HUL Found Guilty For Profiteering- Delhi High Court
HUL Found Guilty For Profiteering and below is structured analysis of the same –
1.1 Meaning
The term ‘profiteering’ means ‘disproportionately large or grossly unfair profit, generated often through manipulation of prices, abuse of dominant position, or by exploiting a bad or unusual situation such as temporary scarcity. There is usually no governmental control over profiteering unless it involves illegal means.’[1] Under the GST regime, it means to make or seek to make an unreasonably large profit by not passing the benefit of price reduction due to implementation of GST to the consumers.[2]
1.2 Consequences
Profiteering leads to increase in
inflation subsequent to the implementation of GST. Canada, Australia, New
Zealand, and Malaysia witnessed significant increase in inflation rates upon
the implementation of GST.
2.
Meaning of Anti-Profiteering
As the name suggests, these rules
prevent entities from making excessive profits due to implementation of GST as
it is expected that upon implementation of GST, prices will be reduced. The
objective is to provide the ultimate consumers the benefit input tax credit.[3] There may be inflationary
trend in the short and mid-term, but it should not lead to general inflation.
With regard to foregoing it is to be ensured that the ultimate consumers are
provided with all the benefits so that the inflation may be contained.
With regard to the foregoing,
legislature on anti-profiteering measures will contain the inflationary trend
and also impose a legal obligation on businesses to pass on the benefit to
ultimate consumers.
3.
Introduction and Need of Anti-Profiteering Law
The Goods and Services (GST) Tax
Law is one of the biggest indirect tax reform in India. Global trends indicate
that subsequent to implementation GST Law, There is a short- and medium – term
inflationary trend in the economy. India as a price – sensitive nation needs to
understand whether or not the implementation of GST law will lead to
inflationary trends.
The GST Council has already decided
on the GST slab rates and the mapping was carried out on the basis of an
effective industry rate. The government may not have a higher GST revenue, but
GST implementation will increase the tax base, decrease the grey economy, and
thus increase the GDP that may increase the government’s revenue.
It may be mentioned here that there
may be no inflation due to the fact that the effective GST tax rate on most
products is nearly equal to the existing rates under the different statutes.
The main reason for inflationary trend is that the operative rate of tax at
customer level is immediately reformed when any new law is implemented, as the
commerce takes time to pass on the advantage(s) that has accrued to the level
of the customer due to many reasons such as lack of awareness of the ‘benefits
available, lack of clarity on interpretation issues, etc.’[4] ‘Sometimes it may be
intended on a monopolistic market whereby industry wants to increase its profit
by sustaining its selling price and thus taking full advantage of it.’[5]’
The situation in India was similar
when Value Added Tax (VAT) was implemented. Initially, many industries gained
from implementing the VAT system and maintained prices until the time when the
final impact of VAT on overall profitability was determined. Following the application
of VAT, India’s “Comptroller and Auditor General” ‘conducted a national study
on’ “Implementation of Value Added Tax in
India” and published a study report in June 2010 called “Lessons for Goods and Services Tax Transition”.
4.
Ramifications of VAT on prices
The white paper was positive that
the application of VAT will reduce commodity prices due to the justification of
tax rates and the abolition of cascading tax effects in the bequest systems.
But there was no classification for monitoring this impact and making sure the
benefits were actually passed on to the common man.[6]’
As CAG detected, if there is no
legal deterrent, history will repeat again. In the case of a Trader who bought
goods from a manufacturer, let us illustrate this preposition with an
illustration: (Figures in Rupees)
It is apparent above table that if
product prices have not been accustomed for the benefits accrued to the
supplier, customers pay higher prices for goods and services and this type of condition
leads to inflationary conditions.[7] In this case, the dealer
will benefit from the excise duty on goods and the VAT or any type of service tax on operating expenses that should
have been passed on to the consumer upon implementation of GST. In the above
illustration, the dealer did not pass on any benefit to the consumer resulting
in increased consumer costs, and the dealer’s profits increased to more than
twice as much.[8]
This is an instance of dealer profit due to changes in the tax regime and must
be regulated in the new indirect tax regime.
5.
Lew in CGST Act and Anti Profiteering- The Analysis
Sec.
