TaxTMI 
TaxTMI 
2025 (10) TMI 785
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....t of enhancing the tax liability or reducing the amount of admissible input tax credit shall be made, unless the appellant has been given an opportunity of being heard. 2. Under Section 103(1) of the Act, this Advance ruling pronounced by the Appellate Authority under Chapter XVII of the Act shall be binding only- (a) on the applicant who had sought it in respect of any matter referred to in sub-section (2) of Section 97 for advance ruling; (b) on the concerned officer or the jurisdictional officer in respect of the applicant. 3. Under Section 103 (2) of the Act, this advance ruling shall be binding unless the law, facts or circumstances supporting the said advance ruling have changed. 4. Under Section 104(1) of the Act, where the Appellate Authority finds that advance ruling pronounced by it under sub-section (1) of Section 101 has been obtained by the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the appellant as if such advance ruling has never been made. At the outse....
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....or the purpose of availment of ITC, the question of answering this query does not arise. iii) Availment of ITC on import IGST on the basis of a re-assessed bill of entry, is very much governed by the time limit as prescribed under Section 16(4) of the CGST Act, 2017. iv) The time limit for availing ITC on the differential IGST paid would begin from the date of re-assessment of bill of entry. 4.1 Aggrieved over the aforesaid ruling pronounced by the AAR in respect of Query Nos. 1, 2 and 3, the Appellant has filed the instant appeal. Further, the Appellant has stated in the Appeal application filed by them that they are not appealing against the impugned ruling in respect of Query No.4. Under the grounds of appeal, the appellant has stated that - (a) The AAR has erred in holding that neither TR-6 challan as such nor TR-6 challan read with SVB Order and letter issued by the Tax Authority are not valid documents for the purpose of availing the ITC. (b) The AAR has erred in holding that Section 16(4) of the CGST Act is applicable on Bill of Entry. (c) The AAR has erred in not addressing Question No. 2 and not considering that Section 16(4)....
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....he amount of duty, tax, cess or any other sum so payable, if any, under this Act or under the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act) or under any other law for the time being in force, .................. and includes provisional assessment, self-assessment, re-assessment and any assessment in which the duty assessed is nil. The word "assessment" is used as meaning sometimes the computation of rate of duty, sometimes the assessable value of Service and sometimes the whole procedure laid down under the Act for imposing duty liability upon the manufacturer or importer. The word assessment is, thus, capable of bearing a very comprehensive meaning; in the context, it can comprehend the whole procedure for ascertaining and imposing duty liability [CST Vs Scott Wilson Kirkpatrick (I) Pvt. Ltd., 2011 (23) STR 321 (Kar.)]. For For' used with the active participle of a verb means for the purpose of. For' has many shades of meaning. It connotes the end with reference to which anything is done. It also bears the sense of 'appropriate' or 'adapted to'; 'suitable to purpose' [Indian Chamber of Commerce Vs. C.I.T West Bengal II,....
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....uty by the importer. The procedures of self-assessment, provisional assessment, revision and correction concludes with the generation of bill of entry indicating the particulars of duty paid including the import IGST. On the other hand, the re-assessment procedure under Section 28 either at the behest of the proper officer or based on self-ascertainment by the importer, may not lead to generation of a re-assessed bill of entry. Therefore, while both the assessments include assessment of duties (including import IGST), the document may differ. It transpires that it is because of this difference, that Rule 36(1)(d) is phrased in a manner to encompass assessment of Import IGST under both the situations. 4.2.7 It was contended by the appellant that therefore the AAR's findings at para 6.6 of the impugned ruling that Rule 36(1)(d) only covers 'bill of entry', 'courier bill of entry' and 'other declarations/forms' is erroneous as the said provision encompasses both re-assessment by way of bill of entry as well as otherwise. The said findings are also vague as prescription of tax paying documents could not be understood as unspecified forms, and secondly, even in the event of accepting....
