision of service is in India and not outside. Since the issue is common in both the appeals therefore we are deciding these appeals by this common order. 2. The issue to be decided is whether the services provided by the appellant to its overseas client M/s. HLX Finance Holding, located in US ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected the Appeals filed by the appellant. 4. Learned Counsel for the appellants submit that the appellants are engaged in providing services to M/s.HLX, USA wherein the work inter-alia related to development of interface for Aladdin (an operating system for investment managers to undertake portfolio management) and is maintaining, troubleshooting and providing support on the platform. The appellants also provided support service in relation to creation of client accounts on the platform which is akin to generating customer ERP codes and is a backend process with no client interaction or interfaces and for providing such services the appellant receives a pre-agreed consideration from HLX in convertible foreign exchange. As per the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring on behalf of the Revenue re-iterated the findings recorded in the impugned order and prayed for dismissal of appeals. Learned Authorised Representative submits that since one of the terms of agreement is that the appellants have to help in setting up new client accounts who purchased Aladdin data base and also to help in resolving client querries, which means there is involvement of three parties viz appellants, HLX and clients of HLX, therefore the appellants are nothing but an intermediary and hence not entitled for any Credit under Cenvat Credit Rules, 2004. 5. We have heard learned Counsel for the appellants and learned Authorised Representative for the Revenue and perused the case records including the compilation filed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said supply cannot come within the ambit of "intermediary". Sub-contracting for a service is also not an intermediary service. The supplier of main service may decide to outsource the supply of main service, either fully or partly, to one or more sub- contractors. Such sub-contractor provides the main supply, either fully or a part thereof and does not merely arrange or facilitate the main supply between the principal supplier and his customers and therefore clearly not an intermediary. Who is an 'intermediary' and what is 'intermediary service' has been clarified by Central Board of Indirect Taxes and Customs (CBIC) vide Guidance Note dated 20.06.2012 and under GST regime also a clarification has been issued by CBIC on 20.09.2021 both of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the credit. One of the reasons for rejecting the refund claim of the Appellants is that the appellants failed to produce the agreement between HLX, USA and its overseas clients. We agree with the submission of learned Counsel that since the appellant is not a partyto those agreements therefore they have no access to the same. Although the reasoning of the appellants for not producing those agreement is proper but the authorities below took it otherwise and presumed, without any basis, that the appellants are avoiding disclosure of proper facts, without realising that its settled principle that the burden to prove that the classification claimed by the appellants was incorrect, lies on the department and it has to be substantiated by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and therefore in a way Revenue itself has allowed this taxable service provided by appellants as export of service. If that is so then in the proceeding under Rule 5 ibid revenue cannot deny refund by treating the service provided not to be export of service. Same principal has been followed by the Tribunal in the matter of JFE Steel India Pvt. Ltd. v/s Commissioner CGST, Gurugram; 2021 (44) GSTL-292 (Tri-Chan.) and also in Final Order No. 60959-60960/2021 dated 07/10/2021 in Service Tax appeal Nos. 60024-25 of 2020; Macquarie Global Service Pvt. Ltd v/s Commissioner C.E. & ST, Gudgaon-1.On somewhat similar issue while interpreting similar terms of agreement the Authority of Advanced Rulings (AAR) in the matters of In re Go Daddy India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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