171 of the CGST Act
“1. Any reduction in rate of tax on
any supply of goods or services or the benefit of input tax credit shall be
passed on to the recipient by way of commensurate reduction in prices.”
“2. The Central Government may, on
recommendations of the Council, by notification, has constituted an Authority
for examining whether input tax credits availed by any registered person or the
reduction in the tax rate have actually resulted in a commensurate reduction in
the price of the goods or services or both supplied by him.[9]”
5.1 Sec. 171(1) provides for the responsibility to “pass on
benefit of GST” to recipient for following two aspects:
a.
Any rate reduction in new tax regime:
“As regards passing of benefit due
to reduction in rate, in case of supplies exclusive of tax there should not be
a big challenge, since reduction in tax rate will directly be evidenced by
invoices and the recipient will get benefit of the rate reduction. However, in
case where contract of supplies is inclusive of taxes, this provision will cast
responsibility on the supplier to reduce the price due to reduction in rate of
taxes. For example, FMCG items which are normally sold on MRP basis or some
other fixed prices by retailers, if there is any reduction in rate of tax the
same has to be passed on to the ultimate recipient. Accordingly, there shall be
need to revise MRP or other prices fixed for such supplies.[10]”
To illustrate if a trader is
paying, say, ₹ 100 less in
the new tax rate on a certain item, he has to compulsorily sell that item for ₹ 100 cheaper, so the customer
benefits proportionally. Failure to do so would mean the trader is indulging in
‘profiteering’.
“b.
For any benefit of Input tax Credit:”
As regards passing of benefit due
to better credit chain, it is going to affect almost all industries. In most
places, be it service sector, manufacturing, trading or any specific industry,
all are going to get advantage of better flow of Input Tax Credit. Hence there
should be commensurate reduction in prices of supplies. Application of this
principal to the Section 171 of the CGST provisions means that any reduction in
tax rate on any supply of goods or services, or any benefit of ‘input tax
credit’, must be passed on to the recipient (for example, customer) by the
registered person (e.g., trader) through a commensurate reduction in prices.[11]
To illustrate the aforesaid
illustration with the benefit of input tax credit under GST scheme
(Figures in
Rupees)
6.
Comparison of the three scenarios
(Figures
in Rupees)
“After going through the comparison
of three scenarios, it is evident that reduction in prices may be possible
under the biggest indirect tax reform of the country. Accordingly it is the need
of the hour that industry suo-moto reduces the prices of goods and services.[12]” However, if it does not
do so, then legal provisions have been introduced to take care of such
situations. The necessary provisions have been introduced in the CGST Act for
curbing the practice of absorbing the tax benefit, rather than passing it on to
the ultimate consumer by way of real reduction in the price of supplies. That
is why, despite lot of agitation from industry, the government maintained same
provision in the CGST Bill[13].
7. Other Provisions
In the event there has been a
negative impact on the cost under GST provisions, then prices may be increased.
For example: If the output supply was zero-rated in previous regime and also
remains zero-rated under GST regime, the business will not get any input tax
credit.
If the tax rates have been
increased and tax under reverse charge imposed etc. then prices will increase.
For example, domestic LPG was exempt from tax under earlier regime. Now they
fall under 5% GST. This will result in an increase in the prices of cooking
gas.[14]
The Central Government has constituted
National Anti-Profiteering Authority to examine that whether input tax
credits availed by any registered person or the reduction in the tax rate have
actually resulted in a commensurate reduction in the price of the goods or
services or both supplied by him.
8. Anti-Profiteering Authority
8.1 Constitution
of the Authority
The
Central Government constituted the National Anti-Profiteering Authority (NAA)
which shall be a five-member committee comprising of a Chairman and four
technical persons. The Chairman will have a position that is equivalent in rank
to a Secretary to the Government of India. The Technical Members should’ve been
Commissioners of State Tax or Central Tax or have held an equivalent post under
existing laws. The Additional Director of Safeguards under the Central Board of
Excise and Customs (CBEC) shall be the Secretary to the Authority.
8.2 Time
Period of the Authority
The
Authority shall cease to exist after expiry of two years from the date on which
the Chairman assumes office unless the Council suggests any other
recommendation.
