Taxsutra ELP Newsletter 15R

ISSUE - 15
NAVIGATING GST 2.0

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ISSUE - 15
NAVIGATING GST 2.0

• THOUGHT LEADERSHIP
• STATE INDUSTRIAL POLICIES – KEY INCENTIVES
• FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS
• EXPERT SPEAKS
• LEGISLATION AT WORK - RECENT AMENDMENTS
• ALLIED LAWS
• LEGAL CLASSICS
• QUOTABLE QUOTES
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CONTENTS
THOUGHT LEADERSHIP..................................................................................................................................
04
Advancement of Technology on a recurrent basis has enhanced the tax laws to be on its toes to
adapt to the latest innovations. However, certain tax disputes are on the rise, as technology has
enabled activities not earlier carried out in the normal course such as online gaming, virtual digital
assets, etc. The author urges the Government to be proactive and stipulate guidelines for the
permissibility of such transactions.
STATE INDUSTRIAL POLICIES – KEY INCENTIVES ...........................................................................................

08
Industrial Policies can be termed as the cornerstone for the bloom of Indian Economy which has
also aided in amplification of productivity and efficiency. The state Industrial policies categorize
geographical regions into different blocks and incentives available to units may vary on account
of investment made in the respective blocks. Thus, a wide array of incentives is made available to
the companies setting up new units/ expansion of units by the State.
FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS.............................................................................

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This section focuses on the significant verdicts and rulings of the Hon’ble Supreme Court, High
Courts, Authority for Advance Rulings and the Appellate Authorities for Advance Rulings.
EXPERT SPEAKS..............................................................................................................................................
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Contains excerpts from the interview of Mr. Nilesh Kambli (Chief Financial Officer at Star Health and
Allied Insurance Co. Ltd)
LEGISLATION AT WORK - RECENT AMENDMENTS.......................................................................................

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Highlights all the amendments, clarifications, notifications, GST collections, etc., w.r.t. Indirect Taxes,
Customs Policies and more.
ALLIED LAWS..................................................................................................................................................
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This module encompasses the frequent developments notified by CBIC and DGFT vide Notifications
in relation to Amendment in the import policy conditions, levy of anti-dumping duty, etc.
LEGAL CLASSICS...........................................................................................................................................
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Accentuates on a noteworthy verdict of erstwhile Indirect Tax regime which acts as exemplar in
the GST era as well
QUOTABLE QUOTES......................................................................................................................................
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Enlists remarkable quotes from GST experts
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INTRODUCTION
Note From Editor: The Chapter From the Bench – Key Judicial
Pronouncements focuses on the significant verdicts
Online Gaming Industry has boomed of the Hon’ble Supreme Court and High Courts apart
unprecedentedly in India and so has Revenue’s from the rulings of various quasi-judicial bodies.
approach to tax it. The GST law does not define The Expert Speak module contains the excerpts
online gaming which has led to a debate as from the interview of Mr. Nilesh Kambli (Chief
to what constitutes ‘game of chance’ vis-a-vis Financial Officer, Star Health and Allied Insurance
‘game of skill’ before the GST Council. While the Co. Ltd.) who highlights how the orientation of tax
GST Council proposes to impose a rate of 28% GST authorities has undergone a major change with the
on such transactions, the resultant stance would introduction of GST and also discusses the problems
rupture the economy of the burgeoning gaming faced due to the manner in which GST has been
industry. implemented.
We are delighted to present the 15th Edition of our In the segment Legislature at Work – Recent
GST Newsletter which emphasizes on the state of Amendments, the Newsletter encompasses all
affairs of indirect taxation. Be it the proliferation of the amendments, updates, clarifications and
GST with across services, modification of policies modifications to the indirect tax laws. The Allied
or the landmark verdicts, the Newsletter covers Laws chapter covers significant Notifications while
it all. In the Thought Leadership chapter, ELP Legal Classics emphasizes on a noteworthy verdicts
Partner Nishant Shah reflects on the taxability of in the erstwhile IDT regime that are exemplary for
transactions in respect of online gaming industry the current GST regime. We enclose the Newsletter
as well as virtual digital assets and opines that with some interesting quotes from GST experts.
the prevailing times warrant regulatory guidelines
for online transactions. We hope you have a good time reading the 15th
issue of ‘Navigating GST’.
Industrial Policies incentives have acted as a
catalyst for Indian economy over the years. In Happy Reading!
the chapter titled State Industrial Policies – Key
Incentives, the authors take us through the trajectory
of India’s industrial development by discussing the
state industrial policies introduced for augmenting
economic growth by giving an impetus to local
manufacturing, domestic employment etc.
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C O N T E N T S
THOUGHT LEADERSHIP
The following chapter has been authored by Nishant Shah (Partner) - ELP
TECHNOLOGY v/s GST CONUNDRUM While the definition is wide, such payments are also
conditioned by the affirmation of certain factual
It is a known fact now that tax laws need to be requirements for it to be considered as “actionable
regularly amended to adapt to the evolution claim”. Entry 6 of Schedule III to the Central Goods
in technology. There have been innumerable and Services Tax Act, 2017 (“CGST Act”) which
instances of tax disputes/issues arising due to lists out transactions that shall be treated neither
technological innovations which have enabled as supply of goods nor services, includes therein
activities not earlier carried out in the normal course. “Actionable claims, other than lottery, betting
This in turn has resulted in the lack of sufficient and gambling”. At this point, it is important to also
analysis as to the tax treatment to be meted out understand the legal provisions comprised in Rule
vis-à-vis such activities. Recent instances of such 31A of the Central Goods and Services Tax Rules,
complications can be noticed in the taxability of 2017 (“CGST Rules”).
transactions relating to:
Actionable claims in the nature lottery, betting and
i. Online Gaming Activity (“OGA”)
gambling will be treated as transactions of supply
and value thereof for the purpose of levy of GST
ii. Transactions in Cryptos/Virtual Digital Assets
shall be determined in the manner set out in Rule
(“TC”)
31A of CGST Rules.
The introduction of Goods and Services Tax (“GST”)
has blurred the distinction between transactions In light of this understanding of certain basic
of goods and services by introducing the concept provisions of GST law, let us now evaluate the
of “Supply”. Along with the introduction of the concerns arising vis-à-vis transactions of OGA and
concept of supply we have seen the introduction TC, to understand the nature of term issues and
of transaction value which now co-relates to mitigation thereto.
the consideration paid for such supply. This
combination of taxability of supply at the value
determined on the basis of such consideration
has caused several concerns while evaluating
the taxability of transactions of the nature stated
above. Such complication arises mainly on
account of one or more factors under the GST
law which while taxing transactions of goods and
services has carved out an exception in relation
to the transaction of “actionable claims”. In this
Thought Leadership piece, we deliberate the
nuances arising due to transactions in nature of
OGA and TC, tax issues relating thereto and the
possible solutions to mitigate these issues.
Before we go to deliberate the transactions in

the nature of OGA and TC, it is important we
understand the meaning and concept of the
term “actionable claim”. The definition of the
term actionable claim for the purpose of GST
law has been adopted from the Transfer of
Property Act,1882’
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THOUGHT LEADERSHIP
ONLINE GAMING ACTIVITIES transactions of OGA raise complications on this

count. Ambiguities causes significant operational
In relation to OGA, there has been a lot of deliberation hazards for entrepreneurs and businesses owning
on whether some of these games are in the nature and operating such gaming apps.
of “games of skill” or “games of chance”. This
bifurcation is important to understand if the game A structured solution for such concerns based
is one to be considered as game of chance, which on past experience in case of mobile telephony,
then is akin to betting or gambling and thereby internet-based services etc. has been the
subject to GST on the value as determined under introduction of a clear definition for such activities by
Rule 31A of CGST Rules. One such game which regulatory authorities responsible for administering
has recently gained significant popularity is that and monitoring the conduct of such activity by
of fantasy sports, wherein different players carry businesses on a commercial basis. Here again, the
out activities of creating their own fantasy teams solution lies in the regulatory authority coming out
and gaining points based on the performance of with specific regulations for not only monitoring
the players in such team. In a recent judgement and standardizing OGA but also clearly defining
of the Hon’ble Bombay High Court, it has been the nature of the two payments i.e. contribution by
held that since the earning of the
players is not dependent upon
the winning or losing of particular
team in a real-world match on any
given day, such earnings cannot
be considered as amounting to
gambling, betting or wagering. The
judgement thereafter proceeds to
classify such nature of games to be
games of skills. Similar is the situation
in case of gaming apps that
enable its players to play rummy
or poker among themselves. While
the issue of nature of the game has
been settled, there still hovers and
remains open the aspect as to the
value of such gaming activity.
This issue arises on account of the

modus operandi adopted on these
gaming apps. A player on these
gaming apps is first required to
deposit a certain amount which
is his contribution to the total pool
of prize money to be distributed among winners. player in the pool and platform charges charged
The app owning entity charges a certain amount by the platform owning entity. This in turn could then
as platform usage fees from each player that is be adopted by the tax authorities in determining
deducted from his pool in proportion of the amount the tax implications on the OGA.
contributed by the player to the prize pool. The issue,
therefore, now is as to whether, (even if the game An attempt in this direction has already been
were not to be considered as one of betting or initiated by a Group of Ministers (GoM) constituted
gambling) the amount contributed by the players or under the Chairmanship of the Chief Minister of
the amount charged by the app owning entity (as Meghalaya. The GoM has been tasked to come
platform charge) is the consideration for the supply up with an analysis on nature of these payments
and subject to GST. While well-established legal and thereby the tax implications under the GST
principles require the existence of a supplier and a law. However, there still exists a lack of consensus
recipient for any transaction to constitute a supply, among the GoM in arriving at a decision in this
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THOUGHT LEADERSHIP
regard. The final report of GoM is expected to be value of crypto purchased or sold. From a GST
released after consultations with the industry and perspective, a concern arises whether such value
seeking a legal opinion. should be considered as a value for consideration
for supply of goods or services. The position in this
ACTIVITIES IN CRYPTOCURRENCY/VDA regard is dependent upon the classification of such
transactions as “goods” or “services” under GST. At
Similar to OGA, issues also arise in case of transactions present, transactions of purchase or sale of crypto
in cryptos/VDA. In fact, a detailed understanding is not subject to GST, since there remains non-clarity
of crypto operations reveal that three types of on classification of cryptos i.e. whether “goods” or
transactions get executed in purchase and sale of “services” or “security”.
cryptocurrencies by users on the digital platforms
owned by the crypto exchanges. In case of As regards the transaction under (ii) above, this
activities relating to purchase and sale of crypto, clearly can be termed as a transaction for the
the following transactions are carried out: supply of service by the crypto exchanges to the
users for enabling the purchase / sale of crypto
i. Placing of order by the user for the purchase/sale currency. However, in its purest sense if this is
of a fixed quantity of a specific crypto currency the nature of supply, it could very effectively be
and making payment in relation thereto; classified as the supply of “intermediary” services
and therefore subject to tax accordingly. Services
ii. Transaction Fee/ Brokerage charged by the in the nature of “intermediary” are taxed based
crypto exchanges for enabling/facilitating such on the location of the service provider. Such
purchase and sale of crypto; transactions will be executed through the digital
platforms of crypto exchanges
which are based on a server. Such
server may be located in India/
outside India, and thus, one may
wonder whether tax complications
could arise to determine the
applicable place of supply for
facilitation of such services, where
the crypto exchange/server is
located outside India. Guidance
from the definition of location of
service provider and the provisions
relating to determination of place
of supply would clearly facilitate in
identifying the taxing jurisdiction of
such services.
As regards the transaction under

