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TMI Blog2024 (9) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... in India and the place of supply is within the territory of India. It is to mention that for determining the taxability of any transaction is to ascertain whether the transaction tantamount to supply in terms of the provisions of law. The term supply has been defined at Sec.7 of the CGST Act, 2017 - an establishment of a person in India and another establishment of the said person outside India are considered as establishments of distinct persons. In the instant case, the applicant is not having any GST registration in India. Hence, the transaction done by the applicant does not fall under the definition of export of goods. Hence, the related transactions shall not be considered as ZERO-RATED SUPPLY under the provisions of the GST Act, 2017. - SRI. K. RAVI SANKAR, AND SRI. B. LAKSHMI NARAYANA, MEMBER Represented by : Maddukuru Sai Babu ORDER (Under sub-section (4) of Section 98 of Central Goods and Services Tax Act, 2017 and sub-section (4) of Section 98 of Andhra Pradesh Goods and Services Tax Act, 2017) 1. At the outset we would like to make it clear that the provisions of CGST Act, 2017 and APGST Act, 2017 are in pari materia and have the same provisions in like matter and dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, means taking goods out of India to a place outside India; Section 11 of IGST Act-Place of supply of goods imported into, or exported from India:- The place of supply of goods:- (a) Imported into India shall be the location of the importer; (b) Exported from India shall be the location outside India. Section 16 of IGST Act-ZERO RATED SUPPLY: - (1) zero rated supply means any of the following supplies of goods or services or both, namely:- (a) Export of goods or services or both ; or (b) supply of goods or services or both for authorized operations to a Special Economic Zone developer or a Special Economic Zone unit. (2) Subject to the provisions of sub-section (5) of section 17 of the Central Goods and Services Tax Act, credit of input tax may be availed for making zero-rated supplies, not with standing that such supply may be an exempt supply. (3) A registered person making zero rated supply shall be eligible to claim refund under either of the following options, namely: (a) he may supply goods or services or both under bond or Letter of Undertaking, subject to such conditions, safeguard sand procedure as may be prescribed, without payment of integrated tax and claim refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of India (Liquidation Process) Regulations, 2016, and Mr. Pankaj Dhanuka was appointed as Liquidator ( Liquidator ). The Liquidator invited Expressions of Interest through public announcement dated February 02, 2022 for sale of Corporate Debtor as a whole on a going concern basis and sale of certain assets of the Corporate Debtor in parcels separately or sale of assets of Corporate Debtor collectively. The sale process was conducted by way of e-auction in terms of the process document dated April 08, 2022 ( Process Document). MCM emerged as the successful bidder for assets in one of the parcels, namely Parcel 4, comprising of certain assets of Phase III of the Corporate Debtor ( Phase III Assets ). Pursuant to the same, a Letter of Intent dated June 21, 2022 ( LOI was issued to MCM. As per Terms of the Process Document and LOI, MCM being the successful bidder is required to pay the entire sale consideration and is required to bear all applicable taxes and duties as may be applicable. No incidence of tax or other rates will be applicable on or borne by the Corporate Debtor or the Liquidator. The sale certificate will be issued upon payment of such sums. In accordance with the Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods procured by the Applicant from an Indian company undergoing liquidation (M/s Lanco Kondapalli Power Limited) as per the Companies Act, 2013 (These goods are intended to be exported to Myanmar) shall be treated as Zero-Rated Supplies as per Section 16 of IGST Act. Whether the same can be exported under Zero-Rated supplies without payment of tax against Letter of Undertaking ( LUT ). The question raised as above appeared to fall within the Provisions U/s 97 (2) (e) of the Central Goods Services Tax Act, 2017. Hence the application admitted. From the submissions made at the time of filing the application, it is seen that the applicant M/s. MCM Pacific PTE LTD, is a Singapore based company and is in the business of power generation and distribution. The applicant, currently, does not have any place of business in India and resultantly is not registered in India under GST Act, 2017. The Applicant is in the process of procuring certain goods/ assets as per the agreement from M/S Lanco Kondapallli Power Limited ( Lanco ) a company which is currently undergoing liquidation in India. The Applicant is acquiring the said goods/assets for further transfer of the same to Myanmar after dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritory of India to the applicant. It is an undisputed fact that the supply involves movement of goods and therefore the place of supply would be the termination for deliver to the recipient. The applicant purchases from LANCO, Kondapalli and the goods are procured from India and delivered in the territory of India. Hence the place of supply is location of point where goods delivered to applicant i.e, premises of Lanco Kondapalli Powder Ltd, plant office: IDA, Kondapalli, Ibrahimpatnam Mandal-521 228, Krishna District, A.P, India. It indicates that in the event the supplier located in India and the place of supply is within the territory of India. It is to mention that for determining the taxability of any transaction is to ascertain whether the transaction tantamount to supply in terms of the provisions of law. The term supply has been defined at Sec.7 of the CGST Act,2017 which reads as under: (1) For the purposes of this Act, the expression supply includes (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply of services by an establishment of a foreign company in India to any other establishment of the said foreign company outside India will not be covered under definition of export of services. Further, perusal of the Explanation 2 to section 8 of the IGST Act suggests that if a foreign company is conducting business in India through a branch or an agency or a representational office, then the said branch or agency or representational office of the foreign company, located in India, shall be treated as establishment of the said foreign company in India. Similarly, if any company incorporated in India, is operating through a branch or an agency or a representational office in any country outside India, then that branch or agency or representational office shall be treated as the establishment of the said company in the said country. In view of the above, it can be stated that supply of services made by a branch or an agency or representational office of a foreign company, not incorporated in India, to any establishment of the said foreign company outside India, shall be treated as supply between establishments of distinct persons and shall not be considered as export of services i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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