The GST law under Integrated Goods and Services Tax Act, 2017 (IGST Act) has defined the term ‘intermediary’ in its clause 2(13) as “‘intermediary’ means a broker, an agent or any other person by whatever name called, who arranges or facilitates the supply of goods or services or both or securities between two or more persons but does not include a person who supplies such goods or services or both or securities on his own account”. This definition is not new to service suppliers as almost identically the term was defined under the legacy legislation of service tax with effect from July 01, 2012, the date from which the negative list based taxation was introduced in the service tax law in the Finance Act, 1994. Yet, a significant amount of controversy is generated recently on account of different interpretations applied to the term in the context of a variety of services in rulings provided by different State Authorities for Advance Ruling and consequent litigation initiated against various service suppliers whose services were regarded as ‘exports’ under the erstwhile service tax legislation as they were not held as those provided by an intermediary and thus refund of input tax credit was granted almost consistently in many cases under service tax law. It is relevant to mention here that both under service tax law and GST law, the place of supply for an intermediary service is determined as location of the supplier of service. Hence, when a person is held as intermediary or his services as intermediary services, even when such services are provided to a person outside India, they are determined as provided or supplied in India and hence not considered as exported. Resultantly, not only their claim of refund of input tax credit is questioned but considering the services liable for tax, demand for GST against such service suppliers could be made. In the scenario, it is imperative and interesting to decipher the said term by studying and discussing the term under GST.

Analysis of the definition of ‘Intermediary’

As stated above, the definition of ‘intermediary’ under the service tax law was almost identical. It is reproduced below for easy reference as a few significant tribunal decisions under service tax law are referred here:

The definition of ‘Intermediary’ under service tax law was contained in the Place of Provision of Service Tax Rules, 2012 (POP Rules) because as per Rule 9 of these rules, the place of provision for the intermediary service among a couple of others was fictionally determined to be the place of location of the service provider. The definition in Rule 2(f) of the POP Rules read as “Intermediary means a broker, an agent or any other person by whatever name called, who arranges or facilitates a provision of service (hereinafter called the main service) or *a supply of goods between two or more persons, but does not include a person who provides the main service or supplies the goods on his own account”. (*The words added in the substituted definition with effect from 01/10/2014). Perusal of the definition indicates that except replacing the words “main service by such goods or services or both”, the definition under the GST law has not undergone any substantial change. Also, along with goods and services, ‘securities’ are added as the definition of goods under section 2(52) of Central Goods and Services Act 2017 (CGST Act) excludes securities. Precisely for this reason, the rulings of AAR under GST in some cases have not only referred to the clarification provided in Education Guide issued by the Government at the time of introduction of the negative list based taxation under the service tax law but have also relied upon a few of such decisions.

It can be observed that simply worded short definition reproduced above also contains a specific exclusion clause as follows:

“ …But does not include a person who supplies such goods or services or both or securities on his own account.” (emphasis supplied)

At this point, it must be noted that like service tax law, section 13 of IGST Act also continues with the deeming fiction to determine the place of supply of service where either location of supplier or location of recipient is outside India. Hence the definition is most relevant for all cross border transactions of services, as once a service is determined as one supplied by an intermediary, per sub-rule (8) of the said section 13, the place of supply is determined as location of the supplier of service and hence though the person from India is supplying service to a party outside India, the service cannot be considered as export of service for the purpose of section 2(6) of IGST Rules as one of the key requirements to consider a service as “export of service” is that the place of its supply is outside India.

The main part of the definition indicates that when a person arranges or facilitates supply of goods or services between two or more persons, then only he is held as an intermediary service supplier. This means that when a person is instrumental in causing a supply between a supplier to the receiver/s, either at the instance of the supplier or the receiver, he has acted as an intermediary whether for supply of goods or services or securities. Let us therefore, refer to the meaning of the key words ‘arrange’ and ‘supply’ as provided in dictionaries and examine in the context of supply of goods and services.

‘Arranges’ or ‘arrange’ as per dictionaries means, “to plan, prepare for or organize something” (Cambridge English Dictionary).

to make plans for something to happen for example by agreeing to time and place” (Macmillan Dictionary).

to set in a rank or row, to put in order, to settle or work out … to come to an agreement…. to make plan…” (Chambers Dictionary).