(iii) above, a controversy arises
due to the divergent position
iii. Margin earned by crypto exchanges (difference adopted by various investing agencies and crypto
in the value of purchase and sale price of exchanges (based on their accounting treatment).
crypto) for certain specified transactions, where This is because the crypto exchanges consider such
the requirement by user is for purchase /sale of earnings as “profit”/ “margin” derived by trading
such crypto’s, which requires facilitation by the carried out on their own account rather than a
crypto exchange through execution of such “service fee” earned from the user. The investigating
transactions on third party crypto exchanges/ agencies on the other hand believe that such
wallet service providers. earning has arisen to the crypto exchanges only
because of the users placing an order by using
Here again, for transactions under (i) above, the the digital platform of the crypto exchange. This
amount paid/received by the user is towards the of course is subject to specific regulations if any,
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THOUGHT LEADERSHIP
being implemented restricting crypto exchanges thereto and the mitigation to these issues clearly
from earning margins on transactions executed on requires for the Government to be proactive in not
behalf of their users. just understanding but also taking charge of and
coming up with regulations on an expeditious basis
Even in case of crypto/VDA transactions there is relating to such innovative activities/transaction.
a need for issuance of regulations that stipulate
As one imagines, one contemplates one or more
guidelines for the manner and permissibility of
of the following to also become true in the coming
transactions, provide clear definitions to various
technical terms and to put to rest any speculation/ future:
ambiguity for treatment of crypto transactions
under other statutes including those concerning i. Creation of virtual existence in the nature of
taxation and foreign exchange regulations of these Metaverse;
transaction. In this regard, several nations through
their regulatory bodies have been proactively ii. Activities encompassing artificial intelligence;
issuing guidelines to regulate transactions in cryptos. and
The U.S. Securities and Exchange Commission
(SEC) is one example which is strictly overseeing iii. Activities relating to communications once
the activities of crypto exchanges and if such vertical take-off of automobiles is enabled.
exchanges do not cooperate
with the SEC, they are
considered to be operating
outside the law with the
risk of enforcement action
against them. Similarly, the
German Federal Tax Office
has set out strict guidelines on
how cryptocurrency buying,
trading and mining is taxed,
specifically clarifying that no
income tax would be levied
on sale of crypto assets after
holding them for one year.
Further, based on the recent

Concept Note on Central Bank
Digital Currency (CBDC) issued
by the FinTech Department
of RBI, next in line could
be the issuance of CBDCs
and therefore, transactions
relating thereto, and taxability
thereof would be facilitated if
regulations in this regard are
issued well in time to avoid any
ambiguity.
NEED OF THE HOUR
The affirmation to the

transactions is merely a
reflection of what is expected
in the future. Deliberation
ensuing the issues relating
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C O N T E N T S
STATE INDUSTRIAL POLICIES – KEY INCENTIVES
The following chapter has been authored by Sweta Rajan (Partner),

Varun Parmar (Associate Partner), Atharva Javalekar (Associate) - ELP
STATE INDUSTRIAL POLICIES – KEY INCENTIVES reduction of import tariffs leading to higher foreign
direct investment, integration of Indian firms into
Background global supply chains, and expansion of the share
of the private sector in Indian manufacturing
After achieving independence in 1947, there was were implemented. However, over the last
a sharp decline in the economic growth of India. three decades, economic growth has been led
India was in a combined situation of growing largely by the services sector, with the share of
unemployment and rampant inflation. One of manufacturing in India’s GDP averaging at around
the objectives was to accelerate the pace of 16 per cent between 1990 and 2015. In this context,
industrial development at the time when the the union government implemented the National
Constitution of India was still a work in progress. Manufacturing Policy in 2011 to boost the share of
To combat these problems, majority of the states/ manufacturing in GDP to 25 per cent and create
union territories introduced industrial policies. These 100 million jobs by 2022 (Department of Industrial
policies were intended to augment economic and Policy & Promotion (DIPP), 2011). The policy further
industrial development by encouraging Indian regarded State Governments, in the spirit of
manufacturing, providing employment to locals in competitive federalism, as being instrumental in
their respective states and accelerating exports to carrying out reforms to achieve this target.
compete with international products.
The Industrial Policy, 1991 and the National
Different states have their own independent Manufacturing Policy, 2011 at the central levels
policies but the object of all the policies can be have been supplemented by numerous state-
categorised as follows: level industrial policies implemented at various
points in time. These policies range from targeting
▪ Active government intervention to help create specific sectors to reforming various other sectors
entrepreneurs in a handful of high-productivity by providing adequate infrastructure and tax
sectors, thus creating positive spill-overs for the incentives to spur growth. While the importance
entire economy.
▪ “Horizontal” policies to provide

additional support to these sectors
through provision of infrastructure,
access to finance or subsidised
credit, skills’ training to workers
and creation of specialised export
promotion zones.
▪ Lastly, to protect nascent industries

from foreign competition with the
aim to develop such industries over a
period of time and capture dynamic
efficiency gains from future trade.
Since 1991, a number of economic

reforms have been implemented,
which paved the way for de-regulation
of industrial controls. An elaborate
trade and industrial policy focused on
liberalisation of the country’s borders,
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of an industrial policy and its effectiveness in its Type of unit and quantum of incentives
potential for job creation and formalisation of
enterprises has been widely debated, there is a Industrial Policies provide for an overall capping
need for empirical assessment of the correlations of the incentives. This overall capping is based
between implementation of these policies and on total capital investment made by the unit. The
resulting output and employment levels at the State Industrial policies categorise geographical
state-level. This article highlights the incentives regions into different blocks. Incentives available to
offered by different State Governments through units may vary on account of investment made in
their state industrial policies. the respective blocks. Already developed industrial
areas of the state may receive less incentives as
Industrial Policies in India compared to the less developed areas in the
state. Incentives may also vary on account of the
Industrial policies aim for manufacturing / service quantum of investment made by the unit in the
sector enterprises to set up their operations within respective state. Units are classified under different
the territorial boundary of the state/ union territory categories such as MSME’s, Large Units, Mega Units
by providing incentives and ease of doing business and Ultra Mega Units (by whatever name called).
one window clearance systems for attaining Units are classified based on account of investment
approvals required for setting up of the industry. made in plant and machinery and the employment
generated by the unit. The quantum of incentives
Different states in India have adopted industrial available to units vary under each of the state
policies which provide for incentives for new and industrial policies, however, the types of incentives
existing units after taking into consideration the are typically similar. If any unit is covered under the
category of ultra-mega (by whatever
name called) the unit can send a
detailed project report and apply for
a customised set of incentives.
Incentives available to units falling

under different categories are of two
types-
a) Direct exemption from payment of

any duty levied by the state
b) Reimbursement of the payments

(expenses/ interest/ tax) paid by the
unit
Following are the key incentives

available to units under state industrial
policies. It is important to note that
resources available in the particular state and the though the industrial policy provides for an overall
development which the unit will bring in the state. capping, incentive-wise capping per annum is also
The Industrial Policies are effective for a period of 5 provided under each incentive.
years with an option to renew the same for a further
period. These incentives are available to new units ▪ SGST Reimbursement – One of the most important
(i.e., those units which commence their commercial incentives available under an Industrial policy is
production after the policy comes into effect) or the reimbursement of net SGST. Net SGST means
existing units undertaking substantial expansion (i.e., the portion of SGST which has been paid in cash
units which have commenced their commercial after utilising Input Tax Credit. Reimbursement
production before the commencement of the of net SGST is the major component of the
policy and have undertaken more than 25% - 50% incentive (in the form of reimbursement)
investment in plant and machinery). available to the units. Some states provide for
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a condition that the end use of the product p.a. depending state to state. This incentive is
has to be in the same state where the product available for a period of 6-10 years.
has been manufactured. In this case the units
can maximise their reimbursement of net SGST ▪ Stamp Duty Exemption - Various states have
by adequate planning so as to fulfil the end use provided for 50% - 100% of exemption from
condition. The capping under this incentive is payment of stamp duty depending on the
from 80% -100% of the net SGST paid during the geographical area where the unit is situated,
year depending upon the category and block and employment proposed to be generated by
under which the unit is situated. This incentive the unit. The exemption is available only once at
is available over a period of 10-12 years the time of purchase of land for setting up the
depending state to state. industrial unit.
▪ Capital Subsidy – Under this incentive the unit ▪ Electricity Duty Exemption – Electricity duty is
is reimbursed a certain percentage of the exempted to all new industrial units set up in
investment in capital assets. This incentive may the state for the prescribed tenure (8-10 years)
be fixed or flexible. Fixed capital subsidy is where including for captive power plants for self-use.
the percentage of reimbursement is fixed over a
▪ Reimbursement of ITC Disallowed – Some states
also provide for reimbursement of disallowed ITC
commonly known as blocked credit. SGST paid
on building material and other capital goods
during construction and commissioning period,
in respect of which input tax credit is disallowed
under GST regime to the industries is reimbursed.
▪ Payroll Assistance - Industrial units providing

employment to differently abled workers or
workers from backward class categories are
provided with payroll/ employment/ training
assistance of Rs. 500-2000 per month for each
such worker.
▪ EPF Reimbursement – Many states have

provided for reimbursement of employer’s
contribution in provident fund as an incentive.
This reimbursement is based on a certain
percentage of the number of employees (skilled
or unskilled) and for a period of 5-10 years.
▪ Reimbursement of expenses incurred for

