SERIES II No. 31
PUBLISHED BY AUTHORITY
RNI No. GOAENG/2002/6410
Reg. No. RNP/GOA/32/2024-2026
GOVERNMENT OF GOA
Department of Finance
Office of the Commissioner of Commercial Taxes
__
No. CCT/26-4/2024-25/G/3459
Subject: Clarification in respect of advertising
services provided to foreign clients–reg.
Ref.:
Circular No. 230/24/2024-GST dated
10th September, 2024 issued under Central
Goods and Services Tax Act, 2017 by the
GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of
Revenue, Ministry of Finance, Government
of India, New Delhi.
Circular
(No. 23/2024-25-GST)
The GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the GST Policy Wing, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Panaji, 1st November, 2024 (Kartika 10, 1946)
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa.
Panaji, 01st November, 2024.
—–––––—
ANNEXURE
Circular No. 230/24/2024-GST
F. No. CBIC-20001/6/2024-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
New Delhi, dated the 10th September, 2024
To,
The Pr. Chief Commissioners/Chief Commissioners/
Principal Commissioners/Commissioners of Central
Tax (All),
The Principal Directors General/Directors General
(All).
Madam/Sir,
Subject: Clarification in respect of advertising
services provided to foreign clients–reg.
References have been received from the trade and
industry requesting for clarification regarding
advertising services being provided by Indian
advertising companies/agencies to foreign entities,
as some of the field formations are considering the
place of supply of the said services as within India,
thereby denying the export benefits to such
advertising companies.
EXTRAORDINARY
Suggestions are welcomed on e-mail: [email protected]
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1.2 In view of the difficulties being faced by the
trade and industry and to ensure uniformity in the
implementation of the provisions of the law across
field formations, the Board, in exercise of its powers
conferred by Section 168 (1) of the Central Goods and
Services Tax Act, 2017 (hereinafter referred to as
“CGST Act”), hereby clarifies the issues in
succeeding paragraphs.
2. Issue in Brief:
2.1 A foreign company or firm hires an advertising
company/agency in India for advertisement of its
goods or services and may enter into a
comprehensive agreement with the advertising
company/agency encompassing all the issues related
to advertising services ranging from media planning,
investment planning for the same, creating and
designing content, strategizing for maximum
customer reach, the identification of media owners,
dealing with media owners, procuring media space,
etc. for displaying/broadcasting/printing of
advertisement including monitoring of the progress
of the same. In such a case, the advertising agency
provides a one stop solution to the client who
outsources the entire activity to the agency.
2.2 In this scenario, media owners raise invoice to
the advertising agency for inventory costs, which
are then paid by the advertising agency.
Subsequently, the advertising agency raises invoice
to the foreign client for the rendered advertising
services and receives the payments in foreign
exchange from the foreign client. In this regard,
clarification has been sought as to:
a. Whether the advertising company can be
considered as an “intermediary” between the
foreign client and the media owners in terms of
Section 2(13) of Integrated Goods and Services Tax
Act, 2017 (hereinafter referred to as the “IGST
Act”), thereby resulting in determination of place
of supply under Section 13(8)(b) of the IGST Act?
b. Whether the representative of foreign client
in India or the target audience of the
advertisement in India can be considered as the
recipient of the services being supplied by the
advertising company under Section 2(93) of CGST
Act?
c. Whether the advertising services provided
by the advertising companies to foreign clients
can be considered as performance-based services
as per Section 13(3)of the IGST Act?
3. Clarification:
3.1 Issue 1—Whether the advertising company can
be considered as an “intermediary” between the
foreign client and the media owners as per Section 2(13)
of IGST Act?
3.1.1 As per Section 2(13) of IGST Act, read
with Circular No. 159/15/2021-GST dated
20-09-2021, a broker, agent or any other person
who arranges or facilitates the main supply of
goods or services or both or securities and has
not involved himself in the main supply on his
own account is considered as intermediary.
3.1.2 In the instant scenario, it is observed that
the foreign clients enter into a comprehensive
agreement with advertising companies/agencies
in India and outsource the entire activity of
advertising services to the advertising
companies/agencies. Further, these advertising
companies/agencies enter into an agreement
with the media owners in India for implementing
the said media plan and procurement of media
space for airing or releasing or printing
advertisement.
3.1.3 The advertising agency, in this case,
enters into two agreements:
i. With the client located outside India for
providing a one stop solution starting from
designing the advertisement to its display in
the media as agreed to with the client. The
advertising company raises invoice to its
foreign client for the above advertising
services and the payments of the same is
received from the foreign client in foreign
exchange.
ii. With the media company to procure
media space for display of the advertisement
and to monitor campaign progress based on
data shared by the media company. The media
company bills the advertising agency and the
payment for same is made by the advertising
agency to the media company.
3.1.4 Thus, the agreement, in the instant case,
is in the nature of two distinct principal-to-
-principal supplies and no agreement of supply
of services exists between the media company
and the foreign client. The advertising company
is not acting as an agent but has been contracted
by the client to procure and provide certain
services. The advertising agency is providing the
services to the client on its own account.
3.1.5 In view of above, it is clarified that in the
present scenario, the advertising company is
involved in the main supply of advertising
services, including resale of media space, to the
foreign client on principal-to-principal basis as
detailed above and does not fulfil the criteria of
“intermediary” under Section 2(13) of the IGST Act.
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Thus, the same cannot be considered as
“intermediary” in such a scenario and accordingly,
the place of supply in the instant matter cannot be
linked with the location of supplier of services in
terms of Section 13(8)(b) of the IGST Act.
3.2 Issue-2 Whether the representative of foreign
client in India or the target audience of the
advertisement in India can be considered as the
“recipient” of the services being supplied by the
advertising company under Section 2(93) of CGST
Act?
3.2.1 As per Section 2(93)(a) of the CGST Act, the
“recipient” of the services means the person who is
liable to pay consideration where a consideration is
payable for the supply of goods or services or both.
3.2.2 In the instant scenario, the foreign client is
liable to pay the consideration to advertising
company for the supply of advertising and not the
consumers or the target audience that watches the
advertisement in India. Further, in this case, even if
a representative of the said foreign client based in
India, including a subsidiary or related person of the
said foreign client, is interacting with the
advertising company on behalf of the said foreign
client, the said representative based in India cannot
be considered as a recipient of the service, if the
agreement is between the foreign client and the
advertising company, the invoice is being issued for
the said service by the advertising company to the
foreign client and the payment for the said service
is received by the advertising company directly from
the said foreign client. Further, the target audience
of the advertisements may be based in India but such
target audience cannot be considered as recipient
of the said advertising services being supplied by
the advertising company as per the definition of the
recipient under Section 2(93) of CGST Act.
3.2.3 Therefore, in view of above, it is clarified that
the recipient of the advertising services provided
by the advertising company in such cases is the
foreign client and not the Indian representative of
the foreign client based in India or the target
audience of the advertisements, as per Section 2(93)
of the CGST Act, 2017.
3.3 Issue-3 Whether the advertising services
provided by the advertising companies to foreign
clients can be considered as performance-based
services as per Section 13(3) of the IGST Act?
3.3.1 The place of supply of performance based
services is provided in sub-section (3) of Section 13
of IGST Act. The provisions of Clause (a) of the said
sub-section pertain to the services supplied in
respect of goods which are required to be made
physically available by the recipient of services to
the supplier of services. However, in the instant
matter, there does not appear to be any such
involvement of goods which are required to be
physically available with supplier of advertising
services. Therefore, the said provisions of Clause (a)
of the said sub-section cannot be made applicable
for determination of place of supply of advertising
services.
3.3.2 Further, Clause of (b) of sub-section (3) of
Section 13(3)(b) of IGST Act provides that the place
of supply shall be the location where the services
are actually performed in case, where,
a. services are supplied to an individual,
b. represented either as the recipient of services
or a person acting on behalf of the recipient, and
c. which requires the physical presence of the
recipient or the person acting on his behalf, with
the supplier for the supply of services.
3.2.3 In the present scenario, the supply of
advertising services does not require physical
presence of the recipient (foreign client or
representative or a person acting on his behalf) with
the advertising company for availing the said
advertising services. Thus, the said supply of
advertising services cannot be considered as being
covered under Section 13(3)(b) of the IGST Act for
being considered as the services actually performed
in India in terms of the said Section.
3.3.3 Accordingly, it is clarified that the place of
supply of advertising services in such cases can
neither be determined as per the provision of Section 13(3)(a)
nor as per the provisions of Section 13(3)(b) of IGST
Act.
4. Further, it is observed that in the present
scenario, the place of supply of the above-mentioned
advertising services does not appear to be covered
under any other provisions of sub-sections (3) to (13)
of Section 13 of the IGST Act. Therefore, in view of
foregoing discussion, it appears that the place of
supply of the said advertising service being supplied
by the advertising company to the foreign clients
can only be determined as per the default provision,
i.e. sub-section (2) of Section 13 of IGST Act, i.e. the
place of location of the recipient of the services. Since
the recipient of the advertising services in such
scenario is the foreign client, who is located outside
India, the place of supply of the said services appears
to be the location of the said foreign client i.e. outside
India as per Section 13(2) of IGST Act, and the said
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service can be considered to be export of services,
subject to the fulfilment of conditions mentioned in
Section 2(6) of IGST Act.
5. However, there may be cases where the
advertising company located in India merely acts as
an agent of the foreign client in engaging with the
media owner for providing media space to the foreign
client. In such cases, the agreement/contract for
providing the media space and broadcast of the
advertisement is directly between media owner and
the foreign client. The media owner directly invoices
the foreign client for providing the media space and
broadcast of the advertisement and the foreign
client remits the payment for the said services
directly to the media owner. In such instances, the
services of providing media space and broadcasting
the advertisement are directly provided by the media
owner to the foreign client. In such cases, the
advertising company is merely facilitating the
provision of the said services of providing media
space and broadcasting the advertisement between
the foreign client and the media owner and does not
provide the said services on its own account. The
advertising company invoices the foreign client for
the facilitation services provided by it.
5.1 Consequently, in such cases, the advertising
company is an “intermediary” in accordance with
Section 2(13) of the CGST Act, 2017, as elucidated in
Circular No. 159/15/2021-GST dated 20-09-2021, in
respect of the said services of facilitating the foreign
client and accordingly, the place of supply in respect
of the said services provided by the advertising
company to the foreign client is determinable as per
Section 13(8)(b) of IGST Act, i.e. the location of the
supplier, i.e. the location of the advertising company.
6. It is requested that suitable trade notices may
be issued to publicize the contents of this Circular.
7. Difficulty, if any, in the implementation of this
Circular may be brought to the notice of the Board.
Hindi version will follow.
Sanjay Mangal, Principal Commissioner (GST).
_____
No. CCT/26-4/2024-25/G/3460
Subject: Clarification on availability of input tax
credit in respect of demo vehicles-reg.
Ref.:
Circular No. 231/25/2024-GST dated
10th September, 2024 issued under Central
Goods and Services Tax Act, 2017 by the
GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of
Revenue, Ministry of Finance, Government
of India, New Delhi.
Circular
(No. 24/2024-25-GST)
The GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the GST Policy Wing, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa.
Panaji, 01st November, 2024.
—–––––—
ANNEXURE
Circular No. 231/25/2024-GST
F. No. CBIC-20001/6/2024-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
New Delhi, dated the 10th September, 2024
To,
The Pr. Chief Commissioners/Chief Commissioners/
/Principal Commissioners/Commissioners of Central
Tax (All),
The Principal Directors General/Directors General
(All),
Madam/Sir,
Subject: Clarification on availability of input tax
credit in respect of demo vehicles-reg.
The demo vehicles are the vehicles which the
authorised dealers for sale of motor vehicles are
required to maintain at their sales outlet as per
dealership norms and are used for providing trial
run and for demonstrating features of the vehicle to
the potential buyers. These vehicles are purchased
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by the authorised dealers from the vehicle
manufacturers against tax invoices and are typically
reflected as capital assets in books of account of the
authorized dealers. As per dealership norms, these
vehicles may be required to be held by the authorized
dealers as demo vehicle for certain mandatory period
and may, thereafter, be sold by the dealer at a written
down value and applicable tax is payable at that
point of time.
