LEVIABILITY OF GST ON SALE OF REFURBISHED/RESTORED VINTAGE OR CLASSIC CARS1

Written by Mukul Gupta (Sr. Partner) and assisted by Nainshree Goyal (Associate) at SHARNAM LEGAL-Advocates & Solicitors  

A very interesting scenario has been talked about in this article. It is about the antique, classic cars are being refurbished. The case where the old cars (manufactured prior to year 1960) are bought in depleted condition or somewhat good condition and then fully refurbished/restored to form vintage/classic cars in good running condition as motor vehicle, sometimes the vintage/classic cars are just kept as a collector item in the museum. No up-gradation/improvement is made in technology or shape whereas originality is maintained and restored of the car model. The specifications of the cars are that they are only driven on petrol engines with capacity more than 1200 CC but less than 6000 CC having passenger capacity upto 7 persons. Mostly these vintage/classic cars are between the length of 2400 mm to 4000 mm but in few cases it may go till 4300 mm. These vintage/classic cars are not SUV cars nor do they have road clearance more than 170 mm. 

Further, the ‘body/ structure of old cars’ are bought in depleted condition or somewhat good condition from un-registered persons mostly less than Rs. 1 lakhs for each piece. Such persons earlier possessing the ‘body/ structure of old cars’ may be registered under GST or may not be registered under GST, the transaction of purchase of such ‘body/ structure of old cars’ may or may not suffer GST on the consideration paid to the supplier. The restoration of the ‘body/ structure of the old car’ to make it as near to as possible to the original model of that car and that too in the running condition is a tedious and time consuming affair. Lot of efforts as well as rare spare parts and sometimes originals are used in the process of restoration. All this makes the refurbished/ restored piece of car quite valuable. Various factors contribute to assess the saleable value of the refurbished/restored car and most important of them are its uniqueness, workmanship for restoration and exceptional collectible vintage/classic car model. It is important to acknowledge the vast difference in the purchase price of the ‘body/ structure of old cars’ and the sale price of the ‘refurbished/restored vintage/classic car’. 

Legal Aspect 

Cars which are refurbished/restored to form vintage or classic cars does not find any classification or category of goods having specific description in HSN code or the GST classification notifications prescribing the rate of GST. HSN code/GST tariff rates under Chapter 97 of Section XXI provides classification of “Work of art, Collector’s pieces and Antiques” but the specific items covered under chapter 97 does not correspond to antique cars or vintage/classic cars. Chapter 97 primarily specifies paintings sculptures, postage or revenue stamps, historical or archaeological items etc.  

In accordance to the description of goods i.e. vintage or classic cars, it most nearly fits into the broad description or category of goods as ‘Car’ and is considered in GST law as ‘Motor Vehicle’ or ‘Old and Used Vehicle’.  

CGST ACT 2017 defines ‘motor vehicle’ under Sec. 2(76) as “motor vehicle” shall have the same meaning as assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988;  

Now we have to consider the definition of ‘Motor Vehicle’ as per the Motor Vehicle Act 1988, Section 2 (28) which says: 

“motor   vehicle”  or   “vehicle”  means  any  mechanically propelled vehicle adapted for use upon roads whether the power of 1 Subs. & ins. by Act. propulsion is  transmitted thereto from an external or internal source and includes  a chassis  to which  a body  has not been attached and a trailer; but  does not include a vehicle running upon fixed rails or a vehicle of  a special type adapted for use only in a factory or in any other enclosed  premises or  a vehicle  having less  than four wheels fitted with engine capacity of not exceeding  thirty-five  cubic centimetres; 

The ‘Vintage or Classic Cars’ as an exclusive collector item which are only kept in the museum (not to be driven on the public roads) are not needed to be registered and thus are not covered under the definition of “Motor Vehicle” under Motor Vehicle Act 1988 and consequently shall also not be ‘Motor Vehicle’ under CGST Act.  

The scientifically designed and internationally accepted HSN code for classification of items/goods which has also been adopted for classifying the goods under GST, the relevant ‘Description of Goods’ as mentioned in the HSN Code for motor cars and motor vehicles predominantly prescribing the attributes of the cars (other than only collectibles items) as mentioned in the facts portion of this article are being reproduced for correct understanding and analysis:-  

We need to consider the following two notifications which basically prescribes the GST Rates on the items/goods under the CGST Act 2017 in reference to the HSN Codes for correct understanding of the classification of an item/goods. The first notification dated 28 June 2017 prescribes the classification and the rates of GST on ‘Motor Vehicles of all varieties and categories’ at the rate of 14% CGST plus 14% SGST having total GST as 28%. While the second notification dated 25th January 2018 carves out certain categories i.e. ‘Old and Used Cars’ and subjected them to lesser rate of 9% CGST plus 9% SGST having total GST as 18%. The second notification has elaborated the description of Motor Vehicles, so we need to understand the correct difference in the description of goods to apply the correct notification and consequently the rate of GST. Both these notifications at 1-A and 1-B are reproduced below. 

