Subject: Clarification in respect of goods sent/taken out of India for exhibition or on consignment basis for export promotion - reg.
Various representations have been received from the trade and industry regarding procedure to be followed in respect of goods sent / taken out of India for exhibition or on consignment basis for export promotion. Such goods sent / taken out of India crystallise into exports, wholly or partly, only after a gap of certain period from the date they were physically sent / taken out of India.
2. The matter has been examined and in view of the difficulties being faced by the trade and industry and to ensure uniformity in the implementation of the provisions of the law across the feld formations, the Chief Commissioner of State Tax, in exercise of powers conferred under section 168(1) of the Andhra Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as the "APGST Act") hereby clarifes various issues in succeeding paragraphs.
3. As per section 7 of the APGST Act, for any activity or transaction to be considered a supply, it must satisfy twin tests namely-
(i) it should be for a consideration by a person; and
(ii) it should be in the course or furtherance of business.
4. The exceptions to the above are the activities enumerated in Schedule I of the APGST Act which are treated as supply even if made without consideration. Further, sub -section (21) of section 2 of the Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as the "IGST Act") defnes "supply", wherein it is clearly stated that it shall have the same meaning as assigned to it in section 7 of the APGST Act.
5. Section 16 of the IGST Act deals with "Zero rated supply". The provisions contained in the said section read as under:-
16. (1) "zero rated supply" means any of the following supplies of goods or services or both, namely:-
(a) export of goods or services or both; or
(b) supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit.
Therefore, it can be concluded that only such "supplies" which are either "export" or are "supply to SEZ unit / developer" would qualify as zero-rated supply.
6. It is, accordingly, clarified that the activity of sending / taking the goods out of India for exhibition or on consignment basis for export promotion, except when such activity satisfy the tests laid down in Schedule I of the APGST Act (hereinafter referred to as the "specified goods"), do not constitute supply as the said activity does not fall within the scope of section 7 of the APGST Act as there is no consideration at that point in time. Since such activity is not a supply, the same cannot be considered as "Zero rated supply" as per the provisions contained in section 16 of the IGST Act.
7. Since the activity of sending / taking specified goods out of India is not a supply, doubts have been raised by the trade and industry on issues relating to maintenance of records, issuance of delivery challan / tax invoice etc. These issues have been examined and the clarification on each of these points is as under: -
b) The said activity is in the nature of "sale on approval basis" wherein the goods are sent / taken outside India for the approval of the person located abroad and it is only when the said goods are approved that the actual supply from the exporter located in India to the importer located abroad takes place. The activity of sending / taking specified goods is covered under the provisions of sub -section (7) of section 31 of the APGST Act read with rule 55 of Andhra Pradesh Goods & Services Tax Rules, 2017 (hereinafter referred to as the "APGST Rules").
c) The specified goods shall be accompanied with a delivery challan issued in accordance with the provisions contained in rule 55 of the APGST Rules.
d) As clarified in paragraph 6 above, the activity of sending / taking specified goods out of India is not a zero-rated supply. That being the case, execution of a bond or LUT, as required under section 16 of the IGST Act, is not required.
b) The supply would be deemed to have taken place, on the expiry of six months from the date of removal, if the specified goods are neither sold abroad nor brought back within the said period.
c) If the specified goods are sold abroad, fully or partially, within the specified period of six months, the supply is effected, in respect of quantity so sold, on the date of such sale.
b) When the specified goods sent / taken out of India have neither been sold nor brought back, either fully or partially, within the stipulated period of six months, as laid down in sub -section (7) of section 31 of the APGST Act, the sender shall issue a tax invoice on the date of expiry of six months from the date of removal, in respect of such quantity of specified goods which have neither been sold nor brought back, in accordance with the provisions contained in section 12 and section 31 of the APGST Act read with rule 46 of the APGST Rules.
b) It has further been clarified in answer to question no. 3 above that the supply would be deemed to have taken place: (i) on the date of expiry of six months from the date of removal, if the specified goods are neither sold nor brought back within the said period; or (ii) on the date of sale, in respect of such quantity of specified goods which have been sold abroad within the specified period of six months.
c) It is clarified accordingly that the sender can prefer refund claim even when the specified goods were sent / taken out of India without execution of a bond or LUT, if he is otherwise eligible for refund as per the provisions contained in sub -section (3) of section 54 the APGST Act read with sub -rule (4) of rule 89 of the APGST Rules, in respect of zero rated supply of goods after he has issued the tax invoice on the dates as has been clarified in answer to the question no. 4 above. It is further clarified that refund claim cannot be preferred under rule 96 of APGST Rules as supply is taking place at a time after the goods have already been sent / taken out of India earlier.
8. The above position is explained by way of illustrations below:
Illustrations:
i) M/s ABC sends 100 units of specified goods out of India. The acfi'vity of merely sending / taking such specified goods out of India is not a supply. No tax invoice is required to be issued in this case but the specified goods shall be accompanied with a delivery challan issued in accordance with the provisions contained in rule 55 of the APGST Rules. In case the entire quantity of specified goods is brought back within the stipulated period of six months from the date of removal, no tax invoice is required to be issued as no supply has taken place in such a case. In case, however, the entre quantty of specified goods is neither sold nor brought back within six months from the date of removal, a tax invoice would be required to be issued for entre 100 units of specified goods in accordance with the provisions contained in section 12 and section 31 of the APGST Act read with rule 46 of the CGST Rules within the tme period stpulated under sub-secton (7) of secton 31 of the APGST Act.
ii) M/s ABC sends 100 units of specified goods out of India. The actvity of sending / taking such specified goods out of India is not a supply. No tax invoice is required to be issued in this case but the specified goods shall be accompanied with a delivery challan issued in accordance with the provisions contained in rule 55 of the APGST Rules. If 10 units of specified goods are sold abroad say after one month of sending / taking out and another 50 units are sold say after two months of sending / taking out, a tax invoice would be required to be issued for 10 units and 50 units, as the case may be, at the tme of each of such sale in accordance with the provisions contained in section 12 and section 31 of the APGST Act read with rule 46 of the APGST Rules. If the remaining 40 units are not brought back within the stpulated period of six months from the date of removal, a tax invoice would be required to be issued for 40 units in accordance with the provisions contained in section 12 and section 31 of the APGST Act read with rule 46 of the APGST Rules. Further, M/s ABC may claim refund of accumulated input tax credit in accordance with the provisions contained in subsecton (3) of section 54 of the APGST Act read with sub -rule (4) of rule 89 of the APGST Rules in respect of zero -rated supply of 60 units.
9. The field officers are requested to publicize the contents of this circular.
10. Difficulty, if any, in the implementaton of the above instructons may please be brought to the notce of the Chief Commissioner
Chief Commissioner (ST)