TMI Blog2023 (10) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... to the invoices in respect of which payments are held to have been received in advance, that is, prior to the date of their issuance - Undisputedly, in case the payments had been received after the invoices were raised, the date on receipt of payments would be relevant for the purposes of computing the limitation for filing claims for refund. Whether the services in question constitute export of services within the meaning of Section 2(6) of the IGST Act? - HELD THAT:- It is apparent that the provisions for ascertaining the place of supply of services under Rule 6A of the ST Rules are similar to Section 2(6) of the IGST Act inasmuch as the services will be treated as export of services when (a) the provider of service is located in the taxable territory, (b) the recipient of the service is located outside India, and (d) the place of provision of the service is outside India. There is no cavil that the decisions rendered on the question of export of services in the context of Rule 3 of the Export of Services Rules, 2005 are also applicable to the controversy in question. The present petition is allowed and the respondents are directed to refund the amounts as claimed by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of FTOs. 7. The petitioner has entered into various service agreements (International Roaming Agreements) with FTOs for providing IIR and ILD services. Undisputedly, the consideration for providing IIR and ILD services to subscribers of FTOs during their visit to India, is paid by FTOs to the petitioner. 8. The petitioner filed its applications for refund of IGST claiming that it had exported services and paid integrated tax as provided under Section 16 (3) of the Integrated Goods and Services Tax Act (hereafter IGST Act ). A tabular statement indicating the period for which refund was sought, the date for filing the refund claimed, and the amount of refund sought is set out below: S No. Period Amount Claimed (Rs.) Date of filing the Refund Claim 1. September, 2018 - March 2019 3,08,08,847 29.09.2020 2. April, 2019 70,75,578 14.10.2020 3. May, 2019 - June, 2020 2,99,96,517 06.02.2021 4. July, 2020 October, 2020 33,57,782 18.05.2021 9. The petitioner claimed that it had entered into International Roaming Agreement for establishing connectivity between mobile services offered by it and those offered by FTOs to their customers. The customers using roaming services are not parties t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioner responded to the said show cause notices, inter alia, stating that the prescribed process of assessment of refund is not adhered to by the respondent and that the deficiencies were not communicated within the prescribed period. The petitioner also stated that the said show cause notices were issued without mentioning date and Document Identification Number (DIN) on the show cause notices and therefore, the said cause notices were bad in law. The petitioner claimed that the services rendered were export of services and that the applications for refund within the period of limitation of two years as stipulated under Section 54 (1) of the CGST Act. 12. The Adjudicating Authority did not accept the refund claims made by the petitioner and rejected the same in terms of four separate orders. The details of the said orders are set out below: S.No. Order No. date Period Refund rejected 1. GST East/MCIE/R-165/ Refund/Vodafone/643/2021 dated 31.05.2021 September 2018 to March 2019 3,08,08,847/- 2. GST East/MCIE/R-165/ Refund/Vodafone/645/2021 dated 31.05.2021 April, 2019 70,75,578/- 3. GST East/MCIE/R-165/ Refund/Vodafone/651/2021 dated 31.05.2021 May 2019 to June 2020 2,99, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exported out of India where a refund of tax paid is available in respect of services themselves or, as the case may be, the inputs or input services used in such services, the date of (i) receipt of payment in convertible foreign exchange [or in Indian rupees wherever permitted by the Reserve Bank of India], where the supply of services had been completed prior to the receipt of such payment; or (ii) issue of invoice, where payment for the services had been received in advance prior to the date of issue of the invoice; 18. In the present case, the petitioner claims that it had received payments in all cases after the invoices were raised. Thus, the date on which payments had been received from FTOs would be the relevant date for the purpose limitation under Section 54(1) of the CGST Act. The petitioner had also furnished a tabular statement clearly indicating the invoices raised and the dates of receipt of payments. However, the authorities had rejected the claim by mentioning that payments in respect of some of the invoices were received in advance. It is material to note that there is no specific reference to the invoices in respect of which payments are held to have been receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service is located outside India, (c) the service is not a service specified in the Section 6D of the Act, (d) the place of provision of the service is outside India, (e) the payment for such services has been received by the provider of service in convertible foreign exchange, and (f) the provider of service and recipient of service are not merely establishments of a distinct person in accordance with item (b) of Explanation 3 of clause (44) of section 65B of the Act. 23. It is apparent that the provisions for ascertaining the place of supply of services under Rule 6A of the ST Rules are similar to Section 2(6) of the IGST Act inasmuch as the services will be treated as export of services when (a) the provider of service is located in the taxable territory, (b) the recipient of the service is located outside India, and (d) the place of provision of the service is outside India. There is no cavil that the decisions rendered on the question of export of services in the context of Rule 3 of the Export of Services Rules, 2005 are also applicable to the controversy in question. 24. It is also not disputed that the Customs Excise and Service Tax Appellate Tribunal has in several cases f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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