Rohan Shah

7/31/2019 Rohan Shah

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CONFERENCE ON GST

Distance to GST Has the Budget 2012 shortened it?

Rohan Shah

Economic Laws Practice

02nd June 2012


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Background to the introduction of theNegative List


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Current Tax Cost in India

Intra-State

Ex. Duty 12%

Edu. Cess 3%

VAT 5%/12.5%

Imports

Customs DutyBasic 10%

CVD 12%

Ed. Cess 3%

Service Provider

Serv. Tax 12.36%

Factory

RetailerDealer

Toll Manufacturer

Goods Transporter

Serv. Tax-12.36%

Interstate purchase

(CST)

Stock transfer

(No tax)

Octroi 0.5 to 5%

Inter-

State

Ex. Duty 12%

Edu. Cess 3%

CST 2%

Local purchase

VAT 5%/12.5%

Other

Service Provider

Serv. Tax 12.36%

Local purchaseVAT 5%/12.5%

Other

Service ProviderServ. Tax 12.36%

Central Levy State Levy

VAT rate may range from 12.5-15% depending on the State

-Credit not fungible between State and Centre;

resulting in a cascading impact of taxes

- Cumulative burden of Indirect Taxes in India 28%

to 44% (approx.)


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4

Excise dutyService tax

VAT (State Sales tax)VAT (State Sales tax)

Central Sales taxEntry taxOctroi

Addnl. duty of CustomsExcise dutyService tax

No Credit

Current Taxes and Credits

Current Taxes and Credits


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Constitutional Framework...

Taxes levied by Central Government and State Government(s)

Authority to levy a tax is derived from the Constitution of India Which allocates power to levy various taxes between the Centre

and State

Article 265 of the Constitution which states that "No tax shall belevied or collected except by the authority of law

Article 246 of the Indian Constitution, distributes legislativepowers including taxation, between the Parliament of India andthe State Legislature

Schedule VII enumerates use of three lists;

List - I Where the parliament is competent to make laws

List - II Where only the state legislature can make laws

List - III Where both the Parliament and the State Legislature canmake laws upon concurrently

5


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...Constitutional Framework

Union List State List Concurrent List

Income Tax

Custom Duty

Excise Duty

Corporation Tax

Service tax Central Sales Tax

Stamp duty in respectof bills of exchange,cheques, promissory

notes, etc

Taxes on lands andbuildings

Excise duty onalcoholic liquor etc

Entry tax

Sales Tax

Tolls

Luxury Tax

Stamp duty in respect

of documents otherthan those specified inthe provisions of List I

Stamp duties otherthan duties or feescollected by means of

judicial stamps, butnot including rates of

stamp duty

6

The constant blurring of taxing jurisdiction between the Centre and the

States has necessitated multiple Constitutional challenges


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Constitutional Amendment Bill

Introduction of Article 246A in the Constitution:

Parliament and the Legislature of every State, have power

to make laws with respect to goods

and services tax imposed by the Union or by that State

respectively.

Provided that Parliament has exclusive power to make lawswith respect to goods and services tax where the supply of

goods, or of services, or both takes place in the course ofinter-State trade or commerce.


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8

Goods Vs. Services

Lines between the taxation of Goods & Services is constantly blurring Duality of Charge

Sr.No.

Activity Customsduty

Central /State Excise

duty

Servicetax

VAT / CST

1. Intellectual PropertyServices

2. Import of Designs, TechnicalKnow etc..

3. Works Contract

4. Construction Services

5. Manufacture of Productsliable to State Excise

Duality of charge pre negative list


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Discrimination between manufacturers, service providers and traders

Non-uniform application of exemptions, credit provisions, etc.Cascading impact of taxes

Multiple causes of irrecoverable tax costs

Accumulation of credits

Non-transferability lack of fungibility Inverted duty structures

Rate structure - no uniformity

no clear basis on which effective rates determined

Non availability of creditsBasis of levy of Service Tax was uncertain and variable

Rendition / performance

Consumption / use

Receipt

Other pain points in the current system


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GST regarded as panacea to addressall pain points


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Rationale for negative list


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Rationale for Negative List

First Concept Paper for Public Debate (August 2011)

There are advantages in moving towards negative list at anearlier time in order to gain useful experience in its implementationand minimize the impact of the mammoth changes that GST mayusher

Revised Concept Paper on Taxation of Services based onNegative List (November 2011)

Introduction of Negative List at an earlier stage will pave the way

for the smooth transition to the GST, and significantly ease the

challenges arising out of implementing the GST.


