TaxTMI 
TaxTMI 
2021 (1) TMI 544
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....dation of machines sold by SPA, training at SPA's customers' site etc. The copy of the contract has been enclosed for reference. The relevant extract from the contract relating to scope of service is as under: "Services Stovec has agreed that it shall on behalf of and as per the instruction from SPA shall provide services with respect to: a) Installation and/or upgrades of machines sold by SPA and shall also give training at SPA's customer site in co-ordination with SPA b) Machines sold by SPA in India and which are under warranty period c) Machines which are under service contracts with SPA d) Machines which are not having warranty and/or service contracts" Apart from the above mentioned scope of services, Stovec will also receive commission for service contracts sold in India from SPA 4. The applicant submitted that they shall raise the invoice to SPA for services mentioned under Clause (a) to (c). In the case of service at (d), the Applicant shall raise the invoice to Indian Customer for such services. The relevant extract of the contract with regard to invoicing has been reproduced hereunder. The sample copies of invoi....
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....site supply of service as per the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017? Question 2. Whether, in the facts and circumstances, the specified transaction of the Applicant is to be reckoned as being provided to SPA or to the customers of SPA located in India? Question 3. - Whether, in the facts and circumstances, the specified transaction of the Applicant could be categorized as that of an "intermediary" as per Section 2(13) of The Integrated Goods and Service Tax Act, 2017? Question 4. - Whether, in the facts and circumstances, the specified transaction qualifies to be "Export of service" as per Section 2(6) of The Integrated Goods and Services Tax Act, 2017? Applicant's interpretation of law and/or facts PART-A Whether, in the facts and circumstances, the specified transaction of the Applicant should be categorized as individual supply or composite supply of service as per the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017? 1. The Applicant submitted that the activities agreed between parties in terms of the contract include services for inst....
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.... or services or both, means- (a) where a consideration is payable for the supply of goods or services or both, the person who is liable to pay that consideration; (b) where no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available; and (c) where no consideration is payable for the supply of a service, the person to whom the service is rendered," 6. Therefore, in cases of supply involving consideration, the person who is liable to pay consideration would be considered as the recipient of supply. In the present case, the consideration is paid by SPA and hence, the Applicant believes that SPA would be considered as 'service recipient' for the supply of services by the Applicant for the specified transaction. 7. Moreover, the Applicant submitted that the meaning of expression 'recipient of services' had arisen under the erstwhile Service Tax regime. Although the term 'recipient of service' was not defined in the Service tax legislation, 'Taxation of Services: An Education Guide' issued by Tax Research Unit Wing of CBE....
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.... to tax on sale of goods. Service Tax can be said to be a tax on sale of service. Just as sale of goods which attracts sales tax is transfer of property in goods by a person (seller) to another person (buyer) for some consideration, a service is an activity carried out by a person for another for some consideration. Just as in case of sale of goods it is buyer who is obliged to pay for the goods purchased, in case of provision of service, it is recipient of the service who is obliged to pay for the service to the service provider. Thus the service recipient is the one who is obliged to pay for the services to the service provider and whose need is satisfied by the service or in other words, is the buyer of service. 10. In addition to above, the Applicant also relied upon the order of Hon'ble CESTAT in the case of GAP International Sourcing (India) Pvt. Ltd. vs. Commr. of S.T., Delhi 2015 (37) S.T.R. 757 (Tri. - Del.) = 2014 (3) TMI 696 - CESTAT NEW DELHI wherein the Tribunal has analyzed as to who ought to be considered as 'service recipient' in any transaction. The relevant extract of the decision is reproduced hereunder, for ready reference. "8.3 Though the term 'reci....
