Clarifications regarding applicable GST rates and exemptions on certain services - GST - States - 117/2021-GST

GOVERNMENT OF ASSAM OFFICE OF THE PRINCIPAL COMMISSIONER OF STATE TAX CUM COMMISSIONER OF TAXES, ASSAM KAR BHAWAN:: DISPUR, GUWAHATI-6 CIRCULAR NO. 117/2021-GST Dated Dispur the 11 th October, 2021 Subject : Clarifications regarding applicable GST rates and exemptions on certain services Reg. CT/GST-15/2017/575 - Representations have been received seeking clarification in respect of applicable GST rates on the following activities : 1. Services by cloud kitchens/central kitchens, 2. Supply of ice cream by ice cream parlours, 3. Coaching services to students provided by coaching institutions and NGOs under the central sector scheme of scholarships for students with disabilities , 4. Satellite launch services provided by NSIL, 5. Overloading charges at toll plaza, 6. Renting of vehicles by State transport undertakings and local authorities, 7. Services by way of grant of mineral exploration and mining rights attracted GST, 8. Admission to amusement parks having rides, etc., 9. Services supplied by contract manufacture to brand owners or others for manufacture of alcoholic liquor for human consumption. 2. The issues have been examined by GST Council in the 45th meeting of the Council held on September 17, 2021. The issue-wise clarifications are given below : 3. Services by cloud kitchens/central kitchens : 3.1 Representations have been received requesting for clarification regarding the classification and rate of GST on services rendered by cloud kitchen or central kitchen. 3.2 The word restaurant service is defined in Notification No. 11-State Tax (Rate) (FTX. 56/2017/24, dated June 29, 2017) as below : Restaurant service means supply, by way of or as part of any service, of goods, being food or any other article for human consumption or any drink, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied. 3.3 The explanatory notes to the classification of service state that restaurant service includes services provided by restaurants, cafes and similar eating facilities including takeaway services, room services and door delivery of food. Therefore, it is clear that takeaway services and door delivery services for consumption of food are also considered as restaurant service and, accordingly, service by an entity, by way of cooking and supply of food, even if it is exclusively by way of takeaway or door delivery or through or from any restaurant would be covered by restaurant service. This would thus cover services provided by cloud kitchens/central kitchens. 3.4 Accordingly, as recommended by the council, it is clarified that service provided by way of cooking and supply of food, by cloud kitchens/central kitchens are covered under restaurant service , as defined in Notification No. 11-State Tax (Rate) [FTX.56/2017/24, dated June 29, 2017) and attract five per cent. GST (without ITC). 4. Supply of ice cream by ice cream parlours 4.1 Representations have been received requesting for clarification regarding the supplies provided in an ice cream outlet. 4.2 Ice cream parlours sell already manufactured ice-cream and they do not have a character of a restaurant. Ice-cream parlours do not engage in any form of cooking at any stage, whereas, restaurant service involves the aspect of cooking/preparing during the course of providing service. Thus, supply of ice-cream parlour stands on a different footing than restaurant service. Their activity entails supply of ice cream as goods (a manufactured item) and not as a service, even if certain ingredients of service are present. 4.3 Accordingly, as recommended by the Council, it is clarified that where ice cream parlours sell already manufactured ice-cream and do not cook/prepare ice-cream for consumption like a restaurant, it is supply of ice cream as goods and not as a service, even if the supply has certain ingredients of service. Accordingly, it is clarified that ice cream sold by a parlour or any similar outlet would attract GST at the rate of 18 per cent. 5. Coaching services supplied by coaching institutions and NGOs under the central sector scheme of scholarships for students with disabilities 5.1 Representations have been received seeking clarification regarding applicability of GST on free coaching services provided by coaching institutions and NGOs under the central scheme of scholarships for students with disabilities where entire expenditure is provided by Government to coaching institutions by way of grant in aid. 5.2 In this regard, it is to mention that entry 72 of Notification No. 12-State Tax (Rate) (FTX. 56/2017/25, dated June 29, 2017), exempts services provided to the Central Government, State Government, Union territory administration under any training programme for which total expenditure is borne by the Central Government, State Government, Union territory administration. 