GIST OF RECENT PRONOUNCEMENTS ON GST (PART-XVII)

[Dr. Sanjiv Agarwal]

Goods and Services Tax (GST), introduced from July 1, 2017 is more than thirteen months old now but has resulted in operational and implementation disruptions affecting all stakeholders.  GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council is however, making regular changes to fix the anomalies and hardships faced by taxpayers.  30 meetings of GST Council have been held till 31^st October, 2018.

Taxpayers have already challenged various provisions of GST laws and rules framed thereunder with our 200 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. Recently, CBIC has issued directions to be officers to defend the writs. Further, we have now rulings from Authority for Advance Ruling and Anti-profiteering Authority also. Even the orders from Appellate Authority for Advance Ruling have also started pouring in.

Here are few more judicial pronouncements for information and guidance of various stakeholders. It is expected that the litigation by way of writs is bound to go up as time passes by unless the Government comes out with proactive approach and solutions.

• In Reena Engineers & Contractors (P.) Ltd. v. Kerala Water Authority  (2018) 7 TMI 1824 (Kerala);  where the assessee was issued a works contract by the Kerala Water Authority before the GST regime was brought into effect in the State of Kerala. The Water Authority at the time of contract had agreed that any excess in taxes and duties within contract period would be borne by it. In this regard, the Water Authority had issued a Circular dated 10-8-2017 to the effect that 'the difference between GST paid and the sum of all the taxes subsumed under GST applicable at the time of bidding shall be absorbed by it on production of payment receipt of GST towards the Goods and Services on the respective item executed under the tender.

The assessee had completed the work after the implementation of GST regime and paid the GST at the rate of 18 per cent. It made several representations before the Water Authority for payment of the bill amount and the GST already deposited, but no response. The assessee filed writ petition praying that the Water Authority be directed to honour its bill and to pay the GST already deposited by it.

The court observed that so long as the Water Authority does not have a case that the assessee has not paid the GST amount or that it has not completed the works in question satisfactorily, it would not be reasonable on its part to keep these claims pending ad infinitum. A decision in this regard has to be taken by the Competent Authority imperatively and without any further delay.

In view of the aforesaid, the Court held that water authority was to be directed to immediately take up the representations of the assessee and to issue orders on the same, adverting specifically to the terms of Circular dated 10-8-2018, as expeditiously as possible. If the amount is payable, the Authority shall ensure payment within two months from the date of order.

• In Naresh Gyanwani v Union of India  (2018) 6 TMI 422 (Madhya Pradesh), where the assessee challenged the imposition of GST on confectionery items on the ground that these items does not come within the purview of tax rates under GST, it was held that there being specific provisions under Central Goods and Services Tax Act, 2017 and High Court not being an expert body, the question whether GST leviable @ 18% to 28% on said items is to be raised before GST Council on before Commissioner of GST.

• In Alukka Gold Palace v. State Tax Officer 2018 (5) TMI 525 - KERALA HIGH COURT , where the Petitioner requested for registration under GST statutes, the same was delayed on account that petitioner furnished PAN number of another firm for purpose of obtaining registration under Kerala Value Added Tax Act and thus registration was granted w.e.f. 12-8-2017 because of which assessee was unable to comply with statutory requirements in relation to business for period from 1-7-2017 to 12-8-2017, authorities were directed to grant registration to petitioner from the date i.e., 1-7-2017 when GST statute came into force.

• In Indo Alusys Industries Ltd. v. Commissioner of Central Excise, Alwar (2018) 6 TMI 78 (Cestat, New Delhi);  where the assessee was engaged in the manufacture of ‘Aluminium Hollow Sections’. It sold the said item and paid the duty on the value. Subsequently, the assessee raised supplementary invoice on account of price variation and paid the duty. However, it did not pay interest on delayed payment of duty on account of supplementary invoice. The Adjudicating Authority held that the assessee was liable to pay interest on delayed payment of duty on account of supplementary invoice. The Commissioner (Appeals) upheld the impugned order.

On second appeal, it was observed that it is an admitted fact that the assessee had paid the duty on the value at the time the goods in question were removed from his premises. It is also an admitted fact that there was a supplementary invoice due to price escalation on account of increase in input labour and other costs. In view of these admissions, it was clear that the balance of higher price of the goods is due to the reasons, which could not be foreseen by the assessee at the time he made delivery of those goods and, thus, it cannot be considered as the retrospective revision of the price.

The Commissioner (Appeals) had wrongly held that the price indicated by the supplementary invoice is directly relatable to the value of goods on the date of clearance because on the date of clearance there was no agreement between the seller and the buyer of the goods about the escalated price as is mentioned in the supplementary invoice and in accordance of section 4 of the Central Excise Act whatever the transaction value is agreed between the parties at the time of clearance is relevant for section 11A and even for the purpose of section 11AB the expression 'ought to have been paid' would mean the time when the price is agreed upon by the seller and the buyer. In other words, the right of the seller to receive the revised price crystallized only when the buyer agrees to sanction the same and only at that time can liability to pay duty, if at all, on the revised price arise. Since both the parties were not aware of escalated price or possibility of escalation at the time the goods were removed, the supplementary invoice could not be taken as a ground to call the said duty paid as the short levied.

Resultantly, it was held that no question of paying the same along with interest arises and as such, the appeal was allowed. The order of the Commissioner (Appeals) confirming the liability of the assessee to pay interest was therefore, set aside.

(Some more cases to follow)