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TMI Blog2020 (12) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... e of its activities relates to providing services to M/s. Carl Zeiss, Germany, by way of procuring Purchase Orders (P.O.) from the Indian customers, desirous of purchasing high-end advanced type of equipment, by negotiating the terms of supply, including fixation of price above the floor price, fixed by the Principal. Briefly, the modus operandi is: (i) The prospective customer in India, places the P.O. directly on the Principal, and arranges for Letter of Credit for remittance of price in foreign currency; the principal directly supply the equipment to the party, which pays the price and gets the delivery from the Customs on payment of custom duty, IGST, as may be applicable. (ii) Once the P.O. is completed, the Principal issues a "Credit Note", for the "Commission", which is remitted to the Appellant in freely convertible Foreign Exchange, normally in Euro Currency. 4. Based on the aforesaid facts, the Applicant had tiled an application dated 15th May 2018, before the Maharashtra. Advance Ruling Authority (hereinafter referred to as "the MAAR"), seeking Advance Ruling as to "Whether the "Commission received by the Applicant in convertible Foreign Exchange for rendering servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take or error apparent on the face of the record" used in Rule 1, Order XLVII of CPC, 1908. They further contended that since the aforesaid phraseologies used in the section 102 of the CGST Act, 2017 and Rule 1 of the Order XLVII of CPC, 1908 are similar, the case laws pertaining to the Review matters would reasonably be applicable to the matter related to the rectification of the Advance Ruling. For the said purpose, they cited few judicial pronouncements, which are mentioned herein below: (a) Satya, Narayan Laxmi Narayan Hegde Vs. Malikarajun Bhavanappa Tirumale [AIR (1960) SC 137/ (b) T.S. Balaram, ITO Vs. Volkart Bros. [(1971) 82 ITR 50 (SC)] (c) Sir Hari Shankar pal and Another Vs. Anath Nath Mutter and others [1949 FCR 36] (d) Parsion Devi and Others Vs. Sumitri Devi and Others [1997 (8) SCC 715] (e) Ruling pronounced by CESTAT in the case of Dinkar Khindria Vs. CCE, New Delhi, 2000 (38) RLT 442;2000 (118) ELT 77 (T-LB) (ii) That the emphasis had been placed on principle of law, laid down in the abovementioned case of Sir Hari Shankar pal and Another Vs. Anath Nath Mitter and others [1949 FCR 36], wherein the Hon'ble Federal Court had observed as under: "Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019, which was attended by Shri D.P. Bhave, Advocate on behalf of the Appellant, wherein he reiterated the aforesaid submissions, as well as made additional submissions during the personal hearing, which was on the same line as that of the aforesaid submissions except the submissions on the determination of the jurisdiction with respect to the questions asked by the Appellant in their Advance Ruling Application. To corroborate their claim as to the Appellate Authority had the jurisdiction to decide even the place of supply of the goods or services or both, for the purpose of the determination of the liability to pay tax on any goods or services or both as laid out under section 97(2)( e) of the CGST Act, 2017, the Applicant had cited a Supreme Court Judgment in the case of Smt. Ujjam Bui Vs. State of U.P., pronounced on 10.04.1962. 7. In pursuance to the aforesaid application dated 21.08.2019, seeking rectification in the Original MAAAR Order No. MAH/AAAR/SS-RJ/26/2018-19 dated 22.03.2019. the MAAAR passed the Order No. MAH/AAAR/SS-RJ/26A/2018-19 dated 11.12.2019. rejecting the said application dated 21.08.2019 on the ground that the interpretation of the clause (e) of Section 97( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court vide the aforesaid judgment dated 10.04.1962, and hence, the said AAAR Orders dated 22.03.2019 and 11.12.2019 be recalled and the rectification application, filed on 21.08.2019, be restored for the purpose of the hearing on 'merit'. RESPONDENT'S SUBMISSIONS 10. The Respondent, vide the letter dated 27.10.2020, made the following submissions: (i) That the impugned intermediary services, provided by the Applicant, cannot be treated as export of services under the GST law as the place of supply in intermediary services in terms of Section 13(8)(b) of the IGST Act, 2017 will be the location of the supplier of services, which, in the present case, is in India. Therefore, the place of supply will also be in India. Hence, the said intermediary services, provided by the Applicant, will not be export of services in terms of Section 2(6) of the IGST Act, 2017. (ii) The Respondent/Jurisdictional Officer has also referred to the Hon'ble Gujrat High Court Judgement dated 24.07.2020 in the case of M/s. Material Recycling Association of India