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Indirect Tax Benefits On Supplies To SEZ - Contractors Perspective - Final
Indirect Tax Benefits On Supplies To SEZ - Contractors Perspective - Final
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Conference on
EPC Contracts Tax & Legal Imperatives
18 -19 May 2007 | Hotel Imperial | Janpath | New Delhi | India
Sujit Ghosh
Executive Director, BMR & Associates
Indirect tax benefits on supplies to SEZ Contractors perspective
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CONTENTS
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THE SCHEME
PROVIDING BENEFITS
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Services/material
Contractor
Project
deliverables
Project
owner/SEZ
Unit/Developer
Subcontractor
In the above structure, the levy of indirect taxes (viz. service tax, sales tax/VAT,
excise duty etc.) typically arise on the Contractor as well as the Subcontractors
In the subsequent slides, the provisions of the SEZ Act conferring benefit of these
taxes in the overall supply chain, has been examined
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The provision relevant only on procurements by Unit & Developer & and not
on sales/output services
Consequently, a Contractor is eligible for the following benefits
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The finer point Can the Rules travel beyond the Act, has been
examined in the following slides
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The basis of the statutory power conferred by the Statute cannot be transgressed
by the rule making authority. The rule making authority has no plenary power. It
has to act within the limits of the power granted to it (Bimal Chandra Banerjee v.
State of Madhya Pradesh AIR 1971 SC 517)
The Rules, therefore, cannot be so framed which do not carry out the purpose of
the chapter and cannot be in conflict with the same (Laghu Udyog Bharti v. UOI
2006 (2) STR 276 SC)
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It cannot grant benefit beyond that which has been contemplated under the SEZ
Act
Thus, it appears that Rule 10 / Rule 27 are ultra vires the SEZ Act and hence not
valid
Consequently, as the SEZ Act contemplates benefits only on the Revenue Side
of the Main Contractor, the Rules cannot extend the benefit of tax exemptions on
the cost side of the Main Contractor
In short, Subcontractors would not be eligible to any output tax exemptions,
similar to that which is available to the Main contactors on their output taxes
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CST ON
PROCUREMENT AND
SALES WHERE
RULES 10 & 27 ARE
VALID
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This exemption has a limited impact, at least where supplies are being made
to a Unit/Developer who can issue Form C, if the Main Contractor adopts
In-transit Sales/ E1 sales/ 6 (2) Sales
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The exemption from CST under the SEZ Rules, contemplates issuance of Form I
by the purchaser as per the CST Act & Rules
As per the CST Act and the Rules, Form I can be issued only by a Unit or a
Developer in the SEZ
Accordingly, there is no provision that permits a Main Contractor to issue a Form
I, such that its Subcontractor can also claim the CST exemption as contemplated
in the SEZ Rules
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CST ON
PROCUREMENT AND
SALES WHERE
RULES 10 & 27 ARE
NOT VALID
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If supplies by Main Contractor to SEZ amounts to export, can the sales made by
the Subcontractors qualify as preceding sales in the course of export and
remain outside the net of CST/VAT
Export, has been defined to mean supplying goods from DTA to a Unit or
Developer; and
SEZ has been deemed to be a territory outside the customs territory of India for
the purposes of undertaking authorized operations
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Supply of goods by the Main Contractor to the SEZ being export and the
Constitution of India prohibiting levy of tax on export, there would never be any
occasion for levy of tax
That being the case, there would be no requirement for furnishing Form I as well
Therefore, should the same principle not apply to preceding sales in the course
of export, as they are one integrated transaction dovetailed into a single
transaction, thereby enabling the Subcontractor to also avail the exemption ?
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The Constitution lays down (in Article 286) that no law of a State shall authorize
the imposition of a tax on sale in the course of export and the Parliament would
make law formulating principles for determining when a sale takes place in the
course of export
Pursuant to this Article, the CST Act has formulated principles for determining
when a sale takes place in the course of export
Therefore, to take protection of the above Constitutional restriction, reliance has
to be placed only on the interpretation of the phrase sale in the course of
export (accorded by the Judiciary) as well as any other legislation which
provides appropriate principle on the matter, including the CST Act
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Case laws
Ratio
There must be a sale
Goods must actually be exported
Sale must be a part and parcel of the export
State of Kerala v.
Cochin Coal
Company Ltd. 12 STC
1
The word export" did not mean merely "taking out of the country" but
that the goods must be sent to a destination at which they could be
said to be imported
State of Kerala v.
