2018 (12) TMI 1352 – MADHYA PRADESH HIGH COURT – [2019] 61 G S.T.R. 144 (MP) – Exemption from payment of tax – duty free shop – territorial limits – petitioner made a prayer for directing the respondents to treat the goods supplied to the petitioner as an export without payment of CGST and IGST, only on the ground that Duty Free Shop at international airport are located beyond the customs frontier of India and any transaction that takes place in a Duty Free Shop is said to have taken place outside India.
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Held that:- No provision of law has been brought to the notice of this Court under the Central Goods and Services Tax Act, 2017, which grants exemption from payment of taxes. A taxing statute has to be strictly construed. In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language
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17 and should be zero rated supply under Section 2(23) read with Section 15(1) of the IGST Act, 2017 is misconceived.
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The location of the DFS, whether within customs frontier or beyond, shall be within India as long as it is not beyond EEZ (200 nautical miles). Therefore, DFS cannot be said to be located outside India. Instead, the DFS is located within India. As the supply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'export of goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a bond/letter of undertaking (LUT) under rule 96-A of the CGST Rules, 2017.
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The petitioner is liable to pay GST on supply of indigenous goods to DFS – Whether, transaction under taken at a DFS (i.e. sale of goods to outgoing passengers) are to be treated as export of goods or services does not form part of the instant writ petition – petition dismissed – decided against petitioner. – Wri
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out payment of taxes and similar supplies from all over the world except India are permitted without payment of taxes. 03-The petitioner has stated that petitioner is a manufacturer and exporter of garments in India and he intends to supply goods to Duty Free Operator (DFO), who in turn is selling the goods from Duty Free Shops (DFSs). It has been further contended that Duty Free Operator operating in India imports goods like liquor, tobacco products, souvenirs, eyewear, watches, fashion, chocolates, perfumes, etc. by filing import general manifest and Bill of Entry for warehousing with the customs department without payment of import duty on the first importation subject to certain conditions. The bill of entry clearly indicates the Duty Free Operator as an importer . The imported goods are warehoused at a bonded warehouse (customs warehouse) and the bill of entry also discloses that the goods imported are for sale only for Duty Free Shop / Export . 04-It has been further stated that
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ficer as prescribed under Section 60 of the Act. The goods so warehoused are then brought to the Duty Free Shop without payment of duty under escort of the bond officer and then the goods are sold at the Duty Free Shops at the arrival and departure terminals. The overall all supervision and control is of the Customs Officer. 06-The petitioner has further stated that the entire movement of goods from special warehouse to Duty Free Shops for the purpose of sale at arrival and departure takes place strictly in consonance with the warehousing provisions under Chapter IX of the Act and under the custom supervision and control. It has been further stated that as per Section 71 of the Act, the goods so deposited can either be cleared from the warehouse for home consumption (under Section 68) or for export (under Section 69) or for removal to another warehouse or otherwise provided under the Act. 07-The petitioner's contention is that the goods are sold to international passengers at the d
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s further stated that the Duty Free Shops at international airports were permitted to retail of attractive products of foreign origin including liquor, tobacco, confectionery, perfumes, cosmetics, souvenirs, eyewear, watches, fashion, chocolates, etc. It has been further contended that in respect of indigenous products manufactured in India, which were subjected to payment of Excise Duty and VAT and Government of India in the year 2013, based upon representations received from industry and in order to promote Brand India to the world, issued notifications so as to allow excise duty free sale of goods manufactured in India to international passengers or members of crew arriving from abroad at the Duty Free Shops located in the arrival halls of international airports and to passengers going out of India at the Duty Free Shops located in the departure halls of international airport in the country. 10-It has been further stated that Central Board of Excise and Customs issued a notification
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of international airport, appointed or licensed as warehouse under Section 57 or 58 of the Customs Act, and for sale therefrom, against foreign exchange to passengers going out of India or to the passengers or members of crew arriving from abroad, subject to limitations, conditions and safeguards as may be specified by the Central Board of Excise and Customs 12-By another notification No.08/2013-CE NT, dated 23/05/2013, CBEC appointed officers of Customs under whose jurisdiction the godowns and retail outlets of Duty Free Shops at the international airport are located, to be Central Excise Officers. In notification No.09/2013-CE NT, dated 23/05/2013, the CBEC stated that where a godown or retail outlet of a Duty Free Shop is appointed or licensed under the provisions of Sections 57 or 58 of the Customs Act, such godown or retail outlet shall be deemed to be registered as warehouse under Rule 9 of the Central Excise Rules, 2002. By the CBEC circular No.970/04/2013-CX, dated 23/05/2013 t
