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THE CENTRAL GOODS AND SERVICES TAX (AMENDMENT) Act, 2018

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S 1

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• 1. (1) This Act may be called the Central Goods and Services Tax (Amendment) Act,

2018. (2) Save as otherwise provided, the provisions of this Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

S 2(18) Business Vertical is deleted

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As per section 25(2) of the CGST Act, a person seeking registration shall be granted a single registration in a State or Union territory, except in case of multiple business verticals. This option is not currently available to a supplier who has just one vertical but multiple places of business in a State or Union Territory. To ensure clarity in the registration process the concept of business vertical has been removed from GST. A supplier is now allowed to obtain separate registration for each place of his business in a State or Union territory Subject to conditions as may be prescribed.

S 2(102) Service Definition

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“services” means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged; Explanation:- For the removal of doubts, it is hereby clarified that the expression “services” includes facilitating or arranging transactions in securities

S 7 Supply. ( 1ST July 2017 )

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• 7. (1) For the purposes of this Act, the expression “supply” includes–

(a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; (b) import of services for a consideration whether or not in the course or furtherance of business; and (c) the activities specified in Schedule I made or agreed to be made without a consideration.; and (d) the activities to be treated as supply of goods or supply of services as referred to in Schedule II. (1A) Certain activities or transactions, when constituting a supply in accordance with the provisions of sub-section (1), shall be treated either as supply of goods

• r supply of services as referred to in Schedule II

SCHEDULE II

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[See section 7] ACTIVITIES OR TRANSACTIONS TO BE TREATED AS SUPPLY OF GOODS OR SUPPLY OF SERVICES

• 1. Transfer

a) any transfer of the title in goods is a supply of goods 5 (e) agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act. Maharashtra Authority for Advance Ruling in the case of Maharashtra State Power Generation Company Limited.

• 7. Supply of Goods

The following shall be treated as supply of goods, namely:— Supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration.

SCHEDULE II

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The taxpayer had contention that:- 1.There is no explicit agreement between the company and the contractor wherein the company is intending to supply service of tolerance of delay.

• 2. The delay is neither desired by the company nor by the contractor but to impress

upon the contractor to adhere to timelines

• 3. Liquidated damages are in nature of a measure of damages to which parties agree,

rather than a remedy.

• 4. Liquidated damages cannot be said to be the desired income, it is the compensation

for loss suffered by recipient

• 5. Damages are not received by the person for the tolerance of an act, but

it is made to compensate the loss suffered.

• 6. Recovery of liquidated damage is not for supply of service for tolerance of an act.

The word ‘obligation’ used in clause clearly means that person should undertake to tolerate an act. There should be a contract for the said purpose and the consideration should be received for such an act of tolerance.

• 7. Liquidated damages are recovered for compensating the loss suffered by the
• recipient. Section 73 and 74 of the Indian Contract Act, 1872 provide for recovery of

liquidated damages in case of breach of contract

SCHEDULE II

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Service by CG/SG by way of tolerating an act where consideration received is in form of liquidated damages : S No 62 Notification No 12/2017 CGST (Rate) Rajeshri Food Pvt Ltd ( Karnataka AAR) :- Transfer of Going Concern business is exempt supply of service as mentioned in Sr No 2 of Notification No 12/2017 CGST (Rate) Service of Membership Organization Heading No 9995 It is settled law that mere mention of an item in the Tariff, does not make the same as taxable. In Commissioner of Central Excise, Chandigarh-I v MarkfedVanaspathi and Allied Industries [2003] 4 SCC 1841 the Court held that twin tests of ‘manufacture and marketability’ do not cease to apply if a good falls within a tariff entry, under Excise law.

SCHEDULE I

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[See section 7] ACTIVITIES OR TRANSACTIONS TO BE TREATED AS SUPPLY OF GOODS OR SUPPLY OF SERVICES 4) Import of services by a taxable person from a related person or from any of his

• ther establishments outside India, in the course or furtherance of business.

