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Going Beyond!!! March 2018 Hiregange Academy - Empowering Knowledge & Employability Disclaimer: The “Going beyond” is meant for informational purpose only and does not purport to be advice or opinion, legal or otherwise, whatsoever. The information is not intended to be relied upon as the sole basis for any decision which may affect you or your business. Before making any decision or taking any action, you should consult a qualified professional adviser. Hiregange Academy 1 Hiregange Academy GST Special Case laws Student portal Happenings at Academy Reach us at: Hiregange Academy #1010, 1 st floor, 26 th main, (Above Corporation Bank) 4 th ‘T’ Block, Jayanagar, Bangalore 560 041 Mob. – 9620116163 [email protected] www.hiregangeacademy.com
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Page 1: Going Beyond!!! March 2018 - hiregangeacademy.com · Hiregange Academy 3 Carry forward of KKC, EC etc., into GST – implications of recent Delhi High court decision Education Cess

Going Beyond!!! March 2018

Hiregange Academy - Empowering Knowledge & Employability

Disclaimer: The “Going beyond” is meant for informational purpose only and does not purport to be

advice or opinion, legal or otherwise, whatsoever. The information is not intended to be relied upon as the

sole basis for any decision which may affect you or your business. Before making any decision or taking

any action, you should consult a qualified professional adviser.

Hiregange Academy 1

Hiregange Academy

GST Special

Case laws

Student

portal

Happenings at Academy

Reach us at: Hiregange Academy #1010, 1st floor, 26th main, (Above Corporation Bank) 4th ‘T’ Block, Jayanagar, Bangalore 560 041 Mob. – 9620116163 [email protected] www.hiregangeacademy.com

Page 2: Going Beyond!!! March 2018 - hiregangeacademy.com · Hiregange Academy 3 Carry forward of KKC, EC etc., into GST – implications of recent Delhi High court decision Education Cess

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Indirect Tax Basket

GST Special

GST on carry forward of KKC,EC etc

Reimbursements under Service Tax VS GST

Effectiveness of anti-profiteering provisions in GST

Case Laws

Global Energy Food Industries Vs. CCE

Henkel Adhesives Technologies India Pvt Ltd Vs. CCE

Hiregange Academy

Look out for

Students portal

Happenings at Academy

Compendium

Page 3: Going Beyond!!! March 2018 - hiregangeacademy.com · Hiregange Academy 3 Carry forward of KKC, EC etc., into GST – implications of recent Delhi High court decision Education Cess

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3

Carry forward of KKC, EC etc.,

into GST – implications of

recent Delhi High court

decision

Education Cess was being levied on

Central Excise and Service Tax from

10.09.2014. Education Cess paid on the

purchase was available as credit against

payment of education cess on payment on

the output removal. Credit of cess was not

able to use for the payment of duty. Later

when the rate of excise duty was increased

from 12% to 12.5%, cess was rescinded.

There by the accumulated credit was not

able to be used. Similar was in case of

Krishi Kalyan Cess credit in case of service

tax. Now whether this accumulated credit

of cess can be carried forward into the GST

under the transition provision is the issue,

there was contradicting views on this some

in favour and some against. Few of them

have carried forward the credit, however

recently, there were news articles

published in the newspapers that

companies carried forwarded the credit of

KKC may face fine/penalties citing that the

recent judgment of Hon‟ble Delhi High

Court in case of Cellular Operators

Association of India and Others Vs UOI

and Others 2018-TIOL-310-HC-DEL-ST. In

this background, an attempt has been

made in this article to explain the Delhi

High Court decision and its implication on

the KKC/EC carried forwarded into GST.

Background of the Case Under the CENVAT Credit Rules, 2004

(CCR, for short), CENVAT credit of EC and

SHE Cess can be availed and utilised for

payment of EC and SHE Cess on

manufactured goods or output services

while the cross utilisation of EC and SHE

towards payment of Excise Duty or Service

Tax was not permitted. However, EC and

SHE cess were exempted (on excisable

goods W.E.F 01.03.2015 and taxable

services W.E.F 01.06.2015).

The credit of EC/SHEC on inputs received

after 1.3.2015 but charged with EC/SHEC

is allowed to utilize for payment of Excise

duty/service tax (similarly for the input

services received after 01.06.2015).