2. Reference has been received to issue
clarification regarding availability of input tax
credit in respect of demo vehicles on the following
issues:
i. Availability of input tax credit on demo
vehicles, which are motor vehicles for
transportation of passengers having approved
seating capacity of not more than 13 persons
(including the driver), in terms of Clause(a) of
Section 17(5) of Central Goods & Services Tax Act,
2017 (hereinafter referred to as the “CGST Act”).
ii. Availability of input tax credit on demo
vehicles in cases where such vehicles are
capitalized in the books of account by the
authorized dealers.
3. In order to ensure uniformity in the
implementation of the provisions of law across the
field formations, the Board, in exercise of its powers
conferred by section 168 (1) of the CGST Act, hereby
clarifies the above issues as below.
4. Availability of input tax credit on demo vehicles,
which are motor vehicles for transportation of
passengers having approved seating capacity of not
more than 13 persons (including the driver), in terms
of Clause(a) of Section 17(5) of CGST Act.
4.1 Clause (a) of Section 17(5) of CGST Act provides
that input tax credit shall not be available in respect
of motor vehicles for transportation of persons having
approved seating capacity of not more than 13
persons (including the driver), except when they are
used for making 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.
4.2 The intention of law, as it appears from the use
of expression ‘when they are used for making the
following taxable supplies’ in Clause (a) of section
17(5) of CGST Act, is to exclude certain cases (based
on the nature of outward taxable supplies being
made using the said motor vehicle) from the
restriction on availment of input tax credit in respect
of the specified motor vehicles i.e. motor vehicles
for transportation of persons having approved
seating capacity of not more than thirteen persons
(including the driver). The taxable supplies,
permitted for the purpose of being excluded from
the blockage of input tax credit as per provisions of
Clause (a) of Section 17(5) of CGST Act, being further
supply of such motor vehicles, transportation of
passengers and imparting training on driving such
motor vehicles.
4.3 As demo vehicles are used by authorized
dealers to provide trial run and to demonstrate
features of the vehicle to potential buyers, it is quite
apparent that demo vehicles cannot be said to be
used by the authorized dealer for providing taxable
supply of transportation of passengers or imparting
training on driving such motor vehicles. Therefore,
demo vehicles are not covered in the exclusions
specified in sub-clauses (B) and (C) of Clause (a) of
Section 17(5) of CGST Act. Accordingly, it is to be
seen whether or not the Demo vehicles in question
can be said to be used for making “further supply of
such motor vehicles”, as specified in the sub-clause
(A) of the Clause (a) of Section 17(5) of CGST Act.
4.4 Regarding the provision for blockage of input
tax credit in respect of motor vehicles for
transportation of persons having approved seating
capacity of not more than thirteen persons
(including the driver), the usage of the words “such
motor vehicles” instead of “said motor vehicle”, in
sub-clause (A) of the Clause (a) of Section 17(5) of
CGST Act, implies that the intention of the
lawmakers was not only to exclude from the blockage
of input tax credit, the motor vehicle which is itself
further supplied, but also to exclude from the
blockage of input tax credit, the motor vehicle which
is being used for the purpose of further supply of
similar type of motor vehicles. As demo vehicles are
used by authorized dealers to provide trial run and
to demonstrate features of the vehicle to potential
buyers, it helps the potential buyers to make a
decision to purchase a particular kind of motor
vehicle. Therefore, as demo vehicles promote sale of
similar type of motor vehicles, they can be
considered to be used by the dealer for making
‘further supply of such motor vehicles’. Accordingly,
input tax credit in respect of demo vehicles is not
blocked under Clause (a) of Section 17(5) of CGST
Act, as it is excluded from such blockage in terms of
sub-clause (A) of the said Clause.
4.5 There may be some cases where motor
vehicles for transportation of persons having
approved seating capacity of not more than thirteen
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persons (including the driver) are used by an
authorized dealer for purposes other than for
making further supply of such motor vehicles, say
for transportation of its staff employees/
/management etc. In such cases, the same cannot
be said to be used for making ‘further supply of
such motor vehicles’ and therefore, input tax credit
in respect of such motor vehicles would not be
excluded from blockage in terms of sub-clause (A)
of Clause (a) of Section 17(5) of CGST Act.
4.6 Further, there may be cases where the
authorized dealer merely acts as an agent or service
provider to the vehicle manufacturer for providing
marketing service, including providing facility of
vehicle test drive to the potential customers of the
vehicle on behalf of the manufacturer and is not
directly involved in purchase and sale of the
vehicles. In such cases, the sale invoice for the
vehicle is directly issued by the vehicle
manufacturer to the customer. For providing facility
of vehicle test drive to the potential customers of
the vehicle, the dealer purchases demo vehicle from
the vehicle manufacturer. The dealer may sell the
said demo vehicle to a customer after a specified
time or kilometres as per agreement with the vehicle
manufacturer on payment of applicable GST. In such
a case, the authorized dealer is merely providing
marketing and/or facilitation services to the vehicle
manufacturer and is not making the supply of motor
vehicles on his own account. Therefore, the said
demo vehicle cannot be said to be used by the
dealer for making further supply of such motor
vehicles. Accordingly, in such cases, input tax credit
in respect of such demo vehicle would not be
excluded from blockage in terms of sub-clause (A)
of Clause (a) of Section 17(5) of CGST Act and
therefore, input tax credit on the same would not
be available to the said dealer.
5. Availability of input tax credit on demo
vehicles in cases where such vehicles are capitalized
in the books of account by the authorized dealers.
5.1 As per provisions of Section 16(1) of CGST Act,
every registered taxpayer is entitled to take input
tax credit charged on any supply of goods and
services made to him, where such goods or services
are used in the course or furtherance of business of
such person, subject to such conditions and
restrictions as may be prescribed and in the manner
which is specified.
5.2 Further, “goods” has been defined in Section
2(52) of CGST Act, as,
“goods” means every kind of movable property
other than money and securities but includes
actionable claim, growing crops, grass and things
attached to or forming part of the land which are
agreed to be severed before supply or under a
contract of supply.
5.3 Also, Section 2(19) of CGST Act defines
“capital goods” as,
“capital goods” means goods, the value of which is
capitalized in the books of account of the person
claiming the input tax credit and which are used
or intended to be used in the course or furtherance
of business.
5.4 As mentioned in paras above, as the demo
vehicles are used by the authorized dealers to
promote further sale of motor vehicles of the similar
type and therefore, such vehicles appear to be used
in the course or furtherance of business of the
authorized dealers. Where such vehicles are
capitalized in the books of accounts by the
authorized dealer, the said vehicle falls in the
definition of “capital goods” under Section 2(19) of
CGST Act. As per provision of Section 16(1) of CGST
Act, subject to such conditions and restrictions as
may be prescribed, a recipient of goods is entitled to
take input tax credit in respect of tax charged on
the inward supply of any goods, which as per
definition of “goods” under Section 2(52) of CGST
Act, includes even capital goods. Further, Section 2(19)
of CGST Act also recognizes that capital goods are
used or intended to be used in the course or
furtherance of business. Accordingly, availability of
input tax credit on demo vehicles is not affected by
way of capitalization of such vehicles in the books of
account of the authorized dealers, subject to other
provisions of the Act.
5.5 However, it is to be mentioned that in case of
capitalization of demo vehicles, availability of input
tax credit would be subject to provisions of Section 16(3)
of CGST Act, which provides that where the
registered person has claimed depreciation on the
tax component of the cost of capital goods and plant
and machinery under the Income-tax Act, 1961, the
input tax credit on the said tax component shall not
be allowed. It is further mentioned that in case demo
vehicle, which is capitalized, is subsequently sold
by the authorized dealer, the authorized dealer shall
have to pay an amount or tax as per provisions of
Section 18(6) of CGST Act read with Rule 44(6) of the
Central Goods and Service Tax Rules, 2017.
6. It is requested that suitable trade notices may
be issued to publicize the contents of this Circular.
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7. Difficulty, if any, in the implementation of this
Circular may be brought to the notice of the
Board. Hindi version would follow.
Sanjay Mangal, Principal Commissioner (GST).
_____
No. CCT/26-4/2024-25/G/3461
Subject: Clarification on place of supply of data
hosting services provided by service
providers located in India to cloud
computing service providers located
outside India-reg.
Ref.:
Circular No. 232/26/2024-GST dated 10th
September, 2024 issued under Central
Goods and Services Tax Act, 2017 by the
GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of
Revenue, Ministry of Finance, Government
of India, New Delhi.
Circular
(No. 25/2024-25-GST)
The GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the GST Policy Wing, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa.
Panaji, 01st November, 2024.
—–––––—
ANNEXURE
Circular No. 232/26/2024-GST
F. No. CBIC-20001/6/2024-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
New Delhi, dated the 10th September, 2024
To,
The Pr. Chief Commissioners/Chief Commissioners/
Principal Commissioners/Commissioners of Central
Tax (All),
The Principal Directors General/Directors General
(All).
Madam/Sir,
Subject: Clarification on place of supply of data
hosting services provided by service
providers located in India to cloud
computing service providers located
outside India-reg.
Representations have been received from the
trade and industry seeking clarification on the place
of supply in case of data hosting services provided
by service providers located in India to cloud
computing service providers located outside India.
2. Issue:
2.1 It has been represented that some field
formations are of the view that the place of supply of
data hosting services provided by the service
providers located in India to cloud computing
service providers located outside India is the
location of data hosting service provider in India and
therefore, the benefit of export of services is not
available on such supply of data hosting services.
2.2 Thus, clarification has been sought in respect
of the following issues—
(i) Whether data hosting service provider
qualifies as ‘Intermediary’ between the cloud
computing service provider and their end
customers/users/subscribers as per Section 2(13)
of the Integrated Goods and Services Tax Act, 2017
(hereinafter referred to as the “IGST Act”) and
whether the services provided by data hosting
service provider to cloud computing service
providers are covered as intermediary services
and whether the place of supply of the same is to
be determined as per Section 13(8)(b) of IGST Act.
(ii) Whether the data hosting services are
provided in relation to goods “made available” by
recipient of services to service provider for supply
of such services and whether the place of supply
of the same is to be determined as per Section 13(3)(a)
of the IGST Act.
(iii) Whether the data hosting services are
provided directly in relation to “immovable
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property” and whether the place of supply of the
same is to be determined as per Section 13(4) of
the IGST Act.
3. Clarification:
3.1 Whether data hosting service provider
qualifies as ‘Intermediary’ between the cloud
computing service provider and their end
customers/users/subscribers as per Section 2(13) of
the IGST Act and whether the services provided by
data hosting service provider to cloud computing
service providers are covered as intermediary
services and whether the place of supply of the same
is to be determined as per Section 13(8)(b) of IGST
Act.
3.1.1 As per Section 2(13) of the IGST Act, read
with Circular No. 159/15/2021-GST dated 20-09-2021,
a broker, agent or any other person who arranges or
facilitates the main supply of goods or services or
both or securities and has not involved himself in
the main supply on his own account is considered
as ‘intermediary’. Persons who supply goods or
services, or both on their own account are not
covered in the definition of “intermediary”.
3.1.2 The cloud computing service providers
generally enter into contract with data hosting
service providers to use their data centres for hosting
cloud computing services. Data hosting service
provider either owns premises for data centre or
operates data centre on leased premises, procures
infrastructure and human resource, handles
operations like infrastructure monitoring, IT
management and equipment maintenance, etc. to
provide the said supply of data hosting services to
the cloud computing service providers. The data
hosting service provider generally handles all
aspects of data centre like rent, software and
hardware infrastructure, power, net connectivity,
security, human resource, etc. Importantly, the data
hosting service providers do not deal with end users/
consumers of cloud computing services and may not
even know about the end users.