5.3 The scope of this entry is wide enough to cover coaching services provided by coaching institutions and NGOs under the Central scheme of scholarships for students with disabilities where total expenditure is borne by the Government by way of funding to institute providing such coaching. 5.4 Accordingly, as recommended by the GST Council, it is clarified that services provided by any institutions/NGOs under the central scheme of scholarships for students with disabilities where total expenditure is borne by the Government is covered under entry 72 of Notification No. 12-State Tax (Rate) (FTX. 56/2017/25, dated June 29, 2017) and hence exempt from GST. 6. Satellite launch services provided by NSIL 6.1 Representation has been received for issuance of a clarification recognizing Satellite Launch Services supplied by M/s. New Space India Limited (NSIL), a wholly-owned Government of India Company under the administrative control of Department of Space (DoS), to international customers as export of service . 6.2 It has been clarified vide Central Circular No. 2/1/2017-IGST, dated September 27, 2017 that place of supply (PoS) of satellite launch services supplied by ANTRIX Corporation Ltd. to customers located outside India is outside India and such supply which meets the requirements of section 2(6) of the IGST Act, constitutes export of service and shall be zero rated. If the service recipient is located in India, the satellite launch services would be taxable. 6.3 As recommended by the Council, it is clarified that as the satellite launch services supplied by NSIL are similar to those supplied by ANTRIX Corporation Ltd., the said Circular No. 2/1/2017-IGST, dated September 27, 2017, is applicable to them. 7. GST on overloading charges at toll plaza 7.1 Representations have been received seeking clarification regarding applicability of GST on overloading charges collected at toll plazas. 7.2 Entry 23 of Notification No. 12-State Tax (Rate), (FTX. 56/2017/25, dated June 29, 2017, exempts service by way of access to a road or a bridge on payment of toll charges. 7.3 Vide notification dated September 25, 2018, issued by ministry of road transport and highways, overloaded vehicles were allowed to ply on the national highways after payment of fees with multiplying factor of 2/4/6/8/10 times the base rate of toll. Therefore, it essence overloading fees are effectively higher toll charges. 7.4 As recommended by the GST Council, it is clarified that overloading charges at toll plazas would get the same treatment as given to toll charges. 8. Renting of vehicles to State transport undertakings and local authorities 8.1 Representations have been received seeking clarification regarding eligibility of the service of renting of vehicles to State transport undertakings (STUs) and local authorities for exemption from GST under Notification No. 12-State Tax (Rate) (FTX.56/2017/25, dated June 29, 2017). Sl. No. 22 of this notification exempts services by way of giving on hire (a) to a State transport undertaking, a motor vehicle meant to carry more than twelve passengers ; or (aa) to a local authority, an electrically operate vehicle meant to carry more than twelve passengers . 8.2 This issue has arisen in the wake of ruling issued by an Authority for Advance Ruling that the entry at Sl. No. 22 of Notification No. 12-State Tax (Rate) (FTX.56/2017/25, dated June 29, 2017) exempts services by way of giving on hire vehicles to a State transport undertaking or a local authority and not renting of vehicles to them. The ruling referred to certain case laws pertaining to erstwhile positive list based service tax regime. 8.3 It is relevant to note in this context that Schedule II of the Assam GST Act, 2017 declares supply of any goods without transfer of title as supply of service even if right to use is transferred. Transfer of right to use has been declared as a supply of service (Schedule II, Entry 5(f) refers) 8.4 The issue was placed before the 45th GST Council meeting held on September 17, 2021. As recommended by the GST Council, it is clarified that the expression giving on hire in Sl. No. 22 of Notification No. 12-State Tax (Rate), (FTX. 56/2017/25, dated June 29, 2017) includes renting of vehicles. Accordingly, services where the said vehicles are rented or given on hire to State transport undertakings or local authorities are eligible for the said exemption irrespective of whether such vehicles are run on routes, timings as decided by the State transport undertakings or local authorities and under effective control of State transport undertakings or local authorities which determines the rules of operation or plying of vehicles. 