However, the unanswered question

remains what to do with the unutilized

credit of EC/SHEC lying as on

01.03.2015/01.06.2015 whether it lapses

or can be sought as refund or used for the

payment of tax/duty?

A writ petition has been filed inter alia

seeking direction that the credit

accumulated as on 01st June 2015 on

account of EC and SHEC should be

allowed to be utilised for payment of

service tax.

Contentions The petitioners claim a vested right to avail

benefit of the unutilized amount of EC or

SHE credit, which was available and had

not been set off as on 1st March 2015 and

1st June 2015 for payment of tax on

excisable goods and taxable services

respectively. The contention was that EC

and SHE were subsumed in the Central

Excise Duty, the general rate of which was

increased from 12% to 12.5%, and service

tax, which was increased from 12.36% to

14%. Reliance is placed upon the Budget

Speech of the Finance Minister and the

memorandum explaining provisions of

Finance Bill, 2015. Reference is also made

to the TRU letter F.No.334/5/2015-TRU

dated 28th February 2015.

Decision The petitioners claim a vested right to avail

benefit of the unutilized amount of EC or

SHE credit, which was available and had

not been set off as on 1st March 2015 and

01/06/15 for payment of tax on excisable

goods and taxable services respectively.

The contention was that EC and SHE were

subsumed in the Central Excise Duty, the

general rate of which was increased from

12% to 12.5%, and service tax, which was

increased from 12.36% to 14%.

GST - Special

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Reliance is placed upon the Budget Speech

of the Finance Minister and the

memorandum explaining provisions of

Finance Bill, 2015. Reference is also made

to the TRU letter F.No.334/5/2015-TRU

dated 28th February 2015.

Decision The court has held that Manufacturers

and Service providers are entitled to avail

and utilize EC and SHEC against the

liability of EC and SHEC before the cut-off

dates i.e. 01st March 2015 in case of

Goods and 01st June 2015 in case of

Services, as the EC and SHEC was ceased

to be applicable after the said dates. The

provisos added to Rule 3, sub-rule (7) in

clause (b) allowing utilization of EC and

SHEC (availed on inputs, capital goods or

service received after 01st June 2015) for

making payment of service tax is in the

nature of concessions confined to a limited

and narrow set of cases which are distinct

and separate and are not of general

application. Therefore, the same cannot be

applied to the balance of EC and SHEC

available as on 01st March 2015 and 01st

June 2015 as the said benefit of cross-

utilization was never available earlier and

this amounts to seeking the additional

benefit and concession beyond those

granted. Hence, Article 14 was not

offended. Further, the Hon‟ble High Court

held that there is no provision in the law

which states that EC and SHEC are

subsumed into Service Tax and Excise

Duty to allow the cross-utilisation of credit.

Thereby decision concluded that the credit

of EC and SHEC cannot be used for the

payment of excise duty.

Implications on the Credit carried

forwarded into GST i. The decision of the Hon‟ble High court

restricted to the subject of cross-

utilisation of EC and SHEC against the

payment of Central Excise or Service

Tax. This judgment nowhere discusses

the eligibility of CENVAT Credit of EC

and SHEC and the same lapsing.

Therefore it is of no dispute that the

credit was eligible and did not lapse.

ii. Section 140 of CGST Act, 2017 entitles

a registered person to carry forward

the closing balance of CENVAT Credit

in the last return filed under the

existing law. „CENVAT Credit‟ has been

defined in the explanation to section

142 giving the meaning assigned to it

under Central Excise Act or rules

issued there-under.

iii. By virtue of the Rule 3(1)/(1A) of CCR,

2004, EC, SHEC and KKC are treated

as „CENVAT credit‟. Though EC, SHEC

and KKC (for brevity „Cess‟) are ceased

to be applicable, there is no

corresponding provision in the old

laws for the lapse of such credits

(unutilised portion). Therefore, as per

Section 140 of CGST Act, 2017, the

balance of Cess lying as closing

balance in the last return can be

carried forward to GST.

iv. Rule 3(4) or 3(7) of CCR, 2004 provides

restriction for utilisation of Credit of

Cess cross utilisation for payment of

service tax/Excise duty. From the

above referred discussion, it is clear

that carry forward of Credit into GST

and utilisation of the same are two

different aspects and cannot be mixed.

