GST – Cancellation of GST registration – non filing of returns of returns – Revenue directed to consider and pass orders upon the application of the petitioner wherein the petitioner seeks leave to pa
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GST – Detention of goods – mistake had crept in, in the mentioning of the lorry number as TN 19 U 7857 instead of TN 19 U 7873 – It is incumbent upon the statutory authority/the Proper Officer to have
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Goods and Services Tax – GST – By: – Ganeshan Kalyani – Dated:- 5-3-2019 – Section 44 of the Central Goods and Services Tax Act, 2017 ( CGST Act ) provides that every registered person other than an Input Service Distributor, a person paying tax under section 51 or section 52, a casual taxable person and a non-resident taxable person shall furnish an annual return for every financial year electronically in such form and manner as may be prescribed on or before the thirty-first day of December following the end of such financial year. In view of the above cited provision, a registered person shall furnish annual return for the financial year 2017-18 (consisting of nine months period starting from 1st July 2017 to 31st March 2018) by 31st December 2018. However, due to unavailability of the electronic system in government portal through which the annual return is to be filed the registered person could not furnished the annual return. Therefore on the recommendation of the GST Council,
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nd furnished in the annual return. The classification may be carried out based on the name of the supplier of service. The purchase department in an organization can classify a supplier into supplier of goods and supplier of service. The list of such supplier supplying services can be used to classify the credit in to goods or services. Also, the accounting software in an organisation has a unique serial number for supplier of service's account number. The same could be useful to do the classification. Though it seems to be an easy task a considerable time will be required to carry out the task of classification of input tax credit in to inputs, capital goods and input services. Thus, one must start the activity immediately. GSTR-2A reconciliation with the input tax credit taken by the registered person in GSTR-3B: The second big task which is going to take considerable time is GSTR-2A reconciliation with the input tax credit taken by the registered person in GSTR-3B. Though the re
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18-Central Tax dated 31st December, 2018. HSN (Harmonized System of Nomenclature) summary of outward supplies and inward supplies: This is yet another time taking task. Outward supplies: Every registered person would have furnished the HSN summary of the outward supplies in Table 12 of GSTR-1. The same would be readily available to them for disclosing it in annual return. However, it is suggested to registered person to have a relook at the details before furnishing the same in the annual return. It is possible that some HSN may have skipped to be furnished in the GSTR-1 return. Hence, it is necessary to recheck the HSN summary with the outward supplies. Inward supplies: secondly, the HSN summary of inward supplies is required to be furnished in point no. 18 of the annual return. It is given in the instruction no. 17 &18 in the Notification No.74/2018 which states that in respect of inward supplies, HSN of those supplies which in value independently account for 10% or more of the t
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out of the composition scheme. Second requirement is regarding deemed supply under section 143. Section 143 of CGST Act, states that a registered person, with due intimation and conditions as prescribed, may send any inputs or capital goods to a job worker without payment of tax and from there to another job worker and so on. However, the said inputs must be received back by the principal within a period of 2 years (1 year up to 31.01.2019) and in case of capital goods within a period of 5 years (3 years up to 31.01.2019). The said time period is increased as mentioned w.e.f. 01.02.2019 vide CGST (Amendment) Act, 2018 which is made effective by Notification No. 02/2019-Central Tax dated 29th January, 2019. If the inputs and capital goods are not received back by the principal within the said time period then it would be deemed that those inputs and capital goods were supplied by the principal to the job worker and the applicable tax would become payable. In the table no. 16 of annual
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The information as regard total refund claimed, total refund sanctioned, total refund rejected, total refund pending, total demand of taxes, total tax paid as against the demand of taxes and total demand pending is required to be furnished in point 15 of the annual return. The registered person must start compiling such information so as to disclose it in the annual return. Details of ITC reversed and ineligible ITC for the financial year: The details of the Input Tax Credit reversed through Table 4(B)(i) & (ii) and ineligible Input Tax Credit furnished in Table 4(D) (1) & (2) of GSTR-3B need to be furnished in the point no. 7 of the annual return. The input tax credit so reversed could be of the GST credit or it can be transitional credit i.e. the credit claim u/s 140 of CGST Act read with rule 117 of the CST Rules, 2017. The reversal of transitional credit may have arrived at by own detection of credit being wrongly taken or on detection by the assessing officer in the cours
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he branch transfer of goods from one branch to another branch does not reduces or increases the stock in a company. Further, the asset transfer from one branch to another branch in another state also need to be consider for the purpose of arriving at the turnover because GST is applicable on the asset transfer. GST is also applicable on notice pay recovery from an employee who does not want to serve full notice period days. In this way the turnover of the annual financial statement to be arrived at in order to match it with the turnover as furnished in the annual return. If there is any difference, the explanation need to be furnished in point no. 6 of GSTR-9C. Similarly the taxable turnover to be arrived at and furnished in point no. 7 of GSTR-9C. Reconciliation of taxes paid and additional amount payable: Reconciliation of rate wise liability and amount payable thereon need to be furnished inn point no. 9 of GSTR-9C. Additional amount payable arrived at during the reconciliation of t
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2019 (3) TMI 345 – CESTAT CHENNAI – TMI – CENVAT Credit – input services – insurance services – period from April 2016 to June 2017 – denial on account of nexus – Held that:- The first policy is in the nature of errors and omission insurance policy. It is a form of insurance policy which covers the risk on failure to perform on the part of financial loss caused or shortage in the service provided or the products sold – the disallowance of credit on errors and omission insurance policies is unjustified and requires to be set aside.
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The second type of insurance policy is the transit insurance policy. The appellant has explained that such insurance policy is taken to cover the risk of accident or damage of the goods such as computers, routers etc. which are transported to the premises of the customer – the appellant herein is not a manufacturer but an output service provider and the definition of input service would not be applicable to output service provider. Any input service us
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ndent ORDER Brief facts are that the appellants are engaged in providing various taxable services in the nature of telecommunication service, franchise service, business auxiliary service etc. They were earlier functioning under Large Taxpayer Unit having centralized registration. On verification of records, it was noticed that they had availed input service credit on insurance services during the period from April 2016 to June 2017. According to department, general insurance / insurance auxiliary service are not covered under the definition of input service used for providing output service as they had no nexus with the provision of output service and therefore became ineligible for input service credit. Show cause notices were issued proposing to demand an amount of ₹ 1,74,869/- along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, interest and also imposed penalty. In appeal, Commissioner (Appeals) upheld th
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portation. The appellant is to transport the finished goods as well as input such as routers, computers etc. It is highly necessary to cover the risk of any accident or damage during the transit of these goods. 2.2 The third insurance policy is umbrella fixed asset policy. This insurance policy intends to cover the asset / property and to provide insurance against loss of the risk due to fire, theft and weather damages. These insurance policies are not in regard to the benefit of employees and are not covered under the exclusion definition of input services. It is also submitted by him that for the earlier period, in the appellant s own case, the Commissioner (Appeals) vide Order-in-Appeal No. 534/2017 dated 29.12.2017 had allowed the credit in respect of transit insurance as well as umbrella fixed asset policy. He also relied on the decision of the Tribunal rendered in their own case reported in 2018 (10) TMI 563 – CESTAT Chennai wherein the Tribunal has allowed the credit in respect
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s unjustified and requires to be set aside, which I hereby do. 5.1 The second type of insurance policy is the transit insurance policy. The appellant has explained that such insurance policy is taken to cover the risk of accident or damage of the goods such as computers, routers etc. which are transported to the premises of the customer. The ld. AR has argued that place of removal being the appellant s premises, the said credit is not eligible. However, the appellant herein is not a manufacturer but an output service provider and the definition of input service would not be applicable to output service provider. Any input service used for providing output service is eligible for credit in the case of an output service provider. Hence disallowance of credit on this policy is unjustified and requires to be set aside, which I hereby do. 5.2 The third type of insurance policy is umbrella fixed asset policy. The appellant has taken this insurance policy to cover the risk such as fire, theft
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2019 (3) TMI 371 – NATIONAL ANTI-PROFITEERING AUTHORITY – TMI – Profiteering – Melaglow Rich (Niacinamide) Depigmentation & Glow Restoration Cream – situation post implementation of GST – benefit of reduction in the rate of tax/input tax credit not passed on – increase in MRP by tampering the label – contravention of the provisions of Section 171 of the CGST Act, 2017 – penalty.
