(A) BRIEF FACTS
Application was filed under Rule 128 of the Central Goods and Services Rules, 2017 [“CGST Rules”] alleging profiteering in respect of restaurant services supplied by Cilantro Diners Private Limited (“Respondent”), Franchisee of Subway Systems India Private Limited.
It was alleged that despite the reduction in the rate of GST from 18 per cent to 5 per cent w.e.f. 15.11.2017 (please refer to Notification No. 46 / 2017 – Central Tax dated 14.11.2017), the Respondent had not passed on the commensurate benefit to the customers since it has enhanced the base price of its products.
The Application was examined by the Standing Committee and Screening Committee as per the provisions of Rule 128 of the CGST Rules.
The matter was forwarded to the Director General of Anti-Profiteering, Central Board of Indirect Taxes and Customs (“DGAP”) under Rule 129(1) on 27.03.2019 recommending a detailed investigation as the Standing Committee was of the view that there is a prima facie evidence to show that the Respondent has not passed on the benefit of reduction in the rate of tax on the supply of goods or services or the benefit of Input Tax Credit [“ITC”] to the recipient by way of commensurate reduction in prices.
A notice was issued to the Respondent as per Rule 129 (3) of the CGST Rules calling upon the Respondent to reply as to whether it admits that the benefit of reduction in GST rate w.e.f. 15.11.2017, had not been passed on to its recipients by way of commensurate reduction in prices and if so, to suo-moto determine the quantum thereof and indicate the same in its reply to the notice as well as furnish all supporting documents.
The Respondent filed various documents including but not limited to Copies of GSTR-1 Returns, Copies of GSTR-3B Returns, Copies of Electronic Credit Ledger, Copies of sample sale invoices and purchase invoices, Price lists of the products, separately, for two stores registered under the same GST registration number, Monthly invoice wise summary of item-wise sales, Details of ITC availed and utilised for the period July 2017 to 14th November 2017 by the Respondent etc.
The period covered by the current investigation was from 15.11.2017 to 31.03.2019 and the Authority, vide its Order dated 19.06.2019 extended the time limit to complete the investigation up to 26.09.2019, in terms of Rule 129 (6) of the CGST Rules, on the request of the DGAP.
The DGAP completed its detailed investigation and furnished the report dated 13.09.2019 of its findings along with the relevant records in terms of Rule 129(6) to the National Anti-Profiteering Authority (“NAA”). The report was prepared based on various factors including but not limited to-
Let’s understand the issue through following illustration:
If the ITC in respect of restaurant service was 10% of the taxable turnover till 14.11.2017 (which became unavailable to him w.e.f. 15.11.2017) and if the increase in the base prices w.e.f. 15.11.2017 was less than 10%, then this would not be a case of profiteering.
However, if the increase in the base prices w.e.f. 15.11.2017, was by a margin of 14%, the extent of profiteering would be 14% – 10% = 4% of the turnover.
The DGAP after analyzing all factors and perusal of documents observed that the Respondent had increased the base prices of the products more than what was required to offset the impact of denial of ITC in respect of items sold during the same period. Hence, the DGAP was of the view that the commensurate benefit of reduction in the rate of tax from 18% to 5% had not been passed on.
The amount of profiteering computed in the present matter was amounting to INR 20,80,087/-
(B) QUESTIONS BEFORE THE NATIONAL ANTI-PROFITEERING AUTHORITY
(i) Whether the Respondent has passed on the commensurate benefit of reduction in the rate of tax to his costumers?
(ii) Whether there was any violation of the provisions of Section 171 of the CGST Act, 2017 committed by the Respondent?
(C) RESPONDENT’S SUBMISSIONS
The Respondent submitted various submissions; inter-alia includes-
(E) OUR COMMENTS
Rule 133(3)(d) provides that the NAA may order for imposition of penalty as specified under the CGST Act, 2017. It is relevant to mention here that though the said Rule talks about the imposition of penalty as per the CGST Act, however, there was no provision in this regard.
A new provision i.e., sub-section (3A) under Section 171, has been inserted vide Section 112 of the Finance Act, 2019 empowering the NAA to impose a penalty that is equivalent to 10% of the profiteered amount. The relevant text is extracted hereunder:
“(3A) Where the Authority referred to in sub-section (2), after holding examination as required under the said sub-section comes to the conclusion that any registered person has profiteered under sub-section (1), such person shall be liable to pay penalty equivalent to ten per cent. of the amount so profiteered:
Provided that no penalty shall be leviable if the profiteered amount is deposited within thirty days of the date of passing of the order by the Authority.”
The above extracted provision became effective from 01.01.2020 as per Section 1(2) of the Finance Act, 2019 read with Notification No. 01 / 2020 – Central Tax dated 01.01.2020. It is amply clear that there was no mandatory penalty i.e., equivalent to 10 per cent of the amount so profiteered, either at the time of examination of application by the Standing Committee or conducting of proceedings by the DGAP.
Though the Respondent can take a plea in its reply to the SCN that no penalty should be imposed as the penal provision under the Act was not in existence during the relevant time, however, the Department may contend otherwise.
Therefore, in our view, if the Respondent accepts the profiteered amount and does not challenge this Order before the Higher Court, it would be appropriate to deposit the profiteered amount within a period of 30 days (despite three months’ time has been given) and preclude itself from the levy of penalty.
The views expressed in this article are the personal views and for informational purposes only. The information which is summarized herein does not constitute a professional / legal advice. A detailed and thorough examination of the facts and circumstances of a particular situation are always needed for any legal opinion / advice.
 Earlier DGAP was mandated to complete the proceeding within a period of three months or within such extended period not exceeding a further period of three months. Now, the statutory time limit of three months has been extended to six months w.e.f. 28.06.2019, which could be extended for a further period of three months.
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