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Indirect Tax Proposed Amendments by Finance Bill 2023

Nitin Bhuta , Last updated: 06 February 2023  
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GOODS AND SERVICES ACT 2017

Note:

(a) CGST Act means Central Goods and Services Tax Act, 2017

(b) IGST Act means Integrated Goods and Services Tax Act, 2017

(c) UTGST Act means Union Territory Goods and Services Tax Act, 2017

Amendments carried out in the Finance Bill, 2023, vide clause 128 to 144 except clause 142 will come into effect from a date to be notified, as far as possible, concurrently with the corresponding amendments to the similar Acts passed by the States & Union territories with legislature.

Amendments carried out in the Finance Bill, 2023, vide clause 142 will come into effect retrospectively from 1st July 2017.

Indirect Tax Proposed Amendments by Finance Bill 2023

AMENDMENTS IN THE CGST ACT, 2017

No

Amendment

1

Composition Supply

Clause 128 - Supply permission granted viz. removal of restriction for the Composition Dealer u/s 10 of CGST Act, 2017.

Existing provision

Section 10(2) and Section 10(2A) of the CGST Act provide for the category of registered persons eligible to opt for the composition scheme. However, registered person engaged in making any supply of goods or services through an electronic commerce operator who is required to collect tax at source under Section 52 of the CGST Act is not eligible for composition scheme.

Amendment of Section 10- Composition Supplier

Clause (d) of sub-section (2) and Clause (c) of sub-section (2A) in section 10 of the CGST Act is being amended so as to remove the restriction imposed on registered personsengaged in supplying goods through electronic commerce operators from opting to pay tax under the Composition Levy.

Comment:

Prima facie it appears that the amendment is driven by the grass root trade technology developments through ECO platforms as well as to promote MSME Segments in general.

Permission is granted or restriction removed to supply only goodsand not the servicesby the Registered persons who are registered as Composition Dealers u/s 10 of CGST Act, 2017.

Such supply is permitted only for intra- state supply as specified u/s 8 of IGST Act, 2017 as per section 10(2A) (c) and not inter- state supply as specified u/s 7 of IGST Act,2017. If supplies are made in contravention, then penal provisions u/s 122(1B) as proposed vide clause 138 shall be leviable.

ECO shall deduct the TCS u/s 52 by way of CGST + SGST levies only and not IGST levies.

Thus, while carrying out compliance and audit of ECO units, one needs to draw up comprehensive Checklists for discharging roles applicable under respective statutes.

Input Tax Credits - Eligibility and Conditions for availing

Existing provision

Proviso to Section 16(2)

2nd proviso

Provided further that where a recipient fails to pay to the supplier of goods or services or both, other than the supplies on which tax is payable on reverse charge basis, the amount towards the value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be added to his output tax liability, along with interest thereon, in such manner as may be prescribed:

3rd Proviso

Provided also that the recipient shall be entitled to avail of the credit of input tax on payment made by him of the amount towards the value of supply of goods or services or both along with tax payable thereon.

Clause 129 Amendment of Section 16(2) proviso- Input Tax Credit eligibility

Second and third provisos to sub-section (2) of section 16 of the CGST Act are being amended to align the said sub-section with the return filing system provided in the said Actviz. Section 39 (GSTR 3B)

Comment:

It appears to be more clarificatory in nature, and most of us have adopted the methodology of availing, reversals and re-availment while filing Form GSTR 3B on month-to-month basis and also paying appropriate interest as applicable u/s 50 of CGST Act, 2017.

In addition to the above, considering amendment proposed under Direct Tax law provisions pertaining to Section 43B disallowance in respect of payments to MSME, it appears that Govt. is trying to formulateand synchronise provisions in way that all enterprises align their affairs to ensure transparency and benefit the MSME Sector. (?? Whether it would in reality happen or notis a million-dollar question ??)

