GST – Input tax credit (ITC) – The warehouse being constructed is immovable property. The input tax credit is, therefore, not admissible on the inward supplies for construction of the said warehouse,
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Supply of goods after printing the Syllabus decided by the SCERT – supply of goods is involved i.e. supply of specified printed educational books , which is the principal supply and accordingly
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Classification of goods – Broom Stick made of plastics – the correct classification of the Plastic Broom-Stick is under heading 96032900 and classifiable as “Others” – taxable @5% – TMI Updates – Highlights
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Classification of goods – Sprayers made of Plastics – Sprayers are correctly classifiable under the HSN Code 84244100 – rate of tax is 18% – TMI Updates – Highlights
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Place of supply – sourcing (on a worldwide basis)) of goods from India – export or not – Appellate authority dismissed the appeal Challenging the decision of the Advance ruling decision – TMI Updates – Highlights
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Levy of GST – actionable claims or not – Even if it is admitted that there is a provisioning of service by the appellant to the end-customers, there cannot be any such service or actionable clai
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Classification – the item cannot be called as part of “waste to energy plants/devices” in generalized manner, as it would depend upon in its actual use – this item supplied by the applicant is p
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Classification of supply – construction and guaranteed lease – since both these services are capable of being provided independent of each other, these cannot be understood to be naturally bundl
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Started By: – Prem Choudhary – Dated:- 18-2-2019 Last Replied Date:- 23-2-2019 – Dear Expert Please advice , whether we have submitted TRAN-1 with due date and also one time has been amended but in claiming of Cenvat one invoice has been missed to claim in TRAN-1. what are the way of claiming of missed invoice ? whether we can claim through refund ? – Reply By Mahadev R – The Reply = Chances are very remote as information is not provided in TRAN-1. One option can be to provide the details in GSTR-3B treating it as other credits as it is the right of the assessee to claim the credit. Otherwise option of refund could be explored. Both the options are disputable. This could be tried only if there is a considerable amount of credit. – Re
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
nt of Madras H.C , Substantive credit can not be denied due to procedure . TARA Export Vs UOI in W.P. (MD) No. 18532 of 2018, decided on 10-9-2018. = 2018 (9) TMI 1474 – MADRAS HIGH COURT – Reply By KASTURI SETHI – The Reply = When experts give opinion they do reply as per law. When law is not clear, then we take shelter of case law. There are so many judgements wherein it has been held that substantiative right cannot be denied due to procedural lapse but the department files appeal against such decisions. Every case law has different facts and circumstances. You cannot apply any judgement everywhere. Nobody likes litigation. Litigation is very costly and consumes lot of time, energy and money. The very purpose of this forum is to avoid th
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 18-2-2019 Last Replied Date:- 20-2-2019 – Goods and Services Tax (GST), introduced from July 1, 2017 is about twenty months old now but has resulted in operational and implementation disruptions affecting all stakeholders. GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council is however, making regular changes to fix the anomalies and hardships faced by taxpayers. 32 meetings of GST Council have been held till 14th February, 2019. Taxpayers have already challenged various provisions of GST laws and rules framed thereunder with over 300 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. In recent past, CBIC had issued directions to be officers to defend the writs. Further, we have now rulin
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
f to assessee to effect that no coercive steps shall be taken by revenue to recover credit already availed by assessee till next date of hearing. The SLP filed against judgment and order of High Court was dismissed, after allowing for condonation of delay. In J K Tyre & Industries Ltd v. GST Council 2018 (5) TMI 457 – MADHYA PRADESH, HIGH COURT , the assessee filed the instant petition seeking direction to respondent to reopen portal immediately enabling assessee to revise its FORM TRAN – 1 and to avail transitional credit, in view of fact that during pendency of petition, Department pointed out that CBDT had issued Circular No. 39/13/2018 – GST dated 3-4-2018 whereby a special cell had been created to resolve assessee's grievances. The Court directed the assessee to avail remedy as was provided vide Circular No.39/13/2018- GST dated 03.04.2018. In Vinayaga Roofings v. Assistant State Tax Officer, Kerala 2018 (5) TMI 368 – KERLA HIGH COURT , the petitioner s goods and vehicle w
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
P. VAT Act and after the enforcement of the Goods and Services Tax regime with effect from 1-7-2017 made an application for migration to the Goods and Services Tax under the signature of one of its directors and in support of documentation, the PAN card was appended. The revenue authorities completed the migration process, but during migration recorded incorrect particulars in the registration form of the assessee. To get this rectified, assessee filed the petition. On writ, the assessee contended that despite repeated requests, reminders and also personal meeting with the officials, the error was not being rectified. It also pointed out that the revenue authorities had informed that system of migration had been closed by Goods and Services Tax Network and there was no possibility of generating correct particulars and entering them into the GST portal. The Court observed that one sees no reason why the authorities were not opening the portal to enable the assessee to correct the partic
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
he event they do not do so, they will entertain the GST TRAN-1 of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner. They were also to ensure that the petitioner is allowed to pay its taxes on the regular electronic system also which is being maintained for use of the credit likely to be considered for the petitioner. In B.R. Industries v. Union of India 2018 (8) TMI 211 – ALLAHABAD HIGH COURT where the assessee was unable to file GST TRAN-1 and avail the due credit because of failure of electronic system. Therefore, court directed to reopen GSTN Portal within two weeks and in the event they do not do so, they will entertain the GST TRAN-1 of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner. They were to also ensure that the petitioner is allowed to pay its taxes on the regular electronic system also which is being maintained for use of the credit likely to be
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – 89/08/2019 – Dated:- 18-2-2019 – Circular No. 89/08/2019-GST F. No. CBEC-20/16/04/2018 – GST Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs GST Policy Wing *** New Delhi, Dated the 18th February, 2019 To, The Principal Chief Commissioners / Chief Commissioners / Principal Commissioners / Commissioners of Central Tax (All) The Principal Director Generals / Director Generals (All) Madam/Sir, Subject: Reg. A registered supplier is required to mention the details of inter -State supplies made to unregistered persons, composition taxable persons and UIN holders in Table 3.2 of FORM GSTR-3B. Further, the details of all inter-State supplies made to unregistered persons where the in
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ies made to unregistered persons in the State where such supply takes place is based on the information reported in Table 3.2 of FORM GSTR-3B by the registered person. As such, non-mentioning of the said information results in – (i) non-apportionment of the due amount of IGST to the State where such supply takes place; and (ii) a mis-match in the quantum of goods or services or both actually supplied in a State and the amount of integrated tax apportioned between the Centre and that State, and consequent non-compliance of sub-section (2) of section 17 of the Integrated Goods and Services Tax Act, 2017. 4. Accordingly, it is instructed that the registered persons making inter-State supplies to unregistered persons shall report the details of
