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2019 (11) TMI 478

..... ly - export of service - delay in filing appeal - time limitation - challenge to AAAR decision. Time limitation - HELD THAT:- There is a delay of 26 days in filing the said appeal by the appellant and the Appellant has filed miscellaneous application for the condonation of the said delay of 26 days, wherein the Appellant, which happens to be the jurisdictional officer, has attributed the said delay of 26 days in filing of the instant appeal to the initial teething problem being faced by them in the implementation of the GST procedures after the introduction of the GST regime - the delay is condoned - appeal filed before us in terms of proviso to sub section 2 of section 100 of the CGST Act 2017. Merits of the case - classification of supply - challenge to impugned Advance Authority Ruling, wherein the Authority of the Advance Ruling held that the transactions covered under the Master Service Agreement (Intercompany Service Agreement) entered between Respondent and NES Abu Dhabi are export of services under the GST Act, 2017 - zero rated supply - determination of the place of supply of goods/services - whether the services being provided by them to their overseas client i.e. M/s NES .....

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..... e respondent is engaged in providing supply of manpower services to highly technical industries such as Oil & Gas, Power etc. C. The respondents and M/s. NES Talent Recruitment services (hereinafter referred to as NES Abu Dhabi) having its registered office at Unit No 104, Business Avenue Tower, Abu Dhabi had proposed to enter into a service agreement through which the respondents would provide support service in respect of foreign business carried out by NES Abu Dhabi. D. Both the respondents and NES Abu Dhabi are subsidiaries of the parent NES Global Ltd, UK. E. Every service provided by the respondents would form part of Master Service agreement (hereinafter referred to as MSA) and its schedule in detail. F. The respondents had not submitted the Master Service Agreement in detail but a draft intercompany service agreement (hereinafter referred to as ISA) G. It was therefore submitted before the ARA regarding the questions put forth in the advance ruling applications that since the respondents failed to produce the MSA and also original ISA prayed for rejection of the application. H. The ARA in its order No GST-ARA-52/2018-19/B-16 dated 19.12.2018 = 2019 (3) TMI 594 - AUTHORI .....

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..... ncipal only if they first recruit the manpower on their own account and then supply it to NSE Abu Dhabi. However, if the applicant recruits the same manpower not on his own account but on account of NES Abu Dhabi, they cannot be held to be a principal due to presence of 3rd person. In that case, the applicant would be acting as an intermediary / agent who brings NES Abu Dhabi and the persons willing for Job together. 4. Due to above said diverged possibilities, this office prayed to the Advance Ruling Authority to enable this office to examine the end to end transactions of the list of services provided in order to ascertain the true nature of the activities of the applicant. 5. However, the Advance Ruling Authority failed to appreciate the vital importance of the said key information about the end to end transactions of the applicant. AR Authority also failed to appreciate that the subject agreement between applicant and M/s. NES Abu Dhabi is a not final agreement but merely draft agreement. 6. In view of the above, it is prayed that applicant should be directed to share the relevant information with the Commissioner including the nature of various transactions, mode of transactio .....

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..... 2018 that the copy of Master Service Agreement (MSA) had not been produced for verification. We informed that that the Service Provider, NES Global Specialist Engineering Services Private Limited (NES India) and the Service receiver, NES Global Talent Recruitment Services (NES Abu Dhabi) are associate concerns and had made an INTER COMPANY SERVICE AGREEMENT and the same had been furnished with them , already vide submission dated 03.09.2018, as acknowledged on 04.09.2018, and the same be considered as MSA, for all purposes, and requested to waive the variation in Nomenclature, if any. For the sake of the brevity, the said agreement enclosed. Hence, we reiterate to waive the nomenclature and consider the same as MSA, at this juncture. 10. Further we submit that the transaction between NES India and NES Abu Dhabi wherein involved in the supply of services on its own account. There is only involvement with two Parties, as such. Hence In such a scenario, the supplier will not fall under the ambit of intermediary provided under sub-section (13) of section 2 of the IGST Act, where these services are provided on his own account by such supplier. We rely on Circular No. 107/26/2019-GST, da .....

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..... he Authority of the Advance Ruling held that the transactions covered under the Master Service Agreement (Intercompany Service Agreement) entered between Respondent and NES Abu Dhabi are export of services under the GST Act, 2017 and accordingly held the supply as zero-rated supply in terms of the provision of Section 16 of the IGST Act, 2017. 15. On perusal of the facts and records of the case, placed before us, and considering all the written as well as oral submissions made by both the parties in light of the above stated impugned Advance Ruling, before undertaking the scrutiny of the nature of the activities of the Respondent ingrained under Annexure A to the subject MSA/ICSA Agreement, we seek to examine the scope and the jurisdiction of the Advance Ruling, and Appellate Authority for the Advance Ruling for Goods and Services Tax, which have been explicitly provided under Section 97(2) of the CGST Act, 2017, which is being reproduced herein under for our reference: (2) The question on which the advance ruling is sought under this Act, shall be in respect of, - (a) Classification of any goods or services or both under the Act; (b) Applicability of a notification issued under th .....

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