1. Necessary amendments related to GST Tribunal to be incorporated in Finance Bill, 2023

• The GST Council adopted the report of Group of Ministers on GSTAT with certain modifications. The final draft amendments to the GST laws would be circulated to the Members for their comments. The Chairperson has been authorised to finalise the same.

• The Finance Minister also confirmed that the amendments will be introduced through the Finance Bill, 2023.

TAXMANN’s Comments:

The GST Appellate Tribunal (‘GSTAT’) is the forum of second appeals in GST law and first common forum of dispute resolution between Centre and States. The appeals against the orders in first appeals issued by the First Appellate Authority or Revisional Authority under the Centre and State GST Acts would lie before the GSTAT, which is common under the Central as well as State GST Acts. Since the inception of the GST law in India, the GST Tribunal has not been set up. In the absence of the said GSTAT, the aggrieved taxpayers have been left remediless except in few situations wherein they can exercise their right to file the Writ Petitions under Article 226 of the Constitution of India which is also a costly affair. As a consequence, plethora of cases have been landed before the various High Courts in India and the Supreme Court, increasing the burden on the judiciary.

The existing provisions pertaining to the constitution of the GST Appellate Tribunal have been challenged before the High Courts. Currently, the GST law provides that each bench of the Tribunal should be composed of one Judicial Member, one Technical Member (Centre) and one Technical Member (State). However, the Hon’ble Madras High Court has struck down1 the said provision due to the reason that the number of technical members cannot exceed the number of judicial members on the bench.

Accordingly, a GoM on GSTAT was formed to recommend and submit its report to ensure that the legal provisions maintain the right federal balance, are in line with the overall objective of uniform taxation within the country and are in line with the principles outlined in the judgments of the Courts. After the materially rich discussion in the meeting on the given issue, it has been recommended that the Tribunals should consist of two judicial members, and one technical member each from the Centre and States. This would ensure to give equal representation of State as far as technical member is concerned. However, all the four members would not sit for every decision. The said number of members in a bench would be involved depending upon the complexity of the issue.

Further, in order to simplify and make the GST Tribunal more effective, it has been recommended to have a single Tribunal with its primary or principal bench in New Delhi and the benches of this Tribunal would be set up in every State depending upon the density in each state or because of far flung areas or any other justification. The move will ensure that no interest of the State will suffer both in terms of reference to the representation and also in reference to the number of benches States would want.

Given the above, the GST Council has confirmed that they have adopted the report of Group of Ministers on GST Appellate Tribunal with certain modifications. It is expected that the respective amendments would be incorporated in the Finance Bill, 2023 in the upcoming session.

2. No Capacity based levy on commodities like pan masala, gutkha, chewing tobacco

• GST Council has approved the recommendations of the GoM on Capacity Based Taxation and Special Composition Scheme for certain sectors wherein it has been decided that capacity-based levy would not be prescribed on panmasala, gutkha, chewing tobacco, etc., but compliance and tracking measures shall be taken to plug leakages/ evasions.

• Moreover, exports of such commodities shall be allowed only against LUT with consequential refund of accumulated ITC.

• Also, compensation cess levied on such commodities shall be changed from ad valorem to specific tax based levy to boost the first stage collection of the revenue.

TAXMANN’s Comments:

A Group of Minister (GoM) was formed for examining the possibility of levy of GST based on the capacity of manufacturing unit like pan masala, gutkha, etc. and special composition schemes in certain evasion prone sectors like brick kilns, sand mining, stone crushers, etc. with reference to current legal provisions as well as to examine any other administrative or systemic mechanism to plug leakages in these sectors as revenue in GST regime from these sectors have gone significantly down as compared to revenue yields during pre-GST era. There seems to be greater revenue leakages at the later stages of the supply chain of such commodities, and since most of the end retailers are small and below the threshold limit for mandatory GST registration, it is difficult to trace them. Now, the GST Council has approved the report of GoM chaired by Odisha’s Finance Minister which provided that the capacity based levy would not be prescribed on pan masala, gutkha, chewing tobacco, hookah, chilam, etc. It is noteworthy that as per current legal framework of GST, GST is a tax on the supply of goods and services unlike the Central Excise which was on production.

