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2020 (9) TMI 981 - HC - GSTLevy of CGST and IGST - Duty Free Shops (DFS) at Airport - Refund of the Input Tax Credit - supply of goods and services effected by the petitioner in the arrival and departure Duty Free Shops (DFS) at Calicut International Airport in terms of the Concession Agreement - 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 the rules thereunder - levy of CGST and IGST on the revenue sharing in terms of the Concession Agreement dated 22.04.2016. HELD THAT:- 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 the Circular dated 29.06.2020 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 the case of SANDEEP PATIL, FLEMINGO TRAVEL RETAIL LIMITED & ANR., VERSUS UNION OF INDIA AND OTHERS. [2019 (10) TMI 360 - BOMBAY HIGH COURT] - Once there is no dichotomy regarding the contents of letter and as well as the reference of circular in the judgment, then 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 - 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. 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. GST will not be applicable. Petitions allowed.
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