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First objection raised by Respondent No. 1 states that Section 171 of the CGST Act, 2017 was not applicable in the instant case since its scope was restricted to the cases where there was reduction in the rate of GST on the supply of the goods or services and a reduction in the rate of GST, did not extend to a reduction in the rate of tax when compared with the pre-GST indirect tax regime rates – Held that:- IT would be appropriate to mention that the main objective of introducing the GST was to subsume multiple central and state taxes to reduce the costs of doing business and while doing so there should
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he can not be allowed to pocket the amount of reduced tax which should have normally gone to the coffers of the Central/State Governments. Any benefit of reduction in the rate of tax given by the above Governments by sacrificing their own revenue must be passed on to the customers by commensurate reduction in the prices by the suppliers as per the intention of Section 171 and any other interpretation of the same would be illogical and unreasonable.
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It appears that the Respondent No. 1 is trying to misinterpret the provisions of Section 9 of the CGST/SGST Acts, 2017 and Section 5 of the IGST Act, 2017 by stating that the term “tax” as used in the above Sections does not apply on the CED, CST or the VAT as it applies only on the “supply” of goods and services – A bare perusal of Section 7 of the CGST/SGST Acts, 2017 shows that “supply” includes “sale” also and as per Section 2 (21) of the IGST Act, 2017 the supply shall have the same meaning as has been assigned to it under Section
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te) dated 28.06.2017, and the rate of GST was further reduced from 28% to 18% vide Notification No. 41/2017- Central Tax (Rate) dated 14.11.2017. However, during these periods, the base price of the product was increased from ₹ 202.06 to ₹ 230.90 per unit which resulted in increasing of the selling price amounting to denial of not passing the benefit of tax reduction to the customers – the total amount the benefit of which was denied to the recipients by the Respondent No. 1 or the profiteered amount during the period w.e.f. 01.07.2017 to 31.07.2018, comes to ₹ 96,59,716.26/-. The Respondent No. 1 has also himself agreed to deposit this amount along with the applicable interest, vide his submission dated 24 12 2018 before this Authority.
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Since, the present investigation in to the issue of not passing on the benefit of reduction in the rate of tax by the Respondent No. 1 has been conducted w.e.f. 01.07.2017 to 31 07 2018, and the Respondent No. 1 has also not pro
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incorrect invoices which is an offence under Section 122 (1) (i) of the above Act. Hence, he is liable for imposition of penalty under the above Section read with Rule 133 (3) (d) of the CGST Rules, 2017 – opportunity must be provided to respondent No. 1 to be heard, a notice be issued to him to explain why such a penalty should not be imposed on him.
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Application disposed off. – Case No. 15/2019 Dated:- 5-3-2019 – SH. B. N. SHARMA, CHAIRMAN, SH. J. C. CHAUHAN, TECHNICAL MEMBER, MS. R. BHAGYADEVI, TECHNICAL MEMBER, SH. AMAND SHAH, TECHNICAL MEMBER Sh. Shri R. K Gupta Applicant No. 1 in person Smt. Gayatri, Deputy Commissioner and Sh, Manoranjan, Assistant Commissioner; for the Applicant No. 2. Sh, Khomba Singh, Sh. Prakash Birla, Sh. Prabhat Ranjan and Sh Ashish Jani, Company Representatives, Sh. Sanjeev Saraf, Chartered Accountant, Sh. J. P. Singh and Smt. Shalini Ranjan, Advocates, for the Respondent No. I None for the Respondent No. 2. Sh. J. K. Arora, Chartered Accountant &am
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, which amounted to an increase of ₹ 50/- per unit post implementation of the GST. The label also disclosed that the product was marketed by the Respondent No. 1 and manufactured by the Respondent No. 2. The Applicant No. 1 had further informed vide his email dated 10.07.2018 that the above product was purchased by him from the Respondent No. 3. The Applicant No. 1 had also claimed that since the Respondents had increased the MRP of the product after the rate of tax was reduced on it, they had indulged in profiteering in contravention of the provisions of Section 171 of the CGST Act, 2017 and hence appropriate action should be taken against them. 2. The above complaint was examined by the Standing Committee and vide the minutes of its meeting dated 13.04.2018 it had requested the DGAP to initiate investigation under Rule 129 (1) of the CGST Rules, 2017 and collect evidence necessary to determine whether the benefits of reduction in the rate of tax or Input Tax Credit (ITC) had be
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ter implementation of the CST w.e.f. 01 07 2017. The Respondents were also asked to suo moto determine the quantum of profiteering, if any, on account of increase in the price of the product and indicate the same in their replies to the Notice issued by the DGAP. Further, the Respondents were also given an opportunity to inspect the non-confidential evidences/information received from the complainant on any working day between 23.07.2018 to 25.07.2018. The Respondent No. 3 visited the office of the DGAP on 25.07.2018 to inspect the same. However, the Respondents No. 1 & 2 did not inspect the record. Vide e-mail dated 15.10.2018, the complainant was requested to inspect the non-confidential evidences/replies submitted by the Respondents on 17.10.2018 or 18.10.2018 and he had inspected the non-confidential information submitted by the Respondent No. 1 on 18 10.2018. 5. The DGAP had requested for granting extension in time to complete the investigation up to 08 11 2018 which was allow
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GST (01.07. 2017 to 14.11.2017) 0% 28% 415 233.44 Post-GST (15.11.2017 onwards) 0% 18% 382 233.08 7. The DGAP has also stated that the Respondent No. 1 was also asked, vide letter dated 25 09.2018, to submit the details regarding GSTN registrations obtained, details of the invoice-wise outward taxable supplies of the above product other than zero rated from 01.07.2017 to 31.07.2018 along with the certified summary of the same, Melaglow Credit Note register for the period from July, 2017 to July, 2018, Melaglow Debit Note register for the period from July, 2017 to July, 2018, Copies of GSTR-1 and GSTR- 3B returns for the State of Delhi, for the period from July, 2017 to July, 2018, copies of two sample sale and purchase invoices of the goods under investigation for the period from July, 2017 to July, 2018. The Respondent No. 1 vide his reply dated 04.10 2018 had submitted the above mentioned details and documents to the DGAP 8. The DGAP has further stated that the Respondent NO 2 had su
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ransaction Value per Unit (Rs.) 1 SH/00009/16-17 28.04.2016 68.61 2 SH/00013/17-18 25 05.2017 94.23 3 GHP/17-18/00006 28 08.2017 64.58 4 GHP/17-18/00045 11.12.2017 64.58 9. The DGAP has also intimated that he had sent an e-mail to the Respondent No. 2 on 06 09.2018 asking him to submit the copy of the Central Excise invoices, evidencing payment of CED post 06 05 20 Id and the Respondent No. 2 vide his e-mail dated 19.09.2018 had informed that the product was being manufactured for him by from the job worker viz. M/S Helios Pharmaceuticals at its manufacturing facility located in Village Malpur, P.O. Bhud, Baddi, Teh. Nalagarh, Distt.-Solan, Himachal Pradesh- 173205 and the CED was being paid by M/s. Helios Pharmaceuticals. The Respondent No. 2 had also submitted the desired invoices and the documents to the DGAP 10. The DGAP has further intimated that vide his reply dated 27.07.2018, the Respondent No. 3 had submitted that he had purchased the product from M/S Aditya Pharmaceuticals (D
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by the Respondents No. 1 and 2 has further intimated that the following tax structure was applicable during the pre-GST and post-GST periods in respect of the above product:- S.No. Supplier Tax/Duty Rate of Taxi Duty Tax Amount Remarks 1 M/s. Helios Pharmaceutical Is (Job Worker) CED 8.13% 29.66 12 5% on 65% of MRP of ₹ 365/- 2 M/s. Sami Labs Ltd (Manufacturer) CST 2% 1.88 On the Central Excise invoice value of ₹ 94.23 3 M/s. Abbott Healthcare Pvt Ltd. 12.50% 292 On the VAT invoice value of ₹ 233 60 Total Tax Amount 60.74 Pre GST Tax rate 30.06% ₹ 60 74 as a % of ₹ 202.06 (Rs. 233 60 -Rs. 29.66 -Rs 1.88 Post-GST tax rate 28% w.e.f. 01.07.2017 12. The DGAP has also intimated that during the investigation, it had been observed that the total tax incidence on the product was 30 (Rs 60.74 tax on the base price of ₹ 202.06) in the pre-GST period, which was reduced to 28% at the time of implementation of the GST w.e.f. 01.07.2017. He has further intimated
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07.2017 after the GST had come in to force, from ₹ 202 06 to ₹ 230.90 (average base price for the sales made during the period 01 07 2017 to 31.07.2018). The DGAP has further submitted that since the Respondent No. 1 was a supplier registered under the GST, he was legally bound to pass on the benefit of reduction in the rate of GST to his customers immediately w.e.f. 01.07.2017 and 15.11.2017 however, by increasing the base price of the product and also by increasing the cum-tax price charged from the recipients post GST, the benefit of GST rate reduction was not passed on by the Respondent No. 1 to his customers. Therefore, the DGAP has concluded that in respect of the above product, supplied by the Respondent No. I during the period between 01.07.2017 to 31.07.2018, the amount of profiteering came to ₹ 96,59,716.26/- on account of increase in its base price as had been furnished in Annexure-15 by him. 15. The above Report was received on 25 10.2018 and was considere
