Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

GST UPDATE ON HIGHLIGHTED RULING ON MERCHANT TRADE TRANSACTION BY GUJARAT AAR 76/2020-21

GST UPDATE ON HIGHLIGHTED RULING ON MERCHANT TRADE TRANSACTION BY GUJARAT AAR 76/2020-21
GST UPDATE ON HIGHLIGHTED RULING ON MERCHANT TRADE TRANSACTION BY GUJARAT AAR
Currently, two subjects are matter of discussion among the tax professionals; GST registered taxpayers and varied educated class of persons i.e. Corona and AAR rulings in GST regime. The effects of Corona has been eye witnessed by everyone and likewise AAR rulings are also highlighting the front page of the newspapers, websites etc.
 In a recent advance ruling in case of M/s. Sterlite Technologies Ltd, Gujrat AAR
GST is payable on goods sold to customer located outside India, where goods are shipped directly from the vendor’s premises (located outside India) to the customer’s premises.
The applicant is engaged in the development and supply of software with respect to the telecommunication qua wi-fi service management platform. OSS/BSS alongside packet core with the flexibility of modular and pre-integrated offerings etc. and trading in hardware.

They procure requisite hardware from the vendor located within India or outside India on payment of applicable duties/taxes. Such hardware is sold as per the requirement of the customer on payment of GST, except in case of export.

The applicant proposed to undertake transaction and supply of hardware, commercially known as ‘Merchant Trade Transaction’, wherein the applicant will receive an order from the customer located outside India, and as per their instruction, Vendor would directly ship the goods to a customer located outside India.

The vendor would issue an invoice on applicant against which payment would be made in foreign currency and the applicant would raise invoice on customer and would receive consideration in foreign currency.

In the above transaction, goods would not physically come into India but would move from place outside India to another place outside India.

The applicant has in their application dated 24.5.2018 raised the following issues for determination before the Authority:

i) Whether GST is payable on goods procured from a vendor located outside India in a context where the goods so purchased are not brought into India?

ii) Whether GST is payable on goods sold to customers located outside India, where goods are shipped directly from the vendor’s premises (located outside India) to the customer’s premises?

The AAR referred to provisions under CGST Act and observed that the term ‘export of goods’ has been defined under sub section 5 of Section 2 of IGST Act, 2017 which reads as under: Export of goods would mean—‘With its grammatical variations and cognate expressions, means taking goods out of India to a place outside India’.

The above definition indicates that the act of taking goods out of India to a place outside India qualifies as export. In the instant case, the goods have not crossed the Indian customs frontier and as such it is clear that the goods are not physically available in the Indian Territory.

When the goods are not available in the Indian Territory, the question of taking goods out of India does not arise. Thus, the subject transaction does not qualify as export of goods.

In the instant case, the applicant is selling goods for a consideration in the course or furtherance of business and as such the transaction tantamount to ‘supply’ in terms of the definition of ‘supply’. In the event that the supplier is located in India and the place of supply is outside India, such supplies shall be treated as Inter-stated supplies.
In view of the above, it appears that the transaction is covered under the ambit of Inter-state supply and is neither exempted nor covered under the export of services. Thus, the theory of elimination takes us to the conclusion that such supplies will be subject to the levy of IGST.

Thus, AAR affirmed that (i) GST is not payable on goods procured from a vendor located outside India, where the goods so purchased are not brought into India.

ii) Applicable GST is payable on goods sold to a customer located outside India, where goods are shipped directly from the vendor’s premises (located outside India) to the customer’s premises.
From the decisions cited above, the point of discussion arises in case of second question answered by the authority.
The Authority refers to Section 7 of the CGST Act, 2017 which defines the term ‘Supply”. But it refers to only sub-section (1) of Section 7 and omits to refer or to see sub-section (2) of Section 7 which begins with a non obstante clause and, thus, has an overriding effect over sub-section (1). It provides that activities or transactions specified in Schedule III shall be treated neither as a supply of goods nor a supply of services. The above discussed ruling seems to be incorrect since it does not considers all the provisions of the amended law in GST Act. Paragraph 7 to the Schedule-III to the CGST Act 2017; amended by CGST (Amendment) Act 2018, is reproduced states that
“Supply of goods from a place in the non-taxable territory to another place in the non-taxable territory without such goods entering into India”.
It can be seen that the above case of Sterlite Technologies Ltd clearly falls under the para 7 as mentioned above. Therefore, it should not be treated as supply under the provisions of the law. While ruling was pronounced, this para to Schedule III is ignored completely. The assessee should move its file to Court for immediate relief from the ruling imposed on the transaction which is out of GST purview.
In our opinion, since the applicant has filed application for determining the liability by AAR before the introduction of CGST Amendment Act, 2018, there is high probability that this provision was not taken into consideration. The ruling must have been determined in respect of transactions undertaken before prospective amendment was made in Para 7 of Schedule III. However, since this ruling has not specified about the period of applicability; the government should come into role and provide some clarifications to re build the trust of AAR rulings among the taxpayers.
This is solely for educational purpose.
You can reach us at www.capradeepjain.com, at our facebook page on https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/as well as follow us on twitter at https://www.twitter.com/@capradeepjain21.
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com