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TMI Blog2023 (5) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... the sales figure on empirical basis. The Adjudicating Authority has merely referred to a portion of Clause 2.4 of the Agreement, which provides that Netgear Technologies (India) Pvt. Ltd. would perform reconciliation of that year s sale, as a direct result of the service provider s activity and would reasonably approve the cost incurred by the service provider in fulfilling its duties under the Agreement. The same does not, absent any other material, indicate that the remuneration is based on the sales achieved. The question whether an entity is an intermediary will have to be determined on the basis of actual work performed. It is deemed apposite to set aside the impugned order as well as the Order-in-Original dated 10.01.2020 and rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 820005153S), seeking refund of an amount of ₹64,50,259/- relatable to the period of April 2018 to March, 2019. 3. The Adjudicating Authority (respondent no.2) issued a show cause notice dated 19.08.2020, inter alia, proposing to reject the petitioner s claim for refund on the ground that the petitioner was merely facilitating and arranging services and thus, qualified as an intermediary within the meaning of Section 2(13) of the Integrated Goods and Services Tax Act, 2017 (hereafter the IGST Act ). Consequently, the place of supply of services was in India and therefore, the supplies made could not be considered as zero-rated supplies within the meaning of Section 16(1) of the IGST Act. 4. The petitioner responded to the said s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded that the fee paid to the petitioner was relatable to the sales made by them to the customers in India. 6. The aforesaid conclusion is stoutly disputed by the petitioner. The petitioner submits that part of Clause 2.4 of the Agreement, which provides for the payment of fees, has been read out of context. The learned counsel for the petitioner submits that Clause 2.4 of the Agreement read as a whole clearly indicates that the fee paid to the petitioner is on cost plus basis. 7. Although the Adjudicating Authority has interpreted the Agreement, we find that there is insufficient analysis of the actual work performed by the petitioner. There is no material to relate the remuneration to the sales figure on empirical basis. The Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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