This amendment is to ensure that import of services by entities which are not registered under GST (say, they are only making exempted supplies ) but are otherwise engaged in business activities is taxed when received from a related person or from any of their establishments outside India. Columbia Asia Hospitals (P .) Ltd., (AAR-KARNATAKA)

SCHEDULE III

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[See section 7] ACTIVITIES OR TRANSACTIONS WHICH SHALL BE TREATED NEITHER AS A SUPPLY OF GOODS NOR A SUPPLY OF SERVICES

• 7. Supply of goods from a place in the non-taxable territory to another place in the

non-taxable territory without such goods entering into the taxable territory It is sought to exclude from the tax net such transactions which involve movement of goods, caused by a registered person, from one non-taxable territory to another non-taxable territory Synthite Industries Ltd. (AUTHORITY FOR ADVANCE RULINGS, KERALA)

SCHEDULE III

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[See section 7] ACTIVITIES OR TRANSACTIONS WHICH SHALL BE TREATED NEITHER AS A SUPPLY OF GOODS NOR A SUPPLY OF SERVICES 8 (a) Supply of warehoused goods to any person before clearance for home consumption. (b) Supply of goods by the consignee to any other person, by endorsement of documents of title to the goods, after the goods have been dispatched from the port

• f origin located outside India but before clearance for home consumption.

Explanation.- For the purposes of this clause, the expression “warehoused goods” shall have the meaning as assigned to it in the Customs Act, 1962 (52 of 1962. BASF India Ltd (AUTHORITY FOR ADVANCE RULINGS, MAHARASHTRA)

• NonTaxable Supply liable for reversal of Common Credit.

Section 9

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Levy and collection “(4) The Government may, on the recommendations of the Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services

• r both.”

Section 10

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Composition Earlier

• 10. (1) Notwithstanding anything to the contrary contained in this Act but subject to

the provisions of sub-sections (3) and (4) of section 9, a registered person, whose aggregate turnover in the preceding financial year did not exceed fifty lakh rupees, may opt to pay, in lieu of the tax payable by him, an amount calculated at such rate as may be prescribed but not exceeding, Now 10 (1) Notwithstanding anything to the contrary contained in this Act but subject to the provisions of sub-sections (3) and (4) of section 9, a registered person, whose aggregate turnover in the preceding financial year did not exceed fifty lakh rupees, may opt to pay, in lieu of the tax payable by him under sub-section (1) of section 9, an amount of tax calculated at such rate as may be prescribed but not exceeding,

Section 10

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Composition Earlier Provided that the Government may, by notification, increase the said limit of fifty lakh rupees to such higher amount, not exceeding one crore rupees, as may be recommended by the Council. Now Provided that the Government may, by notification, increase the said limit of fifty lakh rupees to such higher amount, not exceeding one hundred and fifty lakh rupees, as may be recommended by the Council. Recommended under 25th Council Meeting

Section 10

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Composition Provided further that a person who opts to pay tax under clause (a), clause (b)

• r

clause (c) may supply services of value not exceeding ten percent of turnover in the preceding financial year in a State or Union territory or five lakh rupees, whichever is higher 2(112) “turnover in State” or “turnover in Union territory” means the aggregate value of all taxable supplies (excluding the value of inward supplies on which tax is payable by a person on reverse charge basis) and exempt supplies made within a State or Union territory by a taxable person, exports of goods or services or both and inter-State supplies of goods or services or both made from the State or Union territory by the said taxable person but excludes central tax, State tax, Union territory.

Section 10

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Rate on Services 10 (1) Notwithstanding anything to the contrary contained in this Act but subject to

the provisions of sub-sections (3) and (4) of section 9, a registered person, whose aggregate turnover in the preceding financial year did not exceed fifty lakh rupees, may

• pt to pay, in lieu of the tax payable by him under sub-section (1) of section

9, an amount of tax calculated at such rate as may be prescribed but not exceeding, (a) one per cent of the turnover in State or turnover in Union territory in case of a manufacturer, (b) two and a half per cent. of the turnover in State or turnover in Union territory in case of persons engaged in making supplies referred to in clause (b) of paragraph 6 of Schedule II, and (c) half per cent. of the turnover in State or turnover in Union territory in case

