890 total views
If the transaction of sale or purchase takes place when the goods are imported in India or they are being exported from India, no State can impose any tax thereon.
N OF INDIA, 1950
Where assessee sold goods to the international passengers, i.e., departing passengers or passengers arriving into India like cigarettes, alcohol, perfumes, chocolates and cosmetics, etc., and all the goods which are sold at the DFSs are either imported or purchased from Indian market and are stored in a customs bonded warehouses and are removed from such warehouses only under the supervision of the jurisdictional Commissioner, further, all DFSs were situated at international airports, which were beyond the customs frontiers of India and would not be within the customs frontiers of India, therefore, GST would not be applicable and petition was allowed.
Writ – Levy of CGST and IGST – Duty Free Shops (DFS) at Airport – Refund of the Input Tax Credit
Assessee filed this petition challenging to orders, whereby plea for refund of the Input Tax Credit was rejected. In writ petition a declaration was sought to effect that CGST Act, 2017, IGST Act, 2017 and KGST Act, 2017 and the rules framed thereunder do not apply to the supply of goods and services effected by assessee in the arrival and departure Duty Free Shops at International Airport in terms of Concession Agreement with a further plea of issuance of direction to authority not to apply the aforementioned Acts to the DFS operated by assessee and to quash order to the extent of levying CGST and IGST on the revenue sharing in terms of the Concession Agreement. Assessee sought quashing of orders, whereby refund already ordered was rejected by authorities.
It is held that Assessee sold goods to the international passengers, i.e. departing passengers or passengers arriving into India like cigarettes, alcohol, perfumes, chocolates and cosmetics, etc. Invoices issued by DFSs at the time of sale of goods to outgoing passengers are duly signed by both passengers and the cashier. All the goods which are sold at DFSs are either imported or purchased from Indian market and are stored in a customs bonded warehouses and are removed from such warehouses only under the supervision of Jurisdictional Commissioner, thus, for all intents and purposes goods are not sold for domestic purposes. If the transaction of sale or purchase takes place when the goods are imported in India or they are being exported from India, no State can impose any tax thereon. It is also not in dispute that all DFSs were situated at international airports, which were beyond the customs frontiers of India and would not be within the customs frontiers of India. Therefore, GST would not be applicable and petition was allowed.
Relied:Hotel Ashoka (Indian Tourism Development Corpn. Ltd.) v. ACCT & Anr. 2012 TaxPub(EX) 246 (SC), Commissioner of C. Ex., Pune v. Coca-Cola India (P) Ltd. 2007 (213) ELT 490 (SC) : 2007 TaxPub(EX) 1514 (SC), Kiran Spinning Mills v. Collector of Customs 1999 TaxPub(EX) 3001 (SC), J.V. Gokal & Co. (P) Ltd. v. Asstt. Collr. of Sales Tax (Inspection) AIR 1960 SC 595 : 1999 TaxPub(EX) 1510 (SC), Sandeep Patil, Flemingo Travel Retail Limited & Anr., v. Union of India & Ors. 2019 (31) GSTL 398 : 2019 TaxPub(GST) 1036 (Bom-HC), Atin Krishna v. U.O.I. Thru Secy. Ministry of Finance & Ors. 2019 TaxPub(GST) 0466 (All-HC)
FAVOUR : Petition allowed.
IN THE KERALA HIGH COURT
AMIT RAWAL, J.
Cial Duty Free & Retail Services Ltd. (CDRSL) v. UOI
W.P. (C) Nos. 12274, 12278 to 12280, 12317 & 13237/2020, W.P. (C) No. 6850/2018
22 September, 2020
Petitioner by: Advocates P. Benny Thomas, G. Harikumar, Akhil Suresh
Respondent by: R1 By Advocate P. Vijayakumar, ASG of India R2 by P.R. Sreejith, SC, Central Board of Excise and Customs
(W.P. (C). 12274/2020, W.P. (C). 6850/2018, W.P. (C). 12278/2020, W.P. (C). 12279/2020, W.P. (C). 12280/2020, W.P. (C). 12317/2020, W.P. (C). 13237/2020)
Dated this the 22-9-2020
All the seven writ petitions are being disposed of with this common judgment as they arise out of the same cause of action.
