8th CST Council Meeting Dated:- 4-1-2017 GST Council – Minutes – Circulars – GST – Minutes of the 8th CST Council Meeting held on 3 – 4 January 2017 The eighth meeting of the GST Council (hereinafter referred to as 'the Council') was held on 3 and 4 January 2017 in Vigyan Bhawan, New Delhi under the Chairpersonship of the Hon'ble Union Finance Minister, Shri Arun Jaitley. The list of the Hon'ble Members of the Council who attended the meeting is at Annexure 1 . The list of officers of the Centre, the States, the GST Council and the Goods and Services Tax Network (GSTN) who attended the meeting is at Annexure 2 . The list of officers from the various Ministries/Departments of the Government of India and the trade representatives who made presentations before the Council is at Annexure 3 . 2. The following agenda items were listed for discussion in the eighth meeting of the Council- 1. Brief presentation by representatives of the following sectors –
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
esentatives of certain industries to understand their concerns. The Hon'ble Minister from Bihar recalled that in the last meeting of the Council, it was agreed that the representatives of the Power sector would also be called, but they had not been invited for consultation, though electricity was a very important issuefor the public at large. He also suggested that instead of discussing sectoral issues, it would be better to first complete the task of formulating the Goods and Services Tax (GST) Laws. The Secretary to the Council (hereinafter referred to as 'Secretary') informed that the Power sector could be called in the next meeting of the Council, if the Council so agreed. He further stated that it would be better to hear the stakeholders while the law was being formulated in order to factor in their concerns while drafting the law. The Council agreed to this suggestion. Discussion on Agenda Items Agenda Item 1: Brief presentations by representatives of the
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
asis whether a banking related taxable transaction was inter-State or intra-State. She further stated that the banking services were expanding with increasing use of mobile and internet banking and approximately 3.5 crore transactions took place daily. By way of illustration, she stated that if a bank headquarter was located in Maharashtra, the customer was located in Delhi and the factory was situated in Gujarat, it would be a challenge as to how and when to tax such a transaction. She gave an example of an ATM transaction and pointed out that it would be difficult to establish on real time basis whether the customer belonged to the same State or another State, and it would considerably slow down the IT system. In order to address these challenges, she suggested that in GST, there should be one registration for a bank for its headquarters and only Integrated Goods and Services Tax (IGST) might be charged for all transactions. She observed that this would simplify compliance and would
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
h would be difficult to accept. The Hon'ble Minister from Tamil Nadu stated that for defining the place of supply, the banking sector was same as other sectors and that the tax had to flow on the basis of the destination of the final consumer. He stated that even if IGST was charged, the final consumer would need to be identified to enable transfer of tax to the destination State. He stated that if this could be done for IGST, it could also be done for CGST and SGST. He remarked that it was not correct to say that the complexity of an IT system would increase due to the nature of the tax being paid. He expressed that keeping in view the overall philosophy of GST, registration should be taken in every State. 4.1.3. The Hon'ble Minister from Karnataka observed that if apportionment of tax could be done to each State at the end of the month, it could also be done through SGST/ CGST route. The Secretary, DFS explained that a related problem was that one bank was spread over many
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
to retail customers though large in number, were small in terms of revenue yield. He gave the example of complexity of a case where a customer of Bank A holding an account in Delhi went to Himachal Pradesh and drew money from an ATM of Bank B. In this case, Bank A would have to first determine whether the number of the transaction in the ATM (whether fifth or sixth) was such as to attract levy of GST and then to determine whether this tax should be charged as CGST and SGST or as IGST. He explained that determining this on real-time basis would be time-consuming and pose a problem for customers in terms of time taken to complete the transaction. He, therefore, suggested carrying out this task at the end of the month. The Hon'ble Minister from Tamil Nadu observed that this example seemed to pose the least challenge as the place of supply would be where the ATM was located. He observed that there would be complexity for GSTN if all taxes relating to banks were charged as IGST. 4.1
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
cess simple. He further stated that the rate of tax for government-sponsored insurance policies should be lower. Ms. Usha Sangwan, Managing Director, Life Insurance Corporation of India stated that the processes under GST should be simple and easy to monitor and suggested to have a single point of review of the system through a Management Information System (MIS). She stated that a centralized system at the backend could be used to ensure that the correct amount of tax reached every destination State. She also requested that iflife insurance had to be taxed under GST, the rate of tax should not be so high as to make it unaffordable for the middle class and suggested to charge tax at the merit rate. On a query from the Hon'ble Chairperson regarding the existing rate of tax in the Insurance sector, she informed that presently the tax rate for term insurance products was 15% and for other categories, after taking into account abatement, was 3%. The Hon'ble Minister from Tamil Nadu
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ismatch if GST registration for the telecom operators was to be taken State-wise. He further pointed out that after the introduction of wireless telephony, allocation of spectrum was as per telecom circles and therefore, it would be difficult to make the telecom circles congruent with State-wise tax jurisdiction. He, therefore, suggested to have one registration under GST and also only one audit jurisdiction. The second issue that he raised was that voice call was seamless in nature and for a call made from Delhi to Goa, inputs were used from the exchange network of both Goa and Delhi and, therefore, pooling of ITC was essential. The third issue that he raised was that there were several instances of self-supply in telecom sector and these should not be taxed. 4.2.2. Shri Akshaya Moondra, CFO, Idea Cellular made a presentation on behalf of the industry. He pointed out that record-keeping, accounting, etc. were kept on circle-basis based on license conditions. He added that the spect