Facilitation as per Black’s Law Dictionary means the act or an instance of aiding or helping.

Facilitate: – “to make easy or easier” (Chambers Dictionary)

– “make something possible or easier” (Cambridge /English Dictionary)

– “to help people deal with a process or reach an agreement or solution without getting directly involved in the process, discussion etc. yourself” (Cambridge Business English /dictionary).

The meaning of the above words appearing inter alia in the above cited dictionaries in substance indicates that an intermediary is a person who acts in between two or more persons who merely arranges a supply of goods or services between two persons by making it easy or make/help plan the supply between the two persons but without getting involved in the supply made by the supplier to the receiver.

Thus it appears clear that the legislation has meant to treat those persons as intermediaries who merely aide or facilitate supplies to happen by arranging meetings or negotiation etc. but those who do not actually supply goods or any service or in other words execute supply of goods, service or securities. As a corollary thereto, when a person has himself supplied goods, service or securities, he does not act as an intermediary for the purpose of the definition and therefore he does not satisfy the basic definition of being a broker, agent or any other person having arranged or facilitated supply between two persons or more as he has himself supplied the goods, service or both or securities and not merely arranged or facilitated the supply thereof. The words, any other person certainly would mean that a person whether called or referred to as a broker or an agent or not, but if acted in the capacity as a mere facilitator or a middleman, he is an intermediary.

A classic example of intermediary service in relation to supply of goods is commission agents or indenting agents who are not involved in supply of goods themselves but arrange or facilitate or help supply to take place by soliciting the other party/parties through introduction, negotiations etc. Service in relation to supply of goods is less difficult to perceive, though some amount of litigation under service tax law did occurr as regards determining whether an activity was one of trading where the goods were purchased and sold on one’s own account and so was apparent even from the examination of books of account. However the same was looked upon by the department as one resulting from the service of an intermediary and margin earned on sale was regarded as ‘commission’ received and therefore held liable for service tax. However, the controversy mainly focussed around some of the services provided by service providers located in India to the recipients located outside India which were often the group companies. This is because a large number of marketing arms or back office processing or business process outsourcing outfits are set up by multinational groups on account of availability of cheaper human resource. While providing these services, often the service provider is required to deal with customers of clients. Hence, prima facie the presence of three parties would be found in many cases. Such transactions were looked upon by the revenue as “intermediary services” and hence leading to litigation.

Exclusion clause

This necessitates us to focus on the specific exclusion in the definition viz., but does not include a person who supplies such goods or services or both or securities on his own account.

The exclusionary expression clearly starts with the preposition BUT which means that even though a person arranges or facilitates a supply between two or more parties, yet in specific and abundant terms provides that a person supplying such goods, services or securities on his own account is not to be considered an intermediary as essentially he does not act in such a capacity and hence excluded from the definition. That brings us to analyse as to what constitutes “acting on one’s own account”.

Simplicitor example of an intermediary in relation to supply of goods is a person who buys goods on his own account and sells the same which is known as trader engaged in a trading activity is not acting as an intermediary though he may be interacting with purchaser and a seller. Similarly, when a stock broker buys securities himself on his account and not for any of his clients and would sell the said securities from his own account, it would be part of his own trading activity in shares or securities or it could be his own investment activity and he does not play the role of an intermediary for such transactions. Since goods and securities are tangible, it is easier to perceive and fathom the nature of transactions. However, it may require some more efforts or a challenge to examine the nature of service in relation to service transactions and determine whether a specific transaction is one provided as intermediary or a service provided on one’s own account though interaction with or dealing with the customers of the client may be involved while performing the functions assigned by the recipient of the service. This appears particularly challenging for the revenue office it seems!