- InWrit Petitions Bearing Nos. 12278, 12279, 12280, 12274 & 12317 of 2020, challenge has been laid to orders whereby prayer for refund of the Input Tax Credit (hereinafter called as ‘ITC’) has been rejected for the period tabulated below, though earlier granted :–
W.P. (C) No. 12278 of 2020 February, 2018 to April, 2018
W.P. (C) No. 12279 of 2020 July, 2019 to December, 2019
W.P. (C) No. 12280 of 2020 December, 2018 to June, 2019
W.P. (C) No. 12274 of 2020 July, 2017 to January, 2018
W.P. (C) No. 12317 of 2020 May, 2018 to November, 2018
- In writ petition bearingW.P. (C) Nos. 6850 of 2018 a declaration has been sought to the effect that the Central Goods and Service Tax Act, 2017, the Integrated Goods and Service Tax Act, 2017 and the Kerala State Goods and Service Tax Act, 2017 and the rules thereunder do not apply to the supply of goods and services effected by the petitioner in the arrival and departure Duty Free Shops (hereinafter called as ‘DFSs’) at Calicut International Airport in terms of the Concession Agreement, dated 22-4-2016 with a further prayer of issuance of direction to the respondents not to apply the aforementioned Acts to the DFS operated by the petitioner and to quash Exhibits P-3 & P-10 to the extent of levying CGST and IGST on the revenue sharing in terms of the Concession Agreement, dated 22-4-2016.
- In writ petition bearingW.P. (C) No. 13237 of 2020 the petitioner has sought quashing of orders (Exhibits P-17 and P-20) whereby refund already ordered has been rejected by the respondents.
- Learned counsel appearing for the petitioners before commencement of arguments referred to an order of the Hon’ble High Court of Bombay rendered inSandeep Patil and others v. Union of India and others 2019 (31) GSTL 398 : 2019 TaxPub(GST) 1036 (Bom-HC) wherein a similar controversy raised i.e. refund of ITC pursuant to sale of duty free goods from Duty Free Shops at the departure area of airport, had been declined and GST towards the minimum guaranteed fees/concession fees for grant of rights and use of licensed premises of duty free in the departure or arrival area of international airport had been made accessible.
- The question raised in the afore cited judgment has been answered in favour of the assessee whereby by referring to a unanimous decision of Constitutional Bench of Hon’ble Supreme Court of India rendered inJ.V. Gokal and Co. (P) Ltd. v. The Assistant Collector of Sales Tax (Inspection) and others AIR 1960 SC 595 : 1999 TaxPub(EX) 1510(SC) and judgment rendered in Hotal Ashoka (Indian Tourism Development Corpn. Ltd. v. Assistant Commissioner of Commercial Tax and others AIR 2012 SC 982 holding that owners are not liable to pay customs duty nor IGST and show cause notices with regard to accessibility of GST under concession agreement had been quashed. It has, further, been held that the assessee would be entitled for refund of ITC as it would not cause any prejudice, for, first. would, pay the GST on the services provided to DFSs by respondent No. 4 and then take ITC of the entire tax amount and thereafter claim refund of the same by following the procedure contained in rule 89 of the Central Goods and Services Tax Rules, 2017.
- Mr. Benny Thomas, learned counsel representing CIAL in support of averments made in the writ petition submitted that DFSs run by the petitioner are licensed by the Jurisdictional Commissioner of Customs under section 58 and 58A of the Customs Act, 1962 (hereinafter called as ‘Act of 1962’). The products are transferred to DFSs at CIAL’s Arrival and Departure Terminals for subsequent sales to international passengers travelling through the international terminal. Once the entire items are sold to passengers, petitioner-CIAL applies for closure of bond of Bill of Exchange (BOE) with the Customs Authorities after adhering through all the processes and procedures as perNotifications No. 68 & 69/2016-Customs (N.T) and Circular No. 20/2016-Customs. On account of zero rated supplies, petitioner preferred applications under section 54(3) of CGST and SGST read with rule 89 of CGST Rules and SGST Rules, 2017 for refund of unutilized ITC, which were allowed but thereafter received show cause notices for cancellation. Petitioner has been granted licence No. 1 of 2016 (Exhibit P-1) by the competent authority i.e. the Jurisdictional Commissioner of Customs to operate special warehouse to store duty free goods meant for sale at its DFSs at the airport. The goods brought in by the petitioner and sold in DFSs do not attract customs duty.