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, the Respondent No. 1 has stated that the Respondent No. 2 had manufactured the above product and he had only procured it from him. The Respondent No. 1 has further stated that the DGAP had done incorrect comparison between the pre-GST and post-GST rates and that the comparison should have been done only between the post-GST rates. The Respondent No. 1 has also claimed that from the date of launch of the product and till 01 03.2017, he had offered ₹ 28/- as discount, which had not been counted by the DGAP The above Respondent was also asked to supply the details of the MRP change at various stages of supply chain along with the date of change of MRP for all the products supplied by him by the Authority. 19. The Respondent No. 1 has filed his first written submissions on 19.11.2018, in which he has denied the allegation of profiteering and submitted that the DGAP s Report was incorrect on facts as well as in law. He has also submitted that the product was based on a phytochemical
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eriod (Up to 06.05.2016) Exempted from Central Excise Duty, as the product was manufactured at a manufacturing facility in Baddi (availing area based exemption) 0% 12.50% 348 222.72 Pre-GST Period (From 07.05.2016 to March 2017) Attracted Central Excise Duty 12.5% on abated MRP of 8.125 effective rate 12.50% 348 222.72 Pre-GST Period (March 2017 to June 2017) Attracted Central Excise Duty 12.5% on abated MRP of 8.125% 12.50% 365 233.60 Post GST Period (from 01.07.2017 to 14.11.2017) 0% 28% 415 233.44 Post GST Period (15.11.2017 onwards) 0% 18% 382 233.08 20. The Respondent No. 1 has also submitted that Section 171 of the CGST Act, 2017 was not applicable in the instant case since its scope was restricted to the cases where there was a reduction in the rate of GST and it did not extend to the reduction in the rate of GST as compared to the pre-GST indirect tax rates. The Respondent No I has also submitted that the rates of various taxes/duties leviable during the pre-GST period and the
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he necessary precedent condition was not satisfied, since there was no reduction in rate of tax on the product When the GST was introduced w.e f. 01 07 2017 and the tax pertained to the tax imposed under the CGST Act, 2017. He has further contended that there could have been no reduction in the rate of GST, when the GST was introduced and brought into force for the first time with effect from 01.07.2017 22. The Respondent No 1 has further submitted that the aforesaid interpretation of the term rate of tax on any supply of goods or services, was unambiguous with reference to the various provisions of the GST law The terms rate of tax and tax were not specifically defined under the CGST Act or the State GST Acts and hence, the issue whether the various taxes and duties levied prior to the introduction of the GST were liable to be included within the scope of the term rate of tax had to be determined. He has also claimed that Section 9 of the CGST Act, 2017 and Section 5 of the Integrated
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to cover pre-GST taxes. He has further contended that if the intention of the legislature was to empower the Authority to investigate cases based on the rates of taxes or duties levied prior to the introduction of the GST and the rate of CST levied after introduction of the GST the provisions of Section 171 of the CGST would have been worded accordingly, in the absence of which the Authority did not have the legislative mandate to investigate and compare the GST rates with the rates of taxes or duties levied prior to the introduction of GST. He has further averred that the Section did not make any reference to the taxes levied under the indirect tax enactments in force prior to the introduction of the GST and hence the term reduction in the rate of tax on supply of goods or services had to be read in conjunction with the succeeding words on any supply of goods or services and could not be read in isolation. The Respondent No. 1 has also argued that when the expression reduction in the
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ployed in the singular form and hence the term used in Section 171 was rate of tax , and not rates of taxes and if the intention of the legislature was to empower the Authority to investigate cases based on the rates of taxes or duties levied prior to the introduction of GST and the rate of GST levied after introduction of the GST, Section 171 would have employed the plural term rates of taxes . He has further pleaded that wherever the legislature intended to refer to the provisions of the erstwhile indirect tax enactments, the term existing law had been used, however, in Section 171 there was no reference to any tax levied under the existing law . 25. The Respondent No. 1 has also submitted that the legal maxim contemporanea exposito, which was used by the courts to interpret any ambiguous law was applicable in this case also. The Respondent No. 1 has also argued that the Authority on its website had published its mandate and had also defined profiteering in reply to the FAQs however,
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services was passed on by a commensurate reduction in the price. As these rates had been reduced on a number of products it was imperative that the benefit of reduction in the rates was passed on to the consumers and was not pocketed by the suppliers which would amount to unjust enrichment. The Respondent No. 1 has further claimed that he had dutifully reduced the price of the product post reduction in the rate of GST with effect from 15.11.2017 which was clear from the table given below:- Period Rate MRP (Rs.) 01.07.2017 14.11.2017 28% 415 15.11.2017 onwards 18% 382 27. The Respondent No. 1 has also submitted that even if it was assumed that the scope of Section 171 extended to the reduction in the rate of CST as compared to the pre-CST indirect tax rates, it was not applicable in his case since there was no reduction in rate of tax with effect from 01.07.2017, rather, there was an increase in the rate of tax w.e.f. 01 07.2017. He has further submitted that In the table given in Para
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of GST applicable on the product w.e.f. 01.07.2017 was 28%, there was no reduction in the rate of tax as was clear from the following table:- Particulars Effective rate computation as per the DGAP Report Correct method of effective rate computation Central Excise Duty 29.66 29.66 CST 1.88 1.88 VAT (upto the stage of Abbott's sale price) 29.2 29.2 VAT (in the distribution chain beyond sale by Abbott i.e. in subsequent sales) 0 11.36 (A) Numerator – Total Tax 60.74 72.10 (B1) Denominator – Abbott's sales price minus taxes 233.60 – 60.74= 202.06 (B2) Denominator – MRP of the product (i.e. ₹ 365/-) minus all applicable taxes 365 – 72.10 = 292.90 Effective tax rate A/B1 = 60.74/202.06 = 30.06% A/B2 = 72.10/292.90 – 24.62% 29. The Respondent No. 1 has further submitted that the computation had been done without thorough understanding of the pricing structure of the product and the tax computation method under the prevailing indirect tax laws. He has also contended that by fol
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0 June 2017 (pre-GST) and ₹ 233 44 during the period from 1 July 2017 (post-GST) 31. The Respondent No. 1 has also claimed that the increase in the MRP was due to increase in the indirect tax rates on account of introduction of GST and due to revision of pricing structure due to withdrawal of the discount which was earlier taken in to account while fixing the MRP Which could not be brought under the purview of Section 171. He has further claimed that the DGAP had ignored that the cause for increase in the MRP was not due to increase in the base price or profiteering but was on account of following factors:- a. Up to 06 05.2016, i.e. up to the period when CED exemption was applicable, CED was not factored in the selling price since the said duty was exempted b. With effect from 07.05.2016, when the above exemption was withdrawn the applicable CED rate was 12.5% on 65% of MRP i.e. @8.125%, however, he had not increased his MRP. He has also stated that the product continued to be su
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gm 395 435 401 Kojivit Ultra 20 gm 326 357 367 Advan 10 435 470 430 Advan 20 560 590 560 33. In his submissions dated 24.12.2018, the Respondent No. 1 has stated that post CED exemption, he had not passed on the cost of excise to the consumer by way of price increase and charging of the same at the time of the implementation of the GST it had been viewed by the DGAP as increase in the base price although he was entitled to charge the cost of excise duty post May 7, 2016. 34. In his submissions dated 24.12.2018 the Respondent has claimed that after the expiry of the CED exemption w.e.f. 07 05.2016 and upto 30.06.2017, after which the GST had come in to force he had not increased the price of the above product and had increased it w.e.f. 01 07.2017, although he had right to increase the same, however, it had been construed as profiteering made by him which was not his intention. He has therefore, stated that he had taken an internal decision to suo moto deposit the alleged amount of prof
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of GST w.e.f. 01.07.2017. He has also intimated that other issues raised by the Respondent had already been covered in the Investigation Report itself. 36. We have carefully considered the material placed before us and all the submissions made by the Respondent No. 1, dated 19.11 2018 and 24.12.2018, and email received by the Authority from the Respondent No. 2, dated 12.12.2018. In the instant case, the Respondent No. 1 has raised mainly three objections. The first objection raised by him states that Section 171 of the CGST Act, 2017 was not applicable in the instant case since its scope was restricted to the cases where there was reduction in the rate of GST on the supply of the goods or services and a reduction in the rate of GST, did not extend to a reduction in the rate of tax when compared with the pre-GST indirect tax regime rates. In this regard, it would be appropriate to mention that the main objective of introducing the GST was to subsume multiple central and state taxes to
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CGST Act, 2017 and Section 173 of the State GST Acts, 2017 that the Central and the State Acts which imposed CED, CST as well as the VAT have been repealed (Except for Entry 84 of the Union List and Entry 54 of the State List) and the above duty/taxes have been subsumed in the GST and the new rates of GST have been fixed near to the net incidence of the above three taxes which was in force before coming in to effect of the GST, as per the recommendation of the GST Council. Therefore, in case the net effect of the above taxes was more than the rate of CST fixed on 01.07.2017 the same would have to construed as reduction in the rate of tax as per the provisions of Section 171 (1) as the above provision had come in to effect immediately w.e.f. 01.07.2017 and the consequent benefit in the shape of commensurate reduction in the price has to be passed on otherwise it would result in earning undue profit by the supplier on account of tax which they can not appropriate. Had this not been the i
