TMI Blog2019 (7) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... or transactions which shall be treated neither as a supply of goods nor supply of services. Clause 8(a) of the Schedule mentions Supply of warehoused goods to any person before clearance for home consumption . Clearance from Bonded Warehouses to the vessels - HELD THAT:- The goods in a Bonded Warehouse has not been cleared for home consumption. Clause 8(a) mentioned above would cover the situation mentioned at I above and therefore we are of the opinion that the present supply in such a case will fall under Schedule III of CGST Act. Clearance from Non-Bonded Warehouses to the vessels - HELD THAT:- The imported goods would have been cleared to such non-bonded warehouses on payment of appropriate IGST/Customs duty and therefore the supply in such a case as in (2) above Will not fall under Schedule III of CGST Act. Whether the supply will be termed as Exports of Goods? - If No, then what will be the supply? - whether Intra State or Inter state and which Tax will be levied CGST and SGST or IGST? - Scope of Advance Ruling - HELD THAT:- We find that their main question is whether the transaction effected in the present case can be considered as exports - this question is not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE APPLICANT The submissions, as reproduced verbatim, could be seen thus- Brief Fact of case: Wilhelmsen Maritime Services Pvt Ltd (herein after referred to as WMSPL ), has the largest maritime services network in the world supplying a wide portfolio of maritime goods and Services worldwide to every conceivable vessel type, in every market and region. WMSPL has three major business activities: (A). Maritime Products; (B). Ships Agency and (C). Maritime Logistics. A. Brief description about 'Marine Products Activity: What is Maritime Products? Marine Products consists of Cleaning chemicals, Gases, Water testing and treatment solutions, Lubricants, Welding equipment, Firefighting solution and other spares which are required for the ship's maintenance, consumption etc. Purchase and sale of Marine Products WMSPL procures goods from its parent company formerly known as Wilhelmsen Ships Service AS, Oslo (W SS AS) having an establishment outside India. Goods procured from the WSS AS are stored either at the Bonded warehouse or Non-B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipping bill at the relevant port. 8. WMSPL delivers the goods on board and obtains vessel's acknowledgment on delivery note. II. The goods can be delivered from the Non-Bonded Warehouse by paying the Duty: Steps : 1. WMSPL receives the order from the customer. 2. WMSPL prepare the Delivery note and Invoice to file it in customs. 3. WMSPL files the Shipping bill at the relevant port. 4. WMSPL delivers the goods on board and obtains vessel's acknowledgment on delivery note. III. The goods can be delivered from the Bonded Warehouse in Bond: Steps: 1. WMSPL receives the order from the customer. 2. Based on the order WMSPL checks if the vessel is not on foreign run/ or if vessel s Present port of call is not within 90 Kms radius from the Bonded warehouse. 3. WMSPL prepare the Delivery note and Invoice to file it in customs. 4. Customs will issue an ex-bond document to WMSPL. 5. WMSPL collects the goods from the warehouse and the delivers the goods to the vessel. 6. WMSPL files the Shipping bill at the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut payment of duty, be consumed thereon as stores during the period such vessel or aircraft is a foreign-going vessel or aircraft. Section 88(a) of the Indian Customs Act, 1962 : for the words exported to any place outside India or the word exported , wherever they occur], the words Taken on board any foreign going vessel or aircraft as stores shall be substituted. Section 69 of the Customs Act provides for clearance of warehoused goods for export and Chapter X of the Customs Act provides for drawback on re-export of duty paid goods or imported materials used in manufacture of goods which are exported. By virtue of section 88 of the Customs Act, the benefit of section 69 and Chapter X has been extended to stores which are taken on board a foreign going vessel or aircraft. Definition of exports - Excise Duty: Rule 18 of the Central Excise Rules, 2002 relating to rebate of duty paid on goods exported, has an explanation as below: [ Explanation . - For the purposes of this rule, export , with its grammatical variations and cognate expressions, means taking goods out of India to a place outside India and incudes shipment of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 2. Prepare CHECKLIST for shipping bill. 3. Send Checklist of shipping bill to WSS for approval once it is approved then we have to file and generate shipping bill number. 4. Submit docs into customs for clearance along with request letter. 5. Coordinate with vessel agent for vessel detail (for ETA, ETB and ETD). 6. We have to arrange seal truck for taking forwarding and passing of shipping bill as per vessel planning. 7. Give one Delivery note and Order confirmation copy to driver to get receiving copy from vessel agent or vessel depends on order. 