GST Liability on Merchant Trade Transactions Between Indian Entities for Goods Moving Outside India
The applicant, an Indian company, purchased goods from vendors in Spain/USA and sold them to another Indian entity (“Party B”). Crucially:
The goods were delivered directly from the foreign vendor to a warehouse in the USA.
The goods were eventually sold to customers in the US via Amazon under Party B’s name.
The goods never entered Indian geographical borders.
The Applicant’s Argument: Under Para 7 of Schedule III of the CGST Act, “supply of goods from a place in the non-taxable territory to another place in non-taxable territory” is neither a supply of goods nor services. Therefore, no GST should apply.
1. The Core Legal Distinction
The AAR ruled in favor of the Revenue, highlighting a critical distinction between the physical movement of goods and the legal status of the parties involved.
Location of Supplier & Recipient: Both the applicant and Party B are located in India (the taxable territory).
Transaction Status: Because the invoice is raised by one Indian entity to another, the transaction is a “supply” between two persons in the taxable territory.
Schedule III Limitation: Para 7 of Schedule III is intended for transactions where the supply itself happens between two foreign points. Here, the contract of supply is between two domestic units.
2. Why GST applies: Schedule II vs. Schedule III
The ruling analyzed the specific provisions of the CGST Act to determine the levy:
I. Para 1(a) of Schedule II
The Act states that “any transfer of the title in goods is a supply of goods.” In this business model, the transfer of title happens when the applicant raises an invoice on Party B. Since both are in India, this is a taxable event under GST.
II. Inapplicability of Para 7, Schedule III
The AAR noted that Schedule III exemptions are “transaction-based,” not just “movement-based.”
Para 7 Eligibility: For a transaction to be “neither goods nor services,” it must be a supply from a non-taxable territory to another non-taxable territory.
The Findings: Because the invoice is domestic, the “Supply” originates in the taxable territory, disqualifying it from the Schedule III exemption.
3. Final Ruling: Registration and Payment Mandatory
The AAR concluded that the applicant’s activities constitute a taxable supply under the CGST Act.
Verdict: Registration under GST is mandatory if turnover thresholds are met.
Tax Liability: The applicant must pay GST on the invoices raised to Party B, even though the goods stay in the USA.
Implication: This ruling prevents Indian entities from using foreign warehouses to bypass domestic tax liabilities on intra-India billing.
Key Takeaways for Merchant Traders
Billing vs. Shipping: GST liability is primarily determined by the location of the supplier and the recipient on the invoice. If both are in India, “ship-to” locations outside India do not automatically grant tax exemption.
Schedule III Caveat: To benefit from Para 7 of Schedule III, the Indian entity should ideally act as a facilitator or the transaction should be structured where the Indian entity is not the “supplier” to another Indian entity.
Forex Realization: The AAR noted that the lack of foreign currency realization in India further weakened the argument for treating this as an “export” or an exempt transaction.
| 1) | Classify the above mentioned as goods or services along with HSN/ SAC code with rate of GST? |
| 2) | Clarify under which category their business will fall on the above-mentioned list and what are the documents should be maintained by them for the transactions depend upon the specified category? |
| 3) | Classify the time and value of supply of goods and services or both based on their business transactions? |
| 4) | Clarify whether they can get the refund amount from ITC credit availed? |
| 5) | Check and advice whether they arc on the correct path or they need to raise invoice under export/Nil rated/Exempted/Zero Rate or any other? If it is fall under the category of Export/Nil rated/ Exempted/ Zero rated sales/services, then whether they can get the refund of tax which is paid for previous months under B2B category. |
| 6) | In case, the above transaction is under negative list of GST Act means, are they required to register under GST Law? |
| 1) | Classify the above mentioned as goods or services along with HSN/SAC code with rate of GST? |
| 2) | Clarify under which category their business will fall on the above mentioned list and what are the documents should be maintained by them for the transactions depend upon the specified category? |
| 3) | Classify the time and value of supply of goods and services or both based on their business transactions? |
| 4) | Clarify whether they can get the refund amount from ITC credit availed? |
| 5) | Check and advice whether they are on the correct path or they need to raise invoice under export/Nil rated/Exempted/Zero Rate or any other? If it is fall under the category of Export/Nil rated/ Exempted/ Zero rated sales/services, then whether they can get the refund of tax which is paid for previous months under B2B category. |
| 6) | In case, the above transaction is under negative list of GST Act means, arc they required to register under GST Law? |
(2) The question on which the advance ruling is sought under this Act, shall be in respect of-
(a) classification of any goods or services or both;
(b) applicability of a notification issued under the provisions of this Act; (c) determination of time and value of supply of goods or services or both; (d) admissibility of input tax credit of tax paid or deemed to have been paid;
(e) determination of the liability to pay tax on any goods or services or both;
(f) whether applicant is required to be registered;
(g) whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both, within the meaning of that term.
| 1) | Classify the above mentioned as goods or services along with HSN/SAC code with rate of GST? |
We find that this query is Hable for admission as it gets covered under Section 97(2) (a) of CGST/TNGST Act, 2017 under “classification of any goods or services or both?. However, we find that the applicant has stated that they are dealing in household items Hke cooker, bags, electrical items, etc., and that they have not mentioned any details pertaining to the goods/services being dealt with by them. Without the detailed and specific description of the goods/services, it is not possible to classify the same under the correct HSN and the relevant rate of GST cannot be identified.
| 2) | Clarify under which category their business will fall on the above mentioned list and what are the documents should be maintained by them for the transactions depend upon the specified category? |
We find that this query is not covered under any of the clauses from (a) to (g) under Section 97 (2) of CGST/TNGST Act, 2017, on which an Advance Ruling could be sought, and as such, is Hable for rejection.
| 3) | Classify the time and value of supply of goods and services or both based on their business transactions? |
Chapter 12 of CGST Act, 2017 deals with time of supply of goods and Chapter 13 of CGST Act, 2017 deals with time of supply of services and Chapter 1 5 of CGST Act, 2017 is about Value of Supply of Goods and services.
