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TMI Blog2022 (7) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... and other Maritime Zones Act, 1976, and the air space above its territory and territorial waters. For the purpose of CGST Act, India extends upto the Exclusive Economic Zone upto 200 nautical miles measured from the appropriate baseline. On going through the definition of customs frontiers of India under s2(4) of the IGST Act, 2017, we find that it has reference to the customs area as defined in section 2 of the Customs Act, 1962. In terms of s2(11) of the Customs Act, 1962 customs area means the area of a customs station or a warehouse and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities - Notwithstanding the aforesaid, Section 15 of the IGST Act, 2017 is applicable to tourists leaving India and any supply of goods taken out of India by him shall be refunded in the manner prescribed. As per Explanation appended to Section 15 of the IGST Act, 2017 tourist means a person not normally resident in India, who enters India for a stay of not more than six months for legitimate non-immigrant purposes. This section is yet to be operationalized and the payment of IGST will be refunded to the tourist as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant's concerned retail outlet is in the Security Hold Area on crossing the Customs Immigrations with the address - Shop No. INS-18, SHA Area, International Departure, Terminal-3, IGI Airport, New Delhi-110037. The said outlet is permitted to function beyond the Customs Area and within the Security Hold Area of the IGI Airport vide an arrangement with the Delhi International Airport Private Limited, dated 06.06.2016. The Concept and Category of the applicant under the said agreement being Retail and Sunglasses and the brand - Sunglass Hut , which is a retail brand of the International group Luxotica. For the purposes of sale from the said outlet, the applicant procures supplies from the Sunglass Hut brand owner M/s Luxottica India Private Limited, Gurgaon, after payment of integrated Tax (Inter-State Supply form Gurgaon to Delhi) @ 28%. The sunglasses procured from the supplier are further supplied by the applicant to the International passengers travelling to outside India against a valid international boarding pass. The applicant supplies goods only to such passengers which have a valid international boarding pass. In few instances, where domestic passengers are travelling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE APPELLANT 5. That an application under section 97(2)(e) of the DGST Act, 2017 was moved before the Authority for Advance Ruling, Delhi on the question of the above supply being zero rated or not. 5.1 The appellant submitted that the Ld. Authority had not considered the judicial legacy of the term Customs Frontiers of India and which is very vital for deciding the issue. That, simply put the definition of 'export' under Section 2(5) of the IGST Act defines a procedure for export and which is taking goods out of India to a place outside India. The definition of `export' is couched in such a manner that the words crossing customs frontiers of India are embedded in the definition itself- as no goods can be taken out of India to a place outside India unless the customs are crossed. Hence for all practical purposes, definition of export can also be read as taking goods after crossing customs frontiers of India to a place outside India . The definition of customs frontiers of India under section 2(4) of the IGST Act is not co-terminus with the territorial extent of India and thus it cannot be equated with definition of India given in section 2(56) of the CGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid definition of customs frontiers of India also finds place in section 2(4) of the IGST Act and hence there was no reason for the Authority to take a different view of the words India in the definition of export in the impugned ruling and roll back the interpretation to the point when Daver's case was decided. In fact on the parity of the reasoning above, there is no change in the pre GST and post GST regime as far as the tax on goods after crossing the customs frontiers of India is concerned. 5.4 That, the significance of location of the appellant's retail outlet and the resultant supply of goods taking place beyond the customs frontiers of India (as also agreed by the Ld Authority) is purely evidentiary in nature. The Security Hold Area (SHA) and which is situated beyond the Customs frontiers is not accessible to each and every person. The access to the SHA is strictly regulated by the Airport Authorities and it allows access only to international passengers having a valid international boarding pass and to the person employed therein or to persons authorised by such employees. The supply of goods by the appellant to such international passengers is a substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g co-terminus with the territorial waters by invoking section 2(56) of the CGST Act and section 2(27) of the Customs Act is in complete ignorance to the definition of Customs Frontiers of India in section 2(4) of the IGST Act and its relevance to the definition of `export' under section 2(5) of the IGST Act and the interpretation in the ruling dates back the ruling to a period when the meaning to the words Customs Frontiers of India was not defined. The rich judicial legacy on the issue of territorial extent while dealing with the export/import sales has not been relied upon in the impugned ruling. The crux of the matter is, that, the words 'taking goods out of India to a place outside India' mentioned in the definition of export u/s 2(5) of the IGST Act are synonymous with the words crossing customs frontiers of India and the term Customs frontiers of India is defined in section 2(5) of the IGST Act hence recourse to definition of 'India' in the impugned ruling is uncalled for and erroneous. 