Examples of services of intermediary

On examination, it is not difficult to perceive certain services supplied as an intermediary in relation to services besides services of commission agents and stock brokers or security brokers. A rail or an air travel agent books tickets for transportation by rail or air respectively but transportation service by rail or air is provided by a rail company or an airline. Thus, an agent booking travel tickets acts merely to connect the supplier and receiver of transportation service. Also a steamer agent booking a cargo space for a customer does not transport goods himself but brings the exporter or importer and the shipping line to cause supply of ocean transportation service. An estate broker brings the purchaser and seller of the immovable property against each other thus facilitates or arranges the meetings and negotiations with an ultimate goal to culminate his efforts into sale or supply of immovable property from one to the other hand. Even when an estate agent is approached for providing a property on leave and licence or acquiring one on license basis, he merely arranges or facilitates such supply for licensing the property and thus he wears the hat of an intermediary and does not supply the licensing/ leasing / renting service on his own account. Thus an intermediary acts as a link between the purchaser and supplier of goods, services or securities and thus causes or facilitates and thus helps the process of supply predominantly, though the said process may involve some incidental services, like a commission agent may follow up payments for supply or a travel agent besides booking a ticket may also help obtaining a seat allocation or modification of the schedule etc. However, their presence or existence is meant only to facilitate the supply of goods or service between two persons or more and their acting as a link or a bridge between two or more persons in itself is an intermediary service. Such intermediaries may receive consideration for facilitation from one of the parties or at times even both, supplier and the receiver of his service.

Services on one’s own account

Let us now examine the activity of tour operators. Sometimes tour operators act as intermediary in some transactions and in others, they may have ‘tour’ products on their own account. For example, when a tour operator plans a tour abroad for a customer and books a hotel room or sells a product such as Euro rail pass wherein if he earns only commission or brokerage for selling booking for the hotel or selling / marketing the Euro rail pass for the company issuing such passes would be treated as intermediary for the above definition. However it is often experienced that in many cases, tour operators also act as travel agents and supply a bouquet of services including incidental services like providing vehicle at various destinations, entry tickets for monuments etc. and sometimes some products and/or hotel rooms are booked on their own account viz. buying at an agreed or negotiated price and enjoying the freedom of recovering margin thereon as per demand. In such cases, a tour operator does not act as an intermediary as he has acted on his own account. Similarly, an advertising agency when acts as an intermediary, it facilitates or arranges a readymade matter of advertisement to be printed in print media or broadcast on an electronic media for which commission or a fee is paid. However when it prepares an advertisement by doing a creative work of producing an advertisement, it acts on its own account. Under the legacy law of service tax, the Education Guide dated 20/06/2012 at para 5.9.6, an example of freight forwarder is cited to explain what it means by acting on one’s own account as the fraternity of freight forwarders and multimodal transport operators (MTO) act on principal to principal basis by buying cargo space at one rate of freight and selling with own margin to a shipper where risk and responsibility of a shipping line is assumed by the freight forwarder. Thus, they act on their own account and therefore, they are not covered as ‘intermediary’ by the definition under examination.

The above discussion however relates only to a few examples of services in simple or solo format. In reality, the transactions are often of composite nature or structured as complex service contracts containing a bouquet of services. Hence perusal of the contracts or terms of reference is imperative before determining whether a service is covered by the definition intermediary or otherwise and therefore determination would depend on facts and structuring of each contract independently. In view thereof, the interpretation has to be done only after examining all the relevant factors while perusing a contract and other relevant documents in the background of the parameters discussed above.

Significance of examining services in International scenario

As it is known, the services of intermediary or of any other nature are liable for GST at the standard rate of 18% when supplied in India. However, the issue arises when they are supplied by a person in India to a person outside India or vice versa. As mentioned above, section 13 of IGST Act contains provisions to determine place of supply of a service where either location of supplier or that of a receiver is outside India and sub-rule 8(b) provides that the place of supply of intermediary services shall be the location of the supplier of services. Therefore when a service supplied by a person in India to a person abroad is determined to be in the nature of intermediary service it attracts GST as the place of its supply is determined as territory of India even if the service is supplied to a person in a country abroad. Conversely, when a person from outside India is a supplier of a service and if it is interpreted as not in the nature of intermediary service, then only the tax liability under Reverse Charge Mechanism (RCM) arises. This is because the place of supply for intermediary services supplied by a person outside India to a person in India would be determined as the location of the service supplier. Hence, the liability of GST under RCM would not be attracted for the receiver of such a service. To illustrate, we consider here an example of globally known model of a Business Process Outsourcing (BPO) service such as voice based call centres established to serve foreign entity/entities. A corporate providing call centre services from India to an entity/entities abroad establish an Information Technology enabled network in India and employs a substantially huge work force working as operators, supervisors etc. besides a significantly large administration team. The operators after being trained attend to calls of clients’ customers. Their terms of reference are provided by their corporate client/s located in a foreign country. They neither arrange nor facilitate a service of their client to their customers but execute or perform customer support services themselves. The services are supplied on behalf of their client however through their own resources of the call centre establishment in India and/or even elsewhere. In this case, the service is supplied with one’s own resource in terms of detailed instructions and requirements of their client/s and therefore on one’s own account. IT enabled establishment does not arrange or facilitate supply of service from their client to their customers or subscribers or various others but supplied and performed with their own resources would mean supplying services on their own account. Thus, it gets covered by the specifically excluded part of the definition of intermediary service under service tax law as well as under GST law. The Education Guide referred above at its para 5.9.6 has cited the example of call centres and clarified that these services will not be categorized as intermediaries. It may be noted here that simply because the call centre deals with or attends to customer base of their client, they do not become ‘intermediary’ between their client and client’s customers as they have neither any contract with the customers of their client nor do the customers know them or recognize them as an intermediary between them and the supplier of service. They do not act as a link between their client and client’s customers but provide services to their client through their specific establishment or specific requirement alone. The supply of their service to their client itself comprises of customer care service of their client to the customers. Thus interaction with such third parties do not place them in the shoes of an intermediary acting as a link as they provide service on their own account.