Food for Thought

  1. What if trade supply terms provide a credit period of more than 180 days which is officially stated in the documentation?
  2. If dues payable to the supplier are reversed in the books of account by way of Inter-corporate loans and appropriate are compliancesrequired to be reported under Corporate Law as well as Income Tax Law?
  3. If agreement provides for the retention of monies for effecting supply to safeguard the interests of such supplies? Alternatively, can we explore Security Deposit route??
  4. Impact, if payments are made to Insolvency Professionals due to IBC proceedings or to any other Authorities by way of garnish proceedings?
  5. Last but not the least, can Govt. introduce an explanation whereby it is provided that if tax levied is paid to the supplier and rest all other conditions as laid out u/s 16 are satisfied, then is the commercial transaction of balance dues out of the rigours of such amendment?? I think it would be a win-win situation for all if corresponding changes are also introduced under Direct Tax laws, as Govt. will get their tax dues in time. As the Government does not control the business affairs of the enterprise & working capital management is left to the discretion of the enterprise,is there are any necessity for the Government to go beyond the boundary lines? If done, whether it could be looked upon as genuine relief to provide ease of doing business in general.

Section 17 - Apportionment of credit and blocked credits

Existing provision

(3) The value of exempt supply under sub-section (2) shall be such as may be prescribed, and shall include supplies on which the recipient is liable to pay tax on reverse charge basis, transactions in securities, sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building.

[Explanation. —For the purposes of this sub-section, the expression "value of exempt supply" shall not include the value of activities or transactions specified in Schedule III, except those specified in paragraph 5 of the said Schedule.]

Schedule III- Relevant entries

  1. Sale of land and, subject to clause (b) of paragraph 5 of Schedule II( works contract services), sale of building.
  2. …………….
  3. Supply of goods from a place in the non-taxable territory to another place in the non-taxable territory without such goods entering into India.
  4. (a) Supply of warehoused goods to any person before clearance for home consumption;

(b) Supply of goods by the consignee to any other person, by endorsement of documents of title to the goods, after the goods have been dispatched from the port of origin located outside India but before clearance for home consumption.]

Clause 7,8(a) & 8(b) added from 01.02.2019.

Clause 130 - Amendment of Section 17 (Prospective amendment)

Explanation to sub-section (3) of section 17 of the CGST Act is being amended so as to restrict availment of input tax credit in respect of certain transactions specified in para 8(a) of Schedule III of the said Act, as may be prescribed, by including the value of such transactions in the value of exempt supply.

Existing provision

(5) Notwithstanding anything contained in sub-section (1) of section 16 and sub- section (1) of section 18, input tax credit shall not be available

Clause 130 - Amendment of Section 17(Prospective amendment)

Further, sub-section (5) of said section is also being amended so as toprovide that input tax credit shall not be available in respect of goodsor services or both received by a taxable person, which are used orintended to be used for activities relating to his obligations undercorporate social responsibility referred to in section 135 of theCompanies Act, 2013.

Clause 142 - Schedule III amended retrospectively from July 1,2017(Retrospective amendment)

Schedule III of the CGST Act is being amended to give retrospective applicability to Para 7, 8 (a) and 8 (b) of the said Schedule, witheffect from 01st July, 2017, so as to treat the activities/ transactions mentioned in the said paragraphs as neither supply of goods nor supply of services. It is also being clarified that where the tax hasalready been paid in respect of such transactions/ activities during theperiod from 01st July, 2017 to 31st January, 2019, no refund of such tax paid shall be available.

Comment: Section 17(3)

The amendment vide clause 130 provides to restrict availment of input tax credit in respect of certain transactions specified in 8(a) of Schedule III (viz. Supply of warehoused goods to any person before clearance for home consumption)

But then, why is there a differential treatmentin respect of theother two clauses viz. clause 7 (Supply of goods from a place in the non-taxable territory to another place in the non-taxable territory without such goods entering into India.) & Clause 8(b) Supply of goods by the consignee to any other person, by endorsement of documents of title to the goods, after the goods have been dispatched from the port of origin located outside India but before clearance for home consumption.)