• f other suppliers)

subject to such conditions and restrictions as may be prescribed: Provided that the Government may, by notification, increase the said limit of fifty lakh rupees to such higher amount, not exceeding one crore rupees, as may be recommended by the Council

Section 10

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Rate on Services 2(87) “prescribed” means prescribed by rules made under this Act on the recommendations of the Council;

Section 10

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Composition Rates Notification No 01/2018- Central Tax

• half % of turnover in state in case of manufacturer
• two and a half per cent. of the turnover in State or turnover in Union territory

in case of persons engaged in making supplies referred to in clause (b) of paragraph 6

• f Schedule II, and
• Half % of turnover in state in case of other suppliers

(Half % of turnover of taxable supplies of goods in state in case of other suppliers

Section 12

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Time of Supply of Goods Earlier The time of supply of goods shall be the earlier of the following dates, namely:— (a) the date of issue of invoice by the supplier or the last date on which he is required, under sub-section (1) of section 31, to issue the invoice with respect to the supply; or (b) the date on which the supplier receives the payment with respect to the Supply.

• Now it is Section 31

Section 13

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Time of Supply of Services Earlier The time of supply of services shall be the earliest of the following dates, namely:- (a) the date of issue of invoice by the supplier, if the invoice is issued within the period prescribed under sub-section (2) of section 31 or the date of receipt of payment, whichever is earlier; or (b) the date of provision of service, if the invoice is not issued within the period prescribed under sub-section (2) of section 31 or the date of receipt of payment, whichever is earlier; or

• Now it is Section 31

Section 16(2)

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Condition for ITC availment. (b) he has received the goods or services or both Explanation.—For the purposes of this clause, it shall be deemed that the registered person has received the goods where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way

• f transfer of documents of title to goods or otherwise;

New Explanation:- “Explanation.—For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services–– (i) where the goods are delivered by the supplier to a recipient or any other person

• n the direction of such registered person, whether acting as an agent or
• therwise, before or during movement of goods, either by way of transfer of

documents of title to goods or otherwise; (ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person

Section 17

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Explanation to 17(3). 17(3) The value of exempt supply under sub-section (2) shall be such as may be prescribed, and shall include supplies on which the recipient is liable to pay tax on reverse charge basis, transactions in securities, sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building. Explanation:- For the purposes of this sub-section, the expression ‘‘value of exempt supply’’ shall not include the value of activities or transactions specified in Schedule III, except those specified in paragraph 5 of the said Schedule.

Section 17

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Block Credit 17(5)

(5) Notwithstanding anything contained in sub-section (1) of section 16 and sub- section (1) of section 18, input tax credit shall not be available in respect of the following, namely:— “(a) motor vehicles for transportation of persons having approved seating capacity

• f not more than thirteen persons (including the driver), except when they are used for

making the following taxable supplies, namely:— (A) further supply of such motor vehicles; or (B) transportation of passengers; or (C) imparting training on driving such motor vehicles; (aa) vessels and aircraft except when they are used–– (i) for making the following taxable supplies, namely:— (A) further supply of such vessels or aircraft; or (B) transportation of passengers; or (C) ) imparting training on navigating such vessels; or (D) imparting training on flying such aircraft;

(ii) for transportation of goods

Section 17

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Block Credit 17(5) (ab) services of general insurance, servicing, repair and maintenance in so far as they relate to motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa): Provided that the input tax credit in respect of such services shall be available- (i) where the motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) are used for the purposes specified therein; (ii) where received by a taxable person engaged— (I) in the manufacture of such motor vehicles, vessels or aircraft; or (II) in the supply of general insurance services in respect of such motor vehicles, vessels or aircraft insured by him;

Section 17

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Block Credit 17(5) (b) the following supply of goods or services or both—

(i) food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, leasing, renting or hiring of motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) except when used for the purposes specified therein, life insurance and health insurance ( Earlier it was Rent a Cab ) Provided that the input tax credit in respect of such goods or services or both shall be available where an inward supply of such goods or services or both is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as an element of a taxable composite

• r mixed supply;

(ii) membership of a club, health and fitness centre; and (iii) travel benefits extended to employees on vacation such as leave or home travel concession Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force ( Earlier only for Rent a cab, health and life insurance )