Sales to international passengers are generally made against payment in foreign currency and upto the limit prescribed by the Reserve Bank of India in Indian currency. Every sale at the DFS located at departure terminal is covered by sale voucher (deemed to be a shipping bill under section 69 of the Act of 1962) and these transactions are carried out according to the guidelines issued by the Department of Customs from time to time. As per section 2(11) of the Act of 1962, all duty free shops in India are Customs Area, which include a warehouse and customs station. The products, which are brought from foreign suppliers and brought into India are kept in custom bonded warehouses and are transferred to DFSs situated at the airport as and when stocks are needed. The aforementioned activities are carried out under supervision of Customs Authorities and the petitioner has no access to the products without permission/leave of the Customs Authority. In other words, products have not crossed the customs frontiers of India.
Despite having given detailed reply to the show cause notices and after having been granted refund, the impugned orders are not sustainable, for, the judgments rendered by the High Court of Bombay in Sandeep Patil’s case (supra) and Flemingo Travel Retail Limited and another v. Union of India and others passed in Writ Petition No. 1511 of 2019, dated 7-10-2019 : 2019 (31) GSTL 398 : 2019 TaxPub(GST) 1036 (Bom-HC) have been accepted by the Government to be final having chosen not to prefer an Special Leave Petition (SLP) before the Hon’ble Supreme Court of India. The goods sold at DFSs if do not attract imposition of any import duty on a duty free operator, the question of accessibility under GST regime introduced with effect from 1-7-2012 is also not applicable.
- The transactions undertaken at petitioner’s DFSs at arrival and departure terminals are ‘export’ under section 69 of the Act of 1962, which provides that warehoused goods may be exported outside India without payment of import duty. As perCircular No. 20/2016, dated 20-5-2016 (Exhibit P-5), Duty Free Shops located in customs area are not treated as warehouse.
- In respect of sales through DFSs in the arrival terminal, the arriving passenger’s baggage is exempted from customs duty underNotification No. 43/2017-Cus, dated 30-6-2017 and IGST Notification No. 2/2017-IGST (Rate), dated 28-6-2017 read with the duty free allowance available under the applicable Baggage Rules, as such goods do not attract any customs duty or IGST. Definition of ‘export’ under section 2(18) of the Act of 1962 and section 2(5) of the IGST, 2017 is the same.
- The second respondent failed to consider a specific submission made by the petitioner that under the terms of the Customs Act, activity undertaken from the DFSs of petitioner qualifies as export. The act of second respondent is not only arbitrary but is also discriminatory inasmuch as identical applications for refund of unutilized ITC filed by similar operators in duty free business in the State of Karnataka, Punjab, Tamil Nadu, Goa, West Bengal and Gujarat have been processed and allowed. It is in view of the judgment referred to above, the DFSs situated at the arrival and departure lounge of international airports are concededly beyond customs frontiers. In addition to aforementioned arguments, paras 5, 6, 11 and 13 of the judgment rendered inSandeep Patil’s case (supra) have been referred to.
- The issue in other two writ petitions pertains to non- applicability of Central Goods and Service Tax Act, 2017, the Integrated Goods and Service Tax Act, 2017 and the Kerala State Goods and Service Tax Act, 2017 and other rules framed thereunder as well as quashing of impugned order declining the refund. It is argued that the Concession Agreement, dated 22-7-2016 has been entered into between the petitioner and respondent No. 3 i.e. Airports Authority of India in respect of DFSs located at arrival and departure of the airport at Calicut. Sales of products like cigarettes, alcohol, perfumes, confectionary and cosmetics etc. to the passengers, who will have a fixed destination outside India or passengers arriving India, are done on receipt of consideration in foreign exchange or Indian rupees to the extent permissible. Most of the goods are primarily imported or occasionally procured from Special Economic Zones units in India (hereinafter called as ‘warehoused goods’). DFSs are located within customs stations and had been issued special warehouse licence under section 58-A of the Act of 1962. Respondents No. 3 and 4 in view of the enactment of CGST Act, IGST Act, SGST Act and the rules thereunder from the month of July, 2017 started charging CGST at 9% and SGST 9% on the amounts due and payable by the petitioner as minimum guarantee/revenue share for both the arrival and departure locations under Concession Agreement, dated 22-4-2016.