Food for thought:

  1. Can such a transaction be termed as Supply as provided u/s 7?
  2. Is it an oversight or that Law Formulators are taking a view that in case of Bonded warehouse supply, the supply has entered taxable territory which is located in India even though Bonded Warehouse is considered as Non-Taxable Territory??
  3. Is such treatment fair and aligned with the principles of natural justice& principles of equity?
  4. In view of the above, whether extended time lines as provided u/s 74 of the CGST Act, 2017 could be invoked by treating the data/information not reported as non-disclosure or suppression?
  5. If such information is not reported in either GSTR 1/GSTR 3B/GSTR 9/9C by the RTP, do they need to regularise such a mistake by reversing and paying interest u/s 50 by filing DRC-03?
  6. RTPs who have contested demands arising due to clause 7, 8(a) and 8(b) presently, they would be benefited by way of retrospective amendment but does it tantamount to following Principles of Equity and Natural Justice for those who have paid taxes on account of such transactions and activities pertaining to the period July 1,2017 to January 31,2019? Why the doctrine of undue enrichment should not apply to such a scenario?
  7. Double jeopardy of Prospective (clause 130) and Retrospective amendment (clause 142) -whether it mandates further clarification to provide reprieve to the affected taxpayers?
  8. Whether such amendment is contradicting the judicial verdicts of Bombay HC (Sandeep Patil) and Karnataka HC (CIAL Duty Free & Retail Services Pvt Ltd) where it has been held that supplier is entitled to claim ITC on such procurements?

Comment: Section 17(5)

ITC on CSR expenses which are mandated as per the provisions of Companies Act, 2013 are expressly disallowed prospectively from the future date.

Thus, till the date of notification of the above provisions, if any SCN is received then it can be contested vehemently that as such provision is introduced from the future date to be notified, therefore, ITC claimed as per section 16 terms and conditions should not denied in the regular assessment of the tax payers.

Food for Thought??

  1. Whether such amendment is fair especially when such CSR expenditure is mandated under the other law? I think it would lead to more litigation.
  2. Further, if such CSR expenses are incurred for brand promotions and marketing activities of the business other than mandated CSR activities, whether ITC on such expenses would be also denied u/s 17(5)(h) of the CGST Act, 2017?
  3. Whether veil of change of nomenclature would be lifted and ITC would be denied?

Registration - Section 22 & 23

Existing provision

Section 22- Person liable for registration

22. (1) Every supplier shall be liable to be registered under this Act in the State or Union territory, other than special category States, from where he makes a taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees:

Provided that where such person makes taxable supplies of goods or services or both from any of the special category States, he shall be liable to be registered if his aggregate turnover in a financial year exceeds ten lakh rupees:

Provided further that the Government may, at the request of a special category State and on the recommendations of the Council, enhance the aggregate turnover referred to in the first proviso from ten lakh rupees to such amount, not exceeding twenty lakh rupees and subject to such conditions and limitations, as may be so notified:

Provided also that the Government may, at the request of a State and on the recommendations of the Council, enhance the aggregate turnover from twenty lakh rupees to such amount not exceeding forty lakh rupees in case of supplier who is engaged exclusively in the supply of goods, subject to such conditions and limitations, as may be notified.

Explanation. —For the purposes of this sub-section, a person shall be considered to be engaged exclusively in the supply of goods even if he is engaged in exempt supply of services provided by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount.

(2) Every person who, on the day immediately preceding the appointed day, is registered or holds a license under an existing law, shall be liable to be registered under this Act with effect from the appointed day.

Section 23 - Person not liable for registration

23. (1) The following persons shall not be liable to registration, namely: —

(a)

 

any person engaged exclusively in the business of supplying goods or services or both that are not liable to tax or wholly exempt from tax under this Act or under the Integrated Goods and Services Tax Act;

(b)

 

an agriculturist, to the extent of supply of produce out of cultivation of land.

(2) The Government may, on the recommendations of the Council, by notification, specify the category of persons who may be exempted from obtaining registration under this Act.

Clause 131 - Amendment of Section 23 (Retrospective)

Sub-section (1) and sub-section (2) of section 23 of the CGST Actare being amended, with retrospective effect from 01st July, 2017, soas to provide that person for compulsory registration in terms of sub

section (1) of section and section 22 of the Act need not register ifexempt under sub section (1) of section 23.

