Clarification regarding GST rates & classification (goods) based on the recommendations of the GST Council in its 45th meeting held on 17th September, 2021 at Lucknow–reg.

Circular No. 163/19/2021-GST

F. No. 190354/206/2021-TRU
Government of India
Ministry of Finance
Department of Revenue
(Tax Research Unit)
*****

North Block, New Delhi
Date: 6th October, 2021

To,
            Principal Chief Commissioners/ Principal Director Generals,
            Chief Commissioners/ Director Generals,
            Principal Commissioners/ Commissioners of Central Excise & Central Tax(All),

Madam/ Sir,

                   Subject: Clarification regarding GST rates & classification (goods) based on the                                                              recommendations of the GST Council in its 45th meeting held on 17th September,                                            2021 at Lucknow–reg.

Based on the recommendations of the GST Council in its 45th meeting held on 17th
September, 2021, at Lucknow, clarification, with reference to GST levy, related to the
following are being issued through this circular:

i. Fresh vs dried fruits and nuts;
ii. Classification and applicable GST rates on Tamarind seeds;
iii. Coconut vs Copra;
iv. Classification and applicable GST rate on Pure henna powder and leaves, having no                                                 additives;
v. Scented sweet supari and flavored and coated illaichi;
vi. Classification of Brewers’ Spent Grain (BSG), Dried Distillers’ Grains with Soluble [DDGS]                                         and other such residues and applicable GST rate;
vii. GST rates on goods [miscellaneous pharmaceutical products] falling under heading 3006;

viii. Applicability of GST rate of 12% on all laboratory reagents and other goods
falling under heading 3822;
ix. Requirement of Original/ import Essentiality certificate, issued by the Directorate General of                                      Hydrocarbons (DGH) on each inter-State stock transfer of goods imported at concessional                                        GST rate for petroleum operations;
x. External batteries sold along with UPS Systems/ Inverter;
xi. Specified Renewable Energy Projects;
xii. Fiber Drums, whether corrugated or non-corrugated.

2. The issue-wise clarifications are discussed in detail below.

3. Applicability of GST on fresh and dried fruits and nuts:

3.1 Representations have been received seeking clarification regarding the
distinction between fresh and dried fruits and nuts and applicable GST rates.

3.2 At present, fresh nuts (almond, walnut, hazelnut, pistachio etc) falling under
heading 0801 and 0802 are exempt from GST, while dried nuts under these headings
attract GST at the rate of 5%/ 12%. The general Explanatory Notes to chapter 08
mentions that this chapter covers fruit, nuts intended for human consumption. They
may be fresh (including chilled), frozen (whether or not previously cooked by
steaming or boiling in water or containing added sweetening matter) or dried
(including dehydrated, evaporated or freeze-dried).Thus, HS chapter differentiates
between fresh, frozen and dried fruits and nuts. Fresh fruit and nuts would thus cover
fruit and nuts which are meant to be supplied in the state as plucked. They continue to
be fresh even if chilled. However, fruit and nuts do not qualify as fresh, once frozen
(cooked or otherwise), or intentionally dried to dehydrate including through sun
drying, evaporation or freezing, for supply as dried fruits or nuts. It may be noted that
in terms of note 3 to Chapter 8, dried fruits, even if partially re-hydrated, or subject to
preservation say by moderate heat treatment, retain the character of dried fruits or
dried nuts.

3.3. Therefore, exemption from GST to fresh fruits and nuts covers only such
products which are not frozen or dried in any manner as stated above or otherwise
processed. Supply of dried fruits and nuts, falling under heading 0801 and 0802 attract
GST at the rate of 5%/12% as specified in the respective rate Schedules.

4. Applicability of GST on tamarind seeds:

4.1 Representations have been received seeking clarification regarding classification
and applicable GST rates on tamarind seeds. The dispute is in classification of tamarind
seeds between tariff heading 1207 and 1209.

4.2 As per general Explanatory Notes to HS 2017, heading 1209, covering seeds, fruit
and spores, of a kind used for sowing, covers tamarind seeds. As per Chapter note 3 to
Chapter 12, for the purposes of heading 1209, beet seeds, grass and other herbage seeds,
seeds of ornamental flowers, vegetable seeds, seeds of forest trees, seeds of fruit trees,
seeds of vetches (other than those of the species Vicia faba) or of lupines are to be
regarded as “seeds of a kind used for sowing”. Thus, tamarind seeds, even if used for
any purpose other than sowing, is liable to be classified under heading 1209 and
hitherto attracted nil GST rate, irrespective of its use (for the period 01.07.2017 to
30.09.2021).