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – 90/09/2019 – Dated:- 18-2-2019 – Circular No. 90/09/2019-GST F. No. CBEC-20/16/04/2018 – GST Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs GST Policy Wing *** New Delhi, Dated the 18th February, 2019 To, The Principal Chief Commissioners / Chief Commissioners / Principal Commissioners / Commissioners of Central Tax (All) The Principal Director Generals / Director Generals (All) Madam/Sir, Subject: Reg. A registered person supplying taxable goods or services or both is required to issue a tax invoice as per the provisions contained in section 31 of the Central Goods and Services Tax Act, 2017 (CGST Act for short). Rule 46 of the Central Goods and Services Tax Rules, 2017 (CG
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
the following instructions. 3. After introduction of GST, which is a destination-based consumption tax, it is essential to ensure that the tax paid by a registered person accrues to the State in which the consumption of goods or services or both takes place. In case of inter-State supply of goods or services or both, this is ensured by capturing the details of the place of supply along with the name of the State in the tax invoice. 4. It is therefore, instructed that all registered persons making supply of goods or services or both in the course of inter-State trade or commerce shall specify the place of supply along with the name of the State in the tax invoice. The provisions of sections 10 and 12 of the Integrated Goods and Services Tax
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – 91/10/2019 – Dated:- 18-2-2019 – Circular No. 91/10/2019-GST F. No. CBEC-20/16/04/2018 – GST Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs GST Policy Wing *** New Delhi, Dated the 18th February, 2019 To, The Principal Chief Commissioners / Chief Commissioners / Principal Commissioners / Commissioners of Central Tax (All) The Principal Director Generals / Director Generals (All) Madam/Sir, Subject: Reg. Attention is invited to Circular No. 3/1/2018-IGST dated 25.05.2018 whereby applicability of integrated tax on goods transferred/sold while being deposited in a warehouse (hereinafter referred to as the warehoused goods ) was clarified. In the said circular, it was enunciated
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
accordingly. Now, representations have been received from trade to clarify the same. 3. In order to ensure uniformity in the implementation of the provisions of law across the field formations, the Board, in exercise of its powers conferred by section 168 (1) of the Central Goods and Services Tax Act, 2017, hereby issues the following instructions. 4. Supply of warehoused goods while deposited in custom bonded warehouses had the character of inter-State supply as per the provisions of Integrated Goods and Services tax Act, 2017. But, due to non-availability of the facility on the common portal, suppliers have reported such supplies as intra-State supplies and discharged central tax and state tax on such supplies instead of integrated tax. I
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (2) TMI 1009 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – TMI – Input tax credit – inward supplies for construction of the warehouse – section 17(5) (c) & (d) of the GST Act – immovable property or not? – property of the warehouse being built – Held that:- The Vendor is not supplying the floor as a pre-fabricated removable structure. The civil work undertaken is meant not only for fixing the prefabricated structure built upon the floor but also for developing the floor space itself – Beneficial enjoyment of the floor so inalienably attached to the land is integral to the enjoyment of the warehouse.
–
The Applicant is constructing a warehouse that is intended to be used as a permanent structure, and associated with beneficial enjoyment of the land on which it is being built. The technology used for the construction of the warehouse involves the application of pre-fabricated structures and also civil work for supporting the pre-fabricated structure and developing the floor of
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ation. He seeks a ruling on whether the input tax credit is admissible on the inward supplies for construction of the said warehouse. The above question is admissible under section 97(2)(d) of the CGST/WBGST Act, 2017 (hereinafter collectively called the GST Act). The Applicant declares that the issue raised in the application is not pending nor decided in any proceedings under any provisions of the GST Act. The officer concerned has raised no objection to the admissibility of the Application. The Application is, therefore, admitted. 2. In his written submission the Applicant describes the property under construction as Prefabricated Warehousing System (hereinafter the System ). It is being purchased from M/s. Pennar Engineering Building Systems Ltd (hereinafter the Vendor). The Applicant has annexed the literature (Annexure 4 to the Application) in which the Vendor provides a brief description of the pre-fabricated structures being supplied with pictorial and graphic presentations. Th
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
according to the Applicant, the warehousing system built thereon, can be dismantled, and thus reduces repeated capital expenses in the event of a shift of location. Moreover, the question of treatment of a property that is attached to a structure permanently embedded on earth has a long legal history. The consensus that has emerged favours treatment of such property as movable or immovable depending on the extent of annexation to the permanently embedded structure and the object of such annexation. According to the Applicant, if the nature of annexation is such that an item so annexed can be removed without any damage and future enjoyment of that item in a similar capacity is not affected, such an item will not be considered to be immovable property. He refers to the apex court s judgments in Solid & Correct Engineering Works [(2010) 252 ELT 481 (SC)] = 2010 (4) TMI 15 – SUPREME COURT and Sirpur Paper Mills Ltd [97 ELT 3 (SC)] = 1997 (12) TMI 109 – SUPREME COURT OF INDIA. He furth
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
under the GST Act, recourse is being taken to other allied Acts dealing with property to determine the definition of Immovable property . It is seen that Section 3(26) of the General Clauses Act, 1897 defines Immovable Property as to include land, benefits to arise out of the land, and things attached to the earth, or permanently fastened to anything attached to the earth; Section 3 of the Transfer of Property Act, 1882 simply provides that unless there is something repugnant in the subject or context immovable property does not include standing timber, growing crops or grass. The Section, however, defines the term attached to the earth to mean (a) rooted in the earth, as in the case of trees and shrubs, (b) embedded in the earth, as in the case of walls or buildings, and (c) attached to what is so embedded for permanent beneficial enjoyment of that to which it is attached. The essential character of immovable property , as emerges from the above discussion and relevant to the present
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
dinary circumstances, it may be considered permanently fastened to anything attached to the earth. Furthermore, in the context of the GST Act, if the article attached to the earth is not agreed to be severed before supply or under a contract for supply, it ceases to be goods and, for that matter, a moveable property. 5. In the case of Solid & Correct Engineering Works (supra) that the Applicant refers to, the Apex Court, while examining whether a machine, fixed with nuts and bolts to a foundation, with no intent to permanently attach it to the earth, is an immovable property or not, has held that such an attachment without necessary intent to making it permanent cannot be an immovable property. The emphasis is on the intention of the party. The Apex Court observes that the machine in question can be moved and has indeed been moved after the road construction and repair project, for which it was installed, is completed. However, if a machine is intended to be fixed permanently to a
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
