Shri R.K. Gupta, Director General of Anti-Profiteering, Indirect Taxes & Customs Versus M/s. Abbott Healthcare Pvt. Ltd., M/s. Sami Labs Ltd. M/s. Viswas Medico,
GST
2019 (3) TMI 371 – NATIONAL ANTI-PROFITEERING AUTHORITY – TMI
NATIONAL ANTI-PROFITEERING AUTHORITY – NAPA
Dated:- 5-3-2019
Case No. 15/2019
GST
SH. B. N. SHARMA, CHAIRMAN, SH. J. C. CHAUHAN, TECHNICAL MEMBER, MS. R. BHAGYADEVI, TECHNICAL MEMBER, SH. AMAND SHAH, TECHNICAL MEMBER
Sh. Shri R. K Gupta Applicant No. 1 in person
Smt. Gayatri, Deputy Commissioner and Sh, Manoranjan, Assistant Commissioner; for the Applicant No. 2.
Sh, Khomba Singh, Sh. Prakash Birla, Sh. Prabhat Ranjan and Sh Ashish Jani, Company Representatives, Sh. Sanjeev Saraf, Chartered Accountant, Sh. J. P. Singh and Smt. Shalini Ranjan, Advocates, for the Respondent No. I
None for the Respondent No. 2.
Sh. J. K. Arora, Chartered Accountant & Sh. Harsh Arora for the Respondent No. 3
ORDER
1. This report, dated 22.10.2018, has be
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sed that the product was marketed by the Respondent No. 1 and manufactured by the Respondent No. 2. The Applicant No. 1 had further informed vide his email dated 10.07.2018 that the above product was purchased by him from the Respondent No. 3. The Applicant No. 1 had also claimed that since the Respondents had increased the MRP of the product after the rate of tax was reduced on it, they had indulged in profiteering in contravention of the provisions of Section 171 of the CGST Act, 2017 and hence appropriate action should be taken against them.
2. The above complaint was examined by the Standing Committee and vide the minutes of its meeting dated 13.04.2018 it had requested the DGAP to initiate investigation under Rule 129 (1) of the CGST Rules, 2017 and collect evidence necessary to determine whether the benefits of reduction in the rate of tax or Input Tax Credit (ITC) had been passed on by the Respondents to their recipients or not.
3. In this connection, the DGAP had called upon
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quantum of profiteering, if any, on account of increase in the price of the product and indicate the same in their replies to the Notice issued by the DGAP. Further, the Respondents were also given an opportunity to inspect the non-confidential evidences/information received from the complainant on any working day between 23.07.2018 to 25.07.2018. The Respondent No. 3 visited the office of the DGAP on 25.07.2018 to inspect the same. However, the Respondents No. 1 & 2 did not inspect the record. Vide e-mail dated 15.10.2018, the complainant was requested to inspect the non-confidential evidences/replies submitted by the Respondents on 17.10.2018 or 18.10.2018 and he had inspected the non-confidential information submitted by the Respondent No. 1 on 18 10.2018.
5. The DGAP had requested for granting extension in time to complete the investigation up to 08 11 2018 which was allowed by this Authority under Rule 129 (6) of the above Rules, vide its order dated 31.07.2018. The present inve
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%
18%
382
233.08
7. The DGAP has also stated that the Respondent No. 1 was also asked, vide letter dated 25 09.2018, to submit the details regarding GSTN registrations obtained, details of the invoice-wise outward taxable supplies of the above product other than zero rated from 01.07.2017 to 31.07.2018 along with the certified summary of the same, Melaglow Credit Note register for the period from July, 2017 to July, 2018, Melaglow Debit Note register for the period from July, 2017 to July, 2018, Copies of GSTR-1 and GSTR- 3B returns for the State of Delhi, for the period from July, 2017 to July, 2018, copies of two sample sale and purchase invoices of the goods under investigation for the period from July, 2017 to July, 2018. The Respondent No. 1 vide his reply dated 04.10 2018 had submitted the above mentioned details and documents to the DGAP
8. The DGAP has further stated that the Respondent NO 2 had submitted reply to the notice issued by him, vide his letter dated 27.07.2018
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SH/00013/17-18
25 05.2017
94.23
3
GHP/17-18/00006
28 08.2017
64.58
4
GHP/17-18/00045
11.12.2017
64.58
9. The DGAP has also intimated that he had sent an e-mail to the Respondent No. 2 on 06 09.2018 asking him to submit the copy of the Central Excise invoices, evidencing payment of CED post 06 05 20 Id and the Respondent No. 2 vide his e-mail dated 19.09.2018 had informed that the product was being manufactured for him by from the job worker viz. M/S Helios Pharmaceuticals at its manufacturing facility located in Village Malpur, P.O. Bhud, Baddi, Teh. Nalagarh, Distt.-Solan, Himachal Pradesh- 173205 and the CED was being paid by M/s. Helios Pharmaceuticals. The Respondent No. 2 had also submitted the desired invoices and the documents to the DGAP
10. The DGAP has further intimated that vide his reply dated 27.07.2018, the Respondent No. 3 had submitted that he had purchased the product from M/S Aditya Pharmaceuticals (Distributor of Respondent No. 1) at a price of Rs. 259
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ollowing tax structure was applicable during the pre-GST and post-GST periods in respect of the above product:-
S.No.
