2023-VIL-567-BOM
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SGST High Court Cases

GST - Section 2(6), 2(14), 2(17) and Section 13(12) of the IGST Act, 2017 – Export of service or OIDAR Service – Determination of location of service recipient - Refund of accumulated unutilized input tax credit under Section 54(3) of the CGST Act, 2017 – Whether the services rendered by the petitioner of providing Satellite derived 3D model services, would fall within the purview of “export of services” as defined under Section 2(6) of the IGST Act or would be categorized as Online Information Database Access or Retrieval services as defined under Section 2(17) of the IGST Act, in the context of Section 13 of the IGST Act – HELD - In the instant case, the supply of service was to be made to M/s. Emirates Defence Industries Co. which was not located in India. Also the place of supply of service was agreed to be outside India, as also the payment of such services was being received by the petitioner/supplier of service in convertible foreign exchange - Further, the establishment of the petitioner (supplier of service) and the recipient of service were not establishments of distinct person under Explanation 1 to Section 8 of the IGST Act – therefore, the petitioner qualify the requirement of Section 2(6) of IGST Act that it was dealing in export of services in relation to the agreement in question – the specialized service being provided by the petitioner could not be said to be of the nature falling under the OIDAR Service – although in providing such services, the petitioner was required to transfer the files through electronic medium, but that would not mean that such services being rendered by the petitioner qua its nature, would fall under the definition of OIDAR as defined under Section 2(17) of the IGST Act - if the interpretation rendered by the respondents is to be accepted, it would lead to an absurdity inasmuch as any communication of information or providing of service through the medium of emails or any electronic transfer of data would be required to be held as OIDAR service, which is certainly not the purport and meaning an OIDAR service - merely because the petitioner has secured data from different source so as to create the services to be supplied, it would not amount to the petitioner falling within the definition of OIDAR service - the appellate authority is not correct in its conclusion that in the context of Section 13 of the IGST Act, the place of supply in the present case be deemed to be located in taxable territory - the Petitioner is entitled to refund on account of export of services – the impugned order is set aside and writ petition is allowed
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