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....Q.No. 1 needs to be modified in favour of the appellant, since the TR-6 challan read with the SVB Order and the Customs Authorities' letters become the eligible document for claiming ITC. This is because, while CGST Act provides for intra-state supply which in turn provides for issuance of 'tax invoice' for claiming ITC, the IGST Act vis-à-vis import of goods would not provide for such document. Therefore, what suitable document culminates into assessment and payment of import IGST should be considered as eligible document for availing ITC of import IGST. 4.2.10 The appellant contends that Circular No. 16/2023-Customs dated 07.06.2023 does not apply to the instant case and the reasons as to why it is not applicable has already been discussed in paras B.27 and B.28 of the original application which has not at all been considered by the AAR, who has relied on selective extracts to hold that TR-6 is not an eligible document for availment of ITC. The said circular is not applicable to the instant case, because of the following facts, viz., • The Circular has not provided any reasons for the conclusions at para 5.1 and is without any basis, and therefore the circu....
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....n if TR-6 challan was not specifically prescribed in Rule 36(1) of the CGST Rules, then also ITC on TR-6 challan is eligible given the legitimacy of the tax paid and satisfaction of other material conditions of Section 16 of the CGST Act, which the AAR has failed to understand. 4.2.12 The appellant states that ITC is admissible when there is legitimacy of the claim and that the procedural law should be harmoniously interpreted to achieve the object of law. The provisions for allowing credit under the tax statute entails two conditions, one in the nature of substantial conditions and the other of the nature of procedural ones. Accordingly, once substantial conditions are fulfilled, credit is not deniable because of gaps in procedural conditions or if there is lapse in procedural conditions. The appellant states that the said aspect stands reiterated under the following case laws, viz., CCEx Vs Home Ashok Leyland Ltd., [2007 (210) ELT 178 (SC)], Mammon Concast Pvt. Ltd., Vs C.CGST [2021-VIL-247-CESTAT-DEL-ST], CCE Vs Graphite (I) Ltd., [(2007) 212 ELT 54 (Tri. Mum.)]. 4.2.13 The appellant states that even otherwise, upon comparison of provisions of pre-GST regime and GST regime....
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....hasizing that the common portal is only a facilitator to feed or retrieve information. Likewise, the Hon'ble Kerala High Court in the case of Kala Imaging World Vs Superintendent [2020 (11) TMI 616], observed that the functionalities of common portal cannot obstruct the statutory framework. 4.2.15 The appellant states that ITC is a substantive right and the legislative intent paves the way for it. The Hon'ble Supreme Court in UOI Vs Cosmo Films Ltd [2023 (383) ELT 66(SC.)] had observed that "The GST regime is based on the idea of removing the cascading effect of the taxes. The cascading effect mean levy of tax on tax. The GST is levied on the net value added portion and not on the entire transaction value as the taxpayer would enjoy input tax credit. Barring few indirect taxes, all the major indirect taxes levied by the Central and State Governments are subsumed into the GST". Further the legislative intent can be gathered from Section 16 of the CGST Act which allows credit on all goods and service used or to be used in the course of furtherance of business, subject to certain exceptions as contained in Section 17(5) of the CGST Act. It is clearly coming out from the CGST Act re....
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....hall be entitled to take credit of 'input tax' subject to specified conditions. The expression 'input tax credit' is defined under Section 2(63) as 'credit of input tax', and 'input tax' under Section 2(62) means CGST, SGST/UTGST and also includes IGST charged on import of goods [clause (a)]. It means the legislature is well aware of the import IGST and has specifically provided for its coverage under CGST Act. • Section 16(2) sets out certain conditions for availing ITC. Clause (a) sets out that ITC would be available if the registered person is in possession of (i) an invoice or debit note issued by the supplier or (ii) such other duty paying documents as may be prescribed. Thus, there are two sets of categories provided as tax paying documents. This shows that the legislature has considered and specified the documents in the CGST Act read with the CGST Rules. • The second proviso to Section 16(2) provides for a condition that where a recipient fails to pay to the supplier, other than supplies covered under RCM within 180 days from the date of issue of invoice by the supplier, then he shall pay back the ITC availed by him. This clearly indicates that whi....
