APRIL 11, 2018

By Vijay Kumar

GST on Rail Tea depends on whether you have it inside the train or outside

The Indian Railways undertook the gigantic task of being GST compliant, maybe that was far more difficult than running those trains. What is the GST to be collected on catering services provided by/in the Railway system?

By Commercial Circular No. 44/2017, dated 29.06.2017, the Railway Board informed all the Zonal General Managers and CMD of IRCTC that:

1. The chargeable GST on catering services on railways is as under: -

(i) For static units not having facility of air conditioning or central heating at any time during the year- 12% with full Input Tax Credit (ITC)

(ii) For static units having facility of air conditioning or central heating at any time during the year -18% with full Input Tax Credit (ITC)

(iii) For Rajdhani/Shatabdi/Duronto and other Mail/Express trains -18% with full Input Tax Credit (ITC)

2. The above GST on catering charges is applicable w.e.f 01.07.2017.

The Board (Railway) further informed:

4. In case of Rajdhani/Shatabdi/Duronto type trains where catering charges are part of the ticket fare, amount of GST is to be reimbursed to the service providers on submission of proof of deposit of the same with the appropriate Government Authority. However, in case of Mail/Express trains and other static units where catering services are provided on payment basis and the above taxes are collected directly from the passengers through cash memo, money receipts etc., Zonal railways /IRCTC shall ensure that the GST collect from the passenger are deposited with the concerned Authorities as per the guidelines [procedures laid down by the M/o Finance. To ensure the same zonal railways shall also obtain monthly proof of compliance of tax deposit by the service provides as per laid down procedures.

5. In case of other mail/express trains and static unit, the GST amount shall not be rounded off. In case of showing separate GST amount for CGST and SGST/UTGST in that case also GST amount shall be separately mentioned upto two decimal place. As regard rounding off of chargeable amount, after levy of GST on the total amount it shall be rounded off to the nearest rupee.

6. In addition to the above, GST on catering services of other premium trains like Tejas, Gatiman, Shivalik etc. shall be levied @ 18%. Accordingly, necessary changes in the catering apportionment charges shall be advised by the Zonal Railways to CRIS. This issues with the concurrence of Finance Dte. of Railway Board.

In Circular No. 48/2017, issued the very next day on 30.06.2017, the Railway Board informed,

The issue of implementation of Goods and Service Tax (GST) on Tea/Coffee, Breakfast and Standard Meals on Indian Railways has been examined in consultation of Finance Commercial Dte. of Railway Board. Accordingly, following are advised:

1. The chargeable GST on catering services on railways is as under: -

(i) For static units not having facility of air conditioning or central heating at any time during the year- 12% with full Input Tax Credit (ITC)

(ii) For static units having facility of air conditioning or central heating at any time during the year -18% with full Input Tax Credit (ITC)

(ii) For Mail/Express trains -18% with full Input Tax Credit (ITC)

2. The above GST on catering charges is applicable w.e.f 01.07.2017.

The inspiration for the Board to issue these circulars might have been the item No. 7 of the CGST Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, in which a sample description reads like this:

Supply, by way of or as part of any service or in any other manner whatsoever in outdoor catering wherein goods, being food or any other article for human consumption or any drink (whether or not alcoholic liquor for human consumption), as a part of such outdoor catering and such supply or service is for cash, deferred payment or other valuable consideration.

But the Government amended this Notification by Notification No. 46/2017-Central Tax (Rate), dated 14.11.2017.

And the Railways was quick to react – it took them just fifteen days to understand the complex notification. By Circular No. 79/2017 dated 01.12.2017, the Railway Board informed the General Managers and IRCTC that:

Ministry of Finance (Department of Revenue) vide notification No. 11/2017 - Central Tax (Rate) dated 28.06.2017 had issued GST Rate for supply of food and beverage services. Further, vide Notification no. 46/2017-Centrl Tax (Rate) dated 14.11.2017, the aforesaid notification has been amended. The issue of implementation of Goods and Service Tax (GST) on Catering Services on Indian Railway has been examined in consultation of Finance Commercial Dte. of Railway Board and accordingly, following are advised: -

1. The chargeable GST on catering services in static catering units /parliament canteen is @ 5% with no Input Tax Credit (ITC).

2. The above GST on catering charges through Static units is applicable w.e.f 15.11.2017.

But there were still doubts:

The situation was that different GST rates are being applied for mobile and static catering in Indian Railways which is leading to a situation whereby the same licensee (selected by Indian Railways/IRCTC) supplying the same food would be subjected to different GST rates depending on whether it is mobile or static catering, as also which variant of mobile catering it is:

1. pre-paid (without option),

2. pre-paid (with option) or

3. post-paid.

The rate difference is resulting in the same food being supplied at two different rates to the railway passengers, which is anomalous.

And the passenger is blissfully unaware (as in most cases with all taxpayers) as to the GST rate applicable to the food ordered by him.

This time around, the Railways wanted help from the Finance Ministry and the CBIC – Central Board of Indirect Taxes and Customs was ready to help.