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coffers of the Central/State Governments. Any benefit of reduction in the rate of tax given by the above Governments by sacrificing their own revenue must be passed on to the customers by commensurate reduction in the prices by the suppliers as per the intention of Section 171 and any other interpretation of the same would be illogical and unreasonable. 37. It appears that the Respondent No. 1 is trying to misinterpret the provisions of Section 9 of the CGST/SGST Acts, 2017 and Section 5 of the IGST Act, 2017 by stating that the term tax as used in the above Sections does not apply on the CED, CST or the VAT as it applies only on the supply of goods and services. A bare perusal of Section 7 of the CGST/SGST Acts, 2017 shows that supply includes sale also and as per Section 2 (21) of the IGST Act, 2017 the supply shall have the same meaning as has been assigned to it under Section 7 of the CGST Act, 201 T As CED forms part of the price of the product on which VAT is leviable therefore,
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rate of tax prohibit such comparison, to examine whether the above two benefits have been passed on or not. There is no doubt that the expression reduction in the rate of tax has to be read in conjunction with the words on any supply of goods and services but it can not be interpreted to mean that only reduction in the rate of GST can be considered for invocation of Section 171 (1) and no comparison can be made with the pre-GST rates. 39. The Respondent No. 1 has submitted three case laws i.e. Aswini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369 = 1952 (10) TMI 32 – SUPREME COURT, Rao Shiv Bahadur Singh v. State of U. P. AIR 1953 SC 394 = 1953 (5) TMI 12 – SUPREME COURT and J. K. Cotton Spinning & Weaving Mills co. Ltd. v. State of U. P. AIR 1961 SC 1170 = 1960 (12) TMI 77 – SUPREME COURT, in his support which pertain to the interpretation of the statutes. It is to emphasize that the legal principles for interpreting a statute are to be used only when parent legislation is ambiguou
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es to interpretation. The FAQs/lnformation on the Authority s website are merely guiding in nature and have no binding force of a statutory law and hence the above maxim can not be invoked by the Respondent in his support. 41. Also, the legal maxim of contemporanea exposito is applicable in construing ancient statutes, but not for interpreting acts which are comparatively modern. In the legal jurisprudence, the maxim of contemporanea exposito was invented to interpret the provisions of statues made centuries earlier. In English courts, the legal maxim has been used to interpret the laws made in the Victorian times but according to the latest contemporary legal usages assigned o those provisions it has been rarely used. In this respect, the landmark case of J. K. Cotton Spinning and Weaving Mills Ltd. and another v Union of India and Others, AIR 1988 SC 191 = 1987 (10) TMI 51 – SUPREME COURT OF INDIA, is worth mentioning. In this case, the learned counsel had relied on the judgement pas
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than 2 years ago, they cannot be termed as old statutes. Moreover, the provisions of Section 171 are not at all ambiguous and are rather very clear in their scope and intent. Therefore, the Respondent No. I s argument of invoking the legal maxim of contemporanea exposito, to arrive at the contemporary exposition of the statute is not tenable and hence no reliance is being placed on the cases cited by him. 42. The Respondent No. 1 in his submission dated 19.11 2018 has contended that there was no reduction in the rate of tax and the DGAP had erred while calculating the effective rate of tax in the pre-GST regime. The Respondent No. 1, in para 41 of his submissions has given a table and argued that the DGAP had not included the VAT charged on the sale of the product in question beyond the sale made by him meaning that the VAT charged in the subsequent sales made after the Respondent No. 1 had sold the product should also have been included while computing the pre-GST rate. He has furthe
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ully relied upon. 43. The Respondent No. 1, in his submission dated 19.11.2018, has said that he had not increased the base price and the DGAP s calculation was factually incorrect as it was based on the wrong assumption that there was reduction in the rate of tax post-GST. He has also claimed that the increase in the MRP by 4.89% was made in March, 2017 due to increase in the rate of GST and the withdrawal of the discount which he was giving due to cessation of the CE exemption. But the Respondent No. I s submissions fall Short Of establishing this fact as it is apparent from the record that he had increased the base price of the product-from ₹ 202 06 (Rs. 233.60 ₹ 29.66 CED-Rs. 1.88 CST) to ₹ 230.90 per unit w.e.f. 01.07 2017 whereas he should not have increased it and supplied the product by charging 28% GST w.e.f. 01.07.2017 and 18% w.e.f. 15.11.2017 to pass on the benefit of tax reduction. There is also no evidence to suggest that the above Respondent had increas
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tors to prove that his MRP was the lowest however, the claim made by him cannot be confirmed due to lack of supporting evidence and hence the same cannot be relied upon. 45. The Respondent No. 1 in his submission made to this Authority on 24.12.2018 has specifically admitted that he had resorted to profiteering and agreed to deposit the entire amount of ₹ 96,59,716.26/- along with applicable interest therefore, there is no doubt that he has contravened the provisions of Section 171 (1) of the above Act and is hence, liable for its consequences. 46. It is also revealed from the perusal of the record that the Respondents No. 2 and 3 did not have any role regarding the increase in the base price as well as the MRP of the product as it was solely done by the Respondent No. 1, thus, only he is primarily responsible for the benefit of reduction in the tax rate not having been passed on to the recipients. 47. From the above discussion, it is revealed that the rate of tax was 30.06% in t
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e Respondent No. 1 has also himself agreed to deposit this amount along with the applicable interest, vide his submission dated 24 12 2018 before this Authority. 48. Accordingly, the Respondent No. 1 is directed to reduce the price of above mentioned product as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, by making commensurate reduction in its price, keeping in view the reduction in the rate of tax w.e.f 01.07.2017 and 15.11 2017 so that the benefit is passed on to the recipients Since the Applicant No. 1 has not produced the invoice vide which he had purchased the above product the amount to be refunded to him can not be determined. However, the Authority places on record its appreciation of the efforts made by him in bringing to notice this case of profiteering and for being present in person through the proceedings. The Respondent No. 1 is also directed to deposit the profiteered amount of ₹ 96,59,716.26 (Rupees Ninety Six Lakh Fifty Nine Thousand Seven Hun
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te CWFs as shown in the table given below:- S. No. State/Union Territory Total Qty. supplied (in nos.) Total profiteering (in Rs.) 1 Andhra Pradesh 12,214 2,05,471.4 2 Assam 2,440 42, 42,419.97 3 Bihar 986 16,204.15 4 Chandigarh 1,284 23,408.61 5 Chhattisgarh 2,394 41,846.34 6 Delhi 17,991 3,20,481 7 Goa 1,066 18,659.2 8 Gujarat 13,728 2,42,152.1 9 Haryana 6,288 1,14,459.3 10 Himachal Pradesh 276 4,316.185 11 Jammu & Kashmir 5,857 92,990.59 12 Jharkhand 2,730 48,884.19 13 Karnataka 27,796 4,84,989.6 14 Kerala 16,965 2,46,898.4 15 Madhya Pradesh 6,309 1,16,987.1 16 Maharashtra 53,592 9,41,457.6 17 Manipur 609 11,283.15 18 Meghalaya 228 3,776.91 19 Odisha 7,354 1,28,968.5 20 Pondicherry 264 4,111.775 21 Punjab 8,534 1,53,999.4 22 Rajasthan 7,045 1,22,741.8 23 Tamil Nadu 15,001 2,62,438.2 24 Telangana 16,636 3,07,438.4 25 Tripura 315 5,586.68 26 Uttar Pradesh 20,681 3,45,324.3 27 Uttarakhand 3,117 57,059.39 28 West Bengal 25,173 4,65,503.9 Total amount to be deposited in State Consume
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ty during the hearing on 15.11.2018, the DGAP is directed to further investigate the quantum of profiteering on all the products including the present product which the Respondent No. 1 is supplying and thereafter submit his report accordingly. 51. It is also established from the above facts that the above Respondent has issued incorrect invoices while selling the above product to his customers as he had not correctly shown the basic price which he should have legally charged from them. The Respondent has also compelled them to pay additional GST on the increased price through the incorrect tax invoices which would have otherwise resulted in further benefit to the customers which he has failed to pass on. It is also established from the record that the Respondent has deliberately and consciously acted in contravention of the provisions of the CGST Act, 2017 by issuing incorrect invoices which is an offence under Section 122 (1) (i) of the above Act. Hence, he is liable for imposition o
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2019 (3) TMI 513 – CESTAT CHENNAI – TMI – CENVAT Credit – input services – civil construction service done on works contract basis – period from 1.1.2016 to 31.3.2017 – Held that:- It is seen that the works undertaken are in the nature of flooring works, fencing, gate post and charges for repairing work etc. It is very much clear from the documents that the works undertaken are in the nature of repair and maintenance work. The exclusion clause in the definition of input service excludes only works contract service which is in the nature of construction of civil structure, part thereof or laying of foundation or support structure for capital goods – The works undertaken by the appellant does not fall under this category.