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....tate transactions Adoption under IGST Act / IGST Rules Consequence Section 2(62) of the Import CGST Act includes Import IGST charged on import of goods as input tax credit Situation of import of goods already covered under CGST Act Adoption of CGST Act provision for IGST Act would be superfluous Bill of Entry specified as tax paying document under Rule 36(1)(c) of CGST Rules Situation of Bill of Entry already covered under CGST Rules Adoption of CGST Rules provision for IGST Rules would be superfluous Further, to the extent the CGST Act and CGST Rules have provided provisions for the ITC on bill of entries, such provisions are not incompatible with the IGST Act or IGST Rules and therefore there is no requirement to apply Section 20 of the IGST Act and Rule 2 of the IGST Rules to make them compatible. Otherwise, the forced application of Section 20 and Rule 2 would entirely displace the provisions of CGST Act and CGST Rules respectively, and therefore the observations of AAR at para 6.14 and 6.15 are erroneous. The appellant further contends that the AAR is selectively using the mutatis mutandis construction, and in that case, the said principle should hav....
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.... down by the Hon'ble Supreme Court in the case of CC Vs Safari Retreats Pvt. Ltd., [(2024) 23 Centax 62 (S.C)], the appellant states that nothing can be read in Section 16(4) by comparing the provisions the way limitation periods are prescribed under the CGST Act. Further, they stated that a taxing statute must be read as it is with no additions and no subtractions on the grounds of legislative intendment or otherwise. Therefore, the observations at para 6.17 based on any equitable consideration (even if assumed) are out of place and erroneous. 4.3.6 The appellant states that in the original application for advance ruling, they had given detailed submissions as to why the bill of entry is neither a tax invoice nor a debit note, and therefore not covered under Section 16(4) of the CGST Act. Since the AAR has not disputed the submissions to that extent, the appellant understands that AAR has accepted the submissions in this regard. Further the appellant's reliance on Order No.RAJ-EXCUS-000-APP-032-TO-033-2021-GST-JC passed by the Commissioner Appeals, GST & Central Excise, Rajkot in the case of M/s. Reliance Indutries Ltd., wherein it was held that the limitation under Section 16(....
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.... Central Government which inter-alia prescribes a manner of paying money into the treasury or the bank, and based on the specific codes, the amount paid in Central Government's account is allocated. It is used for making various types of payments under the Customs Act, and it was also used to be a prescribed document for making payment under the Service Tax Regime. TR-6 challan is different in its roots and its object, because while tax invoice and debit note contains material particulars relating to transaction of supply of goods, TR-6 contains particulars relating to payment of tax/duties. Therefore, while TR-6 enables availing of ITC in view of the applicant's interpretation as above, but it is not a tax invoice or debit note. Thus, while 'TR-6 challan' read with SVB Order and Customs Authorities' letters are documents basis which ITC can be availed in terms of Section 16(2)(a) of the CGST Act read with Rule 36(1)(d) of the CGST Rules, the time limit referred to in Section 16(4) is not applicable to such documents. One of the salutary principles of interpretation is that when two words of different meanings are used in the statute in two consecutive provisions, it should be unde....
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....ong with interest. Hence, duty is paid under a TR6 Challan along with interest for the goods imported through Chennai Air cargo and Chennai J Matadee FTWZ port. For goods imported through Chennai Sea Port, the duty is being paid through re-assessed Bill of Entry (BOE). 5.3 The AR claimed that the appellant is eligible to avail ITC on the IGST paid through TR6 Challans as per the SVB order in terms of Section 16(2) of the CGST/TNGST Act read with Rule 36 of the CGST/TNGST Rules, 2017. Further, AR contended that there is no time limit prescribed for eligibility of ITC of the import IGST paid through TR-6 challan and re-assessed Bill of Entry under Section 16(4) of the CGST/TNGST Act, 2017. In support of his claim, AR submitted various case laws pronounced in various foras, in addition to referring to provisions of GST, Customs and erstwhile CENVAT Credit Rules on the eligibility of availing ITC and applicability of time limit to claim ITC. 5.4 Finally, referring to para 6.14 of the AAR order, AR Shri. Manish Sachdeva stated that 'mutatis mutandis' need to be applied for Section 16(1) of the CGST/TNGST also for availment of ITC. Under the additional submissions furnished by the ....