3.1.3 It is observed that data hosting service
provider provides data hosting services to the cloud
computing service provider on a web platform
through computing and networking equipment for
the purpose of collecting, storing, processing,
distributing, or allowing access to large amounts of
data. The cloud computing service provider provides
cloud-based applications and software services to
various end users/customers/subscribers for data
storage, analytics, artificial intelligence, machine
learning, processing, database analysis and
deployment services, etc. The end users/customers/
/subscribers access cloud computing services
seamlessly over the internet through technology
hosted on data centers. There appears to be no
contact between data hosting service provider and
the end users/consumers/subscribers of the
overseas cloud computing service provider. Thus, it
is observed that the data hosting service provider
provides data hosting services to the cloud
computing service provider on principal-to-
-principal basis on his own account and is not acting
as a broker or agent for facilitating supply of service
between cloud computing service providers and
their end users/consumers.
3.1.4 Accordingly, it is clarified that in such a
scenario, the services provided by data hosting
service provider to its overseas cloud computing
service providers cannot be considered as
intermediary services and hence, the place of supply
of the same cannot be determined as per Section 13(8)(b)
of IGST Act.
3.2 Whether the data hosting services are
provided in relation to goods “made available” by
recipient of services to service provider for supply
of such services and whether the place of supply of
the same is to be determined as per Section 13(3)(a)
of the IGST Act, 2017.
3.2.1 Section 13(3)(a) of the IGST Act provides that
in cases where the services are supplied in respect
of goods which are made physically available by the
recipient of services to service provider, the place of
supply will be location of service provider.
3.2.2 In the instant scenario, it is observed that
the data hosting service provider, as an independent
entity, is providing seamless data hosting services
to the overseas cloud computing service providers,
through the premises, hardware and personnel at
the data centre which not only comprises of
hardware but also other essential infrastructure
(without which the hardware infrastructure cannot
be utilized) like ventilation and cooling system,
uninterrupted power supply, software, network
connectivity, security protocols, etc. which are
owned by the data hosting service providers and
are independently handled, operated, monitored
and maintained by them. These data hosting service
providers are charging their clients (cloud
computing service providers), the charges for the
services being provided by them to these clients as
consideration depending on the specific terms and
conditions as per agreements between them. From
the above, it is observed that throughout the
provision of the said services, the data hosting
service provider owns premises for data center or
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operates data center on leased premises,
independently handles, monitors and maintains the
premises, hardware and software infrastructure,
personnel and in such scenario, the overseas cloud
computing service providers cannot be considered
to own the said infrastructure and make the same
physically available to the data hosting service
provider for supply of the said services.
3.2.3 In view of above, it is clarified that data
hosting services provided by data hosting service
provider to the said cloud computing service
providers cannot be considered in relation to the
goods “made available” by the said cloud
computing service providers to the data hosting
service provider in India and hence, the place of
supply of the same cannot be determined under
Section 13(3)(a) of the IGST Act.
3.2.4 There may be some cases where some of the
hardware required for data hosting service is
provided by the recipient of the service, i.e., the
cloud computing service provider to the data
hosting service provider. Even in these cases, data
hosting service provider handles all aspects of data
centre, like arranging for the premises, making
available software and other hardware
infrastructure, power, net connectivity, security,
human resource, maintenance etc., for providing
data hosting services to the cloud computing service
provider. Accordingly, in such cases, though the
data hosting services is being provided by the data
hosting service provider inter-alia using the
hardware made available by the cloud computing
service provider, it cannot be said that data hosting
service are being provided in relation to the said
goods made available by the cloud computing
service provider to them. Accordingly, even in these
cases, place of supply cannot be determined under
Section 13(3)(a) of the IGST Act.
3.3 Whether the data hosting services are
provided directly in relation to “immovable
property” and whether the place of supply of the
same is to be determined as per Section 13(4) of the
IGST Act.
3.3.1 Section 13(4) of the IGST Act provides for
the place of supply where services supplied are
directly in relation to immovable property.
3.3.2 In the present scenario, it is observed that
the data hosting service providers either use owned
or leased premises for keeping IT infrastructure and
other hardware required for providing data hosting
services. They also procure hardware, uninterrupted
power supplies, backup generators, ventilation and
cooling equipment, network connectivity, fire
suppression systems, security, human resource, etc.;
handle operations like server monitoring, IT
management and equipment maintenance,
including repairs and replacements of the same, for
providing data hosting services to their clients.
3.3.3 Thus, it is observed that data hosting
services are not passive supply of a service directly
in respect of immovable property but are regarding
supply of a comprehensive service related to data
hosting which involves the supply of various services
by the data hosting service provider like operating
data centre, ensuring uninterrupted power supplies,
backup generators, network connectivity, backup
facility, firewall services, and monitoring and
surveillance service for ensuring continuous
operations of the servers and related hardware,
etc. which are essential for cloud computing service
provider to provide cloud computing services to the
end users/customer/subscribers.
3.3.4 Accordingly, it is clarified that in such a
scenario, the data hosting services cannot be
considered as the services provided directly in
relation to immovable property or physical premises
and hence, the place of supply of such services
cannot be determined under Section 13(4) of IGST
Act.
4. Further, the place of supply for the data hosting
services provided by data hosting service provider
located in India to overseas cloud computing service
providers does not appear to fit into any of the
specific provisions outlined in Sections 13(3) to
13(13) of the IGST Act. Therefore, the place of supply
in such cases needs to be determined according to
the default provision under Section 13(2) of the IGST
Act, i.e. the location of the recipient of the services.
Where the cloud computing service provider
receiving the data hosting services are located
outside India, the place of supply will be considered
to be outside India according to Section 13(2) of the
IGST Act.
5. Accordingly, supply of data hosting services
being provided by a data hosting service provider
located in India to an overseas cloud computing
entity can be considered as export of services, subject
to the fulfilment of the other conditions mentioned
in Section 2(6) of IGST Act.
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6. It is requested that suitable trade notices may
be issued to publicize the contents of this Circular.
7. Difficulty, if any, in the implementation of this
Circular may be brought to the notice of the Board.
Hindi version will follow.
Sanjay Mangal, Principal Commissioner (GST).
_____
No. CCT/26-4/2024-25/G/3462
Subject:
Clarification regarding regularization of
refund of IGST availed in contravention of
Rule 96(10) of CGST Rules, 2017, in cases
where the exporters had imported certain
inputs without payment of integrated
taxes and compensation cess-regarding.
Ref.:
Circular No. 233/27/2024-GST dated
10th September, 2024 issued under Central
Goods and Services Tax Act, 2017 by the
GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of
Revenue, Ministry of Finance, Government
of India, New Delhi.
Circular
(No. 25/2024-25-GST)
The GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the GST Policy Wing, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa.
Panaji, 01st November, 2024.
ANNEXURE
Circular No. 233/27/2024-GST
F. No. CBIC-20001/6/2024-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
New Delhi, dated the 10th September, 2024
To,
The Pr. Chief Commissioners/Chief Commissioners/
/Principal Commissioners/Commissioners of Central
Tax and Central Tax (Audit) (All),
The Principal Directors General/Directors General
(All).
Madam/Sir,
Subject:
Clarification regarding regularization of
refund of IGST availed in contravention of
Rule 96(10) of CGST Rules, 2017, in cases
where the exporters had imported certain
inputs without payment of integrated
taxes and compensation cess-regarding.
Sub-rule (10) of Rule 96 of Central Goods and
Services Tax Rules, 2017 (hereinafter referred to as
“CGST Rules”) provides for a bar on availment of the
refund of integrated tax (IGST) paid on export of
goods or services, if benefits of certain concessional/
/exemption notifications, as specified in the said sub-
-rule, have been availed on inputs/raw materials
imported or procured domestically. In this regard,
references have been received from the field
formations and trade/industry wherein clarification
has been sought on whether refund of integrated
tax paid on exports of goods by a registered person
can be regularized in a case where the registered
person had initially imported inputs without
payment of integrated tax and compensation cess,
by availing the benefits under Notification No. 78/
/2017-Customs dated 13-10-2017 or Notification
No. 79/2017-Customs dated 13-10-2017, but
subsequently, at a later date, the said person has
either paid the IGST and compensation cess, along
with interest, on such imported inputs or is now
willing to pay such IGST and compensation cess,
along with interest.
2. The issue has been examined and in order to
clarify the issue and to ensure uniformity in the
implementation of the provisions of law across the
field formations, the Board, in exercise of its powers
conferred by Section 168 (1) of the Central Goods
and Services Tax Act, 2017 (hereinafter referred
to as “CGST Act”), hereby clarifies the following:
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2.1 Vide Notification No. 16/2020-CT dated
23-03-2020, an Explanation was inserted in sub-
-rule (10) of Rule 96 of CGST Rules retrospectively
with effect from 23-10-2017, which reads as follows:
“Explanation.— For the purpose of this sub-rule,
the benefit of the notifications mentioned therein
shall not be considered to have been availed only
where the registered person has paid Integrated
Goods and Services Tax and Compensation Cess on
inputs and has availed exemption of only Basic
Customs Duty (BCD) under the said notifications.”
2.2 A bare perusal of the said Explanation, which
was inserted with retrospective effect, reveals that
in cases where the benefits of these exemption
notifications have not been availed in respect of
IGST and compensation cess, it shall be deemed
that benefit of the said notifications has not been
availed for the purpose of sub-rule (10) of Rule 96
of CGST Rules. Therefore, extension of logic given
in the said Explanation may lead to a view that in
cases where inputs were initially imported without
payment of integrated tax and compensation cess
but subsequently, IGST and compensation cess on
such imported inputs is paid at a later date, along
with interest, then in such cases, it can be
considered that the benefits of notifications
mentioned in Clause (b) of sub-rule (10) of Rule 96
of CGST Rules have not been availed for the purpose
of said sub-rule. Accordingly, refund of IGST
claimed on exports made with payment of
Integrated tax in such cases may not be considered
to be in contravention of provisions of sub-rule (10)
of Rule 96 of CGST Rules.
2.3
In view of the above, it is clarified that
where the inputs were initially imported without
payment of integrated tax and compensation cess
by availing benefits under Notification No. 78/2017-
-Customs dated 13-10-2017 or Notification
No. 79/2017-Customs dated 13-10-2017, but
subsequently, IGST and compensation cess on such
imported inputs are paid at a later date, along with
interest, and the Bill of Entry in respect of the
import of the said inputs is got reassessed through
the jurisdictional Customs authorities to this effect,
then the IGST, paid on exports of goods, refunded
to the said exporter shall not be considered to be
in contravention of provisions of sub-rule (10) of
Rule 96 of CGST Rules.
3. It is requested that suitable trade notices may
be issued to publicize the contents of this Circular.
4. Difficulty, if any, in implementation of the
above instructions may please be brought to the
notice of the Board. Hindi version would follow.
Sanjay Mangal, Principal Commissioner (GST).
No. CCT/26-4/2024-25/G/3463
Subject:
Clarifications regarding applicability of
GST on certain services–reg.
Ref.: Circular No. 234/28/2024-GST dated 11th
October, 2024 issued under Central Goods and
Services Tax Act, 2017 by the Tax Research
Unit, Department of Revenue, Ministry of
Finance, Government of India, New Delhi.
Circular
(No. 27/2024-25-GST)
The Tax Research Unit, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the Tax Research Unit, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa.
Panaji, 01st November, 2024.
—–––––—
ANNEXURE
Circular No. 234/28/2024-GST
F. No. CBIC-190354/149/2024-GST
Government of India
Ministry of Finance
Department of Revenue
(Taxes Research Unit)
North Block, New Delhi, dated the 11th October, 2024
To,
The Pr. Chief Commissioners/Chief Commissioners/
Principal Commissioners/Commissioners of Central
Tax (All)/The Principal Director Generals/Director
Generals (All).
Madam/Sir,
Subject: Clarifications regarding applicability of
GST on certain services–reg.
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Based on the recommendations of the GST
Council in its 54th meeting held on 9th September,
2024, at New Delhi, in exercise of the powers
conferred under Section 168(1) of the Central Goods
and Services Tax Act, 2017, clarifications on the
following issues are being issued through this
Circular as under:
2. Applicability of GST on the service of
affiliation provided by universities to colleges:
2.1 Representations have been received seeking
clarification on the applicability of GST on the
service of affiliation provided by universities to
colleges.