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Further, the
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vice tax credit on civil construction service doe on works contract basis for the period from 1.1.2016 to 31.3.2017. It appeared that the said service is not eligible for input service. Show cause notice dated 24.4.2017 was issued proposing to recover the CENVAT credit of ₹ 34,330/-. After due process of law, the original authority confirmed the demand and also imposed penalty of ₹ 5,000/-. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of appellant, Shri K. Pattabiraman, authorized representative appeared and argued the matter. He submitted that the works undertaken were for repair and maintenance of the factory. Periodical repair works are undertaken to upkeep the factory in good condition.
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g etc. Such works would fall within the exclusion clause as any work done for part of civil structure also would be excluded from the definition of input service. 4. Heard both sides. 5. The appellant is aggrieved by the disallowance of CENVAT credit on services which have been received by them for work done in the nature of flooring, fencing, laying of gate post etc. On perusal of the invoices placed in pages 55 and 56 of the appeal paper book, it is seen that the works undertaken are in the nature of flooring works, fencing, gate post and charges for repairing work etc. It is very much clear from the documents that the works undertaken are in the nature of repair and maintenance work. The exclusion clause in the definition of input servic
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2019 (3) TMI 595 – PUNJAB AND HARYANA HIGH COURT – TMI – Carry forward of input tax credit – request of filing GST Tran-I rejected – case of petitioner is that he may be allowed to withdraw the present petition with liberty to the petitioner to file fresh one on the same cause of action by challenging Annexure P-5 – Held that:- Petition dismissed as withdrawn. – CWP-5842-2019 Dated:- 5-3-2019 – MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL, JJ. For The Petitioner : Mr. Chetan Jain, Advocate for Mr. Jagmohan Bansal, Advocate ORDER AJAY KUMAR MITTAL , J (ORAL) The petitioner has approached this Court under Articles 226/227 of the Constitution of India, inter alia, for issuance of a writ in the nature of mandamus directing the respondents
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2019 (3) TMI 655 – GUJARAT HIGH COURT – TMI – Grant of regular bail – issue bogus Bills under GST – setting up of firms in the name of economically backward persons – role of the employees of the co-accused – Section 439 of the Code of Criminal Procedure, 1973 – offence punishable under Sections 69(1) of the Gujarat Goods and Services Tax Act, 2017 and Central Goods and Services Tax Act, 2017 – Held that:- In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the First Information Report, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
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The applicant is ordered to be released on regular bail subject to conditions imposed – application allowed. – R/CRIMINAL MISC.APPLICATION NO. 1665 of 2019 Dated:- 5-3-2019 – MR. A.Y. KOGJE, J. For The Applicant (s) : MR ND NANAVATY, LEARNED SENIOR ADVOC
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espective parties do not press for a further reasoned order. 5. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers. Following aspects are considered :- I) The applicant is in custody since 30.12.2018; II) Submission of learned senior advocate for the applicant that the applicant is a young person pursuing studies in Chartered Accountancy and was employed under the co-accused Hitendra Shah; III) Submission of learned advocate for the applicant that the applicant was acting under the instruction of the said Hitendra Shah and has not derived any financial gain; IV) Considering the role emerging against the applicant as narrated in the case papers, which can be recorded as under: Involvement of Applicant Mr. Prakashsinh Udavat obtained GST number in the name of Om Enterprise in March, 2018 and bogus bills amounting to ₹ 106.40 crores have been issued till July, 2018. As per the statement of Mr. Prakashsinh, only bogus bills have be
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ath Engineering (Hitendra Shah). In fact, it is found that transfer of this huge amount has been done as consideration of only billing transaction without any actual sale or purchase. Under such circumstances, it is found that Mr. Hitendra Shah and Madhav Shah are the masterminds of this entire scam. Further, Prakashsinh Udavat has stated that Hitendra Shah and Madhav Shah have trapped him in this case by alluring and made a bogus billing. Thus, as statement of the accused is admissible under section 70, there is no reason to disbelieve it. In view of the same also, Mr. Madhav Shah and Hitendra Shah are involved as master mind in this case. The businessman Prakashsinh Udavat has obtained other registration number in the name of Avi Enterprise at the same address of the business wherein also bills worth huge amount of 79.15 crores have been issued. There is a full possibility of involvement of Madhav Shah and Hitendra Shah therein also. All the facts can be exposed only at the end of co
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ra Shah and Madhav Shah are associated with each other. Thus, Hitendra Shah is involved in the entire scam. On 21/12/2018, inspection of the site was carried out by Shri S.V. Karwal, Assistant State Tax Commissioner at the residential address of the accused Hitendra Shah. During that investigation, bank statements of four other firms apart from Om and Avi Enterprise were found out from the residence of Hitendra Shah. In this regard, statement dated 26/12/2018 of Hitendra Shah under the provisions of The Gujarat Goods and Service Tax Act, 2017 and Section-70 of Central Goods and Service Tax Act, 2017 was recorded, wherein he has stated that bank statements of all these four firms were obtained by Madhav Shah for reversing the entries from S.K. Enterprise to Parshwanath Engineering. Moreover, upon asking Hitendra Shah as to whose proprietary firm this S.K. Enterprise is, he stated that management of this firm was being done by the accused Madhav Shah. Thus, the accused Madhav Shah is doi
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Shah and Madhav Shah. Both the accused persons were paying ₹ 8000/- per month to Tusharbhai and for that, they used his documents and obtained G.S.T. Number and obtained his signature in many blank cheque books. As he needed money for buying car, he got trapped in the allurement given by the aforesaid accused persons to pay the installment of the car. It is noteworthy here that, at the time of obtaining G.S.T. Number of Shivay Enterprise, the mobile number of Mr. Hitendra Shah was provided and the E-mail ID of Madhav Shah was provided. As all the process of G.S.T. was online, it is obvious that, any type of notice or messages would be sent to the said mobile number and E-mail ID. The G.S.T. Number of Shivay Enterprise was obtained by two accused persons Hitendra Shah and Madhav Shah on 07/12/2017. And in the aforesaid case, the turnover of sale of ₹ 173.58 crores was mentioned by both these accused persons in the G.S.T.R-1 Statements for the period of total ten months from
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Madhav Shah on 29/12/2018 at: 133, Isckon Green Bungalows, Ghuma village, Bopal where the accused persons were found. They were served summons u/s 70 and asked to submit their statements. Pursuant to the same, facts regarding this entire billing scam, concerned evidence and statements of concerned persons were produced before the accused Madhav Shah and his detailed interrogation was carried out and thereafter, he admitted having been involved in the said scam. Moreover, he stated about the role of other accomplices in the said scam. Further, he also stated modus operandi of the entire scam. As per the same, in order to commit the scam, Hitendra Shah, Prakashsinh Udavat and present accused namely Madhav Shah in collusion with other persons set up firms in the name of economically backward persons, obtained GST number, misused the said numbers and obtained input credit illegally for invoices of stock worth crores of rupees without actual physical transaction and caused huge loss to gov
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2011 (11) TMI 537 – SUPREME COURT. 6. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the First Information Report, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. 7. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with File No. CCST/ADENF/FSU-7/MadhavArrest/2018-19/B.4 & AC/U- 6/Arrest/2018-19/B.5811 of the office of the Chief Commissioner of State Tax, Flying Squad Unit-7, Gujarat State Ahmedabad on executing a personal bond of ₹ 10,000/= (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injurious to the interest of the prosecution; (c)
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GST – Started By: – Madhavan iyengar – Dated:- 4-3-2019 Last Replied Date:- 11-3-2019 – A company has recovered Certain sums basic amount and interest from vendor these amounts are certain taxes of earlier law which was not paid by the vendor to the company and in companys assessment the ITC of earlier law was disallowed query is gst applicable on the recovery of basic amount of taxes and the interest – Reply By PAWAN KUMAR – The Reply = Dear Sir, As per my view, the same will be subject to GST. As per valuation section 15 of CGST act, any tax, duty, cess fee and any other charges of any law other than SGST, UTGST, GST(Compensation to states) Act shall be liable to be includible in value of supply of goods or services or both. Interest, late fee , penalty in respect of supply of goods or services shall also be laible to be include in value for charging GST. – Reply By SHARAD ANADA – The Reply = First of all GST Is charged only on supply of goods or services or both. In your case there