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.... Whose needs would be satisfied as a reason of provision of service SPA 13. Considering the above, the Applicant submittted that the service recipient for specified transaction would be SPA. PART C - Whether, in the facts and circumstances, the specified transaction of the Applicant could be categorized as that of an "intermediary" as per Section 2(13) of The Integrated Goods and Service Tax Act, 2017? 14. The term 'intermediary' has been defined under Section 2(13) of The Integrated Goods and Service Tax Act, 2017 which has been reproduced hereunder: "(13) "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;" 15. From perusal of above, the Applicant understands that there are following attributes which should be present in any arrangement to qualify as intermediary. i. An intermediary means a broker, agent or any other person by whatever name called ii. The person arranges or facilitates....
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....me called' is the legal principle of Ejusdem Generis. 21. The application of this Rule is necessitated because of the use of a general phrase preceded by specific words. The words 'ejusdem generis' mean 'of the same kind or nature'. Ejusdem generis is a rule of interpretation that where a class of things is followed by general wording that is not itself expansive, the general wording is usually restricted things of the same type as the listed items. 22. The Golden Rule of Interpretation enunciated and espoused by various judicial pronouncements states that the words of a statute must be given their plain grammatical meaning. If the intention of the legislature has to be gathered and deciphered in its proper spirit having due regard to the language used therein. When the words are not clear or are ambiguous, aid of other rules of interpretations must be used 23. The rule of Ejusdem Generis is applied in the following cases: • The statute enumerates the specific words; • The subjects of enumeration constitute a class or category; • That class or category is not exhausted by the enumeration; • The general terms following the....
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....om the agreement itself. Thus, the first condition to be satisfied for a person to qualify as an "intermediary" is not fulfilled. The Applicant does not "arrange or facilitate provision of services or supply of goods" 29. The Applicant submittted that the second part of the definition of the term 'intermediary' defines the nature of transactions which if provided by a broker or an agent or by any person (by whatever name called) would be covered under the services provided by an 'intermediary'. 30. This second condition needs to be cumulatively fulfilled, i.e. it should entail "arrangement" or "facilitation" of a 'main supply of goods or services' between the service recipient, i.e. the overseas entity and its customers in India. In other words, an 'intermediary' is expected to play an active role in arranging or facilitating the actual provision of service or supply of goods between the real service provider and real service recipient. Hence, there should be an interaction or facilitation with the feature of supply of the (main) service and the 'intermediary' should have a role in the main supply of goods or services being rendered by the service recipient to its customer....
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....which provides that a person 'who arranges or facilitates a provision of a service, but provides the main service on his own account is also excluded from the definition of "intermediary''. The Education Guide specifically recognizes and well explains that all situations of provision of service on a client's behalf, will not qualify as an "intermediary". Where the service is provided on the "own account" of the service provider, the categorization as an "intermediary" does not arise. The relevant extract of the Education Guide issued by the CBEC in June 20, 2012 is reproduced below: "5.9.6 What are "Intermediary Services"? ... Similarly, persons such as call centers, who provide services to their clients by dealing with the customers of the client on the client's behalf, but actually provided these services on their own account, will not be categorized as intermediaries." 37. More so, the clarification above fully recognizes an arrangement between a service provider and a service recipient, where customers of the service recipient are dealt with by the service provider, shall not qualify to be an "intermediary". This principle well covers all sub-contractin....
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....tern in present case. 43. Apart from above, the guiding principles provided in Education Guide issued under during erstwhile Service Tax regime for determining whether a person is acting as an intermediary or not can be discussed here to analyse if the supply of service by the Applicant can be categorized as intermediary or not. These guiding principles are: (i) Nature and Value: An intermediary cannot alter the nature or value of the service, the supply of which he facilitates on behalf of his principal, although the principal may authorize the intermediary to negotiate a different price. Also, the principal must know the exact value at which the service is supplied (or obtained) on his behalf, and any discounts that the intermediary obtains must be passed back to the principal. (ii) Separation of Value: The value of an intermediary's service is invariably identifiable from the main supply of service that he is arranging. It can be based on an agreed percentage of the sale or purchase price. Generally, the amount charged by an agent from his principal is referred to as "commission". (iii) Identity and title: The service provided by the intermediary on....
