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TMI Blog2024 (9) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... l institution from where they were getting certain commission on the basis of agreements with the overseas colleges/universities. The department entertained a view that the Appellant are providing the 'Intermediary Service' on behalf of such institution situated abroad in terms of Rule 2(f) of the Place of Provision of Service Rules, 2012 and therefore, they are liable to pay service tax on the said commission received by them, whereas, the defence of the Appellant was that the services provided by them qualify as 'Export of Services' which are not subject to payment of service tax; accordingly, the Appellant were issued a show cause notice dated 12.04.2018 proposing the demand of service tax amounting to Rs.68,01,899/- u/s 73(1) of the Finance Act, 1994 by invoking the extended period of limitation along with interest u/s 75 ibid and penalties u/s 77 and 78 ibid. After following the due process, the Adjudicating Authority had dropped the demand proposed in the show cause notice on the ground that the Appellant cannot be termed as 'Intermediary' and the demand of service tax along with interest and penalties is not sustainable. The Adjudicating Authority dropped the demand by follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termediary Service' rather the services rendered by the Appellant qualify as 'Export of Services' which are not liable to service tax. 4.3 He further submits that in the impugned order, the learned Commissioner (Appeals) has accepted that the issue has been decided in favour of the Appellant in the case of M/s Sunrise Immigration Consultants Private Limited (cited supra), but still he has remanded back the matter to the Adjudicating Authority to decide after the decision of the Hon'ble Supreme Court in the case of M/s Mircosoft Corporation (I) Pvt Ltd. He further submits that the department is not aggrieved by the order of the Commissioner (Appeals) on merits as the department has not filed any appeal against the said order before the Tribunal and has accepted the same. He further submits that once the Commissioner (Appeals) has himself given the findings that issue is in favour of the Appellant and the same is not challenged by the department, then the Commissioner (Appeals) could not have remanded back the matter to the Adjudicating Authority to await the outcome of the decision of the Hon'ble Apex Court. He further submits that the Commissioner (Appeals) was bound by the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Services' and not 'Intermediary Services'. The said decision of the Tribunal was appealed by the Revenue before the Hon'ble High Court but later on the appeal was withdrawn on monetary limit under CBIC instructions dated 22.08.2019. Here, it is pertinent to reproduce the relevant findings of the Tribunal in the case of M/s Sunrise Immigration Consultants Private Limited (cited supra), which are reproduced herein below: "7. The appellant is only disputed their liability on referral service post 01.07.2012 and submits that the appellant is not intermediary, therefore, they are not liable to pay service tax post 01.07.2012. 8. In these set of facts, following issues emerges: (A) Whether the appellant is intermediary in terms of Rule 2(f) of POPS Rules, 2012 or not? (B) Whether the referral service in question rendered by the appellant amount to export of service or not? (C) Whether the extended period of limitation is invokable or not? 9. For better appreciation, the definition of intermediary has been defined under Rule 2(f) of POPS Rules, 2012 which is reproduced here as under: "Intermediary means a broker, an agent or any other person, by whatever name called, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Association of Tour Operators (Supra). In that circumstance, also the appellant is not liable to pay services for referral service, therefore, the issue no. 1 is answered in favour of the appellant. Issue No. B: Whether the referral services in question rendered by the appellant amount to export of service or not? 13. As discussed hereinabove in the proceedings paragraphs that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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