TaxTMI 
TaxTMI 
2020 (12) TMI 1329
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....25,256/- 65,25,256/- 3 D2/20-21 ZS0405200063894, dated 9-5-2020 December, 2017 31,78,122/- 31,78,122/- 4 D3/20-21 ZQ0404200481993, dated 29-4-2020 January, 2018 15,79,670/- 15,79,670/- 5 D4/20-21 ZO0404200482171, dated 29-4-2020 February, 2018 83,63,591/- 83,63,591/- 1.1 Since, there is a common issue involved in all the above five appeals, as such, the same are being taken up for decision, collectively, through this common order. 2. Briefly stated that the appellant was registered with the Department vide GST No. 04AAACC7149P1ZD under CGST Act, 2017 (hereinafter referred to as 'the Act'). The appellant had filed five separate applications for Refund claim of tax paid on export of services i.e. zero-rated supply on payment of IGST, through GST Portal, in prescribed Form GST RFD-01 along with all requisite documents, with the jurisdictional CGST office as per Circular No. 125/44/2019-GST, dated 18-11-2019. 2.1 That the appellant had filed the refund claims for the above-said periods against which various deficiency memos were issued except one pertaining to the period February, 2018. Refund claims were refiled and again deficiency memos were issu....
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....time barred (except the refund claim for the month of February, 2018) and that unjust enrichment was also involved. 4. Being aggrieved, with the impugned orders, the appellant preferred the subject appeals on similar grounds which, inter alia, are summarized as under. 4.1 That the principles of natural justice has been violated as it had been passed without giving opportunity to the appellant to file reply and attend personal hearing. That in April and May, 2020 lockdown was in force. That vide Notification No. 35/2020-C.T., dated 3-4-2020 vide which due dates under various GST Acts were extended to 30-6-2020 and were further extended to 31-8-2020 vide Notification No. 55/2020-C.T., dated 27-6-2020. That, therefore, the date of filing reply to SCN stood extended, first to 30-6-2020 and then to 31-8-2020. That the sanctioning authority had completely ignored this aspect and had proceeded to pass the order ex parte, assuming that the appellant had not filed any reply to the SCN. 4.2 That the sanctioning authority has erred in rejecting the refund claim on the ground that the appellant had acted as a "Recruitment Agent" whose work was to facilitate the new recruitmen....
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....ng the students to the universities/colleges. That they did not impart any education service to any student on behalf of the universities/colleges. That the appellant cannot even guarantee admission to anyone. That granting or denying admission is the sole discretion of the Educational Institute That the students also had the discretion to opt for any college or university, if he or she gets offers from more than one Institute. That the student can even change the institution or the course midway or may even discontinue his education altogether. That therefore, the appellant had no role to play in imparting the service of Education. That the provision of service of education begins after the student had paid his fee, has taken admission and has joined the course in an Educational Institute and the course has started. That, whereas, the role of the appellant ends much prior to this stage. That the role of the appellant mainly ends once application forms has been filled. Thereafter, the Educational Institute has to decide as to whether it has to grant or deny admission to the candidate. That the actual imparting of Education service starts much later. Therefore, by no stretch of imag....
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.... were refiled and again deficiency memos were issued and this process was repeated many times. That the refunds filed through the GST portal were originally filed on time and in such a situation the refunds cannot be treated to have been filed late i.e. on 28-2-2020 as assumed by the sanctioning authority. Pertinently, that the common portal has been so designed that it does not permit the downloading of refund utility file if a Deficiency Memo for the earlier period has been issued. That as a result, the assessee was not able to file the refund claim for the subsequent period when a Deficiency memo for the earlier period was pending. That this particular function of the common portal is not in tune with the provisions of law as there is no legal provision under the CGST/IGST Act which prohibits the filing of the refund claim in a situation where the Deficiency Memo issued for the earlier period is pending. That the common portal cannot override the legal provisions. Had there been no such restriction on the common portal, the refund claims would have been filed much ahead of time. 5. Personal Hearing in the case was held on 3-9-2020, Sh. Sudeep Singh Bhangoo, Advocate and au....