9. Services by way of grant of mineral exploration and mining rights 9.1 Representations have been received requesting for clarification as to the rate of GST applicable on supply of services by way of granting mineral exploration and mining rights during the period from July 1, 2017 to December 31, 2018. With effect from January 1, 2019, the rate schedule has been specifically amended and it is undisputed since then that such service attracts GST at the rate of 18 per cent. 9.2 For the disputed period (July 1, 2017 to December 31, 2018), divergent rulings have been issued by Authorities for Advance Ruling (AAR) and Appellate Authorities for Advance Ruling (AAAR) of various States on the GST rate applicable on the same. AAR, Haryana in case of Pioneer Partners, In re [2019] 71 GSTR 202 (AAR-Haryana) and AAR, Chhattisgarh in case of M/s. NMDC have ruled that the service of grant of mining leases is classifiable under Service Code 997337 (licensing services for the right to use minerals including its exploration and evaluation) and attracted, prior to January 1, 2019, the same rate of GST as applicable to minerals, that is, five per cent. as prescribed against Sl. No. 17, item (viii) of Notification No. 11-State Tax (Rate) (FTX. 56/2017/24, dated June 29, 2017). The rate prescribed against this entry prior to January 1, 2019 was the same rate as applicable on supply of like goods involving transfer of title in goods . In certain other advance rulings, a view has been taken that grant of rights for mineral exploration and mining would be covered under heading 9991 and would attract GST at the rate of 18 per cent. 9.2.1 AAAR, Odisha, on the other hand has ruled vide order dated November 5, 2019 in the case of M/s. Penguin Trading and Agencies Limited that grant of mining lease was taxable at 18 per cent. prior to January 1, 2019. The appellate authority in this case observed that GST rate applicable against Sl. No. 17 item (viii) of Notification No. 11-State Tax (Rate) (FTX. 56/2017/24, dated June 29, 2017) prior to January 1, 2019 was not implementable. Unlike leasing or renting of goods, there are no underlying goods in case of leasing of mining area. The rate prescribed for goods cannot be made applicable to leasing of mining area, which confers the right to extract and appropriate minerals. The mining lease by Government, not being a lease of any goods, cannot attract the rate applicable to sale of like goods. Appellate Authority for Advance Ruling, Odisha has further held that the amendment carried out vide Notification No. 27-State Tax (Rate) (FTX.56/2017/Pt-I/204, dated February 28, 2019), which restricted the same rate as applicable to supply of goods involving transfer of title in goods only to leasing or renting of goods was to clarify the legislative intent as well as to resolve the unintended interpretation. It is a settled law that interpretation which defeats the intention of Legislature cannot be adopted. It accordingly upheld that licensing services for the right to use minerals including its exploration and evaluation falling under service code 997337 were taxable at 18 per cent. during July 1, 2017 to December 31, 2018. 9.2.2 It may be noted that the expression same rate of tax as applicable on supply of like goods involving transfer of title in goods applies in case of leasing or renting of goods. In case of grant of mining rights, there is no leasing or renting of goods. Hence, the said entry does not extend to grant of mining rights which is an entirely different activity. 9.3 The issue was place before the GST Council in its 45th meeting held on September 17, 2021. 9.3.1 As regards classification of service, it was recommended by the council that service by way of grant of mineral exploration and mining rights most appropriately fall under service code 997337, i. e., licensing services for the right to use minerals including its exploration and evaluation . 