2018 (9) TMI 1647 - AAAR - GST

Appeal dismissed, 'Marg Sudharan Shulk' exempt from GST, 'Abhivahan Shulk' taxed at 18%. Reverse charge not addressed.

IN RE : DIVISIONAL FOREST OFFICER, DEHRADUN

The appeal was dismissed, upholding the decision that 'Marg Sudharan Shulk' is exempt from GST, while 'Abhivahan Shulk' is subject to GST at 18% under ... Levy of GST - Marg Sudharan Shulk - charged and collected by applicant for the maintenance of forest road, from non government, private and commercial vehicles engaged in mining work in lieu of use of forest road - Abhivahan Shulk - charged and collected by applicant in respect of forest produce carried out by a person - Challenge to Advance Ruling decision. Whether GST is leviable on the “Marg Sudharan Shulk” and “Abhivahan ShuIk” said to be charged by Forest Division Dehradun from the non government, private and commercial vehicles engaged in mining work in lieu of use of forest road? Held that:- A fee is charged in lieu of some service granted to a particular class of persons from whom it is being charged. Such fees are to offset the expenses (partly or fully) incurred in rendering the said service and co-relation between the two with exact mathematical precision is not important and in some instances such as license fee, which are regulatory in nature, the quid pro quo also is not essential. The Abhivahan Shulk(transit fee) is different from the Marg Sudharan Shulk (both of which are collected by the forest department under statute of State Government) in as much as the latter is collected for the upkeep and maintenance of roads within the forest area and the same is collected from all the vehicles, whether loaded or empty. Thus the Marg Sudharan Shulk is used for the benefit of public in general who may use the roads of the forest area and not only to a particular class of people who are paying the said fee. The rates of Abhivahan Shulk, on the other hand, are fixed on the quantity of forest produce being transported. A vehicle entering a forest area will have to pay the Marg Sudharan Shulk even if it comes out empty. But the same empty vehicle will not be required to pay any Abhivahan Shulk, if it is coming out of the forest area without any forest produce. Thus, this fee is directly related to the quality and quantity of the forest produce. Abhivahan Shulk fulfills all the criteria, which are required to be established for a government levy, for it to be termed as ‘fee’. The very nature of it being a fee ensures that a quid pro quo has to be there and therefore rendering of some form of service comes in built, which is also established as discussed above. Thus, this shulk collected against the services rendered, is liable to be taxed under the provisions of Goods and Service Tax Acts, unless otherwise exempted - Sub-clause (2) is the exclusion clause and only goods or service falling under the Schedule III (clause a) or being included in any exception notification (clause b), will not be treated as supply of goods or supply of services. Everything and anything other than those covered by sub clause (2) (a) & (b) are to be treated as supply of goods or supply of services as covered by Schedule I or Schedule II in terms of sub-clause (1)(c) and (1)(d) respectively. Government fees are not specified in Schedule III of Section 7 and Abhivahan Shulk is also not covered by any notification for exception in terms of Section 7(2)(b) ibid. Hence, there remains no ambiguity about the taxability of Abhivahan Shulk. Classification - rate of tax - Held that:- The Abhivahan Shulk cannot be covered under notification relating to “NIL” rate nor does it correspond to any entry for services that are taxed at 24%. Hence, this fee has to be covered under the residuary Heading 9997 for other services with the tax rate of CGST@ 9%, and IGST @ 18%. The decision of the Authority on Advance Ruling for the State of Uttarakhand is upheld - appeal dismissed. Issues Involved:1. Taxability of 'Marg Sudharan Shulk' under GST.2. Taxability of 'Abhivahan Shulk' under GST.3. Definition and scope of 'service' under GST.4. Applicability of reverse charge mechanism for GST on 'Abhivahan Shulk'.Detailed Analysis:1. Taxability of 'Marg Sudharan Shulk' under GST:The Advance Ruling Authority concluded that 'Marg Sudharan Shulk,' charged for the maintenance of forest roads, is exempt from GST. This conclusion was based on the provision that 'services by way of access to a road or a bridge on payment of toll charges' are included in the list of exempted services under GST.2. Taxability of 'Abhivahan Shulk' under GST:The Advance Ruling Authority determined that 'Abhivahan Shulk,' charged for the transit of forest produce, is subject to GST. The authority observed that this fee is charged based on the quantity and quality of the forest produce transported and is not akin to toll tax. Instead, it is a consideration for services provided by the forest department. Since these services are not listed as exempt under Chapter 99 of the GST Tariff, 2017, the 'Abhivahan Shulk' is liable for GST at 18% under Service Code 9997, categorized as 'other services.'3. Definition and Scope of 'Service' under GST:The appellant argued that 'Abhivahan Shulk' should not be considered a service under Section 2(102) of the CGST Act, 2017, as it is a government fee collected under statutory authority. However, the appellate authority clarified that the definition of 'services' is broad, encompassing anything other than goods, money, and securities. The fee collected for the transit of forest produce is considered a service since it provides specific benefits to those paying it, thus falling under the GST ambit.4. Applicability of Reverse Charge Mechanism for GST on 'Abhivahan Shulk':The appellant contended that if 'Abhivahan Shulk' is deemed a service, the GST should be payable by the recipient under the reverse charge mechanism as per Notification No. 13/2017-CT(R) dated 28.06.2017. However, the appellate authority noted that this issue was not part of the original application and was not examined by the Advance Ruling Authority. Therefore, it could not be considered at the appellate stage. The authority emphasized that the rules and procedures for the reverse charge mechanism are clear, and it is the responsibility of the assessee to determine their applicability.Conclusion:The appeal was dismissed, and the decision of the Authority on Advance Ruling for the State of Uttarakhand was upheld. The 'Marg Sudharan Shulk' remains exempt from GST, while the 'Abhivahan Shulk' is subject to GST at 18% under Service Code 9997. The issue of reverse charge mechanism was not addressed due to procedural constraints.