GST, Excise, Service Tax, Customs & VAT updates for April 2018

A. Goods & Services Tax (GST) Tax Update for April 2018

♠ Highlights of 27^th GST Council meeting held on 4^th May 2018:-

1. GST Return Simplification:-

• GSTR 1 and GTR 3B will continue for the next 6 months.
• New Single-return plan will go live after 6 months – 12 returns a year, instead of 36 returns.
• Provisional credit can be claimed by the return preparers in the transitional phase of 6 months based on self-calculations.
• The GSTN shows the buyer, invoices uploaded by the seller and thus buyer can check the gap between the credit claimed by him and actually allowed to him.
• After 6 months of transition period, if it is noticed that after uploading invoices, seller has not paid tax amount, GSTN has all right to recover these taxes from the buyer. There will be no automatic reversal of credit from buyer in these cases.
• No provisional credit can be claimed after this 6 month transition period.
• Nil return preparers and Composition dealers will file GST returns quarterly.

2. Change in GST Rate:-

• Levying 5% GST Cess on sugar-will comes up with a decision within 2 weeks. The proposed Cess could be in the range of Rs.1 to Rs.1.50 per kg of sugar.
• Duties on Ethanol – Reduction in rate suggested.

3. Incentives for digital payments:- 

Proposal of a concession of 2% in GST rate [where the GST rate is 3% or more, 1% each from applicable CGST and SGST rates] on B2C supplies, for which payment is made through cheque or digital mode, subject to a ceiling of Rs. 100 per transaction, so as to incentive promotion of digital payment.

4. De- Privatization of GST:-

• The GSTN will now be a government owned company with the central government holding 50% and state governments holding the balance 50% of the stake holding. The holdings by the state governments will be on pro-rata basis based on the GST ratios.
  

♠ IT Grievance Redressal Mechanism put in place to address grievances due to technical glitches:Central Board of Indirect Taxes and Customs (CBIC) has set up IT Grievance Redressal Mechanism whereby nodal officers will be appointed to address issues relating to technical glitches on GST portal. Taxpayers have to file application along with evidence on bona fide attempt to comply with law. Nodal officers will forward applications to GSTN which will verify and forward the same to IT Grievance Redressal Committee with suggested solutions. Only problems relating to Common Portal (GST Portal) and affecting a large section of taxpayers will be addressed through this mechanism.Further, TRAN-1, not filed or revised due to such issues, can now be filed (by identified taxpayers) by 30-4-2018. Circular No. 39/13/18-GST, dated 3-4- 2018.

♠ Exports – LUTs deemed to be accepted on generation of acknowledgment bearing ARN: – Letter of Undertaking (LUT) will be deemed to have been accepted as soon as an acknowledgement for the same, bearing the Application Reference Number (ARN), is generated online. No document isrequired to be physically submitted to the jurisdictional officer for acceptance of a LUT. At present exporters have to submit LUT online in Form GST RFD-11 on the common portal. CBIC Circular No. 40/14/2018-GST, dated 6-4-2018. 

♠ GST TRAN-2 can be filed till 30-6-2018:Period for filing FORM GST TRAN-2 under Rule 117(4)(b)(iii) of the CGST Rules, 2017 has been extended till 30^th June, 2018. Order No. 1/2018-Central Tax, dated 28-3-2018 has been issued for this purpose.

♠ GST rates on supply of food and drinks in trains and at platforms clarified:Ministry of Finance has clarified that GST rate on supply of food and drinks by the Indian Railways or Indian Railways Catering and Tourism Corporation Ltd., or their licencees is 5%, without Input Tax Credit (ITC). According to the Press Release dated 6-4-2018 & Order No. 2/2018-GST, dated 31-3-2018 (letter issued to the Railway Board), said rate is applicable in both trains and at platforms (static units).

