- Recommendation is made to issue a clarification to provide that the GST rate on electrically operated vehicles whether or not fitted with a battery pack shall be 5%

Taxmann’s Comments:

The electrically operated vehicles, including two and three-wheeled electric vehicles (EV), falling under Chapter 87 are taxable @ 5%. The GST rate notification defines¹ electrically operated vehicles as ‘vehicles which are run solely on electrical energy derived from an external source or from one or more electrical batteries fitted to such road vehicles and shall include E-bicycles’.

The general question in the auto industry was whether fitting of battery in EV is a mandatory requirement for availing the benefit of lower rate of GST (i.e. 5%). The Odisha AAR² held that having a battery fitted on the vehicle is not a pre-condition to qualify the vehicle as an electrically operated vehicle.

Contrary to the above Ruling, the West Bengal AAR² held that a three-wheeled motor vehicle particularly an e-rickshaw without the battery pack does not have the essential character of an ‘electrically operated vehicle.’ It is classified as chassis and not a vehicle under sub-heading 8703 of the Customs Tariff Act, 1975.

In view of the above confusion, the GST Council has recommended to issue a clarification to provide that having a battery fitted in EV is not a pre-condition to avail the benefit of 5% GST. This would surely avoid the litigation and hence is a welcome move.

2. Healthcare & Pharma Sector

2.1 GST would be levied on room rent charged by hospitals in specified cases

- Recommendation is made to charge GST on room rent (excluding ICU) exceeding Rs. 5,000 per day per patient charged by a hospital to the extent of the amount charged for the room at 5% without ITC

Taxmann’s Comments:

The charges towards the room provided to patients for the treatment is a composite supply wherein the principal supply is the health care service which is exempted⁴ from GST.

Notably, the law does not provide any provision for segregating the elements of the composite supply. The same is also noted by the Hon’ble Supreme Court in its recent decision⁵ relating to Ocean Freight under CIF contracts. In view of this, it would be interesting to see that how the Government introduces the said amendment for the health care sector.

In our view, bringing the tax on the given activity through delegated legislation without making changes in the substantive provisions of the CGST Act can well be argued as not correct.

2.2 Withdrawal of exemption on services provided by cord blood banks

- Recommendation is made to withdraw exemption in respect of services provided by cord blood banks by way of preservation of stem cells

2.3 GST on common bio-medical waste treatment shall be 12%

- Recommendation is made to provide that common bio-medical waste treatment facilities for treatment or disposal of biomedical waste would be taxed at 12%. This is in line with the common effluent treatment plants

2.4 ART/ IVF are health care services

- Recommendation is made to issue a clarification to provide that services in form of Assisted Reproductive Technology (ART)/ In vitro fertilization (IVF) are covered under the definition of health care services for the purpose of exemption under GST

2.5 Nicotine Polarilex Gum attracts 18% GST

- Recommendation is made to issue a clarification to provide that Nicotine Polarilex Gum attracts a GST rate at the 18%

2.6 GST rate changes in few goods and services

- Certain rate changes have been recommended relating to healthcare / pharma industry. These rates are as under:

*Sl. No.*	*Description of supply*	*Rate – From*	*Rate – To*
1.	Ostomy Appliances	12%	5%
2.	Orthopedic appliance- Splints and other fracture appliances; artificial parts of the body; other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; intraocular lens	12%	5%
3.	IGST on import of Diethylcarbamazine (DEC) tablets supplied free of cost for National Filariasis Elimination Programme	5%	Nil

The above recommended rate changes would bring down the GST burden on healthcare services.

3. FMCG & Food Processing Industry

3.1 Change in scope of exemption of unbranded specified food grains etc.

- Currently, GST is exempted on specified food items, grains etc. when not branded, or where the right on the brand is foregone by the supplier
- In this regard, the GST Council has recommended to revise the scope of above exemption to exclude the prepackaged and pre-labelled retail pack in terms of Legal Metrology Act, including pre-packed, pre-labelled curd, lassi and butter milk from the exemption

Taxmann’s Comments:

A general practice is noted by the tax authorities wherein the taxpayers sell the subject products by indicating their name on the product packets but still call it as unbranded on the premise that showing the name is only an internal mechanism to indicate the quality variation. The authorities argue that the actionable claim/enforceable right relating to the brand is not forgone by the taxpayer in these cases, and thus these are branded products exigible to GST @ 5%.

In a case before the Hon’ble Tripura High Court, it was held⁶ that such an arrangement would make the product branded one and hence not entitled for exemption.

The decision to tax such packaged food items is with an intention to remove the scope of any revenue leakage. The change in the scope of exemption would impact various products on which exemption is currently available such as wheat and meslin, oats, natural honey, etc.

Notably, the exemption would continue to be available where the goods are sold in loose forms, for industrial use etc. The supplier engaged in the supply of given products would be required to analyse the given exemption in terms of the provisions of the Legal Metrology Act, 2009.

3.2 Classification and GST rate on Mango Pulp

- Recommendation is made to issue a clarification to provide that GST rate on all forms of mango under tariff heading 0804, including mango pulp (other than mangoes sliced, dried) attract GST at the 12%.
- Relevant entry of the rate notification would also be amended to make this amply clear. Further, raw or fresh mangoes continue to be exempted

Taxmann’s Comments:

The suppliers engaged in the supply of mango pulp were facing confusions regarding the classification of their product and applicable GST rate on it.

Mangoes are classified under tariff heading 0804 of the Customs Tariff Act, 1975. Further, the GST rate notification exempts the mangoes except sliced or dried mangoes which are subject to GST at the rate of 5%. Also, the GST rate notification provides that squash of mango is classifiable under heading 2008 would be exigible to GST at the rate of 12%.

The Andhra Pradesh AAAR has ruled⁷ that the product mango pulp categorically finds a place under chapter heading no. 08045040 of the Customs Tariff Act, 1975 as edible fruits and nuts. For the purpose of the GST rate, the rate notification nowhere specifically covers mango pulp of chapter 08. In view of this, the mango pulp would be exigible to GST at the rate of 18% under the residuary entry of the rate notification.

