The main legal point established is that the concept of intermediary services requires a minimum of three parties, and the petitioner, in providing services directly, did not meet the definition of an intermediary under the law.

JUDGMENT

Vibhu Bakhru, J. The petitioner has filed the present petition impugning an order dated 30.09.2021 (Order-in-Appeal No. 342/JC/Central Tax/Appl-I/Delhi/2020) rejecting the petitioner's appeal against an order dated 26.11.2019 (Order-in-Original No.151/DIV-NP/GST/REFUND/2019-20). Although the petitioner has statutory right of an appeal to the Appellate Tribunal, the petitioner cannot avail the same as the Appellate Tribunal has not been constituted.

2. In view of the above, this Court considers it apposite to entertain the present petition.

3. The controversy involved in the present petition relates to whether denial of integrated tax is justified on the ground that the petitioner is an intermediary.

4. The petitioner is a company incorporated in India and provides services to an affiliated entity, OHMI Industries Ltd., Japan (hereafter `OHMI, Japan'). The petitioner had entered into two separate agreements with OHMI Japan, one for rendering Business Support Services and the other for providing Market Research Services.

5. The petitioner had filed an application dated 29.11.2018 seeking refund of integrated tax on zero rated supply. The petitioner's application related to refund of integrated tax paid on two invoices, both dated 20.07.2018, for the value of USD 84,152 & USD 30,000/- respectively. Against the aforesaid invoices, the petitioner had received a remittance of USD 1,14,073.52/-. The petitioner had paid the integrated tax under the Integrated Goods and Services Tax Act, 2017 (hereafter `the IGST') amounting to Rs.14,14,604/- in respect of the said two invoices and therefore, sought refund of the said amount.

6. The petitioner was issued a deficiency memo dated 04.01.2019 calling upon the petitioner to provide a copy of the Service Agreement with the service recipient. Admittedly, the petitioner complied with the said requirement and provided copies of the two agreements entered into with OHMI Japan. In addition, the petitioner also submitted a note on the activity performed under the two agreements.

7. The Adjudicating Authority, did not issue any show-cause notice but proceeded to reject the petitioner's application by an order dated 26.11.2019. The adjudicating authority found that the petitioner was engaged in the business of "providing support to customer directly". According to the adjudicating authority, providing support to the customers of OHMI, Japan directly meant that the petitioner was rendering intermediary services. Consequently, the place of supply of services was located at the place of business of the petitioner. Accordingly, the adjudicating authority held that the services provided by the petitioner were not zero-rated supply and therefore, rejected the petitioner's application for refund.

8. The petitioner preferred an appeal against the order dated 26.11.2019, before the appellate authority confined to the denial of refund of integrated tax on amount received from providing Market Research Services. It is relevant to note that the petitioner did not contest the denial of refund on account of amounts received for providing Business Support Services. The petitioner stated that in terms of the Market Research Agreement, OHMI, Japan had agreed to pay a sum of USD 1,20,000/- per annum as full compensation for providing Market Research Services. The petitioner claimed that it had paid integrated tax of a total amount of Rs.3,71,767/- for the services invoiced during the period of July, 2018 and therefore, confined its relief for seeking refund of the said amount.

9. The petitioner's appeal was rejected by the appellate authority by upholding the order passed by the adjudicating authority without noticing that the petitioner had confined the appeal to refund of integrated tax on Market Research Services and had not challenged the denial of refund on account of services provided to customers directly.

10. The appellate authority held that the petitioner was not eligible for refund of amou