TMI Blog2019 (7) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... rch institution as provided in Notification No-51/1996-Customs, dated 23.07.1996 read with Notification No-43/2017-Customs dated 30.06.2017 and ruled accordingly for being entitled to the exemption from levy of IGST on import of specified goods as listed under column (3) of the aforesaid notification. Non-applicability of Notification no 51/1996-Customs, dated 23.07.1996 as amended - OEM suppliers of imported equipments - HELD THAT:- The Appellant is before us but not OEM suppliers of the Appellant. The relevant contract/ agreement/ purchase order of the Appellant with the OEM supplier, purchase order of the OEM supplier with the overseas supplier, import documents such as invoice, bill of lading, and import general manifesto are not part of the Appeal Memorandum. In the absence of such documents, it is not possible on our part to examine the status of the Appellant vis- -vis the OEM supplier, when import undertaken through such supplier. Further, OEM suppliers of the Appellant are not party to this appeal. Therefore, we are refraining ourselves to pass any specific order with respect to import by such OEM supplier. The AAR, Odisha in their rulings ordered in favour of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are procured through the OEM Agents in India, the OEM Suppliers of such Imported Equipments have charged IGST @ 28% from 01.07.2017 and IGST @ 5% with effect from Dt: 14.11.2017, consequent upon NN-47-1GST-Rate, Dt: 14.11.2017. 2.3. The Central Government vide NN-45-CGST-Rate and NN-47-1GST-Rate, Dt: 14.11.2017, allowed the concessional GST/IGST Rate of 5% in respect of goods specified as per Column-(3) of the said Notification procured by the Eligible Institutions specified in Column-(2) subject to such conditions as specified under Column-(4) of the said Notification. 2.4. The Appellant is of the view that it is not intended by the statute on a combined reading of NN-51/ 1996-Customs, Dt: 23.07.1996, NN-43/2017-Customs, Dt: 30.06.2017 and Minutes of the Meeting of the 14th GST Council, Dt: 18th/19 th May, 2017 to charge 28% /5% IGST by the Imported Equipment Suppliers which is becoming a cost to them for which they are in dispute with such OEM suppliers of Imported Equipments. It is their submission that they are being charged with higher tax than what is mandated by the law during the period from 01.07.2017 to 14.11.2017 at 28% IGST and thereafter at 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Notification No. 43/2017-Customs, DT: 30.06.2017 to OEM Suppliers needs to be examined as per the facts and circumstances of the case. In this case, the OEM supplier is a supplier located in India and the supply of equipments by such supplier to the specified Research Institutions is undeniably a case of domestic supply. The nature of such domestic supply can be intrastate or interstate depending on the location of such supplier. The equipments supplied might have been imported from other countries and such import might be with the sole intention of supply to some pre-determined Research Institutions, which might be entitled for IGST exemption provided through the aforesaid Notifications, such as the Appellant. In spite of that, such preceding import or the intent behind such import will not alter the nature of the transactions. In other words, there are two consecutive transactions such as (i) import of equipments by the OEM suppliers of his own and (ii) supply of such equipments to some pre-determined or post determined Research Institutions who otherwise qualify for IGST exemption on imports. In the aforesaid case, for the import of equipments by the OEM supplier IGST will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duly vetted by the GST Council. However issues pertaining to rate of tax and tax concessions/ exemptions have to be as per the statutory notifications. 4.5. The last question of the Appellant was whether the concessional rate of GST/IGST at the rate of 5% vide Notification No-45-CGST (Rate), Dt: 14.11.2017 and Notification No-47-IGST(Rate), Dt: 14.11.2017 are applicable only for supply of specified indigenous equipments to the eligible Institutions fulfilling conditions as specified under Column-(4) of the said notification with effect from 15.11.2017. In this regard, it is clarified that Government of India, Ministry of Finance (Department of Revenue) vide the aforesaid notification exempts in excess of 5% (2.5% in case of CGST) the specified goods as listed under column (3) of the said notification to specific institutions subject to the conditions as specified in the corresponding entry in column(4) of the said notification. The said notifications do not distinguish between imported and indigenous goods. The specified goods are (a) Scientific and technical instruments, apparatus, equipment (including computers); (b) accessories, parts, consum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered to the specified Institutions are also exempted from IGST levy. ii. That the AAR erred in concluding vide its Third Ruling that the Concessional rate of GST/IGST at 5% vide Notification No-45-CGST (Rate), Dt: 14.11.2017 and Notification No-47-1GST (Rate), Dt: 14.11.2017 are applicable for goods mentioned at para-6.3.0 as above whether imported or indigenous, since Goods imported by or delivered to the specified Institutions are exempted from levy of IGST vide Notification no-51/ 1996-Customs, Dt: 23.07.1996 read with Minutes of the 14th GST Council Decision. iii. The AAR did not consider the submission of the Appellant that, the Explanation to Section-6 of IGST Act and Section-II of the CGST and OGST Act, 2017 provides that, No Registered person shall collect tax in excess of the effective rate, which is unlawful and therefore liable to be reversed. iv. The Rulings of the AAR, Odisha is contrary to the intent of the Notification No-51/1996-Customs, DT: 23.07.1997 read with Minutes of the 14th GST Council Decisions, which is bad in law and liable to be reversed. 7.0. During the course of hearing on 03.06.2019, Shri Pram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isha observed that the appellant satisfies the requirement of being a Public funded research institution as provided in Notification No-51/1996-Customs, dated 23.07.1996 read with Notification No-43/2017-Customs dated 30.06.2017 and ruled accordingly for being entitled to the exemption from levy of IGST on import of specified goods as listed under column (3) of the aforesaid notification. 8.3. As regards non-applicability of Notification no 51/1996-Customs, dated 23.07.1996 as amended to the OEM suppliers of imported equipments as ruled by the AAR, Odisha, we are of the view that in this Appeal the Appellant is before us but not OEM suppliers of the Appellant. The relevant contract/ agreement/ purchase order of the Appellant with the OEM supplier, purchase order of the OEM supplier with the overseas supplier, import documents such as invoice, bill of lading, and import general manifesto are not part of the Appeal Memorandum. In the absence of such documents, it is not possible on our part to examine the status of the Appellant vis- -vis the OEM supplier, when import undertaken through such supplier. Further, OEM suppliers of the Appellant are not party to this appeal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