The recommendation of GST council to provide GST rate of 12% on the impugned product would remove any further scope of confusion. As recommendation suggested that a clarification would be issued, one would need to see whether the rate would have a prospective or retrospective effect.

3.3 Increase in GST rate on specified machines

- The GST rate on the following machineries is recommended to increase from 5% to 18% to remove the inverted duty issue for the suppliers:

(a) Machines for cleaning, sorting or grading, seed, grain pulses

(b) Machinery used in milling industry or for the working of cereals etc.

(c) Pawan chakki that is air based Atta chakki

(d) Wet grinder

3.4 Increase in GST rate of specified machines used for agricultural produce etc.

- The GST rate on the following machineries is increased from 12% to 18% to remove the inverted duty issue for the suppliers:

(a) Machines for cleaning, sorting or grading eggs, fruit or other agricultural produce and its parts

(b) Milking machines and dairy machinery

3.5 No refund to suppliers of edible oils under inverted duty structure

- The GST Council has recommended that refund of accumulated ITC under inverted duty structure scheme would not be available in respect of edible oils.

4. Hospitality Sector

4.1 5% GST rate from 01-07-2017 to 05-10-2021 for ice cream parlors

- Recommendation is made to issue a clarification to regularize 5% GST rate (without ITC) on the supply of ice-creams by ice-cream parlors for the period July 01, 2017 to October 05, 2021 in order to avoid litigation

Taxmann’s Comments:

The GST Council, in its 45^th meeting, recommended that ice-cream parlors would be liable to pay GST at the rate of 18% as they are selling already manufactured ice-creams and the supplies made by them cannot be considered as restaurant services. In this regard, a clarification was⁸ issued by the CBIC that provides the ice-cream parlors do not cook/prepare ice-cream for consumption like a restaurant and therefore, the supply of ice-cream is considered as supply of ‘goods’ and not supply of services, even if the supply has certain ingredients of service. Notably, the ice-cream parlors were classifying themselves as restaurants and paying GST at the rate of 5%.

The above clarification by the CBIC lead to GST exposure for the industry for past period, and hence the council has recommended a clarification to regularize the 5% GST without ITC on the said supplies for the disputed period. The decision is a welcome step as it would avoid litigation for the entire industry.

4.2 Hotel accommodation priced upto Rs. 1000 per day would be taxed at 12%

- Currently, services by a hotel, inn, guest house, club or campsite for residential or lodging purposes, having value of supply of a unit of accommodation below or equal to Rs. 1000 per day or equivalent is exempt from GST
- The GST Council has recommended to withdraw the said exemption and apply 12% GST rate on the said supplies

Taxmann’s Comments:

The threshold limit⁹ for registration would continue to be available to the hotels where their aggregate turnover is less than Rs. 20 lakhs in a financial year. This threshold benefit would be available even if the services are provided by them through the hotel aggregators (ECO)¹⁰.

Notably, the hotel aggregators would be liable to pay GST in respect of the unregistered hotels making accommodation services through them. The aggregators would not be liable to pay GST once the liability to register under GST arises for the concerned hotel.

4.3 Change in GST on Indian Tour Operator Services in specified cases

- Council has recommended that where an Indian tour operator provides a service to a foreign resident for the tour partially conducted in India and partially conducted outside India, it should be taxed proportionate to tour conducted in India. This would be subject to the condition that the tour duration in India is maximum up to 50%

5. Real Estate Sector

5.1 PLC charges to be considered as part of consideration charged for long term lease

- Recommendation is made to issue a clarification to provide that allowing choice of location of plot is part of supply of long term lease of plot of land
- Therefore, location charges or preferential location charges (PLC) are to be considered as part of a consideration charged for long term lease of land and would get the same treatment under GST

Taxmann’s Comments:

The GST law exempts¹¹ the supply of services of long term lease of industrial plots, etc. where such services are provided by specified State Government Industrial Development Corporations or Undertakings, etc.

The issue was whether PLC charged in respect of above leasing of industrial plots would form part of supply of long term lease or would it be considered as a separate supply hence exigible to GST. The authorities were denying the benefit of exemption on PLC charges and arguing that it should be treated as the separate supply.

In order to avoid litigation in this respect, the GST Council has recommended to issue a clarification that the PLC charges form part of consideration charged for lease and exemption would also be extended to the portion of PLC charges.

Though we would need to wait for the fine print of the clarification but it seems that this clarification would also be beneficial in other scenarios such as developers charging PLC for sale of residential flats, etc.

5.2 Exemption withdrawn for renting of residential dwelling in B2B transactions

- Recommendation is made to withdraw exemption in respect of services of renting of residential dwelling provided to business entities (registered persons)

Taxmann’s Comments:

The renting of residential dwelling for residential use is currently exempt from GST. There was an issue in the industry in respect of transactions wherein the owner/co-owners lease out their residential property to a business entity who in turn provide such premises on rent to the tenants such as school students/ working professional for residential use. The arrangement between owner and business entity is generally of P2P basis. The question was whether such lease transaction was exempted from GST or not.

In this respect, the Karnataka High Court observed¹² that the exemption entry does not require the lessee itself to use the premises as residence. The benefit of exemption notification cannot be denied on the ground that the lessee is not using the premises. It was held that the exemption would also be extended to the owners who are giving the property on lease to business entity provided the end of residential dwelling is for residential use.

The recommendation to withdraw the exemption seems to override the impact of the above Karnataka High Court Judgment.

Notably, the withdrawal of exemption may also impact the corporates who are procuring these services from third parties and providing in turn to their employees. In such cases, vendor would be charging the GST once the scope of exemption is changed. Further, the corporates will also need to examine ITC implications with respect to the GST charged by the service provider.

Notably, the landlords would not be required to take registration under GST where the aggregate turnover during the year is less than threshold limit.

