2018 (11) TMI 887 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2019 (20) G. S. T. L. 124 (A. A. R. – GST) – Levy of IGST – Zero-rated supply – testing services provided to its overseas group entities – place of supply – export of services or not – Held that:- In the subject case it is seen that the supplier of service is in India and the receiver of the service is outside India and therefore as per Section 7(5) of the IGST Act we find that the supply of service in this case shall be treated as a supply of service in the course of Inter-State trade.
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Applicability of provisions of Section 2(6) of the IGST Act – export of service – zero rated supply – Held that:- There is no doubt that the, supply of service in the present case satisfies clauses (i), (ii), (iv) and (v) of Section 2(6) of the IGST Act. However to qualify as an export all the conditions must be satisfied and therefore we now take upon ourselves to discuss whether the applicant also satisfies clause (iii) i.e. whethe
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to them in India by their overseas clients in respect of prototypes after due examination and testing of these prototypes. From a reading of the agreement it is very clear that the testing activities that are carried out include Functional tests, Electrical tests, Mechanical tests, Life cycle tests, Endurance tests, Illumination tests, Environmental tests, Software tests, Product robustness tests, etc. – The facts and situation in the present case clearly attract the provisions of Section 13 (3)(a) of the IGST Act and therefore it can be inferred that the said services of testing of the protypes, which are physically made available by the service receiver to the service provider, are provided in India and therefore liable to tax.
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In the present case it can safely be inferred from a reading of the provisions of Section 13(3) that the services supply of which has been rendered by the applicant to their overseas client as per the agreement is taxable under IGST Act.
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Applicant
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testing purposes, the tests could not have been conducted and therefore no reports could be generated – thus, the facts of the SGA case are different from the facts of the subject matter.
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Ruling:- The testing services being provided by the applicant in the present case is liable to IGST and cannot be treated as zero rated supply. – GST-ARA-172018-19/B-116 Dated:- 15-9-2018 – SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER PROCEEDINGS (under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and MGST ] by Behr-Hella Thermocontrol India Pvt. Ltd., the applicant, seeking an advance ruling in respect of the following question. Whether in the facts and circumstances of the case, the Applicant is liable to pay Integrated Goods a
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egistered office of the Applicant is situated at Elpro Compound, City Survey No. 4270, Chinchwadgaon, Pune – 411 033. The Applicant is a 100% subsidiary of Behr-Hella Thermocontrol GmBH, Lippstadt, Germany (hereinafter referred to as BHTC Germany ). The Applicant is registered under GSTIN No. 271800000581ARQ. 2. In the normal course of business, the Applicant has entered into service agreements with BHTC Germany and its other overseas group entities such as Behr-Hella Thermocontrol, Inc. (hereinafter referred to as BHTC USA ) and Behr-Hella Thermocontrol (Shanghai) Co. Ltd. (hereinafter referred to as BHTC Shanghai ), inter alia, for providing testing services. Hereto annexed and marked as Exhibit A is the copy of the Service Agreement entered into by the Applicant with BHTC Germany. 3. The testing services provided by the Applicant are in relation to the prototype goods supplied by the overseas group entities to determine whether the products so tested function in accordance with the
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application, and accordingly, the Applicant submits this Advance Ruling application to the Hon ble Authority for Advance Ruling. The Applicant craves leave to submit such further facts as may be relevant after admission of the application or at the time of hearing. Statement containing the applicant s interpretation of law and/or facts. as the case may be. in respect of the questions(s) on which advance ruling is required In light of the facts of the case (as explained in Annexure I) and the question in respect of which the Applicant seeks an Advance Ruling, the Applicant s interpretation of facts and law in respect of the aforesaid questions is as follows: Question: Whether in the facts and circumstances of the case, the Applicant is liable to pay Integrated Goods and Services Tax on the testing services provided to its overseas group entities, being a zero-rated supply? Applicant s submissions 1.1 With effect from 01 July 2017, indirect tax regime in India has shifted from multiple t
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pt of destination based tax on consumption? Ans. The tax would accrue to the taxing authority which has jurisdiction over the place of consumption which is also termed as place of supply. 1.3 Section 7(5) of the Integrated Goods and Service Tax Act, 2017 (hereinafter referred to as the IGST Act ) provide that supply of service shall be treated as a supply of service in the course of inter-State trade or commerce when the supplier is located in India and the place of supply is outside India, 1.4. As per Section 16 of the IGST Act, export of service shall qualify as Zero rated supply and can be supplied without payment of IGST. 1.5 Thus, even if a supply is in the course of inter-State trade or commerce, the same can be supplied without payment of IGST if it qualifies as an export of service. 1.6 In terms of Section 2(6) of the IGST Act, a supply of service shall qualify as export of service when: (a) the supplier of service is located in India; (b) the recipient of service is located ou
