The Petitioner is considered an independent contractor not an agent, hence eligible for ITC refunds under GST provisions relating to zero-rated supplies.

JUDGMENT :

 B. P. Colabawalla, J.

1. Rule. Respondent Nos.2 to 5 waive service. With the consent of the Petitioner and Respondent No.2 to Respondent No.5, Rule made returnable forthwith and heard finally.

2. The present Writ Petition filed under Article 226 of the Constitution of India seeks to challenge two Orders-in-Appeal Nos. DC/APP- 1/P-488/22-23/27AAFCH1404FIZ2/HMD SEAL/ORDER/23-24/195 (for the period July 2021 to September 2021) and DC/APP-1/P-489/22-23/27AAFCH1404F1Z2/HMD SEAL/ORDER/23-24/196 (for the period October 2021 to December 2021) both dated 10.08.2023 passed by the Deputy Commissioner of State Tax, PUN-APP-E-001, the 4^th Respondent herein, upholding the rejection of refund of unutilized Input Tax Credit (“ITC”) relating to zero rated supplies (Exports) of goods and services.

3. The facts of the present Petition reflect that the Petitioner had filed two refund applications for the period July to September 2021 and October to December 2021 claiming refund of Rs.13,75,244 and Rs.25,88,634 respectively, of the unutilised ITC under Section 54(3) of Central Goods and Services Act, 2017 (“CGST Act”)/Maharashtra Goods and Services Tax Act, 2017 (“MGST Act”) read with Rule 89 (4) of Central Page 2 of 24 Goods and Services Rules, 2017 (“CGST Rules”)/Maharashtra Goods and Services Tax Rules, 2017 (“MGST Rules”) for making zero rated supplies, which came to be rejected by the Original Authority – State Tax officer - Respondent No. 5 and, upheld by the Appellate Authority – Respondent no. 4 on the ground that the recipients of the services located outside India are carrying on business through the “agency” in India i.e. the Petitioner and hence the Petitioner qualifies as “mere establishment of distinct person”. Thus, the Petitioner did not provide zero rated supplies and consequently, not entitled to a refund of unutilized ITC under Section 54(3) of the CGST/MGST Act.

4. The Petitioner supplies engineering services for industrial and manufacturing projects, specialized office support services, management consulting and management services, maintenance and repair services etc., and also supplies goods to its customers. The said supplies are to Petitioner’s group companies/related persons located outside India. The Petitioner does not supply either goods or services in the Domestic Tariff Area (“DTA”).

5. The Petitioner was earlier registered in the name of HMD Seal/Less Pumps Industrial (India) Private Ltd. The name of the Petitioner was Page 3 of 24 changed to Sundyne Pumps and Compressors India Private Ltd. with effect from 19.07.2023. The GST registration was appropriately amended.

6. It is the submission of the Petitioner that the overseas entities [to which supplies were made] are independent body corporates/legal undertakings incorporated under the laws of their respective jurisdictions. Since, the entire supplies of the Petitioner were to the recipient located outside India, the said supplies qualified as “Exports of Goods” and “Export of Services”, under Section 2(5) and 2(6) of the Integrated Goods and Services Tax Act, 2017 (“IGST Act”), respectively, and they were zero-rated supplies in terms of Section 16 of the IGST Act. Therefore, the Petitioner was entitled to a refund of unutilised ITC in terms of Section 54(3) of the CGST/MGST Act read with Rule 89(4) of the CGST/MGST Rules.

7. This being their case, the Petitioner filed two separate refund applications under Section 54(3) of CGST Act/MGST Act read with Section 16 of the IGST Act and Rule 89(4) of the CGST Rules/MGST Rules for refund of unutilized ITC on account of zero-rated supplies made by the Petitioner for the period April 2020 to March 2021 and April to June 2021. The said applications were duly allowed, and the Petitioner was granted the refunds. According to the Petitioner, the said orders granting refund are not Page 4 of 24 challenged by the State and have attained finality. These two refund applications are not the subject matter of this Petition.

8. Sim