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....as emphasized to argue that when the legislation does not prescribe any time limit, no such time limit should imported into the provisions. Further, The AR placed reliance on the provisions of erstwhile Cenvat Credit Rules, wherein time limit of 1 year was specifically provided for all documents for availing Cenvat Credit, however under GST, the limitation is conspicuously provided for only invoice and debit note, and not for Bill of Entry of TR-6 Challan." Accordingly, the aforesaid contentions/additions proposed by the appellant are also taken on record for consideration. DISCUSSION AND ANALYSIS 6.1 We have carefully considered all the material available on record, the applicable statutory provisions, the 'Grounds of Appeal' furnished by the appellant, the submissions made during the personal hearing held on 28.08.2025, the additional submissions made and the amendment to the 'Record of Personal Hearing', as proposed by the appellant through their mail dated 17.09.2025. 6.2 Under the brief facts of the case, we find that apart from manufacturing and trading of medical equipment/devices, the appellant also carry out importing and trading the same. The appellan....
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....n the state of Tamil Nadu, the appellant has reportedly imported goods through 3 different ports, viz., (i) Chennai Sea (ii) Chennai Air-Cargo, and (iii) Chennai FTWZ. Further, it is reported by the appellant that when they reached out to the respective field formations with regard to payment of differential duties, the Chennai Sea Customs authorities allowed re-assessment of bills of entry, whereas the other two customs authorities, i.e., Air Cargo and FTWZ directed the appellant to deposit the differential taxes/duties through TR-6 challans. 6.5 With this factual background, we set out to examine the issues under appeal. Accordingly, in respect of query No. 1, viz., "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 of CGST Rules?" is taken up for analysis." we find that the AAR under the impugned ruling dated 09.05.2025, has ruled as follows :- "Neither a TR-6 challan as such, nor a TR-6 challan read with the SVB order and letters issued by the tax authorities, as claimed by the applicant in the instant case can be considered as an eligible document for the purp....
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....laration of price revision (of the foreign supplier) by the appellant. The said fact has duly been considered and acknowledged by the Department by way of SVB Order dated 27.02.2015 issued the Deputy Commissioner of Customs, SVB, New Delhi, which further stands renewed vide order dated 11.06.2018. Further, 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 subjected to re-assessment whenever upward price revision takes place between the applicant and the foreign supplier who happen to be a related party. The applicant has reported that in the state of Tamil Nadu, they have imported goods through 3 different ports, viz., (i) Chennai Sea (ii) Chennai Air-Cargo, and (iii) Chennai FTWZ. While the Chennai Sea Customs authorities reportedly allowed re-assessment of bills of entry which meant that the differential duties would be payable through the re-assessed bills of entry, the Air Cargo and FTWZ (Free Trade Warehousing Zones) authorities on the other hand, directed the applicant to deposit the same through TR-6 challans. Under these circumstances, we are of the opinion that irrespe....
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....under the Customs Act or the rules made thereunder, and we find that a TR-6 challan is a document prescribed under the Treasury Rules of the Central Government', under which any person can pay money into the treasury or Bank on Government Account. We further observe that as far as the taxation law including the Customs Act, 1962 is concerned, it is nothing but a tool to transfer money to Government Account, and apart from the nature of duties/taxes paid, and the relevant code/heads of account, it does not contain all the details relating to assessment encapsulated in a 'bill of entry'. At this juncture, we take note of the fact that as per the appellant the query is not just about availment of ITC of IGST paid based on a TR-6 challan alone, but that the same should be seen and treated as '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', pursuant to price revision and re-assessment. Here again, we would like to reiterate that the documents referred above indeed convey the fact that assessment in relation to IGST on imports has taken place, but they are neither similar to a Bill of Entry', nor do they f....