2.2 The activity of affiliation is to monitor and
ensure whether the institution possesses the
required infrastructure in terms of space, technical
prowess, financial liquidity, faculty strength, etc.
and is thereby eligible for the privileges to conduct
the course/program of study for the degree/title
extended by the University to the students enrolled
in such institutions. The affiliation services
provided by the universities to colleges are not by
way of services related to the admission of students
to such colleges or the conduct of examinations by
such colleges.
2.3 Thus, as recommended by the 54th GST
Council, it is hereby clarified that the affiliation
services provided by universities to their
constituent colleges are not covered within the
ambit of exemptions provided to educational
institutions in the notification No. 12/2017-CT(R)
dated 28-06-2017 and GST at the rate of 18% is
applicable on the affiliation services provided by
the universities.
3. Applicability of GST on the service of
affiliation provided by Central and State
Educational Boards or Councils, or other similar
bodies, to schools:
3.1 Representations have been received to clarify
the applicability of GST on the service of affiliation
provided by the Central and State Educational
Boards or Councils, or other similar bodies, to
schools and to regularize the payment of tax on
such services for the past period.
3.2 The activity of affiliation carried out by
educational boards or councils, or other similar
bodies, is to monitor and ensure whether the schools
possess the required infrastructure, finances, faculty
strength etc. and are thereby eligible for the
privileges to operate under the aegis of said boards
or councils. The services of affiliation provided to
schools by educational boards or councils, or other
similar bodies, are not by way of services related to
the admission of students to such schools or the
conduct of examinations by such schools.
3.3 The matter was placed before the GST Council
in its 54th meeting held on 09th September, 2024,
and the GST Council recommended to clarify that
such services of affiliation, provided to schools by
Central or State educational boards or councils, or
other similar bodies, by whatever name called, are
taxable. At the same time, the GST Council
recommended exempting the supply of affiliation
services provided by Central and State educational
boards or Councils, or other similar bodies, by
whatever name called to Government schools i.e.
schools established, owned or controlled by the
Central Government, State Government, Union
Territory, local authority, Governmental authority or
Government entity. The same has been exempted
w.e.f. 10-10-2024 vide notification No. 08/2024-
-Central Tax (Rate) dated 08-10-2024.
3.4 In its 54th meeting, the GST Council further
recommended regularizing the GST liability on such
services provided to all schools for the period from
01-07-2017 to 17-06-2021, i.e., the date of issuance of
Circular No. 151/07/2021-GST wherein accreditation
services of boards are clarified to be taxable at the
rate of 18%.
3.5 Therefore, as recommended by the GST
Council, it is clarified that services of affiliation,
provided to schools by Central or State educational
boards or councils, or other similar bodies, by
whatever name called, are taxable. Further, as
recommended by the Council, the payment of GST
on the services of affiliation provided by Central and
State educational boards or Councils, or other similar
bodies, to all schools is regularized on ‘as is where is’
basis for the period from 01-07-2017 to 17-06-2021.
4. Applicability of GST on the Directorate General
of Civil Aviation (DGCA) approved flying training
courses conducted by Flying Training Organizations
approved by the DGCA:
4.1 Representations have been received regarding
the applicability of GST on the DGCA-approved flying
training courses conducted by Flying Training
Organizations (FTOs) which are approved by the
Directorate General of Civil Aviation (DGCA). The
same has been examined.
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4.2 Under GST Law, vide Sl. No. 66 of the
notification No. 12/2017-Central Tax (Rate) dated
28-06-2017, services provided by educational
institutions to its students, faculty and staff are
exempt from levy of GST. In the above notification,
“educational institution” has been defined to mean
an institution providing services by way of
education as a part of a curriculum for obtaining a
qualification recognized by any law for the time
being in force.
4.3 In exercise of the power vested by Section 5 of
the Aircraft Act, 1934, the Central Government has
made the Aircraft Rules, 1937, which, inter-alia,
provide for ‘approved training’, i.e. training the
curriculum of which has been approved by the DGCA,
and ‘approved training organization’, i.e. a flying
training organization which shall obtain the approval
of DGCA before the students are enrolled to acquire
flying experience. The said rules further state that
flying experience required for the issue of private
pilot and commercial pilot licenses shall be acquired
at the Flying Training Organization (FTO) approved/
/recognized by the DGCA. The Civil Aviation
Requirements (CAR ) issued under the said rules also
provide for a completion certificate to be issued by
an approved FTO to each student who completes its
approved course of training.
4.4 It is evident from the above that the DGCA not
only approves FTOs but also flying training courses
and mandates the requirement of course completion
certificates to be issued to successful candidates in
terms of the Aircraft Act, 1934 and the rules
prescribed thereunder. Therefore, the approved
flying training courses conducted by FTOs approved
by DGCA, wherein the DGCA mandates the
requirement of a completion certificate, are covered
under Sl. No. 66 of Notification No. 12/2017-Central
Tax (Rate) dated 28-06-2017 and are hence, exempt.
5. Regularizing payment of GST on transport of
passengers by helicopter:
5.1 54th GST Council has recommended that the
GST rate on transportation of passengers, with or
without accompanied baggage, by air, in a
helicopter on seat share basis may be notified at 5%.
Accordingly, notification No. 07/2024-Central Tax
(Rate) dated 08-10-2024 effective from 10-10-2024 has
been issued.
5.2 The Council further recommended to
regularize payment of GST on transportation of
passengers, with or without accompanied baggage,
by air, in a helicopter on seat share basis on ‘as is
where is’ basis.
5.3 In addition to above, the Council also
recommended to clarify that charter of helicopter
would continue to attract GST at the rate of 18%.
5.4 Thus, as recommended by the 54th GST
Council, payment of GST on transportation of
passengers, with or without accompanied baggage,
by air, in a helicopter on seat share basis is hereby
regularized on ‘as is where is’ basis for the period
from 01-07-2017 to 09-10-2024.
5.5 Further, as recommended by the 54th GST
Council, it is hereby clarified that transport of
passengers by helicopter on other than seat share
basis i.e., for charter operations will continue to
attract GST at the rate of 18%.
6. Whether incidental/ancillary services such as
loading/unloading, packing, unpacking, trans-
shipment, temporary warehousing etc., provided in
relation to transportation of goods by road is to be
treated as part of Goods Transport Agency service,
being composite supply, or these services are to be
treated as separate independent supplies:
6.1 Representations have been received to clarify
whether incidental/ancillary services such as
loading/unloading, packing, unpacking, trans-
shipment, temporary warehousing etc., provided in
relation to transportation of goods by road is to be
treated as part of Goods Transport Agency (GTA)
service, being composite supply, or these services
are to be treated as separate independent supplies.
6.2 It has been brought to notice that enforcement
agencies are raising demands for such services
holding them leviable to GST at the rate of 18% by
interpreting last para of Question No. 6 of the FAQ
issued by CBIC which states that “If such incidental
services are provided as separate services and charged
separately, whether in the same invoice or separate
invoices, they shall be treated as separate supplies”,
to mean that if a GTA shows packing charges, loading,
unloading charges etc., separately in the invoice, the
GTA becomes liable to pay GST at the rate of 18% on
these services by treating them as cargo handling
services.
6.3 After deliberations on the issue and based on
recommendations of the 54th GST Council, it is
hereby clarified that ancillary or incidental services
provided by GTA in the course of transportation of
goods by road, such as loading/unloading, packing/
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/unpacking, transshipment, temporary warehousing
etc. will be treated as composite supply of transport
of goods. The method of invoicing used by GTAs will
not generally alter the nature of the composite supply
of service. However, if such services are not provided
in the course of transportation of goods and are
invoiced separately, then these services will not be
treated as composite supply of transport of goods.
7. Regularizing payment of GST on import of
services by an establishment of a foreign airlines
company from a related person or any of its
establishment outside India, when made without
consideration:
7.1 54th GST Council has recommended to exempt
import of services by an establishment of a foreign
airlines company from a related person or any of its
establishment outside India, when made without
consideration. Accordingly, notification No. 08/
/2024-Integarted Tax (Rate) dated 08-10-2024
effective from 10-10-2024 has been issued.
7.2 The Council further recommended to
regularize payment of GST on import of services by
an establishment of a foreign airlines company from
a related person or any of its establishment outside
India, when made without consideration for the past
period on ‘as is where is’ basis.
7.3 Therefore, on recommendations of the 54th
GST Council, the payment of GST on import of
services by an establishment of a foreign airlines
company from a related person or any of its
establishment outside India, when made without
consideration is hereby regularized for the period
from 01-07-2017 to 09-10-2024 on ‘as is where is’ basis.
8. Applicability of GST on Preferential Location
Charges (PLC) collected alongwith consideration for
sale/transfer of residential/commercial properties:
8.1 Allowing choice of location of apartment is
integral part of supply of construction services and
therefore, location charge is nothing but part of
consideration charged for supply of construction
services before issuance of completion certificate.
Being charged along with supply of construction
services for the apartment, the same attract GST at
same rate as of construction services before issuance
of completion certificate.
8.2 Therefore, based on the recommendations of
the 54th GST Council, it is hereby clarified that
location charges or Preferential Location Charges
(PLC) paid along with the consideration for the
construction services of residential/commercial/
industrial complex forms part of composite supply
where supply of construction services is the main
service and PLC is naturally bundled with it and are
eligible for same tax treatment as the main supply of
construction service.
9. Regularizing payment of GST on certain support
services provided by an electricity transmission or
distribution utility:
9.1 GST Council in its 54th meeting held on 09th
September, 2024 has recommended to exempt supply
of services by way of providing metering equipment
on rent, testing for meters/transformers/capacitors
etc., releasing electricity connection, shifting of
meters/service lines, issuing duplicate bills etc.,
which are incidental or ancillary to the supply of
transmission and distribution of electricity provided
by transmission and distribution utilities to their
consumers.
9.2 The same have been exempted vide
notification No. 08/2024-Central Tax (Rate) dated
08-10-2024 effective from 10-10-2024.
9.3 The GST Council in its 54th meeting has also
recommended to regularize the payment of GST for
supply of such services for the period i.e., from
01-07-2017 to 09-10-2024 on ‘as is where is’ basis.
9.4 Therefore, as recommended by the 54th GST
Council, the payment of GST on services provided
by an electricity transmission or distribution utility
which are incidental or ancillary to the supply of
transmission and distribution of electricity by such
utility, such as those listed in para 9.1 above is
hereby regularized on ‘as is where is’ basis from
01-07-2017 to 09-10-2024.
10. Regularizing payment of GST on services of
film distributors or sub-distributors who act on a
principal basis to acquire and distribute films:
10.1 Representations have been received to clarify
regarding the GST liability for the period from
01-07-2017 to 01-10-2021 on transaction between
distributors and exhibitors wherein the distributors
grant the theatrical rights to the exhibition centers.
Field formations have viewed that such transaction
are classifiable under SAC 9996 and attracts GST at
the rate of 18%.
10.2 Prior to 1st October, 2021, GST at the rate of
18% was leviable on “Motion Picture, video tape and
television programme distribution services” under
Heading 9996 whereas 12% rate of GST was leviable
on “temporary or permanent transfer or permitting
the use or enjoyment of intellectual property right in
respect of goods other than IT technology software”
under Heading 9973. It was observed that both
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entries apparently covered services by way of
licensing of rights to broad cast or show films. This
issue was discussed in the 45th GST Council meeting
held on 17-09-2021 wherein, the Council
recommended to keep a uniform rate of 18% on both
these entries with effect from 01-10-2021.
10.3 The GST Council in its 54th meeting held on
09th September, 2024 has recommended to regularize
the payment of GST on transaction between
distributors and exhibitors where in the distributors
grant the theatrical rights to the exhibition centers
on ‘as is where is’ basis from 01-07-2017 to 30-09-2021.