Some judicial pronouncements under service tax law

In case of GST Gurgaon vs. Orange Business Solutions Pvt. Ltd. 2019 (22) GSTL 523 (Tri.-Chandigarh) it was held that when the activity is of routine back office process outsourcing which was a completely instruction or guideline based activity and when the revenue’s contention was not backed by any evidence to the contrary, the activity was not carried out as an intermediary. Earlier than this, In Re: GoDaddy India Web services Pvt. Ltd. 2016 (46) STR 806 (AAR) wherein the applicant company situated in India proposed to provide support services in an integrated manner to assist the foreign company develop its brand in India and serve customers in India. Their functions included marketing and promotional activity, oversee third party customer care centres, providing payment processing services etc. In consideration thereof, they would receive consideration on cost plus mark-up basis. The Hon. AAR at para 10 of the judgment inter alia observed “In the present case, applicant is providing main service i.e. “business support services” to WWD US and on his own account. Therefore applicant is not an ‘intermediary’ and the services provided by him is not intermediary service”. In a case before Tribunal viz. Lubrizol Advanced Material India Pvt. Ltd. vs. CCE Belapur 2019 (22) GSTL 355 (Tri.-Mum) also it was observed that when an Indian company provided service to the foreign entity on principal-to-principal basis and the service fee charged was not connected with the supply of goods but was based on cost plus mark up and thus cannot be correlated with the supply made to customer in India, the Appellant is not acting as a bridge between the overseas group entities and supplies made to their customers in India. Hence it was held that appellant did not provide intermediary service. Similar decision was given by the Tribunal in Chevron Phillips Chemicals India Pvt. Ltd. vs. Commissioner of CGST & Central Excise 2020-TIOL-178-CESTAT-Mum wherein also the facts were that though the appellant was appointed by its overseas company which itself provided marketing services to its clients, the appellant had to promote and market goods of clients of the overseas company but was neither involved in price fixation nor in negotiation for the goods sold in India and therefore held as falling outside the definition of intermediary. In another case by a co-ordinate bench of Chandigarh Tribunal viz. (P) Ltd. vs. CST Gurgaon (2019) 106 74 (Chandigarh CESTAT) also, as the facts go, the Indian company provided services to customers of foreign client, as per requirements of the client and details of various deliverables in close co-ordination with the client’s team. The Indian company also had to prepare report based on its business research including financial services, market research and intellectual property activities. Placing reliance inter alia on the AAR decision in the case of GoDaddy (supra), it was categorically observed that the appellant did not facilitate or arrange services provided by their client to the third party but provided services on their own account to their client by providing services to customers of their clients and they did not have direct nexus with their customers. Thus the activity undertaken by them does not qualify as intermediary service.

A few select Rulings of AAR under GST law:

• In Fulcrum Info services LLP In Re (2019) 110 236 (AAR Karnataka) An Indian LLP proposed to supply back-end support services to a foreign entity, Juniper Inc. by performing outsourced processes which inter alia included export compliance, orders screening, shipment screening, import compliance, give email responses to customers among other helpdesk support services and perform a few administrative tasks as assigned vide detailed scope of work contained in the agreement. The applicant was found to be providing the services on their own account though observed by the Authority that the applicant provided service in relation to services provided by their client Juniper Inc., there was no interaction of the applicant with any third person directly or indirectly and the applicant performed the entrusted work as noted by the Authority and thus the service was categorized as support service under 9985 specifically under SAC 998599. It was held that the applicant was not involved as intermediary.