5.3 No GST on sale of land after leveling, laying down of drainage lines etc.

- Recommendation is made to issue a clarification to provide that sale of land after leveling, laying down of drainage lines, etc. is supply of land and therefore, would not attract GST

Taxmann’s Comments:

Schedule III of the CGST Act specifically provides that the sale of land would neither be treated as a supply of goods nor a supply of services and therefore, would not be subject to GST.

There were ambiguities in respect of taxability of sale of developed lands i.e. whether the developed land would also be included within the above expression ‘sale of land’ and thereby would not be leviable to GST.

In this regard, the Gujarat High Court held¹³ where the agreement is entered into after the land is already developed by developer and the development activity was not undertaken for the prospective buyers, GST is not leviable on sale of developed land and the same would be covered within Schedule III to CGST Act.

The Council has recommended for issuance of a clarification that sale of developed land is not subject to GST. The clarification recommended seems to be in line with the Gujarat High Court Judgment.

5.4 Condition of having 90% or more fly ash is not applicable to fly ash bricks

- Recommendation is made to issue a clarification to provide that fly ash bricks attract the same concessional rate (e.5%¹⁴) irrespective of the quantity of fly ash contained in it
- Further, the condition of 90% fly ash content with respect to fly ash bricks applies only to fly ash aggregate, and not fly ash bricks
- As a simplification measure, the condition of 90% content of fly ash is recommended to be omitted on both e. fly ash bricks and fly ash aggregates

Taxmann’s Comments:

The GST rates on fly ash bricks and its relevant description during the different relevant periods as provided by the GST rate notification is summarized as under:

Period Description GST rate and Schedule

01-07-2017 to 14-11-2017 Fly Ash Bricks and Fly Ash Blocks 12% under Schedule III

15-11-2017 to 31-12-2018 Fly ash bricks or fly ash aggregate with 90 percent or more fly ash content 5% under Schedule II

Post 01-01-2019 to 31 March 2022 Fly ash bricks or fly ash aggregate with 90 percent or more fly ash content; Fly ash blocks 5% under Schedule II

Post 01-04-2022 Fly ash bricks or fly ash aggregate with 90 per cent. or more fly ash content; Fly ash blocks 6% (without ITC) and 12 % (with ITC)

As one can note from the above that post November 14, 2017, the GST rate description relating to GST rate of fly ash bricks was changed. The change in the description brought confusion amongst the industry players that whether the condition that the fly ash content should be more than 90% is applicable to fly ash bricks as well as fly ash aggregate or alternatively it would be applicable only to the later product.

Though the minutes of the GST Council meeting and the press release issued in this regard both were quite clear that the impugned condition should be read only with the fly ash aggregator, however, still it was argued that the condition of 90% is applicable to fly ash bricks as well.

The Gujarat AAAR held¹⁵ that the benefit of the lower rate would not be available where the content of fly ash is less than 90%. In such a case, the product would fall under the residuary category and exigible to GST at the rate of 18%.

Notably, the industry practice suggests that the fly ash bricks generally contains around 60% fly ash of the total weight.

In view of the above confusion, the Council has recommended to issue a clarification that all fly ash bricks attract concessional GST rate irrespective of the fly ash content. This would remove the ambiguities relating to GST rate on fly-ash bricks and avoid litigation and hence is a welcome decision.

5.5 Increase in GST rate on job work for manufacturing clay brick

- The GST rate in respect of job work in relation to manufacture of clay bricks is recommended to be increased from 12% to 18%

6. Media and Entertainment Industry

6.1 Selling of space in souvenirs booklets for advertisement attracts 5% GST

- Recommendation is made to issue a clarification to provide that the activity of selling of space for advertisement in souvenirs published in the form of books would be eligible for the concessional GST at 5%

Taxmann’s Comments:

The services of selling of space for advertisement in print media is exigible¹⁶ to GST under heading 9983 at the rate of 5%. It seems that a clarification might focus on the point that souvenirs published in the form of books can be referred as print media and therefore, the benefit of concessional rate would be available.

Notably, such a concessional rate is available only where the supplies are made on principal to principal basis i.e. where the advertisement agency buys the space and sells such space for advertisement (on its own account) for clients. If the advertisement agency provides space for advertisement as an agent on the commission basis, it would be liable to pay GST at the rate of 18% on such commission.

6.2 GST on honorarium paid to guest anchors

- Recommendation is made to issue a clarification to provide that services provided by the guest anchors to TV channels in lieu of honorarium attract GST

Taxmann’s Comments:

The taxability in the given case would depend on the nature of arrangement between the guest anchors and the media houses. If the guest is called for based on some pre-agreed consideration, the GST would be applicable. However, where the media house has paid the amount out of its own will (i.e. without any pre-agreed arrangement), the GST would not be applicable as the same would not qualify as consideration for any services.

6.3 Recommendation on GST rate on casinos, race course & online gaming

- The GST Council has directed the Group of Ministers to re-examine the taxability issues on Casino, Race Course and Online Gaming
- The decision on the GST rates on casinos, race course and online gaming has been deferred till August 2022. The GST Council will pick this issue as one of the agendas for the next GST Council meeting to be held in the first week of August 2022

Taxmann’s Comments:

Under the GST law, the actionable claims in the nature of lottery, betting and gambling are treated as goods and exigible to GST¹⁷.

In the media briefing of the GST Council meeting, it was provided that the casino, race course and online gaming are essentially gambling even though there may be an element of skill in it. Thus, these are subject to GST.

However, in contrast to it, the judiciary have held¹⁸ that online games such as cricket fantasy are the game of skill and not the game of chance. The Bombay High Court held that online fantasy sports gaming are not gambling services, rather are games of skills. The High Court has held that GST would be applicable only on the amount received and retained by the platform for its own fee and not on the entire money which is put at stake by the players.

The similar view was taken by the single Judge Bench of the Hon’ble Karnataka High Court¹⁹ in respect of horse racing. The High Court held that the totalizator shall be liable to pay GST on the commission amount.