9.3.2 As regards the applicable rate for the period from July 1, 2017 to December 31, 2018, the council took note of the following facts, namely : (i) GST Council in its fourth meeting held on third and fourth November, 2016 had decided that supply of services shall be generally taxed at the rate of 18 per cent. (ii) More importantly, the GST Council in its 14th meeting held on 18th and 19th May, 2019, while recommending the rate schedules of services (five per cent., 12 per cent., 18 per cent. and 28 per cent.), specifically recommended that all the residuary services would attract GST at the rate of 18 per cent. (iii) The rate applicable on the service of grant of mineral exploration license and mining lease under service tax was also the standard rate of 15.5 per cent. Services under this category have been standard rated in GST at 18 per cent. (iv) Therefore, the intention has always been to tax this activity/supply at standard rate of 18 per cent. 9.3.3 Accordingly, as recommended by the Council, it is clarified that even if the rate schedule did not specifically mention the service by way of grant of mining rights, during the period July 1, 2017 to December 31, 2018, it was taxable at 18 per cent. in view of principle laid down in the 14th meeting of the Council for residuary GST rate. Post, January 1, 2019 no dispute remains as stated above. 10. Admission to indoor amusement parks having rides, etc. 10.1 Representations have been received requesting for clarification regarding applicable rate of GST on services provided by indoor amusement parks/family entertainment centres, and scope of the word amusement park under entry 34(iii) of Notification No. 11-State Tax (Rate) (FTX. 56/2017/24 dated June 29, 2017), dated June 9, 2017). 10.2 Entry 34(iii) Notification No. 11-State Tax (Rate) (FTX. 56/2017/24, dated June 29, 2017), prescribed 18 per cent. GST on the services by way of admission to amusement parks including theme parks, water parks, joy rides, merry-go rounds, go-carting and ballet. On the other hand, entry No. 34(iiia) in Notification No. 11-State Tax (Rate) (FTX. 56/2017/24, dated June 29, 2017) prescribed GST rate of 28 per cent. on the services by way of admission to entertainment events or access to amusement facilities including casinos, race club, any sporting event such as Indian Premier League and the like. 10.3 On the recommendations of the council, it is clarified that 28 per cent. rate (entry 34 (iiia)) applies on admission to a place having casino or race club (even if it provides certain other activities) or admission to a sporting event like IPL. On the other hand, entry 34(iii), having a rate of 18 per cent., covers all other cases of admission to amusement parks, or theme park, etc., or any place having joy rides, merry-go rounds, go-carting, etc., whether indoor or outdoor, so long as no access is provided to a casino or race club. This clarification will also apply to entries 34(iii) and 34(iiia) as they existed prior to their amendment with effect from October 1, 2021. 10.4 The entries in question have been suitably amended vide Notification No. 6-State Tax (Rate) (FTX. 56/2017/19, June dated 29, 2017) to make them clearer. 11. Services supplied by contract manufacturers to brand owners for manufacture of alcoholic liquor for human consumption 11.1 Representations have been received requesting for issuing a clarification that the job work services supplied by contract manufacturers to brand owners for manufacture of alcoholic liquor for human consumption attract GST at five per cent. prescribed for job work services in relation to food and food products, in terms of Sl. No. 26 (Item 1(i)(f)) of Notification No. 11-State Tax (Rate) (FTX. 56/2017/24 dated June 29, 2017). This entry prescribes GST rate of five per cent. on services by way of job work in relation to food and food products falling under Chapters 1 to 22 in the First Schedule to the Customs Tariff Act, 1975. 11.2 The issue was placed before the GST Council in its 45th meeting held on September 17, 2021. The council had also deliberated upon this issue in its 39th and 40th meeting. 11.3 As recommended by GST Council, it is clarified that the expression food and food products in the said entry excludes alcoholic beverages for human consumption. As such, in common parlance also alcoholic liquor is not considered as food. Accordingly, services by way of job work in relation to manufacture of alcoholic liquor for human consumption are not eligible for the GST rate of five per cent. prescribed under the said entry. GST Council recommended that such job work would attract GST at the rate of 18 per cent. 12. This circular is clarificatory in nature and not meant for any interpretation of provisions of the Act and rules. 13. Difficulties, if any, in implementation of the above instructions may be brought to the notice of the Principal Commissioner at an early date. 14. This circular shall be deemed to have been issued on 6th October. 2021. Sd/= Rakesh Agarwala, IAS., Principal Commissioner of State tax, Assam, Dispur, Guwahati