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ets lying in the intervening States were also used leading to incurring of input cost without any corresponding output tax in the intervening circles. If tax had to be paid at each intermediate stage, this would lead to blockage of ITC in some circles. 4.2.3. Summing up, he made the following four requests for the consideration of the Council: (i) there should be no tax on self-supply of services between two registrants of the same entity in separate tax jurisdictions within the same circle as, for example, self-supply (B2B) from Maharashtra to Goa which were separate States, within the same legal entity and there should be no need for billing and GST compliance; (ii) in a B2B transaction, the place of supply for both recipient and supplier should be the place of the contractual billing; (iii) tax on prepaid vouchers should be charged at the first stage of invoicing to the distributor based on MRP (Maximum Retail Price) and that no tax be charged for subsequent transactions in relat
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
Minister of Delhi raised a question as to how a single registration would solve the issue of telecom circles not being co-terminus with the State boundaries. The CFO, Idea Cellular stated that the problem might not be fully solved and requests (i) and (ii) as stated above needed to be addressed but centralised registration would prevent litigation in allocating revenue State-wise as per return especially as one telecom circle spanned more than one State. In a Centralised Registration, the company would provide a State-wise revenue breakup of national level revenue reconciled with audited accounts and compliance could be ensured by a central assessing authority. This reconciliation would not be possible in a decentralised set-up. In a decentralised set up, given the nature of services and all-pervasive nature of networks, there would be different tax jurisdictions in a circle claiming that the revenue belonged to a particular State and it would result in litigation which was best avoide
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ice provider or the service recipient. Shri Deepak Garg, Head (GST), Reliance Jio pointed out that in case of a National Long Distance (NLD) licence for a call from Goa to Delhi, it might be disputed whether the location of service provider was in Goa from where the call originated or in Delhi, where the call terminated. Such disputes would be avoided in a single registration regime. The Hon'ble Deputy Chief Minister of Delhi observed that the issue relating to lack of congruence between the territory of telecom Circle and of State would require to be addressed. The Hon'ble Minister from Tamil Nadu observed that the issue seemed to be simple and complexity was being thrust upon it. He observed that the location of the service provider would be known through granular level invoicing without which billing could not be done. He further stated that in the Maharashtra-Goa example given earlier, if there was a single registration and the returns were filed centrally, then the telecom
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
retary, Department of Telecommunication clarified that they had provided broadband in all 506 blocks in Mizoram and in addition, dongle-based connectivity had also been provided. He stated that almost 97% of the population in Mizoram had internet connectivity. The Hon'ble Minister from Mizoram pointed out that broadband connectivity was not reliable and it needed improvement. 4.3. IT/ITeS 4.3.1. Ms. Aruna Sundararajan, Secretary, Ministry of Electronics and Information Technology made some broad points in relation to the IT sector. She stated that the growth of IT products and services was important for accelerating the growth rate of the country. She pointed out that IT products and services accounted for 10.6% of the Gross Domestic Product (GOP) of the country and created about 3.7 million direct and about 1 crore indirect jobs. She informed that India was also becoming a manufacturing hub for electronic hardware like mobile phones and that 40 mobile manufacturers and 30
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
. Chandrashekhar, President, NASSCOM (National Association of Software and Services Companies) stated that the present GST design would pose serious challenges to the IT sector, especially complex place of supply rules and valuation rules. He suggested that the IT sector be given an option for single registration especially for companies with pan-India operation. He stated that this would help centralised billing and centralized contract for exports. He also stated that the intra-entity valuation should not be such so as to lead to accumulation of ITC or a refund situation. He stated that the IGST mechanism could be relied upon for filing return, etc. and for allocating tax revenues to the States. He further added that GSTN should be leveraged for revenue sharing between the Centre and the States and that the design of GST should promote ease of doing business. He also suggested that software should be classified as services, including for electronic download, and that software loaded
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
which could mire it in litigation. 4.3.3. The Hon'ble Minister from West Bengal raised a question as to what was 'intangible' from the perspective of GST. Shri P.Y. Srinivasan from Wipro explained that 'intangible' meant something that had no physical attribute and that the nature of business was such that it could be carried out from many locations. The Hon'ble Minister from West Bengal inquired whether there was any internationally benchmarked definition of 'intangible' as many countries had GST and how they had addressed the intangible nature of the sector. The representative from Wipro clarified that the world over, GST was mostly a central levy and Canada, which had a dual levy, had a harmonized Y AT like IGST. He explained that 'intangible' meant where input and output were not measurable and were fungible. He added that this led to a compliance challenge as to how to measure what was done at service-level from point to point. He stated