In Letter F.No. 354/03/2018-TRU, dated 31.03.2018 , to the Railway Board the CBIC clarified:

With a view to remove any doubt or uncertainty in the matter and bring uniformity in the rate of GST applicable for all kinds of supply of food and drinks made available in trains, platforms or stations, it is clarified with the approval of GST Implementation Committee, that the GST rate on supply of food and/or drinks by the Indian Railways or Indian Railways Catering and Tourism Corporation Ltd. or their licensees, whether in trains or at platforms (static units), will be 5% without ITC.

There is so much to that tea you have in the train. Next time you have that tea in a train, think of the mighty GST which has made life simple for you.

Now, the CBIC does not clarify the effective date of this clarification and what will happen to the excess GST collected? Gone down the TEA?

Incidentally the clarification is given by the 'Central Board of Excise and Customs'. Have they forgotten that their name now is ‘Central Board of Indirect Taxes and Customs'? Maybe they should issue a notification that wherever the phrase "Central Board of Excise and Customs" is used on after the 29th day of March 2018, it may be read as "Central Board of Indirect Taxes and Customs".

GST enters IT Returns

The new Income Tax returns for Assessment Year 2018-19 announced by the CBDT has incorporated ‘GST'. ITR-3, ITR-4, ITR-5 and ITR-6 mention GST. ITR-4 for example wants the following details:

Exporters are directed to heave a sigh of relief as the LUT is made simpler. Under the GST regime, the then CBEC issued a Circular No. 26/2017 -Customs, dated 1st July 2017, wherein it was stipulated that:

- Goods and Service Tax has become operational from 01-07-2017. In the GST regime, the governing provisions related to exports are contained in section 16 of the Integrated Goods and Service Tax Act, 2017 (IGST Act). Supplies of goods and services for exports have been categorized as 'Zero Rated Supply' implying that goods could be exported under bond or Letter of Undertaking without payment of integrated tax followed by claim of refund of unutilized input tax credit or on payment of integrated tax with provision for refund of the tax paid.

- Any person making zero rated supply (i.e. any exporter) shall be eligible to claim refund under either of the following options, namely: - (a) he may supply goods or services or both under bond or Letter of Undertaking, subject to such conditions, safeguards and procedure as may be prescribed, without payment of integrated tax and claim refund of unutilized input tax credit; xxxx

In Circular No. 2/2/2017-GST, dated 4th July, 2017, the CBEC explained

- any registered person availing the option to supply goods or services for export without payment of integrated tax shall furnish, prior to export, a bond or a Letter of Undertaking. This bond or Letter of Undertaking is required to be furnished in FORM GST RFD-11 on the common portal. Further, Circular No. 26/2017- Customs dated 1st July, 2017 has clarified that the procedure as prescribed under rule 96A of the said rules requires to be followed for the export of goods from 1st July, 2017.

- Another issue being raised by various stakeholders is that the Bond/Letter of Undertaking is required to be given through the proper officer which is to be furnished to the jurisdictional Commissioner as per sub-rule (1) of rule 96A of the said rules. Taking cognizance of the fact that a large number of such Bonds/Letter of Undertakings would be required to be filed by the registered exporters who would be located at a distance from the office of the jurisdictional Commissioner, it is understood that the furnishing of such bonds/undertakings before the jurisdictional Commissioner may cause hardship to the exporters.

- Thus, in exercise of the powers conferred by sub-section (3) of section 5 of the CGST Act, 2017, it is hereby stated that the acceptance of the Bond/Letter of Undertaking required to be furnished by the exporter under rule 96A of the said rules shall be done by the jurisdictional Deputy/Assistant Commissioner.

- Further, in exercise of the powers conferred by section 168 of the said Act, for the purpose of uniformity in the implementation of the said Act, the Bond/Letter of Undertaking required to be furnished under rule 96A of the said rules may be furnished manually to the jurisdictional Deputy/Assistant Commissioner in the format specified in FORM RFD-11 till the module for furnishing of FORM RFD-11 is available on the common portal. The exporters may download the FORM GST RFD-11 from the website of the Central Board of Excise and Customs (www.cbec.gov.in) and furnish the duly filled form to the jurisdictional Deputy/Assistant Commissioner.

In Circular No. 4/4/2017-GST, dated 7th July, 2017, the Board clarified:

- As regards LUT, it is clarified that it shall be valid for twelve months. If the exporter fails to comply with the conditions of the LUT he may be asked to furnish a bond. Exports may be allowed under existing LUTs/Bonds till 31st July 2017. Exporters shall submit the LUTs/bond in the revised format latest by 31st July, 2017.

- It is further stated that the Bond/LUT shall be accepted by the jurisdictional Deputy/Assistant Commissioner having jurisdiction over the principal place of business of the exporter. The exporter is at liberty to furnish the bond/LUT before Central Tax Authority or State Tax Authority till the administrative mechanism for assigning of taxpayers to respective authority is implemented. However, if in a State, the Commissioner of State Tax so directs, by general instruction, to exporter, the Bond/LUT in all cases be accepted by Central tax officer till such time the said administrative mechanism is implemented. Central Tax officers are directed to take every step to facilitate the exporters.