♠ Transitional credit – Restriction of one year for ITC on stock of goods, valid: Bombay High Court has upheld the constitutional validity of clause (iv) of sub-section (3) of Section 140 of the Central Goods and Services Tax Act, 2017. It rejected the plea that the provisions, restricting the transitional credit (input tax credit on stock of goods) to only cases where such goods were purchased after 30-6-2016, are ultra vires Articles 14 and 19(1)(g) of the Constitution of India and are unenforceable qua the first stage dealer. The provision was also held as not in violation of principles of promissory estoppel. [JCB India Limited v. Union of India – Writ Petition No. .3142 of 2017 and Ors., decided on 19/20-3-2018, Bombay High Court].

♠ Supply of UPS along with battery for a single price is “mixed supply”:UPS and batteries supplied for a single price cannot be regarded as “composite supply” as these are not naturallybundled. Authority for Advance Ruling, West Bengal, while holding so, observed that standalone UPS and battery can be supplied in a retail setup and that both have separate commercial value as goods. The supply of UPS and battery was hence held to be covered as “mixed supply” within the meaning of Section 2(74) of the CGST Act, as they are supplied under a single contract at a combined single price. [Switching AVO Electric Power Ltd. – Advance Ruling dated 21-3- 2018 in Case No. 4 of 2018, WB AAR].

♠ Skin Care Preparations – Classification as medicaments or as cosmetics:Only those skin care preparations which are used to cure from, or for treatment of, or for prevention of a specific skindisease are be treated as a medicament classifiable under Heading 3004, unless specifically included under Heading 3304. Skin care preparations not offered primarily as medicaments are to be classified under Heading 3304. The authority held that a skin care preparation, unless specifically included under Heading 3304, should first be examined for its inclusion as a medicament in Heading 3004 by applying the twin tests laid down by the Supreme Court in Puma Ayurvedic Herbal (P) Ltd., and if it fails the tests, it should be classified under Heading 3304. [Akansha Hair & Skin Care Herbal Unit–Advance Ruling 9-4-18 in Case No. 01 of 2018, WB AAR].

♠ Recovery of food expenses from employees for canteen services provided by company liable to GST: Recovery of food expenses from employees for canteen services provided by company comes under definition of “supply” and is liable to GST. It was observed that even though there is no profit on thesupply of food to employees, there is “supply”. [Caltech Polymers Pvt. Ltd. – Order No. CT/531/18- C3, dated 26-3-2018, Kerala AAR]

♠ No GST on sale of goods procured and directly supplied outside India, without importing to India at any point: GST will not be payable in case of sale of goods procured and directly supplied outside India. The applicant was held as not liable to GST either on the sale of goods procured from China and directly supplied to the party in USA or on the sale of goods stored in the warehouse in Netherlands, after being procured from China, to customers in and around Netherlands. It was noted that the goods are not imported into India at any point of time. CBEC Circular No. 33/2017-GST, dated 1-8-2017 was relied for this purpose. [Synthite Industries Ltd. – Order No CT 12275/18-C3, dated 26-3-2018, Kerala AAR].

♠ ‘Block Joining Mortar’ is to be classified under Tariff Item 3214 90 90: Block Joining Mortar is to be classified under Tariff Item 3214 90 90 and is therefore taxable under Serial No. 24 of Schedule IV to Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017. The authority noted set aside the applicant’s contention of classifying the product under TI 3824 50 90. Block Joining Mortar is a ready to use grey cement based water resistant mortar used for joining masonry units. It was observed that the product needs to be mixed with water before applying a thin uniform layer of the paste using trowel for joining masonry units and is therefore a bonding compound, and thus satisfies the general characteristics of the products to be classified under HSN 3214 90 90 as per the Explanatory Notes to HSN. [SIKA India Pvt. Ltd. – Advance Ruling dated 9- 4-2018 in Case No 03 of 2018, WB AAR].

♠ Rubber trees agreed to be severed before supply taxable @ 18%:-Rubber trees which are agreed to be severed before the supply come under the definition of ‘Goods’ as per the CGST Act, 2017. The applicant contended that there is no GST liability on standing rubber trees which fall under the HSN 06. Noting that there is no differentiation between soft wood and hardwood in GST, the authority ruled that rubber wood fall under the HSN 4403 and will be taxable @18%.

