Analysis of SC Judgment of Mohit Minerals & Refund of IGST Under RCM on Ocean Freight

1) The Hon’ble Supreme Court in Union of India & Anr. v. M/s Mohit Minerals Pvt. Ltd. [Civil Appeal No. 1390 of 2022 dated May 19, 2022]upheld the judgement pronounced by the Hon’ble Gujarat High Court and held that no IGST is payable on ocean freight under Reverse Charge Mechanism (RCM) on contracts of Cost, insurance, and freight (CIF) imports of goods by the Indian importers since it is a composite supply of goods on which IGST is liable to be paid under Section 5(1) of the IGST Act read with Section 20 of the IGST Act, Section 8 and Section 2(30) of the CGST Act. No separate levy of IGST under RCM is to be made on the Indian importer for the supply of services of transportation of goods by the shipping line since it would be in violation of Section 8 of the CGST Act, 2017.

2) In addition to deciding on the legality of certain notifications levying 5 percent IGST on services of transport of goods in a vessel, the Supreme Court Bench comprising Justices D. Y. Chandrachud, Surya Kant and Vikram Nath deliberated at length on the larger issues of constitutional framework of GST law and concepts such as co-operative federalism and concluded that recommendations of the GST Council are not binding on the Centre or the States and that the Central government and States have simultaneous powers to legislate on matters of GST.

3) Therefore, the scope and sweep of the order is much wider than the original question that was put before the court. This is a significant pronouncement that calls for a meticulous study to fathom the possible ramifications not only on other statutes, but about Centre-state ties within the broader federal structure.

4) There is a looming apprehension about the said judgment opening a Pandora’s Box of litigation because the adversely affected assesses or States may move court to challenge past rulings on a retrospective basis and challenge future rulings, especially when the subject matter of such litigations may have been based on the recommendations of GST Council, thereby throwing the indirect tax regime into a conundrum.

5) Moreover, the judgment puts a virtual question mark on the legitimacy of the GST Council and whether its recommendations have a statutory mandate of compliance on the Centre and State Governments. One has to wait and see the response of the Central Government as the ruling may have overarching and multi-dimensional ramifications both for the economy and fiscal governance.

Analysis of the main crux of the said judgment:

Conclusion on the issue of composite supply and issues of Double taxation:

(1) The following is a relevant extract from the Conclusion- PART E of the order in the Hon’ble Supreme Court Judgment in the case of Union of India & Anr. Versus M/s Mohit Minerals Pvt. Ltd. Through Director. (2022)

“The impugned levy imposed on the ‘service’ aspect of the transaction is in violation of the principle of ‘composite supply’ enshrined under Section 2(30) read with Section 8 of the CGST Act. Since the Indian importer is liable to pay IGST on the ‘composite supply’, comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the ‘supply of services’ by the shipping line would be in violation of Section 8 of the CGST Act.”

The respondents had submitted and raised the issue of composite supply and issues of double taxation which became the crux of the judgment in favour of the assesse/respondent.

(2) The transaction between the foreign exporter and the respondents is already subject to IGST under Sections 5 of the IGST Act read with Sections 3(7) and 3(8) of the Customs Tariff Act as supply of goods. A separate levy of IGST @ 5% on the value of 10% of total CIF amount of imported goods, that is on the component of supply of transportation service in the form of ocean freight, by designating the importer as the recipient of supply of such transportation service would amount to double taxation.

(3) The transaction at hand involves three parties- (1) The foreign exporter, (2) The Indian importer and (3) The shipping line. There are two legs of the transaction. On the first leg of the transaction, between the foreign exporter and the Indian importer, the Indian importer is liable to pay IGST on the transaction value of goods, inclusive of value elements of freight and insurance, under Section 5(1) of the IGST Act read with Section 3(7) and 3(8) of the Customs Tariff Act. The second leg of the transaction involves an agreement between the foreign exporter and the shipping line (whether foreign or Indian) for providing services for the transport of goods to the destination, i.e., in the territory of India.

(4) Section 2(30) of the CGST Act clearly provides that a transaction may have two or more taxable supplies, where one of them is a principal supply and such a supply is composite in nature.