- Rent is paid for space in arrival and departure lounge and being a non- taxable territory, no tax is chargeable at the first instance on rental of customs bonded warehouses (Duty Free Shops) whether its arrival or departure lounge. Products are not sold by the petitioner in the domestic market are only meant for international passengers flying in or out of India. Sales to such passengers are made only against valid documents and payment in foreign or Indian currency as permitted by CBEC. Every such sale is covered by a sale voucher which is deemed to be a shipping bill.
- As per the terms of the Concession Agreement, respondent No. 4 on behalf of respondent No. 3 was to raise monthly invoices towards both the arrival and departure DFSs towards Minimum Guarantee/Revenue Share. Accordingly, upon the commencement of the business in April, 2016, respondent No. 4 started raising such invoices under the name and style of ‘Licence Fees for Exclusive Concession to Develop, Operate and Maintain Duty Free Shops’ for both the arrival and departure which were to be duly paid by the petitioner towards Minimum Guarantee/Revenue Share.
- On introduction of GST regime in 2017, State of Kerala enacted Kerala State Goods and Service Tax, 2017 and the corresponding rules thereunder. As per section 9(1) of CGST Act, a tax called the central goods and service tax is levied on all intra-State supplies of goods or services or both except on the supply of alcoholic liquor for human consumption on the value determined under section 15 and at such rates, not exceeding 20%.
- Section 2(79) of the CGST Act defines ‘non-taxable territory’ as the territory which is outside the taxable territory whereas ‘taxable territory’ is defined under section 2(109). Similarly a non-taxable supply has been defined under section 2(78), which would mean supply of goods or services or both which is not leviable to tax under this Act or under the CGST Act. Provisions of Kerala State Goods and Service Act, 2017 are inpari materia to CGST. Section 2(4) of IGST Act defines ‘customs frontier of India’, which would mean the limits of customs area as defined in section 2 of the Customs Act, 1962. Respondent No. 3 in view of the aforementioned enactment raised invoices for the month of July 2017 to January, 2018 (Exhibit P-3 to P-10). The petitioner sent a detailed representation, dated 31-10-2017 (Exhibit P-11) requesting to withdraw the invoices being not accessible to 9% CGST and 9% SGST. The judgment of Hon’ble Supreme Court in the case of Hotel Asoka was also cited. However, respondent No. 4 continued to precipitate the illegality by issuing monthly invoices for the months of November, 2017 to January, 2018 by levying CGST and SGST on the Minimum Guarantee/Revenue Share whereas in respect of other airports situated in the country, such demands had at relevant point of time already been stayed by various High Courts.
- Supply of goods by DFSs and the services take place in a ‘non-taxable territory’ as defined under section 2(79) of the CGST Act, 2017. Section 16 of the IGST Act provides that export of goods or services or both qualifies as zero rated supply.
- Transactions of leasing/licensinginter alia of land or buildings are specifically treated as a ‘supply of service’, which would fall outside the ambit of all three Acts i.e. CGST, SGST and IGST and the rules framed thereunder. The terms ‘non-taxable supply’ defined under section 2(78) of the CGST Act would mean supply of goods or services or both which is not leviable to tax under this Act or under IGST Act.
- To buttress his arguments, Mr. shah argued that the point that has to be examined is whether such transactions of leasing are leviable to tax under the IGST Act. In support of aforementioned argument by referring to provisions of sections 13 and 13(4), it was submitted that the immovable property is the duty free shops of the petitioner, which is undisputedly outside the customs frontiers and thus, for all intents and purposes would be outside the territory of India. Consequently, the place of supply or services will also be outside the territory of India and being a non-taxable territory, the services would also be non-taxable. Thus, orders of levy are illegal and unlawful.