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ere no consideration is payable for the supply of a service, the person to whom the service is rendered, and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both. ********* (105) supplier in relation to any goods or services or both, shall mean the person supplying the said goods or services or both and shall include an agent acting as such on behalf of such supplier in relation to the goods or services or both supplied. ********* 1.8 In the facts and circumstances of the present case, it is not in dispute that the Applicant is the supplier of services in terms of Section 2(105) of the CGST Act, and the overseas group entities, being liable to pay the consideration for the services supplied by the Applicant, are the recipient of services in terms of section 2(93) of the CGST Act. 1.9 Thus, condition provided und
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f the IGST Act is also satisfied. 1.15 Now the only condition that needs to be satisfied for the testing service provided by the Applicant to its overseas group entities to qualify as export and therefore a zero rated supply which can be supplied without payment of IGST is whether the place of supply is outside India. 1.16 Hence, the place of supply is relevant to decide the taxability and the status of taxability of the testing services provided by the Applicant to its overseas group entities. 1.17 The provisions for determining the place of supply of services are contained under Section 13 of the Integrated Goods and Service Tax Act, 2017 (hereinafter referred to as the IGST Act ). The relevant extracts of Section 13 of the IGST Act are reproduced below for ready reference: Place of supply of services where location of supplier or location of recipient is outside India. 13. (1) The provisions of this section shall apply to determine the place of supply of services where the location
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further that nothing contained in this clause shall apply in the case of services supplied in respect of goods which are temporarily imported into India for repairs and are exported after repairs without being put to any other use in India, than that which is required for such repairs; *********** 1.18 The terms location of the recipient of services and location of the supplier of services have been defined under Section 2(14) and Section 2(15) of the IGST Act as under: Definitions 2. In this Act, unless the context otherwise requires, – ******** (14) location of the recipient of services means,- (a) where a supply is received at a place of business for which the registration has been obtained, the location of such place of business; (b) where a supply is received at a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is received at more than one establishment,
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) of the CGST Act as under: Definitions 2. In this Act, unless the context otherwise requires, – ******** (113) usual place of residence means- (a) in case of an individual, the place where he ordinarily resides; (b) in other cases, the place where the person is incorporated or otherwise legally constituted; 1.20 In view of the above, while the location of the Applicant is in India in terms of Section 2(15)(a) of the IGST Act, the recipient of services (i.e., the overseas group entities) are located outside India in terms of Section of the IGST Act. 1.21 Further, a bare perusal of Section 13 of the IGST Act would reveal that generally, the place of supply of services shall be the location of the recipient of services in terms of Section 13(2) of the IGST Act, except in case of the services specified in sub-sections (3) to (13) of Section 13 of the IGST Act. 1.22 The Applicant understands that sub-sections (4) to (13) of Section 13 of the IGST Act are irrelevant in the present case for
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submit a test report and the contractual obligation of the Applicant towards overseas group entities in terms of the provision of testing services is complete only when the test reports are delivered to them. In other words, the provision of service is complete only when the test report is delivered to the overseas group entities. 1.27 It is submitted that the delivery of the test report by the Applicant to its overseas group entities is the most Important part of the services rendered by the Applicant. In fact, the overseas group entities, as recipient of Services, are expecting the test report and nothing apart from that. 1.28 As stated above, GST is a destination based tax on consumption of goods and services. Further, Services are something intangible in nature. Thus, service is something which is not visible but the person receiving the same is deriving some benefit from its performance. Thus, GST is levied where the service is actually getting consumed. 1.29 It is submitted that
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of service is the provision of the test report. 1.31 Further, there is no compulsion on the Applicant to return the prototype goods to the overseas group entities which further confirms that the overseas group entities are not concerned with the goods. Therefore, the actual consumption of the testing services performed by the Applicant is happening outside India in the form of the test reports. 1.32 The aforesaid position is further substantiated by the second proviso to Section 13(3)(a) of the IGST Act which provides that even though the repairing of goods is done in India, the place of supply shall be outside India if the goods after repairs are exported out of India. The rationale behind such exclusion appears to be that no GST should be levied as the goods will be ultimately used or consumed outside India. 1.33 The above contention is also supported by the judgment of the Hon ble Bombay High Court in the case of Commissioner of Service Tax, Mumbai – II v. SGS India (P.) Ltd. repor