[N.C. Varghese – Order No. CT/3270/18-C3, dated 26-3-2018].

B. Customs Update for April 2018                                                                   

♠ Japan – Customs duty reduced on specified imports therefrom: – Customs duty has been reduced on import of specified goods from Japan, in case they are imported in compliance with the Country of Origin Rules. Notification No. 34/2018-Cus. Dated 27-3-2018 substitutes the table containing 806 entries in Notification No. 69/2011-Cus. The reduction/amendment has come into effect from 1st of April, 2018. It may be noted that India has a Comprehensive Economic Partnership Agreement with Japan, & Rules issued for this purpose provide for a method to determine country of origin.

♠ Pneumatic tyres for buses/lorries, from China – CVD investigation initiated: – Ministry of Commerce and Industry has initiated countervailing (anti-subsidy) investigation in respect of import of new pneumatic tyres for buses and Lorries, from China. According to notification dated 27-3-2018, Chinese government provides benefits in the form of grants to producers/exporters through 72 identified programs. DGAD notes that there is prima facie evidence of ‘injury’ to domestic industry by such subsidized imports. New/unused pneumatic radial tyres used in buses and lorries/trucks, are liable to anti-dumping duty at present.

♠ Demand for duty or interest – Pre-notice Consultation Regulations notified: –Ministry of Finance notified Pre-notice Consultation Reg. 2018 under Customs Act, 1962. It provides for consultations with proper officer, prior to issue of SCN to person chargeable with duty or interest. According to new Regulation, pre-notice consultation must be initiated at least 2 months prior to due date for issuance of SCN, & conclude within 60 days from date of communication of grounds. Further, proper officer shall proceed to issue SCN if no response is received from assessee within 15 days.

♠ Exemptions from IGST and Compensation Cess extended till 1-10-2018:-Both CBIC and DGFT have on 23-3-2018 extended exemption available to EOUs from IGST and Compensation Cess payable on imports, till 1-10-2018. While on the Customs side, Notification No. 52/2003-Cus. amended, DGFT issued notification to revise Para 6.01(d)(ii) of the Foreign Trade Policy 2015-20,for this purpose. The exemption is also available on procurements from bonded warehouses in DTA or from international exhibition held in India.Further, the exemption from IGST and Compensation Cess in respect of imports under Advance Authorization & EPCG scheme has also been extended till 1st October, 2018. Notification No.35/2018-Cus., dated 28-3-2018 amends various Customs notifications for this purpose. DGFT in this regard has issued Notification No. 54/2015-20 on 22-3-2018 amending Para 4.14 &Para 5.01(a) of Foreign Trade Policy 2015-20.

♠ BCD increased on certain parts for use in manufacture of cell phones: –Import duty has been increased on camera modules, connectors and certain printed circuit boards for use in manufacture of cellular mobile phones. According to amendments effective from 2-4-2018, Basic Customs Duty on these goods will be 10% instead of nil. Inputs or parts for manufacture of these products, including sub-parts for manufacture of parts for these goods, however will continue to enjoy exemption from Basic Customs Duty. Amendments made in Notification Nos. 57/2017-Cus., 24/2005-Cus., 25/2005-Cus. & 50/2017-Cus. by Notification Nos. 37–40/2018-Cus., all dated 2-4-2018. Further it may be noted that by Notification No. 36/2018-Cus., also dated 2-4-2018, the tariff rate of BCD for Tariff Item 8517 70 10 has been increased from nil to 10%.

♠ Monetary limit for departmental appeals extended to classification and refund cases: –Monetary limit for challenging a judgment pronounced not in favor of the Revenue Department is now applicable in respect of judgments / orders on classification and refund cases as well. CBIC has withdrawn the exclusion earlier provided to “classification and refunds issues which are of legal and/or recurring nature”. These cases were to be contested irrespective of amount involved. Further, field formations have been directed to withdraw cases pending before the Commissioner (Appeals) where Supreme Court has decided the issue and the same has been accepted by the Department. Instruction dtd 4-4-18 from file F.No.390/Misc/116/2017-JC issued for this purpose.