10.4 Therefore, as recommended by the GST
Council, the payment of GST on transaction between
distributors and exhibitors where in the distributors
grant the theatrical rights to the exhibition centers
is regularized for the period from 01-07-2017 to
30-09-2021 on ‘as is where is’ basis.
11. Difficulties, if any, in the implementation of
this circular may be brought to the notice of the
Board.
Sachin Jain, Joint Secretary, TRU-II.
—–––––—
No. CCT/26-4/2024-25/G/3464
Subject: Clarification regarding GST rates &
classification (goods) based on the
recommendations of the GST Council in
its 54th meeting held on 9th September,
2024, at New Delhi—reg.
Ref.:
Circular No. 235/29/2024-GST dated 11th
October, 2024 issued under Central Goods
and Services Tax Act, 2017 by the Tax
Research Unit, Department of Revenue,
Ministry of Finance, Government of India,
New Delhi.
Circular
(No. 28/2024-25-GST)
The Tax Research Unit, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the Tax Research Unit, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa.
Panaji, 1st November, 2024.
—–––––—
ANNEXURE
Circular No. 235/29/2024-GST
F. No. CBIC-190354/149/2024-TO(TRU-II)-CBEC
Government of India
Ministry of Finance
Department of Revenue
(Tax Research Unit)
North Block, New Delhi, dated the 11th October, 2024
To,
The Principal Chief Commissioners/Principal
Directors General,
The Chief Commissioners/Directors General,
The Principal Commissioners/Commissioners of
Central Excise & Central Tax.
Subject: Clarification regarding GST rates &
classification (goods) based on the
recommendations of the GST Council in
its 54th meeting held on 9th September,
2024, at New Delhi-reg.
Madam/Sir,
Based on the recommendations of the GST
Council in its 54th meeting held on 9th September,
2024, at New Delhi, in exercise of the powers
conferred under Section 168(1) of the Central Goods
and Services Tax Act, 2017, the Board hereby
clarifies the following issues through this circular
for the purpose of uniformity in their implementation:
1. Clarification regarding GST rate on Extruded/
/Expanded Savoury food products:
1.1 Representations were received seeking
clarification regarding appropriate classification
and whether savoury or salted extruded snack
pellets are classifiable under HS 2106 as Namkeens
due to disputes in the field. Based on the
recommendations of GST Council, with effect from
10-10-2024, extruded or expanded products, savoury
or salted (other than un-fried or un-cooked snack
pellets, by whatever name called, manufactured
through process of extrusion), falling under HS 1905
90 30 attract GST at the rate of 12% vide entry 32C
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680
of Schedule II of Notification 1/2017-Central Tax (Rate)
dated the 28th June, 2017 at par with namkeens,
bhujia, mixture, chabena (pre-packaged and
labelled) and similar edible preparations in ready
for consumption form which are classifiable under
HS 2106 90 of entry 46 of Schedule II of Notification
1/2017-Central Tax (Rate) dated the 28th June, 2017.
The GST rate of 5% continue on un-fried or
un-cooked snack pellets, by whatever name called,
manufactured through process of extrusion.
1.2 However, it is clarified that the reduced GST
rate of 12% on extruded or expanded products,
savoury or salted (other than un-fried or un-cooked
snack pellets, by whatever name called,
manufactured through process of extrusion) falling
under HS 1905 90 30 shall apply prospectively from
the date of effect of the said notification. For the
past period, 18% GST shall be payable.
2. Clarification regarding GST rate on Roof
Mounted Package Unit (RMPU) Air Conditioning
Machines for Railways:
2.1 Representations have been received
regarding classification of Roof mounted air
conditioners for Railways as to whether these goods
are to be classified under HS 8415 with 28% GST
rate or HS 8607 with 18% GST.
2.2 In this regard Goods falling under heading
8415 (including air conditioning machines) attract
a GST rate of 28% vide S. No. 119 of Schedule IV of
Notification No. 01/2017-CT (Rate) dated 28-06-2017
(as amended). The goods falling under heading 8607
(including parts of railways or tramway locomotives)
attract a GST rate of 18% vide S. No. 398G of
Schedule III of Notification No. 01/2017-CT (Rate)
dated 28-06-2017 (as amended). Machines and
apparatus of heading 8415, which include Air
conditioning machines, are excluded from the ambit
of ‘parts’ covered under heading 8607 as per Section
note 2 of Section XVII of Customs Tariff Act, 1975.
From a conjoint reading of Note 2 and Note 3 of the
Section notes for the Section XVII, it is clear that
goods of heading 8401 to 8479 (including 8415-
-Air Conditioning Machines) are excluded from the
ambit of parts covered under Chapter 86.
2.3 Although there is no ambiguity in the
classification, to make it explicitly clear, it is
clarified that the Roof Mounted Package Unit
(RMPU) Air Conditioning Machines for Railways are
classified under HS 8415.
3. Clarification regarding GST rate on Car and
Motor cycle seats:
3.1 Representations were received seeking
clarification regarding classification of seats meant
for four wheeled cars and two-wheelers and the
consequent GST rate on seats meant for four
wheeled cars and two-wheelers.
3.2 With regards to seats for two wheelers, it is
pertinent to note that the Explanatory Note for HS
9401 has specifically excluded items under HS 8714
(includes parts and accessories of two wheelers).
The explanatory note for HS 8714 has a list of
inclusions, which has mention of Saddles (seats).
Thus, for two wheelers (HS 8711), the seats would
be classifiable under HS 8714 attracting GST rate of
28% vide S. No. 174 of Schedule IV of Notification
No. 1/2017-Central Tax (Rate) dated 28th June, 2017
(as amended).
3.3 As regards seats for 4 wheeled vehicles,
HS 9401 covers ‘Seats, whether or not convertible
into beds and parts thereof’ (Tariff Item 9401 20 00
specifically covers seats of a kind used for motor
vehicle). The Explanatory Note for this heading has
also mentioned that seats for vehicles are covered
under the ambit of HS 9401. Further, the Explanatory
Notes to Chapter 94 have a list of exclusions that
are not to be classified under the said Chapter. This
list of exclusions does not mention seats meant for
vehicles. Thus, it is seen that car seat would fall
under HS 9401.
3.4 Thus, the seat assembly for 4 wheelers are
classifiable under HS 9401 while seats for
2-wheelers are classifiable under HS 8714.There is
no ambiguity in the GST rates on the said goods-car
seats which are classifiable under 9401 attract GST
@ 18 % vide S. No. 435A of Schedule III of
Notification No. 1/2017-Central Tax (Rate) dated
28th June, 2017 (as amended) and seats meant for
two wheelers are classifiable under HS 8714 which
attract a GST rate of 28%.
3.5 In order to bring parity with seats of
motorcycles (classified under HS 8714) which
already attract a GST rate of 28%, based on the
recommendation of the Council, with effect from
10-10-2024 vide S. No. 210A of Schedule IV of
notification No. 1/2017-Central Tax (Rate) dated 28th
June, 2017 (as amended), car seats classifiable
under HS 9401 attract GST at the rate of 28%. It is
clarified that the 28% rate on car seats classifiable
under HS 9401 is applicable prospectively, that is,
from the date of effect of the said notification.
4. Field formations under your charge may be
instructed accordingly.
5. Difficulty, if any, in the implementation of this
circular may be brought to the notice of the Board.
Limatula Yaden, Joint Secretary (TRU).
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No. CCT/26-4/2024-25/G/3465
Subject:
Clarification regarding the scope of “as
is/as is, where is basis” mentioned in the
GST Circulars issued on the basis of
recommendation of the GST Council in
its meetings.
Ref.:
Circular No. 236/30/2024-GST dated 11th
October, 2024 issued under Central
Goods and Services Tax Act, 2017 by the
Tax Research Unit, Department of
Revenue,
Ministry
of
Finance,
Government of India, New Delhi.
Circular
(No. 29/2024-25-GST)
The Tax Research Unit, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the Tax Research Unit, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa
Panaji, 1st November, 2024.
—–––––—
ANNEXURE
Circular No. 236/30/2024-GST
F. No. CBIC-190354/149/2024-TO(TRU-II)-CBEC
Government of India
Ministry of Finance
Department of Revenue
(Tax Research Unit)
North Block, New Delhi, dated the 11th October, 2024
To,
The Principal Chief Commissioners/Principal
Directors General,
The Chief Commissioners/Directors General,
The Principal Commissioners/Commissioners of
Central Excise & Central Tax.
Subject : Clarification regarding the scope of “as is/
/as is, where is basis”mentioned in the GST
Circulars issued on the basis of
recommendation of the GST Council in its
meetings
Instances were brought to the notice of the Board
pertaining to the prevailing doubts among the field
formations/trade as regards the scope of
regularization on “as is” or “as is, where is basis”
vide various GST Circulars issued for clarification
regarding applicable GST rates and appropriate
classification of specified goods or service or both
on the basis of recommendation of the GST Council
in its various meetings.
2. The GST Council in its 54th Meeting held on
9th September, 2024 has recommended issuance of
clarification to clarify the intent behind the
regularization done in the past meetings. Therefore,
this Circular is being issued in exercise of power
under Section 168 of CGST Act, 2017 to clarify scope
of “as is” or “as is, where is basis”.
3. Circulars have been issued based on
recommendation of the GST Council wherein GST
non-payment/short-payments for past period have
been regularized “As is” or “As is, where is basis”
in certain cases for supply of goods or services or
both. Regularization for the past period has been
done, on the recommendations of the Council, in
situations, such as, where genuine doubts have
arisen as there are two competing entries with
different rates in the notifications or issues have
arisen due to diverse interpretation resulting in a
situation where some suppliers have paid a lower
rate of GST (including nil rate on account of an
exemption entry) and some suppliers have paid a
higher rate of GST. It has also been clarified that
where tax payers had paid at the higher GST rate,
in such situations they shall not be entitled to any
refund.
4. The phrase ‘as is where is’ is generally used in
the context of transfer of property and means that
the property is being transferred in its current
condition, whatever this condition happens to be
and the transferee of property has accepted it with
all its faults and defects, whether or not
immediately apparent. In the context of GST, the
phrase ‘regularized on as is where is’ basis means
that the payment made at lower rate or exemption
claimed by the taxpayer shall be accepted and no
refund shall be made if tax has been paid at the
higher rate. The intention of the Council is to
regularize payment at a lower rate including nil
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rate due to the tax position taken by taxable person,
as full discharge of tax liability. The tax position of
a taxable person is reflected in the returns filed by
the person where the applicable rate of tax (or
relevant exemption entry) on a transaction/supply
is declared.
5. Thus, in cases where the matters have been
regularized on ”as is” or ”as is, where is basis”, in
case of two competing rates and the GST is paid at
lower of the two rates, or at nil rate where one of
the competing rates was nil under notification
entry, by some suppliers while other suppliers have
paid at higher rate, payment at lower rate shall be
treated as tax fully paid for the period that is
regularized.
Illustration 1:
In a situation where certain tax payers have paid
5% GST on supply of “X”, while some have paid 12%
and the GST Council recommends to reduce the rate
to 5% prospectively and regularize the past on “as is
where is basis” which is notified on 1-12-2023, this
means that for the period prior to 1-12-2023, the 5%
GST paid by tax payer will be treated as tax fully
paid and they would not be required to pay duty
differential of 7% between 5% and 12%. For those tax
payers who have paid 12% GST, no refund would be
allowed.
Illustration 2:
In a situation where certain tax payers have paid
5% GST on supply of “X” while some have paid nil
duty due to the genuine doubt that there was an
exemption entry for “X”, and the GST Council
recommends to clarify that the applicable rate is 5%
and to regularize the past on “as is where is basis”,
in view of prevailing genuine doubts, which is
notified on 1-12-2023, this means that for the period
prior to 1-12-2023, non payment of GST and
declaring such transactions as exempted supply in
their return by the tax payer will be treated as full
discharge of tax liability and they would not be
required to pay duty differential of 5 % between Nil
and 5 %. For those tax payers who have paid 5%, no
refund would be made.
