TMI Blog2023 (11) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2019 (Annexure P-10) dated 04.03.2021 (Annexure P-12) are set aside and the writ petitioner is entitled to seek refund for the period from July 2017 to March 2019 from the respondents. The respondents are accordingly directed to release the refund amount to the petitioner within a period of four weeks. Petition allowed. - HON BLE MS. JUSTICE RITU BAHRI AND HON BLE MRS. JUSTICE MANISHA BATRA Present:- For the Petitioner : Mr. Sandeep Goyal, Advocate. For U.O.I : Mr. Gurinderjit Singh, Sr. Standing counsel. For the Respondent : Mr. Sharan Sethi, Addl. A.G. Haryana RITU BAHRI, J. 1. The petitioner has approached this Court seeking quashing of order dated 13.09.2019 (Annexure P-10) and order dated 04.03.2021 (Annexure P- 12) passed by Respondent Nos. 3 and 2 respectively, whereby the claim of the petitioner for refund for the period July 2017 to March 2019 for which separate applications for refund in Form RFD-01 have been filed, was rejected. 2. The petitioner is one of the leading pharmaceuticals companies engaged in manufacture of anti- cancer drugs as well as innovation and development in the field of oncology drugs, maintaining glo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to number of entities throughout the world. The petitioner is having intellectual property rights in various drugs and their manufacturing processes which are manufactured in the country and are being exported also. 5. The petitioner had entered into agreements distribution of products as well as innovation development services with various companies across the world including Fresenius Kabi Deutschland GmbH Germany ( hereinafter called FKDG ) which is incorporated in Germany under German Laws. The petitioner had entered into various agreements with the FKDG, Germany for providing services. The copy of the Service Agreement dated 23.12.2011 is annexed as Annexure P-2. In the said Agreement, FKDG has appointed the petitioner for providing specific services specified in Appendix-A annexed with the said Agreement for an agreed compensation. As per said Agreement, the petitioner would be providing the following services:- (i) Preparation, coordination and completion of safety documents; (ii) Providing supports to Global Competence Centre of Pharmacovigilance for Oncology Products (iii) Providing support to Global Business Centre, (GBC),Generics; and (iv) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... projects deliverables within budget and in time. 7. The petitioner has placed on record various agreements entered in between the petitioner and FKDG (P-4). Under the Service Tax regime, a show cause notice was issued and adjudication was conducted by the Assistant Commissioner, Service Tax, Division XVIII, GGN and one of the question posed in the said adjudication was whether the Assessee has exported the services as per provisions of Export of Service Rules 6A or not. While answering the question, the Assistant Commissioner considered the question of export of services and the agreements entered by the Petitioner with FKDG and categorically held that the petitioner fulfils all the conditions as per Section 6A of the Export of Service Rules. The question as to whether the petitioner is an exporter of services or not has reached finality and is binding on the respondent. 8. After the introduction of the GST Act, the petitioner had approached the respondents authorities for grant of refund under the GST regime for the period July, 2017, Aug-Sep, 2017, April-June, 2018, June-Sept, 2018 and Oct to Nov 2018 and Oct 2017 to Mar 2018, Dec 2018 to Jan, 2019 and Feb 2019 to Mar 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es means the supply of any service when:- (i) the supplier of service is located in India; (ii) the recipient of service is located outside India; (iii) the place of supply of service is outside India; (iv) The payment for such service has been received by the supplier of service in convertible foreign exchange; (or in Indian rupees wherever permitted by the Reserve Bank of India}; and (v) The supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation I in Section 8 11. The petitioner-company is a company organized and existing under the laws of India, having its registered office at New Delhi and entered into agreement with FKDG, having its place of business at Germany (P-4). FKDG, headquartered in Bad Homburg, Germany, which is a multinational group of companies engaged in the research, development, manufacturing, sale and distribution of pharmaceutical products for the therapy and care of critically and chronically ill persons in hospital and outpatient care. The services provided by the petitioner are without involvement of any third party and invoices are being raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year, [unless there was] any material change justifying the Revenue to take a different view of the matter. 14. It is not in dispute that the petitioner is a public limited company incorporated in India, in consonance with the Indian Companies Act, 1956. The petitioner is also registered with the department under GST vide Registration No. 06AABCD7720L1ZM dated 01.07.2017 whereas FKDG is a company incorporated in Germany. The petitioner does not carry out any marketing of the products of FKDG nor any product is delivered by FKDG to it. The activities performed by the petitioner are original activities and for doing the same, it has been charging costs from FKDG. Therefore, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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