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ajiv Nayan Choubey, Secretary, Ministry of Civil Aviation stated that the Civil Aviation sector had reached parity with the Railway sector and was thus, no more a preserve of the rich and was a building block of the economy. He stated that air fares and the charges for AC 2-tier tickets were almost similar and that the number of passengers travelling in airlines was almost the same as the number of passengers travelling in the higher classes of railways, namely AC First Class, AC 2-tier and AC 3-tier. He stated that Aviation Turbine Fuel (ATF) being outside the ambit of GST and the entire ticketing system being under the purview of GST was a double whammy for the civil aviation sector. The Ministry raised the following issues for the consideration of the Council: (i) Aircraft ) leasing and aircraft import should not be subjected to taxation in GST as was the situation presently; (ii) To have a system of centralized registration as most aircrafts, engines, spare parts, cutlery and servi
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ble in GST which was a severe disadvantage for the Railways; (ii) Numerous problems of billing and raising invoices were likely to be faced, especially in case of inter-State movement for a pan-India organisation like the Indian Railways and this could be addressed by permitting centralized registration either at national level or at least at the Zonal Railway level; (iii) To either continue 70% abatement for taxes on passenger/freight services or to have a tax rate which was neutral in terms of its financial impact on railways (preferably in the range of 5% or 12%); (iv) Not to levy tax on inter-State movement of goods by Railways for self-consumption (captive consumption) as well as on movement of empty coaches/wagons; (v) To provide for some concession on works contract especially in the area of safety related works and projects of national importance (like Jammu Kashmir and the North Eastern region) as well as provision of clear valuation principle for works contract; (vi) Permit
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
person stated that the same issues could also arise for goods to which the Member (Finance) responded that if required, they could tweak their system to meet the requirement of GST. He added that tweaking of the pan-India system of Railways would be a time consuming process and necessary preparatory time must be given. 4.6. Commerce and Industry 4.6.1. Shri Ramesh Abhishek, Secretary, Department of Industrial Policy and Promotion made a suggestion that in GST, leather and footwear should be taxed at 5% and cement should be taxed at 12%. Shri A.K. Bhalla, Director General, Directorate General of Foreign Trade (DGFT) stated that export competitiveness was the core issue. He stated that the proposed GST system mandated that even though exports were zero rated, all duties must be paid at the time of purchase of inputs needed for manufacturing of an export product only to be refunded after actual exports. He added that since normal lead time starting from the sourcing of raw materia
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
efficacy of deemed export scheme that covered supplies from the Domestic Tariff Area to Export Oriented Units (EOU)I Software Technology Parks of India (STPI)I Mega Power Projects and World Bank funded projects would also get reduced. He further added that on the Services side, services under Mode 2 of GATS (General Agreement on Trade and Services) such as health, tourism, etc. contributed significant amount of foreign exchange and therefore, they should be taxed at a moderate rate under GST. 4.6.2. Shri Alok Vardhan Chaturvedi, Additional Secretary, Department of Commerce mentioned that Special Economic Zone (SEZ) was treated as outside the Customs territory of India and the GST design of paying IGST on supplies to SEZ and then claiming refund would block substantial working capital. He added that as SEZ was like a bonded area, any supplies to it from the domestic tariff area or a supply from one SEZ to another should be ab initio exempt from tax. He also highlighted the importance
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
t the capital blockage relating to processing of goods would vary for different sectors depending on the production cycle, but there was no logic to collect tax on supplies, which were zero-rated. Agenda Item 2: Confirmation of the Minutes of the 7th GST Council Meeting held on 22-23 December, 2016: 5. After the presentations by the various sectors, the Hon'ble Chairperson invited comments of the Members on the draft Minutes of the ih Council Meeting (hereinafter called the 'Minutes') held on 22 and 23 December 2016 before the confirmation of the same. The Members suggested the following amendments to the draft Minutes. 5.1. The Secretary informed that a request had been received from the Government of Odisha to amend the version of the Hon'ble Minister from Odisha recorded in the third and the fourth sentence of paragraph 13 of the Minutes with the following version – 'He added that while the Central Government had enhanced the Clean Environment Cess t
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
going to be paid to the States. He added that the entire credit might be allowed in the first year for these five years and that no credit should be allowed thereafter, so that there were no adverse financial implications on the revenue of the State.' The Council agreed to make this change in the version of the Hon'ble Deputy Chief Minister of Gujarat. 5.3. The Hon'ble Minister from Maharashtra stated that in paragraph 14 of the Minutes, the presently recorded version namely 'The Hon'ble Minister from Maharashtra suggested to add Local Body Tax (LBT) in the base year revenue' should be replaced by the following version – 'The Hon'ble Minister from Maharashtra stated that in view of abolition of the Local Body Tax (LBT), the following explanation should be added at the end of Section 5 of the draft GST Compensation Law; 'Explanation – For the purpose of clause C above, the term 'Revenue Collected' shall mean the amount of tax leviable unde
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
' , The Council agreed to replace the version of the Hon'ble Minister as suggested. 5.5. The Hon'ble Minister from Maharashtra also pointed out that in the ih Meeting of the Council, he had suggested that even if the amount available in the GST Compensation Fund was not sufficient to pay compensation, the States shall be paid compensation within the five-year period and that levy of cess might be extended beyond five years to recover the shortfall. He stated that this was not clearly recorded in the last sentence of paragraph 14 of the Minutes and requested to replace the last sentence with the following version: 'He also suggested that even if the amount available in the GST Compensation Fund was not sufficient to pay compensation, the States shall be paid compensation within the five-year period and that levy of cess might be extended beyond five years to recover the shortfall'. The Council agreed to modify the version of the Hon'ble Minister as proposed.
