2025 (5) TMI 910 - HC - GST

Challenge to initiation of proceedings by the respondents by issuing a show cause in Form GST DRC 01 dated 4th April 2024 - levy of GST - economic surplus or profit earned by the petitioner as the brand owner of alcoholic liquor for human consumption - HELD THAT - Prima facie it would transpire that the petitioner is seeking for a declaration that the economic surplus earned and retained by the petitioner as brand owner of alcoholic liquor for human consumption is not liable to GST. In this context it may be noted that in the preservice tax regime by Circular dated 30th October 2009 the Government had clarified that the surplus earned by the brand owner being in the nature of business profit does not fall within the purview of direct tax and accordingly not be chargeable to service tax. Having regard thereto and without trying to pre-adjudicate the show-cause the petitioner has been able to raise a jurisdictional issue and accordingly the writ petition is admitted for being heard - Let affidavit-in-opposition to the present writ petition be filed within a period of six weeks from date. Reply thereto if any be filed within four weeks thereafter. Liberty to mention.

The core legal questions considered by the Court include:

(a) Whether the economic surplus or profit earned by the petitioner as the brand owner of alcoholic liquor for human consumption is liable to Goods and Services Tax (GST) or falls outside its ambit as business profit subject to direct tax.

(b) Whether the issuance of the show cause notice under GST law, treating the economic surplus as consideration for transfer of intellectual property rights and thereby as a taxable service, is valid.

(c) Whether interim relief in the form of stay on the show cause notice is warranted pending adjudication of the writ petition.

Issue-wise Detailed Analysis

1. Liability of Economic Surplus Earned by Brand Owner to GST

Relevant Legal Framework and Precedents: The Court examined a Circular dated 30th October 2009 issued by the Government of India, Ministry of Finance, Department of Revenue during the service tax regime under the Finance Act, 1994. The Circular clarified that service tax would be payable on bottling job charges, distribution costs, and other reimbursables, but the surplus or profit earned by brand owners, characterized as business profit falling within the purview of direct tax, would not attract service tax. Although this Circular pertains to the erstwhile service tax regime, the petitioner argued that the principle remains applicable under GST. Additionally, a draft Circular circulated by the Central Board of Indirect Taxes and Customs (GST Policy Wing) in March 2020 echoed similar views, though no final decision has been taken.

Court's Interpretation and Reasoning: The Court noted the petitioner's contention that the economic surplus is a business profit and not consideration for a taxable service. It reproduced the relevant portion of the 2009 Circular emphasizing that surplus/profit earned by the brand owner is not chargeable to service tax. The Court acknowledged this as a significant clarification, indicating that the economic surplus should not be subjected to GST.

Key Evidence and Findings: The petitioner's reliance on the 2009 Circular and the draft 2020 Circular were pivotal. The petitioner also referred to an unreported Karnataka High Court order where similar proceedings were stayed. The State, on the other hand, relied on the show cause notice and an unreported order of a Coordinate Bench of this Court refusing interim relief in similar facts.

Application of Law to Facts: The petitioner, as brand owner, receives economic surplus from manufacturers who produce and sell the liquor under the petitioner's brand name. The State contended this surplus is consideration for transfer of intellectual property rights, thus taxable as a service. The Court, however, found that the petitioner raised a jurisdictional issue by asserting that the economic surplus is business profit, not consideration for service, and thus outside GST's scope.

Treatment of Competing Arguments: The State argued the surplus was rightly treated as consideration for service, supported by agreements between the petitioner and manufacturers. The petitioner countered by emphasizing the 2009 Circular's clarification and the nature of the surplus as business profit. The Court gave weight to the petitioner's submissions, noting the absence of a final policy decision on the matter and the existence of authoritative clarifications supporting the petitioner's stance.

Conclusion: The Court admitted the writ petition, recognizing a prima facie jurisdictional issue regarding GST liability on the economic surplus earned by the petitioner.

2. Validity of the Show Cause Notice Issued Under GST Law

Relevant Legal Framework and Precedents: The show cause notice was issued in Form GST DRC 01 dated 4th April 2024 for the tax period April 2022 to March 2023, alleging tax liability on the economic surplus. The State relied on the legal principle that transfer of intellectual property rights constitutes a service attracting GST.

Court's Interpretation and Reasoning: The Court observed that the show cause notice treats the economic surplus as consideration for transfer of intellectual property rights and thus as a taxable service. However, given the petitioner's challenge based on the 2009 Circular and the draft 2020 Circular, the Court found that the validity of the notice raised a substantial question of law and fact.

Key Evidence and Findings: The agreements between the petitioner and manufacturers showed that manufacturers procure raw materials and packaging, recover sales proceeds, deduct costs, and remit the surplus to the petitioner. The State characterized this surplus as consideration for intellectual property rights transfer. The petitioner disputed this characterization.

Application of Law to Facts: The Court refrained from pre-adjudicating the merits but acknowledged the petitioner's contention that the surplus is business profit and not consideration for a service. The Court found the issuance of the show cause notice raised a jurisdictional issue warranting judicial scrutiny.

Treatment of Competing Arguments: The State argued the notice was valid and the petitioner's challenge premature. The petitioner argued the notice was contrary to established clarifications and thus liable to be quashed. The Court balanced these views and admitted the petition for hearing.

Conclusion: The Court admitted the writ petition challenging the show cause notice as raising a jurisdictional issue, without deciding on its ultimate validity at this stage.

3. Interim Relief and Stay on Proceedings

Relevant Legal Framework and Precedents: The petitioner sought stay of all proceedings pursuant to the show cause notice pending adjudication. The petitioner relied on an unreported Karnataka High Court order granting stay in similar facts. The State relied on a Coordinate Bench order of this Court denying interim relief in analogous circumstances.

Court's Interpretation and Reasoning: The Court found that the petitioner had made out a prima facie case and raised a substantial question regarding GST liability on the economic surplus. However, the Court was mindful that the show cause notice had been issued and that the petitioner should be permitted to respond to it.

Key Evidence and Findings: The petitioner's reliance on the Karnataka High Court order and the State's reliance on the Coordinate Bench order of this Court were considered. The Court distinguished the facts and circumstances to justify limited interim relief.

Application of Law to Facts: The Court granted limited protection by permitting the petitioner to respond to the show cause notice but restrained the authorities from passing any final order without leave of the Court.

Treatment of Competing Arguments: The State opposed any stay, emphasizing the need for expeditious adjudication of tax demands. The Court balanced this against the petitioner's prima facie case and potential irreparable harm from premature enforcement.

Conclusion: The Court granted limited interim relief, permitting the petitioner to respond to the show cause notice but prohibiting final adjudication without Court's permission.

Significant Holdings

"Similarly, the surplus/profit earned by the BO being in the nature of business profit (which falls within the purview of direct tax) will not be chargeable to service tax."

This principle from the 2009 Circular was pivotal in the Court's recognition that economic surplus earned by a brand owner is not liable to GST as a service tax.

The Court held that the issuance of the show cause notice by treating the economic surplus as consideration for transfer of intellectual property rights and as a taxable service raised a jurisdictional issue warranting judicial scrutiny.

On the question of interim relief, the Court concluded that the petitioner was entitled to limited protection, allowing it to respond to the show cause notice but restraining final orders without Court's leave, balancing the interests of both parties.

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