Section 2(30) of the CGST Act defines “composite supply” and is reproduced hereunder:

“(30) “composite supply” means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply;

Illustration.— Where goods are packed and transported with insurance, the supply of goods, packing materials, transport and insurance is a composite supply and supply of goods is a principal supply;”

The illustration to Section 2(30) further clarifies that a transaction such as the CIF contract for supply of goods, that includes components of freight and insurance, reflects a composite supply under the CGST Act, where the principal supply is the supply of goods.

(5) Since, it is ascertained that the said supply of transportation of goods is a composite supply as defined u/s 2(30) of CGST Act, 2017, it is equally important to ascertain the tax liability of the same with legal reference to Section 8 of the CGST Act which is reproduced hereunder:

“8. Tax liability on composite and mixed supplies.—

The tax liability on a composite or a mixed supply shall be determined in the following manner, namely:—

(a) a composite supply comprising two or more supplies, one of which is a principal supply, shall be treated as a supply of such principal supply; and

(b) a mixed supply comprising two or more supplies shall be treated as a supply of that particular supply which attracts the highest rate of tax.”

Section 8 of the CGST Act provides that the tax liability on a composite supply which comprises of two or more supplies, will only be levied on the ‘principal supply’. In a CIF transaction, the principal supply, according to Section 2(30), is supply of goods. Thus, the tax would be levied as if the transaction was one of supply of goods.

(6) Section 20 of the IGST Act provides that the provisions relating to ‘composite supply’ under the CGST Act would apply mutatis mutandis under the IGST Act. By that analogy, the IGST in a transaction of composite supply would be levied on the principal supply of goods.

Therefore, the impugned levy which seeks to impose IGST on the ‘service’ aspect of the transaction, i.e. on the value of ocean freight, would be in violation of the principle of ‘composite supply’ incorporated under Section 2(30) read with Section 8 of the CGST Act, which applies equally to the imposition of IGST under Section 20 of the IGST Act.

In the present case, the pertinent question was whether the imposition of IGST on supply of services of transportation of goods in return for ocean freight can be sustained when there is a simultaneous imposition of IGST on supply of goods as a composite supply.

(7) The idea of introducing ‘composite supply’ was to ensure that various elements of a transaction are not dissected and the levy is imposed on the bundle of supplies altogether. Thus, the intent of the legislature was that a transaction which includes different aspects of supply of goods or services and which are naturally bundled together, must be taxed as a composite supply and not on taxed on individual service components of such supply.

(8) The assesse/respondents asserted that (i) the Indian importer is not privy to the contract between the foreign exporter and the foreign shipping line; (ii) the Indian importer does not pay consideration to the foreign shipping line; and (iii) the Indian importer does not receive any services from the foreign shipping line since the transportation services are provided by the foreign shipping line to the foreign exporter.

(9) The Court has upheld the validity of the impugned notifications i.e. Entry 9(ii) of Notification 8/2017 dated 28.6.2017 and Entry 10 of Notification 10/2017 dated 28.6.2017, on the ground that the Union Government in order to levy tax had stated that one should look beyond the text of the contract between the foreign shipping line and the foreign exporter and to identify the Indian importer as the recipient of the services. However, on the other hand, while making its submission to tide over the statutory provisions governing composite supply, the Union Government has contended that the two legs of the transaction are separate standalone agreements, thereby contradicting the main plank of its submission. Such a contradiction in views to serve arguments of convenience cannot be subscribed to by treating the two legs of the transaction as connected when it seeks to identify the Indian importer as a recipient of services while on the other hand, treating the two legs of the transaction as independent when it seeks to combat the submission of the respondent in regard to the statutory provisions governing composite supply. Therefore, it would not be permissible to ignore the text of Section 8 of the CGST Act that states import of goods as a composite supply and treat the two transactions as standalone agreements.