Comment:

Welcome amendment- Food for Thought

If person has obtained registration by reason of paying GST levies on account of RCM arising due to security services, GTA services, Legal services or sponsorship services even though such person was supplying only exempted goods or services or both as notified under notification no 05/2017, can he apply for refund u/s 54 of the CGST Act, 2017 in the given scenario within time limits and/or beyond time limits?

To extend further, if both the parties to the transactions are unregistered persons under the provisions of GST Act, 2017, in such scenario who will pay the GST? E.g., Advocate providing legal services to the recipient who is not registered under the provisions of the GST Act, 2017, in such case Advocate won’t report such transaction and since buyer is also not registered, he won’t pay the RCM on such legal services. Thus, no one would pay the GST to the Govt. Is it missed out intentionally?

Returns Furnishing Amendments with Timelines

Clause 132 - GSTR 1 (Furnishing details of Outward Supplies)

Insertion of New Section 37(5)

A new sub-section (5) in section 37 of the CGST Act is being inserted so as to provide a time limit upto which the details of outward supplies under sub-section (1) of the said section for a tax period can be furnished by a registered person. Further, it also seeksto provide an enabling provision for extension of the said time limit,subject to certain conditions and restrictions, for a registered person or a class of registered persons.

Clause 133 - GSTR 39 (Furnishing of Returns)

Insertion of New Section 39(11)

A new sub-section (11) in section 39 of the CGST Act is being inserted so as to provide a time limit upto which the return for a taxperiod can be furnished by a registered person. Further, it also seeks to provide an enabling provision for extension of the said time limit,subject to certain conditions and restrictions, for a registered personor a class of registered persons.

Clause 134- GSTR 9/9A/9B/9C (Annual Return)

Insertion of New Section 44(2)

A new sub-section (2) in section 44 of the CGST Act is being inserted so as to provide a time limit upto which the annual return under sub-section (1) of the said section for a financial year can befurnished by a registered person. Further, it also seeks to provide anenabling provision for extension of the said time limit, subject to certain conditions and restrictions, for a registered person or a classof registered persons

Clause 135 - GSTR 8 (Collections of Tax at Source)

Insertion of New Section 52(15)

A new sub-section (15) in section 52 of the CGST Act is being inserted so as to provide a time limit upto which the statement under sub-section (4) of the said section for a month can be furnished by anelectronic commerce operator. Further, it seeks to provide an enabling provision for extension of the said time limit, subject to certain conditions and restrictions, for an electronic commerce operator or a class of electronic commerce operators.

Comments - Clause No 132-135 (Furnishing of Data/information)

Welcome amendment, it would enforce discipline amongst the taxpayers in general.

All clauses are restricting the time limits to report the details by taxpayers within 3 years from the due dates or extended due dates. Such timelines may be extended subject to certain terms and conditions for a registered person or a class of registered persons.

In my person view, time limit of three years in respect of Section 37, Section 39, Section 44 & Section 52 is provided to facilitate issue of SCN under section 74 within a period of 5 years for non-furnishing and disclosure of such information in the information filed by the Taxpayer and invoking general penalty u/s 125 of the CGST Act, 2017.

Remarks : 74. (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty equivalent to the tax specified in the notice. (Time limit of 5 years?)

Food for Thought??

  1. Scenarios of Cancellation, Revocation & Restoration meanwhile intervening timelines as specified under clause 132-135 are lapsed especially claim of Input Tax credits by the recipients?
  2. What happens to cases where Times Limits are already lapsed?

Section 54- Refunds

Clause 136 - Amendment-Removal of reference in Section 54(6)

Amendment of Section 54(6)

Sub-section (6) of section 54 of the CGST Act is being amended soas to remove the reference to the provisionally accepted input taxcredit to align the same with the present scheme of availment of self-assessedinput tax credit as per sub-section (1) of section 41 of thesaid Act.

