2020 (3) TMI 695 - NAPA - GST

Respondent Liable for GST Rate Reduction Benefit Non-Passing, Profiteering

Director General of Anti-Profiteering. Central Board of Indirect Taxes & Customs, Versus M/s. Patanjali Ayurveda Ltd.,

The Respondent was found liable for not passing on the benefit of GST rate reduction to consumers, resulting in a profiteered amount of Rs. 75,08,64,019. ... Profiteering - supplies made by the Patanjali Products- Kesh Kanti Hair Cleanser / Detergent Powder etc. - allegation that the benefit of reduction the rate of tax not passed on - contravention of section 171 of CGST Act - penalty - HELD THAT:- The profiteered amount is determined as ₹ 75,08,64,019/- as per the provisions of Rule 133 (1) of the above Rules as has been computed vide Revised Annexure-8 of the Report dated 06.01.2020. Accordingly, the Respondent is directed to reduce his prices commensurately in terms of Rule 133 (3) (a) of the above Rules. The Respondent is also directed to deposit an amount of ₹ 75,08,64,019/- in the CWF of the Central and the concerned State Government, as the recipients are not identifiable, as per the provisions of Rule 133 (3) (c) of the above Rules alongwith 18% interest payable from the dates from which the above amount was realised by the Respondent from his recipients till the date of its deposit. Penalty - HELD THAT:- It is evident from the above narration of facts that the Respondent has denied the benefit of tax reduction to the customers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus profiteered as per the explanation attached to Section 171 of the above Act. Therefore, he is apparently liable for the imposition of penalty under Section 171 (3A) of the CGST Act, 2017 - Therefore, a show cause notice be issued directing him to explain why the penalty prescribed under the above sub-Section should not be imposed on him. Issues Involved:1. Whether the Respondent is liable to pass on the benefit of tax reduction w.e.f. 15.11.2017 to his buyersRs.2. Whether there has been any violation of the provisions of Section 171 of the CGST Act, 2017 by the RespondentRs.3. If yes, what is the quantum of profiteered amountRs.Detailed Analysis:1. Liability to Pass on Tax Reduction Benefits:The Central Government reduced the GST rate on various goods from 28% to 18% and from 18% to 12% w.e.f. 15.11.2017. The DGAP's investigation revealed that the Respondent increased the base prices of goods post-GST reduction, thus not passing the benefit to the recipients. Section 171 of the CGST Act, 2017 mandates that any reduction in the tax rate must be passed on to the recipients by way of commensurate reduction in prices. The DGAP's report, after re-examining and correcting errors, determined that the Respondent failed to pass on the benefit, resulting in a profiteered amount of Rs. 75,08,64,019.2. Violation of Section 171 of the CGST Act, 2017:The Respondent argued that the proceedings initiated were not maintainable and violated principles of natural justice. However, the Authority clarified that it has suo moto power to examine cases of tax reductions and ensure benefits are passed on to consumers. The Respondent was given multiple opportunities to present his case, and the DGAP conducted a thorough investigation. The Respondent's failure to reduce prices after the GST rate reduction and the subsequent increase in base prices constituted a violation of Section 171.3. Quantum of Profiteered Amount:The DGAP's revised report calculated the profiteered amount as Rs. 75,08,64,019. This amount was determined by comparing the average base prices of products sold before the tax rate reduction with the actual prices post-reduction. The Respondent's claims regarding discounts, cashback schemes, and sales returns were examined but found lacking in merit. The DGAP's methodology for calculating profiteering was upheld as reliable and in accordance with the law.Additional Judgments and Findings:- The Respondent's contention that the Authority cannot initiate suo moto proceedings was dismissed, citing Section 171 (2) and Rule 127 of the CGST Rules.- The argument of lack of judicial members in the Authority was rejected, noting that the composition of the Authority is as per the CGST Act, 2017.- The methodology adopted by the DGAP for calculating profiteering was found to be correct and consistent with previous cases.- The Respondent's claim that the investigation period was arbitrary was also dismissed, as the DGAP investigated until the date the Respondent failed to pass on the benefit.- The Respondent is directed to deposit the profiteered amount in the Consumer Welfare Fund (CWF) of the Central and State Governments along with 18% interest.Conclusion:The Respondent has been found in violation of Section 171 of the CGST Act, 2017, for not passing on the benefit of GST rate reduction to consumers. The profiteered amount of Rs. 75,08,64,019 must be deposited in the CWF, and the Respondent is liable for penalties under Section 171 (3A). The Commissioners of CGST/SGST are directed to monitor the compliance of this order.