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EY Tax Alert 14 October 2020 EY Tax Alert HC allows refund of input tax credit to duty free shops located at international airport in India Tax Alerts cover significant Executive summary tax news, developments and changes in legislation that This Tax Alert summarizes a recent ruling[1] of the Kerala High Court (HC). The issue affect Indian businesses. They involved in the writ petition was whether Duty Free Shops (DFS) can claim refund of accumulated input tax credit (ITC), treating sale of goods by them as exports under GST. act as technical summaries to keep you on top of the latest tax The key observations of the HC are: issues. For more information, ► DFS situated at international airports are beyond the customs frontier of India. please contact your EY advisor. ► When any transaction takes place outside the customs frontiers of India, it is said to have taken place outside India, though the said transaction might take place within India. ► Invoices issued by DFS at the time of sale of goods to the outgoing passengers envisage a condition that the passenger will not consume the goods until they land at the final destination outside India. Thus, the passenger shall become owner of the goods only upon reaching their final destination. HC noted that Central Board of Indirect Taxes and Customs (CBIC) had chosen not to file Special Leave Petition (SLP) against the Bombay HC[2] ruling, treating the sale by DFS as exports under GST. Same benefit is to be extended to petitioner as has been extended to similarly situated DFS in other states. Thus, HC allowed refund of accumulated ITC to DFS located in arrival and departure area of international airport. It however, held that petitioner shall first pay GST on input services and then claim the refund of ITC. [1] 2020--VIL-463-KER [2] 2019-VIL-495-BOM ► The products sold at DFS do not cross customs Background frontiers of India. ► Petitioner has established Duty Free Shops (DFS) at ► Every sale at DFS located in departure terminal is departure and arrival area situated in international covered by sale voucher which is deemed to be a airport in India. shipping bill under section 69 of Customs Act. ► Goods such as alcohol, perfumes, cosmetics, ► The transactions undertaken at DFS (at arrival and cigarettes, etc. are sold from there to passengers departure terminals) are ‘export’ under section 69 leaving or arriving in India. of the Customs Act which provides that warehoused goods may be exported outside India DFS are licensed as customs bonded warehouse ► without payment of import duty. under section 58 and 58A of the Customs Act, 1962 (Customs Act). ► The definition of export provided under Customs Act is similar to that in IGST Act. ► Goods offered for sale at DFS are either imported into India or are purchased from Indian market. ► Reference was made to the ruling in case of Sandeep Patil and others vs. Union of India6, The goods procured by petitioner and sold in DFS do ► whereby Bombay HC held that taxpayer was not attract Customs duty. Such goods are not sold in entitled to claim refund of ITC with respect to duty domestic market. free goods sold by DFS as it constitutes ‘export of ► With effect from 1 July 2019, exemption3 from GST goods’. was given to supply of goods by retail outlet ► In the said case, Bombay HC had referred to established in departure area of an international Supreme Court judgements in case of J.V. Gokal airport, beyond the immigration counters, to an and Co. (P) Ltd.7 and Hotel Ashoka (Indian Tourism outgoing international tourist. Development Corpn. Ltd.)8. Further, rule 95A was inserted4 in Central Goods and ► ► Supply of goods and the services by DFS takes Services Tax Rules, 2017 (CGST Rules) to provide place in a ‘non-taxable territory’ as defined under that such retail outlets are eligible to avail refund of section 2(79) of CGST Act. taxes paid on inward supply of goods. ► DFS circular and Rule 95A of CGST Rules cannot Government, vide circular No.106/25/2019-GST5 ► be read in a restricted manner, confining the (DFS Circular), clarified that DFS situated at benefit of non-applicability of GST to sale of goods departure area in international airport cannot avail and supply of services to passengers at departure refund of taxes paid on input services. area only. ► The petitioner filed application for refund under ► Rent/Concession fees paid to airport authorities section 54(3) of Central Goods and Services Tax Act, for renting space to establish DFS is not subject to 2017 (CGST Act) read with rule 89 of CGST Rules for GST since the said area constitutes as non-taxable refund of unutilized input tax credit (ITC) on account territory. of zero-rated supply of goods. ► As per section 13 of IGST Act, place of supply of Revenue passed an order rejecting the refund claim. ► such