The court emphasized that for services to qualify as 'export of services', authorities must accurately ascertain the petitioner's role as an intermediary, citing inadequate findings in previous rulings.

ORDER :

1. Ms. Ananya Kapoor, learned counsel represents Ms. K. Maanasa, learned counsel for the petitioner. Mr. D. Raghavendar Rao, learned Senior Standing Counsel appears for the Central Board of Indirect Taxes and Customs in W.P.No.28201 of 2024. Mr. R. Sushanth Reddy, learned counsel for respondent No.3 in W.P.Nos.28201 and 5621 of 2024. Mr. B. Mukherjee, learned counsel represents Mr. N. Bhujanga Rao, learned Deputy Solicitor General of India, for respondent No.1.

2. All these writ petitions relate to the same petitioner. The rejection of refund by the Refund Sanctioning Authority dated 09.07.2024 is under challenge in W.P.No.28201 of 2024. The orders in appeal dated 12.12.2023 by which the refund sanction orders dated 09.11.2022 and 26.10.2022 have been set aside are under challenge in W.P.Nos.5621 and 5622 of 2024.

3. Heard the learned counsel for the parties.

4. Petitioner is an India entity engaged primarily in the business of providing taxable services under the category “Information Technology Software Services” which, according to it, are exported mainly to its associated enterprises located at USA. Such supplies of services qualifies as export of services as the place of supply is the location of the service recipient outside India as per Section 13 of the Integrated Goods and Services Tax Act, 2017 (for short “the IGST Act”). According to the petitioner, such supplies are in the nature of “zero rated supplies” as defined under Section 16 and includes export of goods or services and as such are eligible for refund of the unutilized ITC. According to the petitioner, it filed GST-RFD-01 along with supporting documents claiming refund on account of services for different periods i.e., 01.10.2023 to 31.12.2023, subject matter of W.P.No.28201 of 2024; 01.11.2021 to 31.03.2022, subject matter of W.P.No.5621 of 2024 and the subject period of refund in W.P.No.5622 of 2024 is from 01.04.2021 to 31.10.2021.

5. In W.P.No.5621 and 5622 of 2024 the refund sanctioning authority allowed the refund vide orders dated 06.11.2022 (Annexure P4) and 26.10.2022 (Annexure P4). The revenue preferred an appeal which has been allowed by the impugned order dated 12.12.2023 by the Additional Commissioner (Appeals-I) under challenge in both the writ petitions. However, the refund sanctioning authority rejected the refund by order dated 09.07.2024 impugned in W.P.No.28201 of 2024 based entirely on the Commissioner’s order for the earlier period. Therefore, the petitioner has assailed all the three orders in the present batch of writ petitions.

6. According to the petitioner, it fulfills the eligibility criteria being an “export of service” under Section 2(6) of the IGST Act. Such supply of services qualifies to be an Export of Services as the place of supply is the location of the services receiver, who is located outside the taxable territory (i.e. Outside India) in terms of Section 13 of the IGST Act 2017. Section 13 clearly provides that the provisions of this Section shall apply to determine the place of supply of services where the location of the supplier of services or the location of the recipient of services is outside India. Section 13(2) states that the place of supply of services except the services specified in sub-sections (3) to (13) shall be the location of the recipient of services.

6.1. It is submitted that the petitioner does not fall within the meaning of “Intermediary” defined in Section 2(13) of the IGST Act, which requires the following basic pre-requisites to be fulfilled – (a) a minimum of three parties; (b) two distinct supplies; and (c) Intermediary service provider