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TMI Blog2024 (12) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... in Australia were registered as education service providers on Commonwealth Register of Institutions and Course for Overseas Students (CRICOC) to comply with the requirement of Education Services for Overseas Students (ESOS) Act, the National Code and the universities Australia Code of Practice. 2. After going through the said Codes, department found an opinion that the Australion university/institutes are required to render student recruitment services consistent with the specified norms. For providing such services they entered into agreement with the education agents formerly representing them under the national codes. The appellant had also entered into such agreement with various foreign education service providers for arranging or facilitating recruitment of students as their education agent in lieu of a commission termed as agents fee/consultancy income from the activities agreed to be performed by the appellant. Based on the one of such agreement department with Australian university department formed an opinion that the appellants were providing intermediary services of arrangement and facilitation of student recruitment services to foreign education service providers in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Vs. Punjab National Bank reported as 2009 (2) SCC 570 wherein it is held that the enquiry officer has a duty to arrive at a finding after taking into consideration the entire material brought on record by the parties. The department without conducting the proper investigation has alleged that the appellants are providing 'Intermediary services'. Said allegation is without any basis. The adjudicating authority has wrongly confirmed the demand on the basis of presumptions. 5. Learned Counsels further submitted that Rule 9 of place of Provision of Rules, 2012 has wrongly been applied by wrongly presuming that the appellant while facilitating the students recruitment services to foreign education service providers, since is located in taxable territory and is recruiting students of taxable territory only, the location of service recipient is irrelevant. Learned Counsels impressed upon that it shall be Rule 3 of Place of Provision Rules, 2012 where by the location of service receiver is relevant for deciding taxability shall be applicable. The appellant is the service provider hence shall not be liable to pay tax nor the appellant is an Intermediary. 6. It is further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitment Service'. Since the appellant is providing these services like an agent / broker / middle man the appellant is rightly held to be engaged in providing services as 'Intermediary' in terms of rule to 2(f) of Place of Provision of Service Rules, 2012. Hence there is no infirmity in the order under challenge. 10. Learned Departmental Representative further mentioned that exemption benefit of Notification no. 25 of 2012, Entry No. 9 is also not available to the appellants because the said entry exempts the 'Auxiliary Education Services' whereas the appellants is providing 'Intermediary Services'. For the same reason, the activity of the appellant cannot be called as "Export of Service'. Hence it is rule 9 of Place of Provision of Service Rules, 2012 which is applicable with respect to Intermediary Service Provider. According to said rule the location of service provider is relevant for the purpose of taxability. The appellant, service provider, lies in taxable territory hence the demand of service tax on foreign consultancy income, irrespective received in convertible foreign exchange, has rightly been confirmed against the appellant. Finally submitting about invocation of exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsity of Barbados subject to clause 10 of this agreement; (iii) Publicity through various modes including electronic media viz. website etc. and other appropriate promotional channels so as to build the brand value of the American University of Barbados, with a view to attract students for admission; (iv) On the website of the consultant advisor, American University of Barbados will be displayed for student's attention and likewise American University of Barbados will carry the link of consultant advisor; (v) To make all efforts leading to maximum admission of students by providing publicity, guidance and counseling as well as other related activities; (vi) To provide assistance in fulfilling of the admission procedure as per prospectus and guideline issued by the American University of Barbados including cooperating and providing assistance in completing requisite formalities to the prospective students for getting the Visa and journey etc. in connection with admission; (vii) To guide the students for depositing the tuition and other fee directly to American University of Barbados in conformity with the rules and procedure relating to foreign transactions; (viii) To en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or studies as per schedule. Same is the testimony of Harvinder Singh Anand (DGM of M/s Chopra Group) of appellant. 18. From the above testimony it is clear that appellant is just a facilitator for students in Indian and is supporting the foreign universities. But the department concluded that the activities undertaken by the assessee including arrangement and facilitation of student recruitment services provided to Foreign Education Services Providers are classifiable under to Intermediary services' as defined in Rule 2(f) of the Place of Provision of Services Rules, 2012. However, the appellant throughout treated this activity as 'Export of Service' which invites no service tax liability. 17. In the light of above observation vis-à-vis facts, the question to be adjudicated, therefore is: Whether the services rendered by the appellant to overseas universities/colleges amounts to 'Export of Service' as contended by appellants or it is 'intermediary service' as alleged by the department. 