Order Date – 18 May 2023

Parties: M/s Netgear Technolgies India Private Limited Vs Join Commissioner CGST Appeals I Delhi & Anr.

Facts – 

• The Petitioner, M/s Netgear Technolgies India Private Limited, is engaged in the business of exporting services to Netgear Pte. Ltd. without payment of Integrated Goods and Services Tax (IGST). 
• The petitioner claims that since the supplies made are zero rated supplies, it is entitled to the refund of Input Tax Credit (ITC) and filed an application.
• A show cause notice was issued proposing to reject the petitioner’s claim for refund on the ground that the petitioner was merely facilitating and arranging services and thus, qualified as an intermediary within the meaning of Section 2(13) of the Integrated Goods and Services Tax Act, 2017.

Issue – 

• Whether the petitioner is entitled to refund?

Order – 

• The Divisional Bench of Hon’ble High Court observed that there is insufficient analysis of the actual work performed by the petitioner. There is no material to relate the remuneration to the sales figure on empirical basis.
• The Adjudicating Authority has merely referred to a portion of the Agreement, which provides that Netgear Technologies (India) Pvt. Ltd. would perform reconciliation of that year’s sale, as a direct result of the service provider’s activity and would reasonably approve the cost incurred by the service provider in fulfilling its duties under the Agreement. The same does not, absent any other material, indicate that the remuneration is based on the sales achieved. The question whether an entity is an intermediary will have to be determined on the basis of actual work performed.
• Further the petitioner has prevailed before the Appellate Authority for an earlier period of August, 2017 to January, 2018 (Order-in-Appeal dated 10.01.2020) and October 2017 to March 2018 (Order-in-Appeal dated 09.03.2021).
• The petition is disposed of in the aforesaid terms.