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TMI Blog2019 (11) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... he Advance Ruling No. GST-ARA-52/2018 19/B-160 dated 19.12.2018 = 2019 (3) TMI 594 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA BRIEF FACTS OF THE CASE A. The M/s. NES Global Specialist Engineering Services Pvt. Ltd. (hereinafter referred to as the "respondent") had filed application under Section 98 of CGST Act, 2017 read with Rule 104(1) of CGST Rules 2017 seeking advance ruling on: Question 1: whether the transaction in question was a zero- rated supply or a Normal supply under the GST Act. Question 2 if the said supply was zero rated supply, then whether the same could be considered as an export of service under GST Act B. The respondent is engaged in providing supply of manpower services to highly technical industries such as Oil & Gas, Power etc. C. The respondents and M/s. NES Talent Recruitment services (hereinafter referred to as 'NES Abu Dhabi) having its registered office at Unit No 104, Business Avenue Tower, Abu Dhabi had proposed to enter into a service agreement through which the respondents would provide support service in respect of foreign business carried out by NES Abu Dhabi. D. Both the respondents and NES Abu Dhabi are subsidiaries of the parent NES Gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t entries posting; i. AR postings; j. Payroll assistance; k. Support assignment work; l. Scanning and storing data in the shared folder of NES Abu Dhabi. m. General consultancy services provided for accounting, Payroll, Taxation etc and any other work which would require to do as per the request. 3. Out of the above list of services, it may be seen for instance that services of Manpower Recruitment & Supply' may be provided both with and without involvement of a 3rd person. The applicant's activities related to visa and immigration indicate the applicant may be recruiting manpower for NSE Abu Dhabi, f that is the case, the applicant can be held to be a principal only if they first recruit the manpower on their own account and then supply it to NSE Abu Dhabi. However, if the applicant recruits the same manpower not on his own account but on account of NES Abu Dhabi, they cannot be held to be a principal due to presence of 3rd person. In that case, the applicant would be acting as an intermediary / agent who brings NES Abu Dhabi and the persons willing for Job together. 4. Due to above said diverged possibilities, this office prayed to the Advance Ruling Authority to enab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of AAAR ruled as under: "we cannot pass any ruling in relation to the export of services, as the same would require the determination of the place of supply of service, which is not under jurisdiction and scope of the Advance Ruling Authority." Respondent's Submissions 9. Justification for considering the transaction as export of service. It is the fact that at the time of submission of application the agreement was under execution and hence it was mentioned as "Draft". (Refer the Letter dated July 5,2018). However, we respectfully submit that during the proceeding before the Advance Ruling Authority (ARA), The learned CGST Officer had informed in last hearing dated 12.12.2018 that the copy of Master Service Agreement (MSA) had not been produced for verification. We informed that that the Service Provider, NES Global Specialist Engineering Services Private Limited (NES India) and the Service receiver, NES Global Talent Recruitment Services (NES Abu Dhabi) are associate concerns and had made an ''INTER COMPANY SERVICE AGREEMENT" and the same had been furnished with them , already vide submission dated 03.09.2018, as acknowledged on 04.09.2018, and the same be considered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant, which happens to be the jurisdictional officer, has attributed the said delay of 26 days in filing of the instant appeal to the initial teething problem being faced by them in the implementation of the GST procedures after the introduction of the GST regime. After going through this miscellaneous application for the condonation of delay filed by the Appellant and grounds underscored by them, we are inclined to condone the said delay of 26 days, and allow the appeal filed before us in terms of proviso to sub section 2 of section 100 of the CGST Act 2017. 14. After allowing the appeal, we set out to discuss the instant appeal against the impugned Advance Authority Ruling, wherein the Authority of the Advance Ruling held that the transactions covered under the Master Service Agreement (Intercompany Service Agreement) entered between Respondent and NES Abu Dhabi are export of services under the GST Act, 2017 and accordingly held the supply as zero-rated supply in terms of the provision of Section 16 of the IGST Act, 2017. 15. On perusal of the facts and records of the case, placed before us, and considering all the written as well as oral submissions made by both the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 in section 8. 19. Thus, in view of the above provision laid down in respect of the export of services and the above discussed provision laid down in Section 97(2) of the CGST Act, 2017 encompassing the specific questions, which are to be sought under the Advance Ruling, it can decisively be inferred that the questions raised by the Respondent before the Advance Ruling Authority were beyond the scope and jurisdiction of the Advance Ruling, and hence do not warrant any ruling thereon. 20. In view of the above rationale, the Advance Ruling Authority should have refrained from passing any ruling on the above mentioned two questions asked by the Respondent vide the Advance Ruling application filed before the Advance Ruling Authority. However, the Advance Ruling Authority have passed the ruling in the instant case by exceeding its ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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