18. Foremost we check the definition 'intermediary' and that of 'Export of Service' 'Intermediary' has been defined in Rule 2(f) of Place of Provision Rules, 2012 as under: "intermedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother. As evident above, the common aspect in both the above engagements is the relationship of agent-principle. This relationship has been coded in Indian Contracts Act, 1872 and has binding implications for both the parts viz. agent as well as principle. We shall now explain the relationship between the agent and principle for better understanding of this engagement and its application to NNCCPL contracts. 22. The law of agency as defined in Contracts Act, 1872 is as follows: "An "agent" is a person employed to do any act for another, or to represent another in dealing with third persons. The person for whom such act is done, or who is so represented, is called the "principal". 23. The distinction between the position of an agent a servant and an independent contractor is well known and, has been noted by the Supreme Court in Lakshminarayan Ram Gopal and Son Ltd. v. Govt. of Hyderabad, 1955-1 SCR 393 at page 401 : (AIR 1954 SC 364 at page 367) by reference to the statement of the law contained in Halsbury's Laws of England Hailsham Edition--Volume 1 at page 193. That statement of law, which is now contained in paragraph 350 of Halsbury's Laws of England, Simonds Edi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation fees) on Insearch's behalf. For the avoidance of doubt, there is no legal relationship of any kind between the partner and any related entity or joint venture partner of Insearch, including but not limited to the University of Technology, Sydney. American University of Barbados (4) Not to describe himself as an Advisor or representative of the American University of Barbados or its Education Group except as expressly authorized by this Agreement and in particular not to represent himself as capable of admitting students for the courses or as being able to guarantee enrolment. (5) Each party enters into this Agreement as an independent contractor and neither the Agent nor its officer, employees, servants or agents are employees of UTS. Similar all the covenants in all other agreements, it is clear from above discussion that the appellant is not the agent of the foreign universities nor is their broker. 26. Further we observe that M/s NNCCPL performs following activities of creating awareness/promotion of courses offered by foreign universities/institutions: Road shows Radio shows Education fair and exhibitions Advertisements on display at: Metro stations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchange, and F. the provider of service and recipient of service are not merely establishments of a distinct person in accordance with item (b)of Explanation 3 of clause (44) of section 65B of the Act. 29. All the conditional as laid down in Rule 6A of Service Tax Rules, 1994 are held satisfied in the present ca se. Though department's stand is that place of provision of service is taxable territory as the services are provided to Indian students. But we hold that services as mentioned above have been rendered by the appellants for promotion and publicity of foreign universities among Indian students. The agreement for the same is between appellant and foreign universities. There is no agreement of appellant with Indian students. The amount in question is received from foreign universities in convertible foreign exchange and not from Indian students. The students are paying fees in case of getting admission, to the foreign university only. These observations are sufficient for us to hold that Indian students are not the service recipients of the impugned services rendered by the appellants. The place of provision is wrongly held to be in taxable territory (India). Hence foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "51. In the considered view of the Court, the judgment of the CESTAT in Paul Merchants Ltd. v. CCE, Chandigarh (supra) is right in holding that "The service recipient is the person on whose instructions/orders the service is provided who is obliged to make the payment from the same and whose need is satisfied by the provision of the service." The Court further affirms the following passage in the said judgment in Paul Merchants Ltd. v. CCE, Chandigarh (supra) which correctly explains the legal position : "It is the person who requested for the service is liable to make payment for the same and whose need is satisfied by the provision of service who has to be treated as recipient of the service, not the person or persons affected by the performance of the service. Thus, when the person on whose instructions the services in question had been provided by the agents/sub-agents in India, who is liable to make payment for these services and who used the service for his business, is located abroad, the destination of the services in question has to be treated abroad. The destination has to be decided on the basis of the place of consumption, not the place of performance of Service." 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RS Granite Machine Tools Pvt. Ltd. Vs. CGST and CE (Chennai-North) - 2019 (1) TMI 1179 - CESTAT Chennai. 34. Finally coming to plea of invocation of extended period, we observe that a perusal of Section 73 of Finance Act, 1994 indicates that to sustain a show cause notice beyond a period of one year and up to a period of 5 years, it has to be established that the service tax has not been paid or short-paid, by reasons of either fraud or collusion or willful mis-statement or suppression of facts or contravention of any provision of the Act or Rules made there under, with intent to evade payment of duty. All the above elements must be undertaken by the assessee with intent to evade tax. The understanding has been upheld in the case of Cosmic Dye Chemical v CGE, Bombay reported as 1995 (75) ELT 721 (SC) wherein the Hon'ble Supreme court while discussing Section 11A of the Central Excise and Salt Act, 1944 (which is parimateria with section 73 of the Act) has held as under: "The main limb of Section 11A provides limitation of six months. In cases, where the duty is not levied or paid or short levied or short-paid or erroneously refunded, it can be appropriately recovered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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