9911796707
TMI Blog2018 (9) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... t the question raised in the Application is neither decided by nor pending for decision before any authority under any provisions of the GST Act. The officer concerned has not objected to admission of the Application. The Application is, therefore, admitted. 2. Indian Oil Corporation has its Registered Office in Mumbai, and is operating through its various offices, including its depots, terminals, LPG bottling plants, spread across India and are registered under the Goods and Services Tax, 2017, in all the States/Union Territories of India, except in the Union Territory of Lakshwadeep. Since each unit has separate and independent registration under the GST Act, such units are to be considered as "distinct persons" in terms of Section 25(4) of the GST Act. The GST registration in the state of West Bengal is 19AAACI1681G1ZM. For purpose of this Advance Ruling the West Bengal Unit of Indian Oil Corporation, holding GSTIN 19AAACI1681G1ZM, will be considered as the Applicant. 3. The Application states that: a. The Applicant exports HSD, ATF and other refined petroleum products to Nepal under the terms and conditions laid down in an agreement dated 27/03/2017 (hereinafter referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption. It is export within the meaning of Section 5 of the CST Act. Supply to the Bihar unit of Indian Oil Corporation by the Applicant is, therefore, zero rated supply within the meaning of section 16(1)(a) of the IGST Act, and input tax credit is admissible under section 16(2) of the IGST Act notwithstanding that such supply may be an exempt supply. 5. The officer concerned opposes the argument of the Applicant on the grounds that the goods have been transferred to a warehouse in Bihar and subsequently exported from the said warehouse. This is essentially a case of stock transfer of non-taxable goods of Indian Oil Corporation from its West Bengal Unit to its Bihar Unit, (these two units are registered as distinct persons under the GST Act), and as GST is not levied on the goods so transferred to Bihar, the supply to the Indian Oil Corporation's Bihar Unit is exempt supply for the Applicant and no input tax credit is available thereon. This is in accordance to Section 17(2) of the GST Act. 6. The officer concerned also states the goods, when exported from the warehouse in Bihar is zero rated supply, and Indian Oil Corporation Ltd has admittedly reported the export in the returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in course of export in terms of Section 5 of the CST Act. 8. The main issues which need to be considered in the Application can be briefly summarized as follows: a. Whether or not the products transported and supplied by the Applicant are "non- GST products", "non-taxable supplies" "exempt supplies" or "zero rated supply of goods" b. Whether the transportation to Raxaul warehouse is to be considered to be for export of supply to Nepal or transfer of goods to Indian Oil Corporation's Bihar Unit for ultimate export to Nepal. 9. Art 366 of the Constitution has been amended by the 101st Amendment of the Constitution and clause 12A inserted, which defines GST as tax on supply of goods and services or both except taxes on supply of alcoholic liquor for human consumption. It does not exclude petroleum products, namely petroleum crude, HSD, ATF, petrol and natural gas, from the ambit of GST. However, under clause 5 of Art 279A of the Constitution these goods shall not be subject to the levy of GST till a date notified on recommendation of the GST Council. Provisions of section 9 (2) of the GST Act gives expression to this arrangement. This leads to introduction of the concept of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e place of supply of goods exported from India shall be, under section 11(b) of the IGST Act, the location outside India. Clearly, export as defined under section 5(3) of the CST Act, is not relevant under the GST. The defining character of an export transaction both under section 5(1) of the CST Act and section 2(5) of the IGST Act is that it occasions movement of the goods to a place outside India. 12. In the present context, the question, therefore, boils down to whether movement of goods from Haldia Refinery terminates at Raxaul Depot in Bihar when it takes delivery from the Railways, or continues after trans-shipment to other modes of transport for taking it out of India to Nepal. The goods are supplied to the recipient (in this case the Bihar Unit) in India if the movement terminates at Raxaul. In such cases it will be an inter-state supply to a distinct person as defined under section 25(4) of the GST Act, and the place of supply shall be determined under section 10(1)(a) of the IGST Act. If, however, Raxaul Depot is a mere transit point for trans-shipment of goods being moved from Haldia Refinery under specific export order, it will be export of goods from the West Bengal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B-3 Bonds before the Assistant Commissioner of Central Excise, Muzaffarpur Division, Bihar, for export of goods from the warehouse in terms of clause 4.2 of the above Circular. The Applicant can remove goods from Haldia Refinery without paying duty for transfer to Raxaul Depot on the strength of the Bond so executed. The concerned Central Excise Authority in Bihar shall issue certificate of removal in Form CT-2 indicating the details of the Bond executed by the exporter. The exporter fills up the relevant information in CT-2 and makes provisional debit in the Running Bond Account equivalent to the duty payable. The consignor (i.e. Haldia Refinery) prepares an application for removal in Form ARE-3, indicating the serial number of the corresponding CT-2. On receipt of the goods at Raxaul Depot the officerin- charge of the warehouse countersign the ARE-3 and dispatch it to the Haldia Range Excise Authority as proof of re-warehousing of the goods. At the exporter's end the provisional debit in the Running Bond Account is converted into actual debit. If the goods received under ARE-3 are to be exported, an application for export in ARE-1 is to be prepared and submitted to the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not moved from Haldia under specific export order and can be either cleared for home consumption or exported. It is, therefore, far from a mere transit point, but the point of storing and final clearance. The final clearance being made from the export warehouse at Raxaul, it is the Bihar Unit that is responsible for export or payment of duty if diverted to home consumption. In fact, Indian Oil Corporation Ltd admittedly reports the export in the GST returns of his Bihar Unit and not in the ones for the West Bengal Unit. If it were to be treated as export of the West Bengal Unit, 'export' reported would have widely varied with the actual export measured on the basis of PDOs and lifting from the supply point at Raxaul. Clearly, the transportation from Haldia to the export warehouse at Raxaul is no measure of actual export. The Applicant himself is well aware of the anomaly and has not reported in his returns the transaction as export under section 5 of the CST Act either. Apparently, the Applicant's arguments are at variance with what he and the Bihar Unit have reported in their returns under both the CST Act and the GST Act. 19. The Applicant refers to a few judgments in support ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
