TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 1232
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....ion of facts, shall render such ruling to be void ab initio in accordance with Section 104 of the Act. 5. The provisions of both the Central Goods and Services Tax Act and the Tamil Nadu Goods and Services Tax Act (herein referred to as the Act) are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Services Tax Act would also mean a reference to the same provisions under the Tamil Nadu Goods and Services Tax Act. M/s. Becton Dickinson India Private Limited, located at No. 34, Assisi Nagar, West Thottam, Madhavaram, Tiruvallur - 600 051, (hereinafter called as the "Applicant") is a private limited company who are engaged in the manufacturing and trading of medical equipment/devices. 2. The Applicant has made a payment of application fees of Rs. 5,000/- each under sub rule (1) of Rule 104 of CGST Rules, 2017 and TNGST Rules, 2017. The Applicant has filed this application seeking Advance Ruling on the following questions, viz., (i) Whether the Applicant can avail the ITC of the import IGST paid through TR-6 Challan in terms of Section 16 (2) of the CGST Act read with rule 36....
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....VB) of the Customs under Circular No. 5/2016-Customs dated 09.02.2016. Accordingly, an SVB Order dated 27.02.2015 has been obtained by the applicant from the Deputy Commissioner of Customs, SVB, New Delhi, which further stand renewed vide order dated 11.06.2018. viii) In the SVB Order, the LRD agreement was examined and it was accepted that the relationship between the applicant and the group company has not influenced the import price. Vide para 15 of the SVB order, the aforesaid 'true up' adjustment was also examined, and it was held that the applicant is liable to pay applicable customs duties along with applicable interest in case of upward revision in the invoice value of imported goods voluntarily. The aforesaid LRD agreement as well as the SVB order are continuing as on date of filing this application. ix) Upon conclusion of FY 2022-23, owing to increase in business and domestic prices, the applicant has earned an operating profit in excess of arm's length range of operating margin. Accordingly, in compliance with the SVB order, the applicant re-determined the import price involving differential customs duties including import IGST. The same trend happened in FY 2023-24 ....
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....ve intent and object [UOI Vs Brigadier P.S. Gill [2012 (272) E.L.T. 321(S.C)] * Exposition of "other documents" for availing ITC. Rule 36 (3) prescribes any other document "similar" to a bill of entry, prescribed under the Customs Act or rule made thereunder, "for" "assessment" of IGST on imports. "Similar" denotes partial resemblance, and may also denote sameness in all essential particulars. It also means corresponding to or resembling in many respects, somewhat like, or having a general likeness. "Assessment" means determination of dutiability of any goods or service and includes provisional assessment self-assessment re-assessment and any assessment in which the duty assessed is nil, and is thus capable of bearing a very comprehensive meaning so as to comprehend the whole procedure for ascertaining and imposing-duty-liability. "For" is used as a function to indicate purpose of any intended destination or the object towards which the acquisition is directed. A combined reading of the above terms would therefore mean, any document which resembles the particulars of bill of entry, which is used for the assessment of import IGST under the Customs Act. * Rule 36 (3) encomp....
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.... tendered. * TR-6 is an accepted document for availing credit under the Central excise/Service Tax law. The explanation to Rule 9 (1) (b) of the CENVAT Credit Rules, 2004 clearly provided that supplementary invoice includes a challan or any other similar document evidencing payment of additional amount of additional duty leviable under section 3 of the Customs Tariff Act. In CCE Vs Essel Propack Ltd [2015 (39) S.T.R. 363 (Bom)], the Hon'ble High Court held that Rule 9 is procedural aspect for which CENVAT credit should not be disallowed considering when the payment of tax is undisputed and the documents are genuine. * The procedural law should be harmoniously interpreted to achieve the object of law. Therefore, rule 36 (3) should be read in a manner to allow credit based on any document which substantially conveys that the tax is levied and paid, though it may or may not bear the strict particulars as that of an invoice or a bill of entry. In this regard, the following case laws were cited, viz., i. Sambhaji Vs Gangabai - [2009 (240) E.L.T. 161 (S.C)] - A procedural prescription is the handmaid and not the mistress, a lubricant, nor a resistant in the administration of justic....