Cochin Coal
Company Ltd. 12 STC
1
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Export contemplates a foreign territory where the goods must be imported into
Goods must cross outer boundaries of customs station for export to commence
In this context the following observations would be crucial to take note of:
Definition of DTA under the SEZ Act - whole of India (including territorial waters
and continental shelf) but does not include the areas of SEZ
Tacit recognition of the fact that SEZ are not areas outside India, since Indian
labour laws and other laws find applicability within the SEZ
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The Conflict between the general principles & the SEZ Act in the
present context
Notwithstanding the conclusion in the preceding slide, it may be noted that
Section 51 of the SEZ Act provides the following:
The provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act
That since the SEZ Act overrides all other law, therefore it ought to override
judge made law (under Article 141) as well as the CST Act
If yes, should not the supplies from the DTA to the SEZ be eligible for the
protection against tax as envisaged in Article 286 (ie not liable to any tax)
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DTA Supplier/
Manufacturer
Authorised
Officer
Examination at
the time of entry
of the goods into
SEZ
Clearance of
goods after
examination
for use
within SEZ
Endorsed copy of
ARE-1 and Bill of
Export to be
forwarded within
45 days
Clearance of
goods for export
Jurisdictional Officer
DTA
*Bill of export to be filed in addition if the goods cleared under export entitlement
India
Outside India
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Important to note that the denial of excise duty exemption to the Vendor
(OEM) would apply regardless of the fact that Rule 10 & 27 may be
construed to be valid. The reasoning being :
Unlike physical export, where under the CT1 procedure contemplated under
Notification 42/2001, the merchant exporter can procure goods without payment
of excise duty and therefore physically export the goods, this procedure has not
been envisaged in the SEZ Act/Rules
Instead, the SEZ Act contemplates exemptions of excise duty only on goods
brought from the DTA to the SEZ
Contd
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Since the exemption applies at the point of manufacture, therefore the condition
should typically apply at the above point
In other words, the goods should be brought from the factory of the vendor
(OEM) to the SEZ without the physical intervention of the Main Contractor
Procedure under the above situation would remain similar to that indicated
earlier
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SERVICE TAX ON
PROCUREMENT AND
SALE
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Duty drawback available for goods under Rule 30 of the SEZ Rules
For export of services out of India, refund/ rebate of service tax paid on input
services is available
Non eligibility to credit / refund / rebate / duty drawback amounts to levy of taxes on
services that are to be exported ultimately
No apparent rationale for such treatment !
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Under the SEZ Act, export defined such that providing services from the
Domestic Tariff Area to a Unit or Developer would qualify as export for the
purposes of the SEZ Act
Under section 53 of the SEZ Act, an SEZ deemed to be territory outside the
customs territory of India.
The usage of the phrase outside the customs territory of India must be
distinguished from the phrase outside of India, which is used to determine
export of service
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Section 51 of the SEZ Act provides that the provision of the SEZ Act shall have
effect notwithstanding anything inconsistent therewith contained in any other law
for the time being in force
Correct interpretation of Section 51 of the SEZ Act should be, where in the
context of a subject directly covered under the SEZ Act, there is a contradiction
between the provisions of the SEZ Act and any other law, the SEZ Act would
prevail
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The benefits available to export of services flow from the service tax laws
Under service tax laws export defined differently from the way export is defined
under SEZ
Thus, there is a conflict between the way export is defined under the two laws
Even though there is a variance of what constitutes export under both the laws,
the same does not arise in connection with operations / benefit provided in the
SEZ
Further, since the benefit is being provided under the service tax laws, the
definition under the service tax laws would have to be considered
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Had the benefit for export of services been provided / claimed under the SEZ Act,
the definition under the SEZ Act may have prevailed
For the purposes of service tax laws, the definition under the SEZ Act cannot be
imported
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Fiscal benefits ( including Service tax) is restricted to goods and services, required for
setting up and maintenance of the factory building - No explanation of the scope of
the term factory building;
However, the above restriction does not apply where the Project Owner is SEZ
Developer / Co-developer more extensive - covers all goods and services
Where however, Rule 10 & 27 are invalid, then the exemption from service tax would
be restricted only to services provided by the Main contractors
In these situations, the Contractor would be eligible for service tax exemption on all
supplies of services regardless of whether these are being supplied to a Unit or a
Developer / Co-developer of SEZ
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IMPORT
PROCEDURE
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SEZ Unit
6
3
Qu
wit intup
ht
he licate
Cu
c
sto opy
Fourth copy sent to the banker
ms (tra
Triplicate retained
