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TMI Blog2024 (4) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ay High Court was not taken up in appeal before the Supreme Court and the Central Board of Indirect Taxes and Customs decided not to file SLP against the order passed by the Bombay High Court - the decision of the Bombay High Court holds the field and since the issue is that under the Central Legislation, following the doctrine of comity, the judgement of the Bombay High Court would apply in the State of Uttar Pradesh too. The impugned orders is quashed and set aside with a direction upon the appellate authority to decide the issue afresh in light of the observations made hereinabove - Petition disposed off. - Hon'ble Shekhar B. Saraf, J. For the Petitioner : Ashish Mishra For the Respondent : C.S.C.,Parv Agarwal ORDER HON'BLE SHEKHAR B. SARAF,J. 1. These writ petitions are arising out of a common appellate order dated March 2, 2023, therefore, the same have been heard together and are being decided by this common order. 2. These are the writ petitions under Article 226 of the Constitution of India wherein the writ petitioners are aggrieved by order dated March 2, 2023 passed by respondent no.3 in appeal under Section 107(11) of the Central Goods and Services Tax Act, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Revenue. It is a fact that payment is received from FTO. Hence, subscriber of the FTO cannot be considered as recipient of service as held by adjudicating authority. FTO is undoubtedly the recipient of service. 20. The point of dispute is whether provisions of section 13(2) or section 13(3) of the IGST Act is applicable to the present case. Section 13(2) refers to the place of supply of services as the location of the recipient of services except in cases of sub-sections (3) to (13) of section 13. Section 13(3) identifies the place of supply of services as the location where the services are actually performed. The provision of section 13(3)(b) is applicable in the case where services are supplied to an individual as section 13(3) (b) starts with the words service supplied to an individual . We find that in the instant case the said services were supplied to FTO and not to an individual. The FTO had supplied services to their subscriber (individual). Here, the supplier of services is the Vodafone Idea Ltd. and the recipient of the service is FTO as discussed above. Further, the Vodafone Idea Ltd. has no idea of subscribers of FTO and therefore question of supplying service to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided in relation to an immovable property situated in India. Category II deals with specified taxable services where such taxable service is partly performed outside India and states that when it is partly performed outside India, it shall be treated as performed outside India. Category III deals with services not covered under category I and II. The telecom services fall under category III. As far as category III services are concerned, the transaction shall be construed as export when provided in relation to business or commerce to a recipient located outside India and when provided otherwise to a recipient located outside India at the time of provision of such service. The additional conditions required to be satisfied are such services as are provided from India and used outside India ; and consideration for the service rendered is received in convertible foreign exchange. As observed earlier, the service is rendered to a foreign telecom service provider who is located outside India and therefore, the transaction constitutes export and we hold accordingly. 5.3. The Board's clarification vide Circular No. 111/5/2009-S.T., dated February 24, 2009 makes this position very cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with an identical case. The question before the Tribunal in that case was when agents/sub-agents in India of Western Union Financial Services, Panama, makes payments to an Indian beneficiary on behalf of the customer of the Western Union in foreign country, whether the services rendered by the Indian agents/sub-agents should be treated as export or not under the Export of Services Rules, 2005. By a majority decision, it was held that the service being provided by the agents and sub-agents is delivery of money to the intended beneficiaries of the customers of the Western Union abroad and this service is business auxiliary service , being provided to Western Union. It is the Western Union who is the recipient and consumer of this service provided by their agents and subagents, not the persons receiving money in India. The ratio of the said decision applies squarely to the facts of the present case before us. Once the ratio is applied, it can be easily seen that the service recipient is the foreign telecom service provider and not the subscriber of the foreign telecom service provider who is roaming in India.' 2. Commissioner of Service Tax v Bayer Material Science P. Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h one is a subsidiary of the other, they are separate legal entities. They produced a large number of case laws on this subject. They also relied on the decision of this Tribunal in the case of Blue Star Ltd. v. Commissioner of Central Excise vide Final Order No. 489/2008, dated March 27, 2008 (2008) 11 STR 23 (Trib.-Bang), wherein a similar situation was dealt with. The situation here also is similar. In this case, the Indian company is the principal and the Singapore company is a subsidiary. The appellant is the Indian Company, booked certain orders for the Singapore company. It cannot be said that these booking of the orders indicate service being rendered in India. It is not correct. And also because the appellant books the orders for the Singapore company, we have to consider that the service is delivered only to the Singapore company. The recipient of the service is a Singapore company. When the recipient of the service is Singapore Company, it cannot be said that service is delivered in India and the benefit of the service is derived only by the recipient company. Because of the booking of the orders, the Singapore company gets business. Therefore, the service is also utiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X
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