- Further reliance had been made to judgment rendered by Allahabad High Court inPIL (Civil) No. 12929 of 2019 titled as ‘Atin Krishna v. Union of India and others’ decided on 3-5-2019 : 2019 TaxPub(GST) 0466 (All-HC). It was further submitted that their action to first pay GST and then claim refund of the same by following the procedure as enunciated under rule 89 though accepted in Sandeep Patil’s case (supra) but in other judgment of Hon’ble Supreme Court passed in the matter of Commissioner of Central Excise, Pune v. Coca-Cola India (P) Ltd., 2007 (213) ELT 490 (SC) : 2007 TaxPub(EX) 1514 (SC), the procedure of payment of instances of GST to pay and claim credit was not accepted. Also on similar lines judgment of High Court of Bombay in Cipla Limited v. UOI 1995 (80) ELT 17 (Bom) : 1995 TaxPub(EX) 0947 (Bom), wherein the demand of customs duty in excess of 2% on goods allowed to be re-exported in view of its findings that the petitioner before it was entitled to 98% of the duty by way of drawback was set aside. It is also submitted that as per judgment, dated 7-10-2019 in Sandeep Patil (supra), supply of goods by DFSs has been treated to be an export of goods under IGST and a zero rated supply making and therefore, the petitioner is eligible to claim 100% ITC and claim its refund with effect from 1-7-2020 onwards as Vide Order, dated 21-3-2020, this Court was pleased to admit the writ petition and pass an interim order in favour of the petitioner. Accordingly with effect from 1-1-2018 to 30-6-2018, the petitioner had not paid GST on concession fee to respondent No. 4.
- As per understanding of the petitioner, respondent No. 4 may have deposited GST on concession fee with the Government for period aforementioned and further from 1-7-2018, in view of the stay granted by this Court, factually respondent No. 4 may not have deposited GST nor the petitioner to reimburse GST to respondent No. 4.
The stand of the State by relying upon Circular No. 106/25/2019-GST, dated 29-6-2019 introducing rule 95-A of CST Rules, 2017 confining the benefit of non-accessibility of GST to sale and supply of services to the passengers at ‘departure’ only cannot be read in a restricted term, in view of the definitions of taxable territory as well as ratio decidendi culled out in Sandeep Patil’s case (supra).
- In another writ petition i.e.W.P. (C) No. 13237 of 2020 similar arguments have been raised.
- On the other hand, learned counsels appearing on behalf of the State as well as for Airport Authority i.e. respondents No. 3 and 4 inW.P. (C) Nos. 6850 of 2018 and 13237 of 2020 emphatically relied upon rule 95-A introduced with effect from June, 1-7-2019 whereby retail outlets established in departure area of an international airport beyond immigration counters have been rendered to be tax free supply to the outgoing international tourist. It was further contended that writ petitions except W.P. (C) No. 6850 of 2018 are liable to be dismissed being not maintainable, in view of the availability of an alternative remedy against the order of rejection of refund. In fact, the authorities are only enforcing law, thus, there cannot be any violation of Article 14, 19, 21 or 300A of the Constitution of India.
- Though provisions of Article 286 of the Constitution of India have imposed restrictions of tax on sale and purchase of goods in the course of import of goods or services or both in India or export of the goods or services or both outside the territory of India as observed by Hon’ble Supreme Court inHotel Ashoka’s (supra) but would not be relevant, for, it pertain to levy of VAT and CST but not GST. As per section 1(2) of the CGST Act and Kerala GST Act, the said Acts extend to the whole of India and as per section 1(2) of the MGST Act, it extends to the whole of State of Maharashtra. DFS is located in Kerala limits and within India. Since the international airport is itself in India, therefore, operations of the petitioner are in taxable territory as defined in section 2(109) of the Act and the non- taxable territory in section 2(79), which is referred to by the counsel appearing for the petitioner.
- Though under the Customs Act, 1962, sale by a DFS is treated as ‘export’ and the bills issued by DFS are treated as shipping bills, the same cannot be mutatis mutandis under the GST laws. The DFS and passengers receiving goods are located at airport within India and in view of section 19 of the Sale of Goods Act, 1930, the outgoing passengers immediately become owners of the goods purchased from DFS. Mere nomenclature of Duty Free Shop does not entitle the petitioner to be free from entire indirect tax burden under every law. The input tax credit is limited to tax only on value of goods supplied whereas GST paid on services cannot be allowed to be given as input tax credit entitling for refund. The supply of goods is applicable to both outgoing and incoming passengers. Retail outlets established in the departure area of international airport supplying goods and service to the incoming passengers cannot be entitled for refund, in view of provisions of rule 95-A of CGST Rules, 2017, thus, urges this Court for dismissal of the writ petitions.