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basis of various exemptions notification issued from time to time. 14-The petitioner has further stated that he was told to pay GST and in those circumstances, he is being deprived his potential business opportunity to sell the goods from Duty Free Shops. The petitioner's grievance is that in absence of exemption notification under the Central Goods and Services Tax Act, 2017 and the Integrated Goods and Services Tax Act, 2017, the Duty Free Operators are unable to buy the goods manufactured in India without paying the applicable rate of taxes as provided under the CGST, IGST or SGST as the case may be. 15-The petitioner's contention is that supplies from all over the world (except India) are permitted to be at an Indian Duty Free Shop without payment of duties and taxes. The petitioner has prayed for following relief:- (i)Issue a writ of Mandamus or any other appropriate Writ, Order or Direction in the nature of Mandamus, ordering and directing any supply of goods and services
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ds and services made by an Indian supplier to the duty free shops in India to be free of CGST, SGST and IGST. (iv)Pass such other or further orders or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 16-The petitioner has raised various grounds before this Court and his contention is that the action of the respondents authorities in enacting the GST legislation without clarifying the position regarding supply of goods and services by an Indian supplier without payment of taxes including GST is illegal and has resulted in loss of business opportunity to the petitioner and other identically placed persons. 17-A further ground has been raised stating that sale from Duty Free Shops in the past has helped to maximize non-aeronautical revenues at airports, which ultimately bring down aeronautical tariffs for the passengers and ultimately the Government of India is the biggest gainer as it has and will receive significantly large funds f
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t payment of GST and on account of lack of similar exemptions, which were available during the pre GST regime and the action of the respondent is violative of Articles 12, 14 and 19 (1) (g) of the Constitution of India. The action of the respondent authorities is also in violation of Article 21 of the Constitution of India. It has been argued by learned Senior Counsel appearing before this Court to issue a writ of mandamus by directing the respondents to treat the Duty Free Shops in India as an export without payment of CGST and IGST, since the shops are located beyond the customs frontier of India and any transaction that takes place in a Duty Free Shop is said to have taken place outside India. 20-Learned counsel for the petitioner has placed reliance upon judgments delivered in the case of reported in , reported in , reported in , passed by apex Court in Special Leave to Appeal (Civil) No.2436/2010 decided on 12/03/2010, passed by Bombay High Court in Writ Petition No.2578/2009 deci
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the judgment relied upon by the petitioner in the case of (Supra) is of the year 2012 is of no help to the petitioner as it was a judgment delivered prior to GST regime and in the year 2016 CGST Act has been implemented and an entirely new scheme of statute with various definitions have been introduced to the statute book and in such circumstances, various defining clauses have to be seen and examined in back drop of the present statute, which is in force as on today. It has been further stated that as per Union Budget, 2017, the definition of Indian territory has been extended to 200 nautical miles and in such circumstances also, all such duty free shops fall within the territory of India and the claim of the petitioner deserve to be dismissed. 24-The respondents have also stated that a similar issue was examined by the Authority on Advance Ruling and the same was analyzed in back drop of the judgment passed by the Hon'ble Supreme Court in the case of (Supra) and the respondents
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ng the goods in India, is selling them from Indore to a Duty Free Shop, the question of grant of exemption to the petitioner and to such a class to which the petitioner belongs does not arise. The respondents have prayed for dismissal of the writ petition. 27-It has also been stated that the petitioner does have an alternative remedy also under Section 96 of CGST Act and the petition deserves to be dismissed. It has been argued by Shri Prasanna Prasad, learned counsel for the respondent that this Court is not the competent authority to legislate on a particular subject nor this Court can issue exemption certificate granting exemption to the petitioner as the statute does not provide for any such exemption as prayed by the petitioner. 28-It has been further contended by the respondents that the judgment of the Hon'ble Supreme Court in the case of (Civil Appeal No.2560/2010) reported in was delivered under the erstwhile VAT regime wherein the authority of State to levy VAT on sale of