The Council has also highlighted that there are several issues relating to taxability of the given transactions.

Seems that the Government is looking at classifying casinos, race course and online gaming as gambling. However, it would be interesting to see how the Group of Ministers would examine the issue. The recommendations of the next council meeting are awaited in this regard.

7. Logistics and Transportation Sector

7.1 GTA to exercise reverse charge option at the beginning of Financial Year

- Recommendation is made to issue a clarification to provide that the Goods Transport Agency (‘GTA’) would be required to exercise the option to payment under forward charge or reverse charge at the beginning of Financial Year

7.2 Reduction in rate of transportation goods by ropeway

- Recommendation is made to reduce the GST rate from 18% to 5% on transportation of goods by ropeways with availability of ITC on services

7.3 Rate change on renting of trucks where cost of fuel is included in rent

- The GST rate on renting of trucks or goods carriage where fuel is included in the rent is recommended to be reduced from 18% to 12%

7.4 Clarification on GST rate on renting of vehicle

- Recommendation is made to issue a clarification to provide that renting of a vehicle with operator for transportation of goods is classifiable under heading 9966 and attracts 18% GST. GST on such renting where cost of fuel is included in the consideration charged is being prescribed at 12%

7.5 Withdrawal of exemption on certain services

- Exemption in respect of following services has been recommended to be withdrawn:

1. 1. Transportation by rail or vessel of railway equipment and material
  2. Storage or warehousing of commodities which attract tax (nuts, spices, copra, jaggery, cotton
  3. Fumigation in a warehouse of agricultural produce

7.6 Clarification of services associated with transit cargo to & from Nepal & Bhutan

- Recommendation is made to issue a clarification to provide that the services associated with transit cargo both to and from Nepal and Bhutan are covered by exemption notification of services

7.7 Clarification of service of storage of ginned and baled fibre

- Clarification is recommended to be issued that services by way of storage or warehousing of Ginned or baled fibre are covered in entry 24B of notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 in the category of raw vegetable fibres

7.8 Reduction in rate for transportation of passengers by ropeway

- Recommendation is made to reduce the GST rate from 18% to 5% on transportation of passengers by ropeway with availability of ITC on services

7.9 Change in exemption on air transport to and from NE States and Bagdogra

- The council has recommended to restrict the exemption on transportation of passengers by air to and from North East states and Bagdogra to economy class only

7.10 Clarification on meaning of term ‘Public transport’

- Recommendation is made to issue a clarification in respect of exemption entry at SI No. 17(d) of notification No. 12/2017-CT(R) which exempts transport of passengers by public transport other than predominantly for tourism purpose, in a vessel between places located in India. It states that public transportation means that such transport should be open to public for point to point transport (e.g. such transport in Andaman and Nicobar islands)

7.11 Clarification of renting of motor vehicle for passenger transportation

- Recommendation is made to issue a clarification to provide that renting of motor vehicles for transport of passengers to a body corporate for a period (time) is taxable in the hands of body corporate under reverse charge

8. Exporters

8.1 Pending refund of IGST on export of goods for risky exporters

- Refund on export of goods is generally suspended/withheld where the exporters are classified as risky exporters (due to verification by GST officers or violation of Customs laws)
- In order to expedite the refund of these exporters, an amendment has been recommended to provide for transmission of such IGST refund claims on the GST portal in a system generated Form GST RFD-01 to jurisdictional authorities for processing
- The amendment would expedite the disposal of such IGST refund claims after due verification by GST officers, thus benefitting such exporters

8.2 No ITC reversal on exempted supply of Duty Credit Scrips

- Recommendation is made to amend Explanation 1 to Rule 43 of the CGST Rules to provide that there is no requirement of reversal of input tax credit for exempted supply of Duty Credit Scrips by the exporters

Taxmann’s Comments:

Under the GST laws, the duty credit scrips (such as RODTEP, MEIS, SEIS etc.) qualify as ‘Goods’ and it is classified under tariff heading 4907 of the Customs Tariff Act, 1962. Its supply is exempted²⁰ from GST and thus no GST would be applicable on sale of these scrips.

As the supply is exempted the suppliers are currently required to reverse the applicable Input Tax Credit (generally the common ITC of input services)²¹. In this regard, it has been recommended that relevant provision would be inserted in the CGST Rules to exclude the supply of Duty Credit Scrips while computing the aggregate value of exempt supplies for the purpose of reversal of ITC.

The given change is a welcome move as it would not require any ITC reversal and thus beneficial for the exporters /scrip traders.

8.3 Extension in exemption on imports under AA/EPCG etc.

- The Council has recommended that the present exemption of IGST and compensation cess on import of goods under AA/EPCG/EOU scheme should be continued and E-wallet scheme is not to be pursued further

Taxmann’s Comments:

The IGST and Compensation Cess payable on imports under the specified export incentive schemes (i.e. Advance Authorisation, Export Promotion of Capital Goods and Export oriented units etc.) was currently exempted²² upto June 30, 2022. After the GST Council’s recommendation, the given exemption is extended without any time-limit restriction²³.

Notably, it was earlier proposed that an E-wallet scheme would be implemented wherein a notional amount would be credited into the e-Wallet which can be used by the exporters to make the payment of IGST and compensation cess on the goods imported. Since the E-wallet scheme is not to be pursued further, the exemptions with respect to IGST and Compensation cess on import of goods under the said specified schemes is to be continued.

