Page 98 - GSTL_11th June 2020_Vol 37_Part 2

184 GST LAW TIMES [ Vol. 37
88860 of 2018 and International Overseas Services judgment report in [2016 (41)
S.T.R. 230 (Tri. - Mumbai)] he submitted that such requirements of services to
foreign clients were being treated as manpower supply service and not interme-
diary for which those were export of services and therefore the order passed by
the Commissioner (Appeals) is required to be set aside.
3. Learned Authorised Representative for the respondent Department,
in response to such submissions had supported the reasoning and rationality of
the order passed by the Commissioner (Appeals) and argued that though in both
previous orders of the authorities below, the services rendered by the appellant
were held as manpower recruitment services, on inadmissibility of Cenvat cred-
its, orders went in favour of Revenue against which appellant had not put forth
any defence for which he seeks no interference by the Tribunal in the order
passed by the Commissioner (Appeals).
4. Heard from both the sides at the length and perused the case record.
The ground of rejection cited by the Commissioner (Appeals) is that the content
of agreement reveals that appellant was an agent of employer (intermediary) en-
gaged for the purpose of providing Seafarer recruitment service to third parties
for which as per Rule 6(a) of Export of Services that stipulates under sub-rule
(1)(d) that the Place of Provision of Service is to be outside India to bring the ac-
tivities into the purview of Export but Rule 9 of the Place of Provision of Services
Rules, 2012 stipulates under sub-clause (c) that in case of intermediary service,
the location of service provider since been in India, such service rendered by
agent to the principal cannot be treated as export of services for which refund
was not admissible. However, going by the Seafarer recruitment agreement exe-
cuted between the parties concerning status/standing/capacity of the parties at
page 1 under sub-clause (c), it has been described as below.
“The employer desires to employ seafarers or crew on behalf of its princi-
pals and for vessels owned by the principals through the Agent and desires
to enter into this Agreement”.
The above sentence makes it abundantly clear that first party to the agreement
i.e. employer is an intermediary between the principal (third party but not a sig-
natory to the agreement) and the appellant who is, as per sub-clause (a) is in the
business of Seafarer recruitment service duly licensed to provide Seafarer re-
cruitment service to third party. This being the status of the appellant as referred
in the agreement, the findings of the Commissioner (Appeals) that the first party
i.e. employer is the principal under whom the appellant had worked as an agent
is erroneous. Admittedly payments were received from the first party
i.e./employer who has its office in Singapore and such payment has been made
in convertible foreign exchange, which remains undisputed. Therefore, appellant
cannot be treated as an intermediary of the first party when the agreement indi-
cates that it is the vice versa. Further, as has been held by Hon’ble Delhi High
Court in the case of Indian Association of Tour Operators v. Union of India [W.P. (C)
No. 5267 of 2013] [2017 (5) G.S.T.L. 4 (Del.)], Export is different from non-taxable
event and unrelated to POPS which deals clearly with taxable events of service.
Therefore, I have got no hesitation to hold that the services carried out by the
appellant are in the nature of manpower recruitments/supply agency services
which were being exported from India.
5. In view of Circular No. 120/01/2010-S.T., dated 19th January, 2010
issued by the Board which clarified that no correlation or nexus is required to be
established between input service and export and since credits were validly tak-
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