4.3 The GST council in its 45th meeting recommended GST rate on seeds, falling
under heading 1209, meant for any use other than sowing to 5% (S. No. 71A of schedule
I of notification No. 1/2017- Central Tax (Rate) dated 28.06.2017) and Nil rate would
apply only to seeds for this heading if used for sowing purposes (S. No. 86 of schedule
of notification No. 2/2017- Central Tax (Rate) dated 28.06.2017). Hence, with effect from
1.10.2021, tamarind and other seeds falling under heading 1209, (i.e. including tamarind
seeds), if not supplied as seed for sowing, would attract GST at the rate of 5%.

5. Clarification of definition of Copra:

5.1. Representations have been received seeking clarification regarding the definition
of Copra and applicable GST rates.

5.2 As per Explanatory Notes to HS (2017 edition) to heading 1203, Copra is dried
flesh of coconut generally used for the extraction of coconut oil. Coconut kernel turns
into copra, when it separates from the shell skin, while still being inside the shell. The
whole unbroken kernel could be taken out of shell only when it converts to copra. Once
taken out of shell, copra could be supplied either whole or broken.

5.3. As per the Explanatory Notes to HS, the heading 0801 covers coconut fresh or
dried but excludes Copra. Thus, exemption available to Coconut, fresh or dried,
whether or not shelled or peeled, vide entry at S. No. 47 of notification No. 2/2017-
Central Tax (Rate) dated 28.6.2017, is not available to Copra. Accordingly, Copra,
classified under heading 1203, attracts GST rate of 5% vide entry at S. No. 66 of
Schedule I of 1/2017-Central Taxes (Rate) dated 28.06.2017, irrespective of use.

6. Applicability of GST on pure henna powder and leaves:

6.1 Representations have been received seeking clarification regarding classification
and applicable GST rates on henna powder and henna leaves.

6.2 As per the Explanatory Notes to HS 2017, heading 1404 is vegetable products not
elsewhere specified or included. Further, as per the said Explanatory Notes, heading
1404 includes raw vegetable materials of a kind used primarily in dyeing or tanning.
Such products are used primarily in dyeing or tanning either directly or in preparation
of dyeing or tanning extracts. The material may be untreated, cleaned, dried, ground or
powdered (whether or not compressed).

6.3 Accordingly, it is clarified that pure henna powder and henna leaves, having no
additives, is classifiable under tariff item 1404 90 90 and shall attract GST rate of 5% (S.
No. 78 of schedule I of notification No. 1/2017-Central Tax (Rate) dated 28.06.2017).
6.4. Further, the GST rate on mehndi paste in cones falling under heading 1404 and
3305 shall be 5% (S. No. 78A of schedule I of notification No. 1/2017-Central Tax (Rate)
dated 28.06.2017).

7. Applicability of GST on scented sweet supari & flavored and coated illaichi:

7.1 Representations have been received seeking clarification regarding classification
and applicable GST rates on flavored and coated illaichi, and scented sweet supari.

7.2 Scented sweet supari falls under tariff item 2106 90 30 as “Betel nut product”
known as “Supari” and attracts GST rate of 18% vide entry at S. No. 23 of Schedule III of
notification No. 1/2017-Central Tax (Rate) dated 28.6.2017.

7.3 Flavored and coated illaichi generally consists of Cardamom Seeds, Aromatic
Spices, Silver Leaf, Saffron, Artificial Sweeteners. It is distinct from illaichi or cardamom
(which falls under heading 0908). It is clarified that flavored and coated illaichi is a value
added product and falls under sub-heading 2106. It accordingly attract GST at the rate
of 18% (S. No. 23 of schedule III of notification No. 1/2017-Central Tax (Rate) dated
28.06.2017).

8. Applicability of GST on Brewers’ Spent Grain (BSG), Dried Distillers’ Grains
with Soluble [DDGS] and other such residues:

8.1 Representations have been received seeking clarification regarding classification
and applicable GST rates on Brewers’ spent grain (BSG), Dried distillers’ grains with
soluble [DDGS] and other such residues of starch manufacture and similar residues, beet-pulp, bagasse and other waste of sugar manufacture, brewing or distilling dregs and waste, whether or not in the form of pellets.

8.2 As per the Explanatory Notes to the HSN, heading 2303 includes residues of
starch manufacture and similar residues (from maize (corn), rice, potatoes, etc.); beetpulp; bagasse; other waste products of sugar manufacture; brewing or distilling dregs
and waste, which comprises in particular – dregs of cereals obtained in the manufacture
of beer and consisting of exhausted grains remaining after the wort has been drawn off;
malts sprouts separated from the malted grain during the kilning process; spent hops;
Dregs resulting from the distillation of spirits from grain, seeds, potatoes, etc; beet pulp
wash (residues from the distillation of beet molasses).All these products remain
classified in the heading whether presented in wet or dry.