8.4 Refund would be available on export of Electricity

- Amendment would be introduced to provide for refund of unutilized ITC on account of export of electricity. This would facilitate the exporters of electricity in claiming the fly refund of unutilized ITC on zero rated supplies

8.5 Refund to Duty Free Shops

- Supplies from Duty Free shops (DFS) at international terminal to outgoing international passengers to be treated as exports by DFS and consequential refund benefit to be available to them on such supplies
- In this regard, Rule 95 of the CGST Rules and Circular no 106/25/2019-GST dated June 29, 2019 and related notifications would be rescinded

9. MSME Sector

9.1 Registration relaxation to small traders for online sales

- Requirement of mandatory registration²⁴ for the person supplying goods through E-Commerce Operators (‘ECO’) is recommended to be waived subject to satisfaction of the conditions specified below:

1. 1. The aggregate turnover on all India basis does not exceed the threshold limit²⁵ of turnover
  2. The person is not making inter-state taxable supply

- Further, the composition taxpayers would be allowed to make intra-state supply through ECOs subject to certain conditions
- These changes would tentatively be implemented with effect from January 1, 2023, subject to preparedness of GSTN portal and ECO

Taxmann’s Comments:

Currently, suppliers of goods making supplies through ECOs are mandatorily²⁶ required to obtain registration under the GST law (i.e. benefit of threshold limit is not available).

Recommendation has been made to provide the benefit of threshold limit of Rs. 40 lakhs provided to the suppliers are making supply locally within their respective States/UT and their aggregate turnover during the year is below the threshold limit i.e. Rs. 40 lakhs.

This relaxation would primarily benefit the small dealers making grocery supplies, medicine supplies, etc. locally through ECO. In other words, the supplier making sales in other states through ECO would not be entitled to get the benefit of this scheme. The requirement of registration would be mandatory in such case without any threshold limit.

The Council has also recommended to allow the suppliers opting for the composition scheme to supply their goods through the ECO. Currently, the law bars these suppliers to supply through the ECO.

Necessary changes in IT systems etc. would be required by ECO for implementing this change. Further, they would also need to ensure the collection of TCS on the supplies made by the dealers opted for the Composition scheme if no exclusion is provided under the TCS provisions by the Government.

9.2 Compliance related relaxations for composition dealers

- Late fee waiver of furnishing Form GSTR-4 is April 30 of the year subsequent to the relevant financial year (FY). However, for the FY 21-22 the late fee waiver has been extended to July, 28, 2022 (currently the extended date is June 30, 2022)
- Due date for filing for Form CMP-08 for Q1 for FY 2022-23 for the period April to June 2022 has been extended from July 18, 2022 to July 31, 2022
- It has also been provided that GST is working expeditiously to resolve the issue of negative balance in Electronic Cash ledger faced by some of the composition taxpayers

9.3 No Annual Return for taxpayers having aggregate turnover less than 2 crores

- Exemption would be notified from furnishing the Annual Return in Form GSTR 9/9A for financial year 2021-22 in respect of taxpayers having aggregate turnover less than Rs. 2 crores

10. Government Contractors (Works Contracts)

10.1 GST rate on specified work contracts provided CG/SG/local authorities

- Recommendation is made to increase the GST rate on the supply of services by way of works contract in the following scenarios w.e.f. July 18, 2022:

*Sl. No.*	*Description of supply*	*Existing Rate*	*Recommended Rate*
1.	Works contract for roads, bridges, railways, metro, effluent treatment plant, crematorium etc.	12%	18%
2.	Works contract supplied to central and state governments, local authorities for historical monuments, canals, dams, pipelines, plants for water supply, educational institutions, hospitals etc. & sub-contractor thereof	12%	18%
3.	Works contract supplied to central and state governments, union territories & local authorities involving predominantly earthwork and sub-contracts thereof	5%	12%

Taxmann’s Comments:

Similar rate changes were recommended by the GST Council in its 45^th meeting in respect of the above services provided to the Governmental Authority/ Government Entity. In the similar lines, the GST rate has also been increased where the above services are provided to Central Government, State Government or Local Authorities.

The contractors providing the above services to Central Government, State Government or local authorities may face challenges relating to recovery of differential GST amount especially in cases where ‘Change in law clause relating to tax’ is not provided in their contracts. In such cases, it is recommended that such contractors should pro-actively represent their case to the respective office of the Government/Local Authority.

These contracts with the Governmental/Local Authorities are generally ongoing in nature, therefore, there would be queries relating to the rate of tax to be applied on transitional transactions. In this regard, one would need refer the provisions of Section 14 of the CGST Act (i.e. time of supply in case of change in the rate of tax) for determining whether the new rate of GST is applicable or not.

Notably, the contractors may avail the benefit of lower GST rate/exemption (i.e. existing rate/exemption) in cases where services are provided before July 18, 2022 and the invoice of which has also been raised before such date.

11.Education Sector

11.1 Exemption for issuance of eligibility/migration certificate by universities

- Recommendation is made to issue a clarification to provide that application fee charged for entrance or for issuance of eligibility certificate for admission or issuance of migration certificate by universities is exempt from GST.

12. Roads and Highways Sector

12.1 Higher toll charges on non-FASTag vehicles are exempt under GST

- Recommendation is made to issue a clarification in respect of availability of exemption on the additional fee collected in the form of higher toll charges from the vehicles not having FASTag. The clarification would provide that such a fee charged is essentially the payment of toll for allowing access to roads or bridges to such vehicles and would be given the same tax treatment as given to toll charges

Taxmann’s Comments:

Under the GST law, services by way of access to a road or a bridge on payment of toll charges are exempt. In terms of National Highways Fee Rules, 2008, vehicles without FASTag or vehicles without valid functional FASTag are subject to additional fee for access of highways etc. in specified cases.

There was confusion relating to treatment of these additional charges that whether it would be referred as deemed service of agreeing to tolerate an act or not etc. or should be treated like the same as toll charges. The clarification would provide that these charges are akin to toll charges. It would clear the doubts on the availability of exemption on additional fee and hence is a welcome decision.

13. Changes to Rationalize Few GST Provisions

13.1 Changes recommended for GST refund provisions

13.1.1 Rationalization of calculation of refund claim under Inverted Duty Structure

- Recommendation is made to amend formula for calculation of refund claim under Inverted Duty Structure
- For the calculation of ‘tax payable on the inverted rated supply of goods and services’, the ratio in which inputs and inputs services were availed by the taxpayer is to be applied

Taxmann’s Comments:

Presently, in respect of refund under the inverted duty structure, the law provides that the refund would be available where the credit accumulated on account of the rate of tax on ‘inputs’ is higher than the rate of tax on output supplies. The refund of input services under the inverted duty structure scheme is not available²⁷. The same has been upheld by the Hon’ble Supreme Court. Before the Supreme Court the petitioners had also argued that there are some technical errors in the formula for computing refund under the Inverted Duty Structure scheme. It was argued that the rule presumes that in paying the output tax liability the taxpayer has first utilized the ITC pertaining to inputs.

