Hon’ble FM Shrimati Nirmala Sitharaman has presented Budget 2020-21 on 1st February, 2020.
We present to you clause wise analysis of various amendments made in the statute of Goods & Services Tax.
1. Clause 116: Amendment in Definition of Union Territory – Section 2(114) of CGST Act
Existing
“Union territory” means the territory of-
(a) the Andaman and Nicobar Islands;
(b) Lakshadweep;
(c) Dadra and Nagar Haveli and Daman and Diu;
(d) ****
(e) Chandigarh; and
(f) other territory.
Proposed Amendment
“Union territory” means the territory of-
(a) the Andaman and Nicobar Islands;
(b) Lakshadweep;
(c) Dadra and Nagar Haveli and Daman and Diu;
(d) Ladakh
(e) Chandigarh; and
(f) other territory.
Analysis
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Clause 116 of the Bill seeks to amend section 2(114) of the CGST Act so as to align the definition of “Union territory” in line with :
• the Jammu and Kashmir Reorganisation Act, 2019 and
• the Dadra and Nagar Haveli and Daman and Diu (Merger of Union Territories), Act, 2019.
Earlier, the definition of Union Territory as contained in UTGST Act was amended w.e.f. 26-01-2020 by The Union Territory of Dadra And Nagar Haveli and Daman and Diu Goods and Services Tax (Amendment) Regulation, 2020.
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2. Clause 117: Amendment of section 10 - Conditions for Opting Composition
Existing
As per section 10(2), the registered person shall be eligible to opt under sub-section (1), if––
- save as provided in sub-section (1), he is not engaged in the supply of services;
- he is not engaged in making any supply of goods which are not leviable to tax under this Act;
- he is not engaged in making any inter-State outward supplies of goods;
- he is not engaged in making any supply of goods through an electronic commerce operator who is required to collect tax at source under section 52;
Proposed Amendment
As per section 10(2), the registered person shall be eligible to opt under sub-section (1), if––
- save as provided in sub-section (1), he is not engaged in the supply of services;
- he is not engaged in making any supply of goods or services which are not leviable to tax under this Act;
- he is not engaged in making any inter-State outward supplies of goods or services;
- he is not engaged in making any supply of goods or services through an electronic commerce operator who is required to collect tax at source under section 52
Analysis
Seeks to harmonise the conditions for eligibility for opting to pay tax under sub-section (1) and sub-section (2A) of the CGST Act
Initially the composition scheme u/s 10 of the CGST Act, 2017 was available only to certain class of persons supplying goods and w.r.t. services only for supply of food covered under entry 6(b) of Schedule II. Subsequently, these suppliers were made eligible to the scheme even if they made supply of services to the extent of 10% of turnover or ₹ 10 lakhs, whichever is higher.
However, corresponding amendment in section 10 was not done to extend the above-mentioned restrictions to these services, which is now achieved by this amendment. This restriction though would be prospective in nature.
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Analysis
3. Clause 118: Amendment of section 16(4) – Time Limit for Availing ITC in respect of Debit Notes
Existing
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 due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier.
Proposed Amendment
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 due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier.
Analysis
Seeks to delink the date of issuance of debit note from the date of issuance of the underlying invoice for purposes of availing input tax credit. Thus, the time limit of taking ITC on Debit note will be counted from date of Debit note irrespective of date of underlying invoices.
This is a welcome amendment but it should have been made from retrospective effect.
For Instance –
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Existing Provision
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Amended Provision
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CASE
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Description
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Time limit for ITC Availment
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Time limit for ITC Availment
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I
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Debit Note issued in August 2020 wrt Invoice of FY 2019-20
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Avail ITC till due date of filing GSTR-3B of Sep 2020
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Avail ITC till due date of filing GSTR-3B of Sep 2020
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II
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Debit Note issued in August 2021 wrt Invoice of FY 2019-20
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ITC cannot be availed
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Avail ITC till due date of filing GSTR-3B of Sep 2022
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Analysis
4. Clause 119: Amendment of section 29 – Cancellation of Registration
Existing
As per section 29(1), the proper officer may, either on his own motion or on an application filed by the registered person or by his legal heirs, in case of death of such person, cancel the registration, in such manner and within such period as may be prescribed, having regard to the circumstances where,––
(a) …………………………. or
(b) …………………………..or
(c) the taxable person, other than the person registered under sub-section (3) of section 25 [Voluntarily Registration], is no longer liable to be registered under section 22 [Persons liable for registration] or section 24 [Compulsory registration in certain cases].