Section 24

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Registration Earlier 24 (x) every electronic commerce operator; Now 24 (x) every electronic commerce operator who is required to collect tax at source under section 52;

Section 25

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Registration “Provided further that a person having a unit, as defined in the Special Economic Zones Act, 2005, in a Special Economic Zone or being a Special Economic Zone developer shall have to apply for a separate registration, as distinct from his place of business located outside the Special Economic Zone in the same State or Union territory. Proviso to Rule 8 earlier :- Provided that a person having a unit(s) in a Special Economic Zone or being a Special Economic Zone developer shall make a separate application for registration as a business vertical distinct from his other units located outside the Special Economic Zone:

Section 29

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Cancellation or Suspension Provided that during pendency of the proceedings relating to cancellation of registration filed by the registered person, the registration may be suspended for such period and in such manner as may be prescribed. This measure would relieve the taxpayer of continued compliance burden under the law till such time as the process of allowing cancellation of registration is completed

Section 34

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Credit & Debit Notes 34(1) Where a tax invoice has one or more tax invoices have been issued for supply of any goods or services or both and the taxable value or tax charged in that tax invoice is found to exceed the taxable value or tax payable in respect of such supply, or where the goods supplied are returned by the recipient, or where goods or services

• r

both supplied are found to be deficient, the registered person, who has supplied such goods or services or both, may issue to the recipient a one

• r more credit notes for supplies made in a financial year containing such

particulars as may be prescribed. 3) Where a tax invoice has one or more tax invoices have been issued for supply of any goods or services or both and the taxable value or tax charged in that tax invoice is found to be less than the taxable value or tax payable in respect of such supply, the registered person, who has supplied such goods or services or both, shall issue to the recipient a one or more debit notes for supplies made in a financial year containing such particulars as may be prescribed

Section 49(5)

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Manner of Utilization of ITC

(5) The amount of input tax credit available in the electronic credit ledger of the registered person on account of–– (a) integrated tax shall first be utilised towards payment of integrated tax and the amount remaining, if any, may be utilised towards the payment of central tax and State tax, or as the case may be, Union territory tax, in that order; (b) the central tax shall first be utilised towards payment of central tax and the amount remaining, if any, may be utilised towards the payment of integrated tax; (c) the State tax shall first be utilised towards payment of State tax and the amount remaining, if any, may be utilised towards payment of integrated tax; Provided that the input tax credit on account of State tax shall be utilised towards payment of integrated tax only where the balance of the input tax credit on account of central tax is not available for payment of integrated tax;”; This amendment is required since the GST common portal has placed this restriction in the utilization of input tax credit of State tax/Union territory tax towards payment of integrated tax.

Section 49(5)

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Manner of Utilization of ITC 49A Notwithstanding anything contained in section 49, the input tax credit on account

• f central tax, State tax or Union territory tax shall be utilised towards payment
• f integrated tax, central tax, State tax or Union territory tax, as the case may be,
• nly after the input tax credit available on account of integrated tax has

first been utilised fully towards such payment

It is sought to insert a new proviso to sub-section (5) in order to specify that a taxpayer would be able to utilise credit on account of CGST, SGST/UTGST,

• nly after exhausting all the credit on account of IGST available to him.

This is being done to minimise fund settlement on account of IGST.

49B. Notwithstanding anything contained in this Chapter and subject to the provisions

• f clause (e) and clause (f) of sub-section (5) of section 49, the Government may,
• n the recommendations of the Council, prescribe the order and manner of

utilisation of the input tax credit on account of integrated tax, central tax, State tax or Union territory tax, as the case may be, towards payment of any such tax

IGST SGST CGST IGST First Stage

CGST IGST CGST Second Stage

SGST IGST ( Provided entire CGST Credit utilized ) SGST Last Stage

Section 54(8)

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Unjust Enrichment (8) Notwithstanding anything contained in sub-section (5), the refundable amount shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to:- Earlier :- (a) ) refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies. Now :- (a) ) refund of tax paid on export supplies of goods or services or both or on inputs

• r input services used in making such export supplies

Section 79

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Recovery Explanation .- (1) For the purposes of this section, the word person shall include “distinct persons” as referred to in sub-section (4) or, as the case may be, sub-section (5) of section 25. It is proposed to provide that recovery may be made from distinct persons present in different States / UTs in order to ensure speedy recovery from other establishments

• f the registered person

Section 107

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Pre- Deposit For Appeals to Appellate Authority Presently, in terms of section 107(6), the appellant is required to pay a sum equal to 10% of the tax in dispute arising from the order being appealed against for filing an appeal before the Appellate Authority. It is proposed to provide a ceiling of Rs. 25 crore for filing an appeal before the Appellate Authority.