In Circular No. 5/5/2017–GST, dated 11th August, 2017, the Board further explained

- Eligibility to export under LUT: Notification No. 16/2017 - Central Tax dated 7th July, 2017 specifies conditions to be fulfilled for export under Letter of Undertaking (LUT) in place of bond. In the extant Central Excise provisions, LUTs were limited to manufacturer exporters only. The intent of the said notification is to liberalize the facility of LUT and extend it to all kind of suppliers. It is hereby clarified that any registered person who has received a minimum foreign inward remittance of 10% of export turnover in the preceding financial year is eligible for availing the facility of LUT provided that the amount received as foreign inward remittance is not less than Rs. one crore. This means that only such exporters are eligible to LUT facilities who have received a remittance of Rs. one crore or 10% of export turnover, whichever is a higher amount, in the previous financial year.

- Form for LUT: Bonds are furnished on non-judicial stamp paper, while LUTs are generally submitted on the letterhead containing signature and seal of the person or the person authorized in this behalf as provided in said Notification.

- Time for acceptance of LUT/Bond: As LUT/bond is a prior requirement for export, including supplies to a SEZ developer or a SEZ unit, the LUT/bond should be processed on top most priority and should be accepted within a period of three working days from the date of submission of LUT/bond along with complete documents by the exporter.

- Jurisdictional officer: It has been clarified in Circular Nos. 2/2/2017 – GST dated 4th July, 2017 and 4/4/2017 – GST dated 7th July, 2017 that Bond/LUT shall be accepted by the jurisdictional Deputy/Assistant Commissioner having jurisdiction over the principal place of business of the exporter. The exporter is at liberty to furnish the bond/LUT before Central Tax Authority or State Tax Authority till the administrative mechanism for assigning of taxpayers to respective authority is implemented. It is reiterated that the Central Tax officers shall facilitate all exporters whether or not the exporter was registered with the Central Government in the earlier regime.

Delete all: In Circular No. 8/8/2017-GST, dated 4th October, 2017, the Board rescinded the above GST circulars and issued fresh instructions as:

a) Eligibility to export under LUT: The facility of export under LUT has been now extended to all registered persons who intend to supply goods or services for export without payment of integrated tax except those who have been prosecuted for any offence.

b) Validity of LUT: The LUT shall be valid for the whole financial year in which it is tendered.

c) Form for bond/LUT: Till the time FORM GST RFD-11 is available on the common portal, the registered person (exporters) may download the FORM GST RFD-11 from the website of the Central Board of Excise and Customs (www.cbec.gov.in) and furnish the duly filled form to the jurisdictional Deputy/Assistant Commissioner having jurisdiction over their principal place of business. The LUT shall be furnished on the letter head of the registered person, in duplicate, and it shall be executed by the working partner, the Managing Director or the Company Secretary or the proprietor or by a person duly authorised by such working partner or Board of Directors of such company or proprietor.

d) Documents for LUT: Self-declaration to the effect that the conditions of LUT have been fulfilled shall be accepted unless there is specific information otherwise.

e) Time for acceptance of LUT/Bond: As LUT/Bond is a prior requirement for export, including exports to a SEZ developer or a SEZ unit, the LUT/bond should be processed on top most priority. It is clarified that LUT/bond should be accepted within a period of three working days of its receipt along with the self-declaration. If the LUT / bond is not accepted within a period of three working days from the date of submission, it shall be deemed to be accepted.

f) Jurisdictional officer: LUT/Bond shall be accepted by the jurisdictional Deputy/Assistant Commissioner having jurisdiction over the principal place of business of the exporter. The exporter is at liberty to furnish the LUT/bond before either the Central Tax Authority or the State Tax Authority till the administrative mechanism for assigning of taxpayers to the respective authority is implemented.

Now, by Circular No. 40/14/2018, dated April 06, 2018, the Board has replaced some of the above instructions as:

"c) Form for LUT: The registered person (exporters) shall fill and submit FORM GST RFD-11 on the common portal. An LUT shall be deemed to be accepted as soon as an acknowledgement for the same, bearing the Application Reference Number (ARN), is generated online.

d) Documents for LUT: No document needs to be physically submitted to the jurisdictional office for acceptance of LUT.

e) Acceptance of LUT/bond: An LUT shall be deemed to have been accepted as soon as an acknowledgement for the same, bearing the Application Reference Number (ARN), is generated online. If it is discovered that an exporter whose LUT has been so accepted, was ineligible to furnish an LUT in place of bond as per Notification No. 37/2017-Central Tax, then the exporter's LUT will be liable for rejection. In case of rejection, the LUT shall be deemed to have been rejected ab initio."

So, now the exporters need not make those expensive trips to the Central or State GST offices to submit their LUTs – another right step in the direction of ease of doing business.