GST理事会收到汽车行业的多项陈述，反映GST官员发出通知，指控经销商在OEM（原始设备制造商）于工厂门口交付货物时，其进项税额抵扣（ITC）不符合规定。根据陈述，GST官员认为，只有当货物实际送达经销商的营业场所后，经销商方可抵扣ITC。因此，他们认为经销商违反了《CGST法案》第16(2)(b)条的规定，错误地抵扣了ITC。
根据第55次GST理事会会议的建议，中央间接税和关税委员会（CBIC）于2024年12月31日发布了第241/35/2024-GST号通告，针对工厂交货（Ex-works）合同下，供应商在其营业场所交付货物时，根据《CGST法案》第16(2)(b)条抵扣ITC的合规性作出了详细说明。
1. 审议事项：
- CBIC收到汽车行业的陈述，要求就工厂交货合同下，供应商在其营业场所交付货物时，根据2017年《CGST法案》第16(2)(b)条抵扣进项税额（“ITC”）的适用性进行澄清。
- 在汽车行业中，汽车经销商与原始设备制造商（OEM）通常签订工厂交货（EXW）合同，货物（如车辆）的所有权在OEM工厂门口即转移给经销商。
- 当货物在OEM工厂门口移交给承运人时，即视为交付完成。OEM可代表经销商安排运输和运输保险。若运输途中发生任何损失，由经销商负责提出索赔。
- 经销商在货物于OEM工厂门口交付之日，将其计入账簿。
- 经销商在车辆开具账单并由OEM在工厂门口移交给承运人之日，即进行ITC抵扣。
- 然而，一些基层部门认为，只有当车辆实际送达经销商的营业场所后，经销商方可抵扣ITC。目前已向多家经销商发出通知，要求其补缴因违反《CGST法案》第16(2)(b)条规定而错误抵扣的税款。
2. 相关法律摘录
根据GST法律的以下条款，ITC抵扣被否决：
“第16条。进项税额抵扣的资格与条件。
...
(2) 尽管本条有任何其他规定，任何注册人员均无权就其收到的任何货物或服务（或两者）抵扣进项税，除非：
...
...
...
(b) 其已收到相关货物或服务（或两者）。
解释：就本条款而言，在以下情况下，应视为注册人员已收到货物或服务：
(i) 供应商根据该注册人员（无论是否作为代理人）的指示，在货物运输前或运输过程中，通过转让货物所有权凭证或其他方式，将货物交付给收货人或任何其他人；
(ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person;
...”
3. Clarification Issued
Considering the recommendation of GST Council in 55th GST Council meeting, the CBIC has issued following clarification vide Circular No. 241/35/2024-GST dated 31st December, 2024:
3.1 Condition of physical receipt of goods under Section 16(2)(b) of CGST Act
- Section 16(2) of CGST Act is a non-obstante clause which enlists the conditions, failing which the registered person shall not be entitled to claim the ITC. One of the conditions as per clause (b) is that a registered person is not entitled to claim ITC in respect of any supply of goods or services or both unless he has “received” such goods or services or both.
- Explanation to Section 16(2)(b) provides the scenario where goods shall be deemed as received.
- As per Section 16(2)(b), there is no reference of any particular place where goods are required to be “received” by the registered person. This is contrary to the erstwhile Central Excise regime, where the goods were required to be physically received at the factory of the manufacturer for taking ITC. However, State VAT Acts did not explicit mention physical receipt of goods at any particular place for claiming ITC.
3.2 Cases where goods are deemed to have been received by registered person
- As per Explanation to Section 16(2)(b) of CGST Act, the goods shall be deemed to be received by the registered person where:
- the goods are delivered by the supplier to a recipient or to any other person on the direction of such registered person, whether acting as an agent or otherwise;
- such direction may be given before or during movement of goods; and
- the goods may be delivered either by way of transfer of documents of title to goods or otherwise.
- Therefore, as per the explanation, where the goods are delivered by the supplier to any other person upon the direction of the registered person then the registered person shall be deemed to have “received” such goods for the purpose of Section 16(2)(b) of CGST Act.
3.3 Receipt of goods in case of EXW Contract
- In the instant case, as per the EXW contract between the dealer and the OEM:
- the goods are handed over by the OEM to the transporter at his factory gate for onward transmission to the dealer;
- transport is arranged by OEM on the behalf of dealer; and
- If insurance is arranged, it is done on the behalf of dealer and any claim in case of loss has to be lodged by the dealer.
- Therefore, the property in such goods can be considered to have been passed on to the dealer upon handing over of the such goods to the transporter at his factory gate. Therefore, such goods shall be considered to have been delivered to the dealer at the factory gate of the supplier even though the goods may be physically received by the dealer after the transit period.
- Accordingly, CBIC has clarified that as per explanation to Section 16(2)(b) of CGST Act, the dealer can be considered to have “received” such goods at the time of handing over of such goods by the supplier to the transporter at his factory gate.
- The same principle is applicable in respect of supply of goods under EXW contract where as per the terms of the contract, the goods are to be delivered by the supplier to the recipient or to any other person (including a transporter) on behalf of the recipient, at supplier’s place of business and the property in the goods stands transferred to the recipient at the time of such handing over.
- In such cases, such goods shall be construed to have been “received” by the said recipient at the time of handing over of such goods to the recipient or to the transporter, as the case may be.
3.4 Goods should be used for the purpose of and furtherance of business
- CBIC has clarified that as per Section 16(1) of CGST Act, a registered person shall be entitled to take ITC in respect of supply of goods or services, which is used or intended to be used in the course or furtherance of business.
- Therefore, ITC may be available to the registered person on such receipt of goods at the factory gate of the supplier subject to fulfilment of other conditions of section 16 and section 17 of CGST Act including the condition that the said goods are used or intended to be used in the course or furtherance of business by the said registered person.
- If such goods are found to be used for non-business purposes at any stage, i.e., before physical receipt or goods or subsequently, the registered person shall not be entitled to ITC in respect of such goods under section 16(1) of CGST Act.