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GSTR-3B. The applicable interest and penalty shall apply on all such reversals which shall be paid through entry in column 9 of Table 6.1 of FORM GST-3B. 6.2 Amended Para 3. It may be noted that all such liabilities may be discharged by the taxpayers, either voluntarily in FORM GST DRC-03 or may be recovered vide order uploaded in FORM GST DRC-07, and payment against the said order shall be made in FORM GST DRC-03. It is further clarified that the alternative method of reversing the wrongly availed CENVAT credit under the existing law and inadmissible transitional credit through Table 4(B)(2) of FORM GSTR-3B would no longer be available to taxpayers. The applicable interest and penalty shall apply in respect of all such amounts, which shall also be paid in FORM GST DRC-03. – Reply By Madhavan iyengar – The Reply = Dear Sirs sharadji and pawanji thanks for the detailed analysis but iam once again retiterating the issueThe Company has discharged all its obligations under earlier law, now
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ery + explanation provided:- I'm on the view that there is no supply in this transaction as the same is transaction in money. No requirement to pay GST on the same. Grounds for opinion :- W.e.f from 01.02.2019 – Schedule II of CGST Act can't be used for determining the transaction whether it is supply or not. It is only to classify whether the supply is supply of goods or services. The clause (e) of Sl.no.5 of Schedule II of CGST Act sounds like a residuary clause as it mentions agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act which can be interpreted in a way to cover even transaction in monies. Before classifying a supply under this head a detailed analysis and great care has to be taken. I'm re-iterating your case in some other manner for better understanding – you made payment to vendor for purchase of 100 units but he delivered only 75 units and your receiving back the amount relating to 25 units, will you treat i
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GST – Started By: – SAFETAB LIFESCIENCE – Dated:- 4-3-2019 Last Replied Date:- 6-3-2019 – Dear Experts, We have received a letter from GST range seeking clariification for the variation between our GSTR-3B and GSTR-2A. Some of the suppliers have not uploaded their bills and every one aware that this difference is due to suppliers non uploading only. But we have pucca GST paid bills. At this stage, we want to know whether we are eligible to take ITC only if it is displayed in 2A compulsorily and is it mandatory. What we can do if our party is not uploading their bills. Is there any rules or notification are there stating only and only we can take ITC if available in GSTR-2A only. – Reply By KASTURI SETHI – The Reply = Uploading invoices by
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B for the month of September, 2018 is unfounded as the same exercise can be done thereafter also. As per Section 155 of CGST Act, 2017 the burden of proof is cast upon the person who claims ITC. As per Section 43 A (6) of CGST ACT both are jointly and severally liable to pay or to pay ITC. The supplier is also statutorily bound to file returns under Section 39 wherein he is to mention details of all invoices. – Reply By Ganeshan Kalyani – The Reply = The input tax credit taken by the buyer is on self assessment basis. There is no compulsion as of now to match the invoice appearing in GSTR-2A with the details uploaded by the supplier in his GSTR-1. However, as rightly said by Sri Kasturi Sir, the onus of claiming the credit is upon the buyer
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essment basis, the condition prescribed in the section 16(1) should be complied with : -GST should be paid by supplier – In this provisions, all output invoices must upload on Portal so as to correctly estimate the GST liability and paid taxes. -GST return should be filed by supplier – As per this provision, return should be filed for the taxes paid. The press note dated 18.10.2018 was issued to clarify the aspect that in trade it was being communicated that ITC if not reconciled with 2A and 3B, one cannot take ITC. The CBIC released the press note to clarify that even if reco not done, claim will not impact. you may claim itc subject to condition of section 16 which now prevails and exists. Even some of the trade has been issued notice tha
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2019 (3) TMI 453 – CESTAT KOLKATA – TMI – Refund claims – price variation clause – transaction value determined after importation due to annual discount/quantity rebate, determined after end of the contract period – rejection on the ground that the assessments are final and as such, refund claims are not maintainable – Held that:- Tribunal in the case of Commissioner of Customs (Export) New Delhi Vs. Lalit Kumar [2017 (1) TMI 7 – CESTAT NEW DELHI] has held that refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 – refund allowed – appeal allowed – decided in favor of appellant. – MA (EH)-77675-77687/18 & Cus. Appeal Nos.75850-75862/18 – MO/75133-75145/2019 & FO/75233-75245/2019 – Dated:- 4-3-2019 – SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri S.
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ount/quantity rebate, resulted in reduction of price/assessable value under Section 14 of the Customs Act, 1962. Refund claims were filed along with all the documents including BRC. The claims were rejected on the ground that the assessments are final and as such, refund claims are not maintainable. 4. Heard both sides and perused the appeal records. 5. We find that the raw material i.e. Rock Phosphate was imported from Morocco, with whom the appellants have long terms contracts. The said contract contains price variation clause, according to which depending upon the quantum of off take, the overseas supplier offers quantity rebate and price discount, which can only be ascertained at the end of the contract period. The above factual aspects are admitted by the authorities below, and therefore, those are not under dispute. Since the quantity rebate/price discount was not known at the time of import, the imported goods were cleared on payment of duty, on the basis value shown by the over
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reduced value represented the transaction value of imported Rock Phosphate, in terms of Section 14 of the Customs Act. 7. As stated above, the appellant at the time of importation, paid duty on the value shown in the bill of lading, which was higher than the transaction value, determined subsequently, after receipt of discount/rebate amount from the foreign suppliers. Transaction value, in terms of Section 14 of the Act, means the price actually paid/ payable for the imported goods. Duty, in terms of Section 14 of the Act, is leviable/payable on the transaction value. Duty payable in this case became lesser than the duty already paid by the appellant. 8. The Assistant Commissioner, relying upon the decision of the Hon ble Supreme Court in the case of Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries 2004 (172) E.L.T. 145 (S.C.), had held that since the appellant did not challenge the assessment of bill of entry by filling appeal against the same, Refund App
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rusal of the case records, we find that the refund application filed by the respondent on 25-5-2011, claiming refund of excess duty paid by it was returned by the Assistant Commissioner (Refund) under the cover of his letter dated 24-8-2011. Thereafter, the respondent had filed the appeal before the Commissioner (Appeals) on 12-9-2011. Cause of action for filing appeal will not be considered as the date of assessment of the Bill of Entry inasmuch as the benefit of duty exemption provided under the above referred notifications was claimed by the respondent in the refund application, since the same was not considered at the time of assessment. Decision taken by the Department for non-consideration of the refund application filed after finalization of assessment and return of the same under the cover of letter dated 24-8-2011, assigning the reason of premature and not maintainable, in our considered opinion, would give rise to the cause of action for filing appeal before the ld. Commissio
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the benefit provided under notification dated 1-3-2006 was not claimed in the Bill of Entry. On the basis of information furnished by the respondent, since the Bill of Entry was assessed by the Customs Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent in pursuance of an order of assessment . The case of the respondent falls under the second category, i.e., borne by him contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, claiming of refund of such excess duty in terms of Section 27 ibid, in our view is in conformity with the statutory provisions. 7. The judgment of Hon ble Supreme Court in the case of Priya Blue Industries Ltd. (supra) cited by Revenue in their grounds of appeal is distinguishable from the facts of the present case inasmuch as the duty in such case was paid by the importer in pursuance of an assessment order and the Hon ble Supreme Court have r
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ment are extracted herein below :- If, therefore, we refer to language of 4. Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be borne by him . Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of cases, where the duty is paid by a person without an order of assessment, i.e. in a case like the present where the assessee pays the duty in ignorance of a notification which allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adversarial assessment order. The Tribunal has referred to the cases of 5. CCE, Kanpur v. Floc
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Central Excise – Refund of unutilized amount lying in Cenvat credit account post GST – no authority can sanction refund claim to be credited in Cenvat credit account – refund is allowed in cash – TMI Updates – Highlights
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GST – Started By: – Madhavan iyengar – Dated:- 2-3-2019 Last Replied Date:- 3-3-2019 – A Company has received an Invoice for AMC bill for period January 2018 to December 2018 towards maintenance services. Company has made the entire payment in the month of January 2018Issue: Can the Company avail the entire GST-ITC as mentioned in the AMC in the month of January 2018. – Reply By CASusheel Gupta – The Reply = Yes, can be claimedIn case of goods also, we take ITC at the time of inward supply irrespective of actual date of consumption. – Reply By Madhavan iyengar – The Reply = but one of the conditions to avail itc in gst law is that the company should have received the goods / services ??? – Reply By KASTURI SETHI – The Reply = In terms of S
