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TMI Blog2024 (5) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the first respondent. 2. Operative portion of the impugned order reads as under : - "From the above legal matrix, it is clear that provision of service constitutes export only if all the conditions are satisfied as stated under Section 2(6) of the IGST Act, 2017. The last condition of the impugned Section clearly says that 'the supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in section 8'. As per sub-clause (i) of Explanation 1 provided under Section 8(1) of the IGST, 2017 an establishment shall be treated as 'distinct person' if it has any other establishment outside India. The word 'not merely establishments of a distinct per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The condition (v) of the definition of export of services' as per section 2(6) reads as: 'the supplier of service and the recipient of service are not merely establishment of a distinct person in accordance with Explanation 1 in section 8;' As per this condition the supplier of service and recipient of service should be separate legal person and not mere an establishment of distinct person. In the present case, it is observed that R2Net which is based in USA and Segoma Israel is its subsidiary. Further Segoma India is a subsidiary of Segoma israel. So also we find that as per agreement between R2Net and their customer, R2Net lists on the system only those diamonds that are photographed with its proprietary Diamond Display ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner has effected export of service to a subsidiary in Australia, name Vuram Australia Pty Ltd., Docklands, Australia and that the petitioner has discharged the service tax liability by debiting tax from its Electronic Credit Ledger for a sum of Rs.3,39,457/-. 5. However, the second respondent by an order dated 14.11.2019 in Rejection Order No.111/TRI-I-2019-20 Final has rejected the refund claim, which has now been wrongly upheld by the first respondent, vide impugned order in Appeal No.4/2020-TRY(GST) dated 20.08.2020 in A.No.1/2020-TRY(GST). The petitioner was entitled to file an appeal before the GST Tribunal under Section 112 of the CGST Act, 2017. Since the Tribunal has not been constituted, the petitioner is before this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the IGST Act 2017 for being considered as export of services, as it would not be treated as supply between merely establishments of distinct persons under Explanation 1 of section 8 of IGST Act, 2017. Similarly, the supply from a company incorporated in India to its related establishments outside India, which are incorporated under the laws outside India, would not be treated as supply to merely establishments of distinct person under Explanation 1 of section 8 of IGST Act 2017. Such supplies, therefore, would qualify as 'export of services', subject to fulfilment of other conditions as provided under sub-section (6) of section 2 of IGST Act." 8. That apart, the learned counsel for the petitioner placed reliance on the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being considered as export of services, as it would not be treated as supply between merely establishments of distinct person under Explanation I of Section 8 of IGST Act, 2017. Similarly, the supply from a company incorporated in india to its related establishments outside india, which are incorporated under the laws outside India would not be treated as supply to merely establishments of distinct person under Explanation 1 of section 8 of IGST Act 2017. Such supplies, therefore, would quality as 'export of services,' subject to fulfilment of other conditions as provided under sub-section (6) of section 2 of IGST Act 11. It is clear from the above that the impugned order has been passed without application of mind and in disrega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It cannot be said that the petitioner and its subsidiary are not merely establishment of a distinct person in accordance with the explanation I in Section 8 of the IGST Act, 2017. The issue now stands clarified by Circular No. 161/17/2021-GST dated 20.09.2021 bearing Ref.F.No.CBIC-20001/8/2021-GST, content of, which has been extracted above. 15. This view has also been followed by the Delhi High Court in Xilinx India Technology Services (P) Ltd., Vs. Special Commissioner Zone VIII reported in (2023) 99 GST 948 (Delhi):(2023) 78 GSTL 24 (Delhi). That apart, the Revenue cannot argue against its own circular, although such clarification in Circular of the Board are much binding on the petitioner nor on this Court. The view expressed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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