(10) In a CIF contract, the supply of goods is accompanied by the supply of services of transportation and insurance, the responsibility for which lies on the foreign exporter. The supply of service of transportation by the foreign shipper forms a part of the bundle of supplies between the foreign exporter and the Indian importer, on which the IGST is payable under Section 5(1) of the IGST Act read with Section 20 of the IGST Act, Section 8 and Section 2(30) of the CGST Act. To levy the IGST on the supply of the service component of the transaction would contradict the principle enshrined in Section 8 and be in violation of the scheme of the GST legislation. Based on this rationale, it is opinionated that while the impugned notifications are validly issued under Sections 5(3) and 5(4) of the IGST Act, the said notifications would be in violation of Section 8 of the CGST Act and the overall scheme of the GST legislation.

(11) As noted earlier, under Section 7(3) of the CGST Act, the Central Government has the power to notify an import of goods as an import of services and vice-versa and an extract of the said section is reproduced hereunder:

“7. Scope of supply— […]

(3) Subject to the provisions of [sub-sections (1), (1A) and (2)], the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as— (a) a supply of goods and not as a supply of services;

(b) a supply of services and not as a supply of goods.”

Since, there is no such provision in interpreting a composite supply of goods and services as two segregable supply of goods and supply of services, a composite supply in the given case shall remain a supply of imported goods rather than a supply of transportation of service and therefore no tax liability of IGST under RCM @ 5% shall arise.

(12) As stated in judgment of The Hon’ble Gujarat High Court in the judgment of M/s. MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER (2020), it appears apparently that while issuing the impugned notifications, the delegated legislature had in mind the provision of the Finance Act, 1994 i.e. Service Tax Act, thereby assuming to levy GST on the artificially dissected service portion of the composite supply of imported goods which includes components of value of service such as that of insurance and freight in addition to the main supply of goods. Since, under GST Law, composite supply cannot be artificially dissected into components of service and goods for the purpose of tax levy and it is to be noted that IGST has already been collected on such service component, as a part of the composite supply, under Section 5(1) of the IGST Act read with Section 20 of the IGST Act, Section 8 and Section 2(30) of the CGST Act.

The Hon’ble Supreme Court is in agreement with the view of the Hon’ble Gujarat High Court in the said case to the extent that a tax on the supply of a service, which has already been included by the legislation as a tax on the composite supply of goods, cannot be allowed.

The relevant extract from the said order of the High Court of Gujarat is reproduced hereunder:

“What has led to the present day problems in the implementation of the GST:

132. The GST is implemented by subsuming various indirect taxes. The difficulty which is being experienced today in proper implementation of the GST is because of the erroneous misconception of law, or rather, erroneous assumption on the part of the delegated legislation that service tax is an independent levy as it was prior to the GST and it go vivisect the transaction of supply to levy more taxes on certain components completely overlooking or forgetting the basic concept of composite supply introduced in the GST legislation and the very idea of levying the GST.

134. All the learned senior counsel are right in their submission that if such an erroneous impression is not corrected and if such a trend continues, then in future even the other components of supply of goods, such as, insurance, packaging, loading/unloading, labour, etc. may also be artificially vivisected by the delegated legislation to once again levy the GST on the supply on which the tax is already collected.

215. Thus, having paid the IGST on the amount of freight which is included in the value of the imported goods, the impugned notifications levying tax again as a supply of service, without any express sanction by the statute, are illegal and liable to be struck down.”

Other notable conclusions from the landmark Hon’ble Supreme Court Judgment in the case of Union of India & Anr. Versus M/s Mohit Minerals Pvt. Ltd. Through Director. (2022) are as follows:

(i) The recommendations of the GST Council are not binding on the Union and States for the following reasons:

(1) The deletion of Article 279B and the inclusion of Article 279(1) by the Constitution Amendment Act 2016 indicates that the Parliament intended for the recommendations of the GST Council to only have a persuasive value, particularly when interpreted along with the objective of the GST regime to foster cooperative federalism and harmony between the constituent units;

(2) Neither does Article 279A begin with a non-obstante clause nor does Article 246A state that it is subject to the provisions of Article 279A. The Parliament and the State legislatures possess simultaneous power to legislate on GST. Article 246A does not envisage a repugnancy provision to resolve the inconsistencies between the Central and the State laws on GST. The ‘recommendations’ of the GST Council are the product of a collaborative dialogue involving the Union and States. They are recommendatory in nature. To regard them as binding edicts would disrupt fiscal federalism, where both the Union and the States are conferred equal power to legislate on GST. It is not imperative that one of the federal units must always possess a higher share in the power for the federal units to make decisions. Indian federalism is a dialogue between cooperative and uncooperative federalism where the federal units are at liberty to use different means of persuasion ranging from collaboration to contestation; and