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....ds, in para 5.1 of the Circular, where the circumstances are very much similar to the instant case. Para 5.1 reads as below :- "5.1 The matter has been examined in the Board for purpose of carrying forward the Hon'ble Supreme Court's directions. It is noted that - (a) ICES does not have a functionality for payment of customs duties on a bill of entry (BE) (unless it has been provisionally assessed) after giving the Out-of-Charge (OOC) to the goods. In this situation, duties can be paid only through a TR-6 challan. (b) Under GST law, the BE for the assessment of integrated tax / compensation cess on imports is one of the documents based on which the input tax credit may be availed by a registered person. A TR-6 challan is not a prescribed document for the purpose. (c) The nature of facility in Circular No. 11/2015-Cus. (for suo moto payment of customs duty in case of bona fide default in export obligation) is not adequate to ensure a convenient transfer of relevant details between Customs and GSTN so that ITC may be taken by the importer. (d) The section 143AA of the Customs Act, 1962 provides that the Board may, for the purposes of facil....
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....is suggested that on being requested by the importer, the assessment group may cancel OOC and then re-assess the BOE. In this regard, we find that as rightly pointed out by the AAR in para 6.11 of the impugned ruling dated 09.05.2025, the appellant ought to have resorted to Bill of Entry-wise re-assessment, which in turn could have paved the way for a seamless availment of ITC based on the re-assessed bills of entry, instead of having carried out the differential duty payment en-masse for the entire financial years 2022-23 and 2023-24. 6.13 Further, we observe that there is a noticeable difference in the pre-GST legal provisions as compared to GST provisions, which is due to the fact that the dynamics involving the transmission of the duties of customs including IGST, Cess, etc., to the GSTN portal, so as to enable the same to be available for the claim of ITC, was not a pre-requisite in the pre-GST era. In this regard, we find that the Hon'ble Supreme Court in para 74 (as referred in para 6.10 above) of its Order dated 28.04.2023 in the case of M/s. Cosmos Films Ltd., acknowledges the fact that GST is one of the significant tax reforms, and it also acknowledges the fact that th....
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....es, cannot be considered as a document similar to a 'Bill of Entry' and since they are not the prescribed document under the Customs Act, 1962 or the rules made thereunder, we are of the considered opinion that neither a TR-6 challan as such, nor a TR-6 challan read with the SVB order and letters issued by the tax authorities as claimed by the applicant, can be considered to be an eligible document for the purpose of availment of ITC. 6.16 With respect to the second query, viz., "Whether the eligibility to avail ITC of the import IGST paid vide TR-6 Challan is subject to the time limit prescribed under Section 16(4) of the CGST Act?", as rightly held by the AAR in its original Ruling dated 09.05.2025, we are also of the same opinion that the question of answering this query does not arise, having already held that TR-6 challan as such, or a TR-6 challan read with the SVB order and letters issued by the tax authorities, cannot be considered as an eligible document for the purpose of availment of ITC, as discussed in detail above. 6.17 Regarding the third query, viz., "Whether the eligibility to avail ITC of the import IGST paid under the re-assessed bill of entry is subject to....
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....y' etc. The provisions of Section 20 of the IGST Act, 2017, reads as follows :- "20. Application of provisions of Central Goods and Services Tax Act.-Subject to the provisions of this Act and the rules made thereunder, the provisions of Central Goods and Services Tax Act relating to,- (i) scope of supply; -------------------- (iv) input tax credit; -------------------- (xii) assessment; -------------------- (xvi) demands and recovery; -------------------- (xxv) miscellaneous provisions including the provisions relating to the imposition of interest and penalty, shall, mutatis mutandis, apply, so far as may be, in relation to integrated tax as they apply in relation to central tax as if they are enacted under this Act:" Likewise, Rule 2 of the IGST Rule, 2017, specifies as follows :- "Rule 2 - Application of Central Goods and Services Tax Rules.- The Central Goods and Services Tax Rules, 2017, for carrying out the provisions specified in section 20 of the Integrated Goods and Services Tax Act, 2017 shall, so far as may be, apply in relation to integrated taxes they apply in....