Proposed Amendment
As per section 29(1), the proper officer may, either on his own motion or on an application filed by the registered person or by his legal heirs, in case of death of such person, cancel the registration, in such manner and within such period as may be prescribed, having regard to the circumstances where,––
(a) …………………………. or
(b) …………………………..or
“(c) the taxable person is no longer liable to be registered under section 22 or section 24 or intends to opt out of the registration voluntarily made under sub-section (3) of section 25:”.
Analysis
In the existing provision, cancellation of voluntary registration was possible under Rule 20 of CGST Rules. However there was no corresponding power provided in CGST Act.
In order to remove this anomaly, Section 29 (1)(c ) has been amended so as to provide for cancellation of registration obtained voluntarily under sub-section (3) of section 25.
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5. Clause 120: Amendment of section 30 - Time limit for Revocation of Cancellation of Registration enhanced
Existing
As per section 30(1), any registered person, whose registration is cancelled by the proper officer on his own motion, may apply to such officer for revocation of cancellation of the registration in the prescribed manner within thirty days from the date of service of the cancellation order.
Proposed Amendment
As per section 30(1), any registered person, whose registration is cancelled by the proper officer on his own motion, may apply to such officer for revocation of cancellation of the registration in the prescribed manner within thirty days from the date of service of the cancellation order.
Provided that such period may, on sufficient cause being shown, and for reasons to be recorded in writing, be extended,––
(a) by the Additional Commissioner or the Joint Commissioner, as the case may be, for a period not exceeding thirty days (30 days);
(b) by the Commissioner, for a further period not exceeding thirty days, beyond the period specified in clause (a).” (further 30 days).
Analysis
Proviso is inserted in section 30(1) of the CGST Act so as to empower the jurisdictional tax authorities to extend the period provided to file an application for revocation of cancellation of registration.
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6. Clause 121: Amendment of section 31 – Amendment in Time & Manner of Issue of Tax Invoice for supply of services
Existing
As per section 31(2). a registered person supplying taxable services shall, before or after the provision of service but within a prescribed period, issue a tax invoice, showing the description, value, tax charged thereon and such other particulars as may be prescribed;
Provided that the Government may, on the recommendations of the Council, by notification and subject to such conditions as may be mentioned therein, specify the categories of services in respect of which––
(a) any other document issued in relation to the supply shall be deemed to be a tax invoice; or
(b) tax invoice may not be issued.
Proposed Amendment
As per section 31(2). a registered person supplying taxable services shall, before or after the provision of service but within a prescribed period, issue a tax invoice, showing the description, value, tax charged thereon and such other particulars as may be prescribed;
“Provided that the Government may, on the recommendations of the Council, by notification,––
- specify the categories of services or supplies in respect of which a tax invoice shall be issued, within such time and in such manner as may be prescribed;
- subject to the condition mentioned therein, specify the categories of services in respect of which–
(i) any other document issued in relation to the supply shall be deemed to be a tax invoice; or
(ii) tax invoice may not be issued.”.
Analysis
Seeks so as to empower the Government to notify the categories of services or supplies in respect of which tax invoice shall be issued and to make rules regarding the time and manner of its issuance.
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7. Clause 122: Amendment of section 51 - Tax Deducted at Source
Existing
As per Section 51(3) The deductor shall furnish to the deductee a certificate mentioning therein the contract value, rate of deduction, amount deducted, amount paid to the Government and such other particulars in such manner as may be prescribed.
(4) If any deductor fails to furnish to the deductee the certificate, after deducting the tax at source, within five days of crediting the amount so deducted to the Government, the deductor shall pay, by way of a late fee, a sum of one hundred rupees per day from the day after the expiry of such five days period until the failure is rectified, subject to a maximum amount of five thousand rupees.
Proposed Amendment
As per Section 51(3) A certificate of tax deduction at source shall be issued in such form and in such manner as may be prescribed.
