TaxTMI 
TaxTMI 
2021 (8) TMI 737
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.... 3. The applicant submitted that they market the products of foreign vendor in India and provides list/details of prospective buyers in India to foreign vendor. The role of applicant ends at that stages. Thereafter if the customer is willing to buy the products of the respective foreign vendor then customer is required to directly approach the foreign vendor and applicant has no role to play. The foreign vendors neither consults applicant in relation to rates/prices of the products nor the applicant have any right to influence or assist either vendor or customer in closing the deal. It is at complete and sole discretion of the prospective buyer and foreign vendor whether to proceed with deal or not. The applicant has no role to play either during the negotiation between the parties to close the deal or even after deal is closed. The applicant provides services on its own account as an independent service provider and raises invoice upon the foreign vendor upon completion of its services. The foreign vendor makes the payment to applicant in convertible foreign exchange. 4. The applicant has submitted that the service rendered by them are eligible to be classified as Zero rated s....
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....on who arranges or facilitates a supply of goods, or a provision of service, or both, between two persons, without material alteration or further processing. Thus, an intermediary is involved with two supplies at any one time: i) the supply between the principal and the third party; and ii) the supply of his own service (agency service) to his principal, for which a fee or commission is usually charged. For the purpose of this rule, an intermediary in respect of goods (such as a commission agent i.e. a buying or selling agent, or a stockbroker) is excluded by definition. Also excluded from this sub-rule is a person who arranges or facilitates a provision of a service (referred to in the rules as "the main service"), but provides the main service on his own account. In order to determine whether a person is acting as an intermediary or not, the following factors need to be considered:- 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 princi....
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....outside India). Hence second condition is fulfilled. Condition-III place of supply of Service is outside India The service provided by the applicant is in nature of "Support Services" classifiable under HSN 9985. The place of supply in the instant case is required to be determined as per general rule i.e. Section 13(2) of IGST Act. The said sub section provides that the location of the recipient of services shall be the place of supply. In the present case the place of supply of Service is outside India as the place of recipient is outside India. Condition-IV- Payment is received in convertible foreign currency The applicant receives payment in freely convertible foreign exchange. Condition-V- Supplier of Service and recipient of service are not merely establishment of distinct person. Explanation 1.--For the purposes of this Act, where a person has,-- (i) an establishment in India and any other establishment outside India; (ii) an establishment in a State or Union territory and any other establishment outside that State or Union territory; or (iii) an establishment in a State or Union territory and an....
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....tside the purview of jurisdiction of Advance Ruling Authority. The applicant has placed reliance on the decision of Hon'ble Kerala High Court in the case of Sutherland Motgage Services Inc vs. The Principal Commissioner-WP(C) No. 32634/2019 (D) Dated 3-2-20. 13. The applicant has submitted that services provided by them are outside the purview of "Intermediary Services" and their service become eligible to be termed as Export of Services being classified as Zero Rated Supplies. 14. The applicant vide additional submission dated 5-7-21 has submitted that they provide services of conducting market survey, providing information on Indian market trends and/or marketing of products of foreign vendor in India but the same is done at applicant's own will without any agreement or obligations or undertaking or assurance of assistance in execution of any transactions further with the prospective buyer, if any. The applicant provides the brochure/details of the products of the foreign manufacturer / vendor to the industries in India and at the same time it provides market research analysis report along with potential buyers to the foreign vendor/manufacturer. The foreign vendor/manufact....
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....firmed that there is no written agreement between the parties i.e. foreign vendor and applicant. It has also mentioned that discretion to determine quantum of fees remains with it. The said certificate along with a sample copy of market research and analysis report was submitted by the applicant during the course of hearing on 30-6-21. With this submission, the applicant has again submitted the aforementioned certificate issued by foreign vendor i.e. SITEC- Sieber Engineering AG, Switzerland. The applicant has also submitted copies of 3 market research and analysis reports for perusal. 14.3 As per the applicant's understanding, it is not an intermediary who facilitates transactions between Indian buyer and Foreign vendor. It only provides services of market research and analysis along with list of potential buyers in Indian market, to the foreign vendor. Thus, as per understanding of the applicant it does not provide intermediary services. According to applicant, the services provided by it to foreign vendor falls under sub-section 2 of section 13 where place of supply is the place of service recipient and hence thereby the nature of services being export of services as the appl....
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....o the SITEC. 19. To understand the scope of supply, the Agreement/ Contract entered into between the applicant and his service recipient is to be examined. However, the applicant during the course of hearing has submitted that Shri Philip Balaram was earlier an employee of the foreign vendor M/s. SITEC-Sieber Engineering Pvt. Ltd A.G. and that he has resigned from the company and started the applicant company M/s. Max Pressure System LLP, and there is no agreement/contract between the applicant and the service recipient. We note that this leaves us with nothing much to ponder, examine and deduce to arrive at a logical and legal pronouncement of Ruling. We are faced with a situation just to decide upon whatever the applicant submits. There is no Agreement to test the applicant's submissions. We hold that Agreement/ Contract, in subject matter, will be a cornerstone upon which we may test and examine the submissions made before us. 20. We note that during personal hearing, Shri Shukla submitted that to conduct said market survey in India for the product of foreign vendor, they first search the potential customers through internet and then they contact the Indian customers and v....