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me month is also changes as per availability of me and sometime his. Similarly in case of yours can you maintain a log as to when he is giving service in terms of AMC. If yes take credit when service is received . otherwise it can be safely decided that credit can be taken on the receipt of invoice . – Reply By CASusheel Gupta – The Reply = Suppose I purchase an AC on 31.03.2018It am entitled to one AC (goods received), one year warranty (shall be availed in next year) and three free service coupon (shall be availed in next year) . How to apportion now between these three. I believe unless the stakes are high, we can take credit on receipt of invoice. At the most at year end we can reverse an estimated amount and can take re-credit in April
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GST – Started By: – HIMANSHU SHRIMALI – Dated:- 2-3-2019 Last Replied Date:- 5-3-2019 – is E Way Bill required to be generate if i issue 4 invoice of ₹ 20000/-each (80,000)to same receipeant, same tranporter.? Whether provision of Rajasthan E Way Bill (intra – state i.e. movement of goods with in Rajasthan) is same as of CGST ? I tried a lot to get amended E Way Bill provision of Rajasthan GST but failed. 1. is E Way Bill required to be generate by the supplier or recipient : if i issue 4 invoice of ₹ 20000/-each (80,000) to same recipient, same transporter?2. Whether provision of Rajasthan E Way Bill (intra – state i.e. movement of goods with in Rajasthan) is same as of CGST ? I tried a lot to get amended E Way Bill provision
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bill if supplies or recepient has not gererated e way bill. Please refer Rule 138(7) of CGST Rule 2017. The same is reproduced here under for your ready reference 7) Where the consignor or the consignee has not generated the e-way bill in FORM GST EWB-01 and the aggregate of the consignment value of goods carried in the conveyance is more than fifty thousand rupees, the transporter, except in case of transportation of goods by railways, air and vessel, shall, in respect of inter-State supply, generate the e-way bill in FORM GST EWB-01 on the basis of invoice or bill of supply or delivery challan, as the case may be, and may also generate a consolidated e-way bill in FORM GST EWB-02 on the common portal prior to the movement of goods: Provi
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Goods and Services Tax – GST – By: – Mr. M. GOVINDARAJAN – Dated:- 2-3-2019 Last Replied Date:- 5-3-2019 – Intermediary The term intermediary is defined under section 2(13) of the IGST Act as a broker, an agent, or any other person, by whatever name called, who arranges or facilitates the supply of goods or services or both, or securities, between two or more persons, but does not include a person who supplies such goods or services or both or securities on his own account. From the above definition it can be inferred that an intermediary can be a broker, an agent or any other person who arranges and facilitates the supply of goods and/or services between two or more persons and who cannot change the nature of supply as provided by the principal. An intermediary cannot alter the nature or value of the service, the supply of which he facilitates on behalf of his principal, although the principal may authorize the intermediary to negotiate a different price. The principal must know the
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aid activities of the appellant clearly in the nature of arranging or facilitating supply of goods by foreign entity to customers in India, the same is considered to be as intermediary services as defined under section 2(13) of the Central Goods and Services Tax Act, 2017 particularly when he is not supplying goods neither on behalf of the principal or on his own account but the same is supplied by the principal, a foreign entity. Therefore the Appellate Authority held that the contention of the appellant that promotion and marketing services provided by him to such foreign entity on his account, excluded from purview of the definition of intermediary service is not acceptable. Intermediary services – Export of services? Section 2(6) of the Integrated Goods and Services Tax Act, 2017 ( IGST Act for short) defines the expression export of services as the supply of services, when- (i) the supplier of service is located in India; (ii) the recipient of service is located outside India; (ii
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nswer is given in the following case laws- In re Vishakhar Prashant Bhave – 2018 (12) TMI 227 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA the question for which advance ruling was sought is as to whether the commission received by the applicant in convertible foreign exchange for rendering services as an intermediary between an exporter abroad receiving such services and an Indian importer of an equipment is an export of service falling under section 2(6) of IGST Act and outside the purview of section 13(8)(b) attracting zero rated tax under section 16(1)(a) of IGST Act. The AAR held that since the place of supply of services in this case is in taxable territory, the said intermediary services cannot be treated as export of services under the provisions of GST laws. In re Global Reach Education Services Private Limited – 2018 (8) TMI 392 – APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL, the appellant promotes the courses of the University, finds suitable prospective students to un
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the subscriber to whom it is proposed to market the CRS software. Based on the organizational and workflow analysis of the subscriber and following a back ground check of their prior activities, the applicant logs on a request into the system through the website maintained by Sabre APAC called Subscriber Communication Management System. If the subscriber agrees to use the CRS software, order forms are collected from them to begin the process for activation of the CRS Software. Once the subscriber is registered successful and a Pseudo City Code is allotted in its favor. Once the code is allotted and the setup is activated the applicant s engineers install user interfaces to access the CRS Software in the subscriber s computer systems. The Authority found that the job of the applicant is to scout for the subscribers in India. The applicant explains and educates the subscribers about the software. The subscribers become aware of the software only after the applicant approaches them. The s
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Goods and Services Tax – GST – Dated:- 1-3-2019 – On the occasion of 43rd Foundation Day of the Indian Civil Accounts Service (ICAS), the Controller General of Accounts (CGA) and his team of senior officers along with the Expenditure Secretary, Shri G.C. Murmu called on the Union Minister of Finance and Corporate Affairs, Shri Arun Jaitley in his office here today and briefed him on two recent achievements: Refunds of GST, and Operationalisation of PM-KISAN Scheme. CGA presented a Report on Tot
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Goods and Services Tax – GST – Dated:- 1-3-2019 – Total gross GST revenue collected in the month of February, 2019 is ₹ 97,247 crore of which CGST is ₹ 17,626crore, SGST is ₹ 24,192crore, IGST is ₹ 46,953crore (including ₹ 21,384crore collected on imports) and Cess is ₹ 8,476 crore (including ₹ 910crore collected on imports). Total number of GSTR 3B Returns filed for the month of January up to 28th February, 2019 is 73.48lakh. The Government has settled
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GST – Started By: – RAMESH M – Dated:- 1-3-2019 Last Replied Date:- 3-3-2019 – We exported our automobile material with payment of IGST, Due to some techinical issue the exported materials were rejected. we have to RE-IMPORT the above material. If there is any tax implication while RE-IMPORT the same.We also availed the all export benefits like DBK / MEIS / IGST refund for above export shipmentsShall we repay the availed above export benefits to GOVT ? or any other customs duty shall we pay add
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GST – Started By: – NILESH PITALE – Dated:- 1-3-2019 Last Replied Date:- 5-3-2019 – Respected Concern Authority Our Client received Contract of ( Work Design, Fabrication,Supply, Installation,Testing,& Commissioning Heavy Duty Back Rake type Mechanical Screen) from Goverment Authority, Question No-1: Can we consider it Composit Supply and Changed it 12% , if Not then 18% ? Question No: 2: If we awarded said contact to Sub -contractor then he will charged us 12% As per Notification No. 1/2018-Central Tax (Rate) dated 25.1.2018 Question 3: If As per above notification tax Rate 12% then , I guess Our contact is chargeable at 18% Please Guide us what we should charged to the Goverment – Reply By KASTURI SETHI – The Reply = Query-wise reply
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e is a single supply. According to definition of works contract under GST regime, the supply of goods and services are done by the supplier simultaneously which is for immovable property. Hence in works contract supply of goods and services together is compulsory – Thus, based on above facts and concept such contract shall be a single supply and cannot be treated as distinct supplies. Since all the conditions of composite supply are satisfied, it is a composite supply. The activity proposed to be undertaken is a composite supply of works contract, the rate of tax in given service shall be determined in accordance with the Notification No 11/2017-CT (Rate) dated 28.06.2017, as amended from time to time. Thus, the activity of supply, design,
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GST – Levy of CST – Benefit of lower CST or exemption from CST post GST – Procurement of high speed diesel oil for manufacturing – the question whether the finished goods would also have to be amongst