However, in order to plug the GST leakage in these products, several measures would be taken and various compliances shall be introduced such as registration of machines, monthly returns with details of machines, inputs, output quantity, mandatory e-invoicing or e-way bill, etc.

In the report, it is suggested that export of these commodities would be allowed only against a letter of undertaking with consequential refund of accumulated ITC.

It is also decided that compensation cess on these commodities shall be changed from ad valorem to specific tax based levy. Since there were leakages at the later stages of supply chain, shift from ad valorem to specific tax-based levies will boost the first-stage (manufacturer level) collection of the revenue. Such a specific tax shall be linked to the retail sale price (RSP) to maintain revenue buoyancy. Such measures including levy of specific tax will help in eliminating the cases of under-invoicing as well as clandestine removal of goods to a large extent. It is worthwhile to note that currently, GST on tobacco and pan masala is 28% and compensation cess at the top of it is 290% and 135% respectively.

3. GST Rates on ‘Rab’ and ‘Pencil Sharpners’ to be reduced

3.1. Applicable GST rates on ‘Rab’ is proposed to be reduced from 18% to 5% or Nil

• The GST rate on Rab is proposed to be reduced. The current rate on Rab is 18%. However, the same is proposed to be reduced to 5% where it is pre-packaged and labelled and Nil in other cases.

TAXMANN’s Comments:

Under the GST law, molasses is taxable at the rate of 28%. The GST Council in its 48th GST Council meeting highlighted that one State GST authority issued the show cause notices to the rab producers and wanted to treat rab as molasses.

Further, while analyzing the levy of Agricultural produce-levy, the Hon’ble Supreme Court in the case of Krishi Utpadan Mandi Samiti vs. M/s Shankar Industries and Ors. held2 that Rab is different from molasses.

In this regard, the CBIC clarified by issuance of a circular3 that the applicable tax rate on rab is 18% as the same is covered under HSN code 1702.

The GST Council has now recommended a reduction in the rate of rab considering it a liquid form of jaggery. It has been recommended that 5% GST to be levied where it is in pre-packaged and labelled form and the rate should be Nil in other cases.

It has also been recommended that the GST treatment for past periods on rab is to be done on ‘as is basis’. It means that the GST will be paid based on the current understanding of the classification and applicable rate, without any adjustments for the past period. This has been recommended in order to avoid litigation and complications.

3.2. Applicable GST rates on ‘Pencil sharpeners’ are proposed to be reduced from

18% to 12%

• The GST rate on Pencil Sharpeners is proposed to be reduced from 18% to 12%

TAXMANN’s Comments:

Applicable GST rate on pencil is 12%. However, the GST rate on pencil sharpeners is 18% and is covered under Chapter 82 of the Tariff Act. It is worthwhile to note that GST Council in its 47th meeting has given the approval for increase in rate of GST on pencil sharpeners from 12% to 18% for the correction of inverted duty structure. The Council has recommended that the GST rate on pencil sharpeners should be reduced from 18% to 12%.

4. Exemption from customs duty provided to durable container to be extended to tag tracking device

• It is recommended to suitably amend Notification No. 104/94-Customs dated 16-031994 so that if a device like tag-tracking device or data logger is already affixed on a container, no separate IGST shall be levied on such affixed device and the ‘nil’ IGST treatment available for the containers under Notification No. 104/94-Customs shall also be available to the such affixed device subject to the existing conditions.

TAXMANN’s Comments:

The durable containers that are being imported into India has been exempted from the levy of the following duties:

(a) Whole of the Customs Duty as levied under First Schedule of the Customs Tariff Act

(b) Whole of the additional duty as leviable under Section 3 of the Customs Tariff Act

The said containers have been provided the exemption as they are returned after being emptied. However, the tag-tracking device or data logger may also have been affixed on the containers. It has been recommended by the GST Council that the exemption available to the durable containers through Notification No. 104/94-Customs dated 16-03-1994 should also be extended to tag-tracking devices or data logger affixed on the containers.

This exemption, once notified, would extend the exemption and ease the compliance as the tag-tracking device or data logger would not require a separate treatment.

