Page 142 - GSTL_2nd April 2020_Vol 35_Part 1

44 GST LAW TIMES [ Vol. 35
So the definition of “recipient” makes it clear that the the recipient is the one who
is liable to pay consideration, etc. Further, it is also noted that as per the ar-
rangement, the customers are obliged to make payment to the principal company
incorporated in USA based on the invoices of the service and in turn, the corpo-
rate head office of the principal company reimburses the cost to perform such
services to India branch. Further that thus the consideration in foreign exchange
is received by the India branch based on the intra-office invoice as per the
abovesaid intra-company agreement as between the principal company and the
petitioner which is an India branch. In that regard, it is to be noted that going by
the definition of “recipient” (service receiver) as per Section 2(93) is a person,
who is liable to make the payment irrespective of the fact as to whether or not,
he/she actually makes payment or someone else makes payment on his/her be-
half.
7. Section 2(6) of the Integrated Goods and Services Tax [Act], 2017 de-
fines “export of services” as follows :
“Section 2. Definitions. - In this Act, unless the context otherwise re-
quires, -
(1) ……
xxx xxx xxx
(6) ”export of services” means the supply of any service when, -
(i) the supplier of service is located in India;
(ii) the recipient of service is located outside India;
(iii) the place of supply of service is outside India;
(iv) the payment for such service has been received by the supplier
of service in convertible foreign exchange; and
(v) the supplier of service and the recipient of service are not
merely establishments of a distinct person in accordance with
Explanation 1 in Section 8.”
8. Going by the definition of “export of services” as per Section 2(6) of
the IGST Act, the the supplier of service and the recipient of service shall not
merely be establishments of a distinct person in accordance with Explanation 1 in
Section 8 of the IGST Act. Section 8 of the IGST Act, more particularly Explana-
tion 1 thereof provides as follows :
“Section 8. Intra-State supply. - (1) Subject to the provisions of Section 10,
supply of goods where the location of the supplier and the place of supply
of goods are in the same State or same Union territory shall be treated as in-
tra-State supply :
Provided that the following supply of goods shall not be treated as intra-
State supply, namely :-
(i) supply of goods to or by a Special Economic Zone developer
or a Special Economic Zone unit;
(ii) goods imported into the territory of India till they cross the
customs frontiers of India; or
(iii) supplies made to a tourist referred to in Section 15.
(2) Subject to the provisions of Section 12, supply of services where the lo-
cation of the supplier and the place of supply of services are in the same
State or same Union territory shall be treated as intra-State supply :

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