The petitioners argued that it should be presumed that the output tax liability is first paid using the ITC on input services and the remaining liability is paid using the inputs. The amount paid using the credit pertaining to inputs which has been utilised should be deducted. If this is followed, the overall refund would be increased. The Supreme Court has well noted the above arguments and requested the GST Council to remove the anomaly in the impugned refund formula.

Giving effect to the above, the GST Council has recommended a change in the impugned formula whereby the output tax is to be reduced after applying the proportion of ITC availed in respect of input goods and input services.

An illustration for understanding the implication of the proposed change in the method is as under:

Sl. No. Details Amount (INR)

Input Duty Structure

Others

1. Turnover 5,00,000

2. Tax on the above @5% 25,000

3. ITC availed on inputs 1,00,000

4. ITC availed on input services 40,000

5. Refund entitlement earlier =[1,00,000 x (5,00,000/5,00,000)]-25,000

=75,000

6. Refund entitlement now =[1,00,000 x (5,00,000/5,00,000)] – (25,000 x 1,00,000/1,40,000)

=82,143

One may notice, as per above, that the proposed change in the formula would increase the refund quantum wherever there is involvement of input services. The decision of the Council is a welcome move.

13.1.2 No refund of accumulated ITC in respect of coal under inverted duty structure

- The GST Council has recommended that refund of accumulated ITC under inverted duty structure scheme would not be available in respect of coal.

13.1.3 Re-credit of amount in electronic credit ledger

- Amendment in CGST Rules would be made to provide that where erroneous refund amount is sanctioned to a taxpayer on account of accumulated ITC or on account of IGST paid on zero rated supply of goods or services, in contravention of Rule 96(10) is deposited by him along with interest and penalty, wherever applicable, the same would be re-credited
- In this regard, a new Form GST PMT-03A is introduced. The amendment would enable the taxpayers to get re-credit of the amount of erroneous refund, paid back by them, in electronic credit ledger

Taxmann’s Comments:

The taxpayers who had availed the option to export the goods with payment of tax under Advance Authorization etc. and repaid the tax were not able to get the re-credit of the ITC they had initially utilized in paying the IGST on the export of goods.

The authorities were not allowing the re-credit of such utilized credit due to lack of the provisions under the GST laws. In a case before the Gujarat High Court, it was held²⁸ that where the exporter has refunded the amount of refund along with interest, first part of transaction is nullified. If authorities have accepted that there was an error and resultantly, accepted repayment of the erroneous refund, as a corollary, credit of ITC must be restored. The High Court directed authorities to re-credit/ restore such ITC in electronic credit ledger. Seems that the introduction of utility and provisions are due the above like decisions.

13.1.4 Clarification on refund under Inverted Duty Structure

- Recommendation is made to issue a clarification on the matter of claiming refund under inverted duty structure where the supplier is supplying goods under concessional notification

13.1.5 Clarification on refund under Deemed Export

- Recommendation is made to issue a clarification on the matter pertaining to refund claimed by the recipients of supplies in respect of deemed export

13.1.6 Clarification in respect of supplies made to SEZ unit/developer

- Recommendation is made to issue a clarification in respect of supplies made to SEZ developer/unit to clarify that specified officer would mean specified/authorised officer under SEZ Rules, 2006

13.1.7 Exclusion of specified period in computing refund limitation period

- Time period from March 01, 2022 to February 28, 2022 to be excluded from calculation of the limitation period for filing refund claim by applicant under Section 54 and 55 as well as for issuance of demand/order (by proper officer) in respect of erroneous refund under Section 73 of CGST Act
- Further, limitation under Section 73 for FY 2017-18 for issuance of order in respect of other demands linked with due date of annual return to be extended till September 30, 2023

13.2 Changes recommended for GST Registration provisions

13.2.1 Automatic revocation of cancelled registration in specified cases

- Amendment would be made in CGST provisions for providing automatic revocation of suspension of registration in cases where suspension of registration was done by the system due to non-filing of returns for the specified period when all the pending returns are filed on the portal by the taxpayer

Taxmann’s Comments:

This amendment would be really beneficial and would surely avoid litigation relating to revocation of registration. At present, lots of petitions are filed before the jurisdictional High Courts for getting the registration cancellation revoked.

13.3 Changes recommended for GST Return provisions

13.3.1 Changes in Form GSTR 3B

- Proposal for comprehensive changes in Form GSTR 3B would be placed in public domain for seeking inputs/suggestions of stakeholders

13.4 Changes recommended for payment of tax, interest etc.

13.4.1 Interest applicability on wrongly availed ITC to be notified soon

- Retrospective amendment in Section 50(3) with effect from July 01, 2017 to provide that interest is payable on the wrongly availed ITC when the same is utilized would be notified soon
- Further, the Rules for manner of calculating the interest would also be notified by the Government

Taxmann’s Comments:

Prior to Finance Act, 2022 the GST law provides²⁹ that a taxable person who makes an undue or excess claim of input tax credit (‘ITC’) under Section 42(10) of the CGST Act or an undue or excess reduction in output tax liability under Section 43(10) of the Act are required to pay interest on such undue or excess claim or on such undue or excess reduction, as the case may be, at such rate not exceeding 24%, as may be notified by the Government on the recommendations of the Council. In the regard, the Central Government had notified³⁰ the interest rate of 24%.