8.3 Duties
of the Authority
The Authority shall have the
following duties:[15]
- Determining
whether any reduction in the rate of tax on any supply of goods or services or
the benefit of input tax credit has been passed on to the recipient by way of
commensurate reduction in prices; - Identifying
the registered person who has not passed on the benefit of reduction in the
rate of tax on supply of goods or services or the benefit of input tax credit
to the recipient by way of commensurate reduction in prices;
- Ordering:
- Reduction
in Prices; - Return to the recipient, an amount equivalent to the amount not passed
on by way of commensurate reduction in prices along with interest at the rate
of eighteen percent from the date of collection of the higher amount till the
date of the return of such amount or recovery of the amount not returned, as
the case may be, in case the eligible person does not claim return of the
amount or is not identifiable, the amount should be deposited in the Consumer
Welfare Fund; - Imposition
of Penalty; and - Cancellation
of Registration
9.
International Scenario
& Indian Context
“India is not the first country that
is heading towards the comprehensive GST (VAT) with Anti-profiteering measures[16]. Many countries like
Canada, New Zealand, Australia and Malaysia etc. have witnessed such measures
while adopting the Goods and Service Tax regime.[17]”
Malaysia adopted Goods and Services
Tax in 2015, whereby they brought Anti Profiteering provisions for GST through
their existing legislation called “Price
Control and Anti-Profiteering Act 2011”. [18] Amendment in the existing
legislation was done through amendment act of 2014 whereby main operating
provisions read as under:
“Sec.
15(1A) The mechanism to determine that profit is unreasonably high referred to
in sub section (1) includes the Minister determining a certain period during
which there shall be no increase in the net profit margin of any goods or
services.”
Further, Part II and Part III of
Schedule to “Price Control and Anti
Profiteering (Mechanism to Determine Unreasonably High Profit) (Net Profit
Margin) Regulations 2014” had prescribed mechanism to calculate net profit
margin pre-and post-Goods and Service Tax period respectively. Subsequently the
pre and post net profit margin had to be compared in order to make sure that
there is no increase in net profit margin post GST implementation.[19]
In Australia the Anti-Profiteering measures
were implemented by way of the amendment in existing legislation called “Australia competition and Consumer Act 2010”.
Where in ‘Section 44ZZT’ was added to impose restriction with regard to anti-profiteering
laws and regulation for class of Goods and services.[20]
Further, In India, The Competition
Act, 2002 was enacted with following objectives as mentioned in section 18:
- “Elimination of Practices having
adverse effect on competition” - “Protection
of interest of consumers” - “Promotion
and sustainability of competition” - “Ensuring Freedom of trade among
participants in the Indian Markets”
The Competition Commission of India
(CCI) was duly constituted under the Competition Act to take due care of the
aforesaid objectives of the said enactment.[21] The objectives of the CCI
are almost similar with objectives of proposed Anti-Profiteering law.
10. Issues & Challenges
10.1 Computational
Mechanism
- It
is a difficult proposition to identify the relationship between ITC on inward
supplies and tax payable on outward supplies.[22] “So ultimately it comes on margins or prices
of supply. The calculation of margins and prices is a subjective matter. There
may be various ways like:”
- “Profit
on product in absolute terms.” - “Profit
percentage on Cost of Product.” - “Profit
percentage on Sale Price”
- “Besides
the aids in terms of better credit chain, the business organizations have incurred
substantial cost for application of GST on account of installation of new
information and technology systems, restructuring of operations, redesigning of
standard operating procedures and other compliances costs[23].” The organization may
pass on the benefits to the consumer only after ascertaining the gains with
regard to better credit flow vis-a vis increased cost.
10.2 Determination
of Price
It may be mentioned that the prices
and margins are not entirely reliant on on taxes and these taxes are one of the
constituents of price.[24] The fixation of price
depends on various factors such as:
- Internal factors:
- “Cost
of raw material and other components” - “Predetermined
objectives (Higher profit or higher revenue)” - “Goodwill
of the Seller” - “Life
cycle of the product” - “Credit
period offered.” - “Promotional
activities (Heavy advertisement/ promotional exp.)”