This also shows that carry forward of

„Cess‟ into GST does not get impacted

by the provisions restricting their

utilisation under CENVAT credit

Rules, 2004.

v. The Hon‟ble Delhi High Court has only

discussed the second part i.e. cross-

utilisation of EC and SHEC but has

not discussed the first part i.e.

CENVATABILITY of „Cess‟ which is

essential to determine whether such

credits can be carried forward to GST

or not. As „Cess‟ passed the first

criteria, the credit of the same can be

carried forward to GST.

vi. As the issue decided by the Delhi High

Court is related to cross-utilisation of

EC, SHEC which does not have any

impact on CENVATABILITY of the

GST - Special

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5

cesses, the said decision does not have

any impact on the credit carried

forwarded into GST.

vii. Further, while giving the above

judgement High Court has observed

that there is o specific provision in

existing laws stating that EC and

SHEC are subsumed in Service Tax

and Excise Duty. While introducing

GST, Central Government has

amended the Constitution of India by

subsuming the Service tax and Excise

Duty into GST and an article has been

included requiring the GST Council to

suggest the Cesses that should be

subsumed into GST. The list of Cesses

subsumed into GST also includes KKC

and also there are exists repeal

provisions withdrawing levy of „Cess‟

as consequential to the introduction of

GST. Therefore, on this aspect also the

Delhi High Court Judgment can be

differentiated and can be said that it

does not have any impact on carrying

forward of credit into GST. However,

the contrary views also being

expressed.

_ CA Venkat Prasad

_ CA Lakshman K

Service Tax Experience

The service tax valuation rules had under

rule 5 (1) set out that the expenses or costs

incurred in the course of providing a

service ( could be in relation to or

incidental) are ot be included in the gross

value of service.

This was objected as Section 67 was only

on the amount charged for such services.

Amounts charged other than for the

services was disputed as not liable. This

view was also taken for fuel/ explosives

provided by the Customer to the service

provider without which the service could

not have been rendered. Also in case of

builders/ contractors who were supplied

steel and cement which was used in the

construction of the factory/ building.

The Larger bench in Bayana builders case

( confirmed by SC in 2018) had held that

tax could only be on the gross amount

charged and therefore the Free of Cost

supplies could not be included.

Subsequent to 2015 section 67 valuation

section was enlarged to include

reimbursements and therefore the defence

of “gross amount charged” may not be

relied on unless further decisions come.

Recently in March 2018 the Supreme

Court has upheld the 2013 Delhi High

Court decision in Intercontinental

Technocrats & Consultants Vs UOI that

Rule 5 (1) of the Service Tax Valuation

Rules was ultra virus of Section 67 of the

Finance Act. Therefore under service tax

there is no liability for separately charged

amounts which were not part of the

service. There was also a rule 5(2) which

allowed for not including the value subject

to one being a pure agent ( 4 conditions)

and complying with further conditions ( 8).

Many of the conditions were not possible

to be complied as impracticable and

therefore the challenge to rule 5 (1).

GST - Special

Reimbursements under Service

Tax VS GST Practicality of Reimbursement

deduction in GST

The tug of war of the revenue to include

every cost incurred by the supplier in the

value of goods and services and the efforts

of tax payers seeking out deduction from

the taxable values has been there in sales

tax, central excise, service tax and now in

GST. In this article we examine what

exactly was the dispute in service tax

(which were eventually decided in favour of

the service provider) and whether the

similar position can be taken in GST for

various types of transaction.

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GST Value

In GST the transaction value ( invoiced) would be the price payable/ paid for supply as

long as it is between unrelated parties and price is the sole consideration. [ sec15(1)]

Where one supplies goods or services then he needs to ensure that value includes all

amounts the supplier is to pay in relation to such supply before or at the time of supply. [

sec15(2)(b)] The interpretation of in relation to in the Cenvat credit rules has been that it is

to be read widely and liberally.