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abroad intended to import from India. In other words, the clients abroad were desirous of confirming the fact as to whether the goods imported complied with requisite specifications and standards. Thus, client of the respondent located abroad engaged the services of the respondent for inspection and testing the goods. The goods were tested by the respondents in India. The goods were available or their samples were drawn for such testing and analysis in India. However, the report of such tests and analysis was sent abroad. The clients of the respondent were foreign clients, paid the respondent for such services rendered, in foreign convertible currency. It is in that sense that the Tribunal holds that the benefit of the services accrued to the foreign clients outside India. This is termed as export of service . In these circumstances, the Tribunal takes a view that if services were rendered to such foreign clients located abroad, then, the act can be termed as export of service . Such
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he record. If the emphasis is on consumption of service then, the order passed by the Tribunal does not raise any substantial question of law. 1.34 The aforesaid judgment of the Hon ble Bombay High Court has been followed by it in the case of The Pr. Commissioner of Mumbai Commissionerate v. QIndia Investment Advisory Pvt. Ltd. reported in 2017-TIOL-2171-HC-MUM-ST = 2017 (10) TMI 754 – BOMBAY HIGH COURT. 1.35 Since GST is also a destination based consumption tax on goods and services, relying upon the judgment of the Hon ble Bombay High Court in SGS India Ltd, (supra) and Qlndia Investment Advisory Pvt. Ltd. (supra), it is submitted that the place of supply in case of the testing Service provided by the Applicant to its overseas group companies is also outside India. 1.36 In this regard, it is further submitted that even if the services are provided from India, since the actual consumption of the testing services is taking place outside India, the place of supply of services ought to b
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ttgart, register court HRB 20260, and its principal place of business at Hansastraße 40, 59557 Lippstadt, Federal Republic of Germany, represented by its Managing Directors Mr. Thomas Schulte and Dr. Andreas Teuner (hereinafter called BHTC ) of ONE PART AND Bebr-Hella Thermocontrol India Private Limited, a Company incorporated in India and having its Registered Office at Elpro Compound, City Survey No. 4270, Chinchwadgaon, Pune – 411033, India,, represented by its Director and CEO Mr. Shrivardhan Gadgil (hereinafter called BHTCIN ) of OTHER PART. Whereas – a) BHTC, IN was incorporated on February 10, 2006. BHTCIN is in the process of undertaking activities as developer, manufacturer, producer, purchaser, seller, importer, exporter, distributor, dealer, commission agent and market representatives of all kinds of Control Equipment and Units for Air conditioning and Climate Control systems and to render services related to design, development and testing of Control Equipments and Cl
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e services related to man and machine resources as per requirement of BHTC (hereinafter referred to as Services ); and d) BHTC and BHTCIN mutually desire to set forth in this Agreement certain terms and conditions applicable to all such engagements; Now it is hereby agreed as follows: 1. Scope, Duties and Responsibilities of BHTCIN a. BHTCIN shall recruit and maintain duly qualified, skilled and experienced resources to provide services to BHTC and its group companies as agreed in the beginning of each calendar year with BHTC. These services will be provided from BHTCIN facility or on-site as per requirement of BHTC or its affiliates. b. BHTCIN will track its resources in the manner agreed with BHTC and will ensure that the time booking is done properly on respective projects, BHTCIN is expected to take care that their own project hours are not captured on BHTC projects. BHTC will receive corresponding documentation which will be a matter of a separate, operational notification. c. BHT
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services required from BHTCIN in the beginning of each calendar month covering next three months outlook of the project jobs which could be assigned to resources at BHT CIN c. The technical coordinators at BHTC shall work closely with Dianagers/ supervisors at BHTCIN and will be responsible for the quality of deliverables and the project timelines. d. BHTC will support BHTCIN for building competencies and enhance efficiency and productivity through sufficient workloads, exposure to now projects/ technologies, training and mentoring. BHTC will plan and send its experts to visit BHTCIN for technical training of resources at its own costs and the same will be invoiced separately from: BHTC to BHTCIN. e. BHTC will help BHTCIN to develop an induction training program for the new resources hired at BHTCIN which will define the initial training roadmap and also the time period after which they will be considered eligible for working on the projects. Such training costs will be bome by BHTCIN
