Case nº Ruling No. AAR/Cus/01/2013 in Application No. AAR/44/Cus/07/2012 of Authority for Advance Rulings, May 27, 2013 (case In Re: GE India Industrial P. Ltd. Vs)
| Judge | For Appellant: Sujit Ghosh and A.K. Jain, Commissioner (Authorised Representative) for the Commissioner |
| President | Dr. Arijit Pasayat, Chairperson and Shri Y.G. Parande, Member |
| Resolution Date | May 27, 2013 |
Judgment:
Arijit Pasayat J. (Chairperson)
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By the present ruling, the application filed by M/s. GE India Industrial Private Limited (hereinafter referred to as "the applicant"), seeking advance ruling under section 28H of the Customs Act, 1962 (in short "the Act") stands "disposed of". The factual scenario as projected by the applicant in the application is as follows:
The applicant is a wholly owned subsidiary of a foreign company GE Holding Luxembourg and Company Sari, Luxembourg. The applicant falls under the definition of "applicant" under section 28E(c)(c) of the Act.
The applicant proposes to establish a unit in a free trade warehousing zone (hereinafter referred to as "FTWZ") in the State of Maharashtra for warehousing the goods procured from outside India. The applicant proposes to establish its FTWZ unit in a FTWZ which is already notified or will be notified as SEZ by the Central Government as per section 4(1) of the SEZ Act.
The applicant proposes to import parts and components of wind operated electricity generators from outside India and store the same in the said FTWZ unit. The list of goods that the applicant proposes to import and store in FTWZ unit is indicated. The aforesaid parts and components of wind operated electricity generators are covered, under Schedule C (Sl. Nos. 82 and 103 of the Maharashtra Value Added Tax Act, 2002 (hereinafter referred to as "MVAT Act")). The relevant entries under Schedule C are as under:
The Maharashtra Government, vide Notification No. VAT-1505/CR-119/Taxation 1, dated April 1, 2005 issued under entry 82 in Schedule "C" appended to the MVAT Act, has, inter alia, specified that the following devices as renewable energy devices for the purpose of entry 82. The rate of duty shall be five per cent. on such renewable energy devices:
The parts and components of wind operated electricity generators are not exempted by the Maharashtra Government from the payment of value added tax and are subject to VAT at five per cent.
The applicant proposes to clear the goods by way of stock transfer to their own manufacturing unit located in Pune, Maharashtra and pay the duties of customs in terms of section 30 of the SEZ Act and proposes to avail of the benefit of exemption Notification No. 45/2005-Customs, dated May 16, 2005 that exempts goods cleared from the SEZ to DTA from payment of whole of the additional duty of customs leviable (hereinafter referred to as "SAD") under section 3(5) of the Customs Tariff Act, 1975 (in short "Tariff Act") subject to the fulfilment of the conditions mentioned in the proviso of the aforesaid notification.
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In the light of the above facts, the applicant seeks to obtain an advance ruling from this authority on the following question:
Whether the goods stock transferred by the applicant from the SEZ unit to its DTA unit would be eligible for exemption from the payment of SAD. under Notification No. 45/2005-Customs, dated May 16, 2005?
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The Revenue has contended as noted below:
The applicant has submitted a copy of chart prepared by them and countersigned by company secretaries M/s. V.K. Chaudhary and Co. (C.P. No. 4548) indicating 13.94 per cent. holdings by M/s. GE Pacific Pte. Ltd. Singapore and balance 86.06 per cent. holdings by M/s. GE Energy Europe BV Netherlands which are intermediate holding Companies of M/s. GE Holdings Luxembourg and Co. Sarl, Luxembourg. However as per the balance sheet for 2010-11 as submitted by the applicant vide their letter dated August 3, 2012, the ultimate holding company is General Electric Company USA. In this regard the applicant has not submitted any other documentary evidence. It appears that the copy of memorandum and articles of association also do not have any provision in this regard.
The applicant has sought the clarification as to whether the stock transfer by the applicant from the SEZ/FTWZ unit to its DTA unit would be eligible for exemption from the payment of SAD under Notification No. 45/2005-Customs, dated May 16, 2005? In this regard it is stated that as per the present practice, the benefit of the said notification is being extended to all units in FTWZ-Arshiya including their clients subject to the condition that item/goods cleared from the FTWZ should not be exempted from payment of the Central sales tax under the Central Sales Tax Act, 1956 (in short "CST Act")/VAT as provided in the proviso to the notification. The said benefit is being extended to all importers (units or clients of units) for clearance of all goods from FTWZ to DTA irrespective of the status of importer being a trader or manufacturer or service provider or any other person. There is no discrimination on the ground whether the...
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