Vs. Union of India wherein the Hon'ble High Court has upheld the constitutional validity of Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders passed are in conflict with the law declared by the Court, it is "an error apparent on the face of record-. the same has to be rectified by recalling or vacating the impugned Orders. (iii) The Applicant also cited following judicial pronouncements to illustrate the circumstances under which any Order can be recalled by the Tribunals or Courts: (a) Hon'ble Allahabad High Court Judgment dated 05.02.2019 in the case of Santosh Kumari Vs. Prem Narain Verma And 6 Ors; (b) Hon 'ble Karnataka High Court Judgment dated 15 March, 2004 in the case of Commissioner of Income Tax Vs Mcdowell And Co. Ltd. [(2004) 188 CTR Kar 518, 2004 269 ITR 451 KAR], 13. Shri Tukaram Godse, the Jurisdictional Officer, reiterated the written submissions dated 27.10.2020, wherein it has, inter-alia, been submitted that the impugned intermediary services, provided by the Applicant. cannot be treated as export of services under the GST law as the place of supply in intermediary services, in terms of Section13(8)(b) of the IGST Act, 2017, will be the location of the supplier of services, which, in the present case, is in India. Therefore, the place of supply will also be in India. Hence, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity under Section 102 of the CGST Act, 2017. 16. For arriving at the aforesaid conclusion, this Appellate Authority had considered all the case laws, cited by the Applicant in his original application dated 21.08.2019, wherein the Hon'ble Courts and Tribunals have laid down the principles of law with regard to the true interpretation of the term 'mistake' or 'error', when used with the term 'apparent' in the various Acts, the presence of which in the Order would warrant the invocation of the rectification provision laid down under those particular Acts. One of the case laws, discussed by this Appellate Authority in its Order dated 11.12.2019. was the Hon'ble Supreme Court judgment in the case of T.S. Balaram, ITO Vs. Volkart Bros. [(1971) 82 ITR 50 (SC)], wherein the Hon'ble Apex Court has held as under: 'Mistake' is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which. after a judicious probe into the record, from which it is supposed to emanate are discerned. The word 'mistake' is inherently indefinite in scope, as to what may be a mistake for one may not he one for another. It is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e point of law or facts is not a mistake apparent from the record and the debatable issue could not be the subject of an order of rectification. Rectification of mistake does not envisage the rectification of an alleged error of judgment." 19. Having discussed all the aforesaid case laws, cited by the Applicant, this Appellate Authority, in para 38 of its Order dated 11.12.2019, had observed as under: In all the above cited cases, it is invariably laid out by the Hon'ble Courts that the mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word 'apparent' is that it must be something which appears to be so ex facie and it is incapable of argument or debate. Thus, Rectification of mistake does not envisage the rectification of an alleged error of judgment." 20. Thus, from the above, it can be clearly seen that all the submissions, including all the case laws, which were cited by the Applicant in his Application for Rectification of Mistake dated 21.08.2019, have been duly considered and discussed by this Appellate Authority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpin his argument that the said MAAAR Orders dated 22.03.2019 & 11.12.2019 suffer from the error of the law as the Hon'ble High Kerala High Court has opined that the GST law mandates the Advance Ruling Authority to decide upon the issue of the "place of supply" in order to determine the liability to pay tax on any goods or services or both. as provided under Section 97(2)(e) of the CGST Act, 2017, it is stated that the aforesaid judgment of the Hon'ble Kerala High Court was not pronounced, and therefore was not available for the consideration of the Appellate Authority at the time of the hearing of the rectification application dated 21.08.2019 or at the time of the issuance of the MAAAR Order dated 11.12 2019. Hence, it cannot be said the said MAAAR Orders dated 22.03.2019 & 11.12.2019 were against the legal principles laid down by the Constitutional Court. It is further observed that the Hon'ble Kerala High Court. in the aforesaid case, has pronounced its Ruling dated 03.02.2020, whereby it has been held that the Advance Ruling Authority has made an error by taking stand that they do not have jurisdiction to decide upon the issue regarding place of supply, while hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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