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Tax Amicus - March 2019

Lakshmikumaran & Sridharan
MEMBER FIRM OF TerraLex

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India March 25 2019

The Goods and Services Tax Council, in its 34th meeting held on 19-3-2019 recommended certain measures to streamline implementation of lower effective rates of GST for real estate sector. In its previous meeting, the GST Council

recommended that from 1-4-2019, the effective

tax rate of tax for affordable housing properties

would be 1% and that 5% would be applicable on

residential properties outside the affordable

segment.

While the home-buyers may be pleased with

an apparently lower rate of GST, the reality may

be different considering the conditions put forth

for availing the reduced tax rate. The conditions

recommended by the GST Council for

applicability of new effective tax rates are that:

• Input tax credit (ITC) shall not be available,

and

• 80% of inputs and input services shall be

purchased from registered persons. On

shortfall of purchases from 80%, tax shall be

paid by the builder @ 18% on reverse

charge (RCM) basis. However, tax on

cement purchased from unregistered person

shall be paid @ 28% under RCM, and on

capital goods under RCM at applicable

rates.

The above conditions would bar suppliers

from taking ITC on goods and services procured

by them. When the inputs and input services do

not suffer tax when procured from unregistered

persons, the builder would be obliged to pay

such tax under RCM effectively recouping the

ITC involved in such cases. It appears that the

government is targeting to make up for the

revenue shortfall on account of reduction in the

rate of tax on outward supplies by collecting non-

creditable tax from the recipient, thereby breaking

the chain of ITC.

Precedent on restricting ITC

A decision to restrict availment of ITC was

taken by the GST Council in the 23rd GST

Council meeting with regard to the supplies made

by restaurants chargeable to GST @ 5% without

the benefit of ITC. The principal reason for this

decision seems to be that the benefit of ITC was

not being passed on by restaurateurs to the

consumers. The concerns raised by the Finance

Minister on this aspect, leading to the

recommendation of reducing the rate of tax by

restricting the benefit of ITC, is extracted from the

Minutes of the GST Council Meeting, hereunder:

“65.23. The Hon'ble Chairperson stated that

the organized chains of restaurants were

factoring the input tax credit and transferring its

benefits to the consumers, but standalone

restaurants had not transferred the benefits of

input tax credit to the consumers. The anxiety

and keenness shown by these restaurants to

permit input tax credit was a method of

profiteering by them without benefiting the

consumers. He added that sectors like

automobile had passed on the benefit of input tax

credit but restaurants despite having an

advantage of 7-8% input tax credit, had not

reduced the prices and this sector had brought

bad name to GST.â€

Articles

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

3

TAX AMICUS March 2019

Considering industry’s reluctance to reduce

prices, the GST Council appears to have gone by

a popular saying in Hindi ‘जब घी सीधी उंगली से न ननकले तो ऊà¤à¤—ली टेढी करनी पड़ती है’â€, which implies ‘we will either find a way, or make one!’ While the

GST Council has taken a decisive stand of

regulating the price of supplies made by

restaurateurs and caterers by reducing the rate of

tax, the industry is still struggling to find their way

out for the period where they have availed ITC.

Role of NAA

The Government had taken a proactive step

by incorporating anti-profiteering measure in GST

law to ensure that any reduction in rate of tax on

any supply of goods or services or the benefit of

ITC is passed on to the recipient by way of

commensurate reduction in prices. However, lack

of lucidity regarding the methodology and

procedure for passing on the benefits to the

recipient by way of commensurate reduction in

prices, seems to have diluted the concept of anti-

profiteering. In fact, some of the members in real

estate and restaurant business are even held

guilty of profiteering by the National Anti-

Profiteering Authority. Some of the companies

seem to have chosen to approach the courts

seeking judicial approval to the stand taken by

them to withhold price reductions.

Jurisprudence

It may be pertinent to note that the concept of

restricting ITC is not new to the tax statutes in

India. Several States had imposed restrictions on

ITC in cases of inter-State stock transfers and

inter-State sale of goods to unregistered dealers

under the Value Added Tax regime. The

Supreme Court in the case of TVS Motor

Company Ltd. v. State of Tamil Nadu [2018-VIL-

29-SC] held that the scheme of ITC is a

concession and not a vested right, and that it was

open to the legislature to impose such

restrictions.

International perspective

The concept of breaking the chain of input

tax credit is also prevalent in the tax laws of other

countries. The Australian GST law has a unique

concept called ‘Input Taxed Supplies’, where the

supplier can neither charge GST, nor can he

recover any of the GST incurred in relation to that

supply, as credit. This concept is different from

GST-free supply (i.e., exempt supply). It may not

be appropriate to say that no GST is payable on

input taxed supplies, as the hidden element of

GST at input stage is added to the cost of

supplies made. Some of the categories of input

taxed supplies under Australian GST law are

financial supplies, residential premises, precious

metals, canteens, etc.

In UAE, Profit Margin Scheme is applicable

on second hand goods, wherein the second-hand

goods dealer pays VAT on the difference

between sale price and the purchase price,

without availing the benefit of input tax. The

concept of margin scheme is also available in

Indian GST law. The European Union VAT Rules

are simplified in some EU countries by providing

Flat-Rate Scheme, wherein the tax is calculated

by multiplying the VAT flat rate on the VAT

inclusive turnover, without allowing input VAT.

This concept is similar to the composition

scheme in Indian GST law.

Impact of recent amendments

Some of the recent changes (effective from

1-4-2019) in GST regime by way of introduction

of composition scheme for suppliers of service

(or mixed suppliers) as per Notification No.

2/2019-Central Tax (Rate) dated 7-3-2019 and

increase in turnover limit for existing composition

scheme by Notification No. 14/2019-Central Tax

dated 7-3-2019, can be regarded as moves to

enhance the ease of doing business, and in the

process breaking the chain of ITC. Similarly,

Notification No. 10/2019-Central Tax, dated 7-3-

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

4

TAX AMICUS March 2019

2019 granting higher exemption threshold limit for

supplier of goods is aimed at reducing the

compliance burden of small taxpayers at the cost

of loss of ITC for registered persons.