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Rationale for Negative List

FMs speech (2012):

At the end of June this year, this tax will attain adulthood by completing18 years. It is therefore time to shift gears and accelerate ahead.However, service tax needs to confront two important challenges tosustain the journey. These are:

The share of services in taxes remains far below its potential. There is a

need to widen the tax base and strengthen its enforcement;

Service Tax law is complex and sometimes avoidably different fromCentral Excise. We need to bring the two as close as possible in the lightof our eventual goal of transition to GST.


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Negative list


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Enactment of Finance Act, 2012

Provisions in Finance Bill enacted as Finance Act,

2012 on May 28, 2012

Negative list provisions to come into force from a date

to be notified

The Legislative scheme for the levy of Service Tax

stands overhauled


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Taxable Services

Exempt Services - Threshold

Negative list + exempt

116

Taxable

Services

Approach Selective Vs Negative List

Selective Approach

selected services are taxable

Negative Listall

services are taxable


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17

Service Tax net widened

17


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Potential Revenue Impact

Effective percentage of entire service sector that is covered

under the tax net = 20-25% (First Concept Paper)

Estimated net revenue gain consequent to changes in the UnionBudget 2012-13, relating to Indirect Taxes, estimated at Rs.45,940 crore (Budget Speech 2012-13)

Service tax changes Rs. 18,660 crore additional revenue

Total Service Sector

(approx. 57% ofGDP) (A)

40% remains in thetax net

40% attributable tothe Informal sector

(under thresholdlimit)

60% remainstaxable

(20-25% of A)60% covered underthe negative list,

exemptions


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Change in provisions Finance Act

Section 65 - Definitions

Section 65A - Classification

Section 66 Charging Section

Section 66A Charging Section incase of import of services

Section 65B - Definition

Section 66B Charging Section

Section 66F - Classification

Section 66C Place of Provision

Section 66D Negative List

Section 66E Declared Services

Section 67A Rate and Value

Following provisions will cease to

exist from a date to be notified

Following provisions will come into

force from a date to be notified

Section 68 Payment of Service tax

Section 66C Place of Provision

Current Provisions underFinance Act

Provisions under Finance Act


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Charging Section

Old charging provision (Section66)

There shall be levied a tax(hereinafter referred to as theservice tax) at the rate of twelve

per cent. of the value of taxableservices referred to in sub-clauses [ ] of clause (105) ofsection 65 and collected in suchmanner as may be prescribed.

New charging provision (Section66B)

There shall be levied a tax(hereinafter referred to as theservice tax) at the rate of twelve

per cent. on the value of allservices, other than thoseservices specified in thenegative list, provided or agreedto be provided in the taxable

territory by one person toanother and collected in suchmanner as may be prescribed.


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Service

Means Includes But shall not include

- Any activity

- Carried out bya person foranother

- Forconsideration

-Includes a declared service

1. Right to use immovable property2. Construction of a complex, building,

civil structure or a part thereof;

including a complex or building

intended for sale to a buyer, wholly or

partly except where consideration is

received prior completion

3. Temporary transfer or permitting theuse or enjoyment of any intellectual

property right

4. Information technology software

services5. Obligation to refrain from an act, or to

tolerate an act or a situation, or to do

an act6. Service in relation to lease or hire of

goods and hire purchase transactions

7. Execution of Works Contracts

8. Service portion in the serving of foods

or other article of human consumption

-any activity that constitutes merely a

transfer in title of goods or immovableproperty by way of sale, gift or in anyother manner;-such transfer, delivery or supply of anygoods which is deemed to be a salewithin the meaning of clause (29A) ofArticle 366 of the Constitution;