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n, its Territorial Waters, Seabed and Sub-soil underlying such Waters, Continental Shelf, Exclusive Economic Zone (EEZ) or any other Maritime Zone as referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 and the air-space above its territory and territorial waters. For the purpose of CGST Act, India extends the Exclusive Economic Zone upto 200 nautical miles from baseline. The location of the DFS, whether within customs frontier or outside, shall be within India as long as it is not beyond EEZ (200 nautical miles). Therefore, DFS cannot be said to be located outside India. Instead, the DFS is located within India. As the supply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'Export of Goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a Bond / Letter or Undertaking (LUT) under Rule 96-A of the CST Ru
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des that no tax shall be levied or collected except by authority of law. As per Article 246 of the Constitution, Parliament has exclusive powers to make laws in respect of matters given in Union List (List I of the Seventh Schedule) and State Government has the exclusive jurisdiction to legislate on the matters containing in State List (List II of the Seventh Schedule). In respect of the matters contained in Concurrent List (List III of the Seventh Schedule), both the Central Government and State Governments have concurrent powers to legislate. 34-Before advent of GST, the most important sources of indirect tax revenue for the Union were customs duty (entry 83 of Union List), central excise duty (entry 84 of Union List), and service tax (entry 97 of Union List). Although entry 92C was inserted in the Union List of the Seventh Schedule of the Constitution by the Constitution (Eighty-eighth Amendment) Act, 2003 for levy of taxes on services, it was not notified. So tax on services were c
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f Central VAT and State VAT was possible in form of a dual levy under the constitutional scheme. Power of taxation is assigned to either Union or States subject-wise under Schedule-VII of the Constitution. While the Centre is empowered to tax goods upto the production or manufacturing stage, the States have the power to tax goods at distribution stage. The Union can tax services using residuary powers but States could not. Under a unified Goods and Services Tax scheme, both should have power to tax the complete supply chain from production to distribution, and both goods and services. The scheme of the Constitution did not provide for any concurrent taxing powers to the Union as well as the States and for the purpose of introducing goods and services tax, amendment of the Constitution conferring simultaneous power on Parliament as well as the State Legislatures to make laws for levying goods and services tax on every transaction of supply of goods or services was necessary. 37-The Cons
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2016 w.e.f. 16/09/2016. 39-The important changes introduced in the Constitution by the 101st Amendment Act are the following: a)Insertion of new article 246-A which makes enabling provisions for the Union and States with respect to the GST legislation. It further specifies that Parliament has exclusive power to make laws with respect to GST on inter-State supplies. b)Article 268-A of the Constitution has been omitted. The said article empowered the Government of India to levy taxes on services. As tax on services has been brought under GST, such a provision was no longer required. c)Article 269-A has been inserted which provides for goods and services tax on supplies in the course of inter-State trade or commerce which shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council. It also provides that Parliamen
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the Constitution. Thus, any modification in GST Council shall also require the ratification by the legislatures of one half of the States. i)Entries in List I and List II have been either substituted or omitted to restrict power to tax goods or services specified in these Lists or to take away powers to tax goods and services which have been subsumed in GST. j)Parliament shall, by law, on the recommendation of the Goods and Services Tax Council, provide for compensation to the States for loss of revenue arising on account of implementation of the goods and services tax for five years. k)In case of petroleum and petroleum products, it has been provided that these goods shall not be subject to the levy of Goods and Services Tax till a date notified on the recommendation of the Goods and Services Tax Council. 40-After the constitutional amendment, the Central Government introduced The Central Goods and Services Tax Act, 2017, The Integrated Goods and Services Tax Act, 2017, The Union Terr
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der the Excise Act and Customs Act dated 23/05/2013 i.e. Notification No.07/2013-CE NT, Notification No.08/2013-CE NT, Notification No.09/2013-CE NT and CBEC Circular No.970/04/2013-CX is claiming exemption in the matter of payment of GST. 43-No provision of law has been brought to the notice of this Court under the Central Goods and Services Tax Act, 2017, which grants exemption from payment of taxes. A taxing statute has to be strictly construed. In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used (Principles of Statutory Interpretation by Justice G.P. Singh, Tenth Edition, General Principles of Strict Construction). 44-The Hon'ble Supreme Court has enunciated in similar words the principle of interpretation of taxing laws as under:- Bhagwati, J. stated the principles a