Clause 137 - Amendment- Interest on delayed payment of Refunds

Amendment of Section 56

Section 56 of the CGST Act is being amended so as to provide foran enabling provision to prescribe manner of computation of periodof delay for calculation of interest on delayed refunds.

Comment:

Welcome clarification and with mandatory availment of ITC linked to GSTR 3B, removal of reference of provisionally accepted input tax credits is more by way of alignment which would facilitate issuance of refunds to the extent of 90% considering the provisions of Section 41, Section 16(2) (c) and Rule 37A terms and conditions.

Consequentially, interest on payable mechanism if paid beyond 60 days.

Penalty Provisions

Clause 138 - Contraventions by E Commerce Operators

Insertion of New Section 122(1B)

A new sub-section (1B) in section 122 of the CGST Act is beinginserted so as to provide for penal provisions applicable to ElectronicCommerce Operators in case of contravention of provisions relatingto supplies of goods made through them by unregistered persons orcomposition taxpayers.

Penalty leviable is minimum 10K or value of tax on supplies made during the transit whichever is higher

Comment:

Welcome change to plug the loophole of revenue leakages by ECO for distributing supplies procured from Unregistered Persons or if they are procured from composition taxpayers and supplied by way of inter-state supply and consequentially depositing TCS u/s 52 incorrectly, this could involve the exposure u/s 74 and 125 of the CGST Act.2017.

Clause 138 - De-crimination of Offences and increase in prosecution launching Limits

Amendment of Section 132(1)

Sub-section (1) of section 132 of the CGST Act is being amended soas to decriminalize offences specified in clause (g) (covers obstructing or preventing officer in the discharge of his duties), clause (j) (covers tampering or destroying any material evidence or document), clause (k) (covers failure to supply any information he is required to supply or supplies wrong information)of thesaid sub-section and to increase the monetary threshold for launchingprosecution for the offences under the said Act from one hundred lakh rupees to two hundred lakh rupees,except for the offences related to issuance of invoices without supply of goods or services or both.

Comment: Welcome amendment but leeway could have been provided for many other scenarios.

Clause 139 - Compounding provisions limits

Amendment, Omission and substitution

First proviso to sub-section (1) of section 138 of the CGST Act isbeing amended so as to simplify the language of clause (a), to omit clause (b) and to substitute the clause (c) of said proviso so as to exclude the persons involved in offences relating to issuance of invoices without supply of goods or services or both from the option of compounding of the offences under the said Act. It further seeks toamend sub-section (2) so as to rationalize the amount for compounding of various offences by reducing the minimum as well as maximum amount for compounding.

Comment:

Fair proposition

Compounding would be permitted only once but compounding won’t be permitted for fake invoices.

In my opinion, permitting only once for Compounding should be relooked upon by the Govt. as there are many other instances where such inadvertent issues may arise which are beyond the control of the taxpayers.

Clause 141 - Implied Permissions

Insertion of New Section 158A

A new section 158A in the CGST Act is being inserted so as toprovide for prescribing manner and conditions for sharing of the information furnished by the registered person in his return or in hisapplication of registration or in his statement of outward supplies, orthe details uploaded by him for generation of electronic invoice or E-way bill or any other details, as may be prescribed, on the common portal with such other systems, as may be notified.

Comment:

It is implied that in respect of the information that is uploaded by the Taxpayer and/or his Advisor on the common portal, it is deemed that implied permission is granted to the Tax Authorities for sharing such details by way of exchange of data with any appropriate authorities and Taxpayer as well as Advisor shall not object or initiate any kind of litigation for sharing of such information in any of the proceedings initiated under the provisions of the GST Act.

Food for thought

Do Advisors need to register their mobile numbers and/or email ids for such kinds of compliances?

