In Re: M/s. Indian Institute of Science Education and Research
GST
2019 (2) TMI 1526 – AUTHORITY FOR ADVANCE RULINGS, ODISHA – 2019 (22) G. S. T. L. 535 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, ODISHA – AAR
Dated:- 13-2-2019
07/ODISHA-AAR/2018-19
GST
SRI ANAND SATPATHY, AND SRI NILANJAN PAN, IRS, MEMBER
Present for the Applicant – Pramod Kumar Panda, FCA
ORDER NO. 07/ODISHA-AAR/2018-19 DATED 13.02.2019
Subject: GST Act, 2017-Advance Ruling U/s 98 on 'Applicability of Notification issued under the provisions of GST Act' and 'Determination of the liability to pay tax on any goods or services or both'
1.0 M/s. Indian Institute of Science Education and Research, Berhampur (hereinafter referred to as the 'Applicant') assigned with GSTIN 21AABA10732K1Z5 having registered address At- Transit Campus, Govt. ITI, Engineering School Road, Berhampur, Odisha-760010 have filed an application on 06.12.2018 under Section 97 of CGST Act, 2017 & OGST Act, 2017 read with
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ported Equipments delivered to the Eligible Institutions and the Applicant is not liable to pay the IGST charged on such imported Equipments by the OEM suppliers of imported equipment,” and,
b) “Whether the decision of the GST Council granting the exemption is binding on the Department in the absence of non-issuance of corresponding Notification by the Central/State Government to give effect to such decision of the Council,” and
c) “Whether the concessional rate of GST/IGST at the 5% vide Notification No-45- CGST(Rate), Dt:14.11.2017 and Notification No-47-lGST(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.'
3.0 The facts of the case having a bearing on the questions.
3.1 As submitted by the Applicant, it is engaged in imparting Science Education and Research training to students and has commenced BS-MS (for
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essional rate of custom duty was applicable not only for all directly imported equipments but also on import of goods by OEM suppliers for supply to eligible institutions.
3.6 The Government of India vide Notification No. 43/2017-Customs, Dt: 30.06.2017, amended the said Notification No-51/1996, Dt: 23.07.19 by substituting the words, brackets and figures, “Integrated Tax leviable thereon under sub-section (7) of Section-3” for the words and figures “additional duty leviable thereon under Section-3”.
3.7 It is importing Scientific Equipment's either directly from Original Equipment Manufacturer or through the Agent of the OEM suppliers in India. In case of direct import, the Applicant is availing concessional Customs Duty and exemption of IGST as per NN-43/2017-Customs, Dt:30.06.2017. However, in case the same imported Equipments are procured through the OEM Agents in India, the Applicant is denied with the IGST exemption by the OEM Suppliers due to non-issuance of any specific exemp
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as import of such equipments for delivery to such Institutions as notified by the Central Government.
4.2 The Applicant further understands that, in view of amendment of the Notification No. 51/1996-Customs, Dated. 23.07.1996 read with Minutes of the 14th.GST Council meeting, ICS T should not be levied on equipments imported by the OEM Agents located in India for delivery to the specified institutions including the Applicant.
4.3 The concession granted vide NN-45-CGST-Rate, Dt: 14.11.2017 notified under Section-11(1) of the Central Goods and Services Act, 2017 and NN-47-lGST-Rate, Dt: 14.11.2017 notified under Section 6(1) of the Integrated Goods and Services Act, 2017 which came into force from 15.11.2017 is applicable to supply of all specified equipments, imported or otherwise, to the specified Institutions with effect from 15.11.2017.
5.0 Personal Hearing was fixed on 22.01.2019. Shri Pramod Kumar Panda, FCA and Shri Una Sujit, Representative of the Applicant appeared for perso
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understanding/interpretation of law in respect of the issue.