On a general reading of the above said Chapters,
Time of supply of Goods can be the carficst of the following dates:
the date of issue of invoice by the supplier or the last date on which he is required to issue invoice or the date on which the supplier receives payment with respect to the supply.
Time of supply of Services can be the earliest of the following dates:
the date of issue of invoice by the supplier or the date of the provision of service, if the invoice is not issued within the prescribed date or the date on which the recipient shows the receipt of services in his books of account.
The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply arc not related and the price is the sole consideration for the supply.
We arc therefore of the opinion that the Time and value of goods or sendees’ is liable to be determined by the applicant based on their each of the business transactions in line with the provisions of Section 12, 13 & 15 of CGST Act 2017.
| 4) | Clarify whether they can get the refund amount from ITC credit availed? |
We find that this query is not covered under any of the clauses from (a) to (g) under Section 97 (2) of CGST/TNGST Act, 2017, on which an Advance Ruling could be sought, and as such, is liable for rejection. However, it is to be stated that the eligibility to Refund or otherwise, under the CGST/TNGST Acts, 2017, shall be decided by the propcr/jurisdictional officer based on an application for refund, if any, filed by the applicant.
| 5) | Check and advice whether they are on the correct path or they need to raise invoice under export/Nil rated/Exempted/Zero Rate or any other? If it is fall under the category of Export/Nil rated/ Exempted/Zero rated sales/services, then whether they can get the refund of tax which is paid for previous months under B2B category. |
WE find that this query is not covered under any of the clauses from (a) to (g) under Section 97 (2) of CGST/TNGST Act, 2017, on which an Advance Ruling could be sought, and as such, is liable for rejection.
| 6) | In case, the above transaction is under Negative List of GST Act means, are they required to register under GST Law? |
It is brought to notice of the applicant, that there is no Negative List under GST Act, and only exemption notifications are available separately for goods and services. However, it is to be stated here that Schedule III of CGST Act, 2017 deals with activities or transactions which can neither be treated as supply of goods nor treated as supply of services.
In this regard, we observe that as per Para 7 of Schedule III of CGST Act, 2017 “Supply of goods from a place in the non-taxable territory to another place in the non-taxable territory without such goods entering into India3‘ is outside the scope of ‘Supply’ under GST. Considering the peculiar nature of the applicant’s business transactions, we note that the Invoice is raised by the applicant on another Indian company as could be seen from the sample copies oflnvoice submitted. However, wc also note that in the instant case, the movement of goods take place outside India. At this juncture, wc refer to Schcdulc-II 1(a) of CGST Act, 2017, which states as follows:
“ACTIVITIES OR TRANSACTIONS TO BE TREATED AS SUPPLY OF GOODS OR SUPPLY OF SERVICES
1. Transfer
(a) any transfer of the title in goods is a supply of goods”
Therefore, under the applicant’s business model, transfer of title happens when the applicant raises invoice on Party B (located in India). As such, the transaction between applicant and Party B is ‘supply of goods’, even though goods arc sourced from and delivered to a place, both located outside India. Wc therefore, come to understand that in the instant case, the ‘supply of goods’ takes place between two persons in India, and only the movement of goods take place outside India. Further, it is to be noted that under para 7 of Schedule III, GST is not applicable if goods do not enter India, only in respect of those cases where a “Supply of goods” takes place from a place in the non-taxable territory to another place in the non-taxablc territory. Hence, Para 7 of Schedule III is not applicable to the instant ease, as “Supply’ takes place from one person in the taxable territory to another person in the taxable territory. Therefore, as the supply is between two units within the taxable territory i.c., supplier and receiver arc in India, GST is applicable as per Para 1(a) of Schedule II of CGST Act, 2017. Hence, registration under GST and payment of taxes under GST is required to be carried out in the instant ease.
| 1) | Classifying the goods and services under HSN and rate of GST could not be done as the specific details of the goods and services dealt with arc not furnished by the applicant. |
| 2) | Question on clarification as to the category under which the applicant’s transaction would fall is not covered under any of the issues on which the Advance Ruling can be sought under Section 97 (2) of CGST/TNGST Act, 2017 and as such, is liable for rejection. |
| 3) | “Time and value of goods or services’ could not be “Classified’ as requested by the applicant and that the same is liable to be determined by the applicant in line with the provisions of Section 12, 13 & 15 of CGST Act 2017. |
| 4) | Question on clarification as to getting refund of ITC availed is not covered under any of the issues on which the Advance Ruling can be sought under Section 97 (2) of CGST/TNGST Act, 2017 and as such, is liable for rejection. |
| 5) | Question on clarification as to the correct path about their business transaction is not covered under any of the issues on which the Advance Ruling can be sought under Section 97 (2) of CGST/TNGST Act, 2017 and as such, is liable for rejection. |
| 6) | As the supply is between two units within the taxable territory i.c. supplier and receiver arc in India, GST is applicable as per Para 1 (a) of Schedule II of CGST Act, 2017. Hence, registration under GST is required to be carried out. |