Section 112

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Pre- Deposit For Appeals to Appellate Tribunal. In terms of section 112 (8), the appellant is required to pay a sum equal to 20% of the tax in dispute, in addition to the amount paid under section 107 (6), arising from the order of the Appellate Authority for filing an appeal before the Appellate Tribunal. This section is being amended to provide a ceiling of Rs. 50 crores for filing an appeal before the Appellate Tribunal.

Section 140

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(1) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit of [eligible duties] carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law in such manner as may be prescribed. (a) in sub-section (1), after the letters and word “CENVAT credit”, the words “of eligible duties” shall be inserted and shall always be deemed to have been inserted.

Section 140

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FAQ Q 91 Whether the credit of SBC or KKC can be carried forward ?

• Govt Replied no both can not be carried forward.

As per Rule 3 of CENVAT Credit Rules (‘CCR’), 2004, credit of SBC was not available. Hence the same would not be part of closing balance of return filed for period ending

• n June, 2017.Thus there is no question of carry forward of said credit.

As per above provision a registered person, other than person paying tax on composition basis, shall be entitled to take in his electronic credit ledger the amount

• f CENVAT credit carried forward in the return. Unlike Sec. 140(3) where only

eligible duties in respect of stock is allowed to be taken, Sec. 140(1) allows carry forward of the amount of CENVAT credit. Hence what is allowed to be taken is ‘the amount of CENVAT credit’

Section 140

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“ Cenvat Credit” Said expression has not been defined under the Central Excise Act, 1944. However, we find reference to the same in CCR, 2004. Rule 3(1) provides that a manufacturer or producer of final products or a provider of output service shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of listed duties and cesses. In fact, higher education cess as well as secondary higher education cess is part of the list. Hence if one has balance of the same, one can easily carry forward the same. However, in the said list we do not find mention of KKC. Will it mean that KKC is not ‘CENVAT Credit’ ?

Section 140

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(1) A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of - (i)the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act; (ii)the duty of excise specified in the Second Schedule to the Excise Tariff Act, leviable under the Excise Act; (viii)the additional duty of excise leviable under section 157 of the Finance Act, 2003 (32 of 2003); (ix)the service tax leviable under section 66 of the Finance Act; (x)the Education Cess on taxable services leviable under section 91 read with section 95 of the Finance (No.2) Act, 2004 (23 of 2004); and (xa)the Secondary and Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007); and (xi)the additional duty of excise leviable under section 85 of Finance Act, 2005 (18 of 2005 )

Section 140

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‘Rule 3 (1a): A provider of output service shall be allowed to take CENVAT credit of the Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016)’ Further Rule 3(7)(d) was also inserted to provide restriction on utilization of KKC. It is also reproduced below: ‘Rule 3(7)(d): CENVAT credit in respect of Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016) shall be utilised only towards payment of Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016).’

Section 140

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Explanation 1.—For the purposes of sub-sections (3), (4) and (6), the expression “eligible duties” means–– (i) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957; (ii) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act, 1975; (iii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, 1975; (iv) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978; (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985; (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985; and (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001, in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day.

Section 140

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Explanation 2.—For the purposes of sub-section (5), the expression “eligible duties and taxes” means–– (i) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957; (ii) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act, 1975; (iii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, 1975; (iv) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978; (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985; (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985; (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001; and (viii) the service tax leviable under section 66B of the Finance Act, 1994, in respect of inputs and input services received on or after the appointed day.

