Clarification in respect of goods sent/taken out of India for exhibition or on consignment basis for export promotion. - GST - States - Bikri-kar/Vividh-28/2018-2354

Government of Bihar Commercial Taxes Department File No.- Bikri-kar/Vividh-28/2018-2354 dated- 13-08-2019 From: Dr. Pratima, Commissioner State Tax-cum-Secretary, Bihar, Patna. To, All Additional Commissioner, All Circle Incharge, Bihar. Subject: Clarification in respect of goods sent/taken out of India for exhibition or on consignment basis for export promotion Queries have been raised regarding procedure to be followed in respect of goods sent / taken out of India for exhibition or on consignment basis for export promotion. Such goods sent / taken out of India crystallise into exports, wholly or partly, only after a gap of certain period from the date they were physically sent / taken out of India. 2. The matter has been examined and to ensure uniformity in the implementation of the provisions of the law the Commissioner, in exercise of its powers conferred under section 168(1) of the Bihar Goods and Services Tax Act, 2017 (hereinafter referred to as the BGST Act ) hereby clarifies various issues in succeeding paragraphs. 3. As per section 7 of the BGST Act, for any activity or transaction to be considered a supply, it must satisfy twin tests namely- (i) it should be for a consideration by a person; and (ii) it should be in the course or furtherance of business. 4. The exceptions to the above are the activities enumerated in Schedule I of the BGST Act which are treated as supply even if made without consideration. Further, sub-section (21) of section 2 of the Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as the IGST Act ) defines supply , wherein it is clearly stated that it shall have the same meaning as assigned to it in section 7 of the BGST Act. 5. Section 16 of the IGST Act deals with Zero rated supply . The provisions contained in the said section read as under: 16. (1) zero rated supply means any of the following supplies of goods or services or both, namely:- (a) extort of goods or services or both; or (b) supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit. Therefore, it can be concluded that only such 'supplies' which are either 'export' or are 'supply to SEZ unit/developer' would qualify as zero-rated supply. 6, It is, accordingly, clarified that the activity of sending / taking the goods out of India for exhibition or on consignment basis for export promotion, except when such activity satisfy the tests laid down in Schedule I of the BGST Act (hereinafter referred to as the specified goods ), do not constitute supply as the said activity does not fall within the scope of section 7 of the BGST Act as there is no consideration at that point in time. Since such activity is not a supply, the same cannot be considered as 'Zero rated supply' as per the provisions contained in section 16 of the IGST Act. 7. Since the activity of sending / taking specified goods out of India is not a supply, doubts have been raised on issues relating to maintenance of records, issuance of delivery challan / tax invoice etc. These issues have been examined and the clarification on each of these points is as under: - Sl.No. Issue Clarification 1. Whether any records are required to be maintained by registered person for sending / taking specified goods out of India? The registered person dealing in specified goods shall maintain a record of such goods as per the format at Annexure to this Circular. 2. What is the documentation required for sending / taking the specified goods out of India? a) As clarified above, the activity of sending / taking specified goods out of India is not a supply. b) The said activity is in the nature of sale on approval basis wherein the goods are sent / taken outside India for the approval of the person located abroad and it is only when the said goods are approved that the actual supply from the exporter located in India to the importer located abroad takes place. The activity of sending / taking specified goods is covered under the provisions of sub-section (7) of section 31 of the BGST Act read with rule 55 of Bihar Goods Services Tax Rules, 2017 (hereinafter referred to as the BGST Rules ). c) The specified goods shall be accompanied with a delivery challan issued in accordance with the provisions contained in rule 55 of the BGST Rules. d) As clarified in paragraph 6 above, the activity of sending / taking specified goods out of India is not a zero-rated supply. That being the case, execution of a bond or LUT, as required under section 16 of the IGST Act, is not required. 