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
as suggested. 5.7. The Hon'ble Minister from Karnataka further stated that his version recorded in paragraph 8(i) namely, 'The Hon'ble Minister from Karnataka suggested not to call these products as agricultural products and instead give them specific exemption from tax' should be replaced with the following version 'The Hon'ble Minister from Karnataka suggested not to call these products as agricultural products persons involved in production of these products as agriculturists and instead give them specific exemption from tax'. The Council agreed to change the version of the Hon'ble Minister as suggested. 5.8. The Hon'ble Minister from Tamil Nadu recalled that in the last meeting, he had suggested to specifically reflect ITC adjustment and ITC reversal in the GST Compensation Law as Section 5(1)(h) and in response, it was clarified (as recorded in paragraph 20 of the Minutes) that the spread sheet containing details of fTC adjustment and
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
he calculation of the net revenue of the States. He added that since the decision now was that the income coming out of the ITC reversal would be counted as part of the net revenue of the States, the net revenue of States would also include ITC reversal. He stated that if the amount of ITC reversal was again added to the base year revenue in Section 5 of the GST Compensation Law, then, this would result in double-counting of the amount representing ITC reversal. 6. In view of the above discussions, for Agenda item 2, the Council decided to adopt the Minutes of the 7 th meeting of the Council with the changes as recorded below. 6.1. To amend the version of the Hon'ble Minister from Odisha recorded in the third and the fourth sentence of paragraph 13 of the Minutes with the following version – 'He added that while the Central Government had enhanced the Clean Environment Cess to ₹ 400 per tonne in 2016-17, this cess was not being shared with the coal-bearing States.
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ce the version of the Hon'ble Minister from Maharashtra in paragraph 14 of the Minutes, presently recorded as 'The Hon'ble Minister from Maharashtra suggested to add Local Body Tax (LBT) in the base year revenue' with the following version – 'The Hon'ble Minister from Maharashtra stated that in view of abolition of the Local Body Tax (LBT), the following explanation should be added at the end of Section 5 of the draft GST Compensation Law; Explanation – For the purpose of clause C above, the term Revenue Collected shall mean the amount of tax leviable under the erstwhile Entry 52 of List II of the Seventh Schedule to the Constitution prior to bringing into effect the provisions of the Constitution (One Hundred and First Amendment) Act, 2016 that could have been collected in the Base Year had the same not been discontinued either fully or partially, during the course of the year.' 6.4. To replace the version of the Hon'ble Minister from Maharashtra in
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
aragraph 7(xxxviii) of the Minutes as 'The Hon'ble Minister for Karnataka stated that while he agreed with the flexibility principle by bringing Schedule IV in a notification, one advantage of keeping these exemptions in the Law was that the suppliers of Government services would not be required to take registration if they were also making small quantum of taxable supply' with the following version – 'The Hon'ble Minister for Karnataka stated that while he agreed with the flexibility principle by bringing Schedule IV in a notification, one advantage of keeping these items as neither supply of goods nor of services was that the suppliers of Government services would not be required to take registration if they were also making small quantum of taxable supply'. 6.7. To replace the version of the Hon'ble Minister from Karnataka recorded in paragraph 8(i) as 'The Hon'ble Minister from Karnataka suggested not to call these products as agricultural pro
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
roposed under agenda item 3A left out part of the coast from the jurisdiction of the coastal States which they administered otherwise, as, for example, the responsibility for policing up to twelve nautical miles from the coastline. He pointed out that even if coastal waters were not part of the territory of the coastal States, the policing responsibility had been entrusted to such States. He suggested that a similar approach could be followed for SGST namely, not to include territorial waters as part of the definition of 'State' but treat it as part of State for the administration of SGST. He pointed out that if territorial waters were treated as Union Territory, then, the indirect tax revenues accruing from transactions in the territorial waters would go into the Centre's pool and would not be available even for devolution to the States. He further stated that for the purposes of fishing, territorial waters along the coastline were treated as part of the State. The Hon'
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
es had jurisdiction over the adjoining territorial waters under the existing V AT and Central Sales Tax (CST) regime and emphasized that status quo must be maintained in the GST regime. He pointed out that the important activities presently taxed by the States in the adjoining coastal waters included: (i) Bunkering to the ships and dredgers; (ii) Supply to the ships, including cruise ships; and (iii) Supply of used oil from the ship. He also pointed out that the Centre never imposed VAT in the territorial waters as it had done in the Union Territories without Legislature and if the States did not have the power to levy VAT, the Centre would have certainly intervened earlier. He further pointed out that the coastal States had made considerable investment in development of ports, related logistics and other infrastructure such as roads, railways, power supply and environmental conservation measures. He also referred to certain judgements of High Courts and the Supreme Court which held th
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2004) was only a stay in personem to the appellant for the balance dues. 7.3. The Hon'ble Chief Minister of Puducherry referred to a Circular of the Union Home Ministry under which States had been authorized to carry out patrolling up to twelve nautical miles and pointed out that the States also enjoyed powers to carry out fishing within the territorial waters. He cautioned that the Centre could not encroach upon the power of the States. The Hon'ble Minister from Tamil Nadu stated that sales carried out in the territorial waters adjoining coastal States could be charged to V AT only if the territorial waters became part of the coastal State. He observed that without such an understanding, SGST could not be levied and this would adversely affect the revenue of the State. The Hon'ble Minister from Kerala pointed out that under Article 297 of the Constitution, all lands, minerals, etc. underlying the ocean within the territorial waters vested in the Union of India but GST a