n, therefore, is beneficial enjoyment for more than two decades of the property being built. Unless the business is wound up, the Applicant, after the expiry of the lease, can approach KOPT for granting a fresh lease. The structure being built is, therefore, not for the purpose of temporary enjoyment, but intended to be used as a permanent structure subject to usual business uncertainties. The concerned officer from the revenue has also pointed out correctly that the System refers only to the pre-fabricated structures that are used for constructing the warehouse and not to the warehouse itself. The core issue in the context of the Application is not the beneficial enjoyment of the System, but of the property of the warehouse being built. Being a storage facility, a warehouse is associated with the space available, whereas the System refers to the materials and structures used for turning the space into a covered storage facility. As technology advances, the engineering for building a f
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
l building the Vendor provides a vivid pictorial illustration of the various parts of the structure – the walls, roof, doors and windows etc. that will be built upon the floor, but does not provide any description of the floor as a pre-fabricated structure. The literature refers to wide bay purlins spanning up to 12 M for better shop floor lay out and less foundation cost. It indicates that the Vendor supplies building materials that, in his opinion, provides a more cost effective method to support the foundation for laying out the floor. It does not in any way claim that the floor itself is a pre-fabricated structure detachable from the foundation and associated civil work. In fact, the diagram showing a typical pre-engineered building does not at all include a cross-section of the floor as a prefabricated structure. It, therefore, appears that the Vendor is not supplying the floor as a pre-fabricated removable structure. The civil work undertaken is meant not only for fixing the pref
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
omplete warehouse. The warehouse cannot be conceived without the beneficial enjoyment of the civil structure, which is an integral part of the property. The decision in Vindhya Telelinks Ltd (supra) is not, therefore, relevant. In this connection, reference may be made to clause 4(v) of the Circular No. 58/1/2002-CX dated 15/01/2002, where it is concluded that if items assembled or erected at site and attached by foundation to earth cannot be dismantled without substantial damage to its components and thus cannot be reassembled, then the items would not be considered as moveable and will, therefore, not be excisable goods. Clearly, the warehouse cannot be relocated by unfixing the pre-fabricated structures alone. The dismantling of the floor, which is the most important component of the warehouse, is not possible without substantial damage to the foundation. 8. In the light of the above discussion, it is concluded that the Applicant is constructing a warehouse that is intended to be us
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (2) TMI 1095 – CESTAT HYDERABAD – TMI – Clearance of Cement to dealers/retail agencies – N/N. 04/2006-CE dated 01.03.2006 as amended from time to time – benefit denied on the ground that the clearances made directly to various industries like contractors/ builders/ construction companies are not eligible for assessment under Sl.No.1C of the N/N. 04/2006-CE and therefore, proposed to demand duty under Sl.No.1A of the notification.
–
Whether the assessee is entitled to the benefit of N/N. 04/2006-CE (Sl.No.1C) in respect of the cement cleared by them in 50 Kg bags marked as “meant for industrial use” and “not for retail sale” and sold to institutional/ bulk buyers? – Held that:- The issue is no longer res integra and it has been settled by the Tribunal in the case of Mysore Cements Ltd [2009 (5) TMI 445 – CESTAT, BANGALORE] and affirmed by the Hon’ble High Court of Karnataka. Respectfully following the ratio, it can be held that assessee is entitled to the benefit of exemption
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
otification – demand and interest, if any, on account of sales to individuals by the appellant are upheld.
–
Penalties also set aside.
–
The appeals are disposed of by way of remand to the original authority for the limited purpose of determining the duty, if any, payable and interest thereon. – E/25403/2013, E/26266/2013, E/23453/2014, E/21341/2015, E/31070/2016, E/30491/2017 – A/30195-30200/2019 – Dated:- 18-2-2019 – Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical) Shri T. Jagapathi Rao, Advocate for the Appellant. Shri B. Guna Ranjan, Superintendent/AR for the Respondent. ORDER Per: P.V. Subba Rao. 1. All these six appeals have been filed by the appellant against Orders-in- Original and Order-in-Appeal as above. Heard both sides and perused the records. 2. Learned consultant for the appellant submits that the issue in all these cases fall in a narrow compass. The appellants manufacture cement which they clear mainly in two ways. (a) by s
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ification 04/2006-CE and therefore, proposed to demand duty under Sl.No.1A of the notification. He also proposed to impose penalty under Rule 25(1) of the Central Excise Rules read with Sec.11AC of the Central Excise Act. He submits that exemption notification exempted goods under various heads is as follows: 1. Individual buyers who buy Cement bags for construction of their own house/ building etc., 2. Contractors/ Builders who buy Cement bags for use in the construction of Buildings etc. and sell the buildings/ constructions after completion of construction. 3. Industries who buy cement bags for construction of their factory or for constructing any civil structures in their factory. 4. Industries who buy Cement bags as inputs and cleared as such. 5. Industries who buy Cement bags for use in production, manufacturing etc. 3. He submits that the dispute is whether the cement manufactured and supplied to bulk industrial consumers but sent in 50 Kg bags specifically indicating that it is
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ction (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods of the description specified in column (3) of the Table below read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading or sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act), as are given in the corresponding entry in column (2) of the said Table, from so much of the duty of excise specified thereon under the First Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table and subject to the relevant conditions specified in the Annexure to this notification, and the Condition number of which is referred to in the corresponding entry in
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
not manufactured in a mini cement plant, not covered in S.No.1B, other than those cleared in packaged form; Rs. per tonne 400 – Explanation:- For the purposes of S.Nos.1, 1A, 1B and 1C- 1. mini cement plant means – (i) A factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement product by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or (ii) A factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 3,00,000 tonnes; 2. retail sale price means the maximum price at which the excisable goods in packaged form may be and the price so printed is the sole consideration for the sale: Provided that if the goods are cleared in wholesale packages containing a number of standard packages with retail sale price declared on them, th
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
aid clearances are made to institutional consumers by the appellant. The only contention that has been raised by the learned Commissioner is that under such institutional consumers, construction companies would not fall under the service industry and it is his interpretation that institutional consumers would be merely airways, railways, etc. We are not inclined to accept this proposition of the learned Commissioner. Construction activity has been considered as a service industry by the Finance Ministry itself, which is obvious as there is imposition of Service Tax on the commercial or industrial construction services and also on construction complex . It is an admitted position that the Foreign Trade Policy of Government of India in the list of services as enumerated in Appendix-10 clearly indicated the following services as service industry. 3. Construction and related Engineering services A. General Construction work for building B. General Construction work for Civil Engineering C.