(4) Omitted
Analysis
The Government has already notified certificate of Tax deduction at Source, Form GSTR-7A vide Rule 66(3) of CGST Rules. However corresponding provision under Sec 51(3) earlier specified the particulars required in certificate of deduction and not the form.
Thus Sec 51(3) of CGST Act has been amended to empower the Government to make rules to provide for the form and manner in which a certificate of tax deduction at source shall be issued.
Further, seeks to omit provisions with respect to late fee for failure to furnish TDS certificate within 5 days.
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8. Clause 123: Amendment of section 109 - Constitution of Appellate Tribunal and Benches thereof for Union Territory of Jammu & Kashmir
Existing
As per Section 109(6) of CGST Act , The Government shall, by notification, specify for each State or Union territory except for the State of Jammu and Kashmir, a Bench of the Appellate Tribunal (hereafter in this Chapter, referred to as “State Bench”) for exercising the powers of the Appellate Tribunal within the concerned State or Union territory:
Provided that for the State of Jammu and Kashmir, the State Bench of the Goods and Services Tax Appellate Tribunal constituted under this Act shall be the State Appellate Tribunal constituted under the Jammu and Kashmir Goods and Services Tax Act, 2017.
Proposed Amendment
As per Section 109(6) The Government shall, by notification, specify for each State or Union territory except for the State of Jammu and Kashmir, a Bench of the Appellate Tribunal (hereafter in this Chapter, referred to as “State Bench”) for exercising the powers of the Appellate Tribunal within the concerned State or Union territory:
Provided that for the State of Jammu and Kashmir, the State Bench of the Goods and Services Tax Appellate Tribunal constituted under this Act shall be the State Appellate Tribunal constituted under the Jammu and Kashmir Goods and Services Tax Act, 2017.
Analysis
Seeks to make the provisions for Appellate Tribunal and its benches thereof applicable in the Union territories of Jammu and Kashmir and Ladakh.
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9. Clause 124: Amendment of section 122 - Penalty for certain offences [Penal Provisions for Fake Invoicing]
Proposed Amendment
After sub-section (1) to section 122 the following sub-section shall be inserted:
(1A) Any person who retains the benefit of a transaction covered under clauses (i), (ii), (vii) or clause (ix) of sub-section (1) and at whose instance such transaction is conducted, shall be liable to a penalty of an amount equivalent to the tax evaded or input tax credit availed of or passed on.
Analysis
Seeks to insert a new sub-section (1A) in section 122 of the CGST Act so as to make the beneficiary of certain transactions covered under clause (i), (ii), (vii) and (ix) of sub-section 1 to section 122 and at whose instance such transactions are conducted liable for penalty.
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Clause of section 122(1)
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Description
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(i)
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Supplies any goods or services or both without issue of any invoice or issues an incorrect or false invoice with regard to any such supply;
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(ii)
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Issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act or the rules made thereunder;
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(vii)
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Takes or utilises input tax credit without actual receipt of goods or services or both either fully or partially, in contravention of the provisions of this Act or the rules made thereunder;
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(ix)
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Takes or distributes input tax credit in contravention of section 20, or the rules made thereunder;
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Thus, the wrongdoer as well as beneficiary has been made liable for 100% penalty.
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10. Clause 125: Amendment of section 132 - Punishment for certain offences- [Penal Provisions for Fake Invoicing]
Existing
Section 132(1): Whoever commits any of the following offences, namely:-
- supplies any goods or services or both without issue of any invoice, in violation of the provisions of this Act or the rules made thereunder, with the intention to evade tax;
- issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax;
- avails input tax credit using such invoice or bill referred to in clause (b);
- collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due;
- evades tax, fraudulently avails input tax credit or fraudulently obtains refund and where such offence is not covered under clauses (a) to (d);
Proposed Amendment
Section 132(1): “Whoever commits any of the following offences”, “Whoever commits, or causes to commit and retain the benefits arising out of, any of the following offences, namely:-
- supplies any goods or services or both without issue of any invoice…………….. with the intention to evade tax;
- issues any invoice or bill without supply of goods or services …………………………;
avails input tax credit using such invoice or bill referred to in clause (b); “(c) avails input tax credit using the invoice or bill referred to in clause (b) or fraudulently avails input tax credit without any invoice or bill;”- collects any amount as tax but fails to pay ……………..;
- evades tax,
fraudulently avails input tax credit or fraudulently obtains refund and where such offence is not covered under clauses (a) to (d);
Analysis
Seeks to make the offence of fraudulent availment of input tax credit without invoice or bill cognizable and non-bailable under sub-section (1) of section 69 and to make any person who retains the benefit of certain transactions and at whose instance such transactions are conducted liable for punishment.
