TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 224
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.... Service Engineers for Maintenance Contracts with customers in Odisha constitute a place of business in Odisha? b. Whether the temporary storage of spare parts and tool kit at Applicant's location constitutes a place of business? c. Whether Applicant's location would constitute "fixed establishment'? d. If the answer to question (a), (b), and (c) above is 'No', whether the Applicant is required to take GST registration in Odisha? 1.1 At the outset, we would like to make it clear that the provisions of both the CGST Act and the OGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the OGST Act. 2.0 Submission of the Applicant: 2.1 M/s. Thermo Fisher Scientific India Private Limited [here-in-after referred to as "the Company/Applicant"] is a private limited Company, having its registered office at Third Floor, 309, DLF Cyber City, Patia, Bhubaneshwar, Khurdha, Odisha, 751024, is engaged in the business of trading of analytical equipment. analytical instruments, laboratory equipment, and related products to customer....
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....th the billing address remaining the same as the customer's address in both cases. For the purpose of supplying spare parts under the AMC/CMC plan, the HO imports the spare parts from foreign manufacturers. The imported spare parts are stored at the HO's Mother Warehouse located in Bhiwandi, Maharashtra. 2.5 Dispatch the Spare Parts to customer's location in Odisha: a. Under Delivery Challan in CMC Plan: After inspection of the Goods by FSE and identification of the replacement of faulty spare parts, the HO dispatches the necessary spare parts either to the FSE's location in Odisha or to the customer's location in Odisha to provide services under the CMC plan. The HO in Maharashtra issues a delivery challan and generates an e-way bill to facilitate the movement of spare parts from the mother warehouse located in Bhiwandi, Maharashtra, to the customer's location in Odisha. The said spare parts in few cases are 'shipped to' the Applicant's location and 'billed to' Customer's location. In case where goods are shipped to the Applicant's location, the spare parts are carried by the FSE located in Odisha to customer's location to provide the repair and maintenance services. Further, t....
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....t case, the FSE stationed in Odisha undertakes visits to customer locations to perform repair and maintenance services, ensuring timely response and avoiding impractical service delays that would arise if an FSE were required to travel from Maharashtra for each request. These FSEs possess the requisite technical expertise to service the Goods originally supplied by the HO to the customer in Odisha. Upon receiving a service request, the HO in Maharashtra coordinates with the FSE in Odisha and directs them to carry out the necessary services. Furthermore, to facilitate efficient service execution, the HO ensures that FSEs have access to the requisite tools for service performance. However, such access is strictly for operational purposes and does not signify any independent business presence or fixed establishment in Odisha. The deployment of FSE in Odisha does not alter the nature of the service provided, as the same activity would be undertaken even if an FSE were to travel from Maharashtra for each service request. 2.9 In view of aforesaid facts, the applicant seeks for an advance ruling on the following questions: a. Whether the repair and maintenance services provided by the ....
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....resence of FSEs providing post-sale services does not satisfy the legal criteria for a place of business or fixed establishment, making separate GST registration in Odisha unwarranted. (ii) With respect to Question "b" above, the Applicant in the view that, mere shipping the spare parts to FSE's location in Odisha who is employee of the Company and keeping tool kit at FSE's location in Odisha does not automatically constitute Applicant's location as a place of business, unless business activities are actively carried out there. Furthermore, the stock moved at FSE's location in Odisha is solely for the purpose of service to customers who have purchased Goods from the HO. Further, given the nature of the Goods, such as those used in hospitals, which require urgent attention, the availability of tool kit at Applicant's location is critical to reducing service time. Without this arrangement, service delays would be significantly longer and impractical for customer. Therefore, shipping the spare parts at FSE's location where business is not ordinarily carried will not constitute FSE location as a place of business. (iii) With respect to Question "c" above, the applicant in the view ....
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....fers two types of services i.e. Comprehensive Maintenance Contract (hereinafter referred to as 'CMC') and Annual Maintenance Contracts (hereinafter referred to as 'AMC'). AMC plan covers cost of service whereas CMC plan covers cost of service including the cost of spare parts that may need to be replaced as identified during inspection by their Field Service Engineer (herein after referred to as FSE). The applicant has entered into contractual agreement with the customers when the AMC/CMC plan is sold. After getting the requisite consideration against the AMC/CMC plan so sold, the applicant issues Invoices to the customers from their Head Office situated in Maharashtra. The applicant has appointed several Field Service Engineer (FSE), who are employees of the Company, entrusted to conduct preventive maintenance visits under the AMC/CMC plans on instruction of the HO in Maharashtra. These visits are made to the customer's location at agreed intervals to inspect the goods. Following the inspection, if any spare parts need to be replaced, a request is raised with the HO in Maharashtra. Based on the request, the HO arranges for the required spare parts to be displaced from the mother w....
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....he Council, enhance the aggregate turnover referred to in the first proviso from ten lakh rupees to such amount, not exceeding twenty lakh rupees and subject to such conditions and limitations, as may be so notified:] [Provided also that the Government may, at the request of a State and on the recommendations of the Council, enhance the aggregate turnover from twenty lakh rupees to such amount not exceeding forty lakh rupees in case of supplier who is engaged exclusively in the supply of goods, subject to such conditions and limitations, as may be notified: Explanation.- For the purposes of this sub-section, a person shall be considered to be engaged exclusively in the supply of goods even if he is engaged in exempt supply of services provided by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount.] From the above statue it appears that, the supplier needs to be registered in GST from where he makes taxable supply of goods or service or both. Before deciding the case it is pertinent to understand most relevant definition of the terms "fixed establishment" and "the location of supplier of services" as defined....
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.... place of business is defined in Section 2(85) of the CGST Act, 2017 which reads as: Section 2(85) "place of business" includes- (a) a place from where the business is ordinarily carried on, and includes a warehouse, a godown or any other place where a taxable person stores his goods, supplies or receives goods or services or both; or (b) a place where a taxable person maintains his books of account; or (c) a place where a taxable person is engaged in business through an agent, by whatever name called; From the above definition of Place of Business, we found that, place to be termed as place of business under GST when it satisfies following characteristics: (a) where business is ordinarily carried on and includes warehouse, godown or any other place where taxable person store his goods. or (b) where a taxable person maintains his books of account or (c) where a taxable person is engaged in business through an agent, by whatever name called. The applicant in the subject case is keeping spare parts and tool kits in the FSE location (Odisha) which they termed as temporary place. In addition, the applicant also engages Field Service Engineer (FSE) to carry out post ....
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.... of Odisha. The reference of Advance Ruling in case of Gandhar Oil Refinery (India) Ltd., (AAR-Maharashtra) as quoted by the Applicant is not applicable in the present case as the facts and circumstance of the above referred case is distinguishable from the present case. Further, the applicant in their additional submission has referred the ruling of Advance Ruling Authority (Odisha) in the case of M/s. Konkan Railway Corporation Limited, which was thoroughly examined. In that case, we found that, the Authority for Advance Ruling (Odisha) while rejecting the applicant's interpretation on non-requirement of separate Registration in Odisha for inter-state supply of Service, held that, "............Thus, it is clearly evident from the above discussion that the Applicant is required to maintain suitable structures in terms of human and technical resources with sufficient degree of permanence at the sites of East Coast Railway, Odisha to effect supply of desired services as per the terms and conditions of the work order. It has to ensure provision of works contract service for the contract period, indicating sufficient degree of permanence to the human and technical resources employed....