- External factors:
- “Competition”
- “Price
sensitivity & purchasing power of consumers” - “Government
Control” - “Economic
Condition (Recession)” - “Supply
Chain (Longer the chain, higher would be the price)”
The price fixation of product is not
just a complicated but also a continuous process and the basic criteria for
fixation of price completely depends on nature of product.[25] If in view of the
provisions of Anti Profiteering Measures, prices or margins are being regulated,
there may be a disastrous situation in many industries. Further, there are
situations where the corporations would not want to share their strategic of
pricing certain products even with the tax authorities.
10.3 Constitutional
Challenges
According
to the anti-profiteering laws in India, businesses have to pass on the benefit
of tax cuts as well as tax rebates to consumers. But the businesses often
increase prices to matching with the reduced taxes due to the unrestricted
nature of the market[26]. Also, there are no
explicit guidelines for companies which they are required to follow so that the
benefit of tax rebates and rate reductions on raw materials are passed on to
consumers at the right measure across all final products. As a result, the
NAA is witnessing a large number of complaints related to overcharging.[27]
It
has been almost a year since its inception and NAA is examining 52 cases of
profiteering. Of these 52 cases, NAA has issued final orders in 14 cases. Of
the 14 complaint which have been disposed of till date, NAA has fined just five
companies for not passing on the benefits of GST rate cuts or input tax credit
to the consumers.[28]
In
the case of Pyramid Infratech, the company has challenged NAA’s order in Delhi
High Court and the case was admitted in November 2018 by the court. The
petition challenges constitutional validity of the anti-profiteering mechanism.
NAA had found Pyramid Infratech guilty of profiteering and issued the order[29].
- “Right to Free Trade: Article 301 of Indian Constitution
provides for freedom of trade and commerce throughout India. However, Article 302
authorizes Parliament to impose reasonable restrictions. Anti-Profiteering
provisions or restriction on profits on trading of goods or services may be
treated as violation of fundamental right of freedom of trade and it may be a subject
matter of judicial review.”
- “Implication on State Tax/Assesses: It may be mentioned here that
power to constitute authority u/s 171 lies with the Central Government only.
Article 302 authorizes Parliament to impose such restrictions, whereas there
are stringent conditions for state legislatures to impose such kind of
restrictions under Article 304. In such a scenario, implementation of
Anti-Profiteering measures in respect of:” - “State
Tax (i.e. SGST) administered by any Government; or” - “Registered
Persons, under State Jurisdiction for all taxes may be subjected to judicial
review.”
11. HUL Found Guilty For Profiteering – Case Study
There was an anonymous complaint
filed before the National Anti-Profiteering Authority (NAA) alleging that
HUL was in violation of Section 171[30] even though the Goods and
Services Tax have reduced from 28% to 18% on a large number of products, but
the maximum retail prices of the goods have remained unchanged. Based on the
investigation by DGAP and the data available, the authority determined HUL
benefited to the extent of Rs 455.92 crore by not passing on gains from lower
GST rates. HUL had also claimed Rs 78.97 crore of TRAN-2 credit, the benefit of
which was also not passed on, taking the total to Rs 534.89 crore, and the
report said. This latter amount has to be deposited in the central consumer welfare
fund, as the amount relates to central taxes and duties. After subtracting
the amounts cited above from Rs 455.92 crore, the amount remaining is Rs 383.35
crore[31].
“The NAA, while passing the order, said that
₹383.35 crore worth “benefit has been denied” by Hindustan Unilever Ltd (HUL)
to its customers.”[32]
The
HUL was held guilty by NAA for failing to pass the benefit of decreased Goods
and Services Tax on certain 178 items FMCG products with effect from November
15, 2017. The product includes detergents, washing and cleaning preparations,
liquids and creams for washing the skin, shampoos, shaving cream and beauty or
cosmetics. However, the authority has admitted the company’s claim that its
customers benefited through higher grammage, which was rejected in some cases
earlier[33]. Accordingly, the 98-page
order gave HUL credit of `68.77 crore for the move while deciding the quantum
of supposed profiteering. The company had claimed Rs 119.67 crore of
grammage benefit to consumers[34].