Notification 1-A.  

[PUBLISHED IN PART II, SECTION 3, SUB-SECTION (i) OF THE GAZETTE OF INDIA, EXTRAORDINARY] 

GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue)  

Notification No.1/2017-Central Tax (Rate) 

New Delhi, the 28th June, 2017 

G.S.R. (E). – In exercise of the powers conferred by sub-section (1) of section 9 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby notifies the rate of the central tax of-  

(i)       2.5 per cent. in respect of goods specified in Schedule I,  

(ii)      6 per cent. in respect of goods specified in Schedule II, 

1. 9 per cent. in respect of goods specified in Schedule III,  

1. 14 per cent. in respect of goods specified in Schedule IV,  

1. 1.5 per cent. in respect of goods specified in Schedule V, and 

1. 0.125 per cent. in respect of goods specified in Schedule VI appended to this notification (hereinafter referred to as the said Schedules), that shall be levied on intra-State supplies of goods, the description of which is specified in the corresponding entry in column (3) of the said Schedules, falling under the tariff item, subheading, heading or Chapter, as the case may be, as specified in the corresponding entry in column (2) of the said Schedules. 

Schedule IV – 14% 

Notification 1-B.  

[PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY PART II, SECTION 3, SUB-SECTION (i)] GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue)  

Notification No. 8/2018 -Central Tax (Rate)  

New Delhi, the 25th January, 2018 

G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts the central tax on intra-state supplies of goods, the description of which is specified in column (3) of the Table below, falling under the tariff item, sub-heading, heading or Chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), as are given in corresponding entry in column (2), from so much tax as specified in Schedule IV of Notification No. 1/2017 -Central Tax (Rate), as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4), of the said Table, on the value that represent margin of the supplier, on supply of such goods. 

Explanation –For the purposes of this notification, – 

1. In case of a registered person who has claimed depreciation under section 32 of the Income-Tax Act, 1961(43 of 1961) on the said goods, the value that represents the margin of the supplier shall be the difference between the consideration received for supply of such goods and the depreciated value of such goods on the date of supply, and where the margin of such supply is negative, it shall be ignored; and  

1. In any other case, the value that represents the margin of supplier shall be, the difference between the selling price and the purchase price and where such margin is negative, it shall be ignored.  

2. This notification shall not apply, if the supplier of such goods has availed input tax credit as defined in clause (63) of section 2 of the Central Goods and Services Tax Act, 2017, CENVAT as defined in CENVAT Credit Rules, 2004 or the input tax credit of Value Added Tax or any other taxes paid, on such goods. 

[F.No.354/1/2018-TRU] 

(Ruchi Bisht)  

Under Secretary to the Government of India 

The above referred Notification No.8/2018 dated 25th January 2018 (Notification 1-B) is most relevant for consideration to arrive at the correct GST rate on vintage or classic cars as described in the ‘facts section’ at the top of this article. We need to consider and evaluate every attribute in the ‘car’ as required to be present in an item/goods as described in the Notification No. 8/2018 dated 25th January 2018. The goods under consideration are ‘Old and Used Cars’ which are registered under the Motor Vehicles Act 1988 as well as they are driven on petrol, having engine capacity of 1200cc or more and length of 4000mm or more, so they qualify all the attributes of Item No. 1 of this notification and as such they should be subjected to GST in accordance to the conditions prescribed in this Notification. 

Now I would like to discuss a very interesting issue which comes out from the provisions specifically made and the words actually used in Entry Item No. 4 of this Notification i.e. ‘All Old and used Vehicles other than those mentioned from S. No. 1 to S.No.3’. Neither the word ‘Motor’ has been used prior to the word ‘vehicle’ nor any explanation specifying applicability or reference of ‘Motor Vehicles Act 1988’ has been provided in Entry Item No.4 of this Notification No. 8/2018 dated 25th January 2018, while such word ‘Motor’ has been mentioned prior to word ‘Vehicle’ as well as the explanation has been provided in the two Entry Items No. 1 as well as Entry item No.2 of this Notification.  

On the basis of the specific construction of Entry Item No. 4 it can be reasonably contended that the scope of this Entry Item No. 4 has been widened to include all those ‘Old and Used Cars’/ ‘Vehicles’ which are even not covered under the definition of ‘Motor Vehicles’ as prescribed under Section 2 (28) of the Motor Vehicle Act 1988 as reproduced in the beginning of our article. The outcome of this inference is that that the ‘Vintage and Classic cars’ which are exclusive items of collection and are solely kept in the museum and shall not be driven on public roads are also old and used cars shall be covered by Entry Item No. 4 of Notification No. 8/2018 dated 25th January 2018. 