♠ Second-hand goods can be freely importedfor repairs: –Second-hand goods imported for repair, re-furbishing, re-conditioning or re-engineering can be imported freely subject to conditions. The benefit is however available only if the waste generated during such repair, etc. is treated as per the domestic laws and the imported item is re-exported according to the Customs notification.New Para 2.31(iii) inserted by Notification No. 58/2015-20, dated 28-3-2018.

♠ Pepper import policy revised – MIP prescribed: –Ministry of Commerce and Industry has revised import policy for pepper classifiable under Chapter 09 of ITC (HS). Import of pepper having CIF price over and above Rs. 500/kg only is now free Pepper with CIF price below this has been prohibited for import. However, according to DGFT Notification No. 53/2015-20, dated 21-3-2018, import of light black pepper under Advance Authorization Scheme would be exempted from said Minimum Import Price (MIP) condition when import is for extraction of oleoresin for re-export by the manufacturer exporters only, subject to certain conditions.

♠ Apple imports allowed without port restrictions: –Port restrictions in case of import of apples (TI 0808 10 00) have been removed. Ministry of Commerce has issued Notification No. 56/2015-20,dated 27-3-2018 to revise the import policy condition specified in Chapter 08 of the ITC (HS). Hitherto, apples could be imported only through seaports and airports in Kolkata, Chennai, Mumbai and Cochin and land port and airport in Delhi, and through India’s land borders.

♠ Jute products from Nepal – Exemption from Additional Customs duty: –Jute products falling under Headings 5310 and 6305 of Customs Tariff have been exempted from Additional Customs Duty for the period from 17-7-2015 to 15-12-2016. As per Notification No. 30/2018-Cus. (N.T.), issued under Customs Section 28A, there was a general practice of non-levy of additional duty of customs during the said period. Interestingly, India at present imposes antidumping duty on certain jute products imported from Nepal on the ground that dumped imports from Nepal are causing injury to domestic industry.

♠ Solar panels/modules equipped with bypass and/or blocking diodes – Classification: –CBIC has clarified that solar panels or modules equipped with bypass diodes are to be classified under Heading 8541. Solar panels/modules equipped with blocking diodes are however to be covered under Heading 8501 of the Customs Tariff. Instruction No. 8/2018-Cus., dated 6-4-2018 further clarifies that solar panels or modules equipped with both blocking diodes and bypass diodes are to be classified under Heading 8501. The Board in this regard deliberated upon the functioning of bypass and blocking diodes with reference to the decisions of World Customs Organization.

♠ Exemption to import of inputs when contract for final product cancelled: –Observing that dispute between assessee-importer and their customers was pending for arbitration, CESTAT Delhi has remanded the matter, relating to exemption to imports, to original authority for decision after arbitration. The assessee had imported components, under Notification No. 39/96-Cus., for manufacture of machinery to be supplied to Ministry of Defence. The contract with Research Centre Imarat, DRDO, and Ministry of Defence was however cancelled subsequent to import. The Tribunal in this regard observed that matter regarding validity of purchase order was still to be resolved by due process. It was noted that at the time of import, the claim for exemption was supported by due documents provided by DRDO. [Aron Hurley Koncepts Pvt. Ltd. v. Commissioner – Final Order Nos. 51062- 51064/2018, dated 14-3-2018, CESTAT Delhi]

♠ Importer – Name in Bill of Lading not conclusive proof of ‘importer’:-CESTAT Delhi has held that in case the assessee denies import of goods and does not hold himself to be an importer, it is for the Revenue Department to establish that the assessee was indeed the owner/importer of goods. The Tribunal in this regard observed that except for the bill of lading which itself was disputed as a mistaken transaction by the shipper, there was no other evidence on record to hold the assessee as importer or the person behind importation of such goods. It noted that there was no evidence that the assessee/appellant received the invoices, packing list or remitted the money towards said goods. The original authority had emphasised the fact that the bill of lading was bearing the name of the appellant which was handed over to the CHA by an employee of assessee. [R.S. Impex v. Commissioner – 2018 (359) ELT 593 (Tri. – Del.)]