(3) The Government while exercising its rule-making power under the provisions of the CGST Act and IGST Act is bound by the recommendations of the GST Council. However, that does not mean that all the recommendations of the GST Council made by virtue of the power Article 279A (4) are binding on the legislature’s power to enact primary legislations.

Impact of the above conclusion of the said order:

(4) It would be counterproductive to the objective of GST Act i.e. One Nation, One Tax, if few States begin to legislate their own tax laws that run counter to the Central GST Law. Reliance on this judgment by the State machinery may begin the process of collapse of the GST which has not only aided in formalisation of the economy but also has improved revenue collections for the Government and has helped taxpayers avoid the cascading effects of multiple indirect levies, as was prevalent in the pre-GST era. The ramifications for the State Governments if acted in isolation to legislate their own GST Law shall act against their own interest in the long run, besides causing preventable confusion for taxpayers. The State Governments may not be able to reap the benefits of a common national market for goods and services which consequently may drive away investors out of such States due to complexities in doing business.

(5) Since, the Court has stated that the Council is a place as much for political contestation as for co-operative federalism, however, the meaning should be derived constructively to ensure that the Council should transcend political rivalries of the day and should not legislate in favour of certain states over and above other states with an underlying political agenda or related motivation. The point is that certain opposition- ruled States should have the right to dissent in the Council and their voice should not be drowned in the masquerade of unanimity in decision-making. The Centre may consider to set an example by accommodating the demands of such States in the Council even if it means some sacrifice on its part in the interest of co-operative federalism.

(ii) CIF Contract constitutes an inter-state supply:

(1) On a conjoint reading of Sections 2(11) and 13(9) of the IGST Act, read with Section 2(93) of the CGST Act, the import of goods by a CIF contract constitutes an “inter-state” supply which can be subject to IGST where the importer of such goods would be the recipient of shipping service;

(2) All 3 conditions to qualify as import of service as per Section 2(11) of CGST Act, 2017 are satisfied, namely, (i) the supplier of service is located outside India; (ii) the recipient of service is located in India; and (iii) the place of supply of service is in India.

(3) The place of supply of service is in India and territorial nexus with India- Section 13(9) of the IGST Act creates a deeming fiction of place of supply of transportation services to be in India when the destination of goods is in India. The impugned levy on the supply of transportation service by the shipping line to the foreign exporter to import goods into India has a two-fold connection: first, the destination of the goods is India and thus, a clear territorial nexus is established with the event occurring outside the territory; and second, the services are rendered for the benefit of the Indian importer. Thus, the transaction does have a nexus with the territory of India. As stated above, the IGST Act under Section 13(9) recognises the place of supply of services as the destination of goods when the supplier is located outside India. Since the destination of goods is India, the statute itself is broad enough to cover a taxable event that has extra-territorial aspects, which bears a nexus to India.

(iii) Importer is recipient of service:

(1) The recipient of service is located in India- In such a scenario, when the place of supply of services is deemed to be the destination of goods under Section 13(9) of the IGST Act, the supply of services would necessarily be “made” to the Indian importer, who would then be considered as a “recipient” under the definition of Section 2(93)(c) of the CGST Act. The supply can thus be construed as being “made” to the Indian importer who becomes the recipient under Section 2(93)(c) of the CGST Act. Section 13(9) of the IGST Act read with Section 2(93)(c) of the CGST Act inherently create a deeming fiction of the importer of goods to be the recipient of shipping service.

(2) Section 5(4) of the IGST Act enables the Central Government to specify a class of registered persons as the recipients, thereby conferring the power of creating a deeming fiction on the delegated legislation;

On 29 August 2018, Section 5(4) of IGST Act, 2018 was amended by Amending Act 32 of 2018. The amended Section 5(4) came into effect on 1 February 2019. This enables the Central Government to create a deeming fiction of declaring a class of registered persons “as the recipient” of the supply of taxable goods or service. In deploying the language “as the”, and not “by the” recipient, the applicability of the definition of recipient vis-à-vis Section 2(93) of the CGST Act is no longer necessary for determining the validity of such a notification.