• In another case McAfee Software India (P) Ltd. (2019) 110 236 (AAR Karnataka), the applicant proposed to provide marketing support service to its Singapore holding company under a master service agreement. The scope of work mainly included market research and forecasts, gathering data on target market, etc. and could be in short considered as identifying potential opportunities. However, the applicant was not authorized to conclude contracts and also not involved in negotiation with customers. The applicant was to be paid on cost plus mark-up basis. As per Applicant’s contention, they provided management services in relation to marketing and their relationship being on principal-to-principal basis, they were claimed by applicants to be in the nature of support services. Further reliance was placed on the decision of GoDaddy’s case (supra) and Evalueserve (supra) among others. The Advance Ruling Authority in this case however found that the applicant though was not a broker or an agent, the expression “any other person” covered it and the principle of “ejusdem generis” did not apply to the words “any other person” and observed that the services of Applicant as per agreement indicated support and facilitate selling, marketing and distribution of company’s products. Therefore they clearly acted as intermediary. Further, according to the Authority, the exclusion clause does not cover their services as they are not to supply goods or services on their own account but the supply of the goods is made by the parent company. Also the word ‘such’ relates to supply of goods or services which is facilitated by the applicant and not the services provided by him. It was also observed that the payment on cost plus mark-up basis did not have bearing on the nature of supply and it was not a qualification to be satisfied for the definition of intermediary. Lastly, reliance on decisions under service tax law also was held as not applicable as it required verification in the light of GST law. It is not known whether any appeal is filed against the ruling. However, the ruling indicates that prima facie similar or even identical facts require detailed examination of the contract between the parties wherefrom the relationship and the nature of the supply requires determination as to what constitutes supply of service on one’s own account to finally conclude as to whether a service can be considered as one provided by an intermediary or not.

• Considering the above ruling in the case of McAfee Software (supra) it is interesting to examine AAR Ruling in the case of In Re: Asahi Kasei India Pvt. Ltd. 2019 (21) GSTL 243 (AAR GST), Maharashtra. In this case also, the Applicant provides service of sales promotion and marketing support to its group companies in Japan. The scope broadly includes market analysis and support. Asahi Kasei group in getting new business, providing marketing and administration support, networking and supporting sales activity of Asahi Kasei Group whereunder two separate agreements with two different group companies were referred to. Briefly stated on examining the first agreement, the authority found that relationship between the parties is that of independent contractors and the agreement does not create relationship of a principal and an agent. In this case, it is noted categorically that the Applicant has no authority to conclude or negotiate any contracts or secure orders or maintain stock of goods. The Applicant would provide service on their own account and therefore Applicant would not arrange and facilitate supply of service between two or more persons. In this broad background, the ruling was provided that the entire set of services had two distinct categories – one to be in the nature of research including corporate research and development etc. to fall under service code Tariff 998599 and the other group in the nature of Information on market, market surveys of products, their markets and to provide assistance in business activities etc. would fall under Service Code Tariff 99837. However, when the matter was referred to the appellate authority by the department reported at 2019 (28) GSTL 172 (App, AAR GST), it was in a nutshell observed that there was a mixed supply of services and accordingly the first part was modified from SAC 998599 to SAC 9981 & SAC 9183 whereas the second part categorized under SAC 9983 to be intermediary service (under SAC 9962) as it was observed that the services such as liasioning with potential customers, collecting product development plans, reporting this information to their parent company etc. amounted to facilitation and arranging between two or more persons and the goods were supplied by the parent company and not by the company in India. Therefore all ingredients required for an intermediary were held as fulfilled. As for the second agreement referred to the Authority of Advance Ruling under marketing services Agreement also containing services such as conducting market survey, providing information of Indian market to the recipient of service, liasioning with customers & potential customers, providing feedback to service recipient, monitoring regulatory developments and incidental services thereto, the Authority found the case commonly covered by the decision in GoDaddy and that market research was the principal supply. Therefore it was ruled to be covered under Group 99837 as market research services. The said composite supply however was looked upon by the Appellate AAR as mixed supply as against composite supply as held by AAR as it was found that independent services were provided under research & development services having SAC 9981 and other professional, technical and business services bearing SAC 9983 and under the heading miscellaneous services bearing SAC 9997 as they were held as not naturally bundled.