period of time and flexible is where the amount obtaining Patent Registration/ Quality
of subsidy fluctuates over the subsidy period. Certification – certain identified percentage of
This subsidy is available over all capital assets cost incurred for obtaining patent registration or
purchased whereas many states have put quality certification is also reimbursed by way of
forth a condition that value of land may not be incentive.
included while calculating the incentive under
this subsidy. As can be seen from above, a wide array of
incentives is made available to the companies
▪ Capital Interest Subsidy – Interest on loans setting up new units/ expansion of units. It would
availed by the units form public/ private be prudent to evaluate such policies to garner
financial institutions for procuring any plant optimum benefits. State incentives pave the
and machinery is reimbursed. Reimbursement way for India to become a preferred investment
in form of incentive is available from 5% -7% destination.
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C O N T E N T S
FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS
The following chapter has been authored by Ginita Bodani (Associate Partner),
Swati Agrawal (Senior Associate) - ELP
Spotlight Case Law authority in the Ministry of Civil Aviation to import

aircraft for providing non-scheduled (passenger
CESTAT, Ahmedabad Larger Bench in VRL Logistics services) or non-scheduled (charter) services;
Ltd. vs. Commissioner of Customs, Ahmedabad [TS- (ii) submission of an undertaking that aircraft
343-CESTAT-2022-CUST] shall be used only for providing non-scheduled
(passenger) services or non-scheduled (charter)
Other Cases services, (iii) assessee to undertake to pay an
amount equal to the applicable duty payable
1. Telangana Appellate Authority for Advance on the import of aircraft if the importer fails to
Ruling in Medha Servo Drives Pvt. Ltd. [TS-377- use the aircraft for the said specified purpose.
AAAR(TEL)-2022-GST]
- In the instant case, aircrafts imported by the
2. Bombay High Court in Vodafone Idea Limited
Appellant were operating under Non-Scheduled
vs The Union of India and ANR[TS-359-HC(BOM)
Operator (Passenger) Service permit issued by
2022-GST]
the Director General of Civil Aviation (‘DGCA’)
and such permits were renewed from time to
3. Supreme Court in Union of India vs Filco Trade
time.
Center Private Limited [TS-369-SC-2022-GST]
4. Andhra Pradesh High Court in Sembcorp Energy - The Customs Authorities sought to deny the
India Ltd vs. State of Andhra Pradesh [TS-468- benefit of exemption inter alia on the ground
HC(AP)-2022-GST] that the aircraft was used for private use/charter
services in complete violation of DGCA permits.
VRL Logistics Ltd. vs. Commissioner of Customs,
Ahmedabad [TS-343-CESTAT-2022-CUST] - Owing to conflicting views expressed by the
Hon’ble Tribunals in the case of Commissioner of
Facts: - Customs, New Delhi vs. Sameer Gehlot reported
at 2011 (263) E.L.T. 129 (Tri-Del.) and in King Rotors
- The Appellant is engaged in providing ‘non- & Air Charter P. Ltd. vs. C.C. (ACC & Import),
scheduled air transport (passenger service). Mumbai reported at 2011 (269) E.L.T. 343 (Tri-
The Appellant imported the aircraft and Mumbai), several questions were referred to the
claimed, in respect of the said aircraft, Larger Bench for determination.
exemption from customs duty under
the exemption Notification No. 61/2017
dated 03.05.2007.
- The exemption Notification No. 61/2017

dated 03.05.2007 grants ‘nil’ rate of
duty on import of aircraft for providing
non-scheduled (passenger) services
as well as non-scheduled (charter)
services subject to Condition No. 104
which is required to be fulfilled by an
importer of the aircraft for availing the
benefit of the exemption notification.
The conditions include (i) the assessee
at the stage of import should have
an approval from the competent
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Issue: ELP Comments
Availability of exemption from payment of Custom This decision is in line with the earlier decisions
Duty under Notification No. 61/2007 dated of the Supreme Court in Zuari Industries Ltd. vs.
03.05.2007 to the importer of an aircraft which had Commissioner of C. Ex. & Customs3, Titan Medical
been granted permit by the DGCA for operating Systems Pvt. Ltd. vs. Collector of Customs, New
non-scheduled (passenger) services. Delhi4 and Vadilal Chemicals Ltd. vs. State of Andhra
Pradesh5 wherein it was held that whenever a fiscal
Judgement: - benefit is granted on the basis of a certificate issued
by another statutory authority, it is only that such
- The benefit of exemption Notification No. statutory authority which is empowered to monitor
61/2007 dated 03.05.2007 can be availed for compliance of the conditions of the certificate and
aircraft imported for operating non-scheduled to initiate action, in case of non-compliance.
(passenger) services as well as non-scheduled
(charter) services; Medha Servo Drives Pvt. Ltd. [TS-377-AAAR(TEL)-
2022-GST]
- The Custom Authorities cannot examine the
validity of permission granted by the DGCA, in Facts:
the absence of cancellation of the permit by
the DGCA. - The Applicant is a
manufacturer of electronic
equipment for locomotives and
coaches for Indian Railways and
Metro Railways. The Applicant is
involved in the supply of design,
development, manufacture,
supply, testing and commissioning
of 152 sets of 25 KV AC micro-
processor controlled IGT based
3 phase propulsion system and
equipment to RDSO specification.
- In terms of the purchase

order, each set consists of
supply of multiple items including
- It is not mandatory for the importer to issue air both goods and services which are made in
tickets for providing non-scheduled (passenger) conjunction with each other for a single price
services. of Rs.4,77,82,716-00 per set [inclusive of 28% of
Integrated Goods & Services Tax].
- Civil Aviation Requirement (CAR) 2010 merely
amalgamates CAR 1999 and CAR 2000 to - Some of the items are Main traction converter,
provide a uniform code for operation of non- TCMS /Multiplexing system, Pneumatic system
scheduled air transport services. It has restated comprising of main air compressor along with
and codified the position stated earlier by the mounting frame, set of MCBs, contactors, relays,
DGCA through various clarifications and is inter vehicle couplers, supervision of installation,
explanatory in nature. training of personnel etc.
- The decision of the Division Bench in King - As per the payment terms, all payments are to
Motors case1 was not correct in holding that the be released for complete rake sets and not for
decision of the Tribunal in Sameer Gehlot case2 part supplies and after inspection and receipt of
was rendered per incuriam. material as per agreed delivery schedule of sets.
1
Supra 3
2007 (210) ELT 648 (S.C.)
2
Supra 4
2003 (151) ELT 254 (S.C.)
5
2005 (192) ELT 33 (S.C)
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- The Applicant contended that the supply made schedule of delivery mentions that the entire set
to Integral Coach Factory is not a mixed supply is to be delivered at once but not the individual
as the goods and services are supplied at items separately. Even as per terms of payment,
individual price separately but not for a single payment is done for the entire set and not
price. individual items, implying the supply is being
made for single price per unit.
Issue:
- Supplies involved are not naturally bundled,
Whether multiple supplies made to Integrated and no one supply can be identified as the
coach factory for a single price constitutes principal supply, therefore, it cannot be said
composite supply or mixed supply. to be composite supply. Thereby, the supply
satisfies all the pre-requisites to be termed as a
Judgement: “Mixed Supply”.
- For a supply to be termed as mixed supply, the Vodafone Idea Limited vs The Union of India and
determining factors are: ANR [TS-359-HC(BOM) 2022-GST]
a) there should be two or more individual Facts:

supplies,
- The Petitioner inter alia provides services in
b) the supplies should be made in conjunction the nature of international Inbound Roaming
with each other, Services (IIR) and International Long distance
(ILD) services to Foreign Telecom Operators
c) the supply should be made for a single (FTOs). By virtue of the said arrangement, any
price by a taxable person and customer of a FTO traveling to India from his
d) such supply does not constitute

a composite supply.
- When the purchase order is seen as

a whole, the Applicant is obligated
to design, develop, manufacture,
supply, testing and commissioning
of each set. The price agreed
upon by the Applicant and their
client includes the cost of design,
development, manufacture, supply,
testing and commissioning of each
set. Thus, though item wise pricing is
adopted in their annexures, but the
price still remains for the whole gamut
of supply of goods and supply of
services entrusted to the Applicant.
- Price break-up does not necessarily

imply that the items are being
supplied separately for separate
prices.
- The essential concomitant of the

present agreement is that they
should be supplied in conjunction with each usual place of residence (where he is a regular
other to function as one complete rake set. The subscriber of a telecom service provider) is able
ISSUE - 15
NAVIGATING GST 2.0
14
to use telecom services from the same service not the customers of FTO, place of supply ought
provider with the same contact number. to be determined in terms of Section 13(2) of the
IGST Act.
- The Petitioner treated the services so provided
to the FTO as export of services and filed - Agreed with the law pronounced in the case
application for refund of the Integrated Goods of Vodafone Essar Cellular Ltd.6 CST vs. Bayer
& Services Tax (IGST) paid on IIR and ILD services Material Science7), ABS India Ltd. vs. CST8 that
to the FTO during the period April to September customer’s customer cannot be your customer
2019. to hold that the Petitioner has provided services
to FTOs and not to the individual subscribers of
- The refund claim was rejected on the ground FTOs.
that services were supplied to the customer of
FTO and thereby the place of supply of services, ELP Comments
as determinable under Section 13(3)(b) of IGST,
was the State of Maharashtra and therefore, This decision clarifies the concept of recipient
would not constitute “Export of services”. of service under GST and recognizes the views
of Tribunals expressed in the erstwhile regime
- In appeal filed before the Joint Commissioner mentioned supra as correct.
(Appeals), the refund claim was allowed, and
Union of India vs Filco Trade Center Private Limited
thus, being aggrieved, the Department filed the
[TS-369-SC-2022-GST]
instant petition challenging the order passed by
the Appellate order.
Facts:
Issue:
- At the time of transition from erstwhile regime to
GST regime, several assessees were unable to
Whether the IIR and ILD services supplied by the
carry forward their unutilised input tax credit to
Petitioner constitute “export of service” under
the GST regime as provided under Section 140
Section 2(6) of the IGST Act.
of the CGST Act owing to technical glitches on
the GST portal. Being aggrieved, such assessees
Judgement:
filed petitions before their jurisdictional High
Courts inter alia praying that once credit
- The Petitioner is contractually obligated to
was rightly availed, the same becomes an
provide services to FTOs and payment is received
indefeasible vested right and cannot be denied
from FTO. The Petitioner neither enters into any
due to procedural infractions. Divergent views
agreement nor receives any payment from
were expressed by the High Courts on the said
the customer of FTO, therefore, FTO constitutes
“recipient of service” under Section 2(93) of the
Central Goods & Services Tax Act, 2017 [CGST
Act].
- Section 13(2) of IGST refers to the place of supply

of services as the location of the recipient of
services except in cases of Sub-section (3) to
(13) of Section 13. Section 13(3) of IGST identifies
the place of supply of services as the location
where the services are actually performed. The
provision of Section 13(3)(b) of IGST is applicable
in the case where services are supplied to an
individual as Section 13(3)(b) starts with the
words “service supplied to an individual”. Given
that the recipient in the instant case is FTO and
6
(2013) 31 STR 738 (Tri-Mum)
7
(2015) 38 STR 1206 (Tri-Mumbai)
8
(2009) 13 STR 65 (Tri-Bang)
ISSUE - 15
NAVIGATING GST 2.0
15
issue which is finally put to rest by the Hon’ble ELP Comments