5. Extending exemption benefit to coal rejects supplied to a coal washery

• The GST Council has recommended to extend the exemption benefit to both coal rejects supplied to and by a coal washery, arising out of coal on which compensation cess has been paid and no input tax credit thereof has been availed by any person.

TAXMANN’s Comments

The GST law levies4 compensation cess at the rate of Rs. 400 per tonne on coal. Whereas, exemption5 from compensation cess is available on the supply of coal rejects arising out of coal by a coal washery, subject to the following conditions:

(a) Compensation cess has been paid on coal and

(b) Input tax credit thereof has not been availed by any person

During the coal mining and coal processing, coal impurities are separated from the coal and such coal impurities are the by-products of the coal processing, which are also referred to as coal rejects. Generally, the power plants procure the raw coal and pay the compensation cess on such inward supply. The raw coal is then sent for job work to the coal washeries. The washed coal is sent back to the power plants, whereas, the coal rejects being the by-products are sold by the coal washeries directly or is disposed off in an environment friendly manner. Notably, the power plants raise invoices to the coal washeries in respect of the supply of coal rejects and charge compensation cess on the same.

Earlier, by way of recommendation in its 28th Meeting, the GST Council extended the benefit of exemption on the supplies made directly by the coal washery6. Notably, the above exemption covered the scenarios where the supply of coal rejects was made by coal washeries but not the supplies made to the coal washeries. Due to this amendment, burden of tax still remained on the coal washeries.

Now, the GST Council in its 49th Meeting has extended this exemption on the supplies made to the coal washeries also. By this amendment, the coal washeries would completely be relaxed from the ambit of compensation cess liability as far as the supplies of coal rejects are concerned. However, now the burden of compensation cess would remain with the power plants.

6. Exemption for conduct of entrance examination by any authority, board or a body setup by Government

• Recommendation has been made to extend the exemption available to educational institutions and Central and State educational boards for conduct of entrance examination to any authority, board or a body setup by the Central Government or State Government including National Testing Agency for conduct of entrance examination for admission to educational institutions.

TAXMANN’s Comments:

Currently, the exemption notification provides7 exemption to all educational institutions on services relating to admission to, or conduct of examination by such institution. This exemption is specifically available to educational institutions. However, vide Explanation to the exemption notification it has been provided that the Central and State Educational Boards shall be treated as Educational Institution for the limited purpose of providing services by way of conduct of examination to the students. But any other institution or organisation or board would not be allowed to take benefit of this exemption.

Further, it is worthwhile to note that CBIC vide Circular No. 151/07/2021-GST, dated 17-6-2021 has clarified that GST is exempt on services provided by Central or State Boards (including the boards such as National Board of Examination (NBE) by way of conduct of examination for the students, including conduct of entrance examination for admission to educational institution. GST is also exempt on input services relating to admission to, or conduct of examination, such as online testing service, result publication, printing of notification for examination, admit card and questions papers etc., when provided by NBE to such Boards.

Now, the GST Council has recommended to extend this exemption to any authority, board or a body setup by the Central Government or State Government including National Testing Agency for conduct of entrance examination for admission to educational institutions. This exemption has been extended specifically for National Testing Agency (NTA) which has been established as a premier, specialist, autonomous and self-sustained testing organization to conduct entrance examinations for admission/ fellowship in higher educational institutions.

7. RCM to be applied on the services of renting by Courts and Tribunals

• It has been proposed to extend the dispensation available to Central Government, State Governments, Parliament and State Legislatures with regard to payment of GST under reverse charge mechanism (RCM) to the Courts and Tribunals also in respect of taxable services supplied by them such as renting of premises to telecommunication companies for installation of towers, renting of chamber to lawyers etc.

TAXMANN’s Comments:

Currently, Reverse Charge is applicable8 on the services supplied by the Central Government, State Government, Union territory or local authority by way of renting of immovable property to a registered person under the GST law.

Further, services, other than the specified services such as renting of immovable property, supplied by the Central Government, State Government, Union territory or local authority to a business entity are also liable9 to reverse charge.

The GST Council has now recommended that the applicability of RCM on supplies by Government and Local Authorities should also be extended to Courts and Tribunals. It is further provided that services like renting of premises to telecommunication companies for installation of towers, renting of chamber to lawyers etc. are to be covered within its scope. Hence, it would be interesting to see whether RCM would also be applicable on the services of renting of immovable property provided by Courts and Tribunal in case where the recipient is a person other than business entities.