- In rebuttal, the counsel representing the petitioner(s) submitted that though objections qua non-maintainability of writ petitions due to availability of alternative remedy were raised in the judgments referred to above in Sandeep Patil and Hotel Ashoka but keeping in view of the facts and circumstances of the cases and finding the orders to be without jurisdiction, the same were over ruled, similar is position in present cases.
- I have heard learned counsel for the parties, appraised the paper book and the case laws cited.
- Before giving my reasoning, it is worthwhile to mention that both the parties are ad idem that the Central Board of Indirect Taxes and Customs vide communication, dated 25-6-2020 on the subject of proposal for filing SLP against the judgment of Bombay High Court, dated 7-10-2019 inWrit Petition No. 1511 of 2019 and 1535 of 2019 preferred by M/s. Flemingo Travel Retail Ltd. has not chosen to file SLP. The relevant content of the letter is reproduced as under :–
‘Please refer to your SLP proposal vide your office Letter F. No. V CGST/ME/Legal/HC/Flemingo/Div-III/08/19-20/592, dated 7-11-2019 on the above-mentioned subject.
- In this regard the undersigned is directed to intimate that the proposal has been examined and it has been decided not to file SLP in the subject matter. The same is informed for further necessary action, if any.’
- The question posed qua entitlement of refund of taxes in respect of goods and services provided at international airport would be applicable to outgoing international tourist i.e. departure area in view of theCircular, dated 29-6-2020 as has been argued by the Revenue, would also not be required to be answered by this Court, as the aforementioned circular has also been discussed in the judgment rendered by the High Court of Bombay in Sandeep Patil’s case (supra). Once there is no dichotomy regarding the contents of letter and as well as the reference of circular in the judgment, I am of the view that it is a fit case where same benefit is required to extend to the petitioner(s) herein as has been extended to similarly situated DFSs in the State of Karnataka as well as in the State of Maharashtra and other states referred by petitioners counsel and remained unrebutted.
It is a matter of record that the petitioner(s) sell goods to the international passengers i.e. departing passengers or passengers arriving into India (arriving passengers) like cigarettes, alcohol, perfumes, chocolates and cosmetics etc. The expressions ‘import’ and ‘export’ defined under Customs Act, 1962 have been identically defined in IGST Act, 2017. Invoices issued by DFSs at the time of sale of goods to the outgoing passengers are duly signed by both the passengers and the cashier. No doubt, it envisages a condition that the passenger will not consume the goods until he lands at the final destination outside India. In other words, the passenger shall become owner of the goods only upon reaching of final destination. The contents of invoices have already been extracted in paragraph 6 of the judgment rendered in Sandeep Patil (supra). It is a matter of record that all the goods which are sold at the DFSs are either imported or purchased from Indian market and are stored in a customs bonded warehouses and are removed from such warehouses only under the supervision of the Jurisdictional Commissioner, thus, for all intents and purposes are not sold for domestic purposes. The goods which are brought from customs warehouses do not cross customs frontiers, thus, before the goods are imported in the country, they had been sold at DFSs.
- In my view, if the transaction of sale or purchase takes place when the goods are imported in India or they are being exported from India, no State can impose any tax thereon. It is also not in dispute that all the DFSs are situated at international airports i.e. at Cochin and Calicut, which are beyond the customs frontiers of India and would not be within the customs frontiers of India. When any transaction takes place outside the customs frontiers of India, of course the transaction is said to have taken place outside India, though the transaction might take place within India. Examining the provisions of section 2(11) of the Act of 1962 read with section 286 of the Constitution of India, the said transaction would be said to have taken place outside India.