(3) Therefore, the effect of such amendment has been as follows:-

(i) the powers of the Central Government to specify through a notification has been clarified; and

(ii) the power to specify a class of registered persons as the recipient has been recognised.

Therefore, Entry No. 10 of Notification 10/2017, deeming the importer of the goods as the recipient of service is case of services supplied by a person located in non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India, is valid to that extent.

(iv) Consideration paid by the foreign exporter to the foreign shipping line shall not obstruct the CIF transaction to be considered as a ‘supply of service’ under Section 7(4) of the IGST Act:

Section 2(31) of the CGST Act defines ‘consideration’ to include payment made or to be made by the recipient or by any other person. Thus, in the case of goods imported on a CIF basis, the fact that consideration is paid by the foreign exporter to the foreign shipping line would not stand in the way of it being considered as a ‘supply of service’ under Section 7(4) of the IGST Act which is made for a consideration, thereby constituting ‘supply of service’ in the course of inter-state trade or commerce that can be subject to IGST under Section 5(1) of the IGST Act.

(v) Valuation can be prescribed by notification:

Sections 15(4) and (5) provide for the value of the supply of goods or services if it cannot be determined under sub-section (1) of Section 15 of the CGST Act whereby Rules 27 to 31 of Chapter IV of the CGST Rules 2017, prescribe the manner of determining value of supply. Also, Rule 31 also provides for residual powers to the GST Council for prescribing modes of valuation. Thus, the impugned notification 8/2017 cannot be struck down for excessive delegation when it prescribes 10 per cent of the CIF value as the mechanism for imposing tax on a reverse charge basis.

Refund of IGST already paid under Reverse Charge Mechanism:

(1) Refund of IGST already paid under Reverse Charge Mechanism as per Section 5(1) of the IGST Act read with Section 20 of the IGST Act, Section 8 and Section 2(30) of the CGST Act, in pursuance of the Hon’ble Supreme Court Judgment in the case of Union of India & Anr. Versus M/s Mohit Minerals Pvt. Ltd. Through Director. (2022), may be applied for and reliance can be placed on several judgments of High Courts where refund of IGST paid on ocean freight beyond limitation period prescribed under GST Law has been allowed.

(2) It is to be noted that reliance can be placed the judgment of The Hon’ble High Court of Gujarat in the case of M/s. Comsol Energy Private Limited v. State of Gujarat [R/Special Civil Application No. 11905 of 2020 decided on December 21, 2020], which allowed the refund claim of IGST paid on ocean freight under the reverse charge mechanism (RCM) beyond the statutory time limit prescribed under Section 54 of the CGST Act, 2017.

It was held that the amount collected without authority of law cannot be considered as tax collected and therefore, statutory time limit prescribed under Section 54 of the CGST Act shall not be applicable. Further, noted that the refund claim was within the time limit prescribed under the Limitation Act, 1963 (“the Limitation Act”).

(3) As per the judgment of Hon’ble Gujarat High Court in the case of MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER (2020), which was later upheld by the judgment of Hon’ble Supreme Court Judgment in the case of Union of India & Anr. Versus M/s Mohit Minerals Pvt. Ltd. Through Director. (2022), the Entry No. 9(ii) of Notification No.8/2017 – Integrated Tax (Rate) dated 28.06.2017 and the Entry No.10 of the Notification No.10/2017 – Integrated Tax (Rate) dated 28.06.2017 were declared ultra vires as they lacked the legislative competency, thereby making it unconstitutional to levy IGST @ 5% under RCM on Ocean Freight on the services provided by a person located in a non-taxable territory by way of transportation of goods through vessel from a place outside India to customs frontier of India under a CIF contract. Here, on the value of the composite supply of goods, i.e. including value of insurance and freight components, a levy of IGST u/s 5(1) of the IGST Act read with Section 20 of the IGST Act, Section 8 and Section 2(30) of the CGST Act, is made and no separate levy of IGST @ 5% under RCM can to be made on the Indian importer for the supply of services of transportation of goods by the shipping line since it would be in violation of Section 8 of the CGST Act, 2017and shall amount to double taxation.