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ved that States had been charging VAT for bunkering, etc. within the twelve nautical miles of the territorial waters and the presentation by the CCT, Gujarat referred to certain judgements. He stated that Article 1 of the Constitution read with Schedule 1 defined the territories of a State but not its boundaries. He added that Entry 56 in List II of Schedule 7 of the Constitution referred to the States' power to levy taxes on goods and passengers carried on inland waterways but was silent about territorial waters and that what was not mentioned in List II would automatically go to List I of Schedule 7 of the Constitution by virtue of residuary Entry 97 of List I. He further stated that there was a logic in the argument presented by the States that they should share the administration of GST in the territorial waters as the Centre did not collect VAT in the territorial waters, but the conceptual difficulty was that a definition in law could not be contrary to what was provided in th
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
thin the territory of India but not specified in that Schedule. He pointed out that as the territorial water was not referred to in the First Schedule of the Constitution, it appeared to be a Union Territory. He said that it might not be advisable to define State in a law in a way different from the definition of State given in the Constitution. He cautioned that if the power to levy SGST within the territorial water was given to the States under law, there was a risk that the law might get struck down as unconstitutional. The Hon'ble Minister from Maharashtra stated that there were judgments of the Court that the power to levy V AT within the territorial water lay with the States. The CCT Gujarat stated that in view of the judgements mentioned in his presentation, the affidavit filed by the Union of India in the Supreme Court in the case of Great Eastern Shipping Co. Ltd. vs. the State of Karnataka needed re-examination. He further pointed out that the State of Gujarat recovered
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
dredging, etc. and it could not afford to lose it in the GST regime. He further stated that there was enough precedence of State authorities carrying out administration in the territorial water like law and order, fishing, etc. He observed that if the Central Government kept to itself the administration of GST in the territorial water, it would amount to territorial expansion by the Centre. The Hon'ble Minister from West Bengal observed that their State had a coastline of 920 kilometres and it was important that SGST in the territorial waters should be collected by the State. He stated that in addition to the case laws mentioned in the presentation by the CCT Gujarat, there was an additional judgement of the High Court of Madras in the case of Madras Marine Co. vs State of Madras wherein it was held that sales to ship within the territorial water was sale within the State and it was not to be considered as export as the sale was for consumption aboard the ship. He added that pres
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
aw. He stated that the US Federal Supreme Court in the case of United States vs. State of California ruled that California was not the owner of the three-mile marginal belt and that the Federal Government rather than the State had paramount rights over that belt. He further mentioned that in another case the Supreme Court of Canada dismissed the contention of British Columbia, one of the States of Canada, that the territorial waters belonged to it and held that the territorial waters belonged to the Union as sovereignty was based on International Law. The Hon ble Minister from Tamil Nadu responded that the judgement in the Raj Shipping case was relating to the State of Travancore, which upon accession to India, demanded rights over 12 nautical miles and that this judgement applied to States acceding to the Union of India. 7.7. The Hon'ble Minister from Kerala observed that the States had been administering VAT in the territorial waters till now and they could not be ousted from
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
tated that the first case cited by CCT, Gujarat was a fisheries case and this was legally not problematic as fisheries was Constitutionally in the domain of the States and the second judgement followed the first one. He stated that the judgement in the case of Great Eastern Shipping Co. relied upon the fisheries case to say that it applied to it and the Union of India had objected to this decision. He further observed that as the power to levy VAT was never vested with the Union, the State Governments made legislation to administer VAT in the coastal waters and the practice thus continued. He added that now, in view of the definition of Union Territory in Article 366(30) of the Constitution, it needed to be considered carefully whether States could be given power to impose GST in a territory which was constitutionally a Union Territory. The Hon'ble Minister from Tamil Nadu stated that as States were allowed to collect VAT earlier, they should also be allowed to collect SGST in the
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
itory and added that the responsibility of coastal security was delegated to the States after a conference of the Directors General of Police of States in which they were asked to supplement the security in the territorial waters though this task was basically entrusted to the Coast Guard. He stated that this matter was very sensitive and if territorial waters were declared as State territory, then maintenance of law and order in the territorial waters would become a State responsibility which had serious security implications. He stated that the Government of India had taken a stand in the case of Great Eastern Shipping Co. that territorial waters were Union Territory and it could be examined further as to what could be the legal methodology to legalize State jurisdiction to impose tax in the territorial waters though it did not belong to them. The Hon'ble Minister from Karnataka stated that this could be achieved by deeming supplies in territorial waters as intra-State and remind
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
be allowed to collect SGST in the territorial waters. 7.9. The Hon'ble Chief Minister of Puducherry observed that all regions of his Union Territory were coastal areas and fishermen's livelihood came from fishing within the twelve nautical miles of the territorial waters. He observed that his State had also been involved in coastal policing and collecting tax and this power could not be taken away. He requested the Hon'ble Chairperson to suggest a formulation which, without affecting the legal position of territorial waters, gave power to the States to levy SGST. The Hon'ble Chairperson observed that taxation power of States within twelve nautical miles of territorial waters was somewhat fluid and uncertain despite certain judgements discussed earlier and presently, the Union of India had filed an affidavit in the Supreme Court in the case of Great Eastern Shipping Company Ltd disputing the jurisdiction of States to levy V AT in the territorial waters. He stated tha