Further, we need to understand various conditions prescribed under notification No. 8/2018 dated 25th January 2018 which are primarily of practical nature and needs to be adhered while performing the transaction of supply of ‘Vintage / Classic Car’ and calculation of actual incidence of net GST liability. These conditions have been highlighted in the Notification 1-B itself as reproduced above for correct understanding.    

Issue of applicability of ‘Cess’ over and above the primary amount of GST. 

On some special category of goods/ items including some types of motor vehicles under HSN code 8703 the Government has imposed Cess in addition to the GST, the relevant notification for the same are given below for correct appraisal of the total GST including Cess (if any) applicable on such Motor vehicle. 

‘Old and Used Cars’ which are registered under the Motor Vehicles Act 1988 as well as they are driven on petrol, having engine capacity of 1200cc or more and length of 4000mm or more, covered under Item No. 1 of Notification 8/2018 dated 25th January 2018 (Notification 1-B) as well as ‘Vintage and Classic cars’ which are exclusive items of collection and are solely kept in the museum and shall not be driven on public roads are also old and used cars covered by Entry Item No. 4 of Notification No. 8/2018 dated 25th January 2018 (Notification 1-B) shall not be subjected to cess as per the following notifications. 

Notification 2. 

 [TO BE PUBLISHED IN PART II, SECTION 3, SUB-SECTION (i) OF THE GAZETTE OF INDIA, EXTRAORDINARY] GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue) Notification No. 5/2017-Compensation Cess (Rate) 

New Delhi, the 11th September, 2017 G.S.R. (E).-  

In exercise of the powers conferred by sub-section (2) of section 8 of the Goods and Services Tax (Compensation to States) Act, 2017 (15 of 2017), the Central Government, on the recommendations of the Council, hereby makes the following further amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), No.1/2017- Compensation Cess (Rate), dated the 28th June, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 720 (E) dated the 28th June, 2017, namely:-  

2. In the said notification, in the Schedule, –

(i) For serial numbers 47 and 48 and the entries relating thereto, the following serial numbers and entries shall be substituted, namely:- 

1. for serial number 52 and the entries relating thereto, the following serial numbers and entries shall be substituted, namely:- 

[F.No.354/159/2017-TRU]  

(Ruchi Bisht)  

Under Secretary to the Government of India 

Thus, it is important to note that no ‘Cess’ has been levied on ‘All Old and Used Motor vehicles’ as no reference of such description of goods has been mentioned in the above referred notification. 

Further, the below mentioned notification specifically provides that there would be no ‘Cess’ on ‘All old and used motor vehicles’  

Notification 3.-  

[PUBLISHED IN PART II, SECTION 3, SUB-SECTION (i) OF THE GAZETTE OF INDIA, EXTRAORDINARY] GOVERNMENT OF INDIA, MINISTRY OF FINANCE (Department of Revenue) 

Notification No. 1/2018-Compensation Cess (Rate) New Delhi, the 25th January, 2018 

G.S.R. (E).- In exercise of the powers conferred by sub-section (2) of section 8 of the Goods and Services Tax (Compensation to States) Act, 2017 (15 of 2017), the Central Government, on the recommendations of the Council, hereby makes the following amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), No. 1/2017-Compensation Cess (Rate), dated the 28th June, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 720 (E), dated the 28th June, 2017, namely,- In the said notification, in the Schedule, – 

(i) After S. No. 42 and the entries relating thereto, the following serial numbers and the entries shall be inserted 

1. In S. No. 43, for the entry in column (2), the entry “8702 or 8703”, shall be substituted; 

While concluding we would like to summarise that ‘Vintage and Classic cars’ which are also ‘Old and Used Cars’ and also registered under the Motor Vehicles Act 1988 as well as driven on petrol, having engine capacity of 1200cc or more and length of 4000mm or more, are specifically covered under Item No. 1 of Notification 8/2018 dated 25th January 2018 (Notification 1-B as referred above) as well as ‘Vintage and Classic cars’ which are exclusive items of collection and are solely kept in the museum and shall not be driven on public roads are also old and used cars are covered by Entry Item No. 4 of Notification No. 8/2018 dated 25th January 2018 (Notification 1-B as referred above) shall be attracting primary GST tax rate of 9% CGST and 9% SGST or 18% IGST/GST without any incidence of ‘Cess’. 

Mukul Gupta 

Chairman-Indirect Tax (GST) Representation Committee-AIFTP 

Senior Partner & Counsel 

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