The appellate authority must adhere to established legal principles regarding service recipients, emphasizing that the customer’s customer is not the service provider's customer.

JUDGMENT

Shekhar B. Saraf, J.

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, 2017.

3. I have heard the counsel appearing on behalf of the parties and perused the material on record.

4. Upon a perusal of the impugned order, it appears that the appellate authority has not properly appreciated the judgements of the Supreme Court for condoning the delay. Furthermore, having held that the matter was time barred, the appellate authority has proceeded to decide the matter on merits, which also unfortunately is without any basis in law as the appellate authority has not taken into consideration the judgement of the Bombay High Court in Vodafone Idea Limited v. Commissioner of CGST and Central Excise, Mumbai reported in 2022 SCC Online Bom 1485 and the judgment of Delhi High Court in Vodafone Idea Limited v. Union of India and Others reported in 2023 SCC Online Del 6673.

5. The Bombay High Court in Vodafone Idea Limited (Supra) has specifically dealt with the issue and come to the following findings :-

"19. As per clause (a) of section 2(93) of the CGST Act, "recipient" means where the consideration is payable for supply of goods or services, the person who is liable to pay the consideration. Clauses (b) and (c) of section 2(93) is applicable when no consideration is payable. In this case consideration is payable by the FTO for the services rendered to it. We find the adjudicating authority in his orders does refer to the terms of agreements with FTO. The services are rendered under agreements with the service recipients and according to the agreement, the Vodafone Idea Ltd. is contractually obligated only to the FTOs for the services under the agreement ; the consideration is payable by the FTOs and the consideration is payable in convertible foreign exchange. There is no mention of any agreement with subscriber of FTO. The Vodafone Idea Ltd. has reiterated that there is no contract with subscriber of FTO making it liable to pay value of service to the Vodafone Idea Ltd. We find that practically it is impossible for the Vodafone Idea Ltd. to have contract with subscriber of FTO. Therefore, the subscriber is not liable to make any payment to the Vodafone Idea Ltd. In the impugned order it is stated "as per the agreement reproduced in paras 16.1 (Appeal No. 257/2021) and 13.1 (Appeal No. 258/2021) of the impugned orders with M/s. Cello Partnership or M/s. Verizon Wireless USA D/B/A, for provision of service is payable by FTO." This is not controverted 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 su