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
'ble Chairperson stated that this provision permitted Delhi and Puducherry to collect SGST whereas the power of taxation for other Union Territories would remain with the Central Government. The Secretary added that the definition of State under Article 366(26B) did not appear to exclude Union Territories without Legislature. 9. Section 2(5) (Definition of export of goods'') : In respect of the definition of 'export of goods', the Hon'ble Minister from West Bengal suggested to replace the phrase 'taking goods out of India' with the phrase 'supplying goods out of India'. He explained that this would be a more correct formulation technically as 'taking goods out' would also apply to tourists taking goods out of India which was not the meaning of export. Shri Upender Gupta, Commissioner (GST Policy Wing), Central Board of Excise and Customs (CBEC) clarified that this definition was taken from the Customs Act, 1962 which had stood the te
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
or services in the course of inter-State trade or commerce): The Hon'ble Minister from Tamil Nadu suggested to add, after the expression 'SEZ unit' the phrase 'situated outside the State'. He stated that the area of a State in which SEZ was located was specified in the first Schedule of the Constitution and the States could not be bifurcated without following the procedure specified in Article 3 of the Constitution. He added that presently, sale made to SEZ units or developers was considered as zero-rated or exempted sale under the VAT Acts but it was not treated as a territory outside the State or a Customs frontier under Article 286 of the Constitution. The Secretary clarified that no sovereignty was being granted to SEZ and it was only proposed that supplies by SEZ would be treated as inter-state supplies. The CCT, Tamil Nadu observed that the existing formulation would lead to sales to the domestic tariff area (DTA) within the State also being treated as inter-
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
the lGST rate to be applied independently of the combined rate of CGST and SGST whereas the understanding was that the IGST rate would be the sum total of the rates of CGST and SGST. He therefore suggested that in this provision, a link should be established to the applied rate of CGST and SGST. The Commissioner (GST Policy Wing), CBEC observed that the sum total of CGST and SOST rates might vary if a band of SGST rates was operated by some State in future. The Hon'ble Minister from Tamil Nadu raised a question as to whether States had the authority to have a different rate of tax. The Secretary stated that a band of rate could be permitted for a State only if the Council agreed to it. 12.2. Section 5(1) (Levy and collection of Integrated Goods and Services Tax) : The Hon'ble Minister from Haryana suggested that the cap on the rate of IGST should be increased from 28% to 40% as it had already been agreed in the 5th meeting of the Council held on 2-3 December 2016 that the
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
to a legislative vacuum. The Hon'ble Minister from Haryana suggested that in order to permit States to impose cess on demerit goods after the expiry of the compensation period of five years, the provision could be amended to the effect that cap of 40% shall apply for goods other than demerit goods. The Secretary stated that the issue of charging tax or cess on 'sin' goods could be revisited at a later date. He also explained that the formulation suggested by the Hon'ble Minister from Haryana would require a separate definition of 'sin' goods and other consequential changes which would not be desirable. After discussion, the Council agreed to amend Section 5(1) by substituting the rate of 28% with 40%. 13. Section 5(3) (Levy and collection of Integrated Goods and Services Tax) : The Hon'ble Deputy Chief Minister of Delhi observed that the second proviso to this section appeared to bring electronic commerce operators under the tax net, which had not been t
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
tuation where rate of tax on a product could be lower for inter-State supplies vis-a-vis intra-State supplies. He said that in order to avoid such a situation, it would be desirable to state in the law itself that all exemptions shall apply under all the three laws, i.e. CGST, SGST and IGST. The Secretary observed that such uniformity would be maintained in view of the fact that all notifications were to be issued after the approval of the Council. 15. Section 14 (Transfer of input tax credit): The Hon'ble Minister from West Bengal suggested that in Section 14(1) and Section 14(2), the phrase 'in the manner and time as may be prescribed' should be replaced by the phrase 'on the first day of the month following the month in which the return is filed'. He explained that this would ensure that fund-flow to the destination State was credited on the first day of the month following the month in which the return was filed and that there was no scope for discretion in
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
this provision should be incorporated in the law. The Secretary stated that if, for some reason, the prescribed timeline could not be adhered to under the law, the flexibility to modify the provision would be much more in the Rules rather than in the law. The CEO, GSTN added that if, for some reason, the time period for return-filing was extended, it could create serious legal complications. 16. Section 15(7) (Apportionment of tax collected under the Act and settlement of funds) : The Hon'ble Chief Minister of Puducherry stated that he had addressed a letter dated 7 December 2016 to the Hon'ble Chairperson pointing out that in the second proviso to Section 15(7) of the Draft I GST Law, it was proposed to apportion the balance amount relating to cases where the taxable person making such supplies could not be determined, in accordance with clause 2 of Article 270 of the Constitution and that since the Union Territories with Legislature did not come under the purview of the
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
9;ble Minister from West Bengal also supported the proposal of the Hon'ble Chief Minister of Puducherry. The Council agreed to modify the second proviso to Section 15(7) to provide that the balance amount for a year shall be apportioned to all States in proportion to the SGST collection of the States for that year. 17. The Hon'ble Minister from Tamil Nadu raised a question as to why the SGST portion of IGST could not go directly to the concerned State instead of going through a clearing house mechanism. The CEO, GSTN explained that the money was first paid through a return and then, it was passed on to the State. Shri G.D. Lohani, Commissioner (Central Excise), CBEC explained that tax was not paid invoice-wise and tax could also be paid by utilizing the ITC instead of cash payment. On account of these features, there would be one bulk debit for each State for IGST payment made in cash and several debits from the ITC accounts of the taxpayers. The Secretary stated that it wou
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