Section 140

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b) in the Explanation 1— (i) for the word, brackets and figures “sub-sections (3), (4)”, the word, brackets and figures “sub-sections (1), (3), (4)” shall be substituted and shall always be deemed to have been substituted; (ii) clause (iv) shall be omitted and shall always be deemed to have been omitted; (c) in the Explanation 2— (i) for the word, brackets and figure “sub-section (5)”, the words, brackets and figures “sub-sections (1) and (5)” shall be substituted and shall always be deemed to have been substituted; (ii) clause (iv) shall be omitted and shall always be deemed to have been omitted; (d) after Explanation 2 as so amended, the following Explanation shall be inserted and shall always be deemed to have been inserted, namely:— ‘Explanation 3.—For removal of doubts, it is hereby clarified that the expression “eligible duties and taxes” excludes any cess which has not been specified in Explanation 1 or Explanation 2 and any cess which is collected as additional duty of customs under sub-section (1) of section 3 of the Customs Tariff Act, 1975.’.

Section 140

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Rule 117. Tax or duty credit carried forward under any existing law or on goods held in stock

• n the appointed day.- (1) Every registered person entitled to take credit of input tax

under section 140 shall, within ninety days of the appointed day, submit a declaration electronically in FORM GST TRAN-1, duly signed, on the common portal specifying therein, separately, the amount of input tax credit of eligible duties and taxes, as defined in Explanation 2 to section 140, to which he is entitled under the provisions of the said section. But earlier in Explanation 2 it was only for 140(5) not for 140(1) now they amended with retrospective effect.

Retrospective V/s Prospective Operation

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VatikaT

• wnship (P

.) Ltd [2014] 49 taxmann.com 249 (SC)

A legislation, be it a statutory Act or a statutory rule or a statutory Notification, may physically consists of words printed on. There is a technique required to draft a legislation as well as to understand a legislation. Former technique is known as legislative drafting and latter one is to be found in the various principles of 'Interpretation of Statutes'. Vis-à- vis ordinary prose, a legislation differs in its provenance, lay-out and features as also in the implication as to its meaning that arise by presumptions as to the intent of the maker thereof.

• f the various rules guiding how a legislation has to be interpreted, one established rule is that

unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. One principle of law is known as lex prospicit non respicit: law looks forward not backward. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation.

Retrospective V/s Prospective Operation

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An explanation brought on the statute book is usually clarificatory in nature and is given retrospective effect since in the eyes of the law; a new explanation brought to a provision in the statute simply explains the law as it has always been in the main provision. In cases where a new Explanation is inserted, retrospective effect is generally presumed, as is the clarificatory nature of the amendment. If a clarificatory explanation seeking to get over previous judicial decisions is seen to be amounting to a ‘new’ levy – or is in substance a change in law, the retrospective amendment will then be rendered unconstitutional.

THE INTEGRATEDGOODS AND SERVICES TAX (AMENDMENT) Act, 2018

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Section 2(6)

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2(6) “export of services” means the supply of any service when, –– (i) the supplier of service is located in India; (ii) the recipient of service is located outside India; (iii) the place of supply of service is outside India; (iv) the payment for such service has been received by the supplier of service in convertible foreign exchange or in Indian Rupees where permitted by the Reserve Bank of India; and (v) the supplier of service and the recipient of service are not merely establishments

• f a distinct person in accordance with Explanation 1 in section 8

Notification 15/2018- IGST (rate) Dated 26/07/2018 is exempting such service by mere establishment.

Section 5

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Levy and collection “(4) The Government may, on the recommendations of the Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services

• r both.”

Section 12

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Place of supply of services where location of supplier and recipient is in India. Earlier 8) The place of supply of services by way of transportation of goods, including by mail

• r courier to,––

(a) a registered person, shall be the location of such person; (b) a person other than a registered person, shall be the location at which such goods are handed over for their transportation. Now:- "Provided that where the transportation of goods is to a place outside India, the place

• f supply shall be the place of destination of such goods.".

In

• rder

to provide a level playing field to the domestic transportation companies and promote export of goods, it is proposed that the transportation

• f goods from a place in India to a place outside India by a transporter

located in India would not be chargeable to GST , as place of supply will be

• utside India.