- a transaction in money or actionableclaim;- any service provided by an employee toan employer in the course of or in relationto his employment;- fees taken in any Court or a tribunalestablished under any law for the time

being in force- by a Constitutional authority under theIndian Constitution or a member of anIndian Legislature or a local self-government in that capacity


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Country Definition of service

Canada(Section 123(1) ofthe Excise Tax Act)

Service means anything other than Property,

Money, and

Anything that is supplied to an employer by a person who isor agrees to become an employee of the employer in thecourse of or in relation to the office or employment of that

person.

New Zealand

(Section 2 of theGST Act)

Services has been defined to mean Anything which is not goods

or money

Singapore

(Section 10 of theGST Act )

Supply of services means anything which is not a supply of

goods but is done for a consideration (including, if so done, thegranting, assignment or surrender of any right)

United Kingdom

(Section 5 of theValue Added Tax

Act, 1994 )

Supply of services is defined as anything which is not a supply

of goods but is done for a consideration (including, if so done, thegranting, assignment or surrender of any right) is a supply of

services.

Definition of Service other jurisdictions


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Negative List of Services...

Sr.No.

Description of services which are not liable to Service Tax

1. Services by Government or a local authority (excluding certain specified

services)

2. Services by the Reserve Bank of India

3. Services by a foreign diplomatic mission located in India

4. Services relating to agriculture (only certain specified services covered)5. Trading of goods

6. Any process amounting to manufacture or production of goods. Process

amounting to manufacture or production of goods" has been defined to as a

process on which duties of excise are leviable under section 3 of the CE Act,

1944 or any process amounting to manufacture of alcoholic liquors forhuman consumption on which duties of excise are leviable under any State

Act

7. Selling of space or time slots for advertisements other than advertisements

broadcast by radio or television. Advertisement has been specifically

defined.

8. Service by way of access to a road or a bridge on payment of toll charges


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...Negative List of Services...

Sr.No.


9. Betting, gambling or lottery. The term betting or gambling has been

specifically defined.

10. Admission to entertainment events or access to amusement facilities.

11. Transmission or distribution of electricity by an electricity transmission or

distribution utility. The term electricity transmission or distribution utility has

been specifically defined.

12. Services by way of pre-school education, higher secondary school

education, education as a part of a curriculum for obtaining a qualification

recognised by any law and vocational education course.

13. Services by way of renting of residential dwelling for use as residence. The

term renting has been specifically defined.

14. Services by way of extending deposits, loans or advances in so far as the

consideration is represented by way of interest or discount or inter se sale or

purchase of foreign currency amongst banks or authorised dealers of foreign

exchange or amongst banks and such dealers


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...Negative List of Services

Sr.No.


15. Service of transportation of passengers, with or without accompanied

belongings, by a stage carriage; railways in a class other than first class or

an air-conditioned coach; metro, monorail or tramway; inland waterways;

public transport, other than predominantly for tourism purpose, in a vessel of

less than fifteen tonne net; and metered cabs, radio taxis or auto rickshaws

16. Services by way of transportation of goods by road, by an aircraft or avessel from a place outside India to the first customs, or by inland

waterways (subject to certain exceptions)

17. Funeral, burial, crematorium or mortuary services including transportation of

the deceased.


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Sr.

No.

Description of service in respect of which exemption from payment of Service Tax

is granted

1. Services provided to the United Nations or a specified international organization

2. Health care services by a clinical establishment, an authorised medical practitioner

3. Services by a veterinary clinic in relation to health care of animals or birds

4. Services by an entity registered under Section 12AA of the IT Act ie charitable activities.

5. Services of-(a) renting of precincts of a religious place meant for general public; or (b)conduct of any religious ceremony.

6. Services provided to any person other than a business entity by -(a) an individual as an advocate; or

(b) a person represented on and as arbitral tribunals.

7. Services of technical testing or analysis of newly developed drugs, including vaccines

and herbal remedies, on human participants by a clinical research organization...

8. Services by way of training or coaching in recreational activities relating to arts, culture

or sports.

Exempted Services...


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Sr.No.

Description of service in respect of which exemption from payment of Service Taxis granted

9. Services provided-(a) to an educational institution by way of catering under any centrally assisted mid day

meals scheme sponsored by Government; (b) to or by an institution in relation to

educational services, where the educational services are exempt from the levy of Service

Tax, by way of transportation of students or staff (c) to or by an institution in relation to

educational services, where the educational services are exempted from the levy of

service tax, by way of services in relation to admission to such education.

10. Services provided to a recognised sports body by-

(a) an individual as a player, referee, umpire, coach or manager for participation in a

tournament or championship organized by a recognized sports body;

(b) another recognised sports body;

11. Services by way of sponsorship of tournaments or championships organised,-

(a) by a national sports federation, or its affiliated federations(b) by Association of Indian Universities, Inter-University Sports Board, School Games

Federation of India, All India Sports Council for the Deaf, Paralympic Committee of India,

Special Olympics Bharat;

(c) by Central Civil Services Cultural and Sports Board;

(d) as part of national games, by Indian Olympic Association; or

(e) under Panchayat Yuva Kreeda Aur Khel Abhiyaan (PYKKA) Scheme;

...Exempted Services...


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Sr.No.

Description of service in respect of which exemption from payment of Service Taxis granted

12. Services provided to the Government or local authority by way of erection, construction,maintenance, repair, alteration, renovation or restoration of -

(a) a civil structure .. meant predominantly for a non-industrial or non-commercial use;

(b) a historical monument, archaeological site or remains of national importance...

(c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) anart or cultural establishment;

(d) canal, dam or other irrigation works;(e) pipeline, conduit or plant for (i) drinking water supply (ii) water treatment (iii)seweragetreatment or disposal; or

(f) a residential complex predominantly meant for self-use or the use of their employeesor other persons specified in the Explanation1 to clause 44 of section 65 B of the saidFinance Act;

13. Services provided by way of erection, construction, maintenance, repair, alteration,renovation or restoration of,-

(a) road, bridge, tunnel, or terminal for road transportation for use by general public;

(b) building owned by an entity registered under section 12AA of the Income tax Act,

1961(43 of 1961) and meant predominantly for religious use by general public;

(c) pollution control or effluent treatment plant, except located as a part of a factory; or

(d) electric crematorium;



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Sr.

No.


is granted

14 Services by way of erection or construction of original works pertaining to,-(a) airport, port or railways;

(b) single residential unit otherwise as a part of a residential complex;

(c) low- cost houses up to a carpet area of 60 square metres per house in a housing

project approved by competent authority empowered under the Scheme of Affordable

Housing in Partnership framed by the Ministry of Housing and Urban Poverty Alleviation,

Government of India;(d) post- harvest storage infrastructure for agricultural produce including a cold storages

for such purposes; or

(e) mechanised food grain handling system, machinery or equipment for units processing

agricultural produce as food stuff excluding alcoholic beverages;

15. Temporary transfer or permitting the use or enjoyment of a copyright covered under

clause (a) or (b) of sub-section (1) of section 13 of the Indian Copyright Act, 1957 (14 of

1957), relating to original literary, dramatic, musical, artistic works or cinematograph

films;

16 Services by a performing artist in folk or classical art forms of (i) music, or (ii) dance, or

(iii) theatre, excluding services provided by such artist as a brand ambassador

17. Services by way of collecting or providing news by an independent journalist, Press Trustof India or United News of India.



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Sr.

No.


is granted

18. Services by way of renting of a hotel, inn, guest house, club, campsite or other

commercial places meant for residential or lodging purposes, having declared tariff of a

room below rupees one thousand per day or equivalent;

19. Services provided in relation to serving of food or beverages by a restaurant, eating joint

or a mess, other than those having the facility of air-conditioning or central air-heating in

any part of the establishment, at any time during the year and which has a license toserve alcoholic beverages;

20. Services by way of transportation by rail or a vessel from one port in India to another of

the 9 specified varieties of goods.

21. Services provided by a goods transport agency by way of transportation of fruits,

vegetables, eggs, milk, food grains or pulses, or where gross amount charged on a

consignment transported in a single goods carriage does not exceed Rs. 1,500; orwhere gross amount charged for transportation of all such goods for a single consignee

in the goods carriage does not exceed Rs. 750

22. Renting of motor vehicles to State transport undertaking meant to carry more than twelve

passengers and to a goods transport agency, a means of transportation of goods.



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Sr.

No.


is granted

23. Transport of passengers by-air embarking or terminating in an airport located in the state of Arunachal Pradesh,

Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, or Tripura or at Baghdogra

located in West Bengal; or

a contract carriage for the transportation of passengers, excluding tourism, conducted

tour, charter or hire

24. Services by way of motor vehicle parking to general public excluding leasing of space toan entity for providing such parking facility

25. Services provided to the Government or a local authority by way of -

(a) repair of a ship, boat or vessel;

(b) effluents and sewerage treatment;

(c) waste collection or disposal;

(d) storage, treatment or testing of water for drinking purposes; or

(e) transport of water by pipeline or conduit for drinking purposes

26. Services of general insurance business provided under specified schemes

27. Services provided by an incubatee up to total business turnover of Rs. 50 lakh in an FY,

subject to the following conditions: (a) total business turnover had not exceeded Rs. 50

lakh in the preceding FY and(b) 3 years has not lapsed from the date of entering into agreement as an incubatee



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Sr.

No.


is granted

28. Service by an unincorporated body or an entity registered as a society to own members

by way of reimbursement of charges or share of contribution

(a) as a trade union;

(b) for the provision of exempt services by the entity to third persons; or

(c) up to an amount of Rs. 5000 per month per member for sourcing of goods or services

from a third person for common use of its members in a housing society or residentialcomplex

29. Services by the following persons in respective capacities -

(a) a sub-broker or an authorised person to a stock broker;

(b) an authorised person to a member of a commodity exchange;

(c) a mutual fund agent or distributor to mutual fund or asset management company for

distribution or marketing of mutual fund;(d) a selling or marketing agent of lottery tickets to a distributer or a selling agent;

(e) a selling agent or a distributer of SIM cards or recharge coupon vouchers; or

(f) a business facilitator or a business correspondent to a banking company or an

insurance company in a rural area;



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Sr.

No.


is granted

30. Carrying out an intermediate production process as job work in relation to specified

goods

31. Services by an organiser to any person in respect of a business exhibition held outside

India

32. Services by way of making telephone calls from:

(a) departmentally run public telephones;

(b) guaranteed public telephones operating only for local calls; or

(c) free telephone at airport and hospitals where no bills are being issued

33. Services by way of slaughtering of bovine animals

34. Services received from a service provider located in a non- taxable territory by: (a) theGovernment, a local authority or an individual in relation to any purpose other than

industry, business or commerce; or

(b) an entity registered under section 12AA of the Income tax Act, 1961 (43 of 1961) for

the purposes of providing charitable activities.

...Exempted Services


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Principles of classification

Concept of composite service under Section 65A has been replaced

by bundled service

Reference to a service shall not include reference to a service used inproviding such main service

For services capable of differential treatment for any reason based on itsdescription, the most specific description to be preferred over a moregeneral description

In case of a bundled service, i.e. when provision of one service iscombined with element(s) of other service(s), taxability is to bedetermined as under:

If various elements of such service are naturally bundled in the ordinarycourse of business, it shall be treated as provision of the single service which

gives such bundle its essential character If various elements of such service are not naturally bundled in the ordinary

course of business, it shall be treated as provision of the single service whichresults in the highest liability of Service Tax

What is naturally bundled will be the subject matter of interpretation


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Duality of taxes post negative list

Renting of immovable property service

Stamp duty vis--vis Service Tax

Supply of software

VAT and Service tax

Works Contract / Construction services

Differing schemes of abatements under VAT Laws and Service Tax law

Original Works, Contract value = Rs. 100/- Service Tax @12.36% on Rs. 40/- (abatement of 60%)

VAT @ 14.5% on Rs. 75/- (abatement of 25% under VAT Laws)

Effective value of contract subjected to Indirect Taxes is Rs.115/- asagainst an actual realization of Rs. 100/-

Taxing impact further aggravated for other than Original Works onaccount of the Service tax abatement being only 40%, thereforeeffective value of contract subject to Indirect Taxes is Rs.135/-

Credits of Excise Duty paid on goods not available on account ofconditions of the abatement scheme


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Transactions newly liable?

Non-compete fees

Financial transactions for consideration derivatives, hedges

Sale of business (slump sale transactions)

License fees / Assignment fees

Revenue share arrangements with agencies like AAI, NHAI,MMRDA

Directors fees to non-executive directors

Ever evolving tax footprint


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Dichotomy between tax footprint and credit footprint

While the tax footprint has risen exponentially the credit footprint isnarrow and remains fragmented in silos

The scope of the term input service was narrowed in 2011, to

eliminate services availed for businesses and restricted to only forproviding taxable output service, and / or used in or in relation tomanufacture

Flexibility for distribution of credit has been restricted for Input ServiceDistributors

No concept of First Stage Dealer to pass through Service Tax credits

The net impact is that the cascading of taxes will rise and the sunkcosts in unutilisable credits will escalate

The potential approaches to addressing this problem could be Enlarge the scope of input services

Grant refund of unutilisable credit

Offer fungible reflective credits unutilised CENVAT credit can bemade available fungibly as VAT credit


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Goods and Service Tax (GST)

K b d


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Key taxes subsumed

CentralCentralExcise Duty

Addnl.ExciseDuties

Excise Dutyon M&TP

Service Tax CVD

SAD

Surcharges

Cesses StateEntry Tax (notOctroi)

Cesses andsurcharges on

goods andservices

Taxes onlotteries,betting,

gambling

Luxury Tax

EntertainmentTax (exceptlevied by local

bodies)

VAT/Sales Tax

Dual GST

CST TO BE

PHASEDOUT

Lik l GST M d l


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Likely GST Model

.

CentralExcise

ServiceTax

.

ValueAdded

Tax

EntryTax/Octroi

OtherStatelevies

CentralGST

StateGSTStateGST

CentralSalesTax

Import

GST

StateGST

IGST

Milestones & Signals of GST


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41

Issue 2011 2012 Emerging Position

Expanded scope of ST Negative list introduced

Automatic refunds New scheme notified

Place of supply rules Introduced for Public debate

Time of supply rules(POT Rules)

Notified in 2011, Amendments toremove teething difficulties

IT Infrastructure /

Administrative structure

GST Network to be operational from

August 2012 / Single forms notified

for CED and ST

Draft legislations (Centre

& States)

No Draft legislations

Political will Many States forming a consensus




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42


Issue 2011 2012 Emerging Position

Transition date To be decided post discussion with

States

Constitutional

amendments

Introduced in the Lok Sabha, referred to

Standing Committee

Draft legislation Bill to be introducedAlignment of CED and

ST rates with

proposed CGST rate

Rate of CED & CE increased to 12% -

expected rate of CGST is 8% to 10%

Reduction in number

of CED exemptions

Reduction in number of exemptions

from CED

CST No reduction in CST rate

CST compensation Centre has refused to grant CST

compensation


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The information contained herein is of a general nature and is not intended to address the circumstances of any particular

individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such

The greater the time gapbetween the introduction of

negative list and theintroduction of GST, the greater

the burden for industry andconsumers

Rohan Shah

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