mer by way of reduction of final price of goods due to elimination of cascading of taxes. The Hon'ble Minister from West Bengal stated that the model presented showed a gain of ₹ 7.7 for the consumer in an inter-State transaction and wondered how this loss of tax was allocated between the Centre and the States. The Secretary clarified that the example related to goods where the loss might be more for the States but in services, there would be a big gain to the States. He further added that the present service tax collection of the Central Government was about ₹ 2.1 lakh crore and in the GST regime, this would be shared with the States. The Hon'ble Minister from Kerala stated that in the presentation, the rates of SGST and CGST were assumed to be the same, but there was a need to discuss the rate split between CGST and SGST. He also added that he needed to understand the role of States in the administration of IGST. 19.1. Section 18 (Power to make rules): The Ho
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
to, the Council was the legislative body while the Parliament and State Legislatures were de jure the legislative bodies. He added that if the Central or a State Government was not comfortable with any recommendation of the Council, it would need to come back to the Council to get it changed. The Hon'ble Minister from Assam raised an issue as to what stand a State Government should take in case amendments to the SGST law were suggested in the State Legislature. The Hon'ble Chairperson responded that the State Government's stand should be that it could not legislate contrary to the recommendation of the Council and that it would need to go back to the Council for approval of the desired modification. 19.2. The Hon'ble Minister from Kerala stated that the State legislature should have the freedom to enact a provision on its own without the approval of the Council if it did not have any implication for other States. He gave some examples in this regard, like certain fac
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
egislature would become irrelevant in relation to indirect tax legislation. The Hon'ble Minister from Jammu Kashmir added that the powers of the State legislature could not be subsumed even in the GST matter. 19.3. The Hon'ble Chairperson stated that Article 246A gave power to the Parliament and the Legislatures of the States to make laws with respect to goods and services tax and this could be made on the recommendation of the Council as referred to in Article 279A. He observed that the Parliament or the State Legislature could not legislate contrary to the recommendation of the Council. The Hon'ble Minister from Jammu Kashmir stated that if the recommendation of the Council was binding on the Parliament and the State legislature, then a huge power was being conferred to the Council. The Hon'ble Chairperson stated that the interpretation given was in response to the question raised by the Hon'ble Deputy Chief Minister of Delhi as to whether the Central Gover
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
tion. The Hon'ble Chairperson observed that the Council could decide as to what flexibilities could be allowed to the Legislatures in regard to procedures but they cou ld not go against the meat of the matter as decided by the Council. He added that if the Legislature supplemented the decision with certain procedures not impacting law without bringing it to the Council, it could be acceptable. The Hon'ble Minister from Assam stated that interpretation of Article 279A of the Constitution now lay with the Courts. The Hon'ble Minister from Kerala stated that the provisions of Article 279A could also be interpreted by the Council but if there was a dispute, recourse could be taken to the court of law. The Hon'ble Chairperson observed that in the legal terminology, for the fields occupied by Article 279A, the State Legislatures and the Parliament were bound by the recommendation of the Council. The Hon'ble Minister from West Bengal stated that Article 279A only referred
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
Government, GST could not function. 20. Section 24 (Appointment of officers of SGST as proper officer in certain circumstances): The Council agreed to discuss this section under Agenda Item 4 relating to cross-empowerment to ensure single interface under GST. 21. In respect of Agenda Item 3, the Council approved the IGST Law subject to the decisions and observations as recorded below. i . Section 2(25) (Definition of State''): The definition of 'State' needed to be discussed further to find a legally sustainable solution. ii . Section 3(3) (Supplies of goods and/ or services in the course of inter-State trade or commerce): This section to be discussed by the Law Committee of officers to examine whether a provision be added regarding deemed delivery of goods to the buyer when supply took place before the goods had crossed the customs frontiers of India. iii. Section 5(1) (Levy and collection of Integrated Goods and Services Tax): To amend Section 5
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
n on agenda item 5 ahead of agenda item 4. 23. The important points discussed in respect of the draft Compensation Law are recorded as follows i. Section 8(1) (Levy and collection of GST Compensation Cess): The Hon'ble Minister from Bihar raised a question whether cess would also be levied on supply of services. The Secretary clarified that law only provided an enabling power to levy cess on services for compensation but the Council would decide whether or not to levy such a cess. ii. Section 10(1) (Crediting proceeds of cess to GST Compensation Fund): The Hon'ble Minister from Tamil Nadu stated that he agreed with the definition of Compensation Fund inserted in Section 2(4) of the draft Compensation Law and requested that the same wordings should be used in relation to the expression 'GST Compensation Fund' in Section 10(1) to provide that cess or other revenue as Council may decide shall be part of the Compensation Fund. The Council agreed to this sugge
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
s to GST Compensation Fund): The Hon'ble Minister from Karnataka stated that he was very uncomfortable with the new definition of Compensation Fund under Section 2(4) which provided that if the cess amount fell short, the Council would decide as to how to raise resources. He observed that all States had come on board for GST on the understanding that their interest would be fully protected and therefore, if there was a shortfall in cess, it must be met. He added that as it was decided that compensation would be paid on bi-monthly basis, it could not be paid in the sixth year and therefore payment of compensation could not be deferred beyond 5 years. He added that the understanding should be that if the amount for compensation was inadequate in the GST Compensation Fund, then cess could be collected in the sixth year or subsequent year to adjust the payment. The Hon ble Chairperson assured that compensation to States shall be paid for 5 years in full within the stipulated period of
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