Au nss
tho hi
riti pm
e
es
at nt co
the py
po ) to
rt o be
f im file
po d
rt
Bankers
SEZ Customs
authorities
Customs
Authorities at
the port of
import
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STATE EXEMPTIONS
(SELECT STATES) GENERAL COMMENTS
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directly or
Many States have initiated the process of granting indirect tax benefits to
SEZ Developers / Units
However, States are not consistent in
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SEZ Policy
SEZ Act
Most States grant benefits on the procurements from DTA. Most of these benefits are
applicable to procurements from DTA for works contracts / EPCs
The following slides contain an overview of the legal framework and extent of indirect
tax benefits granted by select States
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SEZ
Act
Provisions
under VAT
laws
Provisions
under
Entry Tax
laws
Notifictions
under VAT
laws
Notifications
under Entry
Tax laws
Andhra Pradesh
Yes
No
Yes
No
No
No
Gujarat
Yes
Yes
No
No
No
No
Yes
(To be
notified)
Yes
(general
provision of
granting
exemption)
No
Yes
No
No
Current
provision does
not confer any
special benefits
No
No
Yes
Haryana
Karnataka
Yes
No
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Maharashtra
Yes
SEZ
Act
Yes
Provisions
under VAT
laws
Yes
(Restricted to
certain supplies
by SEZs)
Provisions
under
Entry Tax
laws
Notifictions
under VAT
laws
Notifications
under Entry
Tax laws
No
Yes
(Restricted to
certain supplies
by SEZs)
No
Tamil Nadu
Yes
No
Yes
No
Yes
(issued under
sales tax Act still
applicable)
Uttar Pradesh
Yes
Yes
No
No
Yes
(Under SEZ Act)
Yes
No
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(Zero-rated)
Gujarat
Haryana
Karnataka
Entry Tax
(On inputs)
(On inputs)
Maharashtra
Tamil Nadu
Uttar Pradesh
Legends
: Exempt
: Not exempt
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Entry Tax
(On inputs)
(On inputs)
Andhra Pradesh
Gujarat
Haryana
Karnataka
Maharashtra
Tamil Nadu
(exemption notification)
Uttar Pradesh
Legends
: Exempt
: Not exempt
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Challenge Us
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(1) Subject to the provisions of sub-section (2), every Developer and the entrepreneur
shall be entitled to the following exemptions, drawbacks and concessions, namely: (a) exemption from any duty of customs, under the Customs Act, 1962 or the Custom
Tariff Act, 1975 or any other law for the time being in force, on goods imported into, or
service provided in, a Special Economic Zone or a Unit, to carry on the authorised
operations by the Developer or entrepreneur;
(b) exemption from any duty of customs, under the Customs Act, 1962 or the Customs
Tariff Act, 1975 or any other law for the time being in force, on goods exported from,
or services provided, from a Special Economic Zone or from a Unit, to any place
outside India:
(c) exemption from any duty of excise, under the Central Excise Act, 1944 or the Central
Excise Tariff Act, 1985 or any other law for the time being in force, on goods brought
from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the
authorised operations by the Developer or entrepreneur
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(2) The Central Government may prescribe the manner in which, and the terms and
conditions subject to which, the exemptions, concessions, drawback or other benefits
shall be granted to the Developer or entrepreneur under sub-section (1).
Indirect tax benefits on supplies to SEZ Contractors perspective
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Permission for procurement of items. The Approval Committee may permit goods and
services to carry on the operations authorized under rule 9:
Provided that for the Special Economic Zones set up by the Central Government,
the goods and services required for the authorized operations may be approved by
the Board:
Provided further that exemptions, drawbacks and concessions on the goods and
services allowed to a Developer or Co-developer, as the case may be, shall also be
available to the contractors appointed by such Developer or Co-developer and all
the documents in such cases shall bear the name of the Developer or Co-developer
alongwith the Contractor and these shall be filed jointly in the name of the Developer
or Co-developer and the Contractor:
Provided also that the Developer or Co-developer, as the case may be, shall be
responsible and liable for proper utilization of such goods in all cases.
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A Unit or Developer may import or procure from the Domestic Tariff Area without payment
of duty, taxes or cess or procure from Domestic Tariff Area after availing export
entitlements or procure from other Units in the same or other Special Economic Zone or
from Export Oriented Unit or Software Technology Park Unit or Electronic Hardware
Technology Park Unit or Bio-technology Park Unit, all type of goods, including capital
goods (new or second hand), raw materials, semi-finished goods, (including semi-finished
Jewellery) component, consumables, spares goods and materials for making capital
goods required for authorized operations except prohibited items under the Import Trade
Control (Harmonized System) Classifications of Export and Import Items
Provided that exemptions from payment of duty, taxes or cess, drawbacks and
concessions on all types of goods and services, required for setting up and maintenance
of the factory building, allowed to a Unit shall also be available to the contractors
appointed by such Unit and all the documents in such cases shall bear the name of the
Unit along with the Contractor and these shall be filed jointly in the name of the Unit and
the Contractor:
Provided further that the Unit shall be responsible and liable for proper utilization of such
goods and services in all cases.
Indirect tax benefits on supplies to SEZ Contractors perspective
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