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ed by the Central Board of Excise and Customs under Circular No.625/16/2002 dated 28-2-2002 wherein it was clarified that goods sold in bulk at contracted price are to be assessed under Section 4. During the hearing of the case, learned counsel for the appellants has also relied on several decisions of the Tribunal – Bharti Systel Ltd v. CCE [2002 (145) ELT 626 (T)=2002 (51) RLT 649]. CCE v. Trishul Research Lab Pvt Ltd [2002 (144) ELT J204], Goa Bottling Co. Ltd v. CCE [2001 (128) ELT 81 (LB)] and H & R Johnson (India) Ltd v. CBEC [2002 (144) ELT 506 (Kar.)]. 4. We have perused the records and considered the submissions made by both sides. We find merit in the submissions made on behalf of the appellant. Marking on the goods prominently stated that the goods were specially packed for builders . Thus, the goods were intended for a particular industry and thus, remained excluded under Rule 34 of the Packaged Commodities Rules. The Commissioner (Appeals) has rejected this claim of th
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
refore, the issue has reached finality. In view of the above, the impugned orders may be set aside with consequential relief. 5. Learned departmental representative agrees that the issue is covered by the order of the Tribunal in the case of Mysore Cements Ltd (supra) as confirmed by the Hon ble High Court of Karnataka insofar as the institutional buyers are concerned. He further draws the attention of the bench to Para 5 of the show cause notice in which it has been held that the appellant is supplying cement to five categories of buyers. One of these categories is individual buyers who buy cement bags for construction of their own house/ building. This fact has been brought out in Para 19.1 of the impugned OIO which reads as follows: 19.1 From the materials on record it is undisputed that assessees have sold the cement in 50 kgs bags without mentioning any RSP to the following customers. 1. Individual buyers who buy Cement bags for construction of their own house/ building etc., 2. C
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
sumption. He further asserts that the appellants sell cement to industrial consumers and to dealers only and not to individuals for personal consumption. 8. We have considered the arguments on both sides and perused the records. The issue which falls for consideration is whether the assessee is entitled to the benefit of notification 04/2006-CE (Sl.No.1C) in respect of the cement cleared by them in 50 Kg bags marked as meant for industrial use and not for retail sale and sold to institutional/ bulk buyers. A related issue is whether the same exemption notification is also available to sales, if any, are made to individual consumers by the assessee. In so far as the first question is concerned, we find that the issue is no longer res integra and it has been settled by the Tribunal in the case of Mysore Cements Ltd (supra) and affirmed by the Hon ble High Court of Karnataka. Respectfully following the ratio, we hold that assessee is entitled to the benefit of exemption notification for t
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (2) TMI 1096 – CESTAT KOLKATA – TMI – CENVAT Credit – outward freight – place of removal is factory gate – period of dispute is from 01.01.2005 to 2007-2008, 2008-2009 and 2009-2010 (Upto November, 2009) – Held that:- The present issue is no more res-integra in view of the recent decision of the Hon’ble Supreme Court in the case of Commr. of Central Excise, Belgaum Vs. Vasavadatta Cements Ltd. [2018 (3) TMI 993 – SUPREME COURT], where it was held that rom 01.04.2008, with the aforesaid amendment, the CENVAT credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be – credit allowed – appeal allowed – decided in favor of appellant. – Ex. Appeal No.78529/18 – FO/75197/2018 – Dated:- 18-2-2019 – SHRI P.K. CHOUDHARY, JUDICIAL MEMBER Shri Shyamal Dey, Advocate for the Appellant (s) Shri A. Roy, Supdt. (A.R.) for the Revenue ORDER Per Shri P.K. C
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
On appeal, the Commissioner (Appeals) dismissed the appeal. Hence the present appeal. 3. Heard both sides and perused the appeal records. 4. I find that the present issue is no more res-integra in view of the recent decision of the Hon ble Supreme Court in the case of Commr. of Central Excise, Belgaum Vs. Vasavadatta Cements Ltd. reported in 2018 (11) GSTL 3 (S.C.), wherein the Apex Court has held thus: 2. The entire issue hinges upon the interpretation that has to be given to input service which is defined in Rule 2(l) of the Cenvat Credit Rules, 2004. It may be stated at this stage itself that all these appeals relate to a period prior to 1-4-2008. The aforesaid Rule was amended w.e.f. 1-4-2008 as would be noticed hereafter. However, since we are concerned with the unamended Rule, we reproduce the same hereunder : (l) input service means any service, – (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indi
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
context input service is defined as any service used by a provider of a taxable service or providing an output service or used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal . It is further held that second part of the definition starts from includes where some of the services are mentioned, which are included as input services . 4. We may make it clear that in the instant appeals, we are concerned with the first part of the definition. Insofar as second part is concerned, certain contentions, which have been raised by some of the assessees, have been rejected and that aspect is decided in favour of the Department. Since these appeals are filed by the Department questioning the interpretation that is given by the CESTAT as well as the High Court in respect of first part, we are not making any comments insofar as judgment of the CESTAT pertaining to second part is conc
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ther the place to their respective depots or transport upto the place of the customers, if from the place of removal the goods were directly delivered at customers place. It is made clear that only first set of transportation from the place of removal was claimed. To put it otherwise, in those cases where the tax paid on transportation on the goods from the place of removal upto the place of depot only that was claimed and if there was any such tax again paid from the place of depot to the place of customers, the Cenvat credit thereof was not claimed and there is no dispute about it. 6. The aforesaid approach of the Full Bench of the CESTAT, as affirmed by the High Court, appears to be perfectly correct and we do not find any error therein. For the sake of convenience, we would like to reproduce the following discussion contained in the judgment of the High Court. 30. The definition of input service contains both the word means and includes , but not means and includes . The portion of
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
used, it includes the transportation charges. Because, after the final products has reached the place of removal, to clear the final products nothing more needs to be done, except transporting the said final products to the ultimate destination i.e. the customer s/buyer of the said product, apart from attending to certain ancillary services as mentioned above which ensures proper delivery of the finished product upto the customer. Therefore, all such services rendered by the manufacturer are included in the definition of input service . However, as the legislature has chosen to use the word means in this portion of the definition, it has to be construed strictly and in a restrictive manner. After defining the input service used by the manufacturer in a restrictive manner, in the later portion of the definition, the legislature has used the word includes . Therefore, the later portion of the definition has to be construed liberally. Specifically what are the services which fall within t
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
goods but also includes outward transportation of the final product upto the place of removal. Therefore, in the later portion of the definition, an outer limit is prescribed for outward transportation, i.e., up to the place of removal. 7. As mentioned above, the expression used in the aforesaid Rule is from the place of removal . It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to be allowed. 8. Our view gets support from the amendment which has been carried out by the rule making authority w.e.f. 1-4-2008 vide Notification No. 10/2008-C.E. (N.T.), dated 1-3-2008 whereby the aforesaid expression from the place of removal is substituted by upto the place of removal . Thus from 1-4-2008, with the aforesaid amendment, the Cenvat credit is available only upto the place of removal whereas as per the amended Rule from the place o
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (2) TMI 1246 – CESTAT CHENNAI – TMI – Levy of service tax – immovable property given in settlement of agreement – operation and licence agreement – termination of the agreement – demand of service tax raised on the value of immovable property which was given to them as part of settlement deed – Held that:- After 18.4.2006, it can be seen that even if consideration is received as kind or other than money, the value of such kind other than money is also subject to levy of service tax. The value of any immovable property received as consideration would be subject to levy of service tax after 18.4.2006. In the present case, the appellants have received consideration in the nature of money as well as in the nature of immovable property. They paid up the service tax on the consideration received in the form of money. Even if the value of the immovable property is shown in the books of accounts in terms of money, it will not change the nature of the consideration received. The amendment
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
arified that the amendment to Section 67 proposes to include consideration received not wholly in terms of money.