There were ambiguities relating to applicability of interest on availment and utilization of ITC which is not available under the GST law as there was no express provision for the applicability of interest in such case. In a case before the Hon’ble Madras High Court³¹, it was held that if the cash liability of the taxpayer is getting impacted due to the wrong availment and utilization of ITC, then the assessee would be liable to pay interest at the rate of 18% on such wrongful utilized ITC under Section 50(1).

In order to remove the scope of any ambiguity, Section 50(3) has been substituted with a retrospective effect (with effect from July 01, 2017) for levying interest on ITC wrongly availed and utilized. The interest on such ITC is proposed to be payable at the rate of 18% (and not 24%) as provided in Sixth Schedule of the Finance Act, 2022 by proposing retrospective amendments in the existing notification³² providing the rate of interest.

Though the Finance Act, 2022 has been passed but it would come with effect from the date to be notified by the Government. In this regard, the GST Council has recommended that the Government would issue a notification at the earliest possible.

13.4.2 Transfer of amount available in electronic cash ledger between distinct persons

- Amendment would soon be made for transfer of amount available in the electronic cash ledger of one distinct person to another distinct person

Taxmann’s Comments:

The Finance Act, 2022 amended the CGST Act to allow the transfer of cash balance of any amount including CGST, IGST, interest, fee or penalty available in electronic cash ledger between distinct persons having same PAN. No such transfer would be permitted where there is unpaid liability in electronic liability ledger of the transferor. The amendment was carried out in view of the decision taken by the GST Council in its 45th meeting. The Council in this meeting has recommended that notification to notify the amendment would be issued soon.

13.4.3 UPI & IMPS would be new mode of payment

- Recommendation is made to provide UPI and IMPS as an additional mode of payment under GST

14. Changes to other GST Rates

Sl. No.	Description	From	To
GOODS
1.	Printing, writing or drawing ink	12%		18%
2.	Knives with cutting blades, Paper knives, Pencil sharpeners and blades therefor, Spoons, forks, ladles, skimmers, cake-servers etc	12%		18%
3.	Power driven pumps primarily designed for handling water such as centrifugal pumps, deep tube-well turbine pumps, submersible pumps; Bicycle pumps	12%		18%
4.	LED Lamps, lights and fixture, their metal printed circuits board;	12%		18%
5.	Drawing and marking out instruments	12%		18%
6.	Solar Water Heater and system;	5%		12%
7.	Prepared/finished leather/chamois leather / composition leathers;	5%		12%
8.	Tetra Pak (Aseptic Packaging paper)	12%		18%
9.	Tar (whether from coal, coal gasification plants, producer Gas plants and Coke Oven Plants.	5%/18%		18%
10.	Cut and Polished Diamonds	.25%		1.5%
11.	IGST on specified defence items imported by private entities/vendors, when end-user is the Defence forces.	Applicable rate		Nil
12.	Cheques, lose or in book form	Nil		18%
13.	Maps and hydrographic or similar charts of all kinds, including atlases, wall maps, topographical plans and globes, printed	Nil		12%
14.	Parts of goods of heading 8801	Nil		18%
15.	Petroleum/ Coal bed methane	5%		12%
16.	Scientific and technical instruments supplied to public funded research institutes	5%		Applicable rate
17,	E-waste	5%		18%
SERVICES
1.	Services supplied by foreman to chit fund	12%		18%
2.	Job work in relation to processing of hides, skins and leather	5%		12%
3.	Job work in relation to manufacture of leather goods and footwear	5%		12%

15. Miscellenous Points

- Recommendation is made to issue a clarification relating to applicability of demand and penalty provisions under the CGST Act in respect of transactions involving fake invoices
- Recommendation is made to issue a clarification on mandatory furnishing of correct and proper information of inter-state supplies and amount of ineligible/blocked Input Tax credit and reversal thereof in return in Form GSTR 3B
- Recommendation is made to issue a clarification on various issues relating to interpretation of Section 17(5) e. Blocked Credits
- Recommendation is made to issue a clarification on the issue of perquisites provided by employer to the employees as per contractual arrangement
- Recommendation is made to issue a clarification on utilization of the amounts available in the electronic credit ledger and the electronic cash ledger for payment of tax and other liabilities
- Council has decided to constitute a group of ministers to address various concerns raised by states in relation to constitution of Appellate Tribunal and make recommendations for appropriate amendments in CGST Act
- All taxable services of Department of Posts would be subject to forward charge
- Tax exemption on training or coaching in recreational activities relating to arts or culture, or sports is being restricted to such services when supplied by an individual
- Recommendation is made to issue a clarification to provide that stones covered in S. No.123 of Schedule-I (such as Napa stones), even if they are ready to use and polished in minor ways [not mirror polished], attract concessional GST rate of 5%
- Exemption in respect of the services provided by the following persons is recommended to be withdrawn:

1. 1. Reserve Bank of India (RBI)
  2. Insurance Regulatory and Development Authority (IRDA)
  3. Securities and Exchange Board of India (SEBI)
  4. Food Safety and Standards Authority of India (FSSAI)
  5. Goods and Services Tax Network (GSTN)

- Recommendation is made to issue a clarification to provide that sewage treated water is exempted from GST and is not the same as purified water. The word ‘purified’ would be omitted under the exemption notification to make this amply clear

Taxmann’s Comments:

The water in general is exempt from the GST³³. However, the aerated, mineral, purified, distilled, medicinal, ionic, battery, de-mineralized, and water sold in sealed container are taxable. There were confusions with respect to the treated water obtained from sewage as to whether it would be considered as purified water or not.

The sewage water is converted into treated water by treating the sewage water through various processes to make it suitable for industrial use. As the water is not purified, it is not fit for human consumption and contains certain impurities such as bacteria, virus, and e-coli.

The authorities were rejecting the claims of the taxpayers to exempt the treated water under the exempted category. In a few cases³⁴, it was held that the treated water is nothing but a purified water and thus exemption would not be available.

Now, in order to avoid the scope of any ambiguity in this regard, the Council has recommended that sewage treated water is exempted from GST and is not the same as purified water provided in. Further, in order to remove any scope of further ambiguities the word ‘purified’ would be omitted.