The overall impact of the above schemes is

that the cost of supply to an ultimate consumer

would be less than it would be under the normal

taxation system and more to a registered person

due to hidden GST component in the cost of

supply which is not available as credit.

Parting remarks

Eliminating cascading effect of taxes and

allowing seamless flow of ITC were the primary

reasons for us to migrate to GST regime.

Breaking the chain of ITC would take us back to

the erstwhile regime. Blocking or restricting ITC

at various stages of supply chain may help the

Government meet its revenue targets as every

supplier would end up foregoing ITC and pay tax

on the sale price rather than on the value added

by him. This practice should therefore be

implemented selectively in exceptional cases and

not as a general rule.

The supplier is the best judge to determine

the price of his products and services. The

principles of fiscal neutrality, proportionality and

the protection of legitimate expectations must be

interpreted in favour of the supplier to assess

their eligibility to avail ITC, particularly when all

the conditions prescribed under law are complied

with. If the departmental statistics or data

analytics reveal that the ITC is not being

efficiently utilised in a particular sector, then the

option must be given to the industry to choose

between paying lower rate of tax without the

benefit of ITC or a higher rate of tax with the

benefit of ITC.

[The author is a Principal Associate,

Lakshmikumaran & Sridharan, Bangalore]

Burden of unified registrations for EOUs and DTA units

By Anupama Ravindran

This article intends to highlight certain issues

with regard to restrictions on refund of integrated

tax paid on exports, for multiple business units

having a single GST registration.

Section 54 of the CGST Act states that any

person claiming refund of any tax may make an

application before the expiry of two years from

the relevant date. Explanation to Section 54

states that “refund†includes refund of tax paid on

zero-rated supplies of goods or services or both.

Further, it is clarified vide the Explanation that

“relevant date†means, in case of goods exported

out of India, date of loading of goods.

Rule 96 of the CGST Rules provides

procedures required for claiming such refund. It

enables refund of integrated tax paid on goods or

services that are exported out of India. The rule

states that the shipping bill filed by the exporter of

goods shall be deemed to be an application for

refund of integrated tax paid on export of goods.

Refund is granted subject to a few conditions as

prescribed under the rule.

Rule 96(10) of the CGST Rules states that

persons claiming refund of integrated tax paid on

export of goods or services should not have

received supplies on which the benefit of

Notification No. 48/2017-CT has been availed,

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

5

TAX AMICUS March 2019

that is, should not have received supplies under

deemed export benefit.

Further, Rule 96(10) of the CGST Rules

states that person claiming refund of integrated

tax paid should not have taken benefit under

Notification No. 78/2017-Cus, which is exemption

for imports by EOUs, or benefit under 79/2017-

Cus, which is exemption for imports against

advance authorization.

That is, in effect, if the registered person has

received any supplies under benefit of “deemed

exports†or customs notification providing

exemption from integrated tax and cess to Export

Oriented Units and Advance Authorization

holders, then the registered person is not eligible

to claim refund of integrated tax paid on exports.

The intention for the above restriction may be

that if the person has received deemed exports

supplies or has imported under customs

exemption notification for EOU/AA holders, then

refund of integrated tax paid on exports by

utilizing ITC should not be available as refund.

The Rule can be interpreted as provided

herein:

Rule 96(10) states that the persons claiming

refund of integrated tax paid on exports of goods

or services should not have

(a) Received supplies on which the benefit of

deemed exports benefit has been claimed

(b) Availed exemption of duties of customs for

imports by EOU, or Advance authorization

holders.

The rule does not carve out an exception for

persons who have achieved the export obligation

in respect of AAs or positive NFE in case of

EOUs, as the case may be, and subsequently

are claiming refund of integrated tax paid on a

future export.

The rule also does not make an exception for

exports of different business units under same

registration.

The rule does not also carve out an

exception for time elapsed after which such

exemption has been claimed. That is, if the

benefit of exemption is claimed today, then,

according to the said rule, the person is not

eligible anytime in the future to claim the refund.

Worse still, the rule does not carve an

exception even if the EOU unit has exited from

the EOU on payment of duties. Since the rule

reads that the person claiming refund of

integrated tax paid on exports of goods or

services should not have received supplies under

deemed export benefits or customs exemptions,

even if the EOU does not exist as of today, the

registered person cannot still claim refund.

Consider a scenario where a registered

person has multiple units within the same state,

one unit being a DTA, and another unit being

EOU or an Advance Authorization holder,

wherein the DTA unit brings 90% of total

revenue. This arrangement could be because the

local market requirement is much larger than the

export market, and DTA is handling local market

and EOU is handling exports.

In this case, the registered person is not

eligible to claim refund under Rule 96(10) of the

integrated tax paid on exports even for the DTA

unit under Rule 96. The DTA unit may prefer to

pay integrated tax on exports to utilize large

chunk of unutilized credit. However, although the

DTA unit maintains a separate book of accounts,

the restriction still applies, since Rule 96(10)

states that “person†claiming refund should not

have “received supplies†under deemed export

benefit or “availed the benefit†of customs

exemptions.

It may be noted that, GST provisions allow

for multiple units, including DTA and EOU, within

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

6

TAX AMICUS March 2019

the same state to be registered under one GST

registration. Therefore, the DTA also bears the

brunt of the credit lying in the books, when

actually the DTA unit has not received goods

under the exemption notification.

There is scope to amend Rule 96(10) of the

CGST Rules to allow these types of cases, and

to read the benefits and restrictions applicable for

each type of unit separately.

