2021 (4) TMI 564 - AAR - GST

Foreign supplier services qualify for zero-rated GST supply post-February 2019 under Section 16(1)(a) IGST Act

AAR Gujarat ruled on GST liability for services provided to foreign suppliers involving stevedoring, transportation, storage, bagging, and stuffing of ... Export of services or not - levy of GST on foreign supplier on their service charges - services of stevedoring, transportation, storage, bagging, stuffing and again transportation of the goods which are temporarily imported - zero rated supply or not - place of supply of services or not - HELD THAT:- The fertilizers/goods are discharged from the vessel, brought from the vessel to the custom bonded warehouse, packed in smaller bags as per the requirement of the client and thereafter dispatched from the warehouse after 2/3 months ( as per instructions of their clients) for export to the ultimate buyers of the clients of the applicant. It is therefore, apparent that the aforementioned fertilizers/goods never cross the customs barrier and mix-up with the indigenous goods as these goods were temporarily imported to India (for export purpose) and stored in customs bonded warehouses and exported from there to outside India. Whether the services such as stevedoring, transportation, storage, bagging, stuffing and again transportation of the goods (which are temporarily imported) provided by them can be considered as export of services or not? - HELD THAT:- The service recipients (the clients of the applicant located outside India in the instant case) neither have a place of business in India for which registration has been obtained nor do they have any place of business other than the place of business for which registration has been obtained, in India. In view of the above, we find that the conditions (a) and (b) are not applicable in the instant case. Further, since condition (c) above is also linked to (a) and (b), the said condition can also not be made applicable to the instant case. We, therefore, conclude that only condition(d) which states that in absence of such places as mentioned at (a),(b) and (c) above, the location of the usual place of residence of the recipient, is applicable in the instant case - thus the place of supply of services, in the instant case, will be the location of the recipient of services i.e. out of India. We therefore find that condition(ii) of Section 2(6) of the IGST Act, 2017 is also fulfilled. As per Sub-section (2) of Section 13, the place of supply of services except the services specified in sub-sections (3) to (13) shall be the location of the recipient of services, provided that where the location of the recipient of services is not available in the ordinary course of business, the place of supply shall be the location of the supplier of services. However, since the location of the recipient of services is available in the instant case i.e. outside India, we will have to find out under which sub-section of Section-13 the services provided by the applicant falls - the services such as stevedoring, transportation, storage, bagging, stuffing and again transportation of the goods (which have been temporarily imported into India as discussed earlier) would fall under sub-section(3) of Section 13, since the goods are required to be made physically available by the recipient of services to the supplier of services in order to enable the supplier to supply the aforementioned services. Condition(iii) of Section 2(6) of the IGST Act, 2017 has not been fulfilled in the instant case since the location of supply of service is not located outside India but in India and therefore the services rendered by the applicant will not be covered under ‘export of services’ - the services rendered by the applicant are not covered under ‘Export of services’ as envisaged in Section 2(16) of the IGST Act, 2017 - the aforementioned services of stevedoring, transportation, storage, bagging, stuffing and again transportation of the goods which are temporarily imported, would not be considered as ‘Export of service’ for the period prior to 01.02.2019 but would be considered as ‘Export of service’ w.e.f. 01.02.2019 onwards. Since it has determined that the services provided by the applicant are covered under ‘export of service’ w.e.f. 01.02.2019, they will be covered under the provisions of Section 16(1)(a) as export of services w.e.f. 01.02.2019. As regards the eligibility of the applicant for ‘Zero rated supply’ under Section 16 of the IGST Act, 2017, we find that the applicant shall not be eligible for ‘Zero rated supply’ as per the provisions of the said section upto 31.01.2019. However, they will be eligible for ‘Zero rated supply’ as per the provisions of Section 16(1)(a) of the IGST Act, 2017 w.e.f. 01.02.2019. Issues Involved:1. Whether the described services are considered to be Export of Service.2. Eligibility for Zero Rated Supply under Section 16 of the IGST Act, 2017.Issue-Wise Detailed Analysis:1. Whether the described services are considered to be Export of Service:The applicant, a service provider operating at Kandla port, handles imported fertilizers in bulk for foreign suppliers. The services include stevedoring, transportation, storage, bagging, stuffing, and dispatching the goods which are temporarily imported into India and stored in custom bonded warehouses for export. The applicant sought to determine if these services qualify as export of services under Section 2(6) of the IGST Act, 2017.To qualify as export of services, the following conditions must be met:- The supplier of service is located in India.- The recipient of service is located outside India.- The place of supply of service is outside India.- The payment for such service has been received in convertible foreign exchange.- The supplier and recipient are not merely establishments of a distinct person.Upon review, the Authority concluded:- The supplier is located in India.- The recipient is located outside India.- Payment is received in convertible foreign exchange.- The supplier and recipient are not establishments of a distinct person.However, the place of supply of service was initially determined to be in India as per Section 13(3)(a) of the IGST Act, 2017, which states the place of supply is where the services are actually performed. This meant the services were not considered export of services up to 31.01.2019.Post 01.02.2019, an amendment to Section 13(3) of the IGST Act included services supplied in respect of goods temporarily imported for any treatment or process and exported after such treatment or process. The Authority found that the applicant's services, involving handling, packing, and dispatching goods, qualify as a 'process.' Therefore, from 01.02.2019 onwards, the place of supply is the location of the recipient of services, which is outside India, fulfilling all conditions for export of services.2. Eligibility for Zero Rated Supply under Section 16 of the IGST Act, 2017:Section 16(1)(a) of the IGST Act defines zero-rated supply as the export of goods or services. Since the applicant's services qualify as export of services from 01.02.2019, they are eligible for zero-rated supply under Section 16 from this date.Ruling:Question 1: The services such as stevedoring, transportation, storage, bagging, stuffing, and transportation of goods temporarily imported into India are not considered export of services up to 31.01.2019 but are considered export of services from 01.02.2019 onwards.Question 2: The applicant is not eligible for zero-rated supply under Section 16 of the IGST Act, 2017, up to 31.01.2019. However, they are eligible for zero-rated supply from 01.02.2019 onwards.