services (related to immovable property) will ► Aggrieved, it filed a writ petition before Kerala High be outside the territory of India. Court (HC), challenging the rejection of refund. ► Thus, such services would also be non-taxable. ► In another petition, airport authority charged GST on invoice relating to licence fees for developing and maintaining DFS. Revenue’s contentions A writ petition was filed seeking direction to not ► As per section 1(2) of the CGST Act, the said Act apply provisions under GST law to DFS operated by extends to the whole of India. petitioner. ► DFS is located in Kerala limits and within India. ► Since the international airport is itself in India, Petitioner’s Contentions therefore, operations of the petitioner are in taxable territory as defined in section 2(109) of the ► Section 2(4) of IGST Act defines ‘customs frontiers of CGST Act. India’ as the limits of customs area defined in section 2 of the Customs Act. ► Though under the Customs Act, sale by a DFS is treated as export and the bills issued by DFS are ► As per section 2(11) of the Customs Act, customs treated as shipping bills, the same cannot be area means the area of a customs station and mutatis mutandis under the GST laws. includes any area in which imported or export goods are ordinarily kept before clearance. Thus, all duty ► The DFS and passengers receiving goods are free shops are customs area. located at airport within India and in view of section 3 Vide notification no. 11/2019 – Integrated tax (Rate) dated 29 June 6 2019-VIL-495-BOM 2019 7J.V. Gokal and Co. (P) Ltd. vs. The Assistant Collector of Sales Tax 4 Vide notification no. 31/2019 – Central tax dated 28 June 2019 (Inspection) and others (AIR 1960 SC 595) effective from 1 July 2019 8 Hotel Ashoka (Indian Tourism Development Corpn. Ltd.) vs. Assistant 5 Dated 29 June 2019 Commissioner of Commercial Tax and others (AIR 2012 SC 982) 19 of the Sale of Goods Act, 1930, the outgoing Act.10 passengers immediately become owners of the goods Further, there is no requirement to reverse ITC purchased from DFS. pertaining to activity specified in Schedule-III. ► Observations of SC in case of Hotel Ashoka (supra) Accordingly, petitioner is eligible to claim ITC in would not be relevant as they pertain to levy of Value case of DFS in arrival area as well. Once this ITC Added Tax (VAT) and Central Sales Tax (CST), but is eligible, refund of entire ITC pertaining to not GST. departure and arrival DFS is eligible, based on formula of refund prescribed in rule 89 of CGST ► Mere nomenclature of DFS does not entitle the Rules. petitioner to be free from entire indirect tax burden under every law. ► HC noted that Central Board of Indirect Taxes and Customs (CBIC) had chosen not to file Special ► Retail outlets established in the arrival area of Leave Petition (SLP) against the Bombay HC ruling. international airport supplying goods and services to the incoming passengers cannot be entitled for ► Same benefit is to be extended to petitioner as has refund, in view of provisions of rule 95A of CGST been extended to similarly situated DFS in other Rules. States. ► The Court refused to give any declaration on non- High Court Ruling applicability of Acts and Rules under GST to DFS. The HC held that petitioner shall pay GST on input ► The expressions ‘import’ and ‘export’ defined under ► services and claim ITC. Thereafter, petitioner can Customs Act have been identically defined in IGST claim refund of the same by following procedure Act. prescribed in section 54(3) of CGST Act read with ► Invoices issued by DFS at the time of sale of goods to rule 89 of CGST Rules. the outgoing passengers, duly signed by both the Thus, the HC allowed refund of ITC to duty free passengers and the cashier, envisage a condition that ► the passenger will not consume the goods until he shops located at departure and arrival area of lands at the final destination outside India. international airport. ► In other words, the passenger shall become owner of the goods only upon reaching of final destination. ► DFS situated at international airports are beyond the customs frontier of India. Comments ► When any transaction takes place outside the a. The ruling may provide significant relief to Customs frontiers of India, the said transaction is said duty free shops in India and is likely to to have taken place outside India, though the make them internationally competitive. transaction might take place within India. b. While sale of goods by DFS is neither supply ► If the transaction of sale or purchase takes place of goods nor supply of services as per when the goods are imported in India or they are Schedule III, the Court has still treated it as being exported from India, no State can impose any an export transaction, allowing refund of tax thereon.
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