The alternative is rather simple and will

achieve a workaround to the said rule. If the

person who has claimed deemed export benefit

or exemption as claimed above, and also

maintains separate books of accounts, can very

well split the registration to separate the DTA

unit, from the unit which claims the exemption. In

this case, the DTA unit is eligible to claim the

refund from the separated registration.

Would this have been the intention of the

restriction on refund? That multiple registrations

have to be taken? That could very well have

been implemented through Section 24 of the

CGST Act stating that a EOU unit or a person

who has sought or intends to seek advance

authorization is required to be separately

registered.

While GST has harmonized registration for

the EOUs and DTAs, the registered person

should not bear impact of restriction of the EOU

on the whole registration and in turn render the

Foreign Trade Policy ineffective or burdensome

for them.

[The author is a Principal Associate,

Lakshmikumaran & Sridharan, Bangalore]

Notifications and Circulars

34th Meeting of GST Council – New regime for

residential realty sector: GST Council in the

34th meeting held on 19-3-2019 has decided on

the modalities of implementation of GST rate of

1% in case of affordable houses and 5% on

construction of houses other than affordable

houses. According to the press release, a one-

time time-bound option will be provided to

promoters to continue to pay GST at the old rate

in respect of on-going projects. Tax at new rate

will be payable from 1-4-2019 on new projects

and the same will be subject to conditions like

purchase of at least 80% of inputs and input

services [other than capital goods, TDR/ JDA,

FSI, long term lease (premiums))] from registered

persons. For ongoing projects, i.e., where both

construction and booking have started before

1-4-2019, and is not completed by 31-3-2019,

builders opting for new tax rates will transition

input tax credit as per the method to be

prescribed.

For real estate projects commencing after 1-4-

2019, supply of TDR, FSI, long term lease

(premium) of land by a landowner to a developer

will be exempt, if constructed flats are sold before

issuance of completion certificate and GST is

paid on them. If sale is after completion

certificate, GST will be payable (as per

prescribed value) on supply of TDR, FSI and long

term lease (premium) of land by the builder under

reverse charge mechanism. The liability in such

cases will arise on the date of issue of completion

certificate. Notifications are yet to be issued to

Goods and Services Tax (GST)

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

7

TAX AMICUS March 2019

implement these changes.

Special tax rate of 6% on intra-State supply,

on annual turnover of INR 50 lakh: CBIC has

notified a special tax rate of 3% CGST (+ 3%

SGST) on intra-State supply of goods or services

by a registered taxable person with an aggregate

turnover of INR 50 lakh made on or after 1st day

of April in any financial year. As per Notification

No. 2/2019-Central Tax (Rate), this tax rate will

apply subject to the conditions that supplier is not

engaged in non-GST supplies and should not be

making any supply through e-commerce. Ice-

cream, pan-masala and tobacco manufacturers

have been kept out of the purview of this special

rate.

It may be noted that suppliers taking the benefit

of this notification will be required to issue bill of

supply instead of tax invoice. Central Goods and

Services Tax (Third Removal of Difficulties)

Order, 2019, dated 8-3-2019 has been issued for

this purpose.

Registration exemption to supplier of goods if

turnover does not exceed INR 40 lakh: Any

person engaged in exclusive supply of goods and

whose aggregate turnover in the financial year

does not exceed INR 40 lakh, will not be required

to register under GST. The exemption will come

into effect from 1-4-2019. As per Notification No.

10/2019-Central Tax, dated 7-3-2019 issued to

implement the recommendations of the GST

Council, this exemption is not available to

persons required to take compulsory registration,

persons manufacturing ice cream, pan masala

and tobacco & manufactured tobacco substitutes,

persons in special category States, and persons

registering voluntarily.

TCS collected by supplier not includible in

value for GST: Tax Collected at Source (TCS)

under the Income Tax Act is not includible in the

taxable value for GST purpose as per the

corrigendum dated 7-3-2019 to Serial No.5 of

Circular No. 76/50/2018-GST dated 31-12-2018.

It cites consultation with the CBDT which clarified

that TCS is not a tax on goods but an interim levy

(not having character of tax) on possible income

arising from the sale of goods by buyer and is to

be adjusted against the final income tax liability of

the buyer.

Sales promotion schemes – GST liability and

ITC availability clarified: Where free samples

and gifts are offered as part of sales promotion

scheme, CBIC has clarified that supply of such

goods, services or both which are supplied free

of cost without a consideration, will not be treated

as ‘supply’ under GST law. It is also stated that

ITC is not available on inputs, input services and

capital goods to the extent they are used in

relation to such supplies. As per Circular No.

92/11/2019-GST, dated 7-3-2019, schemes like

‘buy one get one free’ should be treated as two

goods supplied for the price of one and such

supply will be taxable as per Section 8 of the

CGST Act, after determining whether it is a mixed

or composite supply. ITC will be available to the

supplier in such cases.

Valuation - Discounts when not includible in

value of supply: In cases of ‘Buy more, Save

more offer’ or staggered/volume discounts, where

rate of discount is increased after volume of

purchase is increased, discounts are excludible

from the value of supply, subject to condition

including reversal of ITC by the recipient.

However, the supplier will be entitled to ITC on

inputs, input services and capital goods used in

relation to such supplies. CBIC by Circular No.

92/11/2019-GST, dated 7-3-2019 has clarified

the above. It also clarifies that secondary

discounts, which are offered after the supply is

over, are not excludible, as these are not known

at time of the supply and the conditions

prescribed in clause (b) of Section 15(3) of CGST

Act are not satisfied. It is stated that there is no

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

8

TAX AMICUS March 2019

impact on availability or otherwise of ITC in the

hands of the supplier.

Last dates for filing GSTR-1 and GSTR-3B for

April-June 2019, notified: GSTR-1 for the

months of April, May and June 2019 are to be

filed till 11th day of the succeeding month by

registered persons having aggregate turnover of

more than INR 1.5 crore. For persons whose

turnover is up to INR 1.5 crore, this return for the

quarter April-June 2019 can be filed till 31-7-

2019. Further, Form GSTR-3B for each of the

months from April to June 2019, must be

furnished by twentieth day of the succeeding

month. Notifications Nos. 11 to 13/2019-Central

Tax have been issued on 7-3-2019 for this

purpose.