Criminal Procedure code
- "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non‐bailable offence" means any other offence
- "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant
- "non‐cognizable offence" means an offence for which, and "non‐cognizable case" means a case in which, a police officer has no authority to arrest without warrant
The rationale behind the above two amendments is to also penalise/ punish (including the person who has contravened), the persons who have benefited from the specified contravention and at whose instance the specified contravention is undertaken. Earlier the penalty / punishment was only for the person who committed such offence while now this is being extended to the other person who is also involved in such activity.
However, it is to be noted that collusion and benefit from contravention are a necessity to attract these provisions and it cannot be applied to cases where there has been a genuine error or mistake or omission. Further the offence of fraudulent availment of credit without invoice or bill would now be cognizable and non-bailable which gives more power to the government in respect of such cases.
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11. Clause 126: Amendment of section 140 – Amendment in time of availing Transitional Credit
Existing
Section 140(1): A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit 1[of eligible duties] carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law in such manner as may be prescribed:
Proposed Amendment
Section 140(1): A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit 1[of eligible duties] carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law within such time and in such manner as may be prescribed:
Similar changes are also proposed to be made in all the sub-sections of section 140.
Analysis
Seeks to amend section 140 of the CGST Act relating to transitional arrangements for input tax credit, so as to prescribe the time limit and the manner for availing input tax credit against certain unavailed credit under the existing law.
This amendment shall take effect retrospectively from the 1st day of July, 2017.
The above amendments are made to nullify the effect of the judgment given in the case of Siddhartha Enterprises by the Hon’ble Gujrat High court wherein it was held that the Rules that prescribe the time limit to avail the transitional credit cannot override the Act.
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12. Clause 127: Amendment of section 168 - Power to issue instructions or directions
Existing
As per Section 168(2) The Commissioner specified in clause (91) of section 2, sub-section (3) of section 5, clause (b) of sub-section (9) of section 25, sub-sections (3) and (4) of section 35, sub-section (1) of section 37, sub-section (2) of section 38, sub-section (6) of section 39, sub-section (1) of section 44, sub-sections (4) and (5) of section 52, sub-section (5) of section 66, sub-section (1) of section 143, sub-section (1) of section 151, clause (l) of sub-section (3) of section 158 and section 167 shall mean a Commissioner or Joint Secretary posted in the Board and such Commissioner or Joint Secretary shall exercise the powers specified in the said sections with the approval of the Board.
Proposed Amendment
As per Section 168(2) The Commissioner specified in clause (91) of section 2, sub-section (3) of section 5, clause (b) of sub-section (9) of section 25, sub-sections (3) and (4) of section 35, sub-section (1) of section 37, sub-section (2) of section 38, sub-section (6) of section 39, sub-section (1) of section 44, sub-sections (4) and (5) of section 52, sub-section (5) of section 66, sub-section (1) of section 143 except the second proviso thereof, sub-section (1) of section 151, clause (l) of sub-section (3) of section 158 and section 167 shall mean a Commissioner or Joint Secretary posted in the Board and such Commissioner or Joint Secretary shall exercise the powers specified in the said sections with the approval of the Board.
Analysis
Seeks to make provisions for enabling the jurisdictional Commissioners to exercise powers under sub-section (5) of section 66 and also under second proviso to sub-section (1) of section 143.
Section 66(5): Special Audit
The expenses of the examination and audit of records under sub-section (1), including the remuneration of such chartered accountant or cost accountant, shall be determined and paid by the Commissioner and such determination shall be final.
Second proviso to sub-section (1) of Section 143: Job work procedure
Provided further that the period of one year and three years may, on sufficient cause being shown, be extended by the Commissioner for a further period not exceeding one year and two years respectively.