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....ave a general application, (ii) no reasons provided for the conclusions provided at para 5.1, and is without any basis, (iii) At para 5.1(a), the circular has accepted that due to lack of functionality in the ICEGATE system, re-assessment of bill of entry is not available, once out of charge (OOC) is issued. Accordingly, in para 5.2(b), it is stated that assessment group to cancel OOC and then re-assess the bill of entry. In the present case, the applicant in the first place approached the Chennai-Air Cargo and Chennai FTWZ to reassess the bill of entries, however, again due to system functionality, the bill of entries were not assessed. Therefore, this circular is not applicable to the present case, since there is an SVB order, based on which there was a re-assessment by the customs authorities through their letters informing the applicant to pay the differential duties vide TR-6 challlan. So the TR-6 read with the SVB order and letters of the Customs authorities can be said to be a valid document for availing ITC under Rule 36. 2) With regard to Question No. 2 & 3, i.e., "Whether the eligibility to avail ITC of the import IGST paid vide TR-6 Challan is subject to the time limit....
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....s makes a marked distinction between Bill of Entry and tax invoice/debit note. For instance, Section 16 (2) (a) of the CGST Act requires possession of 'tax invoice' or 'debit note', or 'such other duty paying documents' for availing ITC, but though bill of entry may in the same class, it is not in strict sense a tax invoice or debit note. Rule 36 (1) of the CGST Rules encapsulates various documents based on which ITC can be availed. Tax invoice is referred in Rule 36 (1) (a), debit note - 36 (1) (c), and bill of entry - 36 (1) (d). Rule 36 (4) of the CGST Rules, applies a specific embargo when it relates to 'tax invoice', or 'debit note', such that ITC is available only when the details of the same are uploaded by the vendor in his GSTR-1/IFF and reflecting in Form GSTR-2 of the recipient, but no such embargo applies to bill of entry. In view of the above, it transpires that bill of entry is neither an invoice nor a debit note. * Further, TR-6 is also not an invoice or debit note. TR-6 challan emanates from Rule 92 of the Treasury Rules of the Central Government which inter-alia prescribes a manner of paying money into the treasury or the bank, and based on the specific codes, th....
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.... for bill of entry is in affirmative, whether the time limit for availing ITC would begin from the initial date of bill of entry originally filed or from the date of re-assessment of bill of entry?" * If at all, Section 16 (4) of the CGST Act were to be applicable to TR-6 challan or Bill of Entry, even for the sake of assumption, then the 'financial year' should be considered the year in which TR-6 challan is drawn or Bill of Entry is re-assessed. * As per Section 16(1) of the CGST Act, ITC can be availed where the goods or services are used or to be used in the course or furtherance of business. And under Section 16 (2), ITC is not eligible unless - * The registered is in possession of an invoice, debit note or such other duty paying document as may be prescribed [clause (a)] * The details of invoice or debit note is furnished by the supplier in his outward supply return [clause (aa)] * The registered person has "received" the goods or services [clause (b)] * The details of ITC are communicated in terms of Section 38 to the registered person [clause (ba)] * The tax in respect of such supply has been "actually paid" to the government [clause (c)] * The registered pe....
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....ed on the original date of bill of entry, because it would not have been possible to predict how much differential duty would be paid / payable in future, and it would be impossible to avail ITC based on future event. Support is also drawn from the language of Section 16 (4) which specifically prescribes time limit vis-à-vis debit from the date when the debit note is issued. Therefore, as per this view also, the date should begin from the date of TR-6 or as the case may be from the date of re-assessment of bill of entry. 4.1. Prima facie, we find that the queries raised by the applicant get covered under clause (d) of the Section 97(2) of the CGST Act, 2017, and as such are liable to be admitted. 4.2. The Assistant Commissioner (ST), Madhavaram Assessment Circle in their reference No. 127/A1/2025, dated 23.04.2025 have furnished her Remarks. 4.3. The Central jurisdictional authority vide their letter dated 06.09.2024 have stated that the TR-6 challan is a tax paying document and has particulars of the reason/purpose for which payment is made containing as many details as in a bill of entry. In the instant case, TR-6 challan read with SVB Order and Customs Authorities lett....