8.3 Thus, Brewers’ spent grain (BSG), Dried distillers’ grains with soluble [DDGS]
and other such residues are classifiable under heading 2303, attracting GST at the rate of
5% (S. No. 104 of schedule I of notification No. 1/2017-Central Tax (Rate) dated
28.06.2017).

9. Scope of GST rate on all pharmaceutical goods falling under heading 3006.

9.1 Entry at S. No. 65 of Schedule II of notification No. 1/2017-Central Tax (Rate)
dated 28.6.2017, reads as “Pharmaceutical goods specified in Note 4 to this Chapter [i.e. Sterile
surgical catgut, similar sterile suture materials (including sterile absorbable surgical or dental
yarns) and sterile tissue adhesives for surgical wound closure; sterile laminaria and sterile
laminaria tents; sterile absorbable surgical or dental haemostatics; sterile surgical or dental
adhesion barriers, whether or not absorbable; Waste pharmaceuticals] [other than
contraceptives]”

9.2 S. No. 65 of Second Schedule of Notification 1/2017- Central Tax (Rate) dated
28.6.2017 refers to the note 4 to Chapter 30 of the First schedule of the Customs Tariff
Act, 1975 while mentioning an illustrative list. Certain representations were received
seeking clarification on the applicable rate of goods falling under heading 3006 that are
not specifically mentioned in the Entry at S. No. 65 of Schedule II of notification No.
1/2017-Central Tax (Rate) dated 28.6.2017.

9.3 Note 4 to Chapter 30 of the First schedule of the Custom Tariff Act, 1975 reads as
follows:

“(a) sterile surgical catgut, similar sterile suture materials (including sterile absorbable
surgical or dental yarns) and sterile tissue adhesives for surgical wound closure;

(b) sterile laminaria and sterile laminaria tents;

(c) sterile absorbable surgical or dental haemostatics sterile surgical or dental adhesion
barriers, whether or not absorbable;

(d) opacifying preparations for X-ray examinations and diagnostic reagents designed to
be administered to the patient, being unmixed products put up in measured doses or
products consisting of two or more ingredients which have been mixed together for such
uses;

(e) blood-grouping reagents;

(f) dental cements and other dental fillings; bone reconstruction cements;

(g) first-aid boxes and kits;

(h) chemical contraceptive preparations based on hormones, on other products of heading 2937 or on spermicides;
(i) gel preparations designed to be used in human or veterinary medicine as a lubricant for parts of the body for surgical operations or physical examinations or as a coupling agent between the body and medical instruments; and
(j) waste pharmaceuticals, that is, pharmaceutical products which are unfit for their original intended purpose due to, for example, expiry of shelf-life.
(k) appliances identifiable for ostomy use, that is colostomy, ileostomy and urostomy pouches cut to shape and their adhesive wafers or faceplates.”

9.4 Thus, it is clarified that said entry 65 covers all goods as specified in Chapter
Note 4 and Chapter Note 4 in turn covers all goods covered under Heading 3006.
Therefore, said entry 65 covers all goods falling under heading 3006, irrespective of the
fact that such goods are specifically mentioned in said entry. Therefore, all goods falling
under heading 3006 attract GST rate of 12% under entry 65 in the 12% rate schedule.

10. All laboratory reagents and other goods falling under heading 3822:

10.1 Entry at S. No. 80 of Schedule II of notification No.1/2017- Integrated Tax (Rate)
dated 28.6.2017 prescribes GST rate of 12% for “All diagnostic kits and reagents”.

10.2. Representations have been received whether the benefit of concessional rate of
12% would be available to laboratory agents and other goods falling under heading
3822.

10.3 Heading 3822 covers “Diagnostic or Laboratory Reagents, Certified Reference
Materials etc.”.

10.4 The issue was placed before the GST Council and on its recommendations, it is
clarified that the intention of this entry was to prescribe GST rate of 12% to all goods,
whether diagnostic or laboratory regents, falling under heading 3822.

10.5 It is accordingly clarified that concessional GST rate of 12% is applicable on all
goods falling under heading 3822, vide Entry at S. No. 80 of Schedule II of notification
No.1/2017-Integrated Tax (Rate) dated 28.6.2017.

11. Requirement of Original/ import Essentiality certificate, issued by the
Directorate General of Hydrocarbons (DGH) on each inter-State stock transfer of
goods imported at concessional GST rate for petroleum operations

11.1 Notification No. 3/2017-Central Tax (Rate) prescribes concessional rate of 5% for
specified goods which are used in connection with specified petroleum operations.
Condition 1 (d) in notification No. 03/2017-Central Tax dated 28.06.2017 prescribes that
“whenever goods so supplied are transferred to other licensee or sub-contractor a certificate from
Directorate General of Hydrocarbons (DGH) is to be produced that the goods may be transferred
to the transferee”.

