TaxTMI 
TaxTMI 
TaxTMI 
Initially the imports by the EOUs were liable to IGST and compensation cess. However, from 13th Oct ’17, the goods imported by them were also exempted from IGST and compensation cess (CC) by way of notification No. 78/2017-Customs. This notification provided exemption from IGST, CC and basic customs duty (BCD) for the specified goods, which also included capital goods, i.e. EOUs could import the specified inputs and capital goods without payment of IGST, CC and BCD.
However, the refund provisions pertaining to the EOUs have undergone a lot of changes, back and forth, more specifically the rule 96 (10) of the CGST Rules, 2017. The main purpose of these amendments was to restrict certain categories of exporters, who avail tax exemption (IGST and CC) on their procurements, from availing the benefit of the option of export with payment of tax, with the intention of not allowing them to encash the past credits (The legality of this restriction is not examined in this article).
Of the above changes, on a combined reading of notification No. 53/2018-CGST and 54/2018-CGST dated 9.10.2018, the aspect that is relevant to the EOUs is, w.e.f. 09.10.2018 the goods that it manufactures using the imported inputs or capital goods (imported by claiming exemption of IGST, CC and BCD under notification 78 /2017ibid), would not be eligible for the option of export with payment of tax as rule 96(10)ibid restricts the same.
Further, w.e.f. such date the capital goods procured under EPCG scheme alone were excluded from the above restriction in rule 96(10) i.e. any product which is manufactured using capital goods procured under the EPCG scheme, could be exported with payment of tax and refund of such taxes could be claimed (provided such product did not use any of the other duty/tax free goods specified in rule 96(10)). The important aspect to note here is that the capital goods imported by the EOUs other than under the EPCG scheme were not eligible for this kind of an exception.
This meant that if the EOUs imported any capital goods by claiming tax & duty exemption under the notification 53/2003-Customs and used them for manufacture of any exported goods then the restriction under rule 96(10) would apply i.e. the option of export with payment of tax cannot be opted. Hence the EOUs were at a disadvantageous position.
Another aspect to note here is that, recently vide notification No. 16/2020-CGST dated 23.3.2020 w.e.f. 23.07.2017, an explanation is added to rule 96 (10) whereby the goods manufactured with the inputs in respect of which only BCD exemption is claimed and IGST and/or CC is paid, restriction under rule 96(10) would not apply. This has now provided an option to the exporters to claim exemption of only BCD and pay the IGST and CC on the imported inputs and proceed with the option of export with payment of tax.
However, the capital goods imported by EOUs have not been covered under this explanation also. Thereby, even today any EOU using imported capital goods to manufacture exported goods (other than those procured under the EPCG scheme) would be restricted under rule 96(10) and such EOUs are not given the option to pay the IGST & CC and opt for the export with payment of tax. Thus, the EOUs have no option but to export under LUT and claim refund only of the credits accumulated during such period.
The above must be taken note of by the EOUs, who should ensure that export with payment of tax is not resorted to in case of export goods which have used capital goods imported by availing benefit under notification No. 52/2003, in their manufacture. Further, they could also look at making a representation to remove such capital goods from the restriction under rule 96(10), more so when the capital goods under the EPCG scheme have been given this benefit.
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CA Shilpi Jain
Apr ‘20