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....documents, viz., Invoice, Debit note, Bill of Entry, etc., in specific terms, whereas no reference to TR-6 challan is made either under Section 16 (2) (a) of the CGST Act, 2017, which refers to 'such other tax paying document', or under Rule 36 of the CGST Rules, 2017, which refers to 'a Bill of Entry or any similar document prescribed under the Customs Act, 1962'. 5.4. Accordingly, he stated that they are of the opinion that the TR-6 challan, along with the SVB order and letter issued by the tax authorities to pay duty under Section 28 (1) (b) of Customs Act is to be treated as the duty paying document for the purpose of availment of ITC on the IGST paid pursuant to price revision and re-assessment. He stated further that the time limit for availment of ITC should start based on the date of payment of differential duty and not from the date of issue of original BOE. Moreover, he stated since the time limit for availment of ITC prescribed under section 16 (4) of the CGST Act, 2017, applies only to the invoices and debit notes, the question of applying the said time limit to a transaction under a bill of entry or the TR6 challan read with SVB order and letter from customs authoriti....
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....ner of Customs, SVB, New Delhi, which further stands renewed vide order dated 11.06.2018. In the SVB Order, the LRD agreement was examined and it was accepted that the relationship between the applicant and the group company has not influenced the import price. Vide para 15 of the SVB order, the aforesaid 'true up' adjustment was also examined, and it was held that the applicant is liable to pay applicable customs duties along with applicable interest in case of upward revision in the invoice value of imported goods voluntarily. The aforesaid LRD agreement as well as the SVB order are continuing as on date of filing this application. 6.4. Under these circumstances, upon conclusion of FY 2022-23, owing to increase in business and domestic prices, the applicant has earned an operating profit in excess of arm's length range of operating margin. Accordingly, in compliance with the SVB order, the applicant re-determined the import price involving differential customs duties including import IGST, and the same trend happened in FY 2023-24 as well. In the state of Tamil Nadu, the applicant has reportedly imported goods through 3 different ports, viz., (i) Chennai Sea (ii) Chennai Air-Car....
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....accordance with the provisions of sub-rule (1) of rule 54." While the aforesaid rule recognises the documents, viz., invoice, debit note, ISD invoice, ISD Credit note, etc., on the basis of which ITC could be availed, as far as Bill of Entry is concerned, it is specifically provided for in clause (d) as, "a bill of entry or any similar document". The phrase 'or any similar document' in the said legal provision, makes it more accommodative with a broader connotation. However, it is to be noted that the said clause brings in a clear-cut restriction to the effect that the said document should be 'prescribed under the Customs Act, 1962 or rules made thereunder for the assessment of integrated tax on imports'. Accordingly, it is implied that only such documents like Bill of entry, Courier Bill of entry and other Declarations/Forms prescribed under the Customs Act, 1962 or rules made thereunder, get covered under clause (d) of the aforesaid provision for the purposes of availment of ITC. 6.7 Under the context of the situation, we observe that in the instant case, the transaction involving import of goods that has already been assessed to duties of Customs including IGST, is being subje....