–
The demand of service tax on the value of immovable property to the tune of ₹ 30,60,000/- with the penalties thereon cannot sustain and requires to be set aside – As the assessee is not contesting the demand of service tax of ₹ 33,53,890/- with interest thereon, no interference is made in respect of this demand, however, penalty set aside.
–
Appeal allowed in part. – ST/120/2010 – Final Order No. 40308 / 2019 – Dated:- 18-2-2019 – Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) And Hon ble Shri Madhu Mohan Damodhar, Member (Technical) Ms. Radhka Chandrasekar, Advocate for the Appellant Shri K. Veerabhadra Reddy, ADC (AR) for Respondent ORDER Per Bench The appellants are providing consultancy and management services to hotels and resorts. They are registered under the category of Management Consultancy Services and Intellectual Property Service. Durin
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
proposing to demand service tax to the tune of ₹ 64,13,890/- along with interest and also proposing to appropriate an amount of ₹ 33,53,890/- as well as interest of ₹ 2,37,093/- which was already paid by them. The show cause notice also proposed to impose penalties. After due process of law, the original authority confirmed the demand of ₹ 64,13,890/- for the period April 2006 to December 2006 along with interest and also imposed penalty of ₹ 75 lakhs under section 78 of the Finance Act, 1994 with option to pay reduced penalty of 25%. Aggrieved, the appellants are now before the Tribunal. 2.1 On behalf of the appellant, ld. counsel Ms. Radhika Chandrasekar explained that the appellants entered into a resort operation and licence agreement dated 14.4.2005 with M/s. Sterling Holiday Resorts India Ltd. (SHRIL for short). As per the agreement, the appellant was entrusted with the responsibility of operating 11 resorts owned by SHRIL. For rendering such servic
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
lved handing over of the property as part of the settlement. The transaction of transferring of the property was consummated on the date of execution of settlement agreement which is 1.3.2006. 2.3 Section 67 of Finance Act, 1994 as it stood during the relevant period, prior to 18.4.2006, contemplates levy of service tax on gross amount charged in nature of money only. Thus any consideration received other than money was not subject to levy of service tax prior to 18.4.2006. The department has referred in the show cause notice the said section as it stands after the amendment with effect from 18.4.2006. Therefore, the demand of service tax on the value of immovable property is incorrect. Section 67(1)(ii) prior to 18.4.2006 contemplates amount in money, which is equivalent to the consideration. Consideration also includes amount that is payable. Therefore levy can be made only when consideration is passed on in the nature of money. Further as per Rule 6(1) of Service Tax Rules, service
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ration received in the form of money was subject to levy of service tax and service tax is leviable on the consideration payable on the services already provided. Further service tax was payable during the disputed period on receipt basis. The appellant is therefore not contesting the service tax relating to consideration in money and is contesting the demand of service tax only on the amount relating to the value of the property acquired by them towards the final settlement. She also submitted that the point of taxation rules have come into effect only in 2011 wherein the service tax is thereupon liable to be discharged on accrual basis instead of receipt basis. 3. In grounds para 33, 34 and 35, the appellants have contested the penalties imposed. It is submitted that the service tax of ₹ 33,53,890/- and interest of ₹ 2,93,093/- was paid on 27.3.2008 which is much before issuance of show cause notice which is dated 15.5.2008. She prayed to set aside the penalties. 4. The l
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
IL. It is also submitted by him that the sale deed for transfer of the property was executed much later and therefore the value of the property would any how be subject to levy of service tax as per the amended provisions of Section 67. Further from the agreement, it is clear that the services were provided for monetary consideration and entered in the books of accounts in terms of money only. Merely because a portion of the service charges was paid by the service provider by way of immovable property, does not take away the liability to pay service tax. 5. Heard both sides. 6.1 The assessee is contesting only the demand of service tax raised on the value of immovable property which was given to them as part of settlement deed. 6.2 M/s. SHRIL had entered into an agreement with the appellant for operating the various resorts owned by SHRIL. However, both the parties later agreed mutually to terminate the above agreement by a final settlement agreement dated 1.3.2006. The relevant portio
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ng 31.3.2006. This amount of ₹ 3,34,81,431/- (Rupees three crores thirty four lakhs eighty one thousand and four hundred and thirty one only) is mutually agreed upon and this will not be questioned by either parties of this agreement. 2. AUROMATRIX confirms and acknowledges that they have so far received a sum of ₹ 1,25,00,000/- (Rupees one crore twenty five lakhs only) against the amount payable as stated in clause 1 herein above leaving a balance of ₹ 2,09,81,431/- (Rupees two crores nine lakhs eighty one thousand four hundred and thirty one only). 3. Sterling agree to pay another sum of ₹ 1,20,00,000/- (Rupees one crore twenty lakhs only) towards royalty and management fee for the period 1.4.2006 to 31.3.2007. 4. Sterling have agreed to pay the balance of ₹ 3,29,81,431/- (Rupees three crores twenty nine lakhs eighty one thousand and four hundred and thirty one only) as per Annexure A in the following manner:- ANNEXURE A I Amount due as per agreement dat
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
d by the appellant in this appeal. During the disputed period, Section 67 of Finance Act, 1994 read as under:- Valuation of taxable service for charging service tax – For the purpose of this chapter the value of any taxable service shall be the gross amount charged by the service provider of such service provided or to be provided. By him. xxxx xxxxx xxxxx xxxxx xxxxx Explanation. – For the purposes of this section, – (a) consideration includes any amount that is payable for the taxable services provided or to be provided; (b) money includes any currency, cheque, promissory note, letter of credit, draft pay order, travellers cheque, money order, postal remittance and other similar instruments but does not include currency that is held for its numismatic value. (c) gross amount charged includes payment by cheque, credit card, deduction from account and any form of payment by issue of credit notes or debit notes and book adjustment, and any amount credited or debited, as the case may be,
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
which is not ascertainable, be the amount as may be determined in the prescribed manner. (2) Where the gross amount charged by a service provider, for the service provided or to be provided is inclusive of service tax payable, the value of such taxable service shall be such amount as, with the addition of tax payable, is equal to the gross amount charged. 6.5 Thus, after 18.4.2006, it can be seen that even if consideration is received as kind or other than money, the value of such kind other than money is also subject to levy of service tax. The value of any immovable property received as consideration would be subject to levy of service tax after 18.4.2006. In the present case, the appellants have received consideration in the nature of money as well as in the nature of immovable property. They paid up the service tax on the consideration received in the form of money. Even if the value of the immovable property is shown in the books of accounts in terms of money, it will not change t
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
o be paid by arriving at the quantum for different periods. For example, royalty fee upto March 2006, royalty fee for the period from April 2006 to March 2007, management fee for the period April 2006 to March 2007 etc. These periods mentioned in Annexure A of the agreement does not indicate that the appellant has provided services from April 2006 to March 2007 or royalty fee was paid from April 2006 to March 2007. The periods mentioned in the said final settlement is only for the purpose quantification of the final settlement amount. The conclusion of the Commissioner that the amount settled by way of selling the immovable property is for the services provided for the period from 1.4.2006 to 31.3.2007 is incorrect. After the final settlement, undisputedly there has been no service provided by the appellant to SHRIL. Though part payments might have been received, such payments including the immovable property is for the services provided (or settled) upto 1.3.2006. It is also to be men
