TMI Blog2023 (7) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... idered a similar question albeit in the context of refund of input tax credit under the Integrated Goods and Services Tax Act, 2017 in M/S. ERNST AND YOUNG LIMITED VERSUS ADDITIONAL COMMISSIONER, CGST APPEALS -II, DELHI AND ANR. [ 2023 (3) TMI 1117 - DELHI HIGH COURT ] where it was held that There is no dispute that the recipient of Services that is EY Entities are located outside India. Thus, indisputably, the Services provided by the petitioner would fall within the scope of the definition of the term export of service under Section 2(6) of the IGST Act. The conclusion of the Adjudicating Authority that the services covered under Section 165(105)(zzb) of the Act were excluded from the scope of Export of Taxable Services under Rule 3(1) of the Export of Service Rules, 2005 is, plainly, erroneous. The learned CESTAT has rightly concluded that all services except those specifically mentioned in Rule 3(1) of the Export of Services Rules, 2005 are covered within the scope of Export of Taxable Services. The Adjudicating Authority had clearly misread the said Rule. The present petition does not raise any substantial question of law - Appeal dismissed. - SERTA 7/202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.03.2013 2 April June, 2013 2,89,94,208 31.03.2014 3 July September, 2013 2,47,28,850 30.06.2014 Total 8,55,34,345 5. The Adjudicating Authority issued a Show Cause Notice dated 22.01.2020 proposing to reject BlackBerry India s claim on the ground that the place of provisions of service appeared to be in India as the services rendered by BlackBerry India were as an intermediary. 6. BlackBerry India responded to the said Show Cause Notice dated 22.01.2020 explaining that it had entered into an agreement with BlackBerry Singapore Pte Ltd. (hereafter BlackBerry Singapore ) for providing Marketing Administration and Support Services (hereafter the Agreement ), which entailed promotion and marketing of BlackBerry Products; technical marketing assistance in relation to BlackBerry Marketing products, and other related services. BlackBerry India disputed that the services rendered to BlackBerry Singapore were services as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d outside India, the place of provision of services would be where the service provider is located India. 13. The second question to be considered by the learned CESTAT was whether the services rendered by BlackBerry India were covered within the scope of export of services under Rule 3 of the Export of Taxable Service Rules, 2005. 14. The learned CESTAT accepted the contention that BlackBerry India was neither an agent nor was involved in the arrangement or facilitation of supply of services in question. Accordingly, the learned CESTAT held that BlackBerry India was not an intermediary within the meaning of Rule 2(f) of the Place of Provision of Services Rules, 2012. 15. Insofar as, the period prior to 01.07.2012 is concerned, the learned CESTAT did not accept the finding of the Adjudicating Authority that services covered under Section 65(105)(zzb) of the Act were excluded from the scope of Export of Taxable Services under Rule 3(1) of the Export of Services Rules, 2005. 16. The Revenue has preferred the present appeal projecting the following question for consideration of this Court: a. Whether the services provided by the Respondent to RIM Singapore constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pore for the services provided by it in US dollars and Blackberry Singapore has to make the payment within 45 days of the date of such monthly invoices. 20. We find no infirmity with the aforesaid conclusions. 21. The term intermediary is defined under Rule 2(f) of the Place of Provision of Services Rules, 2012 as under: 2(f) intermediary means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service (hereinafter called the main service) or a supply of goods, between two or more persons, but does not include a person who provides the main service or supplies the goods on his account; 22. It is apparent from the aforesaid definition that an intermediary merely arranges or facilitates provision of services. In the present case, the services rendered by BlackBerry India to BlackBerry Singapore under the Agreement, were not in the nature of facilitating services from another supplier. BlackBerry India, as an independent service provider, was required to render the promotional and marketing services; technical marketing assistance; and other related services. BlackBerry India did not arrange or facilitate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as an intermediary service. An intermediary essentially arranges or facilitates another supply (the main supply ) between two or more other persons and, does not himself provide the main supply. 3.2 Two distinct supplies: As discussed above, there are two distinct supplies in case of provision of intermediary services: (1) Main supply, between the two principals, which can be a supply of services or securities: (2) Ancillary supply, which is the service of facilitating or arranging the main supply between the two principals. This ancillary supply is supply of intermediary service and is clearly identifiable and distinguished from the main supply. A person involved in supply of main supply on principal to principal basis to another person cannot be considered as supplier of intermediary service. 3.3 Intermediary service provider to have the character of an agent, broker or any other similar person: The definition of intermediary itself provides that intermediary service providers-means a broker, an agent or any other person, by whatever name called This part of the definition is not inclusive but uses the expression means and does not ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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