Order Date – 03 June 2024

Parties: M/s Viavi Solutions India Pvt. Ltd. Vs The Commissioner of CGST, Gurgaon-I

Facts –

• The Appellant, M/s Viavi Solutions India Pvt. Ltd., received consideration in form of commission from JDSU USA for providing promotional and marketing activity of JDSU USA's products. The Appellant did not charge Service tax on these invoices since the Appellant was under the bona fide belief that it is qualified as export of service.
• The Appellant erroneously deposited Service tax on the export invoices, the appellant filed an application for refund of the service tax discharged.  The refund application filed by the Appellant was rejected on the ground that the services provided by the appellant qualified as intermediary.

Issue –

• Whether the service provided by the appellant fall under the category of export of service or under intermediary service?

Order –

• The Tribunal observed that as per their Agreement and the provisions of Rule 6A of the Service Tax Rules, the services provided by the appellant squarely fall within the ambit of export of services.  The place of provision of business promotion service shall be the location of the recipient of service which is outside India and such services shall qualify as export of service and hence not subject to service tax.
• Both the authorities have wrongly applied amended definition of “Intermediary” which was made applicable from 01.10.2014 whereas the period of dispute in this case is from October 2013 to March 2014 and therefore the amended definition of “Intermediary” service cannot be applied in the present case. Hence, it was held that the services of business promotion / support and marketing service do not qualify as intermediary service.
• Further, the impugned order both the authorities below have wrongly observed that the appellant is providing technical services whereas, in fact, the appellant has provided promotional/ marketing services and not provided technical services viz. Repair Service, Erection Commissioning and Installation Service to JDSU USA; the said observation in the impugned order is factually erroneous.
• The appeal is allowed.