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TMI Blog2019 (6) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... entertainment tax was borne by the Respondent himself as is clear from the invoices produced by him. Accordingly, there is no ground to believe the contention of the above Applicant as no benefit of ITC has accrued to the Respondent which was required to be passed on. It is evident that there is no evidence to prove that the Respondent had charged more price in the GST era and not passed on the benefit of tax reduction, as the tax rate had increased from 15% to 18%. Further, the above Applicant had also not availed the opportunities of hearings to establish his case. Therefore, the Authority is of the view that the DGAP has rightly submitted that the allegation of profiteering is not established in the present case. Due to non-availability of cogent and reliable evidence, the provisions of Section 171 of the CGST Act, 2017 are not attracted and hence there is no merit in the application filed by the above Applicant. Appeal dismissed as not maintainable. - Case No. 37/2019 - - - Dated:- 12-6-2019 - SH. B. N. SHARMA, CHAIRMAN SH. J. C. CHAUHAN, TECHNICAL MEMBER MS. R. BHAGYADEVI, TECHNICAL MEMBER SH. AMAND SHAH, TECHNICAL MEMBER ORDER 1. The prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertain to sectors in which goods are sold on printed prices, hence, the Standing Committee felt that the printed price is sufficient evidence to conduct an investigation of profiteering by these suppliers. 5. The DGAP re-examined the complaint and sent a report to this Authority under Rule 129(6) of the Rules dated 14.03.2018 stating that the complaint was too general in nature without any documentary evidence and it was directed against the DTH industry as a whole and no specific supplier was mentioned by the Applicant No. 1 against whom investigation could be initiated. 6. The Authority, vide its letter dated 25.03.2018, conveyed that the DGAP s investigation was not exhaustive and needed to be conducted in a more comprehensive manner. The DGAP vide his letter dated 11.04.2018 conveyed the reasons to the Authority, as to why no investigation could be carried out and also the limitations inherent in the complaint. The DGAP further added that as per Rule 128 and Rule 129 of the CGST Rules, 2017, Anti-profiteering investigation could only be initiated if it was based on a written application supported by the evidence. In the absence of a specific complaint and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the package namely Value Prime subscribed by Sh. Vijendar Kumar was priced at ₹ 299/- (inclusive of taxes) before implementation of GST which remained the same post-GST as well. The above Applicant didn t provide any break-up of the base price and the taxes in the pre and post-GST periods or any invoice. 12. The DGAP has further stated that in the pre-GST era, the burden of taxation was 15% Service Tax plus Entertainment Tax levied by the States. The DGAP, vide his notice dated 16.08.2018, called upon the Respondent to reply as to whether he admitted that he had contravened the provisions of Section 171 of the CGST Act, 2017 by keeping the price of the DTH packs unchanged after implementation of GST w.e.f. 01.07.2017. He was also asked to suo moto determine the quantum of profiteering, if any and indicate the same in his reply to the Notice. He was also given an opportunity to inspect the evidences/information submitted by the above Applicant on 22.08.2018 or 24.08.2018. 13. The period covered by the DGAP during the current investigation is from 01.07.2017 to 30.06.2018. 14. The Respondent, vide his letter dated 29.08.2019 intimated that thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Applicant to attract the provisions of Section 171 of the Act. He also submitted that the Applicant No. 1 had also not produced any evidence as was required in Anti-profiteering Application Form (APAF-I), such as: Actual price/value charged per unit in terms of number of Channels (package) offer, pre-GST, Actual price/value charged per unit in terms of number of Channels (package) offer, post-GST, Comparative per unit actual price/value of like goods/services charged by other suppliers and details of break-up of actual amount of tax charged pre-GST and post GST. 17. The Respondent also contested that the Applicant was not his subscriber and he had made a complaint citing the details of another subscriber Sh. Vijendar Kumar and the details provided regarding the DTH plan for the said subscriber were different from that in the Respondent s records. He also added that contrary to the above Applicant s submission that he had subscribed to the Value Prime plan, the Respondent s records showed another plan, i.e., My Plan as his subscribed plan. The two were different plans with different values and features. 