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13. Clause 128: Amendment of section 172 - Increase in period of issue of ROD by another 2 years
Existing
As per Section 172 (1) If any difficulty arises in giving effect to any provisions of this Act, the Government may, on the recommendations of the Council, by a general or a special order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act or the rules or regulations made thereunder, as may be necessary or expedient for the purpose of removing the said difficulty
Provided that no such order shall be made after the expiry of a period of three years from the date of commencement of this Act.
Proposed Amendment
As per Section 172(1) If any difficulty arises in giving effect to any provisions of this Act, the Government may, on the recommendations of the Council, by a general or a special order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act or the rules or regulations made thereunder, as may be necessary or expedient for the purpose of removing the said difficulty
Provided that no such order shall be made after the expiry of a period of five years from the date of commencement of this Act.
Analysis
- Seeks to extend the time limit for issuance of removal of difficulties orders from three years to five years, with effect from the date of commencement of the CGST Act.
- Consequential change also proposed in the IGST Act/ UTGST Act.
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14. Clause 129- Amendment of Schedule II - Activities or Transactions to be Treated as Supply of Goods or Supply of Services [Clause 4, Transfer of business assets]
Existing
As per Schedule II to Section 7
4(a) where goods forming part of the assets of a business are transferred or disposed of by or under the directions of the person carrying on the business so as no longer to form part of those assets, whether or not for a consideration, such transfer or disposal is a supply of goods by the person;
(b) where, by or under the direction of a person carrying on a business, goods held or used for the purposes of the business are put to any private use or are used, or made available to any person for use, for any purpose other than a purpose of the business, whether or not for a consideration, the usage or making available of such goods is a supply of services;
Proposed Amendment
As per Schedule II to Section 7
4 (a) where goods forming part of the assets of a business are transferred or disposed of by or under the directions of the person carrying on the business so as no longer to form part of those assets, whether or not for a consideration, such transfer or disposal is a supply of goods by the person;
(b) where, by or under the direction of a person carrying on a business, goods held or used for the purposes of the business are put to any private use or are used, or made available to any person for use, for any purpose other than a purpose of the business, whether or not for a consideration, the usage or making available of such goods is a supply of services;
Analysis
As per Central Goods and Services Tax (Amendment) Act, 2018, subsection (1A) has been inserted in Section 7 of CGST Act specifying the scope of supply.
As per Section 7(1A), where certain activities or transactions constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II.
Thus, Schedule II to section 7 will only classify transactions as supply of goods or supply of services provided they fulfil the condition of supply as per Section 7(1) of CGST Act.
However in the existing provision in clause 4 of Schedule II, the use of the term “whether or not for consideration” was creating an ambiguity. Thus, Finance Bill 2020 seeks to omit the words “whether or not for consideration” so as to give clarity to the meaning of the entries (a) and (b) of said paragraph.
This amendment shall take effect retrospectively from the 1st day of July, 2017.
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15. Clause 130: Retrospective exemption from, or levy or collection of, central tax in certain cases
- Seeks to provide retrospective exemption from central tax on supply of fishmeal, during the period from the 1st day of July, 2017 up to 30th day of September, 2019 (both days inclusive).
- It further seeks to retrospectively levy central tax at the reduced rate of six per cent. on supply of pulley, wheels and other parts (falling under heading 8483) and used as parts of agricultural machinery of headings 8432, 8433 and 8436, during the period from the 1st day of July, 2017 up to 31st day of December, 2018 (both days inclusive).
- It also seeks to provide that no refund shall be made of the tax which has already been collected.
- Consequential change also proposed in IGST Act/ UTGST Act.
Analysis
This is in line with the recommendations made in 37th GST Council meeting dated 20th September, 2019.
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16. Clause 131: Retrospective effect to notification issued under section 54(3)(ii) of CGST Act
- The refund of accumulated credit of compensation cess on tobacco products arising out of inverted duty structure in Compensation Cess is disallowed w.e.f. October 1, 2019 vide Notification No. 3/2019- Compensation Cess (Rate) dated September 30, 2019.
- Clause 131 of the Bill seeks to give retrospective effect to the above notification w.e.f. July 1, 2017 onwards. Accordingly, no refund on account of inverted duty structure would be admissible on any tobacco products.