- Rule 95-A introduced videCircular, dated 29-6-2019 has also been cases discussed in para 16 of the judgment rendered in Sandeep Patil’s case (supra) and the reasoning is assigned in paragraph 17 and 18, is extracted herein below :–
’16. There is no merit in the submission of the respondents that although the Customs Act treats the sale at DFS as export, the same cannot be ipso facto applicable under the GST Laws. Paragraph 4 of Circular No. 106/245/2019-GST : MANU/GSCU/0033/2019, dated 29-6-2019 issued by the Central Board of Indirect Taxes and Customs…… GST Policy Wing of ministry of Finance, Government of India clearly shows that since the procedure for procurement of imported/warehoused goods is governed by the Customs Act, the procedure and applicable rules as specified under the Customs Act are required to be followed for procurement and supply of such goods. Under section 2(4) of IGST Act, ‘the customs frontier’ means the limits of customs area as defined in section 2 of the Customs Act, 1962. The DFS located in the customs airports and special warehouse will thus form part of the customs area as defined under section 2(11) of the Customs Act.
- The Central Government videOrder, dated 31-8-2018in Aarish Altaf Tinwala (F.No. 371/142/B/2018-RA/1391),inter alia, held that supply of goods from the arrival DFSs is treated as an export by DFSs, and the passenger who buys from DFS and thereafter crosses the customs barrier, files import declaration and becomes importer.
This position has been affirmed by the Supreme Court by rejecting the writ petition filed against the central government order, vide an Order, dated 10-5-2019 passed Writ Petition (C) No. 564 of 2019 titled as Aarish Altaf Tinwala v. Union of India.
- It is pertinent to note that we have held inSandeep Patil v. Union of India & Ors. (Criminal Public Interest Litigation No. 14 of 2019) : 2019 (31) GSTL 398 :2019 TaxPub(GST) 1036 (Bom-HC) that sale to the departing passengers amounts to export of goods and DFS is an ‘exporter’.
- I would not like to go in repetition of what has already been laid down in the judgment ofSandeep Patil’s case (supra). However, it would be in the fitness of things to extract relevant paragraphs of the said judgment, which are as under :–
’21. Section 2(5) of the IGST Act defines ‘export’ to mean ‘taking goods out of India to a place outside India’. In view of the above we are satisfied that supply by the DFS of the Petitioner to the outbound passenger constitutes exports by the DFS. Consequently, in terms of section 16(1) of the IGST Act, it becomes a zero rated supply.
- In our view, the Respondent-Authority has erroneously held that the Petitioner does not satisfy the crucial test of sending of the goods to foreign destination where they would be received as ‘imports’, to deny the benefits of zero rated supply.
- During the period between 1-7-2017 and 31-1-2019, the supply of goods from arrival DFSs is also treated as ‘export’ by the central government videOrder, dated 31-8-2018in a custom matter of Aarish Altaf Tinwala (supra) and this position has been affirmed by the Supreme Court by rejecting the writ petition filed against this central government order vide its Order, dated 10-5-2019 in Writ Petition (c) No. 564 of 2019. Hence by legal fiction, the supply of goods from arrival DFS would also be an export of goods under the IGST Act, and hence, a zero rated supply. Since the zero- rated supply qualifies for 100% ITC, the Petitioner is eligible for the refund thereof.
- With effect from 1-2-2019, in view of the CGST (Amendment) Act, 2018, supply of warehouse goods before clearance for home consumption have been notified/classified as activities or transactions which shall not be treated as a supply of goods. Accordingly, effective from 1-2-2019, sale of goods from arrival DFS falls under entry 8(a) of Schedule III to CGST/SGST Act; and further, section 17(2) of the CGST Act is amended according to which reversal of ITC pertaining to activity specified in Schedule-III is not required. Accordingly, the Petitioner is to claim ITC pertaining to arrival FS also. Once this ITC is eligible, refund of entire ITC pertaining to departure and arrival DFS is eligible, based on formula of refund prescribed in rule 89.
- It was pointed out on behalf of the Petitioner having DFSs, that the same Petitioner is getting refund of ITC pursuant to sales from their other DFSs in the departure area of other international airports within India. The said contention was not disputed by the Respondents. The GST regime is based on ‘One nation, one tax theory’. The authorities in the State of Maharashtra cannot give a discriminatory treatment, particularly when the refund has been and is being granted in several other States.