3. When is the supply of specified goods sent / taken out of India said to take place? a) The specified goods sent / taken out of India are required to be either sold or brought back within the stipulated period of six months from the date of removal as per the provisions contained in subsection (7) of section 31 of the BGST Act. b) The supply would be deemed to have taken place, on the expiry of six months from the date of removal, if the specified goods are neither sold abroad nor brought back within the said period. c) If the specified goods are sold abroad, fully or partially, within the specified period of six months, the supply is effected, in respect of quantity so sold, on the date of such sale. 4. Whether invoice is required to be issued when the specified goods sent / taken out of India are not brought back, either fully or partially, within the stipulated period? a) When the specified goods sent / taken out of India have been sold fully or partially, within the stipulated period of six months, as laid down in sub-section (7) of section 31 of the BGST Act, the sender shall issue a tax invoice in respect of such quantity of specified goods which has been sold abroad, in accordance with the provisions contained in section 12 and section 31 of the BGST Act read with rule 46 of the BGST Rules. b) When the specified goods sent / taken out of India have neither been sold nor brought back, either fully or partially, within the stipulated period of six months, as laid down in sub-section (7) of section 31 of the BGST Act, the sender shall issue a tax invoice on the date of expiry of six months from the date of removal, in respect of such quantity of specified goods which have neither been sold nor brought back, in accordance with the provisions contained in section 12 and section 31 of the BGST Act read with rule 46 of the BGST Rules. 5. Whether the refund claims can be preferred in respect of specified goods sent / taken out of India but not brought back? a) As clarified in para 5 above, the activity of sending / taking specified goods out of India is not a zero-rated supply. That being the case, the sender of goods cannot prefer any refund claim when the specified goods are sent / taken out of India. b) It has further been clarified in answer to question no. 3 above that the supply would be deemed to have taken place: (i) on the date of expiry of six months from the date of removal, if the specified goods are neither sold nor brought back within the said period; or (ii) on the date of sale, in respect of such quantity of specified goods which have been sold abroad within the specified period of six months. c) It is clarified accordingly that the sender can prefer refund claim even when the specified goods were sent / taken out of India without execution of a bond or LUT, if he is otherwise eligible for refund as per the provisions contained in sub-section (3) of section 54 the BGST Act read with sub-rule (4) of rule 89 of the BGST Rules, in respect of zero rated supply of goods after he has issued the tax invoice on the dates as has been clarified in answer to the question no. 4 above. It is further clarified that refund claim cannot be preferred under rule 96 of BGST Rules as supply is taking place at a time after the goods have already been sent / taken out of India earlier. 8. The above position is explained by way of illustrations below: Illustrations : i) M/s. ABC sends units of specified goods out of India. The activity of merely sending/taking such specified goods out of India is not a supply. No tar invoice is required to be issued in this case but the specified goods shall be accompanied with a delivery challan issued in accordance with the provisions contained in rule 55 of the BGST' Rules. In case the entire quantity of specified goods is brought hack within the stipulated period of six months from the date of removal, no tax invoice is required to be issued as no supply has taken place in such a case. In case however, the entire quantity of specified goods is neither sold nor brought back within six months from the date of removal, a tax invoice would be required to be issued for entire 100 units of specified goods in accordance with the provisions contained in section 12 and section 31 of the BGST' Act read with rule 46 of the BGST Rules within the time period stipulated under sub-section (7) of section 31 of the BGST Act. ii) M/S ABC units of specified goods out of India. The activity of sending/taking such specified goods out of India is not a supply. No tax invoice is required to be issued in this case but the specified goods shall be accompanied with a delivery challan issued in accordance with the provisions contained in rule 55 of the BGST Rules. If 10 units of specified goods are sold abroad say after one month of sending / taking out and another 50 units are sold say after two months of sending / taking out, a tax invoice would be required to be issued for 10 units and 50 units, as the case may be, at the time of each of such sale in accordance with the provisions contained in section 12 and section 31 of the BGST Act read with rule 46 of the BGST Rules. If the remaining 40 units are not brought back within the stipulated period of six months from the date of removal, a tax invoice would be required to be issued for 40 units in accordance with the provisions contained in section 12 and section 31 of the BGST read with rule 46 of the BGST Rules. Further, M/s. ABC' may claim refund of accumulated input tax credit in accordance with the provisions contained in subsection (3) of section 54 of the BGST Act read with sub-rule (4) of rule 89 of the BGST Rules in respect of zero-rated supply of 60 units. 9. Difficulty, if any, in the implementation of the above instructions may please be brought to the notice. (Dr. Pratima) Commissioner State Tax-cum-Secretary, Bihar, Patna