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ubstitute the existing section 67 with a new section67 to provide for determination of value of taxable service. At present, service tax is charged on the gross amount received. The proposed section provides determination of taxable value in cases where the consideration received for taxable services provided is not wholly in money terms and the consideration received is in money terms but not known explicitly. Separate valuation rules are proposed for this purpose . 6.8 In Vistar Construction (P) Ltd. Vs. Union of India reported in 2013 (31) STR 129(Del.), the Hon ble High Court of Delhi held that taxable event for service tax was rendition of service and that rate of tax applicable is the one on date on which services were rendered and not the rate on which payments were received. Since the amended Section 67 has come into effect only with effect from 18.4.2006, the immovable property which is part of consideration of Settlement Agreement dated 1.3.2006 would not be subject to levy o
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (2) TMI 1247 – CESTAT CHENNAI – TMI – Vocational institute or not – professional training to individuals in the field of foreign trade for a consideration at Madurai, Coimbatore and Chennai – Department was of the view that the appellant’s institute is not a vocational institute as the participants do not immediately qualify for employment or for self-employment – Held that:- The appellant has rendered professional training relating to various procedures and statutory compliances to be made in relation to export / import of goods in the field of foreign trade. The training course is designed in such a way that all procedures, statutory requirements, foreign trade policy of the Government, prospective industries and area of export / import etc. are made familiar to the participants – they squarely fall within the definition of vocation training institute in the Explanation (i) of Notification 9/2003-ST dated 20.6.2003 and 24/2004-ST dated 10.9.2004 to qualify for exemption from ta
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
or employment or for self-employment. Accordingly, proceedings were initiated against the appellant by way of issue of show cause notice dated 20.10.2009 inter alia proposing service tax liability of ₹ 2,93,315/- under Commercial Training or Coaching Service for the period from 1.4.2004 to 31.3.2009. Vide adjudication order dated 1.2.2010, the lower authority confirmed the demand of ₹ 2,93,315/- along with interest thereon for the period 1.4.2004 to 31.3.2009 as also imposed penalty under various provisions of law. In appeal, Commissioner (Appeals) upheld the same vide impugned order dated 24.4.2011. Hence this appeal. 2. Today, when the matter came up for hearing, ld. counsel Shri M. Kannann made oral and written submissions which are broadly summarized as under:- 2.1 The appellant has rendered professional training relating to various procedures and statutory compliances to be made in relation to export / import of goods in the field of foreign trade. The training course
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
61 (Del.) Commissioner of Service Tax Vs.. Ashu Exports Ltd. b. 2019 (20) GSTL 84 (Tri. Chennai) – M. Rajan Vs. Commissioner of Service Tax, Chennai c. 2012 (25) STR 359 (Tri. Del.) – Ashu Export Promoters Vs. Commissioner of Central Excise, Delhi d. 2007 (8) STR 475 (Tri. Bang.) – Wigan & Leigh Collage India Ltd. Vs. CST, Hyderabad. 3. On the other hand, ld. AR Ms. T. Usha Devi supported the findings in the impugned order. 4. Heard both sides. 5. We find that the ld. counsel is correct in his assertion that the ratio of the afore stated decisions would cover when Notification No. 9/2003-ST dated 20.6.2003 and 24/2004-ST dated 10.9.2004 were in force. This being so, there cannot be any tax liability for the predominant period of dispute, except for the period between 1.7.2004 and 9.9.2004 under Commercial Training and Coaching service. However, for the period from 1.7.2004 to 9.9.2004, we are of the considered opinion that the matter requires to be remanded back to the adjudicating
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (2) TMI 1290 – KERALA HIGH COURT – TMI – Condonation of delay in filing revision – proceedings taken by the AO for rectifying an apparent mistake that occurred in the order of the AO – Held that:- The proceedings taken by the AO was not at all relevant for filing a revision from the order of the Tribunal dated 30.08.2016. It is also pertinent that it was not the AO's duty to file an appeal. The Deputy Commissioner (Law) is the proper person to decide as to whether an appeal is to be filed or not. On arriving at such an opinion, the Deputy Commissioner usually makes a request to the Advocate General's office, on which the Special Government Pleader (Taxes) takes a call as to whether the appeal has to be filed or not.
–
The Deputy C
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
al was filed by the assessee, which the first appellate authority allowed partly, on 10.02.2016. There were some issues which were not decided in favour of the assessee and, hence, a further appeal was taken by the assessee, to the Tribunal. The Tribunal passed an order in the second appeal, allowing the same on 30.08.2016. Going by the affidavit submitted by the Deputy Commissioner of State Tax, this order was received on 14.11.2016; from which the date computation of limitation commences. Admittedly there was no revision filed from the order of the Tribunal till the present revision was filed, with a delay of more than 647 days. 3. In explanation of the delay, the Deputy Commissioner of State Tax relies on the proceedings taken by the AO
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
order on 26.06.2018. 4. In fact, the proceedings taken by the AO was not at all relevant for filing a revision from the order of the Tribunal dated 30.08.2016. It is also pertinent that it was not the AO's duty to file an appeal. The Deputy Commissioner (Law) is the proper person to decide as to whether an appeal is to be filed or not. On arriving at such an opinion, the Deputy Commissioner usually makes a request to the Advocate General's office, on which the Special Government Pleader (Taxes) takes a call as to whether the appeal has to be filed or not. 5. For all we know, the Deputy Commissioner (Law) would not have been apprised of the proceedings taken by the AO; nor is that necessary. A mistake in TIN number would not disentit
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (2) TMI 1295 – CESTAT CHENNAI – TMI – 100% EOU – return of damaged goods – goods were damaged in transit while they were taken out for export – Granite slabs – demand of duty – case of appellant is that as the goods were not cleared to DTA, they are not liable to pay duty – Held that:- The Tribunal in the case of Tab India Granites (P) Ltd. [2017 (8) TMI 1161 – CESTAT CHENNAI] had occasion to consider the very same issue set aside the demand – demand set aside – appeal allowed – decided in favor of appellant. – Appeal Nos. E/40445 & 40446/2016 – Final Order Nos. 40334-40335/2019 – Dated:- 18-2-2019 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. S. Sridevi, Advocate for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent ORDER Per Bench Brief facts are that the appellant is an 100% EOU engaged in manufacture of granite slabs. They cleared quantity of 354 Nos. of granite slabs measuring 1230.840 square meter for export i
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
/-. Two show cause notices dated 24.11.2010 and 17.2.2011 were issued proposing to demand central excise duty along with interest and for imposition of penalty. After due process of law, the original authority confirmed the excise duty of ₹ 3,22,360/- and ₹ 1,21,221/- respectively for the above goods which were not exported holding that there is no provision for remission of duty once the goods have been cleared from the factory. Aggrieved, the appellant filed appeals before Commissioner (Appeals) who vide orders impugned herein upheld the same. Hence these appeals. 2. On behalf of the appellant, ld. counsel Ms. S. Sridevi submitted that in the instant case, the appellant had cleared the goods under bond for export and only because the vehicle carrying the goods met with an accident the goods got damaged and were brought back into EOU. The goods were never cleared in DTA and therefore the appellants are not liable to pay duty. She submitted that the authorities below have r