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GST – Started By: – Vaibhav Bhala – Dated:- 1-3-2019 Last Replied Date:- 5-3-2019 – Respected Sir We have received an advance in pre-GST regime for service tax and we duly paid service tax on it. The services were to be rendered after 01-07-2017 i.e. post-GST induction. As we were unaware of GST provisions at that time we charged GST at the actual time of supply of services and it was duly deposited with Government. Since it was doubly taxed we took credit of earlier service tax paid in TRAN-1. But now we realized that as per Sec. 142(11)(b) of CGST Act, 2017, we were not supposed to charge GST on the supply of Services for which Service Tax was already deposited and service tax paid was our output liability and input of it cannot be avail
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Goods and Services Tax – GST – By: – Sandeep Rawat – Dated:- 1-3-2019 – SUPPLEMENTARY INVOICES AND THEIR USES Supplementary tax invoice has not been defined under GST law. Supplementary tax invoice is a type of invoice that is issued by a taxable person in case where any deficiency is found in a tax invoice already issued by a taxable person. It can be in form of a debit note or a credit note. ISSUANCE OF CREDIT NOTE A supplier of services is mandatorily required to issue a tax invoice. However, during the course of trade or commerce, after the invoice has been issued there could be situations like: The supplier has erroneously declared a value which is more than the actual value of the services provided. The supplier has erroneously declared a higher tax rate than what is applicable for the kind of the services supplied. The quality services supplied is not to the satisfaction of the recipient thereby necessitating a partial or total reimbursement on the invoice value. Any other simi
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r services or both provided. The supplier has erroneously declared a lower tax rate than what is applicable for the kind of the goods or services or both supplied. The quantity received by the recipient is more than what has been declared in the tax invoice. Any other similar reasons. In order to regularize these kinds of situations the supplier is allowed to issue what is called as debit note to the recipient. Any registered person who issues a debit note in relation to a supply of services, shall declare the details of such debit note in the return for the month during which such debit note has been issued and the tax liability shall be adjusted in such manner as may be prescribed DETAILS REQUIRED TO BE SHOWN There is no prescribed format for credit/debit note issued by a supplier. However, it must contain certain prescribed particulars. A supplementary tax invoice / or credit note under section 34 (1) or debit note under section 34 (3) read with Rule 6 of Revised Invoice Rules 2017,
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other like documents, the amount of tax. INPUT TAX CREDIT As per section 16(1) of GST law, no registered taxable person shall be entitled to the credit of any input tax in respect of any supply of goods and/or services to him unless he is in possession of tax invoice, debit note, supplementary invoice or such other taxpaying document as may be prescribed, issued by a supplier registered under the CGST/SGST or the IGST Act. As per section 16(1) & 16(2) of GST law, The registered person will be entitled to the credit of any input tax in respect of any supply of goods and/or services to him only if ALL the following five conditions are fulfilled: (a)Possession of tax paying document [Section 16(2)(a) read with rule 36 of the CGST Rules]ITC can be availed on the basis of any of the following documents: Invoice issued by a supplier of goods and/or services Invoice issued by recipient (receiving goods and/or services from unregistered supplier) along with proof of payment of tax (in case
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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 1-3-2019 – Can reduction in discount offered by supplier of goods resulting in increase in price amounts to profiteering in contravention of section 171 of CGST Act, 2017 ? The answer is NO, as affirmed by National Anti-Profiteering Authority (NAA). In Kerala State Screening Committee on Anti-profiteering and DGAP, CBIC, New Delhi v. Asian Paints Ltd., Kerala 2019 (1) TMI 21 – NATIONAL ANTI-PROFITEERING AUTHORITY ; , the NAA, vide its Order dated 27.12.2018, has ordered that where base price is increased due to reduction in discount, it does not amount to profiteering as discount is offered from the profit margin which does not form part of base price. In the instant case, p
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t-GST 1. Product Description A Paint (AP Apex Classic WT 10 LT (HSN Code 3209) 2. Invoice No. B 13006429 KR1701110400 3. Invoice Date C 20.06.2017 09.11.2017 4. MRP as per Annexure-7 (Rs.) D 2.610 2,660 5. Price before discount per unit (Rs.) E 2,159 1,927 6. Discount per unit (Rs.) F 75.57 67.45 7. Price after discount per unit (Rs.) G=E-F 2,083.43 1,859.55 8. Central Excise Duty @12.5% on 70% of MRP (Rs.) H=(D*70%)*12.5% 228.38 – 9. Base Price (Excluding duties & taxes) (Rs.) I=G-H 1,855.05 1,859.55 10. Tax Rate Charged (%) J 14.50% VAT 28% GST 11. Tax Amount (VAT or GST) (Rs.) K=G*J 302.10 520.67 12. Total Tax Amount (Rs.) L=H+K 530.48 520.67 13. Total Tax incident (%) M=L/I 28.60% 28% 14. Increase in Base Price Diff in I Rs.4.50/- (
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n the tax rate, thus, the provisions of Section 171 (1) of the CGST Act, 2017 relating to profiteering were not contravened in the instant case. The NAA based on DGAP report, invoices etc, examined whether there was any reduction in the GST rate and whether the benefit of reduction in the rate of tax was passed on or not to the recipient as provided under Section 171 of the CGST Act, 2017. It observed that supplier had increased the base price of the product from ₹ 1855.05/- to ₹ 1859.55/- resulting in an increase of ₹ 4.50/-. In this context, it was clear that the post-GST price before discount had been reduced from ₹ 2159/- to ₹ 1927/-. Also, the discount offered had been reduced from ₹ 75.57/- to ͅ
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2019 (3) TMI 168 – ALLAHABAD HIGH COURT – TMI – Maintainability of petition – Validity of order passed under Section 73 (9) of the U.P. GST Act, 2017 dated 21.1.2015 – appealable order under Section 107 of the U.P. GST Act or not? – Held that:- The order is appellable under Section 107 of the U.P. GST Act – In view of the statutory provision for appeal we are not inclined to entertain the petition at all.
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In appeal question of fact as well as law both can be considered and decided. Therefore, even if question of law is arising and there may not be any dispute of fact, still it is not proper to allow the petitioner to bye pass the statutory remedy.
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Appeal dismissed on the ground of alternative remedy. – Writ – A No. – 235 of 201
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2019 (3) TMI 370 – THE NATIONAL ANTI-PROFITEERING AUTHORITY – TMI – Profiteering – Ceramic Vitrified Tiles – benefit in the reduction of rate of tax not passed on – contravention of Section 171 (1) of the CGST Act, 2017 – N/N. 41/2017-Central Tax (Rate) dated 14.11.2017 – Held that:- It is clear that the base price of the product per box was ₹ 232.50 prior to 15.11.2017 and had remained the same even after GST rate reduction w.e.f. 15.11.2017. Therefore, the benefit of rate reduction appears to have been passed on. This Authority agrees with the DGAP's Report dated 28.09.2018 and accordingly, holds that the allegation of profiteering is not sustainable.
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The provisions of Section 171 of the CGST Act, 2017, have not been contravened and there is no merit in the application forwarded by the Applicant No. 1 – application dismissed. – 13/2019 Dated:- 1-3-2019 – Sh. B. N. Sharma, Chairman, Sh. J. C. Chauhan, Technical Member, Ms. R. Bhagyadevi, Technical Member And Sh. Amand S
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the pre-GST rate reduction period and invoice no. 0860 dated 15.12.2017 issued in the post-GST era. 2. The above application was examined by the Standing Committee on Anti-Profiteering and was referred to the DGAP vide minutes of its meeting dated 02.07.2018 for detailed investigation under Rule 129 (1) of the CGST Rules, 2017. 3. The present Report dated 28.09.2018 has been received from the Directorate General of Anti-Profiteering (DGAP) after detailed investigation under Rule 129 (6) of the CGST Rules, 2017. 4. The DGAP in his Report has stated that vide Notification No. 41/2017- Central Tax (Rate) dated 14.11.2017 the GST rate on the product "Ceramic Vitrified Tiles" Nano Series PRE-I (HSN Code 69072100) was reduced to 18% from the existing rate of 28% w.e.f 15.11.2017. Based on scrutiny of the two invoices issued by the Respondent, the pre & post GST rate reduction sale invoice-wise details of the said product are furnished in the table below by the DGAP:- Table Desc
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ar before the Authority on 18.10.2018 however the hearing was postponed to 31.10.2018. Smt. Shainamol, Additional Commissioner, SGST, Kerala appeared on behalf of the Applicant No. 1 and the DGAP was represented by Sh. Anwar Ali, Additional Commissioner. 7. The Authority during the course of the hearing had found that the above Report had not given any findings in respect of the price of the wholesaler, which was the basis for forwarding the case by the Applicant No. 1 to the Standing Committee. Therefore, the Authority vide its' order dated 12.12.2018 passed under Rule 133 (4) of the CGST Rules, 2017, had directed the DGAP to investigate the above issue and send his Report accordingly. 8. The DGAP has submitted his Report on 24.12.2018 under Rule 133 (4) of the CGST Rules, 2017, and has stated that the present case was covered by Annexure-6 of the minutes of the meeting held by the Applicant No. 1, alleging profiteering by the manufacturer/wholesalers by the Respondent in pursuant
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