Supreme Court vide this decision read with the
extension of 4 weeks granted in Miscellaneous This is a welcome decision in as much as the
Application Nos.1545-1546/2022. Hon’ble Supreme Court has as a last opportunity
allowed transition of unutilised credit to the GST
Judgement: regime. This further strengthens the settled view that
once credit is availed, it becomes an indefeasible
- Goods and Service Tax Network (GSTN) is vested right which cannot be varied especially
directed to open a common portal for filing on account of procedural lapses. In this regard,
concerned forms for availing Transitional Credit Circular No. 180/12/2022-GST dated 09.09.2022 has
through TRAN-1 and TRAN-2 for two months been issued by CBIC inter alia which prescribes the
w.e.f. 01.10.2022 30.11.2022. procedure for filing / revising of Forms TRAN-1 and
TRAN-2 by the assessees and verification thereof by
- Any aggrieved registered assessee may file the the concerned officers.
concerned forms or revise the already filed form,
irrespective of whether the taxpayer has filed a Accordingly, various High Courts like High Court of
writ petition before the High Court or whether Gujarat in Unique Infra Space Pvt. Ltd. vs. Union of
the case of the taxpayer has been decided by India, Madhya Pradesh High Court in Sapna Traders
Information Technology Grievance Redressal vs. Central Board of Indirect Taxes and Customs
Committee (ITGRC). & Ors. including Bombay High Court in the case
of Ess Infraproject Pvt. Ltd. vs. Union of India have
- GSTN has to ensure that there is no technical disposed of the Writ Petition in line with the Apex
glitch during the said time. Court’s decision to avail the benefit of the order.
- The concerned officer’s ought to verify the It is therefore advisable that the assesses file
veracity of the claim/transitional credit and their TRAN-1 & TRAN-2 forms during the period of
pass appropriate orders thereon on merits after 1.10.2022 to 30.11.2022 as this is a last opportunity
granting appropriate reasonable opportunity to to claim the transitional credit.
the parties concerned in a timely manner.
Sembcorp Energy India Ltd vs. State of Andhra
Pradesh [TS-468-HC(AP)-2022-GST]
Facts:
- The Petitioner entered into a Power Purchase

Agreement with Bangladesh Power
Development Board for supplying electricity/
electrical energy. A Regional Energy Account
(REA) report is issued on monthly basis by a
unit of Central Electricity Authority of Govt.
of India indicating therein the number of units
of electricity transmitted by each supplier of
electricity to a particular recipient. The report
also identifies the destination to which electricity
is supplied by the Petitioner.
- A refund claim was filed by the Petitioner for

refund of unutilised Input Tax Credit used in
export of the said electricity along with REA
report and all other requisite documents except
- Pursuant to such verification, the allowed the statement containing the number and date
Transitional credit is to be reflected in the of shipping bills. The Petitioner inter alia submitted
Electronic Credit Ledger. stating that shipping bill is not available as there
ISSUE - 15
NAVIGATING GST 2.0
16
is no requirement under the Customs Law, for of scheduled energy for export of electricity
filing of shipping bill or any similar documents issued by Regional Power Committee [RPC]
showing export of electrical energy as required Secretariat, as a part of Regional Energy
for physical export of tangible goods. Account [REA] which includes various details
including the number and date of the export
- However, the Department rejected the refund invoices, details of energy exported, tariff per
claim on the ground that the Petitioner failed to unit of export as per the agreement.
submit shipping bill as required under Rule 89(2)
(b) of Central Goods and Service Tax Rules, 2017 - Relying on the maxim ‘Lex Non Cogit ad
and failed to evidence export of electricity in impossibilia’, inter alia held that the Petitioner
Bangladesh. was justified in not producing shipping bills to
prove the quantity of energy units transmitted
Issue: and REA reports could be the basis to deal with
refund claim.
- Whether an application for refund of unutilized
ITC can be rejected on the ground of non- - Held that amended Rule 89(2) of CGST Rules
furnishing of Shipping Bill and Export General came to be amended only to clarify the anomaly
Manifest [EGM] in terms of Rule 89(2) of that was existing with regard to production of
Central Goods and Services Tax Rules, 2017 the material evidencing export of a thing which
[CGST Rules] evidencing delivery of electricity is intangible in nature. Thus, the amendment
from Bohrompur station, India to Bheramara cannot be said to be declaratory in nature, but
substation, Bangladesh to qualify as an “export it can only be a one, which would be curing
of goods” under Section 16 of the Integrated the defect by issuing necessary clarification as
Goods and Services Tax Act, 2017. to how transmission of electrical energy can
be proved and therefore, such amendment is
clarificatory in nature.
- The amendment will have a retrospective

operation basis the well settled principle
that a proviso, which remedies unintended
consequences, or supplies an obvious omission
is required to be treated as retrospective in
operation.
- It also held that any benefit that gets accrued by

way of legislation cannot be denied/curtailed,
more so, when it is clarificatory in nature like
the present one and as such it has to be made
Judgement: retrospective in operation.
- Production of shipping bills as proof of export ELP Comments

cannot be made applicable to electricity, as it
is impossible to produce shipping bill for export This decision re-emphasized the settled law that no
of electricity, since the Custom Law does not statute, except the statute dealing with procedure,
refer to electricity and shipping bill is a Customs shall be construed to have a retrospective operation
document. unless specifically provided for. The Hon’ble Court
also pointed out the said provision cannot be
- Pursuant to repeated representations before the applied retrospectively with the objective of
Government, Rule 89 of CGST Rules was modified reviving a barred right or taking away the accrued
vide Notification No. 14/2022- Central Tax (Rate) vested right in cases where the right of suit is barred
dated 05.07.2022 and the said amended rule under the law of limitation in force before the new
inter alia provides that the quantity of electricity provision came into operation and a vested right
transmitted can be proved basis the statement has accrued to another.
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NAVIGATING GST 2.0
17
C O N T E N T S
EXPERT SPEAKS
Mr. Nilesh Kambli - Chief Financial Officer at Star Health and Allied
Insurance Co. Ltd
Interview conducted by Stella Joseph (Partner) - ELP
1. It has been 5 years since the introduction of ▪ In the service tax period, the company use to
GST. How has your organisation dealt with the file two half yearly returns and assessment use
transition from the erstwhile Central Excise / VAT to happen in the state from where registration
regime to GST regime. has been taken. Now under the GST law the
company has to file two returns every month
GST was introduced in the year 2017 with the (GSTR 1 and GSTR3B) for each state. Star
objective of One Nation One Tax system. GST has health insurance has 29 GST registrations and
resulted in culmination of multiple taxes viz excise
company files 58 returns and one return under
duty, service tax, VAT, luxury tax etc. into a single tax
ISD registration each month.
across the country. The transitioning from erstwhile
service tax to GST has been very challenging and
▪ The Tax department has been strengthened
a great experience.
with additional manpower to ensure that
▪ The company had to make
major changes in its IT systems
comprising of core policy
issuance software’s and ERP
applications to cater to the
GST requirements.
▪ The policy schedules had to

be modified / redesigned
to incorporate mandatory
disclosures under GST Act like
GST rate, amount, HSN No,
recipients GST No, Issuance
office / state name etc.
▪ The employees working in

accounts, tax, and operations
has to be trained under the
new GST Act.
▪ Keeping pace with the GST

law has become challenging on account of
frequent changes being made in the GST Act − Monthly returns across all 29 states are filed
through issuance of notifications, circulars, on time,
clarifications, FAQs etc.
− notices received from each state GST
Compliance department are replied, and
▪ The compliance has increased manifold under − assessments /audits are handled
the GST. In the previous service tax regime, the
company had a centralized registration for all Input tax credit
its office across the country. Whereas under
the GST the company had to take separate The company is able to fully take the input
registration in each state / union territory where tax credit of the GST paid on inputs / services
it is operating. barring a few items.
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NAVIGATING GST 2.0
18
EXPERT SPEAKS
2. How much weightage do you give to tax and clarifications. The GST department has established
more so GST considerations while undertaking an Intelligence wing to plug the loopholes in the
business decisions? law, reduce revenue leakage, detect frauds and
to increase tax revenue. The tax authorities are
The company gives significant weightage to collating information from multiple sources like
taxation and to GST while making business decisions. Banks, Income tax, stock exchanges, tax payers
The company’s foremost objective is to ensure that etc and analysing them.
all its business processes / practices pertaining to
Sales, Procurements, customer servicing etc are 4. What are the key pain-points which are being
fully aligned with the tax laws including GST. The faced by the manner in which GST has been
compliance with the law is done in letter and spirit. implemented in India. What is your wish-list
from the GST Council (other than specific
3. In your view, has the orientation of tax authorities exemptions).
undergone a change with the introduction of
▪ Centralized registration
GST regime.
▪ Facility To file Revised Return
Yes.
▪ Reduce in GST rates on services including
The orientation of tax authorities has undergone
health insurance
a major change with the introduction of GST.
The GST is managed by the State governments ▪ Allow ability of GST input credit on health
and by the Central government simultaneously. insurance premiums to all tax payers
The Tax authorities have started to use the
automated systems to analyse the data furnished ▪ Simplified process for availment of input tax
through the monthly / annual returns and they
are sending letters/notices to tax payers seeking ▪ Consistency- no frequent changes in Act
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NAVIGATING GST 2.0
19
C O N T E N T S
LEGISLATION AT WORK - RECENT AMENDMENTS
The following chapter has been authored by Stella Joseph (Partner), Yash
Desai (Senior Associate), Anushree Kothari (Associate) - ELP
LEGISLATIVE UPDATES
Sr. No. Particular Summary