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site at BHTC Lippstadt or at any other location. (BHTC will receive corresponding documentation) Except as expressly agreed with BHTC, BHTCIN shall bear all of its own expenses arising from its performance of its obligations under this Agreement, including (without limitation) expenses for facilities, work spaces, training, utilities and the like. 4. Ownership and Rights In relation to jobs received by BHTCIN from BHTC, all original and intermediate written material, including programs, documentation, CDs, diskettes, listings and any other material generated by BHTCIN personnel for BHTC shall belong exclusively to BHTC. 5. Confidentiality a. Except as provided by clause 5(b) herein below, BHTC and BHTCIN shall at all times during the currency of this Agreement and thereafter: i. Use their best endeavours to keep all Restricted Information confidential and accordingly not to disclose any Restricted Information to any other person; and ii. Not use any Restricted Information for any purpo
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n ownership of the BHTCIN as soon as the change is more likely than not. Upon notice of a pending change in ownership BHTC reserves the right to change the terms and conditions of this agreement without any concurrence of BHTCIN. 9. Term and Termination: a. This Agreement supersedes the Service Agreement between BHTC and BHTCIN dated January 1, 2012 and amendments thereof and shall come into force on the date of its execution and shall lasts until 315 December 2015 and will be automatically renewed if none of the parties terminates within ninety (90) days in advance. b. If BHTCIN Commits any act of insolvency or any provision for winding up is admitted against BHTCIN, BHTC shall be entitled to forthwith terminate this Agreement. c. If BHTCIN commits a material breach of the provisions of this Agreement which is not cured within thirty (30) days of the date of receipt of a cure notice by BHTCIN, BHTC shall be entitled to terminate this Agreement. 10. Force Majeure If the performance of
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ications All amendments or modifications to this Agreement must be in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party 13. Governing LAW This Agreement Shall be subject to the laws of the Federal Republic of Germany. For all claims arising out of or in connection with this Agreement – as far as statutorily allowed -, the courts competent for Behr-Hella Thermocontrol GmbH domicile shall have jurisdiction. Additional submissions 06.09.2018 WRITTEN SUBMISSIONS 1. At the outset, the Applicant expresses their gratitude to this Hon ble Authority for Advance Ruling for granting a patient hearing to the Applicant on 29 August 2018. Pursuant to the liberty granted, the Applicant hereby makes the following submissions in addition and without prejudice to the submissions made in the Application dated 19 June 2018 and during the course of the hearing on 08 August 2018 and 29 August 2018. BRIEF FACTS: 2. Behr-Hella Thermocontrol India Pv
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f the application. The Said submissions are summarized as follows: (i) The services of testing of the prototypes provided by the Applicant to its group companies are appropriately classified under Section 13(2) of the Integrated Goods and Services Tax Act, 2017 ( IGST Act ); (ii) The services of testing of prototype and providing the report based on which mass production is undertaken is more in the nature of advisory/ consultancy service, rather than the services prescribed under Section 13(3) of the IGST Act which, inter alia, entail provision of service on the goods made available physically by the recipient of service and which are subsequently returned to the recipient. The classic examples of services prescribed under Section 13(3) of the IGST Act are repair of car, maintenance of machines etc.; (ii) The service of the Applicant is not complete until the report is delivered to the overseas group companies, i.e., the recipients of services. The said recipients of services are inte
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vice tax regime, as applicable prior to 2012, i.e., prior to the negative list based approach of taxation of services, the conditions prescribed for qualifying as export of services were laid down in the Export of Services Rules, 2005, The relevant extracts Of the Export of Services Rules, 2005 are reproduced below: 3. Export of taxable service. – The export of taxable service shall mean, – ****** (2) in relation to taxable services specified in sub-clauses (a), (), (h), (i), (i), (1), (m), (n), (o), (s), (t), (u), (w), (x), (y), (2), (zb), (zc), (zi), (zj), (zn), (zo), (zq), (zr), (zt), (zu), (zu), (zw), (zza), (zzc), (zzd), (zzp, (zzg), (zzh), (zzi), (zzj), (zzl), (zzm), (zzn), (zzo), (zzp), (zzs), (zzt), (zzu), (zzw), (zzx) and (zzy) of clause (105) of section 65 of the Act, Such services as are performed outside India: Provided that if such a taxable service is partly performed outside India, it shall be considered to have been performed outside India; Provided further that for the
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ance of service to the location of the recipient of service. G. The aforesaid amendment indicates that the intention of the legislature at all times was to treat the said testing and analysis services, the report for which was issued to the overseas service recipient as export of service, based on the location of the recipient of service. The key factor being that service tax was a destination based consumption tax and the services with regard to the said testing were being consumed outside India, The Frequently Asked Questions (FAQs) to the Central Goods and Services Tax Act, 2017 published by the CBI&C states that Goods and Services Tax is also a destination based consumption tax and hence, the same intent should be applicable to the Goods and Services Tax law as well. The copy of the Export of Service Rules, 2005 (prior and post the amendment of 2011) is annexed at page numbers 6 to 16 Of the second compilation of documents. The copy of the FAQs to the Goods and Services Tax Act
