2023 (3) TMI 1264

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....n-Appeal No.15/2022-23). 2. At the outset it is relevant to state that this Court has entertained the present petition solely for the reason that the petitioner does not have an equally efficacious remedy of an appeal before the Goods and Services Tax Tribunal because the same has not been constituted as yet. 3. It is the petitioner's case that the said order is, ex facie, beyond jurisdiction inasmuch as it seeks to deny the petitioner refund of integrated tax paid in respect of services provided to an entity located overseas, on the ground that the petitioner is an 'intermediary'; therefore, the place of services performed by the petitioner is necessarily to be considered as located in India. The petitioner submits that denial of ref....

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....tities are not considered as "merely establishment of a distinct person in accordance of Explanation 1 in Section 8" of the GST Act. In view of the above, the Appellate Authority accepted that the petitioner and its foreign clients were not establishments of a distinct person but were separate tax entities; therefore, condition (v) of Section 2(6) of the CGST Act was satisfied. Notwithstanding that the ground on which the Adjudicating Authority had rejected the petitioner's claim for refund was found to be untenable, the Appellate Authority proceeded to deny the refund on an absolutely new ground that the petitioner was an intermediary under Section 2(13) of the Integrated Goods and Services Tax Act, 2017 (IGST Act). Therefore, the services....

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....in cases where the refund has been erroneously granted that the Appellate Authority can assume the power to pass any orders in terms of the second proviso to Section 107(11) of the CGST Act for denying the entitlement of refund and directing recovery of the same. He earnestly contended that in the present case, the refund has not been granted and therefore, the Appellate Authority did not have any authority to pass any orders in terms of the second proviso to Section 107(11) of the CGST Act. 10. Mr Amritanshu, learned counsel appearing for the respondents countered the aforesaid contentions. He submitted that the powers available to the Appellate Authority to modify the order appealed against would include a power to adjudicate afresh an....