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which is not expressed; it cannot import provisions in the statute so as to supply any assumed deficiency [Sales Tax Commissioner Vs. Modi Sugar Mills, AIR 1961 SC 1047, p. 1051]. K. Iyer, J., more recently observed : Taxation consideration may stem from administrative experience and other factors of life and not artistic visualisation or neat logic and so the literal, though pedestrian interpretation must prevail [Martand Dairy and Farm vs. Union of India, AIR 1975 SC 1492, p. 1494]. Before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section [Commissioner of Wealth Tax, Gujarat Vs. Ellis Bridge Gymkhana, AIR 1998 SC 120, pp. 125, 126]. The statute governing the field does not provide any such exemption as prayed by the petitioner. 45-The relevant statutory provisions, which are necessary for adjudicating the present controversy reads as under:- Article 269(1) and Article 286(1) of the Constitution of India:- (i)A
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hall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place- (a)outside the State; or (b)in the course of the import of the goods into, or export of the goods out of, the territory of India. Section 5 and Section 2(ab) of the Central Sales Tax Act, 1956:- 5. When is a sale or purchase of goods said to take place in the course of import or export.- (1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. (2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods
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se of the export of goods out of the territory of India. Explanation – For the purposes of this sub-section, "designated Indian carrier" means any carrier which the Central Government may, by notification in the Official Gazette, specify in this behalf.] 2(ab). Crossing the customs frontiers of India" means crossing in the limits of the area of a customs station in which imported goods or export goods are ordinarily kept before clearance by customs authorities. Explanation – For the purposes of this clause, "customs station" and "customs authorities" shall have the same meanings as in the Customs Act, 1962 (52 of 1962). Sections 2(4), 2(5), 2(23) and 16(1) of the Integrated Goods and Services Tax Act, 2017:- 2(4). customs frontiers of India means the limits of a customs area as defined in section 2 of the Customs Act, 1962 (52 of 1962); 2(5). export of goods with its grammatical variations and cognate expressions, means taking goods out of India to a
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mported goods or export goods are ordinarily kept before clearance by Customs Authorities; 2(18)."export", with its grammatical variations and cognate expressions, means taking out of India to a place outside India; 2(27)."India" includes the territorial waters of India; Section 3(1), (2) and (3) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976:- (1)The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and sub-soil underlying, and the airspace over, such waters. (2)The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline. (3)Notwithstanding anything contained in sub-section (2), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, a
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rated supply under Section 2(23) read with Section 15(1) of the IGST Act, 2017 is misconceived. The term Export of Goods has been defined under Section 2(5) of the IGST Act, 2017 as taking goods out of India to a place outside India. 48-The India is defined under Section 2(56) of the CGST Act as India means the territory of India as referred to in Article 1 of the Constitution, its territorial waters, seabed and sub-soil underlying such waters, continental shelf-exclusive economic zone or any other maritime zone as referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, and the air-space above its territory and territorial waters and therefore, the export of goods can be treated and it is complete only when the goods crosses air space limits or its territory or territorial waters of India. 49-Undisputedly, in light of the definition as contained under the IGST Act, 2017 a Duty Free Shop situated at the airport cannot be tre
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he First Schedule to the Central Excise Tariff Act, 1985 (hereinafter referred to as indigenous goods) when brought into DFS located in the arrival halls at the international customs airports from the factories of their manufacture situated in India for sale to passengers or members of crew arriving from abroad, from the whole of the duty of excise leviable thereon. No such exemption notification has been issued under GST till date. 52-In the case of reported in , the apex Court has held that there is no estoppel against law and recipient of a concession has no legally enforceable right against the Government to grant or to continue to grant a concession except to enjoy benefits of concession during the period of its grant. The apex Court in paragraph No.10 and 11 of the aforesaid judgment has held as under:- 10. The question referred to this bench, as noticed, is whether the State would be estopped from altering/modifying the benefit of concessional tariff by means of the impugned G.O