- The impugned show cause notices allege that the goods imported by the petitioner from outside India into the special warehouse would constitute import of goods under the proviso to section 7(2) of the IGST Act, and thereby, liability of payment of tax under the proviso to section 5 of IGST Act is alleged. It further alleges non-payment of SGST on the transactions of sale of goods effected to the international passengers going out of India.
- We find sufficient merit in the submissions of the petitioner that import of goods in terms of section 2(10) of the IGST Act means bringing the goods into India from a place outside India. As per section 7(2) of the IGST Act, goods imported into the territory of India, till such time it crosses the customs frontier of India, shall be treated to be a supply of goods in the course of inter-State trade and commerce. As per section 2(4) of the IGST Act, the customs frontier of India means the limits of a customs area as defined in section 2 of the Customs Act. The duty free warehouse and DFS of the petitioner are only within the limits of the customs area and therefore, the goods lying therein do not cross the customs frontier and consequently, the importation will continue to be only in the state of inter-State trade and commerce in terms of section 7(2).
- We find sufficient merit in the submissions of the petitioner that petitioner only files bill of entry for warehousing. No liability under section 12 read with section 3(12) of the Customs Tariff Act would get triggered at all by filing bill of entry for warehousing. The customs duty and IGST is leviable only on removal of warehoused goods from the customs area, which happens when the arriving passengers leave the custom area. Since, the goods sold by DFS to arriving passengers do not leave the customs area, DFS is neither liable to pay customs duty, nor IGST.
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- Needless to say that if the duty free shop, which caters to the outgoing or incoming international passengers, is subjected to local taxes by the State, the tax burden will increase and the price of the goods, which are supposed to be free of taxes and duties, will go up, and the same would prevent the duty free shops in India from competing with DFSs at international airports elsewhere in the world. This will also hamper and prejudicially affect our foreign trade, and augmentation and conservation of foreign exchange. In our opinion, this will also negate the intent and purpose of Article 286 of the Constitution of India.
- We are bound by the judgment of Constitution Bench inJ.V. Gokal & Co.(supra) which was followed by the Supreme Court in the matter of duty free shops in Hotel Ashoka (supra), and also in the matter of Kiran Spinning Mills (supra).
- In the backdrop of above, we are of the view that impugned order and theImpugned Show Cause Notice, dated 10-1-2019are manifestly arbitrary and in the teeth of the purpose and intent of Article 286 of the Constitution of India and the provisions of the GST law read with the Customs Act, 1962.
- Hence, writ petition bearingW.P. No. 1511 of 2019succeeds. The impugned Order, dated 10-1-2019 and the impugned show cause notices are quashed and set aside. So far as Writ Petition No. 1535 of 2019 is concerned, we refrain from issuing any declaration since the Petitioner is held to be entitled for refund of ITC and as such no prejudice will be caused to them, if they would first pay GST on the services provided to DFSs by MIAL and take ITC of the entire tax amount, and thereafter claim refund of the same by following the procedure contained in rule-89.’
- In view of what has been noticed above, the impugned orders in all the writ petitions are set aside and accordingly allowed.
- InW.P. (C) No. 6850 of 2018, I refrain myself from giving any declaration as sought qua accessibility of GST at Calicut International Airport but since this Court had granted the stay, which is operational during the pendency of the present writ petition, no GST is payable by respondent No. 4 Airport Authority and no useful purpose would be served in directing respondents No. 1 to 3 to recover any GST on concession fee till 30-6-2020, which respondent No. 4 will seek to recover from the petitioner since as per judgment, dated 7-10-2019, the supply of goods by DFSs to outgoing passengers is export of goods under IGST and zero rated supply, it would entitle the petitioner(s) to claim 100% of ITC and refund thereof effective from 1-7-2020 onwards. As per the reasoning assigned in para 37 of the judgment referred to above in Sandeep Patil, the petitioner shall pay the GST on input services including Concession Fee to respondent No. 4 and claim ITC of the entire tax amount and thereafter claim refund of the same by following the procedure prescribed under section 54(3) of the Central Goods and Services Tax Act, 2017 and Kerala Goods and Services Tax Act, 2017 read with rule 89 of Central Goods and Services Tax Rules, 2017 and Kerala Goods and Services Tax Rules, 2017.
- Consequently, the writ petitions are allowed in above terms.
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