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TMI Blog2018 (4) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 2(6) of the Integrated Goods and Services Act, 2017, (hereinafter referred to as "the IGST Act"), and, therefore, a zero-rated supply under the CGST / WBGST Act 2017 (hereinafter referred to as "GST Act"). 2. The Applicant submits that it is providing the above services to the foreign universities, for which it receives consideration in convertible foreign exchange. The service recipient is located outside India and is not an establishment of a distinct person in accordance with Explanation 1 to section 8 of the IGST Act. The place of supply of the services is outside India in terms of section 13(2) of the IGST Act. The supply of services by the applicant should, therefore, be treated as export of service within the meaning of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been such a dispute, this Authority would rather not provide a ruling on this issue at all. This Authority enters the question of whether the service provided by the applicant is classifiable as export from the limited angle of probing whether the applicant is providing an intermediary service. 6. The Applicant also declares that the question raised in the Application is not pending or decided in any proceeding under any provision of the Acts referred to above. The Application is, therefore, admitted. 7. The Applicant is stated to be engaged in Overseas Education Advisory whereby the various courses of foreign Universities are promoted in India among prospective students. The Applicant has tied up with various Universities all over the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pient outside India in terms of Section 13(2) of the IGST Act. 9. The Applicant submits at the time of Personal Hearing a copy of the Agreement with the Australian Catholic University (hereinafter referred to as "the Agreement"), in support of its argument. Since this Agreement with a specific University, namely, Australian Catholic University, has been submitted by the Applicant to further its arguments, the Agreement may be considered as the prototype of all Agreements made with the various Universities abroad and all discussions regarding the Agreement is to be taken as relevant to and applicable for all the Agreements entered into by the Applicant with the Universities abroad. 10. The Applicant further submits that it receives conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Background forming part of the Agreement, it is stated that the University engages Education Agent to be its representative in the territory and on the terms set out in the Agreement. However, it is clarified under Clause 2.3 (b) that the Education Agent, engaged by the University is an independent contractor, is not an agent of the university. The two clauses are clearly contradictory. 14. Clause 2.3 of the Agreement is stated below for ready reference: "2.3 The Education Agent is engaged as an independent contractor by the University. For the avoidance of doubt the relationship between the Education Agent engaged under this agreement under University; a. is not one of employer and employee; and b. is not one of principal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above principal supply. While providing the above service the applicant is subject to audit by the University under clause 9.2 of the Agreement, which includes fulfilling recruitment targets. The University will review the Applicant's performance under Clause 9.4, especially with respect to recruitment targets achieved. The Applicant cannot claim any consideration for its promotional activity unless the students get enrolled through it. If the students get enrolled directly by the University through distant education or online services, the Applicant will not be paid any consideration whether or not it has provided any promotional service (Clause 8.3 of the Agreement). In fact, the Applicant is not allowed to undertake any promotional or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrolled through the Applicant. The Applicant, therefore, represents the University in the territory of India and acts as its recruitment agent. In fact, Clause 2.1 of the Background forming part of the Agreement clearly says, "The University engages the Education Agent to be its representative to perform the Services from the commencement date in the Territory and on the terms set out in this Agreement until the Expiry date." It is, therefore, clear that whatever services the applicant provisions are provided only as a representative of the University and not as an independent service provider. 19. Being an intermediary service provider, the place of the Applicant's supply shall be determined under section 13(8)(b) of the IGST Act and not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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