6.4 The observation in the impugned Ruling to the effect, that, the transaction ought to have taken place beyond the territories of India and not within the geog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally procured on payment of CGST/SGST or IGST and supplied from the Outlet of the Appellant to international outbound passengers do not attract the levy of CGST/SGST or IGST and qualifies as export as defined under Section 2(5) of the IGST Act. As per Section 2(5), export is defined as taking goods out of India to a place outside India. It may be noted that export has been defined in an identical manner under Section 2(18) of the Customs Act. In the case of Lucas TVS v. Assistant Commissioner of Customs, Madras 1987 (28) ELT 266 (Mad. HC), it was held by the Hon'ble Madras High Court that in order to constitute 'export', it is not necessary for the goods to move beyond the territorial waters and once the goods are beyond the control of the person, the goods must be described as exported and were on their way to the country of destination. It is submitted that the meaning of export as explained in the context of the Customs Act will be applicable to the IGST Act as well. Here, it may be noted that supplies are made to the outbound passengers only after scanning the boarding pass recording inter alia the destination outside India where the passenger is traveling. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunicated to the appellant. Section 169 of the CGST Act prescribes the modes of service of orders. It is seen from the records available in the office of the Advance Ruling Authority that the Advance Ruling order was received by the appellant on 10.04.2018 and an appeal against the same was filed on 08.06.2018. 7.1 In the Form ARA-02, the appellant has stated that the date of communication of the advance ruling order is 08.06.2018. Clearly the appeal has been filed within the prescribed time period of thirty days from the date of communication of the order and has been filed well before the issuance of Notification dated 03.09.2019 vide F.3(6)/Fin.(Rev.-I)/2018-19-DS-V1/389 wherein the Chief Commissioner of Central Tax, Delhi and Commissioner of State Tax are Members 8. We have given our thoughtful consideration to the issue raised before us and we find the issue in this appeal is limited as to whether the sales effected from the Security Hold Area of the IGI Airport, T-3, New Delhi tantamount to export of goods and are well within the definition of export of goods under the IGST Act, 2017. 9. It is essential that the relevant definitions under the provisions of IGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside India; (20) exporter , in relation to any goods at any time between their entry for export and the time when they are exported, includes any owner, beneficial owner or any person holding himself out to be the exporter; (27) India includes the territorial waters of India; (28) Indian customs waters means the waters extending into the sea up to the limit of Exclusive Economic Zone under section 7] of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976) and includes any bay, gulf, harbour, creek or tidal river; 9.1 We find that as per Section 2(5) of the Integrated Goods and Services Tax Act, 2017, export of goods with its grammatical variations and cognate expressions, means taking out of India to a place outside India. Further, as per Section 2(56) of CGST Act, 2017 India means the territory of India as referred to in article 1 of the Constitution of India, its Territorial Waters, Seabed and Sub-oil underlying such waters, Continental Shelf, Exclusive Economic Zone (EEZ) or any other maritime zone as referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Section 15 of the IGST Act, 2017 is applicable to tourists leaving India and any supply of goods taken out of India by him shall be refunded in the manner prescribed. As per Explanation appended to Section 15 of the IGST Act, 2017 tourist means a person not normally resident in India, who enters India for a stay of not more than six months for legitimate non-immigrant purposes. This section is yet to be operationalized and the payment of IGST will be refunded to the tourist as per the procedure to be prescribed. 11. In the context of the aforesaid findings of ours, we would like to repel the arguments of the appellant that they should be treated on par with Duty Free Shops(DFS) and the judgments rendered and relied upon pertain to pre-GST era and do not come to the aid of the appellant. 12. We would like to buttress our findings by relying on the judgment of the Nagpur Bench of the Hon'ble Bombay High Court in the case of A1 Cuisines Private Limited Vs. Union Of India, and State of Maharashtra, reported at 2018 (12) TMI 1278 - Bombay High Court wherein the issue in the Writ under reference was similar to that of the issue being dealt with by us. The Hon'ble H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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