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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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GST RATE ON CANTEENS-CONFUSION SETTLED

GST RATE ON CANTEENS-CONFUSION SETTLED
GST RATE ON CANTEENS-CONFUSION SETTLED
 
The rate of GST on food and beverages supplied in canteens/mess has been a point of dispute in the GST era as the clarification issued by the government and the ruling pronounced by the Authority for Advance Ruling have been in total contradiction to each other. The present write up seeks to discuss the ambiguity as regards the applicable rate of GST on canteens and the recent amendment made by the government vide Notification No. 13/2018-Central Tax (Rate) dated 26.07.2018.
The serial no. 7(1) of the notification no. 11/2017-Central Tax (Rate) dated 28.06.2017 as substituted by Notification No. 46/2017-Central Tax (Rate) dated 14.11.2017 w.e.f. 15.11.2017 prescribed the rate of GST applicable on supply of food or beverages by a restaurant, eating joint including mess, canteen as 5% without the facility of input tax credit. The said entry read as follows:-
S. No. Chapter Heading Description of service Rate (%) Condition
7 9963
Accommodation, food and beverage services)
Supply,by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or drink, where such supply or service is for cash, deferred payment or other valuable consideration, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied, other than those located in the premises of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes having declared tariff of any unit of accommodation of seven thousand five hundred rupees and above per unit per day or equivalent.
 Explanation.- “declared tariff” includes charges for all amenities provided in the unit of accommodation (given on rent for stay) like furniture, air conditioner, refrigerators or any other amenities, but without excluding any discount offered on the published charges for such unit.
2.5% Provided that credit of input tax charged on goods and services used in supplying the service has not been taken [Please refer to Explanation no. (iv)].
 
It is submitted that although the entry 7(i) specifically mentioned canteen, mess but there was confusion as regards the GST rate to be charged by the contractors supplying food and beverages in canteen/mess established by industrial units/hospitals/educational institutions etc. This is for the reason that the entry only covered supply of food and beverages by canteen/mess and so it was opined that contractors preparing food in such canteens were to be considered as outdoor caterer liable to GST rate of 18% according to the then entry 7(v) of the notification no. 46/2017-Central Tax (Rate) dated 14.11.2017 w.e.f. 15.11.2017 which simply covered services provided by outdoor caterers whether on occasional basis or regular basis. In this context, reference may be made to the Advance Ruling pronounced in the case of RASHMI HOSPITALITY SERVICES PRIVATE LIMITED [2018 (13) G.S.T.L. 211 (A.A.R.-GST)] given on 21.03.2018 wherein it was held that a contractor engaged for running canteen set up for workers/employees of a company is liable to pay GST at the rate of 18% under serial no. 7(v) as outdoor caterer as the contractor was providing services from other than his own premises as held in the case of Indian Coffee Workers’ Cooperative Society Ltd. Vs Commissioner [2014 (34) S.T.R. 546 (All.)]. It is pertinent to mention here that while passing this decision, advance ruling also considered the clarification issued by CBIC vide Circular No. 28/02/2018-GST dated 08.01.2018 which stated that supply of food or drink provided by a mess or canteen is taxable at the rate of 5% without input tax credit (ITC) under serial no. 7(i) of the notification no. 46/2017-Central Tax (Rate) dated 14.11.2017. It is also worth noting that it was clearly mentioned in this circular read with Corrigendum dated 18.01.2018 that GST is to be payable at the rate of 5% without ITC even by the contractor appointed by the educational institution with respect to canteen services provided by such contractor. It is submitted that inspite of the clarification by the CBIC, the Authority for Advance Ruling held that contractors supplying food in canteens are required to discharge GST at the rate of 18% as outdoor caterer under serial no. 7(v) of the notification no. 46/2017-Central Tax (Rate) dated 14.11.2017 by placing reliance on the decision given in erstwhile Service Tax Laws with respect to outdoor caterer.
The GST Council Meeting held on 21.07.2018 resolved the confusion created by the Advance Ruling and has amended the serial no. 7(i) of the Notification no. 46/2017-Central Tax (Rate) dated 14.11.2017. The amendment made in serial no. 7(i) vide notification no. 13/2018-Central Tax (Rate) dated 26.07.2018 reads as follows:-
S. No. Chapter Heading Description of service Rate (%) Condition
7 9963
Accommodation, food and beverage services)
 
Supply,by way of or as part of any service, of goods, being food or any other article for human consumption or any drink, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied, other than those located in the premises of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes having declared tariff of any unit of accommodation of seven thousand five hundred rupees and above per unit per day or equivalent.
 
Explanation 1.- This item includes such supply at a canteen, mess, cafeteria or dining space of an institution such as a school, college, hospital, industrial unit, office, by such institution or by any other person based on a contractual arrangement with such institution for such supply, provided that such supply is not event based or occasional.
 
Explanation 2.- This item excludes the supplies covered under item 7 (v).
 
Explanation 3.- “declared tariff” includes charges for all amenities provided in the unit of accommodation (given on rent for stay) like furniture, air conditioner, refrigerators or any other amenities, but without excluding any discount offered on the published charges for such unit.
2.5% Provided that credit of input tax charged on goods and services used in supplying the service has not been taken [Please refer to Explanation no. (iv)].
 
It is submitted that the explanation to the amended entry clearly states that serial no. 7(i) includes supply of food and beverages by canteen, mess, cafeteria of an institution by such institution or any other person based on contractual arrangement with such institution with the condition that such supply is not occasional. Hence, the explanation leaves no room for doubt that the supply of food by canteens in an institution; whether the supply is by institution or by contractors engaged by institution will attract GST rate of 5% without ITC. Moreover, entry no. 7(v) pertaining to outdoor caterers has also been amended to specify GST rate of 18% for outdoor caterers supplying food on occasional basis for events and such outdoor caterers are not covered under serial no. 7(i).
In nutshell, the amendment seeks to settle the dispute regarding applicability of GST rate on supply of food in canteens by contractors. Now, the contractors are required to charge GST at the rate of 5% to the institutions appointing them for supplying food in canteens run by such institutions. However, such institutions will not be eligible for availing the ITC of the GST paid to such contractors. Moreover, the companies maintaining canteens for their employees will again have to discharge GST at the rate of 5% on the food supplied to their employees as under GST era, employee and employer are related persons and this view was also confirmed in the Advance Ruling pronounced in the case of CALTECH POLYMERS PVT. LTD. [2018 (12) G.S.T.L. 350 (A.A.R-GST)]. In such situations, the effective GST rate would be 10% (5%+5%) as no ITC is admissible to the companies.  
 
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