New return formats placed on GST portal:

Goods and Services Tax Network (GSTN) has

placed the proposed three return documents, as

approved by the competent authority, on the GST

Portal. The new formats, titled, normal, sahaj and

sugam, is likely to simplify the compliance

process for taxpayers having turnover of up to

INR 5 crore. The taxpayers would have an option

to file any of the three forms. It may however be

noted that HSN code at least at 6-digit level shall

have to be reported. As decided by the GST

Council, these forms will operate on a pilot basis

from 1-4-2019 and will be made mandatory only

from July 2019.

National Bench of GST Appellate Tribunal

notified: Ministry of Finance has notified creation

of National Bench of the Goods and Services Tax

Appellate Tribunal (GSTAT) at New Delhi.

Notification S.O. 1359(E), dated 13-3-2019 has

been issued under Section 109 of the Central

Goods and Services Tax Act, 2017 for this

purpose. It may be noted that the Allahabad High

Court in its Order dated 28-2-2019 in Torque

Pharmaceuticals v. UOI had directed the

government to give a cut-off date to set-up the

Tribunal. Union Cabinet had on 21-1-2019

approved setting-up of GSTAT.

GST incentives - Punjab to allow option: The

Punjab Cabinet has on 6-3-2019 approved an

amendment to the GST incentives notified under

the Industrial and Business Development Policy

2017, to enable industrial units to choose either

the Net GST incentive, as approved by the

Cabinet in October 2018, or incentivized SGST

on intra-State sale. As per official press release,

option must be exercised within 90 days of the

notification by units which had filed their common

application form on the Invest Punjab Business

First portal between October 17, 2017 and

October 17, 2018 (both days inclusive).

Ratio decidendi

Provisional attachment – Section 83 not

invokable against Directors: Gujarat High

Court has set aside provisional attachment of

bank accounts of directors of a company on the

ground that provisions of Section 83 of the CGST

Act can be invoked against the company, which

is a taxable person, and not against the directors.

The High Court also observed that when dues

cannot be recovered from a company, the same

can be recovered from directors under CGST

Section 89 unless they prove that such non-

recovery was not attributable to any gross

neglect, misfeasance or breach of duty on their

part. [H.M. Industrial (P) Ltd. v. Commissioner –

2019 (22) GSTL 13 (Guj.)]

Detention of goods not sustainable when

dispute is bona fide: Relying on Kerala High

Court judgement in the case of N.V.K.

Mohammed Sulthan Rawther v. UOI, the Madras

High Court has held that goods cannot be

detained when the dispute is bona fide and that it

is not open to the squad officer to detain goods

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

9

TAX AMICUS March 2019

beyond the reasonable period. The High Court

noted that only few hours are required to prepare

relevant papers for transmission to the assessing

officer. It directed the Commissioner to issue a

circular to all inspecting squad officers in Tamil

Nadu not to detain goods or vehicles where there

is a bona fide dispute as regards to the exigibility

of tax or rate of tax. [Jeyyam Global Foods v. UOI

- 2019-TIOL-28-HC-MAD]

Anti-profiteering – Passing of benefit by

retailer not dependent on manufacturer

passing the benefit: National Anti-profiteering

Authority has held that the registered supplier

issuing tax invoices on e-commerce platform is

equally responsible for passing benefits of tax

reduction and by increasing base price post rate

reduction, he had profiteered. It was observed

that passing of benefit by distributor or retailer

does not depend on passing such benefit by

manufacturer or his supplier to him first. The

Authority in this case agreed with the DGAP

report taking cum-tax price and rejected the plea

that average base price is to be used to compute

profiteering. It also held that the respondent had

not only increased the base price but also

collected GST on such price and hence was

liable to penalty. [Rahul Sharma v. Cloudtail India

Pvt. Ltd. – Order dated 7-3-2019 in Case No.

16/2019, NAA]

Anti-profiteering – Comparison can be made

with pre-GST tax rates: Observing that principle

of contemporanea exposito was not applicable in

interpreting Section 171 of the CGST Act, NAA

has held that the respondent cannot claim that

the term ‘Tax’ in Section 171 was not applicable

to non-GST levies like Central Excise duty. It

rejected the pleas that said section does not

extend to reduction in rate of tax as compared

with pre-GST indirect tax regime, and that only

reduction of tax rate in GST regime can be

considered. The Authority in this regard ruled that

respondent had indulged in profiteering as tax

incidence was reduced from 30.06% during pre-

GST to 28% and later 18% under GST regime.

[R.K. Gupta v. Abbott Healthcare Pvt. Ltd. –

Order dated 5-3-2019 in Case No. 15/2019, NAA]

Profiteering to be calculated as per period

owing to change in GST rates: NAA has upheld

the findings of the Director General of Anti-

Profiteering (DGAP) that the respondent involved

in construction of flats did not pass benefit of ITC

accrued post-GST to flat buyers / recipients. It

was held that provisions of Section 171(1) of the

CGST Act were contravened and the respondent

was also liable to penalty. Observing that in

construction of affordable housing, post-GST

rates were also reduced, the Authority held that

in cases of amendment in GST rates, profiteered

amount must be broken into two parts, i.e. from

1-7-2017 to 24-1-2018 and from 25-1-2018

onwards. [Ashok Khatri v. S3 Infrareality (P) Ltd. -

2019-VIL-06-NAA]