Further any incidental expenses for anything done by the supplier in respect of the supply

is to be included. [ sec 15(2)©]

In GST there has been an attempt to overcome this by way of section 15 talking of price

should be the sole consideration. Therefore the obligation of the receiver being taken by the

supplier could still enjoy the exclusion. The coverage under rule 33 may ensure that one is

derisked.

We examine which are the common expenses which can fall within the above inclusion and

which MAY not be covered as under:

GST - Special

Description of Expenses in Specific

Supply

Remarks Ref.

Salaries paid to Consultants engaged by

Management Consultant

Directly in relation to. Was

obligation of the supplier.

Sec 2(b)

Telephone Expenses of Employees of

supplier

Directly in relation to. Was

obligation of the supplier

2(b)

Conveyance Reimbursement to above 2

cases.

Incidental for service 2( C)

Technical Consulting agreement with

Travel and Stay to be borne by receiver-

incurred by supplier

Travel not part of technical

service not in relation to or

incidental to advise.

Ex. Not.

Publication cost of Trade Union recovered

from members separately

Neither direct or incidental +

exempted

Ex Not.

Security/ Manpower/ Lift Maintenance

provided by 3rd parties in Residential

Welfare recovered separately

RWA not competent or

expected to provide these.

Neither direct or incidental +

exempted.

Rule 33

Buying garment samples at exhibition by

buying agent on request of manufacturer.

Not relating to buying agency

business- Neither direct or

incidental + exempted

33

Customs House Agent paying for port,

transhipment, storage, customs duty,

transportation on actual basis

On CHA liable

on rest not liable as pure agent.

33

Explosive/ Fuel provided by customer for

quarrying of coal/ stones

Certainly in relation to or incidental

to supply. Liable to be included.

15(1)

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GST - Special

Description of Expenses in

Specific Supply

Remarks Ref.

Cement & Steel provided FOC to

contractor

Could be considered as a supply from

the contractor as construction service

provided.

15(1)

Mould & Dies supplier by principal to

suppliers of parts.

While the provision of the mould by

customer is not a supply- the part

which is sent back using the Free

mould could be said to impact the sole

consideration. Liable

15(1)

Possible Practical Solutions

The tax optimisation without exposure or limited exposure in such transactions may be

done in the following manner to optimise tax net of credits and also avoid disputes and

consequent cost of resolution:

A. The receiver who is registered under GST who is eligible for the GST credit (on

activities in furtherance of business) may like to avoid any break up and go for a

composite contract for supply of goods and services. This would also enable the

supplier to avail the credit of the GST paid on all the taxable supplies involved and

ensure that benefit passed on to the customer.

B. The receiver who is unable to avail the credit or unwilling to avail the credit and go for

a lengthy refund procedure ( at present manual and taking time - expected to be fast

in due course of time- when not known) could however follow Rule 33 where

applicable. This rule has been rationalised as to the definition of pure agent ( 3

conditions) as well as further ( only 4 compared to 8 earlier) Those who do not follow

Rule 33 may face disputes which may again involve writ in the high court and

subsequent resolution by Supreme Court which could take a few years.

Conclusion Suppliers who are looking at excluding the value of goods or services which are not in

relation to the supply or not incidental to the supply may seek the clarity from the GST

Council, go for advance ruling if amounts are significant. It could also be a good idea to

seek the confirmation of the jurisdictional revenue officer by sending a letter enclosing the

contract and reason for exclusion. This would at least provide a defence for demands for

longer period.

- CA Madhukar N Hiregange

DON’T YOU SEE THAT THE WHOLE AIM OF NEWSPEAK

IS TO NARROW THE RANGE OF THOUGHT…!

- GEORGE ORWELL

Page 8: Going Beyond!!! March 2018 - hiregangeacademy.com · Hiregange Academy 3 Carry forward of KKC, EC etc., into GST – implications of recent Delhi High court decision Education Cess

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8

Effectiveness of anti-

profiteering provisions in GST

Game changing GST law has brought-in lot of

practical difficulties for a tax payer. Many of

these difficulties are being addressed by the

government which is a positive sign. One

major issue which is being faced by the tax

payer now is on compliance with anti-

profiteering provisions. It is also a fact that

implementation of anti-profiteering provisions

was never been easy in any of the countries

wherein GST system was introduced in the

past. Even in our country it may not be a

smooth sailing affair. However, a reasonable

system could be implemented considering the

experience of anti-profiteering in other

countries with few precautions.

