Page 146 - GSTL_20th August 2020_Vol 39_Part 3

360 GST LAW TIMES [ Vol. 39
tains the goods without giving notice of rejection, then, if a time
has been fixed for the return of the goods, on the expiration of
such time, and, if no time has been fixed, on the expiration of a
reasonable time.”
6.3.2 In view of the above provision, it is submitted that in case of a sale
on approval basis, there is no sale until the buyer has either signified his approv-
al (either expressly or by dealing with the goods as owner) or kept the goods un-
til the lapse of prescribed time or reasonable time. In the instant case, the appli-
cant delivers the drill bits at ONGC’s location and such drill bits are stored at
ONGC’s location after inspecting the same. Further, the invoicing and payment
is done when the said goods are consumed which signifies that property in the
goods has passed. When consumption is not done, payment can be released if the
goods are retained by ONGC beyond the prescribed time in terms of Clause 11 of
the contract.
6.3.3 In view of the foregoing, it is submitted that in the present case,
the goods are supplied on “sale on approval” basis.
6.4.1 As the imported drill bits are supplied on sale on approval basis,
the time limit for issuance of invoice is determined under Section 31(7) of the
CGST Act.
Section 31 of CGST Act deals with issuance of tax invoice :
“(1) A registered person supplying taxable goods shall, before or at the
time of :
(a) removal of goods for supply to the recipient, where the supply
involves movement of goods; or
(b) delivery of goods or making available thereof to the recipient,
in any other case, issue a tax invoice showing the description,
quantity and value of goods, the tax charged thereon and such
other particulars as may be prescribed :
………
(7) Notwithstanding anything contained in sub-section (1), where the
goods being sent or taken on approval for sale or return are removed before
the supply takes place, the invoice shall be issued before or at the time of
supply or six months from the date of removal, whichever is earlier.”
(emphasis supplied)
6.4.2 The time-limit for issuance of invoice in case of supply of goods
has been provided in sub-section (1) of Section 31. However, sub-section (7),
deals with special case i.e. when the goods are being sent or taken on approval
for sale or return, and begins with a non obstante clause.
6.4.3 As per the settled position in law [Ref. : Brij Raj v. S.K. Shaw (AIR
1951 SC 115)], the expression ‘Notwithstanding anything contained in...’ prevents
reliance on any other provision to the contrary. Courts have consistently held
that when a clause begins with the word ‘Notwithstanding’, the object is to give
it an overriding effect over other provisions of the Act which is equivalent to say-
ing in spite of those provisions, the particular clause would have full operation.
A clause beginning with the expression “notwithstanding anything contained in
this Act or in some particular provision in the Act or in some particular Act or in
any law for the time being in force, or in any contract” is more often than not ap-
pended to a section in the beginning with a view to give the enacting part of the
section, in case of conflict, an overriding effect over the provision of the Act or
the contract mentioned in the non obstante clause. This means, in spite of any oth-
er provision of the Act or any other specific Act mentioned in the non obstante
clause or any contract or document mentioned, the enactment following it will
GST LAW TIMES  20th August 2020  146