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....f the definition of the intermediary services were analysed and it was held that when the services are provided on a principal to principal basis, then the activity will not qualify under the definition of intermediary. 46. In the case of Chevron Philips Chemicals India Private Limited [2020-TIOL-178-CESTAT-MUM] = 2019 (12) TMI 1066 - CESTAT MUMBAI, the appellants are appointed by their overseas counterpart CPC Global for sales promotion of the goods for their client in the defined territory. The appellant has no role in fixation of price nor they negotiate in any manner between CPC Global and their clients relating to sales promotion of the goods sold. Therefore, it was observed that the appellant cannot be called as an intermediary under Rule 2(f) and Rule 9 of the POPS Rules, 2012. 47. In the case of Commissioner of Goods and Service Tax Gurgaon-II Vs. Orange Business Solutions Pvt. Ltd. [2019-TIOL-1556-CESTAT-CHO] = 2019 (5) TMI 1351 - CESTAT CHANDIGARH, the respondent provides outsourced services and back office services for Orange group entities. The following was observed by Chandigarh CESTAT: "11. From the agreement placed before us and arguments adduced befo....
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....get admission to the college and for referring investors borrow loan from foreign based bank to the people who wishes to settle in Canada. The Chandigarh CESTAT interpreted the definition of 'intermediary' under the erstwhile service tax regime and held that this activity undertaken by the Appellant which is in the nature of promoting the business of the college will not be covered under the definition of intermediary as the commission earned by them is covered under Business Auxiliary Service which is not the main service provided by the main service providers namely banks/university. Further it was held that the services rendered by the appellant duly qualified as export of service in terms of Rule 3 of POPS Rules, 2012. 50. In the case of M/s Godaddy India Web Services Pvt. Ltd. [2016-TIOL-08-ARA-ST] = 2016 (3) TMI 355 - AUTHORITY FOR ADVANCE RULINGS, the Applicant proposed to engage in promotion and marketing of GoDaddy US services in India, supervision of quality of third party customer care center services and payment processing services. The question for determination of AAR was that while providing business support services to GoDaddy US, is the Applicant providing any s....
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....side India Fulfilled 3. Place of supply of service is outside India To be analysed 4. Payment for such service is has been received by the supplier of service in convertible foreign exchange Fulfilled 5. Supplier and recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in Section 8 Fulfilled 55. Considering this, it would be relevant to decide the place of supply for the specified transaction. Section 13 of the IGST Act, 2017 is applicable in case where location of supplier or location of recipient is outside India. Further, as per Section 13(2), the place of supply shall be the location of recipient of services provided the services are not covered in sub-section (3) to (13). From perusal of sub-section (3) to (13), we believe that Sub-section (3) and sub-section (8) would be relevant for discussion: "(3) The place of supply of the following services shall be the location where the services 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 ....
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....to know whether the specified transaction would qualify to be export of services in the GST regime. 61. Without prejudice to above submission, the Applicant respectfully has requests to grant an opportunity of personal hearing in this matter in order to explain the matter more lucidly. The Applicant reserves their right to modify, rescind or alter any part of submissions and to place additional evidence in support of their contention at the time of personal hearing. Personal Hearing 62. Personal hearing in the matter was held on 17-08-2020. Authorised representative of the company appeared on behalf of the applicant and re-iterated the submission made in the Application. DISCUSSION & FINDINGS 63. We have considered the submissions made by the applicant in their application for advance ruling as well as the arguments/discussions made by their representative. We have also considered the issues involved on which Advance Ruling is sought by the applicant. 64. At the outset, we would like to state that the provisions of both the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017 are the same except for certain provisions. Therefor....