Illustration 3:
In a situation where the interpretational issue is
between 5% and 12% rates and some taxpayers have
paid 5%, others have paid 12% while certain
taxpayers have not paid GST on supply of “X”, and
the GST Council recommends to clarify that the
applicable rate is 12% and regularize the past on “as
is where is basis” which is notified on 1-12-2023, this
means that for the period prior to 1-12-2023, the 5%
GST paid by tax payer will be treated as tax fully
paid and they would not be required to pay duty
differential between 5% and 12%. For those taxpayers
who have paid 12%, no refund would be made.
However, the regularization would not apply to
situations where no tax has been paid. In such cases,
the applicable tax i.e. 12% shall be recovered.
6. Accordingly,suitable instructions shall be
passed on to the field formations under your charge.
7. Difficulty, if any, in the implementation of this
circular may be brought to the notice of the Board.
Limatula Yaden, Joint Secretary (TRU).
—–––––—
No. CCT/26-4/2024-25/G/3466
Subject: Clarifying
the
issues
regarding
implementation of provisions of sub-
-section (5) and sub-section (6) in Section 16
of CGST Act, 2017–reg.
Ref.:
Circular No. 237/31/2024-GST dated 15th
October, 2024 issued under Central Goods
and Services Tax Act, 2017 by the GST
Policy Wing, Central Board of Indirect
Taxes and Customs, Department of
Revenue, Ministry of Finance, Government
of India, New Delhi.
Circular
(No. 30/2024-25-GST)
The GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the GST Policy Wing, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa.
Panaji, 01st November, 2024.
683
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ANNEXURE
Circular No. 237/31/2024-GST
F. No. CBIC-20001/6/2024-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
New Delhi, dated the 15th October, 2024
To,
The Principal Chief Commissioners/Chief
Commissioners/Principal Commissioners/Commissioners
of Central Tax (All),
The Principal Directors General/Directors General (All).
Madam/Sir,
Subject: Clarifying
the
issues
regarding
implementation of provisions of sub-
-section (5) and sub-section (6) in Section 16
of CGST Act, 2017-reg.
Reference is invited to sub-section (5) and sub-
-section (6) of Section 16 of the Central Goods &
Services Tax Act, 2017 (hereinafter referred to as
the “CGST Act”) inserted in Section 16 of the CGST
Act, with effect from the 1st day of July, 2017, vide
Section 118 of the Finance (No. 2) Act, 2024,
whereby the time limit to avail input tax credit
under provisions of sub-section (4) of Section 16 of
CGST Act has been retrospectively extended in
certain specified cases.
1.2
Sub-section (4), sub-section (5) and sub-
section (6) of Section 16 of the CGST Act are
reproduced below for ready reference:
“(4) A registered person shall not be entitled to
take input tax credit in respect of any invoice or
debit note for supply of goods or services or both
after the thirtieth day of November following the
end of financial year to which such invoice or debit
note pertains or furnishing of the relevant annual
return, whichever is earlier.
Provided that the registered person shall be
entitled to take input tax credit after the due date of
furnishing of the return under Section 39 for the
month of September, 2018 till the due date of
furnishing of the return under the said section for
the month of March, 2019 in respect of any invoice
or invoice relating to such debit note for supply of
goods or services or both made during the financial
year 2017-18, the details of which have been uploaded
by the supplier under sub-section (1) of Section 37
till the due date for furnishing the details under sub-
-section (1) of said Section for the month of March, 2019.
(5) Notwithstanding anything contained in sub-
-section (4), in respect of an invoice or debit note for
supply of goods or services or both pertaining to the
Financial Years 2017-18, 2018-19, 2019-20 and 2020-
-21, the registered person shall be entitled to take
input tax credit in any return under Section 39
which is filed upto the thirtieth day of November,
2021.
(6) Where registration of a registered person is
cancelled under Section 29 and subsequently the
cancellation of registration is revoked by any order,
either under Section 30 or pursuant to any order
made by the Appellate Authority or the Appellate
Tribunal or court and where availment of input tax
credit in respect of an invoice or debit note was not
restricted under sub-section (4) on the date of order
of cancellation of registration, the said person shall
be entitled to take the input tax credit in respect of
such invoice or debit note for supply of goods or
services or both, in a return under Section 39,––
(i) filed upto thirtieth day of November
following the financial year to which such invoice
or debit note pertains or furnishing of the relevant
annual return, whichever is earlier; or
(ii) for the period from the date of cancellation
of registration or the effective date of cancellation
of registration, as the case may be, till the date of
order of revocation of cancellation of registration,
where such return is filed within thirty days from
the date of order of revocation of cancellation of
registration, whichever is later.”
1.3 Further, it has been provided in Section 150
of the Finance (No. 2) Act, 2024 (reproduced below),
that no refund of any tax paid or the input tax
credit reversed shall be granted on account of the
said retrospective insertion of sub-section (5) and
sub-section (6) of Section 16 of the CGST Act.
“150. No refund shall be made of all the tax paid
or the input tax credit reversed, which would not
have been so paid, or not reversed, had Section 118
been in force at all material times.”
1.4
Besides, vide Notification No. 22/2024-
-Central tax dated 08-10-2024, a special procedure
for rectification of orders has been notified under
Section 148 of the CGST Act, to be followed by the
class of taxable persons, against whom orders
under Section 73 or Section 74 or Section 107 or
Section 108 of the CGST Act have been issued
confirming demand for wrong availment of input
tax credit on account of contravention of provisions
of sub-section (4) of Section 16 of the CGST Act, but
where such input tax credit is now available as per
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the provisions of sub-section (5) or sub-section (6)
of Section 16 of the CGST Act, and where appeal
against the said order has not been filed.
1.5 Representations have been received from
trade and industry requesting for clarification in
respect of various issues pertaining to availment of
benefit of the said amendments in Section 16 of
CGST Act to the taxpayers against whom demands
have been issued alleging wrong availment of input
tax credit in contravention of provisions of sub-
-section (4) of Section 16 of CGST Act, who are now
entitled to avail the said input tax credit as per the
retrospectively inserted provisions of sub-section (5)
or sub-section (6) of Section 16 of the CGST Act.
2. In order to ensure uniformity in the
implementation of the provisions of law across the
field formations, the Board, in exercise of its powers
conferred by Section 168 (1) of the CGST Act, hereby
clarifies the issues as below.
3. The following action may be taken by the tax
authorities and/or the taxpayers in various scenarios
for availment of benefit on account of
retrospectively inserted provisions of sub-section (5)
or sub-section (6) of Section 16 of the CGST Act:
3.1 Where no demand notice/statement has been
issued under Section 73 or Section 74 of the CGST
Act:
In cases, where any investigation/proceedings in
respect of wrong availment of input tax credit
alleging contravention of provisions of sub-section (4)
of Section 16 of the CGST Act has been initiated,
but no demand notice/statement under Section 73
or Section 74 of the said Act has been issued, and
taxpayers are now entitled to avail the said input
tax credit under the provisions of sub-section (5) or
sub-section (6) of Section 16 of the CGST Act, the
proper office shall take cognizance of the
sub-section (5) or sub-section (6) of Section 16 of
CGST Act, inserted retrospectively with effect from
01-07-2017 and take further appropriate action. This
also includes the cases where an intimation in
FORM DRC-01A has been issued under Rule 142(1A)
of the CGST Rules for denial of input tax credit on
account of contravention of sub-section (4) of
Section 16 of the said Act, but no demand notice/
/statement under Section 73 or Section 74 of the
said Act has been issued.
3.2 Where demand notice/statement under
Section 73 or Section 74 of CGST Act has been
issued but no order under Section 73 or Section 74
of CGST Act has been issued by the Adjudicating
Authority:
In such cases, the Adjudicating Authority shall
take cognizance of sub-section (5) or sub-section (6)
of Section 16 of the CGST Act, inserted
retrospectively with effect from 01-07-2017, and
pass appropriate order under Section 73 or Section 74
of the CGST Act.
3.3 Where order under Section 73 or Section 74 of
the CGST Act has been issued and appeal has been
filed under Section 107 of the CGST Act with the
Appellate Authority but no order under Section 107
of the CGST Act has been issued by the Appellate
Authority:
In such cases, the Appellate Authority shall take
cognizance of sub-section (5) or sub-section (6) of
Section 16 of the CGST Act, inserted retrospectively
with effect from 01-07-2017, and pass appropriate
order under Section 107 of the CGST Act.
3.4 Where order under Section 73 or Section 74 of
the CGST Act has been issued and Revisional
Authority has initiated proceedings under Section 108
of the CGST Act, but no order under Section 108 of
the CGST Act has been issued by the Revisional
Authority:
In such cases, the Revisional Authority shall take
cognizance of sub-section (5) or sub-section (6) of
Section 16 of the CGST Act, inserted retrospectively
with effect from 01-07-2017, and pass appropriate
order under Section 108 of the CGST Act.
3.5 Where order under Section 73 or Section 74 of
the CGST Act has been issued but no appeal against
the said order has been filed with the Appellate
Authority, or where the order under Section 107 or
Section 108 of the CGST Act has been issued by the
Appellate Authority or the Revisional Authority but
no appeal against the said order has been filed with
the Appellate Tribunal:
In such cases, where any order under Section 73
or Section 74 or Section 107 or Section 108 of the
CGST Act has been issued confirming demand for
wrong availment of input tax credit on account of
contravention of provisions of sub-section (4) of
Section 16 of the CGST Act, but where such input
tax credit is now available as per the provisions of
sub-section (5) or sub-section (6) of Section 16 of
the CGST Act, and where appeal against the said
order has not been filed, the concerned taxpayer
may apply for rectification of such order under the
special procedure under Section 148 of the CGST
Act notified vide Notification No. 22/2024-Central
tax dated 08-10-2024, within a period of six months
from the date of issuance of the said notification.
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3.5.1 The taxpayers can file an application for
rectification electronically, after login to
www.gst.gov.in, using their credentials, by
navigating as below in various cases:
a. In case where an application for rectification
of an order issued under Section 73 or Section 74
of the CGST Act is to be filed:
i. Click Dashboard>Services>User Services>My
Applications.
ii. Select “Application for rectification of
order” in the Application Type field. Then, click
the NEW APPLICATION button.
b. In case where an application for rectification
of an order issued under Section 107 of the CGST
Act is to be filed:
i. Click Dashboard>Services>User Services>
View Additional Notices/Orders.
ii. Additional Notices and Orders page is
displayed. Click the View hyperlink to go to the
Case Details screen of the issued Notice/Order.
iii. Case Details page is displayed.
The APPLICATIONS tab is selected by default.
Select the ORDERS tab and click the “Initiate
Rectification” link.
c. In case where an application for rectification
of an order issued under Section 108 of the CGST
Act is to be filed:
i. Click Dashboard>Services > User Services >
View Additional Notices/Orders.
ii. Additional Notices and Orders page is
displayed. Click the View hyperlink to go to the
Case Details screen of the issued Notice/Order.
iii. Case Details page is displayed. The NOTICES tab
is selected by default. To submit Rectification
Request against the Revision Order issued to you
by the Revisional Authority, select the ORDERS tab
and click the “Initiate Rectification” link.
3.5.2 While
filing
such
application
for
rectification of order, the taxpayer shall upload
along with the application for rectification of order,
the information in the proforma in Annexure A of
the said notification, containing inter-alia the
details of the demand confirmed in the said order
of the input tax credit wrongly availed on account
of contravention of sub-section (4) of Section 16 of
the CGST Act, which is now eligible as per sub-
-section (5) and/or sub-section (6) of Section 16 of
the CGST Act.
3.5.3 Such application for rectification shall be
dealt by the proper officer who had passed the
order for which the said rectification application
has been filed. The said officer shall take a decision
on the said application for rectification and issue
the order, as far as possible, within a period of three
months from the date of such application. Besides,
in case where any rectification is being made by
the proper officer in the order for which the
rectification application has been filed, he shall
also upload a summary of the rectified order
electronically in FORM DRC-08 in cases where
rectification of an order issued under Section 73 or
Section 74 of the CGST Act is being made, and in
FORM GST APL-04, in cases where rectification of
an order issued under Section 107 or Section 108 of
the said Act is being made. While taking a decision
on such application for rectification filed under the
said special procedure, the proper officer shall also
consider other grounds, if any, for denial of input
tax credit, other than contravention of sub-section (4)
of Section 16 of the CGST Act, invoked in the
concerned notice issued under Section 73 or
Section 74, as applicable, in respect of the said
amount of input tax credit.