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of concessional tariff/rebate to an industrial unit carrying on business in the hill areas of the State of U.P. (now the State of Uttarakhand). After an in depth consideration of the provisions of Section 48/49 of the Electricity Supply Act, 1948 under which the concessional tariff/rebate was granted and the provisions of Section 21 of the General Clauses Act as well as the provisions of the U.P. Electricity Reforms Act, 1999 under which the concessional tariff/rebate was later withdrawn this Court in para 51 came to the following conclusion – From the above discussion, it is clear that the petitioners cannot raise plea of estoppel against the Notification dated 7.8.2000 reducing hill development rebate to 0% as there can be no estoppel against the statute. In light of the aforesaid judgment, the concessions / exemptions granted earlier during the pre-GST regime cannot be claimed as a matter of right. 53-In addition, the petitioner in paragraph 7(i) of the petition has prayed this Cou
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clusive Economic Zone (EEZ) or any other maritime zone as referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, and the air space above its territory and territorial waters. For the purpose of CGST Act, India extends upto the Exclusive Economic Zone upto 200 nautical miles from baseline. The location of the DFS, whether within customs frontier or beyond, shall be within India as long as it is not beyond EEZ (200 nautical miles). Therefore, DFS cannot be said to be located outside India. Instead, the DFS is located within India. As the supply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'export of goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a bond/letter of undertaking (LUT) under rule 96-A of the CGST Rules, 2017. Also, he cannot claim refund of unutilized input tax credit (ITC) under Secti
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/ manufacturer of garments at Indore and intent to supply indigenous goods to Duty Free Shops. 58-Respondents have placed reliance upon judgment delivered in the case of reported in . In the aforesaid case, it has been held that binding nature of the decision would come to an end when the law is changed subsequently. Paragraph No.8 of the aforesaid judgment reads as under: 8. Section 11 of the Code of Civil Procedure is only applicable to suits. S. 141 of the Code makes the procedure regarding suits applicable to proceedings. Explanation to Section 141 excludes proceedings under Art. 226 from the purview of the Section. Even then general principles of respondent judicata are applicable to such proceedings also though S. 11 as such is not applicable. Though a decision to inter parties may not be respondent judicata even under general principles which do not take in the rigour of S. 11, the law laid down by the High Court is binding on it. Decisions may be on questions of facts, questio
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reduced. The definition of place in 1991 (1) KLT 543 cannot therefore be relied on now as the law binding the parties in this case. There is no case that Door No.7/597 is more than 50 meters away from Door No.7/594 or that the distance is further reduced. Both are in the same building and as earlier pointed out, the distance is only seven meters as found in the said decision itself. Admittedly, Door No.7/597 was used for the same purpose continuously from 1987-88 upto the end of 1989-90. I do not think that there is any violation of any of the Rules involved. In light of the aforesaid judgment, as no such exemption is available to the petitioner in light of the GST Act, 2017, the judgment relied upon by the petitioner is of no help and the petitioner cannot escape from the liability of payment of GST. 59-Reliance has also been placed in the case of reported in . Paragraph No.21 of the aforesaid judgment reads as under:- 21. For resolving such inter se conflicts, one other test may also
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ould prevail over the former enactment and therefore, as a new enactment has come into existence i.e. Central Goods and Services Tax Act, 2017, the statutory provisions under the Act or 2017 are to be followed. 60-In the case of reported in , it has been held that the judgment is not a precedence on a preposition which it did not decide. Paragraph 8 of the aforesaid judgment reads as under:- 8.Learned counsel for Revenue submitted that if even a weighbridge was excisable, as held in the case of Narne Tulaman Manufacturers Pvt. Ltd. [(1989) 1 SCC 172] so was a mono vertical crystalliser. The only argument on behalf a Narne Tulaman Manufacturers Pvt. Ltd. was that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridges were not 'good' within the meaning of the Act was not raised and no evidence in that behalf was brought on record. We cannot assume that weighbridges sand on the same foot
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does not help the petitioner in any manner. 62-The petitioner cannot escape the liability to pay GST. He is manufacturing certain goods and supplying to a person, who is having a Duty Free Shop. It is true that we cannot export our taxes but the facts remains that it is not the petitioner, who is exporting the goods or taking goods out of India. He is selling to a person, who is having Duty Free Shop (to a Duty Free Operator), which is located in India as per the definition clause as contained under the GST Act. In light of the aforesaid, this Court does not find any reason to issue writ of mandamus directing the respondents not to charge GST on the petitioner or to legislate on the subject granting exemptions as prayed by the petitioner. 63-A statute is an edict of the legislature and the Courts do not have the power to enact a statute and the Court can only do interpretation of statute and once the Court does not have power to legislate, the question of granting exemption in absence
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