AMENDMENTS IN THE IGST ACT, 2017

No

Amendment

1

Revision and expansion of Definition of OIDAR

Existing Definition

Section 2(17) "online information and database access or retrieval services" means services whose delivery is mediated by information technology over the internet or an electronic network and the nature of which renders their supply essentially automated and involving minimal human intervention and impossible to ensure in the absence of information technology and includes electronic services such as, —

(i)

 

advertising on the internet;

(ii)

 

providing cloud services;

(iii)

 

provision of e-books, movie, music, software and other intangibles through telecommunication networks or internet;

(iv)

 

providing data or information, retrievable or otherwise, to any person in electronic form through a computer network;

(v)

 

online supplies of digital content (movies, television shows, music and the like);

(vi)

 

digital data storage; and

(vii)

 

online gaming;

Section 2(16)"non-taxable online recipient" means any Government, local authority, governmental authority, an individual or any other person not registered and receiving online information and database access or retrieval services in relation to any purpose other than commerce, industry or any other business or profession, located in taxable territory.

Explanation. —For the purposes of this clause, the expression "governmental authority" means an authority or a board or any other body, —

(i)

 

set up by an Act of Parliament or a State Legislature; or

(ii)

 

established by any Government,

   

with ninety per cent or more participation by way of equity or control, to carry out any function entrusted 5[to a Panchayat under article 243G or] to a municipality under article 243W of the Constitution;

Compulsory registration in certain cases - Section 24

Notwithstanding anything contained in sub-section (1) of section 22, the following categories of persons shall be required to be registered under this Act,— .

(vi)

 

persons who are required to deduct tax under section 51, whether or not separately registered under this Act;

 

Tax deduction at source.

51. (1) Notwithstanding anything to the contrary contained in this Act, the Government may mandate,—

(a)

 

a department or establishment of the Central Government or State Government; or

(b)

 

local authority; or

(c)

 

Governmental agencies; or

(d)

 

such persons or category of persons as may be notified by the Government on the recommendations of the Council,

(Hereafter in this section referred to as "the deductor"), to deduct tax at the rate of one per cent from the payment made or credited to the supplier (hereafter in this section referred to as "the deductee") of taxable goods or services or both, where the total value of such supply, under a contract, exceeds two lakh and fifty thousand rupees:

Provided that no deduction shall be made if the location of the supplier and the place of supply is in a State or Union territory which is different from the State or as the case may be, Union territory of registration of the recipient.

Explanation. —For the purpose of deduction of tax specified above, the value of supply shall be taken as the amount excluding the central tax, State tax, Union territory tax, integrated tax and cess indicated in the invoice.

Clause 143- Amendment of Section 2(16) - OIDAR

Clause (16) of section 2 of the IGST Act is being amended so as to revise the definition of “non-taxable online recipient” by removing the condition of receipt of online information and database access or retrieval services (OIDAR) for purposes other than commerce, industry or any other business or profession so as to provide for taxability of OIDAR service provided by any person located in non-taxable territory to an unregistered person receiving the said services and located in the taxable territory. Further, it also seeks to clarify that the persons registered solely in terms of clause (vi) of Section 24 of CGST Act shall be treated as unregistered person for the purpose of the said clause.

Also, clause (17) of the said section is being amended to revise the definition of “online information and database access or retrieval services” (OIDAR) to remove the condition of rendering of the said supply being essentially automated and involving minimal human intervention.

Comment:

With the above revision in the definition of OIDAR, scope of levy is enlarged significantly to make it exhaustive to cover most online services as the word used in the definition of OIDAR is “includes”.

Now, persons providing OIDAR services needs to register themselves under the provisions of GST Act, 2017 either in their own names or through their designated agents in India.

If not registered, then they may be treated as Unregistered Persons under the provisions of GST law and all other proceedings of levies, adjudication & recovering can be initiated accordingly.

Food For Thought

  1. Whether the above amendment will lead to a spurt in litigation?
  2. Can we say the registration process of GST is easy, simple and flawless? Besides GST registration, what about PAN Number allotment under the provisions of the Income Tax Act 1961?
  3. Whether by way of data collection, in future, Govt. may expand the scope of SEP (Significant Economic Presence) as envisaged under Explanation 2A to Section 9(1)(i)?
  4. Whether such amendment would trigger shift from levy of income tax from COR to COS as understood under FEMA provisions, and consequently the effect on compliances to be done as per Indian Income Tax Act, 1961?
  5. Does such amendment open up vistas of professional opportunity in compliance as well as litigation management?
  6. Is there an immediate need to provide more clarification for the exclusion of applicability such provisions?
  7. Last but not the least, can we say the law is getting simplified?