8. Give one DN copy to warehouse for record purpose 9. Submit I acknowledged DN copy to customs, for closure of the Bond Entry. Question(s) on which advance ruling is required The advance ruling is sought to confirm whether this supply will fall under Schedule III of CGST Act . B. Supply of goods from non-bonded warehouse or from bonded warehouse after clearance With Duty Shipment (In-bond BOE filing). This process is used when the delivery is urgent. (shipping bill is filed for supply of goods on board vessel) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.7.2017 levied and paid GST under protest on all its Maritime products supplies. If the supply is exports as per section 16 than, will WMSPL will be liable to claim refund for zero rated supply i.e. exports? Q.3) If at all taxable, whether the tax will be levied as intra-state or interstate supply? Submission of this office with respect to the queries raised by WMSPL is as follows Q 1) Whether the delivery of goods to the owner of the ship proceeding to foreign port at this Indian port is an export of goods as per the sec. 16 of the IGST Act 2017? 1. With respect to question 1, this office submits as below : i. Taxable territory is defined in Sec. 2(109) as territory to which the provisions of this Act apply. Non Taxable Territory is defined in Sec. 2(79) as territory outside the taxable territory. As per Sec. 1(2) of CGST Act, the Act extends to the whole of India and as per Sec. I (2) of MGST Act it extends to whole of State of Maharashtra. India has been defined under section 2(56) as : (56) India means the territory of India as referred to in article 1 of the Constitution, its territorial waters, seabed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that supply of goods to the international passengers going abroad from retail outlet situated in Security Hold Area of IGI Airport cannot be treated as export and taxable person is liable for GST. v) The MGST Act, CGST Act and IGST Acts are collectively codes in themselves and it is not permissible to borrow any provisions of other laws such as Customs Act or Central Excise Act, for affecting the applicability of the MGST Act, CGST Act and IGST Acts not warrant exemption to be applied to supplies liable to tax under such laws. If exemption or non-applicability of laws of the MGST Act, CGST Act IGST Acts are to be claimed, the same must be found in the said MGST Act, CGST Act IGST Acts and not outside. vi) Proviso to Section 5(1) of IGST nor Sec. 3 of Custom Tariff Act 1975 does not in any manner establish the transactions of ship chandelier to be export nor it is correct to say that exemption under Custom Act can be said to be ipso make supply by applicant exempt from GST levy. Hence in no case the sale by the applicant to ship stationed in Indian port, may or may not be destined to Foreign port can qualify as export of goods. Q.2) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peared. The application was admitted and called for final hearing on 07.06.2019. Sh. Pranav Mehta, C.A appeared, made oral written submissions. Jurisdictional Officer Smt. Gitanjali Temgire, Dy. Commissioner of S.T.,(E-629) LTU-3, Mumbai appeared and made both, oral and written submissions. We heard both the parties. 05. OSERVATIONS AND FINDINGS: We have gone through the facts of the case, documents on record and written submissions made by both, the applicant as well as the jurisdictional office. The applicant, registered under the GST Act, imports and supplies goods like Marine Products , which are required for the ship's maintenance, consumption etc. Applicant imports the aforesaid Marine Products from its parent company formerly known as Wilhelmsen Ships Service AS, Oslo (W SS AS) situated abroad. The goods so procured from out of India are stored either at Bonded warehouses or Non-Bonded Warehouses. The applicant sells these imported goods from the warehouses to its customer viz. Owner or Operator of the ship proceeding to a foreign port invoices the owner/operator of the ship. Delivery of the goods is given at the vess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployee before the commencement of this clause. 4. Services of funeral, burial, crematorium or mortuary including transportation of the deceased. 5. Sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building. 6. Actionable claims, other than lottery, betting and gambling, 7. 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. 8. (a) Supply of warehoused goods to any person before clearance for home consumption; (b) Supply of goods by the consignee to any other person, by endorsement of documents of title to the goods, after the goods have been dispatched from the port of origin located outside India but before clearance for home consumption. Explanation 1: For the purposes of paragraph 2, the term court includes District Court, High Court and Supreme Court. Explanation 2: For the purposes of paragraph 8, the expression warehoused goods shall have the same meaning as assigned to it in the Customs Act, 1962. We find that Schedule III of CGST Act, is list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility of input tax credit of tax paid or deemed to have been paid (e) Determination of the liability to pay tax on any goods or services or both (f) Whether the applicant is required to be registered (g) Whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both within the meaning of that term. In the present case on the basis of the arguments made by them and scrutiny of records submitted by the applicant and the arguments put forth by them, we find that their main question is whether the transaction effected in the present case can be considered as exports. On proper and detailed examination of full facts as put by the applicant at the time of the hearings, we find that this question is not covered under the purview of Section 97 of the CGST Act, 2017. Hence we hold the subject application is not maintainable in this respect and cannot be entertained and therefore no opinion is given by us since the matter is beyond the purview of this Authority. 06. In view of the extensive deliberations as held hereinabove, we pass an order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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