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
the very same issue has been considered by the Tribunal holding that the demand is not sustainable. 3. The ld. AR Shri S. Govindarajan supported the findings in the impugned order. He relied upon the decision in the case of SVG Exports (P) Ltd. Vs. Commissioner of Central Excise, Chennai – III – 2008 (232) ELT 305 (Tri. Chennai). 4. Heard both sides. 5. The issue is with regard to the demand of duty for the goods that have been damaged enroute and in transit while they were taken out for export. The Tribunal in the case of Tab India Granites (P) Ltd. (supra) had occasion to consider the very same issue and followed the decision of the Larger Bench of the Tribunal in the case of Honest Bio Vet Pvt. Ltd. (supra) and set aside the demand. The relevant portion is reproduced under:- 5. It is not disputed that the goods cleared under bond for export were damaged in an accident. The appellant being an EOU is entitled for the benefit of Notification No. 24/2003 dated 31.03.2003, and that the g
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (3) TMI 40 – CESTAT NEW DELHI – TMI – CENVAT Credit – input services or not – having nexus with output service or not? – purchase of flat for office purpose – It appeared to the appellant that as they are using the premises for business purposes, they availed credit of service tax paid to the builder towards construction of flat/office premises – penalty – Held that:- The said construction service availed by the appellant towards construction of the flat/office premises is not relatable to the output service, they are providing – Appellant are not entitled to the said cenvat credit of ₹ 51,319/-.
–
Penalty u/s 78 of FA – Held that:- The matter is of interpretation of the statute and there is no suppression of facts or malaf
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2. The brief facts are that the appellant is engaged in providing services like recruiting service, manpower supply service and cleaning services. It appeared to the appellant that as they are using the premises for business purposes, they availed credit of service tax paid to the builder towards construction of flat/office premises. The said credit was taken by the appellant on 31st March, 2014 and disclosed by them in their books of accounts and cenvat registers maintained and also disclosed in the ST-3 Return filed by them. Consequently there was audit dated 26th October, 2016 wherein vide audit note, objection was raised and thereafter vide show cause notice dated 28th December, 2016, it was proposed to demand the cenvat credit availed
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
remises from which they are rendering output services, and accordingly they are entitled to the said cenvat credit. The Ld. Counsel further argues that extended period of limitation has been wrongly invoked as they have made proper disclosures in their books of account returns filed with the department, as such prays for appropriate relief in the matter. 5. The Ld. AR for Revenue has relied on impugned order. 6. Having considered the rival contentions I find that the said construction service availed by the appellant towards construction of the flat/office premises is not relatable to the output service, they are providing. 7. Accordingly I hold they are not entitled to the said cenvat credit of ₹ 51,319/-. However, I find that the ma
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (3) TMI 373 – KARNATAKA HIGH COURT – TMI – Anticipatory Bail – offence punishable under Section 137 of Goods and Services Tax Act, 2017 – input tax credit – continuous issuance of fake invoices without actual supply of goods – whether the alleged offences are non cognizable or cognizable? – Held that:- The issue has been dealt in by the Hon’ble Apex Court in the case of Om Prakash & Anr. v. Union of India & Anr. [2011 (9) TMI 65 – SUPREME COURT OF INDIA], where it was held that on a construction of the definitions of the different expressions used in the Code and also in connected enactments in respect of a non-cognizable offence, a police officer, and, in the instant case an Excise Officer, will have no authority to make an arrest without obtaining a warrant for the said purpose.
–
A close glancing of the above proposition of law with present Act, the punishment imposed is five years. In that light, the alleged offences are non- cognizable offences. By keeping the above pro
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
Jeevan J. Neeralgi, Standing Counsel) O R D E R These two petitions have been filed by petitioners – accused under Section 438 of Cr.P.C to release them on anticipatory bail in the event of their arrest in O.R.No.40/2018-19 by the respondent for the offence punishable under Section 137 of Goods and Services Tax Act, 2017 (Hereinafter it has been used as GST Act for short). 2. I have heard learned senior counsel Sri C.V. Nagesh for petitioners and learned standing counsel Sri Jeevan J. Neeralgi for respondent and perused the record. 3. Before going to consider the submission made by the learned counsel appearing for the parties, I feel it just and proper to mention in brief the gist of the complaint. Companies of Aradhya group along with M/s. Spiegel Enterprises Pvt. Ltd., M/s Bhavasteel Metalalloys Pvt. Ltd., M/s Infocert Enterprises, M/s Bhavani Steel Corporation, M/s Vijayalakshmi Industries were indulging in continuous issuance of fake invoices without actual supply of goods with a
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
that even there is no irregularity no loss of revenue has been caused to the State or Central Government. He further submitted that they have paid the GST by creating invoice. It is further submitted that the accused have not availed any loan or not raised any amount from the bank, even in the input tax, the credit has also been given and that has not been deducted or claimed from the State or Central Government. It is submitted that they are ready to co-operate with the investigation. He further submitted that in the preamble it is made clear that it is intended to levy and collect tax. It has not been defected by the accused. The Learned counsel further submitted that they are apprehending their arrest and even the objection which has been filed by the respondent to the present petition itself clearly goes to show that there is a apprehension of arrest. He further submitted that they are not defaulter to the bank or to the State. It is further submitted that the only allegations whi
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
een paid to anybody. It is only a paper transaction and it is going to affect the trade transfer of the nation and in the State. He further submitted that it is a scam and if it is allowed to be continued then it will be having its own cumulative effect on the economy as a whole. He further submitted that still investigation is in progress and if the petitioners – accused are released on bail, it is going to affect the entire investigation and they may tamper with the prosecution case. On these grounds, he prays to dismiss the petition. 7. I have carefully and cautiously gone through the contents of the complaint and other materials, which has been produced in this behalf. 8. Though several contentions have been raised with reference to the initiation of the action under the GST Act, since the scope of these petitions is limited only to consider the bail application, in that light, the other points which have been raised have not been dealt with in these petitions. 9. Before going to c
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ns refund and where such offence is not covered under clauses (a) to (d); (f) falsifies or substitutes financial records or produces fake accounts or documents or furnishes any false information with an intention to evade payment of tax due under this Act; (g) obstructs or prevents any officer in the discharge of his duties under this Act; (h) acquires possession of, or in any way concerns himself in transporting, removing, depositing, keeping, concealing, supplying, or purchasing or in any other manner deals with, any goods which he knows or has reasons to believe are liable to confiscation under this Act or the rules made thereunder; (i) receives or is in any way concerned with the supply of, or in any other manner deals with any supply of services which he knows or has reasons to believe are in contravention of any provisions of this Act or the rules made thereunder; (j) tampers with or destroys any material evidence or documents; (k) fails to supply any information which he is requ