Supplier
Tax/Duty
Rate of Taxi Duty
Tax Amount
Remarks
1
M/s. Helios Pharmaceutical Is (Job Worker)
CED
8.13%
29.66
12 5% on 65% of MRP of Rs. 365/-
2
M/s. Sami Labs Ltd (Manufacturer)
CST
2%
1.88
On the Central Excise invoice value of Rs. 94.23
3
M/s. Abbott Healthcare Pvt Ltd.
12.50%
292
On the VAT invoice value of Rs. 233 60
Total Tax Amount
60.74
Pre GST Tax rate
30.06%
Rs. 60 74 as a % of Rs. 202.06 (Rs. 233 60
-Rs. 29.66
-Rs 1.88
Post-GST tax rate
28%
w.e.f. 01.07.2017
12. The DGAP has also intimated that during the investigation, it had been observed that the total tax incidence on the product was 30 (Rs 60.74 tax on the base price of Rs. 202.06) in the pre-GST period, which was reduced to 28% at the time of implementation of the GST w.e.f. 01.07.2017. He has further intimated that as post-GST implementati
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202 06 to Rs. 230.90 (average base price for the sales made during the period 01 07 2017 to 31.07.2018). The DGAP has further submitted that since the Respondent No. 1 was a supplier registered under the GST, he was legally bound to pass on the benefit of reduction in the rate of GST to his customers immediately w.e.f. 01.07.2017 and 15.11.2017 however, by increasing the base price of the product and also by increasing the cum-tax price charged from the recipients post GST, the benefit of GST rate reduction was not passed on by the Respondent No. 1 to his customers. Therefore, the DGAP has concluded that in respect of the above product, supplied by the Respondent No. I during the period between 01.07.2017 to 31.07.2018, the amount of profiteering came to Rs. 96,59,716.26/- on account of increase in its base price as had been furnished in Annexure-15 by him.
15. The above Report was received on 25 10.2018 and was considered by the Authority in its sitting held on 30.10.2018 and it was
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manufactured the above product and he had only procured it from him. The Respondent No. 1 has further stated that the DGAP had done incorrect comparison between the pre-GST and post-GST rates and that the comparison should have been done only between the post-GST rates. The Respondent No. 1 has also claimed that from the date of launch of the product and till 01 03.2017, he had offered Rs. 28/- as discount, which had not been counted by the DGAP The above Respondent was also asked to supply the details of the MRP change at various stages of supply chain along with the date of change of MRP for all the products supplied by him by the Authority.
19. The Respondent No. 1 has filed his first written submissions on 19.11.2018, in which he has denied the allegation of profiteering and submitted that the DGAP's Report was incorrect on facts as well as in law. He has also submitted that the product was based on a phytochemical formula, with de-pigmenting action that lightened the dark spots a
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ty, as the product was manufactured at a manufacturing facility in Baddi (availing area based exemption)
0%
12.50%
348
222.72
Pre-GST Period (From 07.05.2016 to March 2017)
Attracted Central Excise Duty
12.5% on abated MRP of 8.125 effective rate
12.50%
348
222.72
Pre-GST Period (March 2017 to June 2017)
Attracted Central Excise Duty
12.5% on abated MRP of 8.125%
12.50%
365
233.60
Post GST Period (from 01.07.2017 to 14.11.2017)
0%
28%
415
233.44
Post GST Period (15.11.2017 onwards)
0%
18%
382
233.08
20. The Respondent No. 1 has also submitted that Section 171 of the CGST Act, 2017 was not applicable in the instant case since its scope was restricted to the cases where there was a reduction in the rate of GST and it did not extend to the reduction in the rate of GST as compared to the pre-GST indirect tax rates. The Respondent No I has also submitted that the rates of various taxes/duties leviable during the pre-GST period and the pre-CST price
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e necessary precedent condition was not satisfied, since there was no reduction in “rate of tax” on the product When the GST was introduced w.e f. 01 07 2017 and the “tax” pertained to the tax imposed under the CGST Act, 2017. He has further contended that there could have been no reduction in the rate of GST, when the GST was introduced and brought into force for the first time with effect from 01.07.2017
22. The Respondent No 1 has further submitted that the aforesaid interpretation of the term “rate of tax” on any “supply” of goods or services, was unambiguous with reference to the various provisions of the GST law The terms “rate of tax” and “tax” were not specifically defined under the CGST Act or the State GST Acts and hence, the issue whether the various taxes and duties levied prior to the introduction of the GST were liable to be included within the scope of the term “rate of tax” had to be determined. He has also claimed that Section 9 of the CGST Act, 2017 and Section 5 of
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he same could not be extended to cover pre-GST taxes. He has further contended that if the intention of the legislature was to empower the Authority to investigate cases based on the rates of taxes or duties levied prior to the introduction of the GST and the rate of CST levied after introduction of the GST the provisions of Section 171 of the CGST would have been worded accordingly, in the absence of which the Authority did not have the legislative mandate to investigate and compare the GST rates with the rates of taxes or duties levied prior to the introduction of GST. He has further averred that the Section did not make any reference to the taxes levied under the indirect tax enactments in force prior to the introduction of the GST and hence the term reduction in the “rate of tax” on supply of goods or services had to be read in conjunction with the succeeding words “on any supply of goods or services” and could not be read in isolation. The Respondent No. 1 has also argued that whe
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ded that the term “rate of tax' was employed in the singular form and hence the term used in Section 171 was “rate of tax”, and not 'rates of taxes' and if the intention of the legislature was to empower the Authority to investigate cases based on the rates of taxes or duties levied prior to the introduction of GST and the rate of GST levied after introduction of the GST, Section 171 would have employed the plural term 'rates of taxes'. He has further pleaded that wherever the legislature intended to refer to the provisions of the erstwhile indirect tax enactments, the term 'existing law' had been used, however, in Section 171 there was no reference to any tax levied under the “existing law”.
25. The Respondent No. 1 has also submitted that the legal maxim contemporanea exposito, which was used by the courts to interpret any ambiguous law was applicable in this case also. The Respondent No. 1 has also argued that the Authority on its website had published its mandate and had also defi
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uction in the rate of GST on any supply of goods or services was passed on by a commensurate reduction in the price. As these rates had been reduced on a number of products it was imperative that the benefit of reduction in the rates was passed on to the consumers and was not pocketed by the suppliers which would amount to unjust enrichment. The Respondent No. 1 has further claimed that he had dutifully reduced the price of the product post reduction in the rate of GST with effect from 15.11.2017 which was clear from the table given below:-
Period
Rate
MRP (Rs.)
01.07.2017 14.11.2017
28%
415
15.11.2017 onwards
18%
382
27. The Respondent No. 1 has also submitted that even if it was assumed that the scope of Section 171 extended to the reduction in the rate of CST as compared to the pre-CST indirect tax rates, it was not applicable in his case since there was no “reduction in rate of tax” with effect from 01.07.2017, rather, there was an increase in the rate of tax w.e.f. 01 07
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on, the pre-GST rate worked out to be 24.62% and since the rate of GST applicable on the product w.e.f. 01.07.2017 was 28%, there was no reduction in the rate of tax as was clear from the following table:-
Particulars
Effective rate computation as per the DGAP Report
Correct method of effective rate computation
Central Excise Duty
29.66
29.66
CST
1.88
1.88
VAT (upto the stage of Abbott's sale price)
29.2
29.2
VAT (in the distribution chain beyond sale by Abbott i.e. in subsequent sales)
0
11.36
(A) Numerator – Total Tax
60.74
72.10
(B1) Denominator – Abbott's sales price minus taxes
233.60 – 60.74= 202.06
(B2) Denominator – MRP of the product (i.e. Rs. 365/-) minus all applicable taxes
365 – 72.10 = 292.90
Effective tax rate
A/B1 = 60.74/202.06 =
30.06%
A/B2 = 72.10/292.90 –
24.62%
29. The Respondent No. 1 has further submitted that the computation had been done without thorough understanding of the pricing structure of the product and the tax co
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as the base price at which the goods were sold was Rs. 233.60 during the period up to 30 June 2017 (pre-GST) and Rs. 233 44 during the period from 1 July 2017 (post-GST)
31. The Respondent No. 1 has also claimed that the increase in the MRP was due to increase in the indirect tax rates on account of introduction of GST and due to revision of pricing structure due to withdrawal of the discount which was earlier taken in to account while fixing the MRP Which could not be brought under the purview of Section 171. He has further claimed that the DGAP had ignored that the cause for increase in the MRP was not due to increase in the base price or profiteering but was on account of following factors:-
a. Up to 06 05.2016, i.e. up to the period when CED exemption was applicable, CED was not factored in the selling price since the said duty was exempted
b. With effect from 07.05.2016, when the above exemption was withdrawn the applicable CED rate was 12.5% on 65% of MRP i.e. @8.125%, howev
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P Pre-GST
MRP @ 28% GST
MRP @ 18% GST
Melaglow Rich 20 gm
365
415
382
Biluma 15 gm
395
435
401
Kojivit Ultra 20 gm
326
357
367
Advan 10
435
470
430
Advan 20
560
590
560
33. In his submissions dated 24.12.2018, the Respondent No. 1 has stated that post CED exemption, he had not passed on the cost of excise to the consumer by way of price increase and charging of the same at the time of the implementation of the GST it had been viewed by the DGAP as increase in the base price although he was entitled to charge the cost of excise duty post May 7, 2016.
34. In his submissions dated 24.12.2018 the Respondent has claimed that after the expiry of the CED exemption w.e.f. 07 05.2016 and upto 30.06.2017, after which the GST had come in to force he had not increased the price of the above product and had increased it w.e.f. 01 07.2017, although he had right to increase the same, however, it had been construed as profiteering made by him which was not his intention. He has
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indicated that the rate of tax on the product had gone down from 30.06% to 28% after the introduction of GST w.e.f. 01.07.2017. He has also intimated that other issues raised by the Respondent had already been covered in the Investigation Report itself.
36. We have carefully considered the material placed before us and all the submissions made by the Respondent No. 1, dated 19.11 2018 and 24.12.2018, and email received by the Authority from the Respondent No. 2, dated 12.12.2018. In the instant case, the Respondent No. 1 has raised mainly three objections. The first objection raised by him states that Section 171 of the CGST Act, 2017 was not applicable in the instant case since its scope was restricted to the cases where there was reduction in the rate of GST on the supply of the goods or services and a reduction in the rate of GST, did not extend to a reduction in the rate of tax when compared with the pre-GST indirect tax regime rates. In this regard, it would be appropriate to me
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all be liable for breach of the above provision. It is also clear from the perusal of Section 174 of the CGST Act, 2017 and Section 173 of the State GST Acts, 2017 that the Central and the State Acts which imposed CED, CST as well as the VAT have been repealed (Except for Entry 84 of the Union List and Entry 54 of the State List) and the above duty/taxes have been subsumed in the GST and the new rates of GST have been fixed near to the net incidence of the above three taxes which was in force before coming in to effect of the GST, as per the recommendation of the GST Council. Therefore, in case the net effect of the above taxes was more than the rate of CST fixed on 01.07.2017 the same would have to construed as reduction in the rate of tax as per the provisions of Section 171 (1) as the above provision had come in to effect immediately w.e.f. 01.07.2017 and the consequent benefit in the shape of commensurate reduction in the price has to be passed on otherwise it would result in earni
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of tax as he can not be allowed to pocket the amount of reduced tax which should have normally gone to the coffers of the Central/State Governments. Any benefit of reduction in the rate of tax given by the above Governments by sacrificing their own revenue must be passed on to the customers by commensurate reduction in the prices by the suppliers as per the intention of Section 171 and any other interpretation of the same would be illogical and unreasonable.
37. It appears that the Respondent No. 1 is trying to misinterpret the provisions of Section 9 of the CGST/SGST Acts, 2017 and Section 5 of the IGST Act, 2017 by stating that the term “tax” as used in the above Sections does not apply on the CED, CST or the VAT as it applies only on the “supply” of goods and services. A bare perusal of Section 7 of the CGST/SGST Acts, 2017 shows that “supply” includes “sale” also and as per Section 2 (21) of the IGST Act, 2017 the supply shall have the same meaning as has been assigned to it under
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e Legislatures on comparing the pre and post GST rates and nor the terms 'tax', 'rate of tax' or 'rates of tax' or 'change in the rate of tax' prohibit such comparison, to examine whether the above two benefits have been passed on or not. There is no doubt that the expression reduction in the rate of tax has to be read in conjunction with the words on any supply of goods and services but it can not be interpreted to mean that only reduction in the rate of GST can be considered for invocation of Section 171 (1) and no comparison can be made with the pre-GST rates.
39. The Respondent No. 1 has submitted three case laws i.e. Aswini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369 = 1952 (10) TMI 32 – SUPREME COURT, Rao Shiv Bahadur Singh v. State of U. P. AIR 1953 SC 394 = 1953 (5) TMI 12 – SUPREME COURT and J. K. Cotton Spinning & Weaving Mills co. Ltd. v. State of U. P. AIR 1961 SC 1170 = 1960 (12) TMI 77 – SUPREME COURT, in his support which pertain to the interpretation of the statutes.
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ll settled principle of law is that a legal statute and its provisions occupy a higher position in the order of precedence when it comes to interpretation. The FAQs/lnformation on the Authority's website are merely guiding in nature and have no binding force of a statutory law and hence the above maxim can not be invoked by the Respondent in his support.
41. Also, the legal maxim of contemporanea exposito is applicable in construing ancient statutes, but not for interpreting acts which are comparatively modern. In the legal jurisprudence, the maxim of contemporanea exposito was invented to interpret the provisions of statues made centuries earlier. In English courts, the legal maxim has been used to interpret the laws made in the Victorian times but according to the latest contemporary legal usages assigned o those provisions it has been rarely used. In this respect, the landmark case of J. K. Cotton Spinning and Weaving Mills Ltd. and another v Union of India and Others, AIR 1988 SC
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here and is relevant only in construing old statutes Since, CGST/SGST Acts, 2017 were passed by the Parliament/State Legislatures less than 2 years ago, they cannot be termed as old statutes. Moreover, the provisions of Section 171 are not at all ambiguous and are rather very clear in their scope and intent. Therefore, the Respondent No. I's argument of invoking the legal maxim of contemporanea exposito, to arrive at the 'contemporary exposition' of the statute is not tenable and hence no reliance is being placed on the cases cited by him.
42. The Respondent No. 1 in his submission dated 19.11 2018 has contended that there was no reduction in the rate of tax and the DGAP had erred while calculating the effective rate of tax in the pre-GST regime. The Respondent No. 1, in para 41 of his submissions has given a table and argued that the DGAP had not included the VAT charged on the sale of the product in question beyond the sale made by him meaning that the VAT charged in the subsequent
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.06.2017 which was reduced to 28% after introduction of the GST on the above product vide para 14 of his Report which can be fully relied upon.