2.

POS - Section 12(8) - Transportation of goods to place outside India

Existing Proviso

(8) The place of supply of services by way of transportation of goods, including by mail or courier to, —

(a)

 

a registered person, shall be the location of such person;

(b)

 

a person other than a registered person, shall be the location at which such goods are handed over for their transportation:

[Provided that where the transportation of goods is to a place outside India, the place of supply shall be the place of destination of such goods.]

Clause 144- Omission of Proviso to Section 12(8)

Proviso to sub-section (8) of section 12 of the IGST Act is being omitted so as to specify the place of supply, irrespective of destination of the goods, in cases where the supplier of services and recipient of services are located in India.

Comment: Fair proposition

The amendment is deriving its basis from the levy of GST made applicable to Ocean Freight transactions @ 5% and Air Freight charges @ 18% w.e.f October 1,2022. Clarification by way of Circular No 184/16/2022-GST dated 27.12.2022 provides for

entitlement of input tax credit where the place of supply is determined in terms of the proviso to sub-section (8) of section 12 of the Integrated Goods and Services Tax Act, 2017

AMENDMENTS IN THE EXCISE ACT, 1944

Note:

(a) “Basic Excise Duty” means the excise duty set forth in the Fourth Schedule to the Central Excise Act, 1944.

(b) “NCCD” means National Calamity Contingency Duty levied under Finance Act, 2001, as a duty of excise on specified goods at rates specified in seventh schedule to Finance Act, 2001

(d) Amendments carried out through the Finance Bill, 2023, come into effect on the date of its enactment, unless otherwise specified.

  1. AMENDMENT TO SEVENTH SCHEDULE TO THE FINANCE ACT, 2001

No

Amendment

1

Increase in NCCD rates in respect of cigarettes by way of amendment in seventh schedule to the Finance Act 2001 effective from February 2, 2023.

2.

NOTIFICATION NO. 05/2023-Central Excise, DATED 01.02.2023 w.e.f 2ndFebruary, 2023

Notification No. 05/2023-Central Excise dated 01.02.2023 is being issued to exempt excise duty on blended Compressed Natural Gas (CNG) from so much of the amount as is equal to GST paid on biogas /compressed bio gas contained in such blended CNG subject to the specified conditions.

CUSTOMS

(a) “Basic Customs Duty” means the customs duty levied under the Customs Act, 1962.

(b) “Agriculture Infrastructure and Development Cess” means a duty of customs that is levied under Section 124 of the Finance Act, 2021.

(c) “Social Welfare Surcharge” (SWS) means a duty of customs that is levied under Section 110 of the Finance Act, 2018.

(e) Amendments carried out through the Finance Bill, 2022, will come into effect on the date of its enactment, unless otherwise specified.

AMENDMENTS IN THE CUSTOMS ACT, 1962

No

Amendment

1

Clause 123.

Section 25(4A) of the Customs Act is being amended to insert a Proviso to the effect that the validity period of two years shall not apply to exemption notifications issued in relation to multilateral or bilateral trade agreements; obligations under international agreements, treaties, conventions including with respect to UN agencies, diplomats, international organizations; privileges of constitutional authorities; schemes under Foreign Trade Policy; Central Government schemes having a validity of more than two years; re-imports, temporary imports, goods imported as gifts or personal baggage; any duty of customs under any law for the time being in force including integrated tax leviable under sub-section (7) of Section 3 of the Customs Tariff Act, 1975, other thanduty of customs leviable under section 12.

Comment:

Section 25(4A) was introduced in 2021.

Clarification was issued vide TRU letter dated 01.02.2022 u/s 25(4A) but legislative backing was absent, thus the above amendment is now introduced under Finance Bill.

