TaxTMI 
TaxTMI 
2025 (12) TMI 1779
X X X X Extracts X X X X
X X X X Extracts X X X X
....ner to KCS qualifies as 'export of service' under Section 2(6) of the IGST Act. d) Hold that the invocation of Section 74 of the CGST Act in the present facts and circumstances is factually and legally unsustainable. e) Hold that the impugned consolidated show cause notice issued for multiple assessment years is bad in law; f) Pass such further order(s) and other reliefs as the nature and circumstances of the case may require. 2. Learned counsel for the petitioner would reiterate the various contentions urged in the petition and on instruction submits that though the impugned show cause notice was issued by the respondent pursuant to audit objection/observation in relation to 16 issues, the challenge in the present petition may be restricted to audit objection/observation No. 15 i.e., non-payment of GST on intermediary services provided to M/s. Kimberly Clark Services, US incorporated which was the recipient of the services and in the light of the following judgments: (a) M/s. Athene Technologies India LLP vs. State of Karnataka reported in 2025 (6) TMI 88-Karnataka High Court. (b) Nokia Solution & Networks India Pvt. Ltd., vs....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... would be liable to pay GST and as such there is no merit in the petition even in relation to the said audit objection No. 15 and the same is liable to be dismissed. 5. As rightly contented by the learned counsel for the petitioner, out of total 15 audit objections/observations contained in the impugned show cause notice, audit observation No. 15 which is found in paragraph 17 of the impugned show cause notice relates to non payment of GST on intermediary services that is business support services to foreign customers. The said issue is directly and squarely covered by the aforesaid judgments, wherein this Court has come to the conclusion that under identical circumstances petitioner is not an intermediary and would not be liable to pay GST as demanded by the respondents towards intermediary services since there is no supply of intermediary services and petitioner is involved in export of services. 6. The aforesaid judgment of this Court in M/s. Columbia Sportswear India Sourcing Pvt. Ltd., vs. Union of India & others (W.P. No. 12116/2024 & connected matters dated 26.04.2025) were reiterated in M/s. Wind River Systems International Inc reads as follows: 5. A perusal of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gular relationship, though the third party need not be identified in the agreement itself but it would be apparent from the agreement that there is a triangular relationship being established in such agreement. * Four essential features stand out in an agency relationship which are set out by the Apex Court as under : a) The essential characteristic of an agent is the legal power vested with the agent to alter his principal's legal relationship with a third party and the principal's co-relative liability to have his relations altered; b) As the agent acts on behalf of the principal, one of the prime elements of the relationship is the exercise of a degree of control by the principal over the conduct of the activities of the agent. This degree of control is less than the control exercised by the master on the servant, and is different from the rights and obligations in case of principal to principal and independent contractor relationship; c) The task entrusted by the principal to the agent should result in a fiduciary relationship. The fiduciary relationship is the manifestation of consent by one person to another to act on his or her beh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....business of supply or receipt of goods or services or both on behalf of another person and he could be a factor, broker, commission agent, arhatia, del credere agent, auctioneer or any other mercantile agent by whatever name called. Therefore, the fine distinction that is there between these two is that while the agent supplies or receives goods or services on behalf of another person, the intermediary only arranges or facilitates supply on behalf of another person without himself supplying the same. This distinction also has to be kept in mind as the definition of intermediary calls him an agent who only does facilitation or arrangement and therefore, while he is an agent and acts for another, his job is to only facilitate or arrange supplies between his principal and a third party. * The position in service tax remains identical as set out in the decisions extracted in Amazon's case supra. 12. In the light of the principles that emerge from the aforesaid Judgments, Circulars, Notifications etc., in the facts and circumstances obtaining in the instant cases as set out supra analyzing the said agreements, I am of the considered opinion that the petitioner is not a....