Dissecting the Legality of IGST on Ocean Freight for FOB Imports: Refund of IGST

Deciphering Legal Judgments: A Comprehensive Analysis of High Court Judgment on  Validity of IGST Levy on Ocean Freight for FOB Imports

Reported as:

2024 (10) TMI 492 - GUJARAT HIGH COURT

1. INTRODUCTION

This article delves into the legal intricacies surrounding the levy of Integrated Goods and Services Tax (IGST) on ocean freight charges for imports made on a Free on Board (FOB) basis. The core issue revolves around the constitutional validity of Entry No. 10 of Notification No. 10/2017-Integrated Tax (Rate) dated 28.6.2017, which imposed IGST on ocean freight charges for imports, even when IGST had already been paid on the value of goods, including freight charges.

The article examines the contentions put forth by the petitioner, a private limited company engaged in the import of coking coal, challenging the withdrawal of a previously sanctioned refund of IGST paid on ocean freight charges for FOB imports. The petitioner argues that the levy of IGST on ocean freight charges for FOB imports is ultra vires the provisions of the IGST Act and violates Articles 14 and 265 of the Constitution of India.

2. ARGUMENTS PRESENTED

Petitioner's Contentions:

• The petitioner imported coking coal on both Cost, Insurance, and Freight (CIF) and FOB basis, paying IGST on the total value of imports, including freight charges, at the time of clearance for home consumption.
• Entry No. 10 of Notification No. 10/2017-Integrated Tax (Rate) required the petitioner to pay IGST on freight charges for transportation of goods by vessel from a place outside India, even though IGST had already been paid on the total value of imports, including freight.
• Relying on the Supreme Court's judgment in Union of India v. Mohit Minerals Private Limited [2022 (5) TMI 968 - SUPREME COURT] , the petitioner claimed a refund of IGST paid on ocean freight charges, which was initially sanctioned by the concerned authority.
• The petitioner argued that the ratio of the Mohit Minerals judgment applies to both CIF and FOB contracts, as IGST is levied on the value of imported goods, which includes freight charges, u/s 5(1) of the IGST Act read with the Customs Act provisions.

Respondents' Arguments:

• The respondents contended that the Supreme Court's decision in Mohit Minerals [2022 (5) TMI 968 - SUPREME COURT]  was limited to CIF contracts and did not address FOB contracts.
• They argued that the petitioner had availed services by paying freight charges for the importation of goods on FOB basis and, therefore, was liable to pay IGST on the ocean freight amount.
• The respondents relied on the analysis in paragraph 78 of the High Court's judgment in Mohit Minerals, which drew a distinction between CIF and FOB transactions concerning the taxability of ocean freight.

3. COURT DISCUSSIONS AND FINDINGS

The High Court examined the provisions of the IGST Act and the Customs Act, considering the decisions of the Supreme Court in Mohit Minerals and the Bombay High Court in M/s. Agarwal Coal Corporation Pvt. Ltd [2024 (3) TMI 1265 - BOMBAY HIGH COURT].

The court observed that Section 5(1) of the IGST Act, read with Sections 12 and 14 of the Customs Act, mandates the levy of IGST on the value of imported goods, which includes the cost, freight, and insurance charges at the place of importation. Consequently, once IGST is paid on the value of goods, including freight charges, the nature of the transaction (CIF or FOB) becomes irrelevant for the purpose of IGST levy.

Relying on the Supreme Court's decision in Mohit Minerals [2022 (5) TMI 968 - SUPREME COURT]  and the Bombay High Court's judgment in M/s. Agarwal Coal Corporation Pvt. Ltd., [2024 (3) TMI 1265 - BOMBAY HIGH COURT] the court held that when the notification itself (Entry No. 10 of Notification No. 10/2017-Integrated Tax (Rate)) has been struck down, the respondent authorities cannot insist on levying IGST on ocean freight charges for FOB imports.

4. ANALYSIS AND DECISION

The High Court concluded that the levy of IGST on ocean freight charges for FOB imports is not valid, as Notification No. 10/2017 has been struck down by the court and upheld by the Supreme Court. The court reasoned that once IGST is paid on the value of imported goods, including freight charges, as per Section 5(1) of the IGST Act read with the Customs Act provisions, the distinction between CIF and FOB transactions becomes immaterial for the purpose of IGST levy.

Consequently, the court allowed the petition, quashed the impugned order withdrawing the refund of IGST paid on ocean freight charges for FOB imports, and held that the respondent authorities cannot insist on levying IGST on ocean freight charges for FOB imports.

5. DOCTRINAL ANALYSIS

The court's decision reinforces the principle that the levy of IGST on imported goods is governed by the provisions of the IGST Act and the Customs Act, which mandate the inclusion of freight charges in the value of imported goods for the purpose of IGST calculation. The court upheld the doctrine of fiscal neutrality, ensuring that importers are not subjected to double taxation by paying IGST on freight charges twice - once as part of the value of imported goods and again separately on ocean freight charges.

The court's reliance on the Supreme Court's decision in Mohit Minerals and the Bombay High Court's judgment in M/s. Agarwal Coal Corporation Pvt. Ltd. highlights the evolution of jurisprudence in this area. These decisions have established that the distinction between CIF and FOB contracts is irrelevant for the purpose of IGST levy on ocean freight charges, as long as IGST has been paid on the value of imported goods, including freight charges.

The court's application of the principles established in these precedents underscores the importance of consistent interpretation and application of legal principles across jurisdictions, promoting uniformity and certainty in the taxation regime.

Full Text:

2024 (10) TMI 492 - GUJARAT HIGH COURT