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service, or to a person acting on behalf of the provider of service, in order to provide the service: Provided that when such services are provided from a remote location by way of electronic means the place of provision shall be the location where goods are situated at the time of provision of service: Provided further that this clause shall not apply in the case of a service provided in respect of goods that are temporarily imported into India for repairs and are exported after the repairs without being put to any use in the taxable territory, other than that which is required for such repair (b) services provided to an individual, represented either as the recipient of service or a person acting on behalf of the recipient, which require the physical presence of the receiver or the person acting on behalf of the receiver, with the provider for the provision of the service. I. In view of the aforesaid, it is submitted that the provisions of Section 13(3) and 2(6) of the IGST Act are s
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ntended to import from India. In other words, the clients abroad were desirous of confirming the fact as to whether the goods imported complied with requisite specifications and standards. Thus, client of the respondent located abroad engaged the services of the respondent for inspection and testing the goods. The goods were tested by the respondents in India. The goods were available or their samples were drawn for such testing and analysis in India. However, the report of such tests and analysis was sent abroad. The clients of the respondent were foreign clients, paid the respondent for such services rendered, in foreign convertible currency. It is in that sense that the Tribunal holds that the benefit of the services accrued to the foreign clients outside India. This is termed as export of service . In these circumstances, the Tribunal takes a view that if services were rendered to such foreign clients located abroad, then, the act can be termed as export of service . Such an act do
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submitted that said judgment in the case of SGS India Pvt. Ltd. (supra) has been followed by the Hon ble Bombay High Court in the case Of QIndia Investment Advisory Pvt. Ltd. reported in 2017-TIOL-2171-HC-MUM-ST = 2017 (10) TMI 754 – BOMBAY HIGH COURT. The copy of the said judgment has been attached at page 31 of the first compilation of documents. L. The aforesaid two judgments are issued under the Export of Services Rules, 2005. The Hon ble Tribunal, in Commissioner of Central Excise, Pune-l v/ s. Sai Life Sciences Ltd. reported in 2016 (42) STR 882 (Tri.- Mum.) = 2016 (2) TMI 724 – CESTAT MUMBAI relying upon the judgment of SGS India Pvt. Ltd. (supra) has held that even for the period post 01 July 2012, i.e., post the insertion of the Place of Provision of Services Rules, 2012 and the negative list based taxation of services, the testing services provided to overseas entities wherein the report is sent outside India qualify as export of services. A copy of the said judgment of Sai
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50) ELT 514 (Bom.) = 2017 (3) TMI 347 – BOMBAY HIGH COURT; (Ill) Shree Sai Vamika Industries v/ s. Union of India reported in 2017 (347) ELT 93 (Gau.) = 2015 (12) TMI 1778 – GAUHATI HIGH COURT The copies of the said judgments are attached at pages 31 to 36 of the second compilation of documents. In view of the aforesaid, it is submitted that the place of supply of the testing services provided by the Applicant is outside India and the testing services qualify as export of service in terms of Section 2(6) of the IGST Act. 03. CONTENTION – AS PER THE CONCERNED OFFICER The submission, as reproduced verbatim, could be seen thus- M/s. Behr Hella Thermocontrol India Pvt. Ltd. have raised the following question on which advance ruling is required. Whether in the facts and circumstances of the case, the applicant is liable to pay Integrated Goods and Services Tax on the testing services provided to its overseas group entities, being a zero-rated supply? Above question of M/s. Behr Hella Thermo
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ices to the supplier of services, or to a person acting on behalf of the supplier of services in order to provide the services: Provided that when such services are provided from a remote location by way of electronic means, the place of supply shall be the location where goods are situated at the time of supply of services: Provided further that nothing contained in this clause shall apply in the case of services supplied in respect of goods which are temporarily imported into India for repairs and are exported after repairs without being put to any other use in India, than that which is required for such repairs; (b) services supplied to an individual, represented either as the recipient of services or a person acting on behalf of the recipient, which require the physical presence of the recipient or the person acting on his behalf, with the supplier for the supply of services. The applicant has entered into service agreement with BHTC Germany. The prototype goods are supplied by BHT