3.5.4 Where the rectification adversely affects
the said person, the principles of natural justice
shall be followed by the said proper officer.
3.5.5 Further, it is to be noted that in cases where
any rectification has been made by the proper
officer in the order for which the rectification
application has been filed, an appeal against such
rectified order can be filed under the provisions of
Section 107 or Section 112 of the CGST Act, as the
case may be, within the time limit specified therein.
4. It is pertinent to note that in terms of Section
150 of the Finance (No. 2) Act, 2024, no refund of
tax already paid or input tax credit already reversed
would be available, where such tax has been paid
or input tax credit has been reversed on account of
contravention of provisions of sub-section (4) of
Section 16 of the CGST Act, and where such input
tax credit is now available as per the provisions of
sub-section (5) or sub-section (6) of Section 16 of
the CGST Act.
5. It is to be noted that the rectification
application of an order issued under Section 73 or
Section 74 or Section 107 or Section 108 of the
CGST Act, can be filed under the special procedure
notified vide notification No. 22/2024-Central tax
dated 08-10-2024, within a period of six months
from the date of issuance of the said notification,
only in cases where the issue or one of the issues
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on which the demand has been confirmed in the
said order, pertains to wrong availment of input tax
credit on account of contravention of provisions of
sub-section (4) of Section 16 of the CGST Act, and
where such input tax credit is now available as per
the provisions of sub-section (5) or sub-section (6)
of Section 16 of the CGST Act. In cases where no
such issue is involved and a taxpayer requires to
file an application of rectification of an order, such
rectification application can be filed by the
taxpayers only under the provisions of Section 161
of the CGST Act, within the time limit specified
therein. In case a taxpayer has filed an application
for rectification of an order under the special
procedure notified vide notification No. 22/2024-
-Central tax dated 08-10-2024, but where it is found
that the issues in the said order do not involve any
issue of wrong availment of input tax credit on
account of contravention of provisions of sub-
-section (4) of Section 16 of the CGST Act, and
where such input tax credit is now available as per
the provisions of sub-section (5) or sub-section (6)
of Section 16 of the CGST Act, such an application
would be summarily rejected by the proper officer
with a remark that, “The rectification application is
rejected as it is found that the same is not covered
under the notification No. 22/2024-Central tax
dated 08-10-2024, as no such issue is involved in
the said order pertaining to wrong availment of
input tax credit on account of contravention of
provisions of sub-section (4) of Section 16 of the
CGST Act, and where such input tax credit is now
available as per the provisions of sub-section (5) or
sub-section (6) of Section 16 of the CGST Act”.
6. It is requested that suitable trade notices may
be issued to publicize the contents of this Circular.
7. Difficulty, if any, in the implementation of this
Circular may be brought to the notice of the
Board. Hindi version would follow.
Sanjay Mangal, Principal Commissioner (GST).
—–––––—
No. CCT/26-4/2024-25/G/3467
Subject: Clarification of various doubts related to
Section 128A of the CGST Act, 2017.
Ref.:
Circular No. 238/32/2024-GST dated 15th
October, 2024 issued under Central Goods
and Services Tax Act, 2017 by the GST
Policy Wing, Central Board of Indirect
Taxes and Customs, Department of
Revenue, Ministry of Finance, Government
of India, New Delhi.
Circular
(No. 31/2024-25-GST)
The GST Policy Wing, Central Board of Indirect
Taxes and Customs, Department of Revenue,
Ministry of Finance, Government of India, New Delhi
has issued the above referred Circular.
For the uniformity in implementation and in
exercise of the powers conferred under Section 168
of the Goa Goods and Services Tax Act, 2017 (Goa
Act 4 of 2017) it is hereby directed that the Said
Circular issued by the GST Policy Wing, Central
Board of Indirect Taxes and Customs, Department of
Revenue, Ministry of Finance, Government of India
shall be applicable, mutatis mutandis, in
implementation of the Goa Goods and Services Tax
Act, 2017 (Goa Act 4 of 2017).
A copy of the above referred circular is attached
herewith as Annexure.
Difficulty, if any, in implementation of this circular
may please be brought to the notice of the
undersigned.
Given under the seal of this office.
S. S. Gill, IAS, Commissioner of State Taxes, Goa.
Panaji, 01st November, 2024.
—–––––—
ANNEXURE
Circular No. 238/32/2024-GST
F. No. CBIC-20001/6/2024-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
New Delhi, dated the 15th October, 2024
To,
The Pr. Chief Commissioners/Chief Commissioners/
Principal, Commissioners/Commissioners of Central
Tax (All),
The Principal Directors General/Directors
General (All).
Madam/Sir,
Subject: Clarification of various doubts related to
Section 128A of the CGST Act, 2017.
Based on the recommendations of the GST
Council made in its 53rd meeting, Section 128A has
been inserted in the Central Goods and Services
Tax Act, 2017 (hereinafter referred to as ‘the CGST
Act’) with effect from 01-11-2024 to provide for
waiver of interest or penalty or both, relating to
demands under Section 73 of the CGST Act
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pertaining to Financial Years 2017-18, 2018-19 and
2019-20, subject to certain conditions.
1.2
Subsequently, based on the recommendations
of the GST Council made in its 54th meeting, Rule
164 has been inserted in Central Goods and Services
Tax Rules, 2017 (hereinafter referred to as ‘the CGST
Rules’) with effect from 01-11-2024 vide notification
No. 20/2024-Central tax dated 8th October, 2024,
providing for procedure and conditions for closure
of proceedings under Section 128A of CGST Act.
1.3 Further, vide notification No. 21/2024-
-Central tax dated 8th October, 2024, 31-03-2025 has
been notified under sub-section (1) of Section 128A
of CGST Act as the date on or before which the full
payment of tax demanded in the notice/statement/
/order needs to be made by the taxpayer in order to
avail the benefit of waiver of interest or penalty or
both under the said Section. Also, for cases where
the application is made as per the first proviso to
the sub-section (1) of the Section 128A of CGST Act,
the date on or before which the full payment of tax
demanded in the order issued by the proper officer
redetermining the tax under Section 73 of CSGT
Act needs to be made by the taxpayer, has been
notified as six months from the date of issuance of
such order by the proper officer redetermining the
tax under Section 73 of CGST Act.
2.1 Various doubts have been raised by the trade
and the field formations in respect of implementation
of provisions of Section 128A of the CGST Act,
relating to waiver of interest or penalty or both in
respect of demands under Section 73 of the CGST
Act pertaining to Financial Years 2017-18, 2018-19
and 2019-20.
2.2 In order to clarify the issue and to ensure
uniformity in the implementation of the provisions
of the law across field formations, the Board, in
exercise of its powers conferred by Section 168(1) of
the CGST Act, hereby issues the following
clarifications and guidelines.
2.3 Unless otherwise specified, all the sections
mentioned in this circular refer to sections of the
CGST Act and all the rules mentioned herein refer
to the rules of CGST Rules.
3. The procedure to be followed by the taxpayers
and the tax officers to avail and implement the
benefit provided under Section 128A, is as follows:
3.1 Filing of application:
3.1.1 Section 128A provides for “Waiver of
interest or penalty or both relating to demands
raised under Section 73, for certain tax periods”.
Therefore, provisions of Section 128A are applicable
in cases where notices/statements have been issued
under Section 73, for the FYs 2017-18, 2018-19 and
2019-20, in the following situations:
(a) Where a notice issued under sub-section (1)
of Section 73 or a statement issued under sub-
-section (3) of Section 73, but where no order
under sub-section (9) of Section 73 has been
issued;
(b) Where an order has been issued under sub-
-section (9) of Section 73, in respect of the notice/
/statement issued under Section 73, but where
no order has been issued by the Appellate
Authority/Revisional Authority under sub-
-section (11) of Section 107 or sub-section (1) of
Section 108;
(c) Where an order has been issued by the
Appellate Authority/Revisional Authority under
sub-section (11) of Section 107 or sub-section (1)
of Section 108, in the cases where notice/
/statement was issued under Section 73 and
where no order under sub-section (1) of Section
113 has been passed by the Appellate Tribunal;
3.1.2 Additionally, as per the first proviso to sub-
-section (1) of Section 128A, in cases where a notice
was initially issued under Section 74 for FYs 2017-18,
2018-19 and 2019-20, and an order is passed or
required to be passed by the proper officer under
Section 73 [in pursuance of the direction of the
Appellate Authority or Appellate Tribunal or a court
in accordance with the provisions of sub-section (2) of
Section 75], those cases are also covered under
Section 128A for the purpose of waiver of interest or
penalty or both.
3.1.3 In cases referred to in Clause (a) of sub-
-section (1) of Section 128A where a notice/
/statement under Section 73 has been issued
demanding tax interalia pertaining to the period
from July 2017 to March 2020, for which no order
has been issued under Section 73, an application in
FORM GST SPL-01, may be filed electronically on
the common portal, by the taxpayer.
3.1.4 In cases referred to in Clause (b) of sub-
-section (1) of Section 128A, where an order has
been issued under Section 73 demanding tax inter
alia pertaining to the period from July 2017 to
March 2020, for which no order has been issued
under Section 107 or Section 108, an application in
FORM GST SPL-02, may be filed electronically on
the common portal, by the taxpayer. Similarly, in
cases referred to in Clause (c) of sub-section (1) of
Section 128A, where an order has been issued
under Section 107 or Section 108, but no order has
been issued under section 113, an application in
FORM GST SPL-02, may be filed electronically on
the common portal, by the taxpayer.
3.1.5 The application in FORM GST SPL-01 or
FORM GST SPL-02, as the case may be, shall be
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filed within a period of three months from the date
notified under Section 128A (1), i.e., within three
months from 31-03-2025. However, as per the first
proviso to sub-section (1) of Section 128A, where a
notice has been issued under Section 74, and the
Appellate Authority or Appellate Tribunal or a court
directs the proper officer to redetermine the tax as
if the demand notice is issued under Section 73, in
accordance with the provisions of Section 75(2),
then same is covered under Clause (b) of sub-section (1).
Therefore, as mentioned in proviso to sub-rule (6) of
Rule 164, in such cases, an application in FORM
GST SPL-02, can be filed within six months from
the date of communication of order of the proper
officer redetermining the amount of tax to be paid
under Section 73.
3.1.6 Where an appeal under Section 107 or
Section 112 has been filed by the taxpayer, against
an order referred to in Clause (b) or Clause (c) of
sub-section (1) of Section 128A, or where a writ
petition has been filed by the taxpayer against a
notice/statement/order referred to in Clause (a) or
(b) or Clause (c) of sub-section (1) of Section 128A,
the taxpayer is required to withdraw the same
before filing an application for waiver of interest or
penalty or both, and enclose the order of withdrawal
of such appeal/writ petition in along with the
application filed in FORM GST SPL-01 or FORM
GST SPL-02, as the case may be. However, in cases
where the applicant has filed the application or
any other document, for withdrawal of an appeal or
writ petition before Appellate Authority or
Appellate Tribunal or a court, as the case may be,
but the order for withdrawal has not been issued
by the concerned authority till the date of filing of
the application in FORM GST SPL-01 or FORM GST
SPL-02, he is required to upload the copy of such
application or the document filed for withdrawal of
the said appeal or writ petition along with the said
application in FORM GST SPL-01 or FORM GST
SPL-02. It is to be mentioned that he is required to
upload the final order for withdrawal of the said
appeal or writ petition on the common portal, within
one month of the issuance of the said order for
withdrawal by the concerned authority.
3.1.7 It may be noted that, in case the taxpayer
has been issued multiple notices/statements/orders
pertaining to demands under Section 73, for period
from July, 2017 to March, 2020, he is required to file
a separate application in FORM GST SPL-01 or FORM
GST SPL-02, as the case may be, in respect of each
of the concerned notice/statement/order.