The company said in a statement[35], “In the absence of set rules and guidelines on profiteering, we have
gone by the spirit of the law, and we passed on the entire benefit received
under GST to consumers — either through reduction in prices or through increase
in grammage…”
Following
were the orders passed by the NAA[36]
“Since
the respondent (HUL) has already deposited an amount of Rs 160.23 crore in the
Central CWF, he is hereby directed to deposit an amount of Rs 31.45 crore
in the central CWF and the balance amount of Rs 191.68 crore in CWFs of the
states…,”
“…HUL
has acted in conscious disregard of the obligation which was cast upon him to
pass on the benefit of GST rate rate reductions. Instead he had delilberately
increased the base prices by enhancing them equivalent to the amount of GST
rate reductions in order to keep the old MRPs in place or not reduced them
proportionately to the benefit of tax reduction.”
The High Court (HC), has stayed the
demand, has directed the NAA that the actions should not be coercive in nature,
and there should not be any penalty proceedings against the “fast moving consumer goods” (FMCG)
major until the final determination of the matter in the court. Since this
matter involves issues that require examination of contentions in depth of both
the parties, the HC has asked HUL to deposit INR 90 crs in two installments by
May 15, 2019, into the Consumer Welfare Fund (CWF). Accordingly, HUL will have
to deposit INR 50 crs by March 15, 2019, and INR 40 crs by May 15, 2019, into
the CWF by the stated deadline.
12. Conclusion HUL Found Guilty For Profiteering
From the consumers’ point of view
Anti Profiteering Provision is necessary, as the consumers will be entitled to benefits
of GST implementation.[37] At the same time, with
respect to the challenges before the industry and the complexities involved in the
reworking of the cost sheet and re-fixation of prices, the following points
should be considered:
- A reasonable margin variation
should be allowed. If the variation in margin is within such allowable range,
no registered person should face the penal consequences u/s 171 of the Central Goods
and Services Act. - A minimum limit for turnover of
taxable supplies may be fixed and below that turnover the provision of Section
171 shall not be applicable.
Detailed rules
regarding computation of margins, documentation etc. should be framed so that
no discretionary power shall be left with any authority.
Contributed By- Deiya Goswami
[1] Profiteering, Web Finance
(Apr. 15, 2019, 06:06 P.M.), businessdictionary.com/definition/profiteering.html.
[2] Mukund Abhyankar, Anti-profiteering clause in GST India, Avalara (Apr. 15, 2019, 06:18 P.M.), https://www.avalara.com/in/en/blog/2017/04/anti-profiteering-clause-gst-india.html.
[3] Anti-Profiteering, Merriam-Webster
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[5] Mukund Abhyankar, Anti-profiteering clause in GST India, Avalara (Apr. 15, 2019, 06:18 P.M.), https://www.avalara.com/in/en/blog/2017/04/anti-profiteering-clause-gst-india.html.
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[8] Anti profiteering in GST– Is litigation an option?, Economic
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[9] What does Anti-Profiteering mean in relation to GST?, Transamerica Direct Marketing Consultants (Apr.
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[11] Anti-Profiteering,
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[12] Anti-Profiteering, National
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[13] Deepak Patel, Meaning: Anti-profiteering, Indian
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[14] Anti-Profiteering Rules, Defmacro
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[15] Anti-Profiteering Rules, Defmacro
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[16] Anti-Profiteering Rules, Defmacro
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[17] Deepak Patel, Meaning: Anti-profiteering, Indian
Express (Apr. 15, 2019, 09:12 P.M.), https://indianexpress.com/article/explained/tax-meaning-anti-profiteering-gst-rollout-indian-econony-rates-slab-4717643/.
[18] Anti-Profiteering, National
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[19] What is the anti-profiteering clause in the GST law?, Quora (Apr. 15, 2019, 09:57 P.M.), https://www.quora.com/What-is-the-anti-profiteering-clause-in-the-GST-law.
[20] A look back on anti-profiteering, its relevance and the need for well defined
norms, Economic Times (Apr.
15, 2019, 10:22 P.M.), https://economictimes.indiatimes.com/small-biz/policy-trends/a-look-back-on-anti-profiteering-its-relevance-and-the-need-for-well-defined-norms/articleshow/64743244.cms.
[21] What is the anti-profiteering clause in the GST law?, Quora (Apr. 15, 2019, 09:57 P.M.), https://www.quora.com/What-is-the-anti-profiteering-clause-in-the-GST-law.
[22] A look back on anti-profiteering, its relevance and the need for well
defined norms, Economic Times (Apr.