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....n suppliers, the importer is required to pay applicable customs duty along with interest on the differential amount voluntarily. 6.8 Accordingly, we come to understand that in the instant case, re-assessment of duties of customs takes place whenever there is an upward revision of price, due to transfer price adjustment with their parent company located abroad. We also come to understand that this payment of differential duties of customs including IGST by the applicant in the instant case, is a fall-out of the suo-moto declaration of price revision (of the foreign supplier) by the applicant, which fact has duly been recognised/acknowledged and taken cognisance of by the Department. Under these circumstances, we are of the opinion that ITC on the differential IGST paid is very much eligible for availment based on the re-assessed bills of entry in respect of the goods imported through Chennai Sea Customs. However, in similar situations involving payment of differential duties of Customs through TR-6 challans, where no re-assessed bill of entry is issued, as in the case of Air Cargo Customs and J Matadee FTWZ, a question as posed by the applicant arises as to whether ITC of the IGST ....
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....as to enable transmission to GSTN portal of, inter-alia, the IGST and Compensation Cess amounts with their date of payment (relevant date) for eligibility as per GST provisions). (e) the procedure specified at (a) to (d) above can be applied once to a BE. 6.9 Accordingly, the input credit with respect to such assessed BE shall be enabled to be available subject to the eligibility and conditions for taking input tax credit under Section 16, Section 17 and Section 18 of the CGST Act, 2017 and rules made thereunder." 6.10 In view of the aforesaid reasons, and as rightly pointed out therein, a TR-6 challan cannot be considered as a document for the purpose of availment of ITC in the present GST scenario. It is to be noted that under the pre-GST era, Rule 9 of the CENVAT Credit Rules, 2004, challans were indeed identified as documents for the purpose of availment of credit. Whereas, in present scenario involving GST, the challan or TR-6 challan, as the case may be, is conspicuously absent in the list of documents prescribed for availment for ITC under Rule 36 of the CGST Rules, 2017. We observe that this noticeable difference in the pre-GST legal provisions as compared to GST provis....
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....below :- "(4) A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the thirtieth day of November following the end of financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier." In this regard, we observe that as rightly pointed out by the applicant, the aforesaid provision that prescribes the time limit for availment of ITC, discusses only about an invoice or a debit note, without making reference to any other document. However, it may be seen that apart from a tax invoice and a debit note, the provisions of Section 16 (2) of the CGST Act, 2017, recognises 'such other tax paying documents as may be prescribed' as well, which is reproduced for reference, "(2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless,- (a) he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed;" Acc....
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....e provisions of CGST Act and Rules are made applicable to IGST, mutatis mutandis, for the purposes of and in relation to input tax credit, payment of tax, assessment, demands and recovery, etc., it becomes clear that the necessary changes/differences have to be considered and inferences have to be made while applying the CGST provisions to that of IGST. Under these circumstances, the term 'mutatis mutandis' assumes immense significance in the context of the situation. It generally means that the respective differences have been considered, and as per Wikipedia, it means "with things changed that should be changed", "once the necessary changes have been made". 6.15 Accordingly, the provisions of 16 (4) of the CGST Act, 2017 that prescribes the time frame for availment of ITC refers just to an invoice or a debit note, in view of the fact that the levy enabled under Section 9 of the Act, ibid, is only in respect of intra-state supplies of goods or services or both. Further, it is to be noted that only an invoice or a debit could be related to an intra-state supply, and not a 'Bill of Entry' which is relatable only to import of goods involving payment of taxes under IGST, and which do....
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....eals), Rajkot, wherein it is held that time limit prescribed under Section 16 (4) for taking ITC is not applicable to ITC availed on the strength of bill of entry, is of no avail to them. 6.17 This apart, we find that the time limit prescribed under Section 16 (4) of the CGST Act, 2017, has been structured in such a way that no ITC could be availed "after the thirtieth day of November following the end of financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier". The aforesaid style of phrasing is peculiar to this provision, as compared to various other provisions of the Act, ibid, where the time limit is expressed in simple terms, like 30 days, 90 days, 180 days, three months, three years, five years, etc. Whereas, the time limit for availing ITC is ideally fastened to the furnishing of annual return, or with a specific day, viz., the thirtieth day of November following the end of financial year, which indicates that the entire scheme of ITC availment which starts with the periodical monthly returns, should come to an end by the time the annual return is filed, or finalised by the thirtieth day of November follo....