Page 97 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] EASTERN PACIFIC SHIPPING (INDIA) P. LTD. v. COMMR. OF CGST, MUMBAI EAST 183
terms of Rule 9(c) of Place of Provision of Services Rules, 2012, he is to be con-
sidered as an intermediary and services provided by him cannot be treated as
export - Assessee, a duly licensed Seafarer Recruitment service provider, as per
agreement not an intermediary particularly when entire process of selection,
medical test, insurance, transportation, etc. carried out by him, for which he
received payment in convertible foreign exchange from first party/employer
having its office in Singapore - Services provided by him to be considered as
export of service and refund of input service credit admissible to him - Further,
no correlation/nexus between input service and export service required to be
established for allowing refund - Section 11B of Central Excise Act, 1944 as
applicable to Service Tax vide Section 83 of Finance Act, 1994 and Rule 5 of
Cenvat Credit Rules, 2004. [paras 2, 4, 5]
Appeal allowed
CASES CITED
Commissioner v. International Overseas Services
— 2016 (41) S.T.R. 230 (Tribunal) — Referred .............................................................................. [Para 2]
Indian Association of Tour Operators v. Union of India
— 2017 (5) G.S.T.L. 4 (Del.) — Relied on ....................................................................................... [Para 4]
Seaspan Crew Management India Pvt. Ltd.
— Order of CESTAT in Appeal No. 88860/2018 — Referred .................................................... [Para 2]
DEPARTMENTAL CLARIFICATION CITED
C.B.E. & C. Circular No. 120/01/2010-ST, dated 19-1-2010 ................................................................ [Para 5]
REPRESENTED BY : Ms. Rebecca Pinto and Shri Rushabh Gandhi,
Advocates, for the Appellant.
Shri Saikrishna Hatangadi, Asst. Commissioner
(AR), for the Respondent.
[Order]. - Denial of refund to the appellant against its claim for benefits
of export services on the ground that appellant was providing intermediary ser-
vices and not manpower recruitment/supply agency services which as per Rule
9 of POPS Rules, 2012 (Place of Provision of Service) is not export of services and
there was no nexus between input and output activities has been assailed in this
appeal.
2. Learned Counsel for the appellant argued that primarily basing on
the word “agent” available in the agreement between the appellant and its for-
eign client and without going to the substance of the agreement and the scope of
service as mentioned in the agreement, Learned Commissioner (Appeals), CGST
and Central Excise, Mumbai had confirmed the findings in the Order-in-Original
but a cursory look into the agreement would reveal that appellant is a licenced
Seamen recruiter who had provided “Seafarer” to be employed in the vessels of
overseas owner and the entire process of selection, medical test, insurance,
transportation everything were being carried out by the appellant against which
it had not only received agency fee but also processing fee and other expenses in
convertible foreign exchange for which its services were to be treated as export of
service. He further submitted that the refund application which was rejected per-
tains to the period between April, 2015 to September, 2015 (two quarters) but its
previous application and subsequent application for refund on the same ground
were being allowed by the lower authority. In submitting photocopies of the or-
der concerning previous and subsequent period as well as the judgment of the
CESTAT in the case of Seaspan Crew Management India Pvt. Ltd. in Appeal No.
GST LAW TIMES  11th June 2020  97