2020 (7) TMI 340 - NAPA - GST

Respondent directed to refund profiteered amount post-GST rate cut, faces penalty.

Director General of Anti-profiteering, Central Board of Indirect Taxes & Customs. Versus M/s. Neeva Foods Pvt. Ltd.,

The Respondent was found to have not passed on the commensurate benefit of tax reduction to customers following a GST rate reduction. The Authority ... Profiteering - restaurant services - allegation that benefit of reduction in GST rate not passed on by way of commensurate reduction in prices - contravention of section 171 of CGST Act - penalty - HELD THAT:- The profiteered amount is determined as ₹ 41,93,431/- as has been computed in Annexure-14 of DGAP's Report dated 27.12.2019 - Accordingly, the Respondent is directed to reduce his prices commensurately in terms of Rule 133(3)(a) of the above rules - Further, since the recipients of the benefit, as determined, are not identifiable, the respondent is directed to deposit an amount of ₹ 41, 93,431/- in two equal parts of ₹ 20,96,715.50 each in the Central Consumer Welfare Fund and the Maharashtra State Consumer Welfare Fund as per the provisions of Rule 133(3)(c) of the CGST Rules, 2017 alongwith interest payable @ 18% to be calculated from the respondent from his recipients till the date of its deposit. The above amount of ₹ 41, 93, 431/- shall be deposited, within a period of 3 months from the date of passing of this order failing which it shall be recovered by the concerned CGST/SGST Commissioners. Penalty - HELD 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 he has thus resorted to profiteering. Hence, he has committed an offence under section 171 (3A) of the CGST Act, 2017 and therefore he is loable to penal action under the provisions of the section - accordingly, a notice be issued to him directing him to explain why the penalty prescribed under section 171 (3A) of the Act read with Rule 133 (3) (d) of CGST Rules, 2017 should not be imposed on him. Issues Involved:1. Whether the Respondent passed on the commensurate benefit of reduction in the rate of tax to his customers.2. Whether there was any violation of the provisions of Section 171 of the CGST Act, 2017 committed by the Respondent.Detailed Analysis:Issue 1: Passing on the Commensurate Benefit of Reduction in the Rate of Tax1. Background: The investigation was initiated based on an application alleging that the Respondent did not pass on the benefit of GST rate reduction from 18% to 5% effective from 15.11.2017, by increasing the base prices of his products.2. DGAP's Findings: The DGAP reported that the Respondent increased the base prices of 152 items more than the denial of ITC, resulting in higher cum-tax prices for consumers despite the reduction in GST rate.3. Respondent's Submissions: The Respondent argued that the increase in base prices was due to the loss of ITC and other business factors like inflation and royalty expenses. He also claimed that the DGAP's calculation included discounted sales which skewed the average base prices.4. Authority's Conclusion: The Authority found that the Respondent did not pass on the commensurate benefit of tax reduction to his customers. The methodology adopted by the DGAP, which compared average pre-rate reduction base prices with post-rate reduction actual base prices, was deemed correct and reasonable. The Respondent's arguments about discounts and other business factors were rejected as they did not justify the increase in base prices beyond the permissible limit of 9.19%.Issue 2: Violation of Section 171 of the CGST Act, 20171. Legal Framework: Section 171 (1) of the CGST Act, 2017 mandates that any reduction in the rate of tax must be passed on to the recipient by way of commensurate reduction in prices.2. DGAP's Report: The DGAP confirmed that the Respondent had not passed on the benefit of tax reduction as required under Section 171 (1) of the CGST Act, 2017.3. Respondent's Defense: The Respondent argued that the pricing of products depended on several commercial factors and that the DGAP acted as a price-controlling authority, violating his right to trade under Article 19 (1) (g) of the Constitution.4. Authority's Decision: The Authority held that the Respondent's actions constituted a violation of Section 171 (1) as he failed to pass on the benefit of tax reduction to his customers. The DGAP's role was not to control prices but to ensure that the benefit of tax reduction was passed on to consumers. The Respondent's right to trade did not extend to appropriating the benefit of tax reduction meant for consumers.Order and Directions:1. Profiteered Amount: The profiteered amount was determined as Rs. 41,93,431/-.2. Deposit Instructions: The Respondent was directed to deposit Rs. 41,93,431/- in two equal parts in the Central Consumer Welfare Fund and the Maharashtra State Consumer Welfare Fund within three months, along with interest at 18% from the dates the amount was realized till the date of deposit.3. Penalty Proceedings: A notice was issued to the Respondent to explain why the penalty under Section 171 (3A) should not be imposed.4. Monitoring Compliance: The Commissioners of CGST/SGST Maharashtra were directed to monitor compliance and submit a report within four months.Conclusion:The Authority concluded that the Respondent had violated the provisions of Section 171 (1) of the CGST Act, 2017 by not passing on the benefit of GST rate reduction to his customers. The Respondent was ordered to deposit the profiteered amount along with interest and was subject to potential penal action.