Page 138 - GSTL_16th July 2020_Vol. 38_Part 3

376 GST LAW TIMES [ Vol. 38
2.8 The second question raised is whether the design & development
services provided by Applicant to Lear entities situated aboard would fall under
the category of OIDAR services?
2.8.1 The applicant has submitted that the subject services are not in the
nature of OIDAR services and would rather qualify as consulting engineer ser-
vices. Applicant has submitted various reasons in support of their contention
that the present services rendered by them is Consulting Engineer Services and
not OIDAR. It is also submitted by the applicant that the department had issued
a SCN dated 27-8-2018 proposing to classify the services of the Applicant under
“On-line database access services” wherein the SCN has alleged that the services
provided by the Applicant is bundled service of design, prototype, testing in vir-
tual world through computer network and online database access gives the es-
sential characteristic of OIDAR to the said bundled service. The applicant has
also submitted that the second question falls directly under the category of classi-
fication of any goods or services or both and since the said question falls under
Section 97(2)(a) of the CGST Act, 2017, the present application should be admit-
ted and accepted by this Authority.
3. Contention - As per the jurisdictional officer
The submissions of the jurisdictional office are as under :-
3.1 This advance ruling is sought to ascertain whether the Technical
services provided by the Applicant should be treated as an “Export of Services
under the GST Regime?
3.2 The jurisdictional officer has referred to the provisions of Section
2(6) of the IGST Act and the relevant provisions of Section 13 of the IGST Act. It
is submitted that in the given case, the services carried out by Applicant are per-
formance based and the activities performed in the seating division would
squarely fall under the provisions of the Section 13(2) of the IGST Act. It is also
submitted that the activity carried out in the E-systems division of Applicant is
confined to the development of software and is integral part of overall software
development undertaken by Applicant. Consequently, the general rule provided
under sub-section (2) of Section 13 of the IGST Act would be applicable and the
POS would be the location of the service recipient. In the given case, since the
location of recipient of services is outside India, it can be construed that the POS
for the services performed by Applicant is outside India. The jurisdictional of-
ficer has also submitted contention to state that the present services cannot be
said to fall under the category of OIDAR services and even if they are classified
as OIDAR services they would qualify as export of service under the GST re-
gime. The jurisdictional officer has concluded that, it is clear that the present
transaction undertaken by Applicant is cumulatively satisfying all the conditions
provided for ‘export of service and therefore, the Technical services provided by
the Applicant would qualify as ‘export of services’.
4. Hearing
Preliminary hearing in the matter was held on 20-11-2019. Sh. Arpit
Pushp Chaturvedi, Advocate, along with Sh. Sandip Sachdeva, Advocate and Sh.
Sanjay Bhalerao, employee of the applicant, appeared and requested for admis-
sion of their application. Jurisdictional Officer Sh. S.S. Umrani, State Tax Officer
(PUN-VAT-C-905) Pune also appeared.
The application was admitted and called for final hearing or. 7-1-2020,
Sh. Arpit Pushp Chaturvedi, Advocate, along with Sh. Sandip Sachdeva, Advo-
GST LAW TIMES  16th July 2020  138