Valuation - Cost of tools billed to customer,

not includible: Appellate AAR Karnataka has

held that amortized cost of the tools

manufactured by the assessee and billed to the

customer but retained by the assessee for

manufacture of components for the customer, is

not to be added to arrive at the value of the

goods supplied. Overruling the AAR ruling, the

AAAR observed that according to the contract

between the assessee and the customer, there

was no obligation on the part of the assessee to

provide moulds/dies/tools. Reliance was placed on

CBIC Circular No. 47/21/2018-GST, dated 8-6-

2018. It was held that the value of the tools, which

had already suffered tax and supplied FOC to the

assessee, is not required to be added. [In RE:

Nash Industries (I) Pvt. Ltd. - 2019-VIL-08-AAAR]

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

10

TAX AMICUS March 2019

Lodging and food provided by private

boarding house is a mixed supply: Services of

lodging and food provided by a private boarding

house exclusively to the students of a secondary

school run by a charitable society is a mixed

supply, and hence is taxable at the highest

applicable rate. AAR West Bengal in its ruling

observed that services comprised of lodging

facility, food, housekeeping services and laundry

services, and were not indivisible. Exemption

under Notification No. 12/2017-Central Tax

applicant was not an educational institution. [In

RE: SARJ Educational Centre - 2019-TIOL-57-

AAR-GST]

ITC on ambulance purchased prior to 1-2-

2019 not available: AAR West Bengal has

denied input tax credit on ambulance purchased,

prior to 1-2-2019, by a manufacturer of

agricultural machinery for the benefit of the

employees under legal requirement of the

Factories Act, 1948. It observed that the

exception carved out under Section

17(5)(b)(iii)(A) of CGST Act is not applicable. The

Authority in its ruling observed that the eligibility

for claiming ITC under Section 16(1) is subject to

the provisions of the law at the time of

occurrence of the taxable event, irrespective of

when the claim is made. [In RE: Nipha Exports

Pvt. Ltd. - 2019-VIL-52-AAR]

ITC on inward supplies for construction of

pre-fabricated warehouse, not available:

Observing that a warehouse built with

prefabricated material is constructed with the

intention of use as permanent structure and

associated with beneficial enjoyment of the land

on which it is built, AAR West Bengal has held

that the same being immovable property, input

tax credit on inward supplies is not available. The

Authority while holding so, also observed that the

vendor is not supplying floor as prefabricated but

is developing floor space by fixing prefabricated

structure upon it. It also noted that the warehouse

cannot be conceived without beneficial

enjoyment of the civil structure embedded on

earth. Definition of “immovable property†in

Section 3(26) of the General Clauses Act, 1897

was referred. [In RE: Tewari Warehousing Co.

Pvt. Ltd. - 2019-VIL-47-AAR]

ITC on services of horticulture within plant

area available: Appellate AAR Odisha has held

that services availed in relation to horticulture, i.e.

plantation and gardening, within the plant area

including mining area and the premises of other

business establishments, shall qualify as input

service since creation and maintenance of green

area/zone inside plant/mining/office premises is a

business necessity for controlling pollution as

well as atmospheric temperature. The AAAR

however held that expenditure incurred towards

construction, reconstruction, renovation,

additions or alterations or repairs of the

residential colony would not be eligible for benefit

of input tax credit. Further, overruling the AAR

ruling to effectively disallow ITC on input and

input services for maintenance of guest house

transit house and trainee hostel, it was held that

these are in the nature of perquisites in favour of

the employees. [In RE: National Aluminium

Company Ltd. - 2019-VIL-07-AAAR]

Liaison office not acting as distinct person –

GST registration not required: AAR Tamil

Nadu has held that a liaison office acting as

communication channel between the parent

company abroad and Indian supplier of goods

and not charging any consideration for its

activities in India, is not liable to register itself

under GST. It observed that such office is neither

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

11

TAX AMICUS March 2019

related nor a distinct person but merely an

extension of its foreign company (working as

employees of the foreign office) and therefore

activities performed by it do not constitute supply.

The Authority in its ruling held that procurement

activities in India, for a foreign company, when

acting strictly in line with RBI conditions, do not

Holding Gmbh - 2019-VIL-48-AAR]

No exemption under Notification No. 51/96-

Cus. to OEM suppliers supplying to specified

institutions: GST AAR Odisha has held that

benefit of Notification No. 51/96-Cus. read with

Notification No. 43/17-Cus. is not available to the

OEM supplier importing specified machinery and

supplying to research institution. It observed that

the applicant (research institute) can avail the

exemption benefit only if it directly imports or

purchases before the goods being imported into

the country cross the customs frontier. The

Authority however held that concessional rate

under Notification No. 45/17-Central Tax (Rate)

and 47/17-Integrated Tax (Rate) will be available

to both imported and indigenous goods. Question

whether GST Council’s decision is binding in the

absence of a notification, was answered in

negative, observing that exemption must be as

per the statutory notification. [In RE: Indian

Institute of Science Education and Research -

2019-TIOL-54-AAR-GST]

Payback points not redeemed by customers

are not actionable claim: AAAR Haryana has

held that supply of providing payback points

under loyalty programme of the partner clients to

the end customers, ceases to be actionable claim

post lapse of validity period for the claim. The

Appellate Authority was of the view that such

supply would hence become a supply of service

liable to GST. The AAAR in its ruling upheld AAR

ruling holding that amount retained in lieu of

expiry of payback points is supply of services

attracting GST. It observed that since the

consideration for the unredeemed payback points

has flown from the partners, the same has

become applicant’s revenue after expiry of

validity period. [In RE: Loyalty Solutions and

Research P. Ltd. - 2019-VIL-05-AAAR]

EU VAT - Motor vehicle driving tuition is not

school or university education: CJEU has held

that motor vehicle driving tuition by a driving

school for acquiring licences to drive vehicles, is

not exempt from VAT. The EU Court in this

regard held that such tuition is not covered by the

exemption in VAT Directive for ‘school or

university education’. It held that such tuition,

even if it covers a range of practical and

theoretical knowledge, is not transfer of

knowledge and skills covering a wide and

diversified set of subjects or their furthering and

development which is characteristic of school or

university education. [A & G Fahrschul-Akademie

v. Finanzamt Wolfenbüttel – Judgement dated

14-3-2019 in Case C‑449/17, CJEU]