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[23] HUL found guilty of profiteering ₹383 crore, Indian Awaaz (Apr. 15, 2019, 10:27
P.M.), https://theindianawaaz.com/hul-found-guilty-of-profiteering-%E2%82%B9383-crore/.
[24] Mukund Abhyankar, Anti-profiteering clause in GST India, Avalara (Apr. 15, 2019, 06:18 P.M.), https://www.avalara.com/in/en/blog/2017/04/anti-profiteering-clause-gst-india.html.
[25]
A look back on anti-profiteering, its relevance and the need for well defined
norms, Economic Times (Apr. 15, 2019, 10:22
P.M.), https://economictimes.indiatimes.com/small-biz/policy-trends/a-look-back-on-anti-profiteering-its-relevance-and-the-need-for-well-defined-norms/articleshow/64743244.cms.
[26] HUL found guilty of profiteering ₹383 crore, (Apr. 15, 2019, 10:27
P.M.), http://www.newsonair.nic.in/Main-News-Details.aspx?id=357109.
[27] HUL found guilty of Profiteering Rs. 383 crore, GKToday (Apr. 15, 2019, 10:41 P.M.), https://currentaffairs.gktoday.in/hul-guilty-profiteering-rs-383-crore-12201863793.html.
[28] Mukund Abhyankar, Anti-profiteering clause in GST India, Avalara (Apr. 15, 2019, 06:18 P.M.), https://www.avalara.com/in/en/blog/2017/04/anti-profiteering-clause-gst-india.html.
[29] Timsy Jaipuria, Anti-profiteering body may pass final order
on profiteering complaint against HUL, TV18
Broadcast (Apr. 15, 2019, 11:11 P.M.), https://www.cnbctv18.com/business/anti-profiteering-body-may-pass-final-order-on-profiteering-complaint-against-hul-1513261.htm.
[30] Lessons from anti-profiteering order against HUL, Rediff (Apr. 15, 2019, 06:18 P.M.), https://www.rediff.com/business/special/lessons-from-anti-profiteering-order-against-hul/20190121.htm.
[31] GST authority finds HUL guilty of profiteering Rs 383 crore, Economic Times (Apr. 15, 2019, 11:19
P.M.), https://economictimes.indiatimes.com/news/politics-and-nation/gst-authority-finds-hul-guilty-of-profiteering-rs-383-crore/articleshow/67234533.cms.
[32] HUL Found Guilty of Profiteering ₹383 Crore, The Hindu (Apr. 15, 2019, 11:32 P.M.), https://www.thehindu.com/business/Industry/hul-found-guilty-of-profiteering-383-crore/article25821689.ece.
[33] HUL found guilty of not passing ₹383-crore GST rate-cuts, The Hindu (Apr. 15, 2019, 11:42 P.M.), https://www.thehindubusinessline.com/companies/hul-found-guilty-of-not-passing-383-crore-gst-rate-cuts/article25821961.ece.
[34] GST authority finds HUL guilty of profiteering Rs 383 crore, Economic Times (Apr. 15, 2019, 11:19
P.M.), https://economictimes.indiatimes.com/news/politics-and-nation/gst-authority-finds-hul-guilty-of-profiteering-rs-383-crore/articleshow/67234533.cms.
HUL found guilty of
not passing ₹383-crore GST rate-cuts,
The Hindu (Apr. 15, 2019, 11:42
P.M.), https://www.thehindubusinessline.com/companies/hul-found-guilty-of-not-passing-383-crore-gst-rate-cuts/article25821961.ece.
[36] GST
authority finds HUL guilty of profiteering Rs 383 cr, Bennett, Coleman & Co. (Apr. 15, 2019, 11:49 P.M.), https://timesofindia.indiatimes.com/business/india-business/gst-authority-finds-hul-guilty-of-profiteering-rs-383-cr/articleshow/67234252.cms.
[37] A look back on anti-profiteering, its relevance and the need for well defined norms, Economic Times (Apr. 15, 2019, 10:22 P.M.), https://economictimes.indiatimes.com/small-biz/policy-trends/a-look-back-on-anti-profiteering-its-relevance-and-the-need-for-well-defined-norms/articleshow/64743244.cms.
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