Grandfathering geographical exemptions in GST

With the draft goods and services (GST) law in circulation, there are several suggestions and criticisms being offered by analysts, lawyers, business houses and other stakeholders. Here, I am discussing the issue of continuing with the geographical exemptions in central excise, customs, service tax and income tax, which had been offered to various companies operating from certain underdeveloped geographical areas. When the GST comes, it is expected that most of the exemptions on the central excise will go away. Exemptions for customs and income tax will not be affected by the GST. So the issue is whether to continue with the exemptions of central excise and service tax which will be subsumed in the GST.

There is a point of view propagated by a certain section that the exemptions on central excise and service tax should continue, which will be an act of “ grandfathering of exemptions”. In other words, there has to be a grandfather clause which allows persons or entities to continue with activities or operations that were approved before the implementation of new rules, regulations or laws. A grandfather clause exempts activities put in place prior to the new rules, while all other parties must abide by the new rules.

Internationally, one of the best examples of allowing grandfather clause is in the case of factories emitting carbon above the prescribed levels, while the new factories must abide by the new rules which are stricter. This clause is used to allow workers and communities enough time for transition. In the case of geographical exemptions, the idea is to allow them to continue for sometime more by giving them a sunset clause, which means that after a given date, the exemptions will expire.

This is a decision purely on economic considerations. Since customs and income tax exemptions may continue unaffected, the withdrawal of exemptions from central excise and service tax may not harm the industry so much even if a grandfather clause is not provided.

However, some legal experts have pointed out that if the grandfather clause is not provided, there may be litigation on the ground of promissory estoppel, which is also known as equitable estoppel. I am writing to say that this legal proposition is not applicable when the GST comes. The government has the full liberty to withdraw timeless and time- bound exemptions.

Time- bound exemptions mean that the exemptions are operative up to a particular date only. Other exemptions do not have any date given in them and therefore they are known as timeless exemptions. Timeless exemptions can always be withdrawn in the public interest. No challenge on the ground of promissory estoppel can be raised. Regarding time- bound exemptions also it has been upheld in many judgements that they can be withdrawn in the public interest. In Kasinka Trading vs. UOI- 1994( 74) ELT782( SC), the Supreme Court held that even atime- bound exemption notification can be withdrawn if public interest so demands. The Supreme Court clarified that the doctrine itself is based on equity and therefore if equity so demands, that is, the public interest so warrants, a timebound notification can be changed or withdrawn. This has been reiterated further by the Supreme Court in several judgements namely UOI vs. Victory Plastic Ltd — 1996( 83) ELT481( SC); and DPF Textiles Ltd vs. UOI1997( 92) ELT28( SC). In one of the latest judgements in the case of Shrijee Sales Corporation vs. UOI1997( 89) ELT452( SC), the threemember bench of the Supreme Court went into the scrutiny of the Kasinka case mentioned above. It was virtually a review of the Kasinka judgment. After detailed discussion, the Supreme Court has finally confirmed the Kasinka judgement.

The conclusion is that certainly there is no doubt that the introduction of GST is in the public interest. So, the government can legally withdraw the exemptions so far as central excise and service tax are concerned in respect of the time- bound geographical exemptions for underdeveloped states. However, exemptions can continue for customs duty and income tax.

That is a matter of policy by the government. There is no legal hurdle.

Business Standard New Delhi, 01 August 2016

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