1. Sl. No. 242A of Notification No. 1/2017 -Central Tax (Rate), dated 30 June 2017
2. Anjali Enterprises, In re [2021] 130 taxmann.com 343 (AAR-ODISHA) dated April 15, 2021
3. Hooghly Motors (P.) Ltd., In re [2020] 119 taxmann.com 102 (AAR-WEST BENGAL) dated August 10, 2022
4. Sl. No. 74 of Notification No. 12/2017-Central Tax (Rate) dated 28-6-2017
5. UOI Vs Mohit Minerals Private Limited [2022] 138 taxmann.com 331 (SC) dated May 19, 2022
6. Sarvasiddhi Agrotech (P.) Ltd. Vs UOI [2021] 127 taxmann.com 340 (TRIPURA) dated APRIL 20, 2021
7. Sri Manjunatha Fruit Canning Industries., In re [2022] 137 taxmann.com 261 (AAAR – Andhra Pradesh) dated January 20, 2022
8. Circular No. 164/20/2021-GST, Dated 6-10-2021
9. Section 22(1) of the CGST Act, 2017
10. Section 22(1) of the CGST Act, 2017 read with Notification No. 17/2017-Central Tax (Rate), Dated 28-6-2017
11. SL. No. 41 of Notification No. 12/2017-Central Tax (Rate) dated 28-6-2017
12. Taghar Vasudeva Ambrish v. Appellate Authority for Advance Ruling [2022] 135 taxmann.com 287 (Karnataka)
13. Munjaal Manishbhai Bhatt v. Union of India [2022] 138 taxmann.com 117 (Gujarat)
14. Currently the GST rate on fly ash bricks is 6% (without ITC) or 12% (with ITC) at the option of the supplier
15. Dipak Kumar Ramjibhai Patel, In re [2021] 132 taxmann.com 180 (AAAR-GUJARAT) dated March 8, 2021
16. Sl. No. 21(a) of Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017
17. Section 2(52) of CGST Act, 2017 read with Schedule III of the CGST Act
18. Varun Gumber v. Union Territory of Chandigarh 2017 Cri LJ 3827 read with Gurdeep Singh Sachar v. Union of India [2019] 106 taxmann.com 290 (Bombay)
19. Bangalore Turf Club Ltd. v. State of Karnataka [2021] 127 taxmann.com 619 (Karnataka) stayed by division bench Union of India V. Bangalore Turf Club Limited [2021] 129 taxmann.com 155 (Karnataka)
20. Sl. No. 122A of the Notification No. 2/2017-Central Tax (Rate), Dated 28-6-2017
21. Section 17(2) of the CGST Act
22. Notification No. 45/2016-Customs, dated 13-08-2016 read with Notification No. 19/2022-Customs, dated the 31-03-2022
23. Notification in this regard has been issued (Notification No. 37/2022-Customs, Dated June 30, 2022)
24. Under Section 24(ix) of the CGST Act, 2017
25. Under Section 22(1) of the CGST Act, 2017
26. Section 24 of the CGST Act read with Notification No. 65/2017-Central Tax, Dated 15-11-2017
27. Union of India vs VKC Footsteps India Private Limited [2021] 130 taxmann.com 193 (SC) read with VKC Footsteps India (P.) Ltd. v. Union of India [2020] 118 taxmann.com 81 (Gujarat) and Tvl. Transtonnelstroy Afcons Joint Venture v. Union of India [2020] 119 taxmann.com 324
28. I-Tech Plast India (P.) Ltd. Vs State of Gujarat [2022] 137 taxmann.com 432 (Gujarat) dated April 7, 2022
29. Section 50(3) of the CGST Act
30. Notification No. 13/2017-Central Tax, dated 28-6-2017/Notification No. 6/2017-Integrated Tax, dated 28-6-2017
31. F1 Auto Components Private Limited vs State Tax officer, Chennai [2021] 128 taxmann.com 342 (Madras)
32. Notification No. 13/2017-Central Tax, Dated 28-6-2017
33. Sl. No. 99 of the Exemption Notification No. 02/2017- Integrated Tax (Rate) dated 28 June 2017
34. Nagpur Waste Water Management (P.) Ltd., In re [2021] 133 taxmann.com 392 (AAR – MAHARASHTRA) dated July 27, 2021

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The statutory material is obtained only from the authorized and reliable sources
All the latest developments in the judicial and legislative fields are covered
Prepare the analytical write-ups on current, controversial, and important issues to help the readers to understand the concept and its implications
Every content published by Taxmann is complete, accurate and lucid
All evidence-based statements are supported with proper reference to Section, Circular No., Notification No. or citations
The golden rules of grammar, style and consistency are thoroughly followed
Font and size that's easy to read and remain consistent across all imprint and digital publications are applied

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*Period*	*Description*	*GST rate and Schedule*
01-07-2017 to 14-11-2017	Fly Ash Bricks and Fly Ash Blocks	12% under Schedule III
15-11-2017 to 31-12-2018	Fly ash bricks or fly ash aggregate with 90 percent or more fly ash content	5% under Schedule II
Post 01-01-2019 to 31 March 2022	Fly ash bricks or fly ash aggregate with 90 percent or more fly ash content; Fly ash blocks	5% under Schedule II
Post 01-04-2022	Fly ash bricks or fly ash aggregate with 90 per cent. or more fly ash content; Fly ash blocks	6% (without ITC) and 12 % (with ITC)

*Sl. No.*	*Details*	*Amount (INR)*
		*Input Duty Structure* *Others*
1.	Turnover	5,00,000
2.	Tax on the above @5%	25,000
3.	ITC availed on inputs	1,00,000
4.	ITC availed on input services	40,000
5.	Refund entitlement earlier	=[1,00,000 x (5,00,000/5,00,000)]-25,000 =75,000
6.	Refund entitlement now	=[1,00,000 x (5,00,000/5,00,000)] – (25,000 x 1,00,000/1,40,000) =82,143

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