The GST finding its place in jurisprudence on pertinent issues

AAAR Karnataka held supply of goods and services under warranty contract as composite supply, as principal supply being services and “recipient of supply” to make payment to under the contract to the supplier.

Elaborative:  

Facts:
The appellant provides warranty and other after sales support services on supply as a distributor of branded trucks on a principal-to-principal basis to its customers in India. , it gives a standard warranty of one to two years on the truck sold to its customers; the cost is included in the original sales price. The appellant provides servicing and repair of the vehicles and even replacement of defective parts on such vehicles, against such warranty claims. The Distribution Agreement entitles a reimbursement to the appellant from its foreign group company for the costs incurred against such warranty claims, as per the agreed international warranty terms.

The query raised before the Karnataka Authority for Advance Ruling (AAR) by the appellant was whether the supply to the foreign group company is a supply of services and whether it can qualify as “export of services,” under Goods and Services tax (GST) Act. It was held that the transaction is one of composite supply of goods and services with the principal supply to be determined based on the nature of each case and does not qualify as export, as the “recipient of service”  i.e. the customer is located within India and not the foreign group company, who claims the warranty services.

Arguments:
In the case, it is mandatory that foreign group company makes the reimbursements and the customer in India does not have a contractual right to enforce performance of the warranty obligations of the appellant. The appellant recovers the cost foreign group company of providing such services to its customers in India and the contract is distinct to the original sale agreement between the Customer and the appellant in India. The Indian Contracts Act, 1872, which requires the promisor and promisee to be bound contractually for the consideration to flow, whereas the definition of “consideration” is only an inclusive definition under the GST Act. The activity during the warranty period is for meeting the obligations of the manufacturer and undertaken by the dealer in a way therefore is a supply made to the manufacturer, though the end consumer may be the customer, who possesses the vehicles..

The transaction between the appellant and the foreign group company is a zero-rated supply in as much as the place of supply of the service is outside India and all other conditions for a transaction to qualify as “export of service” stand satisfied.

AAAR’s directive
The AAAR observed that the moot question is with respect to the “recipient of service,” i.e., whether the recipient is the customer in India who approaches the appellant or the foreign group company who reimburses the cost in this regard. The AAAR held that, as the appellant performs repairs at the behest of the foreign group company and not that of the customer, the recipient of the service shall be the foreign group company and not the customer, as held by the AAR. The AAAR provided and stated as under:

The warranty is given by the manufacturer as a part of trade to repair, replace and provide service for any fault in the supplied goods, within the pre-agreed period. The manufacturer accounts for the valuation of such activities into the cost of the goods. Also, a report is also send for pre-approval of every warranty claim to the foreign group company.  

AAAR also referred to the transaction as a composite supply of goods and services, with the principal supply being supply of services.

AAAR has abstained from determining whether supply is one of export of services, being outside its jurisdiction, requiring deciding on “place of supply,” under the Act.

As per the Central Goods and Services Tax Act, the definition of recipient of supply read with consideration requires recipient of service for accomplishing an obligation to make payment for aforesaid services.  

Points to Ponder
AAAR has referred on the contractual arrangement along-with underlying objective to ascertain the recipient of supply, and not the eventual receiver of such supply. The ruling may be a reference to those rendering warranty services to customers of foreign suppliers in India. .

       

Gujarat High Court – A subsidiary providing service outside India to its parent shall not qualify as establishment of a “distinct person” to negate benefit of exports

Elaborative
The High Court quashed the show cause notice (SCN) and referred the writ petition is maintainable as the SCN was issued without jurisdiction, as per Article 226 of the Constitution.

Facts
The appellant is a company engaged in providing consulting engineering services to its parent company located outside India without payment of tax, claiming the benefit of ‘export of services’., An SCN was issued on the ground that the service recipient, i.e., the foreign parent company, is merely an establishment of the same company, challenging the position adopted with respect to the export of services.

Appellant’s  contentions 
The fundamental principle for the exclusion of services ‘one cannot render service to one’s own self’ as provided by a service provider in a non-taxable territory to its establishment.

• The Revenue Authorities in an arbitrary manner seeking to bring all services provided by any Indian Company to its parent companies outside India, with the service tax law, though would qualify as ‘export of service’.
• The ST Rules provides for the “establishment” to mean a branch or agency or a representational office. The parent company is neither a branch nor an agency nor a representational office of the petitioner. The petitioner and the parent company are distinct legal entities.

High Court’s pronouncement
The Gujarat High Court, held that the services provided by the appellantto its parent company outside India would be considered as “export of service”
The High Court as per Rule 6A observed as follows:
• Invoking Section 73 of the Finance Act, on the ground of alleged wilful mis-statement or suppression of facts for extending the time limit for issuance of SCN is not tenable in law, as the appellant has not made any wilful mis-statement or suppressed any facts.
• As per provisions of Explanation 3(b) to section 65B(44) of the Finance Act read with Rule 6A of the ST Rules, as per the said Explanation, it cannot be said that the appellant providing services to its parent company was service rendered to its other establishment, to deem it as a “distinct person,”  located outside India.
It was also held that the SCN has been issued without jurisdiction relying on the Supreme Court decisions in the context of maintainability of writ, under Article 226 of the Constitution of India.

Government notifies rules administering origin compliance in relation to FTAs

Summary of key provisions of the CAROTAR, 2020:
• The importer is required to make specific declarations for goods at the time of filing Bill of Entry to claim preferential benefit:
– originating criteria,
– particulars of exemption notification, if any
– specific details, such as reference number, date of issuance, etc.

• Imported goods manufactured by the producer of final good or procured by a producer locally from a third party.

• In case of procurement from a third party, the producer of final goods needs to seek conformation and documentary proof of origin of these goods.

• The importer needs to possess basic minimum information prescribed under the Form I, briefly such as:
– Description of the production process undertaken in the country of origin;
– Manner in which the origin criteria is determined;
– Treatment of packing materials;

• Details for the application of Rules such as “Change in Tariff Classification”, Regional/ Domestic Value Content, Process Rule, etc.

GST Calendar – September’ 2020

Extended Due Date	Due Date relates to	Interest	Late Fee
GSTR-3B
September 30, 2020	Feb 2020	9% from June 30, 2020 to September 30, 2020	Rs. 500 per return, no late fees for nil return
September 30, 2020	March 2020	9% from July 05, 2020 to September 30, 2020	Rs. 500 per return, no late fees for nil return
September 30, 2020	April 2020	9% from July 09, 2020 to September 30, 2020	Rs. 500 per return, no late fees for nil return
September 30, 2020	May 2020	9% from September 15, 2020 to September 30, 2020	Rs. 500 per return, no late fees for nil return
September 30, 2020	June 2020	9% from September 25, 2020 to September 30, 2020	Rs. 500 per return, no late fees for nil return
September 20-25, 2020	August’ 2020 ( State wise)
Due dates for GSTR-1
September 11, 2020	August’ 2020
Other Compliances
September 30, 2020	GSTR-9 and 9C for FY 2018-19		Rs. 200/- per day, Not exceeding 0.25% of Turnover
September 30, 2020	Adjustments for FY 2019-20	ITC, Debit Notes, Credit Notes