se (2) of Article 270 of the Constitution, as per the recommendations of the Finance Commission. He explained that in such a scenario, Puducherry, being a Union Territory with Legislature, would be deprived of its share in the 50% to be devolved as per the norms of the Finance Commission, as Union Territories with Legislature did not come under the purview of the Finance Commission. He therefore suggested that instead of apportioning the amount based on the devolution formula under Article 270, the 50% unutilized amount available in the GST Compensation Fund should be apportioned among the States and Union Territories with Legislature in proportion to the SGST collection. The Hon'ble Chief Minister of Puducherry stated that a similar proposal had earlier been agreed in relation to the second proviso to Section 15(7) of the IGST Act. After discussion, the Council decided that 50% of the amount remaining unutilized in the GST Compensation Fund at the end of the transition period shal
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
approved the revised draft GST Compensation Law subject to the decisions as recorded below – i. Section 10(1) (Crediting proceeds of cess to GST Compensation Fund) : To modify this sub-section in line with the definition of Compensation Fund under Section 2(4) to provide that cess or other revenue as Council may decide shall be part of the GST Compensation Fund. ii. Section 10(2) (Crediting proceeds of cess to GST Compensation Fund): To modify this sub-section to clearly reflect that compensation shall be paid bi-monthly and that it shall be paid within 5 years, and in case the amount in the GST Compensation Fund is likely to fall short or fell short of the compensation payable in any bimonthly period, the GST Council shall decide the mode of raising additional resources including borrowing from the market which could be repaid by collection of cess in the sixth year or further subsequent year. iii. Section 10(3) (Crediting proceeds of cess to GST Compensation Fund): To m
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
that lGST was a combination of CGST and SGST and there could be instances like false invoicing showing an inter-State supply which State officials would require to verify. He added that there was no bar for State administration to administer a Central law and if any clarification was required in course of its administration, the issue could be referred to the Central Government or to the other State Government. He added that this was a very fundamental issue and was not a matter of give and take. He further added that every taxpayer would pay lGST as well as SGST and CGST and both needed to be verified by the same tax administration. The Hon'ble Minister from Rajasthan stated that Section 24 of the draft lGST Act had been provided to appoint SGST officers as proper officers in certain circumstances. He added that any activity of enforcement, scrutiny or audit of a taxpayer might lead to detection of lGST irregularity by SGST officers and that complete cross empowerment was require
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ister from Telangana stated that the States should be involved in the administration of lGST. He stated that if there was to be a vertical division, then it should be in the ratio of70%:30% in favour of the States, or otherwise States should administer all taxpayers below the turnover of ₹ 1.5 crore. He emphasised that there must be single interface for the taxpayer. The Hon'ble Chief Minister of Puducherry stated that the Central Government did not have infrastructure for indirect tax administration at the district level. He informed that the Central office for indirect tax for Puducherry was located in Tamil Nadu and stated that without the support of the State machinery, which was fully active in the field, lGST could not be implemented. 27. The Hon'ble Chairperson observed that the best method of apportionment of work between the two administrations needed to be worked out. He added that Article 269A of the Constitution provided that lGST shall be levied and collec
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
er from Karnataka stated that the word 'assign' in Article 269 of the Constitution referred to the proceeds of taxes and in Article 269A of the Constitution, this was replaced by the word 'apportioned' as the entire amount of tax was not being assigned to one State but was rather apportioned between the Centre and the destination State. The Hon'ble Chairperson stated that the power to administer the IGST Law would involve making assessment of taxes in certain cases and expressed a doubt as to how such function could be passed on to the State administration. The Hon'ble Minister from Karnataka stated that the powers of assessment of tax etc. would come from the word 'collected' in Article 269A of the Constitution. The Hon'ble Chairperson stated that the power to levy, collect and apportion IGST belonged to the Centre. The Hon'ble Minister from Karnataka stated that single interface would not work without cross-empowerment of IGST. The Chairman, CB
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
le tax, so it was desirable to have a single interface; (ii) States were of the view that small shopkeepers and traders should remain in the domain of the States; (iii) IGST was to be levied, collected and apportioned by the Union of India, and going by the language of the Constitution, single interface would not be possible; (iv) conventionally, CBEC had been administering service tax (v) how to optimally use the machinery of the Central and State Governments. The Hon'ble Minister from West Bengal stated that the question of dual control was a separate issue and the point at this stage was that States be conferred power to administer IGST so that it could address the issue of SGST which was part of IGST. He added that as the Chairman of the Empowered Committee, he had suggested an amendment in the wording of Article 269A of the Constitution to give a role to the States in the administration of IGST but at that stage, it was stated that this would be reflected in the law. He added
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
rs wanted a single interface and a legal solution to this issue was possible as was done in respect of CST. The Hon'ble Deputy Chief Minister of Delhi stated that a tax reform like GST should be seen from the perspective of the taxpayers and not on the basis as to how many working hands were available in the tax administrations. He stated that in Delhi, the proportion of V AT dealers who were also paying CST was very high and so this could not be completely entrusted to the Central Government. He suggested a division of taxpayers in the ratio of 60:40 in favour of States. The Hon'ble Minister from Tamil Nadu stated that it was a mistake to make GST a three dimensional tax. He stated that there should be only one tax and sharing its proceeds between the Centre and the States should be an internal matter. The Hon'ble Chairperson stated that due to lack of time this issue would be discussed further in the next meeting of the Council. The Council agreed to this suggestion. 3
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =