2020 (5) TMI 222 - AAR - GST

Rate of GST - sale of Micafungin sodium by the DTA unit of the applicant - Serial No.114 of Entry No.180 of the Notification No.1/ 2017-Central Tax (Rate) dated 28.06.2017 - taxable at the rate of 5% or not? - HELD THAT - The phrase Micafungin Sodium for Injection very clearly specifies the manner of administering Micafungin Sodium in the body - The applicant, during the personal hearing, with regard to possibility of administering Micafungin Sodium by any way other than injection, have not put anything on record but have stated that they take a certificate/ undertaking from their customers that they would use it only for injections. It is an admitted fact that the product being supplied by the applicant can not be directly administered as injection. The concessional rate of GST is applicable only to the product Micafungin Sodium which is ready for administering by way of injection. In the instant case the applicant supplies bulk drug Micafungin Sodium to their customers and hence the said drug becomes raw material to the said customers. The applicant contends that their bulk drug is essential for Micafungin Sodium for injection and hence their bulk drug gets covered under the entry for concessional rate of GST. The entry would have been Micafungin Sodium , had the intention of the Government been to extend the benefit of concessional rate to the bulk drugs/raw material. Therefore 5% GST is not applicable to the bulk drug Micafungin Sodium, in terms of SI.No.114 of List I to Entry No.180 of Schedule I to the Notification No.1/2017-Central Tax (Rate) dated 28.06.2017.

Summary

Issues:
- Admissibility of the application under Section 97(2)(b) of the CGST Act 2017.
- Interpretation of law regarding the applicability of GST rate on the sale of Micafungin sodium by the DTA unit.
- Determination of whether the product qualifies for the concessional rate of GST at 5%.

Analysis:
1. Admissibility of the Application: The applicant sought an advance ruling under Section 97 of the CGST Act 2017 regarding the applicability of a notification. The Authority found the question admissible under Section 97(2)(b) of the Act.

2. Applicant's Interpretation of Law: The applicant procures Micafungin sodium from their SEZ unit and sells it as a bulk drug to third-party customers. They argued that the product falls under a specific tariff heading and should be subject to GST at 5%. The applicant contended that their product, though sold as a bulk drug, is ultimately used for injections, thus qualifying for the reduced GST rate.

3. Findings & Discussion: The Authority considered the submissions and relevant facts. They noted that the applicant supplies Micafungin sodium as a bulk drug to customers who use it for injections. The applicant's reliance on US FDA regulations and USP guidelines was considered. The Authority analyzed the meaning of "for injection" and the applicability of the concessional GST rate based on the product's final use.

4. Analysis of SC Judgment: The applicant referenced a Supreme Court judgment regarding the interpretation of the term "for" in relation to profit. The Authority discussed the relevance of this judgment in the context of the GST Act and the specific transaction of supplying bulk drugs.

5. Ruling: After detailed analysis, the Authority ruled that the sale of Micafungin sodium by the DTA unit does not qualify for the concessional GST rate of 5%. They concluded that the product, being supplied as a bulk drug, does not meet the criteria for being considered "Micafungin Sodium for injection" as per the notification.

This comprehensive analysis covers the admissibility of the application, the applicant's interpretation of the law, the Authority's findings and discussion, the analysis of the SC judgment, and the final ruling regarding the applicability of the concessional GST rate on the sale of Micafungin sodium by the DTA unit.