2020 (12) TMI 1329 - Commissioner - GST

Refund claim of tax paid on export of services - zero-rated supply - intermediary services - time limitation - opportunity of hearing provided to the appellant, or not - place of provision of service - place of supply - applicability of Section 13(8)(b) of the IGST Act - HELD THAT - The refund for the month of October, 2017 was filed on 31-10-2019 that is within expiry of two years from the relevant date as stipulated under Section 54(1) of the CGST Act, 2017. Further, the contention of the appellant is agreed upon that they were not able to file the refund claims for the subsequent period on the common portal because deficiency memo for earlier period was pending. The refund claims were not time barred. As to whether the services provided by the appellants were covered under intermediary services as defined under Section 2(13) of IGST Act and applicability of Section 13(8)(b) of the IGST Act, thereon? - HELD THAT - The appellant is providing a service of Promotion and Marketing to the university/college on a principal to principal basis and is not facilitating a provision of service between two persons. It also needs to be mentioned that in few cases appellant in addition to the above service has also undertaken the activity of providing market intelligence about the requirements of the intending students. This also shows that the appellant is providing a service directly to the Universities/Colleges and not to any person on behalf of the Universities/Colleges. This fact is itself contradictory here as the appellant himself is accepting that only in few cases they were providing their services directly on principle to principle basis. It shows that they are themselves accepting that they are providing intermediary services. The appellants were engaged by the foreign universities/institutes to represent them in the territory of India who in-turn acted as their education/recruitment agent to perform the services in the territory of India. That such services provided by the appellants were only as a representative of the foreign universities and not as an independent service provider providing services on their own account. The Section 13(8)(b) of the IGST Act, 2017, provides that the place of supply for the intermediary services would be the location of the supplier of such services (i.e. location of intermediary service provider) and in the instant case it is in India. As discussed above the appellants are covered under intermediary and hence, their place of provision of services is not outside India contrary to condition (iii) of Section 2(6) of the IGST Act which defines export of service . The provisions of place of supply in case of Intermediary, has been carved out in GST Act as per international practices, if services provided by the intermediary located in India would be without payment of tax - For Export of Services all the conditions as laid down under Section 2(6) of IGST Act, 2017 are to be followed in totality without any violation, and that there is no scope of partial compliance of the conditions laid down therein. The universities engage the entities like applicant for promotional marketing activities for course taught by them making the perspective students aware about the course fee and other associated costs, market intelligence about course and the latest educational trend/future perspective/job security/placement etc. and that such recruitment services provided to students of the foreign university are not covered under export of services, such services are provided only as a representative of foreign university and not as an independent service provider. Therefore, place of supply shall be under Section 13(8) of the IGST Act, 2017 not under Section (2)(6) of the above Act. Place of supply shall be the location of service provider in taxable territory and will not qualify as export of service. The refund claims were not hit by time limitation, but the services provided by the appellants to the Foreign Universities and the students in India were provided only as a representative of foreign universities and not as an independent service provider; that such services were not covered under export of services and thus exigible to GST; that the place of supply shall be governed by Section 13(8)(b) and not by Section 13(2) of IGST Act, 2017. Place of supply of services was the location of service provider in India. Thus, the services of the Appellant are not Export of Services under the GST Act, and refund claims of the appellant are inadmissible and liable to be rejected. Appeal disposed off.

Summary

Issues Involved:
1. Whether the refund claims filed by the appellant were time-barred.
2. Whether the services provided by the appellants were covered under "intermediary services" as defined under Section 2(13) of IGST Act and the applicability of Section 13(8)(b) of the IGST Act.

Issue-wise Detailed Analysis:

1. Time-barred Refund Claims:
The appellants contended that they filed the refund claims within the stipulated time, but due to several deficiency memos issued by the authorities, the final submission was delayed. The refund for October 2017 was filed on 31-10-2019, within the two-year limit as per Section 54(1) of the CGST Act, 2017. The appellant argued that the common portal's design, which did not allow filing subsequent refund claims if a deficiency memo was pending, caused delays. The appellate authority agreed with the appellant, holding that the refund claims were not time-barred.

2. Intermediary Services and Applicability of Section 13(8)(b):
The sanctioning authority rejected the refund claims, categorizing the appellant's services as "intermediary services" under Section 2(13) of the IGST Act. The appellant argued that their services were marketing and promotion of foreign universities, not intermediary services. They claimed their activities were akin to a Marketing Agency, providing services on a principal-to-principal basis, and not facilitating a provision of service between two persons.

The appellate authority, however, found that the appellants acted as recruitment agents for foreign universities, facilitating the enrollment of students and receiving commission based on the number of enrollments. This principal service was considered intermediary, with promotion being incidental. The authority concluded that the appellants were intermediaries, as they facilitated the supply of services between foreign universities and students in India.

The definition of "intermediary" under Section 2(13) of the IGST Act includes brokers or agents who arrange or facilitate the supply of goods or services between two or more persons. The appellate authority found that the appellants fit this definition, as they acted as go-betweens for the universities and students.

Citing the Gujarat High Court's decision in Material Recycling Association of India v. Union of India, the authority held that intermediary services provided in India are not considered "export of services" under the IGST Act, 2017. Therefore, the place of supply for intermediary services is the location of the supplier, i.e., in India, as per Section 13(8)(b) of the IGST Act. This means the services provided by the appellants were not "export of services" and were subject to GST.

Order:
The appellate authority upheld the impugned orders on merits, concluding that the services provided by the appellants to foreign universities and students in India were intermediary services, not export of services. Consequently, the place of supply was in India, making the services subject to GST. The refund claims were deemed inadmissible and rejected, though the claims were not time-barred. The appeals were disposed of accordingly.