C. Central Excise and Service Tax Update for April 2018

♠ Export of service – Advisory for investing in real estate firms in India: –In a case involving advisory in respect of investment opportunity in Indian real estate companies, where the job of the assesse was limited to research and analysis, CESTAT Delhi has allowed benefit of exports. Department’s contention that service was in relation to evaluation of real estate and hence not covered for export benefit, was rejected. The Tribunal agreed with the plea that by investing in a company in real estate sector, investor does not acquire real estate itself. The service was held to be covered under Management or Business Consultant Service and not Real Estate Advisory Service in respect of immovable properties in India. [SITQ India Pvt. Ltd. v. Commissioner – Final Order No. 50963-50967/2018, dated 13-3-2018, CESTAT Delhi]

♠ Cenvat credit on capital goods used in mines when waste cleared therefrom to others: –CESTAT Chennai has rejected department’s appeal in a case involving Cenvat credit on capital goods used in mines when some inferior quality of limestone was cleared from the mines to other manufacturers. Department’s contention that mines cannot be considered captive mines inasmuch as waste or inferior quality of goods were sold outside for commercial exploitation, was hence rejected. It was held that such disposal of waste, after permission from the State government, will not make the mines non-captive mines.

[Com. v. India Cements Ltd. – Final Order No. 40589/2018, dated 7-3-2018, CESTAT Chennai]

♠ Cenvat credit – Notification prescribing time limit applicable prospectively: – Mumbai Bench of CESTAT has held that Notification No. 21/2014-C.E. (N.T.) prescribing time limit for taking Cenvat credit is only applicable when invoices are issued on or after 11-7-2014, i.e. the date of said notification. The Tribunal in this regard observed that no time limit was available at the time of issuance of invoices. It was also noted that though credit was not entered in RG23A Part-II, same was recorded in books of accounts, which is to be considered as recorded, and hence there was no delay. Allowing assessee’s appeal, the Tribunal also observed that limitation period was further revised/relaxed in 2015 and that the invoices issued in 2014 became eligible then. [Voss Exotech Automotive Pvt. Ltd. v. Comm. – Order No. A/85346/2018, dated 16-2-2018, CESTAT Mumbai]

♠ SEZ – Exemption from Service tax when service also used outside SEZ: –CESTAT Chennai has held that merely because facility of mobile phone was used outside SEZ unit also, exemption under Notification No. 4/2004-S.T. was not deniable. This notification provided exemption from Service Tax in respect of services provided to a SEZ unit. Tribunal in this regard also observed that it was not department’s case that subscribers were outside SEZ units. Relying on provisions of Special Economic Zones Act, 2005, it was held that denial of exemption was unjustified.

[Bharti Airtel Ltd. v. Comm- Final Order Nos. 40585-40588/2018, dated 7-3-18, CESTAT Chennai]

♠ Valuation – Reimbursable expenses not includable prior to 14-5-2015:- Observing that amendment in Section 67 of the Finance Act, 1994 with effect from 14-5-2015, was a substantive change and therefore was prospective in nature, Supreme Court has held that reimbursable expenses were not includible in the value of service before the said date. The Apex Court in this regard upheld the Delhi High Court’s view that value of taxable service was the gross amount charged by the service provider ‘for such service’ and that the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service. The Court was of the view that expression ‘such’ occurring in Section 67 was of importance for this purpose both before and after amendment in 2006, and that Rule 5 of the Service Tax (Determination of Value) Rules, 2006 went much beyond the mandate of Section 67.

[Union of India v. Intercontinental Consultants & Technocrats Pvt. Ltd. – 2018 (10) GSTL 401 (SC)]

♠ SSI exemption on use of brand name on packing material when not available:- In a case involving brand name of packing material and not the brand name of goods contained in such packing material, CESTAT Delhi has denied SSI exemption under Notification No. 8/2003-C.E. as amended in 2010. The Tribunal rejected reliance on clause 4(e) allowing benefit if a brand name of another person was used on packing material. It was held that exemption was only with reference to material used for packing branded goods, and hence was not relevant here. The Tribunal however reduced redemption fine to 15% of value of confiscated goods. [Kenplast Industries v. Commissioner – Final Order No. 50098/2018, dated 1-1-2018, CESTAT Delhi]

♠ Commercial Training or Coaching service – Sale of prospectus not covered: –Observing that students by way filling of prospectus do not become entitled to get coaching from the assessee providing Commercial Training or coaching service, CESTAT Mumbai has held that the same cannot be considered as part of such service. It was noted that the prospectus was only for the purpose of screening of students by way of Admission Screening Examination and was not a part of the services. Reliance in this regard was also placed on an earlier order in the case of Balaji Society holding that sale of prospectus was not part of the Commercial Training or Coaching Services.

     [True Education Institute Pvt. Ltd. v. Commissioner – 2018-TIOL-1082-CESTAT-MUM] 

♠ Technical Testing & Analysis services – Liability on import of service before and after 1-4-2011:- CESTAT Mumbai has held that the Technical Testing and Analysis service performed abroad and received by recipient in India was liable for Service Tax under Reverse Charge Mechanism only from 1-4-2011 onwards. The Tribunal in this regard was of the view that after omission of clause (zzh) w.e.f. 1-4-2011, Technical Testing and Analysis service even though only performed outside India shall be liable as per clause (iii) of Rule 3 of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. Further noting that no part of the testing was provided in India for the reason that the testing agency was located outside India, it set aside the liability under said service category for the period prior to 1-4-2011. [EMI Transmission v. Commissioner – Order No. A/85726/2018, dated 23-3-2018, CESTAT Mumbai]

♠ Excise Section 35 cannot take down powers of High Court under Article 226:- Full Bench of Andhra Pradesh High Court has held that constitutional power of judicial review vesting in High Court under Article 226 of the Constitution cannot be whittled down or be made subject to statutory restrictions. It agreed with the Gujarat High Court decision holding that no piece of legislation, including Excise Section 35 could dilute this power. The Court was of the view that writ petition would lie against Order-in-Original, against which appeal was dismissed as time-barred or no appeal was preferred as it would have been time-barred, provided sufficient grounds are made out. [Electronics Corporation of India v. UOI – 2018-VIL-124-AP-CE-FB]

D. VAT Update for April 2018

♠ Kerala VAT – Ice cream when not covered under ‘cooked food’, and revision of deemed approval: – Kerala High Court has held that there was no intention of the legislature to include all cooked foods, in common parlance, under the compounding scheme. It observed that ice cream may in general terms be understood as cooked food, food, or a sweet, however common parlance test has no relevance when there is a specific entry. The Court however set aside the penalty observing that assessee made a bonafide attempt to be included under the compounding scheme on the reasonable presumption that “ice-creams” would also be “cooked food”. Further, on the question of deemed approval for compounding, since the department had not responded to the application for compounding, the Court was of the view that the department should have taken up the matter for suomotu revision under Section 56 of the Kerala VAT Act. It observed that when there is deemed permission then there is a deemed order which can be revised.

[Commercial Tax Officer v. Milano Ice Cream Private Limited – Judgement dated 5-3-2018 in WA.No. 387 of 2018, Kerala High Court].

♠ Karnataka VAT – Input Tax credit when invoices not in the name of assessee: – In a case involving lease of motor vehicles by the assesse-lessor, where invoice pertaining to purchase of the vehicle mentioned name of the lessee, the Karnataka High Court has held that input tax credit cannot be denied merely for the reason that the assesse-petitioner’s name is shown as lessor in the tax invoice.

[Clix Finance India Pvt. Ltd. v. State of Karnataka – 2018-VIL-151- KAR]

*Member ZAC & RAC Chandigarh – Central Excise & Service Tax (now GST) & Customs, Govt. of India, Member of Indirect Tax committee SIAM , Member, ASSOCHAM National Indirect Taxes Committee, Chief General Manager Finance- SML Isuzu Ltd., Winner Achiever Award 2015 by ICAI (CMA).

With Warm Regards & Jai Hind

(Author can be reached at nancybhalla@yahoo.com)