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

12

TAX AMICUS March 2019

Notifications and Circulars

MEIS benefit on exports directly from

EOU/SEZ on behalf of DTA unit: Export of

goods produced by the EOU/SEZ unit and

exported directly from the EOU/SEZ to the

foreign consumer with the name of DTA unit on

whose behalf the exports are made, are eligible

for the benefits under Merchandise Exports from

India Scheme (MEIS). According to the DGFT

Policy Circular No. 20/2015-20, dated 22-2-2019,

MEIS benefits may be taken by SEZ/EOU or DTA

unit and not both, based on disclaimer from the

other firm. Certain criterion as specified in the

circular, however, need to be fulfilled for availing

such benefit.

Printing of Advance/EPCG Authorisation on

security paper to be discontinued: DGFT will

discontinue printing of advance authorisations

and EPCG Authorisations where port of

registration is an EDI port. This system is

applicable for authorisations issued from 1-3-

2019 onwards. Details of authorisation will be

available on ICES and process of registration of

authorisations and taking bond/bank guarantee

remain unchanged. According to CBIC Circular

No. 7/2019-Cus., dated 21-2-2019, no physical

copy of even amendment will be sought from

authorisation holder. TRA facility would however

not be available for such authorisations.

SEZ – Value of indigenous inputs not

includible in net forex earning: Ministry of

Commerce has amended Special Economic

Zone Rules, 2006 to provide that sum of value of

inputs in the formula for calculating positive net

foreign exchange [B in formula A-B>0], will not

include value of indigenous inputs, used for

authorised operations. It may be noted that prior

to 21-9-2018 the position was same and the

reference to indigenous inputs was inserted in

Rule 53 of SEZ Rules by Notification dated 19-9-

2018. SEZ Notification No. G.S.R. 200(E), dated

7-03-2019 has been issued for this purpose.

Trust can also establish SEZ – SEZ

(Amendment) Ordinance promulgated:

President of India has, on 2nd of March,

promulgated the Special Economic Zones

(Amendment) Ordinance, 2019. According to the

latest amendments, which came into effect from

2nd of March 2019, trust or any entity notified by

the Central Government, can also establish a

Special Economic Zone for manufacture of goods

or for rendering of services. Definition of ‘person’

as available in clause (v) of Section 2 of the

Special Economic Zones Act, 2005 has been

amended for this purpose. The Union Cabinet

had approved the Ordinance on 28-2-2019.

Transport and Marketing Assistance scheme

for agriculture produce approved: Central

government has approved a scheme titled

Transport and Marketing Assistance (TMA) for

specified agriculture produce. This scheme will

provide for reimbursement of international

component of freight and marketing assistance

for export by air as well as by the sea. It will

mitigate disadvantages of higher cost of

transportation of export of specified agriculture

products and promote brand recognition for

Indian agricultural products in the overseas

market. Department of Commerce & Industry has

issued a notification on 27-02-2019 in this regard.

Customs

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

13

TAX AMICUS March 2019

Ratio decidendi

Valuation – Demurrage not includible –

Explanation to Valuation Rule 10(2) is bad:

Observing that demurrage is a kind of penalty

and that the legislature did not intend to include it

in the value of goods under Section 14 of the

Customs Act, 1962, Orissa High Court has held

that provisions for inclusion of demurrage

charges, under the Customs Valuation Rules, are

ultra vires Section 14 of Customs Act.

Explanation to Rule 10(2) was hence struck

down. Observing that the provisions in the

Customs Act were silent about demurrage, the

High Court held that it is beyond the legislative

powers to include demurrage charges in the rules

for Customs valuation. Supreme Court

judgements in Wipro ltd, Essar Steel Ltd. and

Mangalore Refinery and Petrochemicals Ltd.

were relied on. [Tata Steels v. UOI – W.P.(C) No.

7917 of 2009, decided on 14-2-2019, Orissa High

Court]

Advance authorisations – ‘Prior import

condition’ quashed: Gujarat High Court has

quashed the ‘pre-import condition’ under

Advance Authorisation regarding prior imports for

manufacture of export goods. The Court

observed that the government cannot grant

benefit by one hand and take it away by other

and say that it is up to the beneficiary to take it or

leave it. It observed that such condition, after

introduction of GST, lead to cash blockage and

made imports under Advance Authorisation next

to impossible. The condition was also held as not

meeting test of reasonableness. It may be noted

that this condition was in force from 13-10-2017

to 9-1-2019. [Maxim Tubes Company Pvt. Ltd. v.

Union of India - R/Special Civil Application No.

14558 of 2018 and Ors., decided on 4-2-2019,

Gujarat High Court]

Green pepper as raw produce to be classified

as vegetable and not as pepper: CESTAT

Bangalore has held that green pepper as raw

produce shall be classified as a vegetable under

Chapter 07 of the Customs Tariff and it can be

classified as spice under Chapter 09 only when it

is dried and processed. It observed that the

goods classifiable under specific item cannot be

classified under residuary item. The Tribunal in

this regard held that all the products of ‘pepper

vine’ do not necessarily fall in the chapter

pertaining to spices and that spice is not the

produce of the plant but the product of

processing of such produce. [Herbal Isolates (P)

Ltd. v. Commissioner – 2019 (365) ELT 820 (Tri.

– Bang.)]

No penalty on CHA for exports without Let

Export Order: In a case involving loading of

export containers without Let Export Order

(LEO), CESTAT Mumbai has set aside penalty

on the Customs House Agent. It held that

restriction on placing goods on board without

proper clearance is applicable to person-in-

charge of conveyance, or custodian, and not to

CHA. The Tribunal also noted that contents of the

container were not in breach of any prohibition.