Section 7(5)

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(5) Supply of goods or services or both,–– (a) when the supplier is located in India and the place of supply is outside India shall be treated to be a supply of goods or services or both in the course of inter-State trade or commerce

Section 20

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Provided also that where the appeal is to be filed before the Appellate Authority or the Appellate Tribunal, the maximum amount payable shall be fifty crore rupees and one hundred crore rupees respectively

Principal-Agent relationship

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Office Memorandum dated 05th Sept 2017 F.No. 349/40/2017-GST issued by MOF CBIC released FAQs on Banking and Financial Service sectors. The question No. 83 of the same reproduced herein below: Q: Would sub-brokers/ Authorized Persons fall in the definition of “agent” under Section 2(5) of the CGST Act, 2017? What would be the registration requirement for subbrokers / Authorized Persons in the context of the Goods and Services Tax Regime? As per Stock Brokers and Sub Brokers Regulation, 1992 issued by SEBI, a “sub broker” means “any person, not being a member of stock exchange, who acts on behalf of a stock broker as an agent or otherwise for assisting the investors in buying, selling or dealing in securities through such stock brokers”. It is, therefore, apparent that the sub broker may not only be providing services to the stock broker but may also be providing services to the clients and receiving consideration from both. Thus, in such a scenario where the sub broker is providing services both to the broker and the investor on behalf of the broker, he would be duly covered by the definition of ”agent” as provided in Section 2(5) of the CGST Act, and needs to compulsorily register

Ocean Freight

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Principal-Agent relationship

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Circular No. 57/31/2018-GST , Dated the 4th September, 2018 S 2(5) agent” means a person, including a factor, broker, commission agent, arhatia, del credere agent, an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of supply or receipt of goods or services or both on behalf

• f another.

The following two key elements emerge from the above definition of agent: a)the term agent is defined in terms of the various activities being carried out by the person concerned in the principal-agent relationship; and b)the supply or receipt of goods or services has to be undertaken by the agent

• n behalf of the principal.

Principal-Agent relationship

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Thus, the key ingredient for determining relationship under GST would be whether the invoice for the further supply of goods on behalf of the principal is being issued by the agent or not. Where the invoice for further supply is being issued by the agent in his name then, any provision of goods from the principal to the agent would fall within the fold of the said entry. However, it may be noted that in cases where the invoice is issued by the agent to the customer in the name of the principal, such agent shall not fall within the ambit of Schedule I of the CGST Act. Scenario 1

• Mr. A appoints Mr. B to procure certain goods from the market. Mr. B identifies

various suppliers who can provide the goods as desired by Mr. A, and asks the supplier (Mr. C) to send the goods and issue the invoice directly to Mr. A. In this scenario, Mr. B is only acting as the procurement agent, and has in no way involved himself in the supply or receipt of the goods. Hence, in accordance with the provisions of this Act, Mr.B is not an agent of Mr. A for supply of goods in terms of Schedule I.

Recovery of arrears of wrongly availed CENVAT credit under the existing law and inadmissible transitional credit

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Circular No. 58/32/2018-GST , Dated the 4th September, 2018 The Board vide Circular No. 42/16/2018-GST dated 13th April, 2018, has clarified that the recovery of arrears arising under the existing law shall be made as central tax liability to be paid through the utilization of the amount available in the electronic credit ledger or electronic cash ledger of the registered person, and the same shall be recorded in Part II of the Electronic Liability Register (FORM GST PMT

• 01).

Currently, the functionality to record this liability in the electronic liability register is not available on the common portal Therefore, it is clarified that as an alternative method, taxpayers may reverse the wrongly availed CENVAT credit under the existing law and inadmissible transitional credit throughTable 4(B)(2) of FORM GSTR-3B. The applicable interest and penalty shall apply on all such reversals which shall be paid through entry in column 9 ofTable 6.1 of FORM GSTR-3B.

R A Y S & Associates

RAYS & Associates

202-203, Addor Ambition, Nr Vimal House, Navrang Circle, Navrangpura Ahmedabad-380009 Gujarat, India Phone:- 07940397690

Email:- info@raysassociates.com Url: www.raysassociates.com