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....PA for services mentioned under Clause (a) to (c). In the case of service at (d), the Applicant shall raise the invoice to Indian Customer for such services. The relevant extract of the contract with regard to invoicing has been reproduced hereunder. "Stovec shall raise an invoice for the said services: - to SPA, if the service belongs to service mentioned under Clause 1(a) to Clause (c) - to the Indian Customer, if the service belongs to service mentioned under Clause 1(d)" 67. The applicant submitted that the present application seeking Advance Ruling is restricted to and is in respect of the activities covered under clause (a) to (c) of the 'Services' section of the contract (hereunder referred as 'specified transactions'). Accordingly, we take up the one by one question on which applicant sought the Advance Ruling. 68. The first issue is here to decide whether the transaction of applicant should be treated as individual supply or composite supply as per CGST Act, 2017. Now, first we decide whether the supplies are naturally bundled & in conjunction with each other as required by the definition of "composite supply". Hence, we refer to the defini....
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....the other services combined with such service are in the nature of incidental or ancillary services which help in better enjoyment of a main service. For example, service of stay in a hotel is often combined with a service or laundering of 3-4 items of clothing free of cost per day. Such service is an ancillary service to the provision of hotel accommodation and the resultant package would be treated as services naturally bundled in the ordinary course of business. • Other illustrative indicators, not determinative but indicative of bundling of services in ordinary course of business are - • There is a single price or the customer pays the same amount, no matter how much of the package they actually receive or use. • The elements are normally advertised as a package. • The different elements are not available separately. • The different elements are integral to one overall supply - if one or more is removed, the nature of the supply would be affected. No straight jacket formula can be laid down to determine whether a service is naturally bundled in the ordinary course of business. Each case has to be individu....
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....rvice Charges towards visit of service engineer- "Working hours" b) Service Charges towards visit of service engineer- "Overtime hours" and c) Service Charges towards visit of service engineer- "Travelling hours". From the head of said charges in can be concluded that all the service i.e. Working hours, travelling and overtime hours are naturally bundled service and supplied in conjunction with each other in the ordinary course of business. Hence, the applicant service falls under the definition of "composite supply". 70.3 There should be one principal supply. The applicant is supplying the service of installation/up-gradation & training and said supply of service is a principle supply as such they are charging per hour for the said service under the head "Working hours" and other service like "travelling hours" and "Overtime hour" are naturally bundled service to the main service. The applicant satisfies all the above three conditions, hence the applicant services get covered under the definition of "composite supply". 71. Now we take up the second question of the applicant which is regarding the recipient of the service supplied by the applicant. The applicant sought ....
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....e to the recipient located in India. 73. The applicant has referred the Ruling of M/s.Volvo-Eicher Commercial Vehicles Ltd. of Appellate Authority of Advance Ruling {Order No. KAR/AAAR-14B/2019-20 dated 06.20.2020} = 2020 (8) TMI 522 - APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA wherein it is Ruled that the person who is required to make a payment for getting the job done is the recipient of service. The said Ruling is not applicable in the instant case as such the facts and circumstances of the said Ruling are totally different from the applicant case and therefore, cannot be applied in the instant case. Further as per Section 103 of the CGST Act, any Advance Ruling is binding on the Applicant who has sought it and on the concerned officer or the jurisdictional officer in respect of the Applicant. Accordingly, AARs Ruling as cited above can't be relied upon in the present case of the Appellant. 74. We, now take up the third question of the applicant that specified transaction is to be categorized as that of an "intermediary" as per Section 2(13) of The Integrated Goods and Service Tax Act, 2017 or otherwise. 75. To examine whether the applicant can be categorized as....
