2021 (1) TMI 376 - AAR - GST

GST Judgment: Impact on Transactions Pre and Post 01.02.2019

The judgment determined that the applicant's activities from 01.02.2019 onwards fall under Entry No.7 in Schedule 3 of the CGST Act, 2017, and therefore, ... Scope of GST - activity carried out by the applicant in which goods are shipped directly from the vendor located outside India (in the instant case M/s. SPX Flow Technology, Poland) to the customer located outside India (in the instant case M/s. BRAC Dairy and Food Project, Bangladesh) - whether the activity undertaken by the applicant is covered by Entry No.7 in Schedule 3 of the CGST Act, 2017 - levy of IGST on out and out transactions taking place beyond the Customs frontiers of India - HELD THAT:- The integrated tax on goods imported into India shall be levied and collected at the point when duties of customs are levied on the said goods under Section 12 of the Customs Act, 1962 and on the date determined as per provisions of Section 15 of the Customs Act, 1962 - Further, it is found that the issue has already been decided by Authority for Advance Ruling, Kerala in IN RE : M/S SYNTHITE INDUSTRIES LTD., ERNAKULAM [2018 (4) TMI 583 - AUTHORITY FOR ADVANCE RULING - KERALA] wherein it was held that “the goods are liable to IGST when they are imported into India and the IGST is payable at the time of importation of goods into India; The applicant is neither liable to GST on the sale of goods procured from China and directly supplied to USA nor on the sale of goods stored in the warehouse in Netherlands, after being procured from China, to customers, in and around Netherlands as the goods are not imported into India at any point.’’ Circular No. 33/2017 Customs dated August 1, 2017 issued in the context of ‘High Sea Sales’, wherein it has been clarified that sub section (12) of section 3 of the Customs Tariff Act, 1975 specifies that all duties, taxes, cesses etc shall be collected at the time of importation i.e. when the import declarations are filed before the customs authorities for the custom clearance purposes - the circular is applicable in the present case. Similarly, it is found that, where, Bill of Entry/import declarations are not being filed with respect to the goods so procured, GST would not be leviable. Further, as far as the leviability of GST on outward supply from place of vendor to customer is concerned, it is to mention that the thumb-rule for determining the taxability of any transaction is to ascertain whether the transaction tantamount to ‘supply’ in terms of the provisions of law. Thus, in the instant case, the applicant, who is the third party in the transaction involved in the instant case, is acting as an agent on behalf of the supplier i.e. SPX Flow Technology, Poland and is therefore covered under the definition of ‘supplier’ as mentioned in Section 2(105) of the CGST Act, 2017. It is also found that the applicant who is the supplier in the instant case, is selling goods for a consideration in the course or furtherance of business and such transaction tantamount to ‘supply’ in terms of the definition of ‘supply’ - In the instant case, it is an undisputed fact that the supply involves movement of goods and therefore the place of supply would be the termination for delivery to the recipient. The goods under consideration are supplied to overseas buyers as declared by the applicant and as such the place of supply will be a place outside India. Further, the supplier is the applicant who has declared the principal place of business within India and issues the invoices for sale of such goods. In view of the amendment in Schedule-III of the CGST Act, 2017, supply of goods from a place in the nontaxable territory to another place in the non-taxable territory without such goods entering into India shall be treated neither as a supply of goods nor a supply of services with effect from 01.02.2019. Since in the instant case, the supply of goods takes place from Poland (which is a non-taxable territory) directly to Bangladesh (which is also a non-taxable territory) without the said goods entering into India, the transactions mentioned in the instant case are similar to that as mentioned in Entry No.7 of Schedule-III of the CGST Act, 2017 - it can be concluded that no GST is leviable on such type of transactions which have taken place with effect from 01.02.2019 and onwards. The activity undertaken by the applicant M/s. SPX Flow Technology (India) Pvt. Ltd., Ahmedabad is covered under Entry No.7 in Schedule 3 of the CGST Act, 2017 in respect of the transactions undertaken for the period from 01.02.2019 onwards - Applicable IGST is payable on goods sold to customer located outside India, where goods are shipped directly from the vendor’s premises (located outside India) to the customer’s premises (located outside India) for such transactions effected upto 31.01.2019. However, no IGST is payable on such transactions effected from 01.02.2019 onwards. Issues Involved:1. Whether the activity undertaken by the applicant is covered by Entry No.7 in Schedule 3 of the CGST Act, 2017.2. Whether the applicant is liable to pay IGST on out and out transactions taking place beyond the Customs frontiers of India.Issue-Wise Detailed Analysis:1. Whether the activity undertaken by the applicant is covered by Entry No.7 in Schedule 3 of the CGST Act, 2017:The applicant, M/s. SPX Flow Technology (India) Pvt. Ltd., is engaged in trading goods directly from Poland to Bangladesh without the goods entering India. The applicant's parent company in Poland ships goods directly to the recipient in Bangladesh, and the applicant issues invoices to the customer in Bangladesh while making payments to the Polish supplier.The relevant legal provision is Entry No.7 in Schedule 3 of the CGST Act, 2017, which states that the 'Supply of goods from a place in the non-taxable territory to another place in the non-taxable territory without such goods entering into India' shall be treated neither as a supply of goods nor a supply of services. This provision came into effect on 01.02.2019.The judgment concluded that the applicant's activities from 01.02.2019 onwards fall under Entry No.7 in Schedule 3, and therefore, such transactions are not subject to GST. The decision was based on the combined reading of the relevant provisions of the IGST Act, 2017, the Customs Tariff Act, 1975, and the Customs Act, 1962. The ruling also referenced similar decisions by the Authority for Advance Ruling in Kerala and Maharashtra.2. Whether the applicant is liable to pay IGST on out and out transactions taking place beyond the Customs frontiers of India:For transactions up to 31.01.2019, the judgment clarified that IGST is applicable on goods sold to customers located outside India, where goods are shipped directly from the vendor's premises (located outside India) to the customer's premises (located outside India). This conclusion was based on the definition of 'import of goods' under Section 2(10) of the IGST Act, 2017, and the provisions of the Customs Tariff Act, 1975, and the Customs Act, 1962.The judgment referenced Section 5(1) of the IGST Act, 2017, which states that integrated tax on goods imported into India shall be levied and collected in accordance with the provisions of Section 3 of the Customs Tariff Act, 1975. The ruling also cited Circular No. 33/2017 Customs dated August 1, 2017, which clarifies that IGST on high sea sales transactions of imported goods shall be levied and collected only at the time of importation.For transactions from 01.02.2019 onwards, the judgment concluded that no IGST is payable on such transactions due to the amendment in Schedule-III of the CGST Act, 2017, which includes Entry No.7, treating such transactions as neither a supply of goods nor a supply of services.Ruling:1. The activity undertaken by the applicant is covered under Entry No.7 in Schedule 3 of the CGST Act, 2017 for transactions from 01.02.2019 onwards.2. IGST is payable on out and out transactions up to 31.01.2019. However, no IGST is payable on such transactions from 01.02.2019 onwards.