1 GST Collections (June ▪ The GST collections in June 2022 were INR 1.44 lakh crore, which were
2022, July 2022 & 56% higher than the GST revenues in the same month last year.
August 2022)
▪ The GST collections in July 2022 were INR 1.48 crore, which is the
second highest ever and 28% higher than the revenues in the same
month last year.
▪ The GST collections in August 2022 were INR 1.43 lakh crore, which is
28% higher than the revenues in the same month last year.
2 Office Memorandum ▪ The Government in consultation with 47th GST Council Meet, forms a
dated 6th July 2022 Group of Ministers (“GoM”), with Deputy Chief Minister of Haryana
serving as Convenor, to recommend the necessary amendments
to the statute for the establishment of the GST Appellate Tribunal
(GSTAT).
▪ The recommendation is required to confirm with following legislative

requirements:
(a) maintain the right federal balance,
(b) are in line with the overall objective of uniform taxation within the
country,
(c) are in line with the principles outlined in judgements of courts in

relation to various aspects of Tribunals and are legally sustainable..
3 Notification No. ▪ CBIC exempts taxpayers having aggregate turnover of up to INR 2
10/2022-Central crore from filing annual return in Form GSTR-9/9A for the FY 2021-22.
Tax dated July 5, 2022
▪ This will provide relief to small, registered persons having an aggregate
turnover up to INR 2 crores. The said relaxation was also provided for
the FY 2017-18, 2018-19, 2019-20 and 2020-21.
4 Notification No. ▪ The time limit for issuance of order under Section 73(10) of the CGST
13/2022-Central Act towards recovery of tax not paid or short paid or Input tax credit
Tax dated July 5, 2022 wrongly availed or utilized, in respect of the FY2017-18 has been
extended till September 30, 2023.
▪ For the purposes of computing the time limit for issuance of order
under Section 73(10) of the CGST Act towards recovery of erroneous
refund, the period from March 01, 2020, to February 28, 2022 to be
excluded.
▪ The time period from March 01, 2020, to February 28, 2020, to be
excluded for computation of the limitation period for filing application
of refund under Section 54 or Section 55 of CGST Act.
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20
5 Notification No. ▪ For reversal of common credit under Rule 42 and Rule 43 of CGST
14/2022-Central Tax Rules, the value of duty credit scrips shall be excluded in computation
dated July 5, 2022 of aggregate value of exempt supplies. Therefore, credit of common
services is available, and not that of input services that are directly
used.
▪ Taxpayers having aggregate turnover exceeding INR 20 crores in any

of the FY from 2017-18 and onwards, but not mandated to generate
e-invoice/IRN shall be required to provide a declaration to that effect
in the invoices issued by them.
▪ The format of Form GSTR 3B has been revised to include reporting of

supply of services through aggregators/e-commerce operators, the
tax on which is paid by such operators.
▪ For deposits made in electronic cash ledger, Unified Payment

Interface (UPI) from any bank or Immediate Payment Services (IMPS)
from any bank has been added as other modes of payment. With
UPI emerging as the preferred payment mode for a large segment
in India, allowing of GST payment through the said mechanism is
another step closer to the leitmotif ‘Digital India’.
▪ Rule 88B has been inserted in the CGST Rules to provide for the manner
of calculating interest leviable under Section 50 of the CGST Act.
a. For late filing of return, interest shall be calculated on the net tax
liability paid by debiting electronic cash ledger for the period of
delay in filing in the return
b. For reasons other than above, interest shall be calculated on the

total amount of tax which remains unpaid, for the period starting
from the due of payment of tax till the actual date of payment.
c. For ITC wrongly availed and utilized, interest shall be calculated

on such ITC for the period starting from the due of payment of
tax till the actual date of payment. (Wrongly availed ITC shall be
deemed to be utilized when the balance in the electronic credit
ledger falls below the said amount of ITC and to the extent by
which the balance in electronic credit ledger falls below the
amount of ITC wrongly availed)
▪ Amendment to the formula under Rule 89(5) of CGST Rules for grant
of refund under the Inverted duty structure:
“Maximum Refund Amount = {(Turnover of inverted rated supply of

goods and services) x Net ITC ÷ Adjusted Total Turnover} - {tax payable
on such inverted rated supply of goods and services x (Net ITC÷ ITC
availed on inputs and input services)}”
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NAVIGATING GST 2.0
21
6 Circular No. ▪ ITC is allowed on supplies mentioned in Section 17(5)(b) of CGST Act
172/05/2022-GST if they are obligatorily provided by an employer to its employee
dated July 6, 2022 under any law for the time being in force. With this clarification, all
services including food, life insurance, rent-a-cab etc. if provided by
employers against mandatory requirement under any law would be
allowed as ITC.
▪ Scope of leasing services referred in section 17(5)(b)(i) of CGST Act

applicable only to leasing of motor vehicles, vessels and aircrafts and
not all other goods. This clarification brings to rest a potential ambiguity
on leasing being read as a standalone term in Section 17(5)(b) of the
CGST Act and restrictions in reference to motor vehicles, vessels or
aircraft only being read in the context of renting or hiring.
▪ Perquisites provided by the employer to the employee in terms of

contractual agreement entered into between the employer and the
employee, will not be subjected to GST. While the above clarification
should help bring certainty to businesses, the scope of contractual
arrangement remains an open area; with certain perquisites being
granted without an explicitly agreed arrangement on the same.
▪ Amount in Electronic Credit Ledger (ECL) can be used for any

payment towards output tax, whether self-assessed or paid as a
consequence of any proceeding, except for tax liability under RCM.
Further, ECL cannot be used for payment of interest, penalty, fees or
other amounts (except output tax) payable under the GST laws and
payment of refunds wrongly sanctioned when the original refund was
sanctioned in cash
7 Notification No. ▪ Government, in pursuance of recommendations by GST Council,

17/2022-Central Tax made e-invoicing mandatory for taxpayers having an aggregate
(Rate) dated August turnover of INR 10 crore or more with effect from October 1, 2022.
1, 2022
8 Circular No. ▪ CBIC clarifies applicability of GST on (i) payments in the nature of
178/10/2022-GST liquidated damage, compensation, penalty, cancellation charges,
dated 3rd August, late payment surcharge etc. arising out of breach of contract or
2022 otherwise; and (ii) scope of the entry at para 5 (e) of Schedule II of
CGST Act.
▪ Agreeing to the obligation to refrain from an act- includes situations of

non-compete agreements, where one party agrees not to compete
with the other party in a product/service against a consideration.
▪ Agreeing to the obligation to tolerate an act or a situation – Example

would include activities of a shopkeeper allowing a hawker to operate
from the common pavement in front of his shop against a monthly
payment, or tolerating an act against payment of an agreed sum
▪ Agreeing to the obligation to do an act- Example would include

where an industrial unit agrees to install equipment for zero emission/
discharge at the behest of a neighbouring residential complex against
a consideration paid by such complex, even though the emission/
discharge from the industrial unit was within permissible limits and
there was no legal obligation upon the individual unit to do so.
ISSUE - 15
NAVIGATING GST 2.0
22
▪ Service of agreeing to the obligation to refrain from an act or to tolerate

an act or a situation, or to do an act is nothing but a contractual
agreement.
▪ Therefore, the above three must be under an “agreement” or a

“contract” (whether express or implied) to fall within the ambit of
entry 5(e).
▪ Based on the above, it is clarified that liquidated damages,

compensation, cheque dishonor/ penalty, forfeiture of salary in
the event an employee leaving before minimum agreed period,
cancellation charges, late payment surcharge, do not have an
express or implied agreement/contract to refrain from or tolerate an
act, and therefore are not taxable.
9 Circular No. ▪ CBIC following the direction of Hon’ble Supreme Court in Union of
180/12/2022-GST India vs Filco Trade Center Pvt Ltd [SLP(C) No. 32709-32710] dated
dated 9th September, 22.07.2022 reopened the filing of Form GST TRANS-1/TRANS-2 from
2022 01.10.2022 to 30.11.2022.
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NAVIGATING GST 2.0
23
C O N T E N T S
ALLIED LAWS
The following chapter has been authored by Niraj Hande (Principal Associate),
Milan Soni (Associate), Ishabh Verma (Associate) - ELP
Customs Tariff Notification Notification no. 42/2022-Customs dt. 13.07.2022 -

Seeks to amend notification No. 51/96- Customs
Notification no. 38/2022-Customs dt. 04.07.2022 - dated 23rd July 1996
dated 13th April 2022 CBIC has issued Notification No. 42/2022 – Customs
dated 13.07.2022 vide which integrated tax
Central Board of Indirect Taxes and Customs leviable under sub-section (7) of section 3 of the
(‘CBIC’ or ‘Board’) has issued Notification No. said Customs Tariff Act shall not be exempted under
38/2022 – Customs dated 04.07.2022 vide which notification no. 51/96- Customs dt. 23.07.1996. This
implementation date of notification no. 21/2022- notification shall come into force with effect from
Customs dt. 13.04.2022 was changed to 31st the 18.07.2022.
October, 2022. This notification shall come into
force with immediate effect.
Notification no. 39/2022-Customs dt. 12.07.2022 -

dated 30th June 2017
CBIC has issued Notification No. 39/2022 – Customs

dated 12.07.2022 vide which under sr. no. 515A of
the table, CTH 8529 has been substituted by 8524
in respect of notification no. 50/2017- Customs dt.
30.06.2017. This notification shall come into force
with immediate effect.

dated 30th June 2017

dated 13.07.2022 vide which Diethylcarbamazine
(DEC) tablets was inserted in the tariff table along
with condition no. 113 in the annexure in respect of
DEC tablets. This notification shall come into force
dated 30th April 2022
with effect from the 18.07.2022.
Notification no. 41/2022-Customs dt. 13.07.2022 - CBIC has issued Notification No. 43/2022 – Customs
Seeks to amend notification No. 19/2019- Customs dated 20.07.2022 vide which condition no. 2 as
dated 6th July 2019 to allow other units to avail specified in notification no. 22/2022- Customs
benefit of the said notification dt. 30.04.2022 has been amended. As per the
notification, the IEC to be mentioned in TRQ
CBIC has issued Notification No. 41/2022 – Customs authorization as per condition no. 1 shall be mean
dated 13.07.2022 vide which ‘other entities’ in the IEC of the nominated agency by RBI/IFSCA/
addition to the Ministry of Defense, Defense Forces, DGFT. Further, the TRQ authorization is required
Defense Public Sector Units, Other Public Sector to specify GSTIN of the jewellery manufacturer to
Units can avail benefit of the notification no. whom the TRQ is assigned. This notification is in
19/2019 dt. 06.07.2019. This notification shall come respect of India-UAE Comprehensive Economic
into force with effect from the 18.07.2022. Partnership Agreement (“CEPA”).
ISSUE - 15
NAVIGATING GST 2.0
24
ALLIED LAWS
Notification no. 44/2022-Customs dt. 23.07.2022 and CBIC has issued Notification No. 47/2022 – Customs
Notification no. 46/2022- Customs dt. 31.08.2022- dated 07.09.2022 vide which importers and
Seeks to amend notification No. 49/2021- Customs exporters who are receiving supply for the intended
dated 13th October 2021 purpose under notification no. 56/2000-Customs dt.
05.05.2000 shall now follow applicable procedure
CBIC has issued Notification No. 44/2022 – Customs as specified under in the Customs (Import of Goods
dated 23.07.2022 which when read with subsequent at Concessional Rate of Duty) Rules, 2017. This
notification no. 46/2022- Customs dated 31.08.2022 notification shall come into force with immediate
has specified that notification no. 49/2021 dt. effect.
13.10.2021 which exempted specified goods from
Agriculture Infrastructure and Development Cess in Notification no. 48/2022-Customs dt. 07.09.2022
excess from the specified rate shall be applicable Seeks to amend notification No. 57/2000- Customs
till (and inclusive of) 31st March 2023. dated 8th May 2000