8. Recommendation to increase time limits for revocation of cancellation of GST registration

• The GST Council has recommended to increase the time limit for making an application for revocation of cancellation of GST registration from 30 days to 90 days.

• It has also been recommended that the above time limits may be extended by the Commissioner/officer for further period of not exceeding 180 days.

• Amnesty may be provided for the past cases where registration has been cancelled for non-filing of returns and application for revocation of cancellation of registration could not be filed within time limits.

TAXMANN’s Comments

The existing provisions under the GST law provides10 that the application for revocation of cancellation of registration can be applied within 30 days from the date of the service of the order of the cancellation of registration.

The time limit for applying for revocation of cancellation of registration can be extended11 on sufficient cause being shown by the applicant. This extension of time-limit can be provided by the relevant authorities in the following manner:

(a) The Additional or Joint Commissioner, as the case may be, for a period not exceeding 30 days

(b) The Commissioner, for a further period not exceeding 30 days, beyond the period of 30 days as per clause (a) above

In other words, currently, the time limit of 30 days may first be extended by the Additional/Joint Commissioner by a period of 30 days. This extended period of 60 days (i.e. 30 + 30) may further be extended by the Commissioner by a further period of 30 days. Therefore, the time limit for filing an application for revocation of cancelled registration may be extended maximum upto 90 days.

As a part of trade facilitation measures, the GST Council has recommended to amend the current provisions and allow filing of application for revocation of cancellation within 90 days instead of existing time limit of 30 days. The Council has also recommended that the above time limit of 90 days may be extended by the Commissioner to a further period of not exceeding 180 days.

Another recommendation is to provide an amnesty for the past cases where registration has been cancelled on account of non-filing of the returns but the application for revocation could not be filed within the time limits. In this regard, it is recommended to allow such persons to file the application for revocation by a specified date, subject to certain conditions. Notably, the Council has not yet clarified that what conditions would be applicable in such cases.

The Hon’ble High Courts in arious cases12 have directed the department to reconsider the application for revocation of cancellation of registration subject to payment of outstanding interest, penalties and other dues. Notably, most of these cases pertained to the Covid-19 pandemic period. The GST Council seems to follow the same line and has recommended to provide amnesty for the past periods.

9. Increase time period for filing of return for enabling deemed withdrawal of best judgment assessment order

• Recommendation has been made to amend Section 62 so as to increase the time period for filing of return for enabling deemed withdrawal of best judgment assessment order, from the present 30 days to 60 days, extendable by another 60 days, subject to certain conditions.

• Also, an amnesty scheme would be introduced for conditional deemed withdrawal of assessment orders in past cases where the concerned return could not be filed within 30 days of the assessment order but has been filed along with due interest and late fee up to a specified date.

TAXMANN’s Comments:

There can be cases where a person is registered under the GST laws but he is not filing any return in respect of its registration. In such cases, the Department issues a notice to such person in Form GSTR 3A requiring him to furnish such return within a period of 15 days. If the said return is still not filed by the defaulter within 15 days of the said notice then the law provides powers to the department to assess based on the best judgement assessment under Section 62 in Form GST ASMT-13. However, if the defaulter furnishes a ‘valid return’ within 30 days of the service of assessment order in Form GST ASMT-13, then the said assessment order shall be deemed to have been withdrawn.

Now, the GST Council has recommended to increase the time period for filing of return from the present 30 days to 60 days for enabling deemed withdrawal of such best judgment assessment order. Moreover, this period can be further extended by another 60 days, subject to certain conditions which are yet to be prescribed. Moreover, the Council has also recommended to introduce an amnesty scheme for conditional deemed withdrawal of assessment orders in past cases where the concerned return could not be filed within 30 days of the assessment order but has been filed along with due interest and late fee up to a specified date. This scheme would be available irrespective of whether appeal has been filed or not against the assessment order, or whether the said appeal has been decided or not. This would be a huge relief for taxpayers who failed to file returns in time and adverse demand orders were issued against them and shall reduce burden from Appellate Authorities as well.