If Finance Bill, 2023 doesnot receive assent of the President of India on or before 31st March, 2023, then, all the exemptions provided or notifications issued with reference to the above arrangements will face the riskof “sunset”. In all probability, President’s assent would be received on or before timeline so that it won’t disturb the business environment.

Whether IGST exemption would continue even when there is BCD exemption? (Did not find any amendment under IGST Act, 2017 ??)

2

Re- introduction of Time Limit

Clause 124

A new sub section (8A) to section 127 C is being inserted so as to specify a time limit of 9 months from the date of application, for disposal of the application filed before the Settlement Commission.

Comment:

Such time limit was omitted earlier and now it is reintroduced. Such limit is reintroduced in the interest of revenue. It may result into further litigations arising due to applicability of such time limits.

There has to be a speaking order for providing such extension.

AMENDMENTS IN THE CUSTOMS TARIFFS ACT, 1975

The Finance Bill proposes to amend the General Rules for interpretation of the First Schedule - Import Tariff of the CTA as under:

Paragraph 1 of the General Explanatory Notes is proposed to be amended to the effect that where the description of an article or group of articles is preceded by “----”, the said article or group of articles shall also be taken to be a sub-classification of the immediately preceding description of the article or group of articles which has “---”.

The list of abbreviations has been proposed to be substituted with a new list to align with Harmonized System Nomenclature 2022 Edition (HS22).

This amendment is proposed to come into effect from 01.05.2023.

Comment: Welcome clarifications.

S. No

Amendment

Clause of Finance Bill

A.

Retrospective Amendments (w.e.f. 01.01.1995)

125

1

Sub-section (6) and sub-section (7) of section 9 of the Customs Tariff Act, 1975 is being amended to remove ambiguity and clarify that determination and review for countervailing duty refers to determination and review of countervailing duty in a manner prescribed by rules under the Act.

Comment:

Clarificatory amendments.It would be worthwhile to watch the ramifications by way of litigation arising due to such retrospective amendment.

 

2

Sub-section (5) and sub-section (6) of section 9A of the Customs Tariff Act, 1975 is being amended to remove ambiguity and clarify that determination and review for anti-dumping duty refers to determination and review in a manner prescribed by rules under the Act.

Comment:

Clarificatory amendments.It would be worthwhile to watch the ramifications by way of litigationarising due to such retrospective amendment.

 

3

Section 9 C of the Customs Tariff Act, 1975 is being amended to remove ambiguity and clarify that appeals under this section lie against the determination or review thereof made by an authority in a manner as specified by rules notified under Sections 8 B, 9, 9A and 9B of the Act. It also seeks to insert an explanation to provide the meaning of determination or review thereof.

Comment:

Intention of such amendment is to negate the issue presently pending before the Courts by providing for retrospective amendments. It would be worthwhile to watch the ramifications by way of litigation arising on account of appeals, determination and/or reviews.

 

B

Prospective Amendment

 

4

The First Schedule to the Customs Tariff Act, 1975 is being amended to increase the tariff rates on certain tariff items with effect from 2.2.2023

[126 (a)]

read with

Second

Schedule

5

The First Schedule to the Customs Tariff Act, 1975 is being amended to modify the tariff rates on certain tariff items as part of rationalization of customs duty rate structure with effect from the date of assent.

[126 (b)]

read with

Second

Schedule

6

The heading 9801 of the first schedule of the Customs Tariff Act, 1975 is being amended to exclude solar power plant/solar power project from the purview of Project Imports with effect from the date of assent.

Comment:

Adverse for Solar Power Plan/Solar Power Project under Project Imports entry - as substantial concessional import duties were provided.

7

The First Schedule to the Customs Tariff Act, 1975 is also being amended to modify the tariff entries with effect from 1st May,2023

[126(c)]

read with

Fourth

Schedule

 

Note: All readers are requested to intelligently read & study the provisions on this publication. We have tried to compile the information to the best of our ability and understanding. Suggestions to improve the publication are always welcome with folded hands. This information has been shared only for educational purposes for the benefit of all.


Published by

Nitin Bhuta
(Chartered Accountants)
Category Union Budget   Report

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