dated 07.09.2022 amending notification no.
57/2000- Customs dt. 08.05.2000 vide which silver,
gold and platinum (i.e. under headings 7106,
7108 and 7110) imported into India under various
specified schemes is required to comply with
applicable procedure under Customs (Import of
Goods at Concessional Rate of Duty) Rules, 2017.
Further, the said notification also prescribed that
that the nominated agency is required to follow
applicable procedure under Policy Circular No. 39
(RE-2010)/2009-14, dt. 19.08.2011, para 4.41 of the
Notification no. 45/2022-Customs dt. 31.08.2022
Foreign Trade Policy (2015-20) and para 4.94 of the
Hand Book of Procedures (2015-20). This notification
dated 23rd December 2010
shall come into force with immediate effect.
dated 31.08.2022 vide which various changes were Notification no. 49/2022-Customs dt. 08.09.2022
carried out in notification no. 130/2010- Customs dt. Seeks to the Second Schedule of the Customs Tariff
23.12.2010 which stated that specified goods when Act, 1975
imported into India via specified airlines shall be
exempted from Customs duty. The said notification CBIC has issued Notification No. 49/2022 – Customs
omitted various airlines and inserted United Airlines dated 08.09.2022 vide which the below mentioned
under Sr. No. 9. This notification shall come into entries were inserted in the Second Schedule of the
force with immediate effect. Customs Tariff Act, 1975. This notification shall come
into force on 09.09.2022.
Notification no. 46/2022-Customs dt. 31.08.2022
Seeks to amend notification No. 48/2021- Customs (1) (2) (3) (4)
dated 13th October 2021
6A 1006 10 Rice in the husk 20%
CBIC has issued Notification No. 46/2022 – Customs (paddy or rough)
dated 31.08.2022 vide which validity of notification
6B 1006 20 Husked (brown) rice 20%
no. 48/2021- Customs dt. 13.10.2021 was extended
till 31st March 2023. This notification shall come into 7A 1006 30 90 Semi-milled or wholly- 20%
force with immediate effect. milled rice, whether or
not polished or glazed
Notification no. 47/2022-Customs dt. 07.09.2022 (other than Parboiled
Seeks to amend notification No. 56/2000- Customs rice and Basmati rice)
dated 5th May 2000
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ALLIED LAWS
Customs Anti-Dumping Notifications no. 25/2022-Customs (ADD) dated 18.08.2022].
Initiation of levy of Anti-dumping Duty on various - Toluene di-isocyanate under CTH 29291020
imports: originating from China PR or Korea RP and
exported out of China PR and Korea RP a
The Central Government has initiated levy of Anti- provisional anti-dumping duty at a rate equal to
Dumping Duty on imports of: the difference between the landed value and
amount specified in the notification. [Notification
- ‘Saturated Fatty Alcohols’ originating in,
or exported from Indonesia, Malaysia and no. 28/2022- Customs (ADD) dated 21.09.2022]
Thailand at rate as specified per unit and
Extension of levy of Anti-dumping Duty on various
currency in the notification thus amending
notification no. 28/2018- Customs (ADD) dated imports
25.05.2018. However, the time period in respect
The Central Government has extended levy of
of notification 28/2018- Customs (ADD) has
not been changed [Notification no. 23/2022- Anti-Dumping Duty on imports of:
Customs (ADD) dated 12.07.2022].
- ‘Jute Products’ falling under Tariff Headings 5307,
- ‘Opal Glassware’ originating or exported from 5310, 5607 or 6305 originating or exported from
the country as specified in the table and at a Bangladesh or Nepal amending notification no.
rate as specified in the table below for a period 01/2017- Customs (ADD) dated 05.01.2017 till
of years. [Notification no. 24/2022 - Customs 31.12.2022 [Notification no. 26/2022 - Customs
(ADD) dated 03.08.2022] (ADD) dated 31.08.2022].
Sl. No. Tariff Description Country of Origin Country of Export Producer Rate of Duty (%)
Heading of Goods
(1) (2) (3) (4) (5) (6) (7)
1. 7013 Opal People’s Republic of Any country Any 30.64

Glassware China including People’s
Republic of China
2. 7013 Opal Any country other People’s Republic of Any 30.64
Glassware than People’s China
Republic of China
and United Arab
Emirates
3. 7013 Opal United Arab Emirates Any country Any 4.38
Glassware including United
Arab Emirates
4. 7013 Opal People’s Republic United Arab Emirates Any 4.48

Glassware of China and United
Arab Emirates
- Goods under Chapter 29 originating from China Customs Non-Tariff Notifications

PR or Korea RP and exported out of China PR
and Korea RP a provisional anti-dumping duty Notification No. 59/2022 - Customs (N.T.) dated
12.07.2022: Controlled Delivery Regulations
at a rate equal to the difference between
the landed value and amount specified in Notification no. 59/2022 – Customs (N.T.) has
the notification. The said anti-dumping duty is notified Controlled Delivery (Customs) Regulation
effective for a period of six months [Notification which specifies the process and other ancillary
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ALLIED LAWS
requirements in respect of controlled delivery at Concessional Rate of Duty or for Specified End
under Section 109A of the Customs Act. Use) Rules, 2022 which prescribes the procedure
and other ancillary requirements to be followed
Notification No. 61/2022 - Customs (N.T.) dated when importing goods at a concessional rate for
14.07.2022 – Notification of proper officer under specified use under a notification.
Section 109A
Notification No. 75/2022 - Customs (N.T.) dated
Notification no. 61/2022 – Customs (N.T.) dated 14.09.2022 – Amendment Notification
14.07.2022 has notified that the Deputy Director
of Revenue Intelligence or Assistant Director of Notification no. 75/2022 – Customs (N.T.) dated
Revenue Intelligence shall be the proper officer 14.09.2022 has amended GSR - 655(E) dated
under Section 109A of the Customs Act. 23.09.2021 whereby sub-clause (2) of clause 4,
sub-clause (5) of clause 5 and the words “or the
Notification No. 63/2022 - Customs (N.T.) dated transferee” have been omitted.
20.07.2022 – Amendment of Authority for Advance
Rulings
Notification no. 63/2022 – Customs (N.T.) dated

20.07.2022 has notified the Customs Authority for
Advance Rulings (Amendment) Regulations, 2022.
The said amendment regulations have amended,
omitted and inserted various new regulations
and sub-regulations in the Customs Authority for
Advance Rulings Regulations, 2021.

08.08.2022 – Passenger Name Record Information Notification No. 76/2022 - Customs (N.T.) dated
Regulations 14.09.2022 – Amendment Notification
Notification no. 67/2022 – Customs (N.T.) dated Notification no. 76/2022 – Customs (N.T.) dated
08.08.2022 has notified Passenger Name Record 14.09.2022 has amended GSR - 663(E) dated
Information Regulations, 2022 in respect of 24.09.2021 whereby sub-clause (2) of clause 4,
management of data and other ancillary activities sub-clause (5) of clause 5 and the words “or the
in connection to passenger travelling via aircrafts. transferee” have been omitted.
Notification No. 69/2022 - Customs (N.T.) dated Notification No. 79/2022 - Customs (N.T.) dated
22.08.2022 – Amendment of Compounding of 15.09.2022 – Amendment Notification
Offences
Notification no. 69/2022 – Customs (N.T.) dated 15.09.2022 has notified Electronic Duty Credit
22.07.2022 has notified penalties in respect of Ledger (Amendment) Regulations, 2021 whereby
offences specified under Section 135AA of the time period under sub-regulation (2) of Regulation
Customs Act. Further, the amendment notification 6 and sub-regulation (3) of Regulation 7 has been
has also made changes to Rule 6 and 7 of the increased to a period of two years from one year.
Customs (Compounding of Offences) Rules, 2005.
Notification No. 74/2022 - Customs (N.T.) dated 15.09.2022: Exchange Rates
09.09.2022 – Customs (Import of Goods at
Concessional Rate of Duty or for Specified End Use) Notification no. 78/2022 – Customs (N.T.) has
Rules, 2022 determined the rate of exchange of conversion
for specified foreign currencies specified into
Notification no. 74/2022 – Customs (N.T.) dated Indian currency or vice versa, with effect from 16th
09.09.2022 has notified Customs (Import of Goods September, 2022, for exports and imports
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Notification No. 77/2022 - Customs (N.T.) dated The said notifications came in force on 16.09.2022.
15.09.2022 - Revision of Tariff Values
Notification no. 77/2022 – Customs (N.T.) dated 23.09.2022 – Amendment Notification
15.09.2022 has notified Tariff values in respect of
various goods falling under Chapter 08, 15, 74 Notification no. 81/2022 – Customs (N.T.) dated
and 98. Revisions in respect of Chapter 71 are 23.09.2022 has notified Courier Imports and Exports
reproduced herein below: (Electronic Declaration and Processing) Second
Chapter/
Heading/Sub- Tariff Value
Sr. No. Description of Goods
Heading/Tariff (US $)
Item
(1) (2) (3) (4)
1. 71 or 98 Gold, in any form, in respect of which the benefit of 549 per 10 grams
entries at serial number 356 of the Notification No.
50/2017-Customs dated 30.06.2017 is availed
2. 71 or 98 Silver, in any form, in respect of which the benefit of 635 per Kilogram
entries at serial number 357 of the Notification No.
50/2017-Customs dated 30.06.2017 is availed
3. 71 (i) Silver, in any form, other than medallions and silver 635 per Kilogram
coins having silver content not below 99.9% or semi-
manufactured forms of silver falling under sub-heading
7106 92;
(ii) Medallions and silver coins having silver content not

below 99.9% or semi-manufactured forms of silver falling
under sub-heading 7106 92, other than imports of such
goods through post, courier or baggage.
Explanation. - For the purposes of this entry, silver in any

form shall not include foreign currency coins, jewellery
made of silver or articles made of silver.
4. 71 (i) Gold bars, other than tola bars, bearing manufacturer’s 549 per 10 grams
or refiner’s engraved serial number and weight expressed
in metric units;
(ii) Gold coins having gold content not below 99.5% and
gold findings, other than imports of such goods through
post, courier or baggage.
Explanation. - For the purposes of this entry, “gold findings”

