[Opinion] The ‘as is where is’/‘as is’ Enigma – An Analysis

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By Taxmann
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Last Updated on 16 November, 2024

Sahana R & Derlene Joshna – [2024] 168 taxmann.com 287 (Article)

The GST Council has been proactive in settling contentious issues under GST through recommendations to the Central Board of Indirect Taxes (“CBIC” or “Board”) to issue circulars clarifying the tax treatment in respect of several transactions. Recently, the GST Council has recommended the Board to regularize a few common trade practices on an ‘as is where is’ or ‘as is’ basis. Pursuant to the Council’s recommendations, the Board has issued few circulars which have clarified issues such as rate of tax paid on a supply for the past on an ‘as is where is’ basis.1 Few circulars have used the phrase ‘as is’ basis.2 These new catchphrases garnered widespread attention as the exact meaning of the same was not clear. The Hon’ble Gujarat High Court3 has clarified the scope of these phrases to a little extent. Subsequently, the Board has clarified the same through a recent Circular No. 236/30/2024-GST dated 11.10.2024 (“Circular dated 11.10.2024”). Through this article, the authors would delve into the meaning of regularization on ‘as is where is’ / ‘as is’ basis and the confusions which still prevail for taxpayers.

Examples of issues clarified on ‘As is where is’/ ‘As is’ basis

To better appreciate the meaning of the phrases ‘as is where is’/’as is’, it is important to take note of some of the issues clarified by the Board on an ‘as is where is’/ ‘as is’ basis.

Circular	Goods/Services in respect of which clarification on applicable rate of GST was issued and past period was regularized on ‘as is where is’/’as is’ basis.	Whether the competing entries which raised the genuine doubts on the rate applicable was noted in the Circular
Circular No. 179/11/2022-GST dated 03.08.2022	By-products of milling of Dal/Pulses such as Chilka, Khanda and Churi.	Yes
Circular No. 189/01/2023-GST dated 13.01.2023		No. Exemption Entry which would apply for the future period was noted.
Circular No. 200/12/2023-GST dated 01.08.2024	Un-fried or un-cooked snack pellets, by whatever name called, manufactured through process of extrusion:	No. Council Recommendations pertaining to correct GST rate were noted.
	Goods falling under HSN 9021	Yes
	Desiccated coconut, biomass briquettes	No
Circular No. 228/22/2024-GST dated 15.07.2024	Reinsurance of specified general and life insurance schemes	Yes
Circular No. 228/22/2024-GST dated 15.07.2024	Certain accommodation services viz., per month value is less than Rs. 20,000/- per person and said services is provided	Yes
Circular No. 234/28/2024-GST dated 11.10.2024	Transport of passengers by helicopter	No. Council Recommendations pertaining to correct GST rate were noted.

The circulars regularizing the past practices on ‘as is where is’ / ‘as is’ basis have not always delved into the competing entries used by the taxpayers in the past.

Out of all the circulars issued for clarifying issues on ‘as is where is’ / ‘as is’ basis, Circular No. 200/12/2023-GST dated 01.08.2024 has explicitly stipulated that refund is not eligible to taxpayers who have paid GST on goods in respect of which GST rate has been regularized on ‘as is where is’ basis.

While these circulars were issued to put to rest genuine confusion on applicable rates, the use of the phrases ‘as is where is’/ ‘as is’ led to further confusion.

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