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2019 (11) TMI 478

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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 - 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 Abu Dhabi in terms of the subject MSA Agreement will be export or not and whether the same would be zero-rated supply or not? - HELD THAT:- Section 97(2) of the CGST Act, 2017 encompassing the specific questions, which are to be sought under the Advance Ruling, it can decisively be inferred that the questions raised by the Respondent before the Advance Ruling Authority were beyond the scope and jurisdiction of the Advance Ruling, and hence do not warrant any ruling thereon. The Advance Ruling Authority should have refrained from passing any ruling on the above mentioned two questions asked by the Respondent vide the Advance Ruling application filed before the Advance Ruling Authority - since the questions asked by the Appellant are not covered under the scope and jurisdiction of the Advance Ruling, .....

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..... 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 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA received on 11.03.2019 held that the transaction in question was a zero- rated supply and the supply were held to be the export of service under the GST Act. Grounds of Appeal 1. As per section 182 of the Indian Contract Act, 1872 an agent is a person employed to do any act for another, or to represent another in dealing with the 3rd person, the person for whom such act is done, or who is to be represented is called a principal . 2. In view of above, agent wears two hats. On close examination of the act of an agent, it will transpire that it is not the contract between the agent and principal which decides the question as to whether the person is an agent or not. Actually, it is the involvement of 3rd person which decides the question if a person is an agen .....

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..... 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 transaction as to whether same are performed on line or manually, step wise and systematically end to end process of all such different types of transactions so that the office may get an opportunity to examine the fact as to whether the applicant is providing the subject service on his own account or merely working as a link between some 3rd parties and M/s. NES Abu Dhabi. 7. The Appellant, inter-alia, have also prayed, vide the Misc. Application filed for the condonation of the delay in filing the appeal, that the delay in the filing of the appeal may be condoned, which they attributed to the initial teething problem being faced by them after the introduction of the GST regime. Appellant Additional Submissions dated 25.07.2019 8. The Appellant vide their additional Submission dated 25.07.2019 argued .....

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..... ia 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, dated the 18th July, 2019, issued by Central Board of Indirect Taxes and Customs, CBIC, where the identical issue considered. 11. In view of the above submissions, the Respondent has pleaded to sustain the ruling given by the Advance Ruling Authority, wherein they held the transactions between the Respondent and NES Abu Dhabi as the export of services and the supply made by the Respondent to be zero rate supply. Personal Hearing 12. A personal Hearing in the matter was conducted on 26.07.2019, wherein the Jurisdictional officer Shri Rahul Kumar Yadav, D.C., representing the Appellant firstly prayed for the condonation of the delay in filing the appeal citing the reasons and circumstances precluding them from filing appeal on time and then proceeded to reiterate the written submissions made at .....

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..... he 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 the provisions of the Act; (c) Determination of time and value of the goods or service or both; (d) Admissibility of input tax credit of tax paid or deemed to have been paid; (a) Determination of the liability to pay tax on any goods or services or both; (b) Whether the applicant is required to be registered under GST; (c) Whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both, within the meaning of that term. 16. On perusal of the above provision, we find that question on determination of the place of supply has not been covered in the above set of questions, on which the advance ruling can be given. Therefore, we do not have jurisdiction to pass any ruling on such questions which involve .....

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