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....e would like to further reiterate the fact that the time limit as prescribed under Section 16(4) of the CGST Act, 2017, for availing ITC under GST is fastened to the furnishing of annual return, or the thirtieth day of November following the end of financial year, whichever is earlier, 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 following the end of financial year, whichever is earlier. 6.21 Under the 'Grounds of Appeal', we find that the appellant has contended that the AAR has selectively used the term 'mutatis mutandis' to link the provisions of IGST Act, 2017 to the instant case, without appreciating the real meaning of the term and that the invocation of Rule 20 of the IGST Act, 2017, and Rule 2 of the IGST Rules, 2017, through the said term is unwarranted in the context of the instant case, as the IGST charged on import of goods stands already covered under the definition of 'input tax' under the CGST Act, 2017. In this regard, we find that the appellant has highlighted how the term "mutatis mutandis" gets....
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....enacted under the IGST Act. Much in the same manner, Rule 2 of the IGST Rules, 2017, enables the application of CGST Rules, 2017, in relation to Integrated Tax as they apply in relation to Central Tax. Accordingly, when Section 20 of the IGST Act, 2017, lays down that the provisions of CGST Act, relating to 'input tax credit' (inter-alia) shall, mutatis mutandis, apply, so far as may be, in relation to integrated tax as they apply in relation to central tax, it goes to convey the fact that as far as the eligibility and conditions for availment of ITC of IGST taxes are concerned, the provisions of CGST Act and CGST Rules would apply respectively, albeit with necessary changes (mutatis mutandis). 6.23 The crucial difference in legal terms between an intra-sale supply (for which CGST applies) and inter-state supplies (for which IGST applies) is required to be taken note of at this juncture. While the CGST Act empowers collection of 'Central Goods and Services Tax (CGST)' through Section 9 of the Act, ibid, for 'Levy and Collection' of CGST, on the other hand, 'Integrated Goods and Services Tax (IGST)', is levied and collected towards the inter-state supplies under Section 5 of the ....
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....urts to import any specific period of limitation by implication, where there is really none, though courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period. In this regard, we are in complete agreement with the contention of the appellant that any law or stipulation prescribing a period of limitation must be specifically enacted and prescribed. However, when an enactment i.e., the IGST Act, 2017, through Section 20 of the Act, ibid seeks recourse to borrow 'mutatis mutandis' the provisions of another Act, viz., the CGST Act, inter-alia for application of the provisions relating to eligibility and conditions for availment of ITC, it becomes a necessity to adopt the legal provisions available in the other enactment, with necessary changes. 6.25 The appellant further states that the Brakes India case is distinguishable on facts in as much as Rule 57E post amendment provided full MODVAT credit as compared to Rs.800/MT. In that case, the Tribunal had held that the time limit for claiming the additional MODVAT would be similar to the time limit applicable for availing initial credit,....
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....e provisions of Section 16(4) of the CGST Act appear to be so peculiar, in as much as the availment of ITC is fastened to filing of annual return or to a specific date, i.e., 30th November following the end of financial year, whichever is earlier, which in turn indicates that the entire scheme of ITC availing should come to an end by such dates. Accordingly, we are of the considered opinion that availment of ITC on the basis of a 'bill of entry', whether original or re- assessed, is governed by the time limit as prescribed under Section 16(4) of the CGST Act, 2017. Thereby, all the contentions of the appellant on the aspect relating to non- application of time limit under Section 16(4) of the CGST Act, 2017, to a Bill of Entry', including their reliance on the CBIC Circular No. 267/41/96-CX.8 dated 23.04.1996, wherein it was clarified by the Board that the time limit of 6 months mentioned in Rule 57G of the Central Excise Rules was for inputs and that the same is not applicable for Rule 57T under which capital goods are covered in the context of erstwhile Central Excise rules, 1944, do not come to their aid and are liable to be set aside in view of the aforesaid reasons. 6.28 Th....