Failure to Pass on GST Rate Reduction Benefits Results in Rs. 241 Crore Profiteering

Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs, Versus M/s. Procter & Gamble Home Products (PGHP) Private Limited, M/s. Procter & Gamble Hygiene and Healthcare (PGHH) Private Limited, M/s. Gillette India Limited (GIL),

Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs, Versus M/s. Procter & Gamble Home Products (PGHP) Private Limited, M/s. ... Issues Involved:

1. Whether the Respondents passed on the benefit of tax reduction in terms of Section 171(1) of the CGST Act, 2017.
2. Calculation of the profiteered amount as per Section 171(2) of the CGST Act, 2017.
3. Imposition of penalties under Section 171(3A) of the CGST Act, 2017.

Issue-wise Analysis:

1. Whether the Respondents passed on the benefit of tax reduction in terms of Section 171(1) of the CGST Act, 2017:

The Respondents were accused of not passing on the benefit of GST rate reduction from 28% to 18% effective from 15.11.2017. The DGAP's investigation revealed that the base prices of the Respondents' products were increased post-GST rate reduction, which meant the commensurate reduction in prices was not passed on to the consumers. The Respondents claimed to have passed on the benefits through various means such as higher price reduction on certain SKUs, extra quantity, and post-supply price reductions. However, the DGAP found that these methods did not comply with Section 171(1), which mandates passing on the benefit by way of commensurate reduction in prices. The Respondents' contention that they faced increased costs and other business considerations was dismissed as they failed to provide sufficient evidence. The Authority concluded that the Respondents did not pass on the benefit of tax reduction as required by law.

2. Calculation of the profiteered amount as per Section 171(2) of the CGST Act, 2017:

The DGAP calculated the profiteered amount by comparing the average base prices of the products sold during the pre-rate reduction period (01.11.2017 to 14.11.2017) with the actual base prices post-rate reduction (15.11.2017 to 30.09.2018). The total profiteered amount was determined to be Rs. 2,41,51,14,485/-, which included excess GST collected from consumers. The Respondents' objections to the methodology used, such as comparing average prices and considering post-supply discounts, were rejected. The Authority found the DGAP's methodology appropriate, logical, and in line with Section 171 of the CGST Act. The Respondents' claims of passing on benefits through increased grammage, promotional schemes, and post-supply discounts were also dismissed as they did not meet the legal requirements for passing on the benefit of tax reduction.

3. Imposition of penalties under Section 171(3A) of the CGST Act, 2017:

The Authority noted that Section 171(3A), which prescribes penalties for profiteering, was inserted into the CGST Act effective from 01.01.2020. Since the period of investigation (15.11.2017 to 30.09.2018) predates this amendment, the Authority concluded that penalties under Section 171(3A) could not be imposed retrospectively. Therefore, no notice for the imposition of penalties was issued to the Respondents.

Conclusion:

The Authority directed the Respondents to reduce the prices of all impacted SKUs commensurately and deposit 50% of the profiteered amount in the Central Consumer Welfare Fund and the remaining 50% in the Consumer Welfare Funds of the respective States/UTs. The total amount to be deposited was Rs. 2,41,51,14,485/- along with 18% interest from the date of realization till the date of deposit. The DGAP was also instructed to conduct further investigations to determine if the benefit of tax reduction was passed on post-30.09.2018 and to compute the profiteered amount on the stock lying with the Respondents and their distributors/retailers as of 15.11.2017.