Page 184 - GSTL_21st May 2020_Vol 36_Part 3

430 GST LAW TIMES [ Vol. 36
(d) Sudarshan Chemicals Industries v. Commissioner of Central Excise, Pune
[2010 (262) E.L.T. 974 (Tri. - Mumbai)]
(e) Aztecsoft Ltd. v. Commissioner of Central Excise, Bangalore [2012 (26)
S.T.R. 552 (Tri. - Bang.)]
(f) Integra Micro Software Services Pvt. Ltd. v. CST, Bangalore [2012 (25)
S.T.R. 369 (Tri. - Bang.)]
(g) Stag Software Pvt. Ltd. v. Commissioner of Service Tax, Bangalore [2008
(10) S.T.R. 329 (Tri. - Bang.)]
7. Notwithstanding the above, the applicant states that it is germane to
note that in the instant case, the samples are made physically available by
DKMS-BMST to LSL DE, Germany. LSL DE is providing testing services on
physical product samples made available to them by DKMS-BMST after due ex-
amination and testing of these samples. Therefore, it is inferred that the said ser-
vices of testing of samples, which are required to be physically made available by
the service receiver to the service provider, are provided outside India i.e. Ger-
many and therefore liable to tax. The applicant provides the facts, legal provi-
sions and judicial precedence in support of the same :
7.1 Facts important for second question : Samples required to be made
physically available by the applicant to LSL DE, Germany qualifies to be “goods”
under GST Law :
7.1.1 In this context, it would also be important to determine as to
whether the samples required to be made physically available by DKMS-BMST
to LSL DE, Germany eg. Buccal swabs/Human DNA etc. can be considered as
‘goods’. A buccal swab, also known as buccal smear, is a way to collect DNA
from the cells on the inside of a person’s cheek.
7.1.2 The applicant states that the samples required to be made physi-
cally available by DKMS form components of Human Blood (sic) and the Human
Blood and its components are listed as goods in the Notification No. 2/2017-
Central Tax (Rate), dated 28-6-2017.
8. Regarding the legal provisions not qualifying the said procurement
of HLA testing service as a service, the tax on which is liable under reverse
charge mechanism, the applicant states as under : -
8.1 As per Section 5 of the IGST Act, subject to provisions of sub-
section (2), tax shall be levied on inter-State supplies of goods or services or both
and as per Section 5(3) of the IGST Act, 2017, the Government may exempt any
transaction from tax. Section 7(4) of the IGST Act states that supply of services
imported into the territory of India shall be treated to be a supply of services in
the course of inter-State trade or commerce and hence IGST would be levied on
the said supply.
8.2 Import of services have been defined in Section 2(11) of the IGST
Act as under :
‘import of services means the supply of any service, where -
(i) the supplier of service is located outside India;
(ii) the recipient of service is located in India; and
(iii) the place of supply of service is in India;’
The term India has been defined in Section 2(56) of the CGST Act, 2017. In the
instant case, the supplier of services i.e. LSL DE is located in Germany and hence
GST LAW TIMES  21st May 2020  184