(4) As per the judgment of (1) The Hon’ble High Court of Gujarat in the case of M/s. Comsol Energy Private Limited v. State of Gujarat [R/Special Civil Application No. 11905 of 2020 decided on December 21, 2020], (2) The Hon’ble High Court of Gujarat in the case of BHARAT OMAN REFINERIES LTD. VERSUS UNION OF INDIA & 1 OTHER (S) (2020) , (3) The Hon’ble High Court of Gujarat in the case of GOKUL AGRO RESOURCES LTD. VERSUS UNION OF INDIA (2020) and as per the judgment of (4) The Hon’ble High Court of Rajasthan in the case of LAKHPAT TRADING AND INDUSTRYS PRIVATE LTD., AMEET BHANDARRI VERSUS UNION OF INDIA, GOODS AND SERVICE TAX COUNCIL, DY. COMMISSIONER (ADM.) , GST COMMERCIAL TAXES, (5) The Hon’ble High Court of Rajasthan in the case of M/S. MAHESH VEGOILS PRIVATE LIMITED VERSUS UNION OF INDIA, THE GOODS AND SERVICE TAX COUNCIL (GST COUNCIL) , ASSISTANT COMMISSIONER, CENTRAL GOODS AND SERVICE TAX, (6) The Hon’ble High Court of Rajasthan in the case of M/S. SHREE MAHESH OIL PRODUCTS VERSUS UNION OF INDIA, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) , THE GOODS AND SERVICE TAX COUNCIL (GST COUNCIL) , COMMERCIAL TAXES OFFICER, RAJASTHAN, it was stated that Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. Since the amount of IGST collected by the Central Government is without authority of law, the GST Department is obliged to refund the amount erroneously collected.

It was further observed that, Section 54 of the CGST Act is applicable only for claiming refund of any tax paid under the provisions of the CGST Act. The amount collected by the Respondent without authority of law is not considered as tax collected by them and therefore, Section 54 of the CGST Act is not applicable.

It was noted that, Section 17(1) of the Limitation Act is the appropriate provision for claiming the refund of the amount paid to the GST Department under the mistake of law.

Therefore, the GST Department was instructed to process the refund claim along with simple interest at the rate of 6% per annum to the assesse.

(5) It is noted that reliance can be placed on the judgment in the case of 3E Infotech Ltd. vs. CESTAT, [2018 (7) TMI 276 – MADRAS HIGH COURT], wherein the Hon’ble Madras High Court held that the service tax paid under mistake of law is to be returned to the assessee irrespective of the period covered under the refund application. It was held that refusing to return the amount would go against the mandate of Article 265 of the Constitution of India.

(6) In a case of dispute of sanctioning of refund claims due to statutory limitation of being time-barred under the said Act, in a case of payment of tax made under mistake of law, reliance can be placed on the judgment of The Supreme Court of India, in the case of Union of India Vs. ITC Ltd. [1993 (7) TMI 75 – SUPREME COURT OF INDIA], wherein it was held that the Assessee’s claim to refund would not be disallowed solely because it seemed barred by limitation.

(7) It is noted that reliance can be placed on the judgment of The Hon’ble High Court of Gujarat in the case BINANI CEMENT LTD. VERSUS UNION OF INDIA, wherein it was held that, “it is a case where the duty was collected without any authority of law. Such collection of duty is not illegal or unlawful or irregularly collected Customs duty under the Customs Act, but a duty collected without authority of law and therefore opposed to Article 265 of the Constitution of India and is thus unconstitutional. In that view of the matter, the petitioners cannot be bound by the limitation prescribed in the Customs Act, 1962 for claiming refund of excess duty or duty collected illegally. The period of limitation prescribed under the Limitation Act would apply.”

As per section 17(1)(c) of the Limitation Act, 1963, such refund of tax paid under mistake of law can be claimed within three years from the detection of the mistake.

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