6.1.0 Ruling is sought for in respect of the following questions:-
a) “Whether the Notification No-51/1996-Customs, Dt: 23.07.1996 read with Notification No-43/2017-Customs, Dt: 30.06.2017 and Minutes of the 14th GST Council Decision Dt: 18th. 119th. May,2017 is applicable for specified Imported Equipments delivered to the Eligible Institutions and the Applicant is not liable to pay the IGST charged on such imported Equipments by the OEM suppliers of imported equipment,”;
b) “Whether the decision of the GST Council granting the exemption is binding on the Department in the absence of non-issuance of corresponding Notification by the Central/State Government to give effect to such decision of the Council,” and
c) 'Whether the concessional rate of GST/IGST at the 5% vide Notification No-45-CGST(Rate), DI 14.11.2017 and Notification No-47-lGST(Rate), Dt: 14.11.2017 are applicable only for supply of specified Indigenous Equi
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of the aforesaid notifications.
6.1.3 Proviso to Section 5(1) of the IGST Act authorizes levy of IGST on goods imported in to India in accordance with the provision of Section 3 of the Customs Tariff Act 1975 and the point of taxation is same as the point of levy of customs duty. Section 2(10) of the IGST Act defines 'import of goods' meaning bringing goods into India from a place outside India. Accordingly, levy of IGST on goods imported under Proviso to Section 5(1) is strictly limited to import of goods into India and such levy has to happen at the time of customs clearance only. Hence, Notification No.51/96-Customs dated 23.07.1996 is very much applicable to the Applicant in case of import of goods.
6.1.4 The applicability of Notification No. 51/96-Customs dated 23.07.1996 as amended vide Notification No-43/2017-Customs, Dt: 30.06.2017 to “OEM Suppliers” needs to be examined. In this case, the OEM supplier is a supplier located in India and the supply of equipments by such suppli
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IGST Act, since the said OEM supplier is not entitled for the exemption provided in the Notifications under consideration. On the subsequent domestic transaction, there will be levy of either IGST or CGST and SGST depending on the nature of the supply transaction as per the location of the supplier. In both the cases, the liability to pay GST is on the supplier and not on the Applicant. In the absence of liability there cannot be a claim for exemption. The Applicant can avail the exemption benefit only if it goes for direct import or purchase before the goods being imported into the country cross the Customs frontier of India.
In that case, the 'GST liability will be on the importer (in this case the Applicant) and exemption from the said liability can be claimed and availed. The Applicant cannot claim exemption from the liability of another taxable person.
6.1.5 Further, Notification No. 51/96-customs dated 23.07.1996 is restricted to importers like Public funded research instituti
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for exemption from levy of IGST on import of goods. GST council is a constitutional body to formulate GST policies and to make recommendation to the Union and the State. Accordingly, every notification, circular or orders issued by the Central and State Governments are duly vetted by the GST Council. However issues pertaining to rate of tax and tax concessions/ exemption have to be as per the statutory notifications.
6.3.0 The last question of the Applicant is “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 notifications exempts in access of 5% (2.5% in case
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-Customs, dated 23.07.1996 read with Notification No-43/2017-Customs dated 30.06.2017 and Minutes of the 14th.GST Council Decision dated 18th./19th. May, 2017 is applicable to the Applicant for import of specified Equipments as listed under column (3) of the aforesaid notifications and the said notifications are not applicable to the OEM suppliers of imported equipment.
2. The scope of issuing a ruling u/s 98 of the OGST/CGST Act is limited to the extent prescribed in sub-section (2) of Section 97 of the OGST/CGST Act. A ruling on whether the decision Of the GST Council granting the exemption is binding on the Department in the absence of non-issuance of corresponding Notification by the Central/State Government is not within the competence and mandate of the Authority of Advance Ruling constituted u/s 96 of the OGST Act.
3. Concessional rate of GST/IGST at 5% vide Notification No-45-CGST (Rate), Dt. 14.11.2017 and Notification No-47-IGST (Rate), Dt 14.11.2017 is applicable to the go
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