Department’s plea that there was substantial

lapse on part of the CHA in handing over

containers without first obtaining clearance under

Section 51 of the Customs Act, 1962, was

rejected. [Delta Logistics v. Commissioner -

Order No. A/85297/2019, dated 15-2-2019,

CESTAT Mumbai]

Anti-dumping duty not to be imposed on

second hand machinery: CESTAT Chennai has

held that import of second hand machinery

cannot be subjected to imposition of anti-

dumping duty (ADD) meant for new machinery. It

observed that purpose of anti-dumping is served,

in case of second-hand machinery, by way of re-

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

14

TAX AMICUS March 2019

appraisement of declared value, and imposition

of ADD would be nothing but double jeopardy.

The Tribunal while holding so, dismissed the

appeal for ADD imposition and for transfer of the

matter to the ADD Bench. It also observed that

anti-dumping duty notification which came in

2009, cannot be back-pedalled to be imposed on

goods which have been manufactured and

exported in 2007 from a particular country.

[Commissioner v. Trinity Exporters - Final Order

No. 40357/2019, dated 20-2-2019, CESTAT

Chennai]

Ratio decidendi

Job work of textile goods – Liability under

Excise Rule 12B explained: Noting that Central

Excise Rule 12B and the notification talked about

‘aggregate value’ of clearances of job worker, the

Supreme Court has held that assessee

manufacturing textiles through job workers would

be liable once aggregate value crossed the

threshold. The Apex Court rejected assessee’s

reliance on third illustration in CBEC Circular

dated 30-10-2003. It held that third illustration did

not fit in the scheme of Rule 12B. The assessee

had pleaded that liability will be only in respect of

a particular job worker whose clearance had

exceeded threshold. [Dinesh Textiles v.

Commissioner - Civil Appeal Nos. 9740-9741 of

2018, decided on 28-2-2019, Supreme Court]

Refund claim by buyer and manufacturer to

be treated differently: Supreme Court has

rejected time-barred refund claim of central

excise duty by the buyer, in a case where duty

was paid under protest by the manufacturer-

seller. It observed that scheme of Excise Section

11B makes a distinction between rights of a

manufacturer and that of the buyer. Supreme

Court’s earlier decision in the case of CCE v.

Allied Photographics India Ltd. was relied on. The

Apex Court hence refused buyer’s refund claim

filed beyond period of limitation, for which excise

duty was paid by the manufacturer under protest

and was never claimed though decided in favour

by the court. [Western Coalfields Ltd. v.

Commissioner - Civil Appeal No(s). 807 of 2006

and Ors., dated 20-2-2019, Supreme Court]

In-house corporate guarantee not liable to

service tax: CESTAT Chennai has held that

commission received/paid for issuance of

corporate guarantee to associate/subsidiary

companies is not exigible to service tax under

Section 65(12)(a)(ix) of Finance Act, 1994. The

Tribunal observed that corporate guarantee is not

same as bank guarantee since corporate

guarantee is an in-house guarantee issued to

safeguard financial health of associate

enterprises and is not issued to customers

generally. It was also held that only the services

listed in Section 65(12)(a)(ix) ibid would be

exigible to service tax under Banking and Other

Financial Services. The Tribunal in this regard

also observed that it was also not the case that

the corporate guarantee was issued / procured to

enable the bank to issue bank guarantee.

[Sterlite Industries v. Commissioner - Final Order

No. 40318/2019, dated 19-2-2019, CESTAT

Chennai]

Central Excise and Service Tax

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

15

TAX AMICUS March 2019

Service tax exemption to transport from

factory to gateway port – Conditions: CESTAT

Delhi has held that exemption under Notification

No. 31/2012-ST, to transportation of goods from

factory to the gateway port, cannot be denied for

belated filing of declaration EXP-1, EXP-2. Delay

in submission of form was of 22 days. The

Tribunal while holding so, observed that once

form EXP-1 was filed it would be valid till details

therein change. It was held that the form was not

required to be given with each consignment, as

the form did not contain the details of the

particular consignment. [Makson Healthcare Pvt.

50299/2019, dated 21-2-2019, CESTAT Delhi]

Cenvat credit reversal - Exempted value

cannot be used in formula: CESTAT Chennai

has held that where a portion of taxable service is

exempt, it is not justified in considering exempted

portion also in the formula for determining

amount of Cenvat credit to be reversed. The

appellant had availed exemption for 90% of the

value of Financial Leasing services under

Notification No. 4/2006-S.T. Tax was demanded

considering this 90% as exempted service under

Cenvat Rule 6(3A) formula. Tribunal observed

that service is not wholly exempted and cannot

be considered as exempted services. [Sundaram

Finance v. Commissioner - 2019-VIL-127-

CESTAT-CHE-ST]

Commission paid by exporter to foreign

subsidiary – Exemption: CESTAT Allahabad

has held that benefit of service tax exemption

was available on commission paid by exporter to

its foreign based subsidiary for procurement of

orders from foreign companies. It noted that

denial of exemption would apply only in cases

where export was made to own joint venture or

wholly owned foreign subsidiary. The Tribunal

held that benefit of exemption from service tax

under Notification No. 18/2009-ST was available

on such commission paid to own subsidiary

company. The demand was also held as time-

barred. [Super House Limited Shoe Div. v.