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ction 8; The applicant satisfies the clauses of sec(2)(6) and as the place of supply of service is outside India, this office is of the view that the applicant is not liable to pay Integrated Goods and Services Tax on the testing services provided to its overseas group entities. The applicant may carry out export of service under LUT/Bond without payment of IGST or may carry out export with payment of IGST and claim refund later on. 04. HEARING The case was taken up for preliminary hearing on dt. 13.06.2018, with respect to admission or rejection of the application when Sh. Prasad Paranjape, Advocate along with Sh. Arun Jain, Advocate appeared and requested for admission of application as per their contentions in ARA application. They were specifically informed that the question that they have raised in application is with respect to place of supply which is not covered in the scope of section 97 of CGST Act and therefore cannot be entertained. Accordingly they were requested to immedi
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ne Division, Pune appeared and made written submissions. 05. OBSERVATIONS 5.1 We have perused the records on file and gone through the facts of the case and the submissions made by the applicant and the department. 5.2 facts of the subject matter are that the Applicant has entered into service agreement for providing testing services in relation to the prototype goods supplied by their overseas clients. The tests are directly carried out on the prototype goods provided by the overseas group entities and based on the same Applicant prepares the testing report and sends across the said report to their overseas clients by way of emails. The prototype goods are usually not sent back and the Applicant receives the consideration in convertible foreign exchange. The issue that has been raised by the applicant is with respect to place of such supply of services rendered by them. They are contending that the place of supply is outside India and therefore such services have been exported by them
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port of services means the supply of any service when,- (i) the supplier of service is located in India; (ii) the recipient of service is located outside India; (iii) the place of supply of service is outside India; (iv) the payment for such service has been received by the supplier of service in convertible foreign exchange; and (v) the supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in section 8; 5.6 There is no doubt that the, supply of service in the present case satisfies clauses (i), (ii), (iv) and (v) of Section 2(6) of the IGST Act. However to qualify as an export all the conditions must be satisfied and therefore we now take upon ourselves to discuss whether the applicant also satisfies clause (iii) i.e. whether the place of supply in the subject case is outside India. We agree with the applicant that the place of supply is relevant to decide the taxability and the Status of taxability of the
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es are actually performed, namely:- (a) services supplied in respect of goods which are required to be made physically available by the recipient of services to the supplier of services, or to a person acting on behalf of the supplier of services in order to provide the services: Provided that when such services are provided from a remote location by way of electronic means, the place of supply shall be the location where goods are situated at the time of supply of services: Provided further that nothing contained in this clause shall apply in the case of services supplied in respect of goods which are temporarily imported into India for repairs and are exported after repairs without being put to any other use in India, than that which is required for such repairs (b) services supplied to an individual, represented either as the recipient of services or a person acting on behalf of the recipient, which require the physical presence of the recipient or the person acting on his behalf, w
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vice provider, are provided in India and therefore liable to tax. 5.9 The argument of the applicant is that the services provided by the applicant in this case, as per the agreement, are completed only when the test reports are sent to their overseas clients is not tenable for the reason that first of all the service of testing provided by the applicant on the basis of examination and physical verification of prototypes is in respect of verification of traits, characteristics and defects, if any, in respect of prototypes sent to the applicant and this service of testing is over once on the basis of examination and verification of prototype, the test report is generated and sent via mail as stated by the applicant and therefore provision of testing service is over and it is clear as per detailed discussions above, that the service is completed and is clearly provided in India. Thus the event and provision of testing service is over and the service is clearly provided in India as per Sec
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ed from a reading of the provisions of Section 13(3) that the services supply of which has been rendered by the applicant to their overseas client as per the agreement is taxable under IGST Act. 5.10 Further we specifically find that in the SGS case cited by the applicant, the facts are different. In that case the overseas clients of SGS used the services of SGS in inspection/ test analysis of the goods which the clients located abroad intended to import from India. The tests were conducted on sample goods and the said goods were not made physically available by their overseas client. In fact the overseas clients would import the goods only after the goods were tested by SGS and a report was sent to that effect. The import would occur only the reports sent were found to confirm that the goods imported complied with requisite specifications and standards, In the subject case the situation is different. Here the overseas client had made the goods physically available to the applicant in
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