• The said Appellate Authority of Maharashtra also examined a ruling provided by AAR in the case of Sabre Travel Network India Pvt. Ltd. 2019 (27) GSTL 754 (AAAR-GST) and decided against them though the entire set of services listed under marketing support services pursuant to a marketing agreement are provided to advance the business of a foreign company Sabre Asia Pacific Pvt. Ltd. (APAL) in India in an integrated manner and not acting as a mere representative or agent to solicit business of Sabre APAL nor does it negotiate the term for subscription of Sabre APAL’s software. Their job is to make their brand visible and popularise it on the lines of the facts in the case of GoDaddy (supra). Thus appellant is not acting as a link or a bridge between Sabre APAL and their subscribers but they provide the service of providing market access to the CDS software on their own account through the establishment of their marketing network in India and thus popularise Sabre brand. However, the Appellate Authority advancing the ruling given by AAR held that the principal service of the appellant is intermediary service to identify potential subscriber and all other activities performed viz. advertising, promotional activities, sponsorship trade shows etc. were ancillary to the principal service of intermediary services.

• Similar set of litigation was involved in the case of Vserve Global Pvt. Ltd. 2018 (19) GSTL 173 (AAR-GST) and 2019 (26) GSTL 127 (App.AAR-GST) wherein the facts involved were on a much stronger footing as the services of applicant / appellant started after sale, thus consisting of back office administration and accounting services,_ payroll processing, payment follow-up with customers, pre-shipment inspection and incidental follow up processes. However, the decision in the case of GoDaddy (supra) was distinguished by merely stating that the facts are different. Eventually, it was observed by the Appellate Authority as “they are invariably facilitating the supply of goods between their client and its suppliers/buyers”. Further, they are “arranging or facilitating the supply of goods”. The supply of goods is invariably between their client and its buyers. Lastly, Appellants do not supply goods in question on their own account. On reading the ruling, the question arise is, whether the service supplier is supplying service on his own account or goods? Goods would certainly be supplied by his client only! It can only be stated that the Authority is authorized to pronounce decision on his own account!


Conclusion drawn and reasoning provided in the above select cases leads us to learn or unlearn and examine as to what constitutes supplying goods or service on one’s own account after examining primarily whether a person arranges or facilitates a service or goods or discharges various executory functions”. Also a question arises is whether the mere fact that a supplier of service has to deal with or interact with the customers of the client, the company becomes an intermediary? In case of service supplier dealing with supplier of services or supplier of goods, most often three parties are present. Simply because there are three parties involved in an arrangement, is the service necessarily to be interpreted as one supplied by an intermediary? Does such an interpretation amount to mockery of law in the writer’s view or something else? Nevertheless, it certainly is capable of causing irreversible hardship mainly to ‘settled’ cases of exports under service tax regime as a host of refund claims filed by many assessees are being questioned on the ground of being an intermediary.

Though the ruling of Authority for Advance Ruling is binding only in respect of applicant, due consideration is required to be granted to the fact that Authority of Advance Ruling under service tax was ruled under the chair of a retired Supreme Court judge. In this context it is relevant to note what was held by Hon. Supreme Court in Columbia Sports Wear Co. vs. Director of Income Tax 2012 (283) ELT 321 (SC) wherein inter alia Hon. Supreme Court held that “it does not mean that a principle of law laid down in the case will not be followed in future.” The services of executory nature performed by outsourced entities are different and far more detailed in terms of instructions and guidelines outlined by the receiver and would assume a much larger canvas than that played by the person acting as a link or a bridge between the supplier and the receiver. To perceive a person supplying service on his own account is generally possible in cases where scope of work is defined well providing precise details of the tasks to be performed and which is way different from a person merely arranging or facilitating a supply of goods, services or securities between two or more persons though at times there is a thin line of difference between an intermediary arranging supply of goods or services from a person supplying services by performing multiple tasks in relation to marketing of goods or service products and hence such situations would remain litigious.

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