Dictionary meaning of profiteering is to make

or seek to make an excessive or unfair profit,

especially illegally. Greatest fear which any

country had with introduction of GST system

is effect on pricing of goods or services leading

to inflation.

In Indian GST law, Section 171 of CGST Act

2017 provides that any reduction in GST rate

on supply of goods/services or benefit of ITC

needs to be passed on to the recipient by way

of commensurate reduction in prices.

Therefore, the tax payer who is enjoying the

benefit of extra credit or reduction in rate of

taxes needs to pass on corresponding degree

or proportionate benefit to the customers. Any

extra profit should not be made on account

GST rate or credit.

The law does not consider the situations

where as a result of implementation of GST,

there is a drop in the orders due to

uncertainty, need to incentivize the trade by

increasing the rate as well as the margin

provided to the retailers and many such

practical downsides of GST.

Section 171 also enables the central

government to constitute an authority to

examine if input tax credit availed by any

registered person or the reduction in tax rate

have actually resulted in commensurate

reduction in price of goods or services

supplied. Certain transitional provisions in

CGST Act provides for passing on the

benefits of credits on closing stock of goods

as well.

An authority has been constituted for

monitoring anti-profiteering in India after

introduction of GST. The authority can order

for reduction in prices or order for return of

excess amount collected by supplier of goods

/ services with 18% interest to customer.

Authority also got powers to order for

cancellation of registration or levy penalty.

Action would be taken by the authority

based on the application made by interested

party. Tenure of this authority would be for 2

years from date of selection of chairman

which could be extended if required. The

present chairman has been appointed from

November 2017 and therefore, the present

authority would be active till November 2019

to monitor anti-profiteering provisions.

When GST was introduced in countries like

Australia, Canada and Singapore, the

inflation rate got increased. In countries like

Greece and Portugal, after introduction of

GST the inflation got reduced. There were

instances where inflation increased after few

years of introduction of GST in some of the

countries. It would not be easy to assess if

introduction of GST in India would lead to

increase or decrease in rate of inflation. In

most of the countries where GST was

introduced, the anti-profiteering provisions

were also introduced. However, the countries

were not successful in implementing it on all

goods or services. The provisions were made

applicable mostly for retail products.

Issues with present provisions in

India Though most of the tax payers are aware of

the requirement of anti-profiteering

provisions, they are not clear how to comply

with it as there are no guidelines issued

prescribed for compliance. In countries like

Australia, the awareness of anti-profiteering

was started much prior to introduction of

GST law.

GST - Special

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Such awareness with clear guidelines would

have reduced the confusion among tax

payers in India.

A complaint application form has been

released for public for complaining against

profiteering. However, for a layman filling the

form would not be an easy task as it requires

the complainant to fill information like HSN,

ITC claim, pre-GST price etc. Unless the

form is simplified, successful

implementation would be a dream.

There has been news from past few months

on simplification of complaint form. Faster

action is requirement in this regard which

otherwise provides extra time for some of the

tax payers who could be taking advantage of

GST to increase their profit.

More number of complaints being received

are in retail and construction sector. Retail

industry would find it difficult to comply with

anti-profiteering provisions as most of their

products would be covered under legal

metrology act with MRP printed. There would

be sales strategy involved in pricing of goods

as well. For example, fixing price at Rs.99/-

or Rs.999/-. Change in such MRP due to

change in rate of GST could affect their

business.

Representation could be made by the

industry to address such situations.

There are many factors such as seasonal

sales, global commodity prices, competition,

duration of sales, new business start-ups

which could influence the pricing of goods.

Presently it is not clear how to consider

these factors for compliance with anti-

profiteering provisions. The law is also not

clear as to duration or time available for

compliance with anti-profiteering provision.

There could be cases wherein the inventory

would be held with distributors or dealers

with prices printed and negotiated.

There are also legal arguments that this

provision is only for “tax” and tax means

GST. Therefore, only the cases where there

was a reduction in GST rate – say for

restaurants and other items in 28% bracket

and there was a reduction, the anti-

profiteering would apply.