means a small component such as hook, clasp, clamp,
pin, catch, screw back used to hold the whole or a part
of a piece of Jewellery in place.
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Amendment Regulations, 2022 whereby various or specified exports viz. reefer containers with
amendments in respect of E-Commerce imports perishable/ temperature sensitive export goods
in the Courier Imports and Exports (Electronic sealed in the presence of Customs officials only or
Declaration and Processing) Regulations, 2010 has goods exported under free Shipping Bills only.
been notified.
Circular No. 12/2022-Customs dt. 16.08.2022 and
Notification No. 82/2022 - Customs (N.T.) dated Circular No. 13/2022 dt. 16.08.2022 – Revision
23.09.2022 – Prohibition of Export of Map Data of guidelines in respect of Offences under the
Customs Act
23.09.2022 has prohibited export of maps and The said circulars revised guidelines for launching
geospatial data of spatial accuracy and value of Prosecution in relation to offences punishable
finer than threshold values as prescribed in the under the Customs Act in addition to revision of
notification in the interest and security of India guidelines on arrest and bail on offences under
the Customs Act Such revision is applicable in
Customs Circulars respect of baggage and outright smuggling cases,
appraising cases / commercial frauds etc.
Circular No. 11/2022-Customs dt. 29.07.2022 -
Extension of Customs clearances beyond normal Circular No. 16/2022-Customs dt. 29.08.2022 -
working hours in Inland Container Depot(s) Standard Examination Orders through RMS
The said circular issued an advisory to all the Pr. In order to curtail variations in examination orders,
Chief / Chief Commissioners, having jurisdictions the Board has decided to implement system-
over Inland Container Depots (ICDs) to extend generated centralized examination orders in a
Customs clearance beyond normal working hours phased manner, in case of risk-based selection for
in any of the following ways: (i) On a 24X7 basis examination after assessment. Accordingly, Phase
in line with Board guidelines for Sea Ports and Air 1 for the abovementioned program has been
Cargos/Airports, or (ii) Custom clearance may be initiated.
extended on all working days with specified timings
or, (iii) Customs clearance may be extended The standardized examination orders thus
beyond normal working hours on specified days of generated by RMS will be visible to Assessing
the week with specified timings. Officers during the assessment. While these RMS-
generated standardised examination orders will
Such extension could be for specified imports i.e. be the new norm, the Assessing officer will have
goods covered by ‘facilitated’ Bills of Entry only, the option of adding any additional examination
instruction/order to the pre-populated
RMS-generated examination order, if
necessary. The said Circular in this regard,
specifies the procedure to be followed
and guidelines for proper implementation
by field officers.
Circular No. 19/2022-Customs dt.

14.09.2022 – Movement of goods from
ICD to Bangladesh
The said Circular specifies detailed

procedure that is required to be followed
to move sealed containers from ICD to
Bangladesh using inland waterways as
agreed between India and Bangladesh
under the Protocol on Inland Water Transit
and Trade (PIWTT). The said circular while
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dividing the journey in two parts, prescribed the - Notification No. 19/2015-20 dated 07.07.2022 -
procedure and compliances to be followed while Amendment in policy condition 4(c), 3(c) and
transporting such goods. 3(c) of Chapter 72, 73 and 86 respectively of ITC
(HS) Schedule - I (Import Policy).
DGFT Circulars
- Notification No. 20/2015-20 dated 07.07.2022 –
Policy Circular No. 41/2015-20 dated 05.07.2022 – Various amendments in import policy conditions
Implementation of paper Import Monitoring System under ITC (HS) 2022, Schedule - I (Import Policy)
(PIMS) and Clarification in respect of import at SEZ/ to sync the same with the Finance Act, 2022.
FTWZ/EOU and further import
- Notification No. 22/2015-20 dated 20.07.2022
The said Policy circular clarified that PIMS registration - Amendment in import policy condition of
is required at the point of import by a unit in SEZ/ goods under ITC (HS) 0511 99 99 of ITC (HS) 2022,
FTWZ or at the time of import by an EOU of the items Schedule - I (Import Policy).
covered under PIMS. On import from SEZ/FTWZ/EOU
into DTA, PIMS is not mandatory if no change in - Notification No. 23/2015-20 dated 01.08.2022
paper has taken place, however, if a change in - Amendment in import policy condition of
CTH has occurred then registration under PIMS is compounds containing pyrimidine rings in the
required. ITC (HS) 29335200 of ITC(HS) 2022, Schedule - I
(Import Policy).
Policy Circular No. 42/2015-20 dated 27.07.2022 –
Clarifications in respect of NFMIMS
The said policy circular clarifies issues in respect of

NFMIMS such as applicability when imported under
Advance Authorization etc. and other clarifications
in respect of QCO.
Policy Circular No. 43/2015-20 dated 27.07.2022 –

Clarifications in EPCG
The said circular clarifies that since requirement for

submission of Bill of Entry (BoE) for supplies made to
SEZ in respect of Advance Authorization has been
relaxed, other corroborative documents such as
ARE-I form duly attested by jurisdictional excise
authority of EPCG authorization holder etc. may
also be furnished.
- Notification No. 24/2015-20 dated 04.08.2022
DGFT Notifications - Amendment in import policy condition of
Cyclanes, Cyclenes and Cycloterpenes in the
DGFT Notifications in relation to Amendment in the ITC (HS) 29021100 of ITC (HS) 2022, Schedule - I
import policy conditions: (Import Policy).
- Notification No. 17/2015-20 dated 04.07.2022 - Notification No. 26/2015-20 dated 10.08.2022 -
- Amendment in export policy condition of Amendment in import policy condition no. 3(c)
Potatoes in the ITC (HS) 0701 90 00 of ITC (HS) and 1(c) of Chapter 74 and 76 respectively of
Schedule - II (Export Policy). ITC (HS) 2022, Schedule - I (Import Policy).
- Notification No. 18/2015-20 dated 06.07.2022 - - Notification No. 28/2015-20 dated 25.08.2022
Amendment in import policy condition of Wheat - Amendment in export policy conditions
Flour (Atta) in the ITC (HS) 1101 of ITC (HS) 2022, of various forms of rice under ITC(HS) 2022,
Schedule - I (Import Policy). Schedule - I (Export Policy).
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- Notification No. 30/2015-20 dated 27.08.2022 - 2020 whereby Integrated Tax and Compensation
Amendment in export policy condition of Wheat Cess under Advance Authorization, EPCG and EOU
in the ITC (HS) 1101 of ITC (HS) 2018, Schedule - II are exempted as per the specified notifications.
(Export Policy).
Notification No. 21/2015-20 dated 08.07.2022 –
- Notification No. 31/2015-20 dated 08.09.2022 - Notification of Board of Trade (BoT)
Amendment in export policy condition of Broken
Rice in the ITC (HS) 1006 40 00 of ITC (HS) 2022, The Directorate General of Foreign Trade (‘DGFT’)
Schedule - II (Export Policy). vide Notification No. 21/2015-20 dated 08.07.2022
notified the official and ex-officio members of the
- Notification No. 32/2015-20 dated 14.09.2022 Board of Trade.
- Amendment in import policy condition of
Pet Flake (Chip) in the ITC (HS) 39076110 and Notification No. 33/2015-20 dated 16.09.2022 –
39076930 of ITC (HS) 2022, Schedule - I (Import Insertion of Para 2.52(d) in the FTP
Policy).
The Directorate General of Foreign Trade (‘DGFT’)
Notification No. 15/2015-20 dated 01.07.2022 - vide Notification No. 33/2015-20 dated 16.09.2022
Extension in deadlines for submission of applications has inserted Para 2.52(d) in the FTP, 2015-2020
under MEIS for export made in the 4-month period to permit invoicing, payment and settlement of
i.e. September to December 2020 exports and imports in INR in sync with RBI’s A.P.
(DIR Series) Circular No. 10 dated 11.07.2022.
The Directorate General of Foreign Trade (‘DGFT’)
vide Notification No. 15/2015-20 dated 01.07.2022 DGFT Public Notice
Public Notice No. 18/2015-20 dated 19.07.2022

– Amendment of Appendix 2E of FTP, 2015-20

has amended Appendix 2E of the FTP, 2015-
20 and hence revised names, address and
contact details of agencies authorized to
issue Certificate of Origin (Non-Preferential).

– Amendment Standard Input and Output
Norms (SION)

has carried out amendment of serial numbers
provided relaxations in respect of deadlines for C594, C791, C792, C793, C794, C795, C796 and
submission of applications under MEIS for export C831 of SION.
made between September 2022 and December
2022. Effectively, the new deadline for submitting Public Notice No. 20/2015-20 dated 01.08.2022 –
application under MEIS for exports made between Establishment of Agency under Appendix 2E of the
September and December 2020 is now 31.08.2022. FTP, 2015-20
Notification No. 16/2015-20 dated 01.07.2022 – Public Notice No. 20/2015-20 dated 01.08.2022
Amendment of FTP, 2015-2020 has carried out amendment of Appendix 2E of
the FTP, 2015-20 whereby Gem & Jewellery Export
The Directorate General of Foreign Trade (‘DGFT’) Promotion Council (GJEPC) has been authorized
vide Notification No. 16/2015-20 dated 01.07.2022 as an agency to issue Certificate of Origin (Non-
has made various amendment in the FTP, 2015- Preferential).
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ALLIED LAWS
Public Notice No. 21/2015-20 dated 05.08.2022 – Trade Notice No. 15/2022-23 dated 01.08.2022 –
Extension of validity of Certificates issued in FY 2015- Extension of Date for mandatory electronic filing
16 and 2016-17 under FTP, 2015-20. of non-preferential certificate of origin (NP CoO)
through common digital platform
Public Notice No. 21/2015-20 dated 05.08.2022 has
carried out an amendment of HBP whereby Para Trade Notice No. 15/2022-23 dated 01.08.2022 has
3.20(a) has been amended to extend validity for 5 extended Date for mandatory electronic filing of
years for applications filed till 30th September 2022. non-preferential certificate of origin (NP CoO)
Public Notice No. 22/2015-

20 dated 23.08.2022 –
Enlistment of an agency
under Appendix 2E of the
FTP, 2015-16

20 dated 23.08.2022 has
carried out amendment
of Appendix 2E of the FTP,
2015-20 whereby Panipat
Exporters Association has
been authorized as an
agency to issue Certificate
of Origin (Non-Preferential).

