TMI Blog2022 (12) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... regard of the judicial discipline. It is, ex facie, apparent that the learned Assistant Commissioner has attempted to overreach the orders passed by the superior authority - Since the respondent was seeking to defend the impugned order, this Court had called upon Mr. Raghupathy Ramachandran, Senior Standing Counsel, Central Board of Indirect Taxes and Customs (CBIC), to also file written submissions even though he was not appearing in the present petition. He has fairly submitted that the impugned order, which proceeds on the basis that the petitioner is a provider of intermediary services, is incorrect and it is not open for the Revenue to take this stand. The Revenue would necessarily have to wait for the outcome of the appeals preferred by the learned CESTAT (which have since been dismissed as well). The learned counsel appearing for the respondent fairly states that the impugned order be set aside - Petition allowed. - HON BLE MR JUSTICE VIBHU BAKHRU AND HON BLE MR JUSTICE PURUSHAINDRA KUMAR KAURAV Advocates who appeared in this case: For the Petitioner : Mr. Kamal Sawhney with Mr. Krishna Rao and Ms. Aakansha Wadhwani, Advocates. For the Respondents : Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for their overseas clients; thus, the petitioner was an intermediary and not the service provider, providing services on his own account. 6. The learned Commissioner (Appeals) found that the said issue was covered by the decision of this Court in Verizon Communication India Pvt. Ltd. v. Assistant. Commissioner Service Tax: 2018 (8) G.S.T.L. 32 (Del.), and rejected the appeal. 7. The Revenue appealed the said decision before the Customs, Excise and Services Tax Appellate Tribunal (hereafter the CESTAT ). 8. In respect of the second period from October, 2015 to December, 2016, the petitioner claimed refund of an amount of ₹8,69,82,565/-. The petitioner also provided all the necessary details including copies of the input service invoices for the said period. The petitioner s claims were rejected on the ground that the services, rendered by the petitioner, fell within the category of intermediary services . The adjudicating authority (the Assistant Commissioner) found that the conditions specified in Clause (d) of Rule 6(A)(1) of the Service Tax Rules, 1994 were not satisfied and the services, rendered by the petitioner, did not qualify as export of services. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide, at its own expense, all facilities and resources whatsoever necessary to enable it to provide services to SingTel. In terms of clause 4.7, SGIPL shall bill on SingTel for the services provided by it. The responsibilities of SingTel are contained in clause 5 of the Agreement. Clause 6 of the Agreement deals with charges and payment. It provides that SGIPL will invoice SingTel in US dollars for the services by the end of the month following the month of the provision of services and SingTel will be required to pay such monthly invoices within 30 days of the date of such monthly invoices. Both the parties also agreed on the transfer pricing adjustments to prices at any time in order to ensure that prices are at acceptable at arm's length. Clause 19 of the Agreement specifically provides that the relationship of the parties to the Agreement shall always and only be that of independent contractors and nothing in the Agreement shall create or be deemed to create a partnership or the relationship of principal and agent or employer and employee between the parties. 24. The Agreement executed between SGIPL and SingTel leaves no manner of doubt that SGIPL is not an intermediar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice ie. telecommunication service to SingTel on its own account. The telecommunication service provided by SGIPL qualify for export since it is providing telecommunication services to SingTel which is outside India and is receiving convertible foreign exchange for such services. SGIPL is not a privy to the Agreement entered into between SingTel and its end customers. Merely because SGIPL is charging handling fee on SingTel would not mean it is an intermediary. 14. In the meantime, the petitioner sent communications requesting for a refund of the input tax credit that was allowed by virtue of the aforementioned orders passed by the learned Commissioner (Appeals). The said application was rejected by the impugned order. The learned Assistant Commissioner did not process the refund as directed by the orders passed by the learned Commissioner (Appeals), but took upon itself to once again re-examine the question as to whether the petitioner was entitled to refund of input tax credit. Reasons and Conclusion 15. A plain reading of the impugned order indicates that the learned Assistant Commissioner rejected the petitioner s claim by questioning the decision of the learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered as enforced law but under sub-judice law. 16. The Assistant Commissioner has sought to re-adjudicate the question as to whether the services provided by the petitioner are export of services or not. This is clear from paragraph 9.2 of the impugned order which reads as under: - 9.2 The instant case is totally depending to ascertain whether the service provided by the assessee is export or not. If it falls under export of service, then there is no criterion for checking of unjust enrichment whereas if it does not fall under the category of export, it should be considered for verification under unjust enrichment. Hence, it is indirectly stipulate to check whether the service provided by the assessee falls under the provisions of Export or not. 17. The impugned order has been passed in complete disregard of the judicial discipline. It is, ex facie, apparent that the learned Assistant Commissioner has attempted to overreach the orders passed by the superior authority. 18. Since the respondent was seeking to defend the impugned order, this Court had called upon Mr. Raghupathy Ramachandran, Senior Standing Counsel, Central Board of Indirect Taxes and Customs (CBIC) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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