3.2 Payment of tax:
3.2.1 With respect to a notice or statement
referred to in Clause (a) of sub-section (1) of Section
128A, i.e., a notice or statement that is yet to be
adjudicated, the payment towards the tax
demanded in the said notice shall be made by the
taxpayer through FORM GST DRC-03.
3.2.2 With respect to an order referred to in
Clause (b) and Clause (c) of sub-section (1) of Section
128A, the payment towards such tax demanded
shall be made by the taxpayer, only by the making
the payment against the debit entry created in the
Part II of the Electronic Liability Register (ELR) by
the demand order. In this regard, the procedure
mentioned in para 4 of Circular No. 224/18/2024-
-GST dated 11th July, 2024 may be referred to.
However, in cases where the payment towards tax
demanded in the demand order has already been
made through FORM GST DRC-03, the procedure
prescribed in Rule 142(2B) may be followed. In such
cases, the taxpayer shall be required to file an
application in FORM GST DRC-03A as prescribed in
the said rule, in order to adjust the amount already
paid vide the FORM GST DRC-03, towards the
demand created in the ELR-Part II, before filing the
application for waiver under Section 128A in FORM
GST SPL-02. For the purposes of determining the
date of payment of full amount of tax, the date on
which the amount has been paid through FORM
GST DRC-03 may be considered and not the date on
which the said amount has been adjusted using
FORM GST DRC-03A.
3.2.3 Such payment shall be made on or before
the date notified under Section 128A (1), i.e., on or
before 31-03-2025. Where applications are filed in
respect of cases referred to in the first proviso to
sub-section (1) of Section 128A, then the applicants
shall be required to make the payment on or before
the date notified under Section 128A (1) specifically
for those cases, i.e., within six months of the
communication of the order of the proper officer
redetermining the amount of tax to be paid under
Section 73.
3.2.4 In cases where the amount of tax payable
as per the notice/statement/order includes the
amount that was demanded due to contravention
of provisions of sub-section (4) of Section 16, which
is however not payable anymore due to the
retrospective insertion of sub-section (5) and sub-
-section (6) to Section 16, the full amount of tax
payable as per the notice/statement/order as
mentioned in sub-section (1) of Section 128A for
eligibility of waiver of interest or penalty or both
shall be calculated after deducting the amount,
which is not payable anymore as per sub-sections (5)
or sub-section (6) of Section 16, as per sub-rule (5)
of Rule 164. In this regard, it is also to be mentioned
that, where the taxpayer is deducting the amount
of input tax credit which was denied on account of
contravention of sub-section (4) of Section 16, but
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which is now available as per retrospectively
inserted provisions of sub-section (5) or sub-section
(6) of Section 16 of the CGST Act, he is not required
to file an application for rectification for the same
in terms of the special procedure notified under
Section 148 vide notification No. 22/2024-Central
tax dated 8th October, 2024.
3.2.5 It is also clarified that while calculating the
amount deductible on account of not being payable
in accordance with sub-section (5) or sub-section (6)
of Section 16, from the amount payable in terms of
the notice or statement or order under Section 73,
as the case may be, taxpayer is required to ensure
that such amount is deducted only where ITC has
been denied solely on account of contravention of
Section 16(4) of the CGST Act and not on any other
grounds. The tax officer scrutinising such
applications is also required to verify that the said
amount that has been deducted by the taxpayer as
not payable anymore on account of retrospective
insertion of sub-section (5) and sub-section (6) to
Section 16, was initially denied solely deducted on
the basis of contravention of sub-section (4) of
Section 16, and not on any other grounds.
3.2.6 It is further mentioned that, in cases
referred to in sub-rule (3) and sub-rule (4) of Rule
164, the applicant can file the application for waiver
of interest or penalty or both under Section 128A, in
respect of a notice/statement/order mentioned in
sub-section (1) of Section 128A, only after payment
of full amount of tax demanded in the said notice/
/statement/order, including on account of demand
pertaining to erroneous refund, if any, and also on
account of demand pertaining to the period other
than the period mentioned in sub-section (1) of
Section 128A, if any, in the said notice/statement/order.
3.3 Processing of application and issuance of order:
3.3.1 The proper officer for processing the
application for waiver of interest or penalty or both
under Section 128A, would be the proper officer to
issue the order under Section 73, in case the
application is filed in FORM GST SPL-01, and would
be the proper officer for recovery under Section 79,
in case the application is filed in FORM GST SPL-02.
3.3.2 The proper officer on receipt of the
application in FORM GST SPL-01 or FORM GST SPL-02,
shall examine the said application. If, on
examination, he finds that the said application is
liable to be rejected, he shall issue a notice to the
applicant, within three months from the date of
receipt of the said application, in FORM GST SPL-03
on the common portal. The proper officer shall also
give the applicant an opportunity of personal
hearing.
3.3.3 On receipt of the notice in FORM GST SPL-
03, the applicant may file his reply in FORM GST
SPL-04, electronically on the common portal, within
a period of one month from the date of receipt of the
notice.
3.3.4 The proper officer shall issue an order in
FORM GST SPL-05, accepting the said application,
if he is satisfied that the applicant is eligible for
waiver of interest or penalty or both under Section
128A. However, if the proper officer, based on the
application and the reply in FORM GST SPL-04
received from the taxpayer, is of the view that the
applicant is not eligible for waiver of interest or
penalty or both under Section 128A, he shall issue
an order in FORM GST SPL-07, rejecting the said
application.
3.3.5 The order in FORM GST SPL-05 or FORM
GST SPL-07 shall be required to be issued within
the time period prescribed in sub-rule (13) of Rule
164. In terms of sub-rule (14) of rule 164, in cases
where no order is issued within the time limit
prescribed in sub-rule (13) of Rule 164, the
application filed in FORM GST SPL-01 or FORM GST
SPL-02, as the case may be, shall be deemed to be
approved, and the order in FORM GST SPL-05
approving the said application shall be made
available on the common portal.
3.3.6 In cases where an application for waiver of
interest or penalty or both was filed in FORM GST
SPL-01 and an order approving the said application
is issued by the proper officer in FORM GST SPL-05,
then a summary of order in FORM GST DRC-07 need
not be issued on the common portal. However, in
cases where an order in FORM GST SPL-05 or in
FORM GST SPL-06, as the case may be, has been
issued approving an application filed in FORM GST
SPL-02, the liability earlier created in the ELR–Part II
by the demand order or the appellate order, as the
case may be, shall stand modified accordingly.
3.3.7 It is also to be mentioned that as per the
second proviso to sub-section (1) of Section 128A,
the conclusion of proceedings against a demand
notice/statement/order under this section and
further issuance of such conclusion order in FORM
GST SPL-05 or in FORM GST SPL-06, as the case
may be, in cases where the department had filed an
application/initiated revisional proceedings against
the said demand notice/statement/order, is
conditional upon the payment of additional tax
payable, if any, as determined by the Appellate
Authority or the Appellate Tribunal or the court or
the Revisional Authority, as the case may be, within
three months of issuance of such order. In case,
such additional tax is not paid within the specified
time limit, then as per sub-rule (16) of Rule 164, the
waiver of interest or penalty or both provided under
Section 128A as per the order issued in FORM GST
SPL-05 or FORM GST SPL-06, as the case may be,
shall become void.
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3.3.8 Further, while processing the said
application, the proper officer shall ensure that the
applicant has paid the amount of tax demanded in
the notice/statement/order referred in sub-section (1)
of Section 128A [other than the amount not payable
anymore due to the retrospective insertion of sub-
-section (5) and sub-section (6) to Section 16, as
referred in para 3.2.4], including the amount of tax
demand pertaining to erroneous refund, if any, and
also on account of demand pertaining to the period
other than the period mentioned in sub-section (1)
of Section 128A, if any, in the said notice/statement/
/order. Further, the proper officer shall also keep in
consideration that waiver of interest and penalty
under Section 128A is available only in respect of
demand pertaining to the period mentioned in sub-
-section (1) of Section 128A, and the demand on
issues other than on account of erroneous refund.
3.3.9 Where it is found that any amount of
interest and penalty is payable by the applicant on
account of some demand pertaining to the period
other than the period mentioned in sub-section (1)
of Section 128A or pertaining to demand of
erroneous refund, the detail of the same shall be
mentioned in column No. 19 and column No. 20 of
FORM GST SPL-05 or FORM GST SPL-06, as the case
may be. Further, in such cases, an opportunity of
personal hearing may be granted to the applicant,
before issuance of order in FORM GST SPL-05 or
FORM GST SPL-06.
3.3.10 In cases referred in para 3.3.9, the applicant
is required to pay the amount of interest or penalty
or both, detailed in column No. 19 and column No.
20 of FORM GST SPL-05 or FORM GST SPL-06,
within a period of three months from the date of
issuance of the said order in FORM GST SPL-05 or
FORM GST SPL-06, as the case may be. In case
where the said amount is not paid within the period
of three months from the date of issuance of the
said order in FORM GST SPL-05 or FORM GST SPL-
06, as the case may be, the waiver of interest or
penalty or both under Section 128A as per the order
issued in FORM GST SPL-05 or FORM GST SPL-06,
shall become void, as per sub-rule (17) of Rule 164.
3.4 Appeal against the orders issued under Rule 164:
3.4.1 No appeal shall lie under Section 107,
against an order issued in FORM GST SPL-05
concluding the proceedings under Section 128A.
The order issued in FORM GST SPL-07, rejecting the
application for waiver, shall be, however, appealable
in accordance with sub-section (1) of Section 107
within the time limit specified therein, by filing an
application in FORM GST APL-01. In such cases,
normally, no pre-deposit may be required to be paid
by the taxpayer for filing the said appeal, as the
said amount may already have been paid as a part
of payment of tax dues involved in the demand
notice/statement/order before filing an application
in FORM GST SPL-01 or FORM GST SPL-02.
However, in cases where no amount of tax dues has
been paid or amount of tax dues paid is less than
the requisite amount for pre-deposit for filing appeal
as per sub-section (6) of Section 107, the remaining
amount of pre-deposit will be required to be paid
for filing the said appeal.
3.4.2 It is also important to note that the subject
matter of the appeal will only be regarding the
applicability of waiver of interest or penalty or both
under Section 128A and not on the merits of the
original notice/statement/order.
3.4.3 It is to be mentioned that, in cases where
an appeal has been filed by the applicant against
the order in FORM GST SPL-07, and the appellate
authority holds that the proper officer has wrongly
rejected the application, thereby allowing the
applicant the benefit of the waiver of interest or
penalty or both, the said appellate authority shall
pass an order in FORM GST SPL-06. This form shall
accordingly modify the liability created, if any, in
the ELR-Part II.
3.4.4 Where appeal had been withdrawn before
filing an application in FORM GST SPL-02, for
availing the waiver of interest or penalty or both
under Section 128A, but the application for waiver
is rejected by the proper officer by issuance of order
in FORM GST SPL-07,
(a) in cases,where the taxpayer prefers an appeal
against the said rejection order, and the appellate
authority holds that the proper officer has righty
rejected the said application made in FORM GST
SPL-02, and issues an order in FORM GST APL-04,
then the original appeal filed by the applicant shall
be restored, subject to condition that the applicant
files an undertaking electronically on the portal in
FORM GST SPL-08, that he has neither filed nor
intends to file any appeal against such order of the
Appellate Authority.
(b) in cases, where the taxpayer prefers an appeal
against the said rejection order, and the appellate
authority holds that the proper officer has wrongly
rejected the said application made in FORM GST
SPL-02, and issues an order in FORM GST SPL-06,
thereby holding that the appellant is eligible for
waiver of interest or penalty or both, no appeal
shall lie against the said order issued in FORM GST
SPL-06.
(c) in case, where the taxpayer does not prefer
an appeal within the time period mentioned in sub-
-section (1) of Section 107 against the said rejection
order, then the original appeal filed by the applicant
shall be restored.