43. The Respondent No. 1, in his submission dated 19.11.2018, has said that he had not increased the base price and the DGAP's calculation was factually incorrect as it was based on the wrong assumption that there was reduction in the rate of tax post-GST. He has also claimed that the increase in the MRP by 4.89% was made in March, 2017 due to increase in the rate of GST and the withdrawal of the discount which he was giving due to cessation of the CE exemption. But the Respondent No. I's submissions fall Short Of establishing this fact as it is apparent from the record that he had increased the base price of the product-from Rs. 202 06 (Rs. 233.60 Rs. 29.66 CED-Rs. 1.88 CST) to Rs. 230.90 per unit w.e.f. 01.07 2017 whereas he should not have increased it and supplied the product by charging 28% GST w.e.f. 01.07.2017 and 18% w.e.f. 15.11.2017
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s losses at the expense of the tax concession given to the customers He has also cited the prices of his competitors to prove that his MRP was the lowest however, the claim made by him cannot be confirmed due to lack of supporting evidence and hence the same cannot be relied upon.
45. The Respondent No. 1 in his submission made to this Authority on 24.12.2018 has specifically admitted that he had resorted to profiteering and agreed to deposit the entire amount of Rs. 96,59,716.26/- along with applicable interest therefore, there is no doubt that he has contravened the provisions of Section 171 (1) of the above Act and is hence, liable for its consequences.
46. It is also revealed from the perusal of the record that the Respondents No. 2 and 3 did not have any role regarding the increase in the base price as well as the MRP of the product as it was solely done by the Respondent No. 1, thus, only he is primarily responsible for the benefit of reduction in the tax rate not having been p
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ofiteered amount during the period w.e.f. 01.07.2017 to 31.07.2018, comes to Rs. 96,59,716.26/-. The Respondent No. 1 has also himself agreed to deposit this amount along with the applicable interest, vide his submission dated 24 12 2018 before this Authority.
48. Accordingly, the Respondent No. 1 is directed to reduce the price of above mentioned product as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, by making commensurate reduction in its price, keeping in view the reduction in the rate of tax w.e.f 01.07.2017 and 15.11 2017 so that the benefit is passed on to the recipients Since the Applicant No. 1 has not produced the invoice vide which he had purchased the above product the amount to be refunded to him can not be determined. However, the Authority places on record its appreciation of the efforts made by him in bringing to notice this case of profiteering and for being present in person through the proceedings. The Respondent No. 1 is also directed to deposit
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be deposited in the Central Consumer Fund while the balance will be deposited in the State CWFs as shown in the table given below:-
S. No.
State/Union Territory
Total Qty. supplied (in nos.)
Total profiteering (in Rs.)
1
Andhra Pradesh
12,214
2,05,471.4
2
Assam
2,440 42,
42,419.97
3
Bihar
986
16,204.15
4
Chandigarh
1,284
23,408.61
5
Chhattisgarh
2,394
41,846.34
6
Delhi
17,991
3,20,481
7
Goa
1,066
18,659.2
8
Gujarat
13,728
2,42,152.1
9
Haryana
6,288
1,14,459.3
10
Himachal Pradesh
276
4,316.185
11
Jammu & Kashmir
5,857
92,990.59
12
Jharkhand
2,730
48,884.19
13
Karnataka
27,796
4,84,989.6
14
Kerala
16,965
2,46,898.4
15
Madhya Pradesh
6,309
1,16,987.1
16
Maharashtra
53,592
9,41,457.6
17
Manipur
609
11,283.15
18
Meghalaya
228
3,776.91
19
Odisha
7,354
1,28,968.5
20
Pondicherry
264
4,111.775
21
Punjab
8,534
1,53,999.4
22
Rajasthan
7,045
1,22,741.8
23
Tamil Nadu
15,001
2,62,438.2
24
Telangana
16,
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1 07 2018, and the Respondent No. 1 has also not provided the details of every stage MRP change in the value chain along with the date of change of MRP for all the products that was demanded by the Authority during the hearing on 15.11.2018, the DGAP is directed to further investigate the quantum of profiteering on all the products including the present product which the Respondent No. 1 is supplying and thereafter submit his report accordingly.
51. It is also established from the above facts that the above Respondent has issued incorrect invoices while selling the above product to his customers as he had not correctly shown the basic price which he should have legally charged from them. The Respondent has also compelled them to pay additional GST on the increased price through the incorrect tax invoices which would have otherwise resulted in further benefit to the customers which he has failed to pass on. It is also established from the record that the Respondent has deliberately and
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