20 dated 29.08.2022 –
Amendment of Para 2.107
of HBP

20 dated 29.08.2022 has
carried out amendment
of Para 2.107 of the HBP
whereby condition (o) in
Annexure IV of Appendix
2A has been substituted to
be inclusive of jewellers as
notified by the IFSCA.
DFGT Trade Notice
Trade Notice No. 14/2015-20 dated 18.07.2022 – through common digital platform to 31st March
Procedure for Submission of request for seeking 2023.
IMC’s approval for export of Wheat Flour (Atta)
Trade Notice No. 16/2022-23 dated 06.09.2022
Trade Notice No. 14/2015-20 dated 18.07.2022 – Uploading of e-BRC for shipping bills on which
prescribed the procedure that is required to be RoSCTL scrip has been availed from DGFT
followed for submission of requests for seeking
IMC’s approval for export of wheat flour (atta) and Trade Notice No. 15/2022-23 dated 01.08.2022 has
other requirements/compliances that are required extended Date for Uploading of e-BRC for shipping
to be followed. Further, such approval is valid for a bills on which RoSCTL scrip has been availed from
period of 3 months. DGFT till 30th September 2022.
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C O N T E N T S
LEGAL CLASSICS
The following chapter has been authored by Jitendra Motwani (Partner),
Rinkey Jassuja (Associate Partner) and Alifya Vora (Associate) - ELP
Commissioner of Central Excise, Visakhapatnam V. w.e.f from 01.04.2011 to specifically exclude those
Sai Sahmita Storages (P) Ltd.- 2011 (270) ELT 22 (AP) inputs which were used for the construction of an
immovable property. This position, of exclusion of
GST regime was ushered in with the promise of ITC of inputs used for construction of an immovable
seamless flow of input tax credit (“ITC”) across the property, has been retained under the GST regime
supply chain. However, much like the erstwhile as well.
regime, availability of credit
remains litigious under the GST
regime as well. One such issue is
with respect to eligibility of ITC of
inputs used for construction of
an immovable property when
such an immovable property
is used for further supply of
taxable services.
In the erstwhile regime the said

issued was the subject matter
of dispute before the Hon’ble
Andhra Pradesh High Court in
the case of Commissioner of
Central Excise, Visakhapatnam
V. Sai Sahmita Storages (P) Ltd.
reported as 2011 (270) ELT 22 (AP)
(“Sai Sahmita Storages”). In this
case, the moot issue before the
Hon’ble Andhra Pradesh High
Court was whether an assessee
could take CENVAT credit of central excise duty Despite the above change of law, this ratio of the
paid on cement, iron bars, expansion bellows and Hon’ble Andhra Pradesh High Court would be
pipes used for construction of warehouses when relevant under the GST regime to the extent that
such warehouses were used to provide “storage it conclusively states that credit of any input is
and warehousing services”. The Hon’ble High Court available as long as it is used to provide an output
answered the said question in affirmative and in service.
favour of the assessee.
Decision in the case of Sai Sahmita Storages
While dealing with the aforementioned issue, the
Hon’ble Andhra Pradesh High Court conclusively The respondent-assessee in the instant case was a
held that construction of a premises is a necessary registered provider of “storage and warehousing”
pre-condition for the output services provided by services. It had availed CENVAT credit of central
assessee therein and therefore, the credit of the excise duty paid on cement, iron bars, expansion
same cannot be restricted. bellows and pipes used for construction of storage
tanks, reinforcement of storage tanks and for
At this juncture it is pertinent to note that the construction of pipelines for transfer of liquid
dispute in the case of Sai Sahmita Storages (Supra) cargo from the tanks to trucks. The said credit was
pertained to the period prior to 1.04.2011. The disputed by the revenue and respondent- assessee
definition of inputs and input services was amended was directed to reverse the same. Against the said
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LEGAL CLASSICS
decision assessee therein approached the Hon’ble when such immovable property was used for
Tribunal. The Hon’ble Tribunal, while disposing further supply was available. A departmental
off the assessee’s appeal, inter alia held that the appeal against the said decision is pending before
assessee was eligible to claim CENVAT credit of the the Hon’ble Apex Court.
excise duty paid on inputs used for construction
of storage tanks and pipelines. The said decision Ratio of the decision of the Hon’ble Andhra
of the Hon’ble Tribunal was in appeal before the Pradesh High Court in the case of Sai Sahmita
Hon’ble Andhra Pradesh High Court. Storages (supra), wherein it was held that credit of
an input or input service utilized for construction of
The Hon’ble High Court, while upholding the decision an immovable property when such an immovable
of the Hon’ble Tribunal and thereby dismissing property is used for affecting further taxable supply,
revenue’s appeal held that it is undisputed that thus remains relevant under the GST regime as well.
the inputs were used for providing storage facility This decision could provide impetus to the argument
without which storage and warehousing service that Section 17(5)(d) of the CGST Act, 2017 ought
could not have been provided by the assessee to be read down to not apply to such immovable
therein. property which is used for further supply.
Applicability under the GST regime This decision would fortify the argument that in
order to give effect to the scheme of GST which
Section 16 of the Central Goods and Services Act, seeks to eliminate cascading effect of taxes, when
2017 (“CGST Act, 2017”) inter alia provides that a an input has a direct nexus with the output supply
registered person can avail ITC of any supply of its credit ought not to be restricted. It would be
goods or services which is used by him in course interesting to see how this ratio will be applied by
or furtherance of business. Section 17 of the CGST the Hon’ble Apex Court while dealing with the
Act, 2017 provides for circumstances in which challenge to the vires of the Section 17(5)(d) of
ITC will not be available to an assessee. Section the CGST Act, 2017. The observations made by the
17(5)(d) of the CGST Act, 2017 provides that ITC Supreme Court while deciding the challenge to
of tax paid on goods or services received by an a provision under the CGST Act will also have an
assessee for construction of immovable property is impact on similar proceedings pending in relation
not available unless such immovable property is a to service tax regime at various stages of litigation.
‘Plant and Machinery’.
The vires of the said

provision was challenged
before the Hon’ble
Orissa High Court in the
case of Safari Retreats
Pvt Ltd & Anr. V. Chief
Commissioner of Central
Goods and Service Tax
& Ors. reported as [TS-
350-HC(ORI)-2019-NT]
The Hon’ble Orissa High
Court read down the
provision of Section 17(5)
(d) of the CGST Act, 2017
on the ground that it was
against the scheme of
the CGST Act, 2017 and
held that ITC of inputs
and input services used
for construction of an
immovable property
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C O N T E N T S
QUOTABLE QUOTES
Compiled by: Virangana Wadhawan (Principal Associate), Raghav Khandelwal
(Associate) - ELP
Colin Shah, Chairman, Gem and Jewellery Export “This move will encourage the industry to pass on
Promotion Council (GJEPC) said, “We are thankful more cost benefits to the users and also lend a
to Hon’ble Finance Minister for rationalizing the necessary push to people who are still looking for
GST rates on cut & Polished diamonds and giving incentives to adapt to the EV way-of-life,"
relief with regard to the
issue of ITC accumulation
for the diamond sector.
It is estimated that
approximately Rs 600 crores
of ITC accumulation is there
as on date with the Diamond
Industry. The increase in
GST rate on cut & polished
diamonds will not only stop
further accumulation of ITC
but release blocked working
capital and stimulate
industry growth. We would
now earnestly urge the
government to formalize a
mechanism for the traders
to receive the refund of the
accumulated GST.”
Dr Shravan Subramanyam,
President of NATHEALTH, a
healthcare federation in
India, said the additional
5% on the rates will be a
burden on people seeking
quality healthcare in non-
ICU (intensive care unit)
settings. By not allowing input
credit, the government is
breaking the chain of credit
and not allowing any offset
for the near 6% embedded
GST burden on healthcare
sector, which would have
allowed quality healthcare footprint to expand,”
Dr Subhramanyam said.
Akshit Bansal, CEO of electric vehicle (EV) charging

network provider Statiq, said that the government
has declared a clear intention to boost domestic
EV adoption and usage by making the industry
eligible for a concessional GST rate of 5 per cent.
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AUTHORS
Nishant Shah (Partner)
Stella Joseph (Partner)
Sweta Rajan (Partner)
Jitendra Motwani (Partner)
Rinkey Jassuja (Associate Partner)
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ISSUE - 15

NAVIGATING GST 2.0

NAVIGATING GST 2.0

STATE INDUSTRIAL POLICIES – KEY INCENTIVES ...........................................................................................

FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS.............................................................................

LEGISLATION AT WORK - RECENT AMENDMENTS.......................................................................................

Before we go to deliberate the transactions in

ONLINE GAMING ACTIVITIES transactions of OGA raise complications on this

This issue arises on account of the

As regards the transaction under

Further, based on the recent

NEED OF THE HOUR

The affirmation to the

The following chapter has been authored by Sweta Rajan (Partner),

▪ “Horizontal” policies to provide

▪ Lastly, to protect nascent industries

Since 1991, a number of economic

STATE INDUSTRIAL POLICIES – KEY INCENTIVES

Incentives available to units falling

a) Direct exemption from payment of

b) Reimbursement of the payments

Following are the key incentives

STATE INDUSTRIAL POLICIES – KEY INCENTIVES

▪ Payroll Assistance - Industrial units providing

▪ EPF Reimbursement – Many states have

▪ Reimbursement of expenses incurred for

Spotlight Case Law authority in the Ministry of Civil Aviation to import

- The exemption Notification No. 61/2017

FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS

Issue: ELP Comments

- In terms of the purchase

FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS

a) there should be two or more individual Facts:

d) such supply does not constitute

- When the purchase order is seen as

- Price break-up does not necessarily

- The essential concomitant of the

FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS

- Section 13(2) of IGST refers to the place of supply

FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS

issue which is finally put to rest by the Hon’ble ELP Comments

- The Petitioner entered into a Power Purchase

- A refund claim was filed by the Petitioner for

FROM THE BENCH - KEY JUDICIAL PRONOUNCEMENTS

- The amendment will have a retrospective

- It also held that any benefit that gets accrued by

- Production of shipping bills as proof of export ELP Comments

▪ The policy schedules had to

▪ The employees working in

▪ Keeping pace with the GST

Sr. No. Particular Summary

▪ The recommendation is required to confirm with following legislative

(a) maintain the right federal balance,

(c) are in line with the principles outlined in judgements of courts in

LEGISLATION AT WORK - RECENT AMENDMENTS

▪ Taxpayers having aggregate turnover exceeding INR 20 crores in any

▪ The format of Form GSTR 3B has been revised to include reporting of

▪ For deposits made in electronic cash ledger, Unified Payment

b. For reasons other than above, interest shall be calculated on the

c. For ITC wrongly availed and utilized, interest shall be calculated