Action by tax payers

It is very important for the tax payers to

understand that compliance with anti-

profiteering provisions would continue until

there would be change in rate of GST or

increase in credits. Simple exercise like

identifying the pre-GST profit and post-GST

profit due to increased credit or reduction of

rate of GST could be useful at this stage.

Other factors which has led to decrease in

costing of goods or services such as abolition

of entry tax, central sales tax and other

cesses should also be considered. There are

also possibilities of increase in costing due to

factors such as GST implementation cost,

ERP customisation expenses, disruption due

to change in business process etc. which

needs to be considered for arriving at the

final profit or benefit for passing on to

customers. Wherever it is clear, the tax

payers should pass on the benefits to the

customers with clear documentation

maintained to substantiate it later on in case

of enquiries.

Conclusion: Successful implementation of anti-

profiteering provisions would help the

consumers in large. It is expected that the

guidelines would be issued soon for anti-

profiteering. Professionals could caution

their clients and help them to prepare for

compliance. As discussed earlier, there are

many practical challenges in implementation

of the provisions, especially for retail sector.

Professionals could help the sector with

suitable representation highlighting all the

issues and disclosure of facts and why anti

profiteering not applicable in border line

cases to the GST authorities which could

avoid longer period demand.

_ CA Madhukar N Hiregangge

_ CA Mahadev R

GST - Special

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Global Energy Food Industries

Vs. CCE, Ahmadabad-II 2018 (9)

G.S.T.L. 92 (Tri.- Ahmadabad)

Facts: Appellant has filed a refund claim of

accumulated CENVAT Credit in accordance

with Rule 5 of CCR 2004. The refund claim

is rejected on the ground that the inputs

procured in a particular month were not

used in the manufacture of the goods

exported in a particular month but used in

the subsequent months.

Issue: whether the refund of CENVAT Credit on

inputs is eligible for a particular month, if

the same has been used in the

manufacture in the subsequent months?

Decision: The inputs are used in the manufacture of

finished goods which were ultimately

exported resulting into accumulation of the

CENVAT Credit. The objective is to allow

the cash refund of the accumulated

CENVAT Credit availed on the inputs and

used in the manufacture of export of goods.

It is not the intention that there should be

one-to-one relationship between the inputs

and the finished goods in claiming case

refund of the credit. The refund of CENVAT

Credit is admissible.

Comments: In many cases, the CENVAT credit availed

in a particular month may not be

completely utilised for the payment of

Excise duty/service tax in the same month

resulting in the accumulation of the credit

and carry forward to the subsequent

months. As rightly held in the above

decision, there is no requirement to show

the one to one relationship between the

inputs used and output exported and

refund is eligible as long as the inputs are

finally consumed in the manufacture of

exported goods.

Link to GST:

Even under GST, there is no requirement

of one-to-one correlation of the

inputs/input services with outward

supplies of exports. The ratio of the

aforesaid decision squarely applicable even

under GST.

It is worth noting that Rule 89 of CGST

Rules, 2017 provides for determination of

the admissible refund amount:

Refund Amount= (Turnover of zero-rated

supply of goods + Turnover of zero-rated

supply of services) x Net ITC ÷Adjusted

Total Turnover.

The expression “Net ITC” was defined to

mean that input tax credit availed on

inputs and input services during the

relevant period. Similarly, the expression

“relevant period” was defined to mean that

the period for which the claim has been

filed. The plain reading of these two

expressions restricts the refund only to the

extent of the ITC availed during particular

month/quarter and unable to encash the

accumulated credit lying at the beginning

of the month/quarter. Further, in a

scenario of exporters not having turnover

during any month/quarter may not able to

get the refund of ITC availed during such

months/quarters permanently (i.e. neither

in that month/quarter nor in future).

Therefore, there is urgent need of

amendment in this rule enabling to get the

refund of accumulated credit. Further to

avoid such anomaly and in absence of the

any beneficial amendments, it is advisable

for the exporters to take the other option of

paying IGST on the export turnover and

going for refund thereafter.

_ Prepared by S.Harshitha

_ Vetted by CA Venkat Prasad

CASE LAW

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Henkel Adhesives Technologies

India Pvt Ltd Vs. CCE, PUNE-III

2018-TIOL-660-ESTAT-MUMBAI

Facts: Appellant has entered into contract with

the dealers/distributers for sale of goods.