Commissioner - 2019-VIL-111-CESTAT-ALH-ST]

Cenvat credit on GTA services when goods

cleared on FOR basis: CESTAT Ahmedabad

has held that Cenvat credit was available on GTA

services for delivering goods to buyer’s doorstep,

in a case involving both MRP and non-MRP

sales. Period involved was after 1-4-2008. The

Tribunal observed that goods were cleared on

FOR basis and freight/damages in transit was

responsibility of assessee. Supreme Court

judgement in Ultratech was distinguished noting

that it did not consider Point of Sale or FOR price

issue. CBIC Circulars dated 22-12-2014 and 23-

8-2007, as in force during relevant time, were

relied upon. [Sanghi Industries v. Commissioner -

Final Order No. A/10374-10375/2019, dated 25-

2-2019, CESTAT Ahmedabad]

Appeal – Filing of appeal for different units at

principal place of business: In a case for

refund claims pertaining to different units,

CESTAT Ahmedabad has held that appeal can

be filed at principal place of registration since

under GST regime there is centralization of State

jurisdiction. Appeal before Commissioner

(Appeals) having jurisdiction over principal place

of business, was held to be correct. The Tribunal

also relied on CBIC Circular No. 1056/05/2017-

CX, meant for large taxpayer units (LTU). The

department had contended that Commissioner

(Appeals) Rajkot erred in admitting appeals

pertaining to a unit located at Dahej.

[Commissioner v. Reliance Industries - 2019-VIL-

163-CESTAT-AHM-CE]

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

16

TAX AMICUS March 2019

Ratio decidendi

State enactment for saving VAT recovery post

GST, valid: Kerala High Court has held that

Kerala VAT Act does not stand fully repealed with

the 101st Amendment to the Constitution and

that the State has legislative powers to enact

saving clause under Section 174 of the Kerala

GST Act allowing department to levy and recover

VAT for transactions prior to GST. It rejected the

plea that States have been denuded of the

legislative power to enact Section 174 because

of the amendment to Entry 54 of List II of

Seventh Schedule to the Constitution of India. It

observed that there is always a presumption in

favour of the constitutionality and where the

validity of a statute is in question, the

interpretation which makes the law valid is

preferred. The High Court hence upheld the

constitutional validity of Section 174 providing for

repeal and savings and rejected as inapplicable

the petitioners’ other propositions, the survival of

the sunset clause, the impact of a temporary

statute, and inapplicability of Section 6 of the

General Clause Act vis-Ã -vis a repealed

enactment. [Sheen Golden Jewels v. STO -

WP(C). No. 11335 of 2018, decided on 11-1-

2019, Kerala High Court]

Levy of advertisement tax by State govt is

ultra vires post 101st amendment: Allahabad

High Court has held that levy and collection of

Advertisement Tax by Nagar Palika Parishad,

Hathras is without legislative/statutory

competence and is ultra-vires Article 265 of the

Constitution. The High Court observed that by

101st Amendment to the Constitution, Entry-55 of

List-II of Seventh Schedule to Constitution of

India, under which State government had

competence to levy/collect advertisement tax,

was omitted. It noted that taxation power with

municipalities under Section 128(2)(vii) of the UP

Municipalities Act stood omitted by Section 173

of the UPGST Act. [Pankaj Advertising v. State of

U.P. - 2019-VIL-70-ALH]

Value Added Tax (VAT)

© 2019 Lakshmikumaran & Sridharan, India All rights reserved

17

TAX AMICUS March 2019

NEW DELHI 5 Link Road, Jangpura Extension, Opp. Jangpura Metro Station, New Delhi 110014 Phone : +91-11-4129 9811 ----- B-6/10, Safdarjung Enclave New Delhi -110 029 Phone : +91-11-4129 9900 E-mail : [email protected] MUMBAI 2nd floor, B&C Wing, Cnergy IT Park, Appa Saheb Marathe Marg, (Near Century Bazar)Prabhadevi, Mumbai - 400025 Phone : +91-22-24392500 E-mail : [email protected] CHENNAI 2, Wallace Garden, 2nd Street Chennai - 600 006 Phone : +91-44-2833 4700 E-mail : [email protected] BENGALURU 4th floor, World Trade Center Brigade Gateway Campus 26/1, Dr. Rajkumar Road, Malleswaram West, Bangalore-560 055. Ph: +91(80) 49331800 Fax:+91(80) 49331899 E-mail : [email protected]

HYDERABAD 'Hastigiri', 5-9-163, Chapel Road Opp. Methodist Church, Nampally Hyderabad - 500 001 Phone : +91-40-2323 4924 E-mail :[email protected] AHMEDABAD B-334, SAKAR-VII, Nehru Bridge Corner, Ashram Road, Ahmedabad - 380 009 Phone : +91-79-4001 4500 E-mail : [email protected] PUNE 607-609, Nucleus, 1 Church Road, Camp, Pune-411 001. Phone : +91-20-6680 1900 E-mail :[email protected] KOLKATA 2nd Floor, Kanak Building 41, Chowringhee Road, Kolkatta-700071 Phone : +91-33-4005 5570 E-mail : [email protected] CHANDIGARH 1st Floor, SCO No. 59, Sector 26, Chandigarh -160026 Phone : +91-172-4921700 E-mail :[email protected]

GURGAON OS2 & OS3, 5th floor, Corporate Office Tower, Ambience Island, Sector 25-A, Gurgaon-122001 phone: +91-0124 - 477 1300 Email: [email protected] ALLAHABAD 3/1A/3, (opposite Auto Sales), Colvin Road, (Lohia Marg), Allahabad -211001 (U.R) phone . +91-0532 - 2421037, 2420359 Email:[email protected]

Disclaimer: Tax Amicus is meant for informational purpose only and does not purport to be advice or opinion, legal or otherwise, whatsoever. The information provided is not intended to create an attorney-client relationship and not for advertising or soliciting. Lakshmikumaran & Sridharan does not intend to advertise its services or solicit work through this newsletter. Lakshmikumaran & Sridharan or its associates are not responsible for any error or omission in this newsletter or for any action taken based on its contents. The views expressed in the article(s) in this newsletter are personal views of the author(s). Unsolicited mails or information sent to Lakshmikumaran & Sridharan will not be treated as confidential and do not create attorney-client relationship with Lakshmikumaran & Sridharan. This issue covers news and developments till 20th March, 2019. To unsubscribe, e-mail Knowledge Management Team at [email protected]

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