2019 (5) TMI 1397 - HC - GST

Levy of IGST on the goods imported into the territory of India - Duty free shops - Inter-state supply or not - Time of supply - petitioner alleged that the respondent no.3 herein, has been operating at the arrival and departure termination of Airport since 2004 and the operations of these shops are governed in accordance with the provisions of Customs Act 1962 - HELD THAT - The warehouse goods are supplied by the DFS to the International arriving passengers before its clearance for home consumption. The arriving passengers thereafter cross the customs frontier at the airport along with the goods and only then clears the same for home consumption. The passenger is therefore liable to pay the applicable duties of customs. The goods being a part of passenger's bonafide baggage are cleared for home consumption by the passenger under the Baggage Rules, 2016 and not by the DFS, hence no customs duty is payable by the DFS and therefore under proviso of Section 5 (1) of the IGST Act read with Section 12 of the Customs Act 1962, No IGST is payable either. The supply of warehoused goods by the DFS at the departure terminal is to departing International passengers i.e. the passengers travelling from India to a foreign destination. Thus, the goods supplied are never cleared for home consumption and the warehoused goods are exported by the DFS, therefore the levy Customs duty and of the IGST do not arise. The above observations conclude that IGST is not payable on the supply either to or from the DFS located at the arrival or at departure terminal. It is clear that the goods sold to passengers at the International departure terminal DFS are not cleared for home consumption nor for removal to another warehouse or otherwise provided in the Customs Act, 1962 and hence the goods are cleared without payment of duty only for export under Section 69 of the Customs Act under an invoice which is also deemed to be a shipping bill - Hence the sale/supply at the International departure terminals DFS would be export of goods under Customs Law and therefore will be considered as exports of goods under GST Act, since the definition of export and export of goods under both the laws is the same. In the present case of DFS, it is very clear that if a foreign destination of the foreign going passenger, the passenger also acts as a carrier and the goods are appropriated outside India. In view thereof, it is clear that the decisions relied upon by the petitioner are misplaced, have no relevance to the facts of the present PIL and therefore cannot be relied upon in the context of the business undertaken by the answering respondent no.3. The exemption under GST on goods supplied to and from DFS is rightly conferred and the claims of any accumulated unutilized ITC are refundable to respondent no.3 - petition dismissed.

Summary

Issues Involved:
1. Liability of IGST on goods imported by DFS.
2. Applicability of CGST and SGST on goods sold to international passengers by DFS.
3. Eligibility for refund of accumulated input tax credit (ITC) by DFS.

Detailed Analysis:

1. Liability of IGST on Goods Imported by DFS:
The petitioner argued that respondent no.3 (DFS) is liable to pay IGST on goods imported into India. The court examined Section 7(2) of the IGST Act, which states that the supply of goods imported into India, until they cross the customs frontiers, shall be treated as inter-State trade or commerce. The court concluded that since the goods supplied to and from the DFS do not cross the customs frontier, they are considered inter-State supplies and are not liable to CGST and SGST under Section 9 of the CGST Act and SGST Act. The court further clarified that the point of time for levying integrated tax on imported goods is when the goods are cleared for home consumption, as per Section 12 of the Customs Act, 1962. Since the goods supplied by DFS are not cleared for home consumption but are exported, the levy of IGST does not arise.

2. Applicability of CGST and SGST on Goods Sold to International Passengers by DFS:
The petitioner contended that the goods sold to international passengers by DFS should attract CGST and SGST. The court referred to the definition of "export of goods" under Section 2(5) of the IGST Act, which means taking goods from India to a place outside India. The court cited the Supreme Court's decision in Collector of Customs, Calcutta Vs. Sun Industries, which held that taking goods to a place outside India includes high seas beyond territorial waters. Therefore, the sale of goods to international passengers at the departure terminal DFS is considered an export of goods and is zero-rated. Consequently, no CGST and SGST are applicable on these sales.

3. Eligibility for Refund of Accumulated ITC by DFS:
The petitioner argued that DFS is incorrectly permitted to claim a refund of accumulated ITC on GST paid for renting immovable property and procurement of domestic goods and services. The court noted that export of goods is a zero-rated supply under Section 16(1) of the IGST Act, and a person making zero-rated supplies can claim a refund of unutilized ITC as per Section 16(3) of the IGST Act. The court emphasized that the entire activity of DFS, including warehousing, stocking, and sale, is governed by the Customs Act and is under customs supervision. The goods sold to international passengers at the departure terminal DFS are deemed to be exports under Section 69 of the Customs Act. Therefore, the supply from DFS is considered an export of goods under both the Customs Act and the GST Act, making DFS eligible for a refund of accumulated ITC.

Conclusion:
The court concluded that the exemption under GST on goods supplied to and from DFS is rightly conferred, and the claims of any accumulated unutilized ITC are refundable to respondent no.3. The petition was found to be devoid of merit and was dismissed. No order as to costs was made.