The terms of the agreement were that 50%

of the advertisement expenditure incurred

by the dealers/distributors shall be borne

by Appellant and balance 50% will be

borne by the dealers/distributers.

Department attempted to include the share

of the advertisement cost borne by the

dealers in the assessable value and

demanded the differential excise duty.

Issue: whether the advertisement cost incurred

and shared by the dealers/distributors

constitutes the additional consideration in

the hands of the manufacturer and liable

for Excise duty?

Decision: The relationship between the appellant and

the dealers/distributors is on principal to

principal basis, therefore only

consideration received by the appellant

alone will form the transaction value, no

further addition should be made. As per

the agreement, there is no compulsion on

dealers/distributers to perform the

advertisement. It is on the discretion of the

dealers/distributers that whatever

advertisement in respect of the appellant‟s

goods is done, 50% of the actual cost will

be borne by the Appellant and the

remaining 50% will be borne by the

dealers/distributers. The 50% of the cost

borne by the dealers/distributers which is

the expenses of the dealers/distributers

and the appellant is nothing to do with that

portion of the 50%. Amount of such

advertisement is not flowing to the

appellant as an additional consideration.

Therefore, it cannot be said that the

dealers/distributors bearing the

advertisement cost to the extent of 50% is

part of the assessable value.

Comments: It is a common practice in the various

industries to enter into an agreement for

sharing of expenses. However, the

expenses shared by the other parties will

not form part of the liability of the

Appellant and the same is not required to

be included in the Assessable value.

Link to GST: As the same concept of „Transaction value‟

existed under Central Excise law being

continued under the GST, the rationale of

the above decision has relevance under

GST also and can be applied in similar

facts and circumstances.

Further according to the provisions of the

Section 15(2) of the CGST Act, 2017, any

amount that the supplier is liable to pay in

relation to such supply but which has

been incurred by the recipient of the

supply and not included in the price

actually paid or payable has to be included

in the Transaction value. As seen from the

facts of the present case, there is no

liability on the Appellant qua

manufacturer to incur such expenses and

it is only the dealers/distributors. Hence,

rationale of the above decision holds good

even under the GST regime and the cost

shared is not to be included in the

Transaction value.

_ Prepared by S.Haritha

_ Vetted by CA Venkat Prasad

CASE LAW

“ What is work and what

is not work are questions

that perplex the wisest of

men”

-Bhagavadgita

Page 12: Going Beyond!!! March 2018 - hiregangeacademy.com · Hiregange Academy 3 Carry forward of KKC, EC etc., into GST – implications of recent Delhi High court decision Education Cess

12

1. Study Guidelines for Elective Papers https://resource.cdn.icai.org/48991bos32810.pdf

2. Extension of the last date for submission of examination application forms in respect of Special Examination for members of foreign accounting bodies held under MRA/MOU entered into by ICAI with the foreign accounting bodies. https://www.icai.org/new_post.html?post_id=14498&c_id=411

3. GST- Refunds to Exporters & Others – detailed analysis https://taxguru.in/goods-and-service-tax/gst-refunds-exporters-detailed-analysis.html

4. Office Directory Examination Department.

https://www.icai.org/new_post.html?post_id=4368&c_id=416

5. Corrigendum to RTP Final Paper 3 Advanced Auditing and Professional Ethics Printed Copy May 2018 Examination https://resource.cdn.icai.org/48998bos32825.pdf

6. Scholarships for CA Students https://resource.cdn.icai.org/49013bos32828.pdf

7. Schedule of Mock Test Paper - Foundation, Intermediate & Final (New Course) / IIPC & Final (Old Course) https://resource.cdn.icai.org/49149bos32890.pdf

Hiregange Academy

Happenings at Academy

Upcoming Events

Topics Date & Time Venue

Seminar on "Recent

changes in Foreign

Trade Policy"

24th March

2018 &

09.30 AM to

06.15 PM

Hotel Pai Viceroy, Senate,4th

floor, 1504, 16th Cross, 9th

Main, 3rd Block, Jayanagar,

Bangalore - 560011.


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