18. The Respondent also cited the precedence of outcome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es was protested against and the burden of such tax paid by the Respondent was borne by him and no change in the price charged from the consumer was effected by the Respondent on account of introduction of Entertainment Tax and the cost of Entertainment Tax was absorbed by the Respondent himself and it was not recovered from the consumers. He further added that the matter of levy of Entertainment Tax was also under litigation and presently sub-judice before the Supreme Court. 21. The Respondent also submitted that the requisite details were being provided by him without prejudice to his right to challenge the legal validity of the proceedings or contest the allegation of profiteering. He further submitted that post-GST implementation, he had taken several initiatives to provide additional value to his customers and provided the following examples of a few such initiatives: Content strengthening in existing packages:- The Respondent had added content to the existing packages of the consumers without charging anything extra for it. Higher discounts to customers on annual packs:- The Respondent submitted that he offered greater value to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it report of his findings to the Authority, in terms of Rule 129 (6) of the Rules. The DGAP further added that the Respondent, vide his letter dated 21.12.2018, had submitted copies of invoices raised by him on his distributors prior to and post levy of Entertainment Tax, as well as post-GST, to substantiate his claim that he bore the burden of the Entertainment Tax and did not pass it on to his distributors. Also, the Respondent provided copies of screenshots of his web-portal wherein he had publicised the incremental value offered to his customers by way of additional content at no extra cost across various plans on account of GST implementation. 24. The DGAP has also intimated that in the invoices raised by the Respondent on his distributors and the end-users, no Entertainment Tax was levied and the only tax liability on the end-user was that of Service Tax. The Respondent had also submitted that he had sent SMS to all their customers to convey that additional channels were being added to their packs with effect from 04.07.2017 and also informed them about the increase in channels/content, post implementation of GST. The DGAP has further intimated that the Respondent cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction of GST w.e.f. 01.07.2017, the reduction in rate of tax did not result in commensurate reduction in the price of DTH packages was not correct as there was an increase in the rate of tax charged from the recipients from 15% in the pre-GST era to 18% in the post-GST era. Notwithstanding the issue of change in the content of the package in the post-GST era, the invoices issued by the Respondent revealed that he had kept the prices of the packages unchanged. 27. The above report was considered by the Authority in its sitting held on 19.03.2019 and it was decided that the above Applicant should be asked to appear before the Authority on 04.04.2019, however, the Applicant No. 1 did not appear. Two more opportunities were offered to the above Applicant to appear before the Authority on 24.04.2019 and on 16.05.2019, but he has not appeared. The Standing Committee was also granted opportunity for representation on 16.05.2019 but no one appeared on behalf of the Standing Committee also. 28. The Applicant, vide his email dated 24.04.2019 submitted to the Authority that he agreed with the DGAP report and that the present case be disposed off. 29. We have caref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es charged by the Respondent in the pre GST era from all his customers across the country were the same and were inclusive of only Service Tax @ 15%(14% service tax + 0.5% SBC + 0.5% KKC), and hence the allegation made by the above Applicant is not established, that he had charged more price post implementation of GST. 34. In view of the above facts, it is evident that there is no evidence to prove that the Respondent had charged more price in the GST era and not passed on the benefit of tax reduction, as the tax rate had increased from 15% to 18%. Further, the above Applicant had also not availed the opportunities of hearings to establish his case. Therefore, the Authority is of the view that the DGAP has rightly submitted that the allegation of profiteering is not established in the present case. 35. It is also clear from the above that due to non-availability of cogent and reliable evidence, the provisions of Section 171 of the CGST Act, 2017 are not attracted and hence there is no merit in the application filed by the above Applicant. Accordingly the same is dismissed as being not maintainable. 36. A copy of this order be sent to both the Applicants a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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