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.... all persons other than broker and agent and hence a broker or an agent or any person (other than a broker or agent) can be an intermediary. This means that any other person would naturally exclude a broker or an agent. The reliance placed by the assessee on the judgments based on ejusdem generis is not applicable in the present case as the judgments are related to "other names" and not "other persons". They have also argued that the principle of ejusdem generis would also be applicable in interpreting the definition of 'intermediary' whereby the phrase 'any other person, by whatever name called' should be read in conjunction with the terms 'an agent' or a 'broker' and hence the scope of the term 'intermediary would get limited to only such persons who act similar to an agent or a broker or such class of individuals. We have considered this argument of the Appellant and find that canon of statutory construction 'ejusdem generis' is not applicable in this case. Ejusdem generis is a canon of statutory construction where, when general words follow the enumeration of particular cases of things, the general words will be constructed as applying to things of the same general class as tho....
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....diary is a person between the supplier and the recipient who arranges or facilitates the supply. The terms 'arrange' and 'facilitate' have not been defined in the Act. Accordingly we take the help of dictionary meaning. Merriam Webster Dictionary defines the two words as: Facilitate : to make (something) easier, to help cause (something); to help (something) run smoothly and effectively. Arrange : to bring about an agreement or understanding concerning; to make preparations, to move and organise (things) into a particular order or position, to organise the details of something before it happens, to plan (something). Therefore, a general understanding of the term 'arranging' or 'facilitation' would cover a very wide range of activities. To understand the nature of the transaction, the agreement for supply of services by the applicant to the customer of SPA in India is verified and found that work entrusted to the applicant are as under : Services Stovec has agreed that it shall on behalf of and as per the instruction from SPA shall provide services with respect to: a) Installation and/or upgrades of machines sold by SPA and shall also ....
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....entioned under clause 1(a) to (d). b) Stovec shall provide to area-co-rdinator of SPA once in week information pertaining to upcoming service visits at SPA's customers, for service mentioned under clause 1 (a) to (d). c) Timely submission of Service Charge Invoice & Commission Invoice to SPA's area co-ordinator. d) -------- e) -------- f) Stovec shall take care about travel arrangement for the Indian technician in general as well as for Indian technicians in general as well as for technicians from Austria for the visit in India. g) Stovec will send technicians to SPA on a regular basis for training. SPA will arrange training for technicians once in a year and based on the content of the training, the requirement of attendance (no. Of days) to be decided on mutual consent basis. Stock of consumables, replenishment and prices a) Stovec is required to maintain Stock of parts and consumables in order to provide adequate services for SPA's machine, whether the Machine is under warranty, service contract or otherwise. Stovec shall deliver/ provide the required parts/consumables at SPA's customer premises from its sto....
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.... import certain raw materials and components from SPG Prints. Under Regulation 23 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, all Related Party Transactions shall require prior approval of the Audit Committee and all material Related Party Transactions shall require approval of Members of the Company. Taking into consideration the past trends, it is likely that transactions with SPG Prints during the financial year 2019 & 2020, may cross the materiality threshold prescribed under Listing Regulations and thus would require approval of shareholders by Ordinary Resolution. Accordingly transactions entered/ to be entered with SPG Prints during the financial year 2019 & 2020, as set out at Item No. 9 of this Notice, has been placed before the Members for their approval by way of Ordinary Resolution. The particulars of the contracts / arrangements / transactions are as under: Particulars Information Name of the Related Party SPGPrints B.V. Nature of Relationship Holding Company of the Company Name of Director(s) or Key Managerial Personnel who is related, if any. None except Mr. Dirk J....
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....roblem of customer, whereas the release of an action towards the customer will come from SPA's area co-ordinator; SPA shall provide necessary training and documentation to applicant's (Stovec's) employee(s) to execute the service of its machine in India and SPA shall inform applicant (Stovec) the schedule of installation/upgradation of SPA machine at customer's premises and also a schedule for the training to be given to the representative(s) of Indian customer's of SPA; SPA shall provide/ supply spare parts/consumables to the applicant, as may be required, to provide service(s) to SPA Customer(s); applicant (Stovec) based upon SPA's recommendation must maintain a stock to serve SPA's customers promptly; Upon completion of Service, applicant (Stovec) shall send services reports to SPA for services mentioned under clause 1(a) to (d); applicant (Stovec) shall provide to area-co-rdinator of SPA once in week information pertaining to upcoming service visits at SPA's customers, for service mentioned under clause 1 (a) to (d); Timely submission of Service Charge Invoice & Commission Invoice to SPA's area co-ordinator; applicant (Stovec) shall take care about travel arrangement for the In....