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....cannot be treated to have been filed late i.e. on 28-2-2020; pertinently, that the common portal has been so designed that it does not permit the downloading of refund utility file if a Deficiency Memo for the earlier period has been issued; that as a result, the assessee was not able to file the refund claim for the subsequent period when a Deficiency memo for the earlier period was pending; that this particular function of the common portal is not in tune with the provisions of law as there is no legal provision under the CGST/IGST Act which prohibits the filing of the refund claim in a situation where the Deficiency Memo issued for the earlier period is pending and that had there been no such restriction on the common portal, the refund claims would have been filed much ahead of time. 6.3 From the above table I find that the refund for the month of October, 2017 was filed on 31-10-2019 that is within expiry of two years from the relevant date as stipulated under Section 54(1) of the CGST Act, 2017. Further, I agree with the contention of the appellant that they were not able to file the refund claims for the subsequent period on the common portal because deficiency memo fo....
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....ment of students to foreign Universities; the consideration was paid in the form of commission on the basis of course fee as well as the number of students enrolled by the appellants and that promotion of the courses was incidental and ancillary to the above principal supply. I further find that if the students got enrolled directly by the University through distant education or online services, the appellants were not paid any consideration whether or not it had provided any promotional service. Apart from the above consideration received from the foreign Universities/colleges/academies, the appellants were not receiving any fees or charges from the students or deducted anything from the charges or fees payable by the students to the University. Furthermore, I find the appellant pleaded that "the actions of the appellant have the effect of enhancing the intake of students in the Educational Institutes, which in turn enhances the business of their clients. Their activity is akin to that of a Marketing Agency which undertakes the marketing/promotion activity for its client and gets remuneration on the basis of the quantum of business generated for the client. Therefore, the appellan....
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....ther, intermediary acts as an agent of the principal and in that sense, he may be providing a service to the principal and the place of effective use and enjoyment of such service is in the territory where the agent is representing the principal. In other words, an intermediary is a go between the two persons, helps in providing or acquiring or both of a service or goods and comes into picture when there is a possibility of flow of service or goods from one person to another. In the instant case the appellants are a go-between the foreign universities and the students in India though he had contractual agreement with only the universities and the universities only cannot be said to be the only recipients of services provided by the appellants. Therefore, they were covered under the definition of 'intermediary' as per Clause (13) of Section 2 of the Integrated Goods and Services Tax Act, 2017. Hence, the contention of the appellants that their activity was that of marketing and promotion of the academics/universities/colleges is not tenable. 6.12 Further, I observe that the issue of taxability/determining the place of supply of service of an agent/intermediary intermediary ser....
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....ch circumstances, the respondent no. 3 have issued Circular No. 20/2019 where exemption is granted in IGST rates from payment of IGSI in respect of services provided by intermediary in case the goods are supplied in India. 66. It therefore, appears that the basic logic or inception of section 13(8)(b) of the IGST Act, 2017 considering the place of supply in case of intermediary to be the location of supply of service is in order to levy CGST and SGST and such intermediary service therefore, would be out of the purview of IGST. There is no distinction between the intermediary services provided by a person in India or outside India. Only because, the invoices are raised on the person outside India with regard to the commission and foreign exchange is received in India, it would not qualify to be export of services, more particularly when the legislature has thought it fit to consider the place of supply of services as place of person who provides such service in India. 67. Therefore, there is no deeming provision as tried to be canvassed by the petitioner, but there is stipulation by the Act legislated by the parliament to consider the location of the service provider o....
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.... the prospective students & service provider on behalf of university (as agent) under the terms & conditions of the foreign university binding on the appellant; that the appellant cannot have the liberty to pick &. choose of the terms & conditions laid down in the agreement; that they have to follow these terms & conditions in entirety and that they promote courses of foreign universities in taxable territory, arrange or convince to students to join such courses and provide certain ancillary services to both, students as well as foreign universities. That the universities engage the entities like applicant for promotional & marketing activities for course taught by them& making the perspective students aware about the course fee and other associated costs, market intelligence about course and the latest educational trend/future perspective/job security/placement etc. and that such recruitment services provided to students of the foreign university are not covered under export of services, such services are provided only as a representative of foreign university and not as an independent service provider. Therefore, place of supply shall be under Section 13(8) of the IGST Act, 2017 ....