11.2. As per Section 7 read with Schedule-I of the CGST Act 2017, inter-state stock
transfer between distinct persons (establishment of same person located in two different
states) is considered as ‘supply ‘of goods.

11.3. Representations have been received seeking clarification whether the original/
import Essentiality certificate can be used for such inter-state stock transfers or a fresh
Essentiality certificate would be required for each inter-state stock transfer as it is being
treated as supply subject to IGST.

11.4 GST Council deliberated upon this issue and a decision was taken that the
original/ import Essentiality certificate, issued by the Directorate General of
Hydrocarbons (DGH) is sufficient and there is no need for taking a certificate every
time on inter-state movement of goods within the same company / stock transfer so
long as the goods are the same as those imported by the company at concessional rate.

11.5. The importer is required to maintain records and should be able to establish
nexus between the stock transfer of goods and the description in the essentiality
certificate.

12. GST rates applicable on External batteries sold along with UPS Systems/ Inverter

12.1 References have been received seeking clarification about whether, ‘UPS
Systems/inverter sold along with batteries as integral part’ are classified under heading
8507 at 28% GST or under heading 8504 at 18% GST.

12.2 The matter has been examined and it is observed that even if the UPS/inverter
and external battery are sold on the same invoice, their price are separately known, and
they are two separately identifiable items. Thus, this constitutes supply of two distinctly
identifiable items on one invoice. Therefore, it is clarified that in such supplies, UPS/
inverter would attract GST rate of 18% under heading 8504, while external batteries
would attract the GST rate as applicable to it under heading 8507 (28% for all batteries
except lithium-ion battery).

13. Applicability of GST rates on Solar PV Power Projects

13.1 Representations have been received seeking clarification regarding the GST
rates applicable on Solar PV Power Projects on or before 1st January, 2019. The issue
seems to have arisen in the context of Notification No.24/2018- Central Tax (Rate), dated
31st December, 2018. An explanation was inserted vide the said notification that GST on
specified Renewable Energy Projects can be paid in terms of the 70:30 ratio for goods
and services, respectively, with effect from 1st January, 2019. The request has been that
same ratio (for deemed value) may be applied in respect of supplies made before
1.1.2019.

13.2 As per this explanation, if the goods specified in this entry are supplied, by a
supplier, along with supplies of other goods and services, one of which being a taxable
service specified in the entry at S. No. 38 of the Table mentioned in the notification No.
11/2017-Central Tax (Rate), dated 28th June, 2017, the value of supply of goods for the
purposes of this entry shall be deemed as seventy per cent. of the gross consideration
charged for all such supplies, and the remaining thirty per cent. of the gross
consideration charged shall be deemed as value of the said taxable service. This
mechanism for valuation of supply was recommended by the Council considering that
it adequately represented the value of goods and services involved in the supply.

13.3 The GST Council has now decided to clarify that GST on such specified
Renewable Energy Projects can be paid in terms of the 70:30 ratio for goods and
services, respectively, for the period of 1st July, 2017 to 31st December, 2018, in the same
manner as has been prescribed for the period on or after 1st January, 2019, as per the
explanation in the Notification No.24/2018 dated 31st December, 2018. However, it is specified that, no refunds will be granted if GST already paid is more than the amount determined using this mechanism.

14. Applicability of GST rates on Fibre Drums, whether corrugated or noncorrugated

14.1 Hitherto, corrugated boxes and cartons, falling under heading 4819 attracted GST
at the rate of 12% (entry 122 of 12% rate schedule), while other cartons falling under this
heading attracted GST at the rate of 18%. Disputes have arisen as regards applicable
GST on fibre drums, which is partially corrugated (as to whether it is be treated as
corrugated or otherwise). This dispute gets resolved on account of the recommendation
of the GST Council, in its 45th meeting, to prescribe a uniform GST rate of 18% on all
goods classifiable under heading 4819 (with effect from 1st October, 2021 under S. No.
153A of Schedule III of notification No.1/2017-Central Tax (Rate) dated 28.6.2017).

14.2 For the period prior to 1.10.2021, the Council upon taking note of the fact that
there was an ambiguity regarding the GST rates applicable on a Fibre Drums, because
of its peculiar construction (partially corrugated), has decided that supplies of such
Fibre Drums even if made at 12% GST (during the period from 1.7.2017 to 30.9.2021),
would be treated as fully GST-paid. Therefore, no action for recovery of differential tax
(over and above 12% already paid) would arise. However, as this decision has only
been taken to regularize the past practice in view of certain ambiguity, as detailed in
para 14.1, no refund of GST already paid shall be allowed if already paid at 18%.

15. Difficulty if any, in the implementation of this circular may be brought to the
notice of the Board. Hindi version shall follow.

Yours faithfully,

(Piyush Kumar Ankit)
Technical Officer, TRU

 

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