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....Provision of Services Rules, 2012 "intermediary" means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service (hereinafter called the 'main' service) between two or more persons, but does not include a person who provides the main service on his account Section 2(13) of Integrated Goods and Services Tax Act, 2017 (IGST Act) "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 77.1 From the above definitions, in essence, there does not seem to be any difference between the meaning of the term "intermediary" under the GST regime and pre-GST regime. In the pre-GST regime, an intermediary referred to a person who facilitates the provision of a main service between two or more persons but did not include a person who provided the main service on his account. Similarly, in the GST regime, an intermediary refers to a person who facilitates the supply of goods or serv....
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....oth the argument of the applicant cannot be considered favorably. 79. The argument of the applicant that he is not compensated in the form of brokerage/commission and amount paid to applicant is not some percentage of amounts to be received by SPA but it is an agreed amount based on hour spent for providing service hence he cannot be termed as intermediary. The said contention of the applicant is examined and we find that in the agreement clause of "Service Charge" it is mentioned that, "Stovec shall also be entitled to receive commission of 5% on sold service contracts in India for the above mentioned machines. For this purpose, SPA will send a quarterly commission overview." Also in the clause "Obligation of Stovec" it is mentioned that, "Timely submission of Service Charge Invoice & Commission Invoice to SPA's area co-ordinator". It can be seen in the agreement itself it is mentioned that applicant receive the commission of some percentage from SPA and SPA will send a quarterly commission overview to the applicant. Hence applicant is receiving the commission from SPA and their claim that they are not receiving any brokerage/commission is false and misleading. This clearly sho....
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....and hence not applicable - Since applicant is not supplying services on his own account but only facilitating supply between two persons, he is an intermediary service provider - Section 2(13) of Central Goods and Services Tax Act, 2017." (ii) Karnataka Advance Authority in case of M/s. : INFINERA INDIA PVT. LTD. {Advance Ruling No. KAR/AAAR-09/2019-20, dated 20-1-2020} = 2020 (1) TMI 1125 - APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA has held that, Intermediary Service - Pre-sale and marketing service provided by Appellant of the products of overseas client - Infinera US, in a "liaison capacity" is in the nature of facilitating the supply of the products of overseas client and not supplying such goods on his own account - Appellant's service not falling within the ambit of exclusion clause but appropriately classifiable as an "intermediary service' as defined under Section 2(13) of Integrated Goods and Services Tax Act, 2017, there being no difference between the meaning of the term "intermediary" under the GST regime and pre-GST regime. [paras 19, 22, 23, 25] Intermediary - Meaning under Section 2(13) of Integrated Goods and Services Tax Act, 2017....
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.... compared to other pigeon hole clauses of Section ibid, legislator's intention is clear and tax authorities have to take correct prospective on issues relating to export of services - In this era of globalization, foreign investors also require certainty and precision on tax liability - In view of above, held that AAR has jurisdiction to address aforesaid issue - Impugned order set aside and matter transferred to AAR to admit application, hear it and pronounce ruling under Section 98(4) ibid on merits within 3-4 months - Section 97(2) of Central Goods and Services Tax Act, 2017 - Article 226 of Constitution of India." Accordingly, in view of judicial prudence we members of the Authority proceed to decide the issue of Export of Service. 83. To decide whether the specified transaction is export of service we have to refer Section 2(6) of IGST Act, 2017 vide which the expression export of service has been defined. Section 2(6) of IGST Act, 2017 is read as under: (6) "export 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 plac....