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
input tax credit wrongly availed or utilized or the amount of refund wrongly taken exceeds one hundred lakh rupees but does not exceed two hundred lakh rupees, with imprisonment for a term which may extend to one year and with fine; (iv) in cases where he commits or abets the commission of an offence specified in clause (f) or clause (g) or clause (j), he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both. (2) Where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine. (3) The imprisonment referred to in clauses (i), (ii) and (iii) of sub-section (1) and sub-section (2) shall, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, be for a term not less than six months. (4) Not
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. (3) Where an offence under this Act has been committed by a taxable person being a partnership firm or a Limited Liability Partnership or a Hindu Undivided Family or a trust, the partner or karta or managing trustee shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly and the provisions of subsection (2) shall, mutatis mutandis, apply to such persons. (4) Nothing contained in this section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his k
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
Services Tax Act or the Integrated Goods and Services Tax Act in respect of supplies of value exceeding one crore rupees; (c) a person who has been accused of committing an offence under this Act which is also an offence under any other law for the time being in force; (d) a person who has been convicted for an offence under this Act by a court; (e) a person who has been accused of committing an offence specified in clause (g) or clause (j) or clause (k) of sub-section (l) of Section 132; and (f) any other class of persons or offences as may be prescribed: Provided further that any compounding allowed under the provisions of this section shall not affect the proceedings, if any, instituted under any other law: Provided also that compounding shall be allowed only after making payment of tax, interest and penalty involved in such offences. (2) The amount for compounding of offences under this section shall be such as may be prescribed, subject to the minimum amount not being less than te
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
s relating to the Central Excise Act, 1944, is whether all offences under the said Act are non-cognizable and, if so, whether such offences are bailable? In order to answer the said question, it would be necessary to first of all look into the provisions of the said Act on the said question. Sub-section (1) of Section 9A, which has been extracted hereinbefore, states in completely unambiguous terms that notwithstanding anything contained in the Code of Criminal Procedure, offences under Section 9 shall be deemed to be non-cognizable within the meaning of that Code. There is, therefore, no scope to hold otherwise. It is in the said context that we will have to consider the submissions made by Mr.Rohatgi that since all offences under Section 9 are to be deemed to be non-cognizable within the meaning of the Code of Criminal Procedure, such offences must also be held to be bailable. The expression bailable offence has been defined in Section 2(a) of the code and set out hereinabove in para
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
rt II could be attracted for the purpose of granting bail since, as indicated above, all offences under Section 9 of the 1944 Act are deemed to be non-cognizable. 25. This leads us to the next question as to meaning of the expression non-cognizable . 26. Section 2(i), Cr.P.C. defines a non-cognizable offence , in respect whereof a police officer has no authority to arrest without warrant. The said definition defines the general rule since even under the Code some offences, though non-cognizable have been included in Part I of the First Schedule to the Code as being non-bailable. For example, Sections 194, 195, 466, 467, 476, 477 and 505 deal with non-cognizable offences which are yet non-bailable. Of course, here we are concerned with offences under a specific Statute which falls in Part II of the First Schedule to the Code. However, the language of the Scheme of 1944 Act seem to suggest that the main object of the enactment of the said Act was the recovery of excise duties and not rea
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
n cognizable offence in Section 2(c) of the Code means an offence for which a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. In other words, on a construction of the definitions of the different expressions used in the Code and also in connected enactments in respect of a non-cognizable offence, a police officer, and, in the instant case an Excise Officer, will have no authority to make an arrest without obtaining a warrant for the said purpose. The same provision is contained in Section 41 of the Code which specifies when a police officer may arrest without order from a Magistrate or without warrant. 11. A close glancing of the above proposition of law with present Act, the punishment imposed is five years. In that light, the alleged offences are non- cognizable offences. By keeping the above proposition of law and on plain reading of all these sections together, one thing in the case is clear that
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
g with only anticipatory bail application, what are the parameters which can be taken into consideration has been elaborately discussed by the Hon ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, reported in (2011) 1 SCC 694. At paragraph- 112 of the said decision, it has been observed as to what are the parameters that can be considered into while dealing with the bail application, which read thus:- 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused s likelihood to repe
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
used; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 12. In the light of the above proposition of law, by taking into consideration the gravity of the offence and punishment which is liable to be involved, I am of the considered opinion that by imposing some stringent conditions, if accused – petitioners are ordered to be released on bail, it will meet the ends of justice. 13. In that light, petitions are allowed and the petitioners/accused are ordered to be enlarged on anticipatory bail in the event of their arrest in O.R. No.40/2018-19 for the offence punishable under Section 137 of GST A
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
2019 (3) TMI 654 – MADRAS HIGH COURT – TMI – Filing of Form GST TRAN 1 electronically – input tax credit – transition to GST Regime – Held that:- The position that a large number of assessees are facing difficulties in accessing the GST website and/or uploading the required Forms is not in dispute – the technical difficulties faced by the petitioner in uploading GST TRAN I be rectified within a period of two (2) weeks from the date of receipt of a copy of the order – petition disposed off. – W.P.No.4137 of 2019 Dated:- 18-2-2019 – Dr. Justice Anita Sumanth For the Petitioner : Ms.B.Raveendran For the Respondent : Mr.M.Hariharan Additional Government Pleader for R1 & R2 No Appearance for R3 ORDER The Writ Petitioner has approached this Court seeking a Writ of Mandamus directing the first respondent, the Principal Secretary/Commissioner of Commercial Taxes to enable the petitioner to file GST TRAN 1 electronically and treat the same as filed in accordance with law. 2. Heard Mr.B.Ra
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
n the case of Calibre Industries vs. Principal Commissioner GST Central Excise and others (WP.No.18794 of 2018) has had occasion to deal with a similar matter and has directed the petitioner in that case to submit their applications seeking rectification of the technical difficulties, such applications to be considered by the appropriate officer within a fixed time frame. In the present case, the petitioner has been approaching the respondent consistently from May 2018 regularly requesting that the situation be set right. The first request was made to the Joint Secretary of Commercial Taxes, Salem, on 03.05.2018. Pursuant thereto, the 2nd respondent has issued an internal communication to the Input Tax Credit (ITC) section seeking its intervention in the matter. Thereafter, requests were made on 03.05.2018 and 18.05.2018, all of which have been ignored, thus far. 7. The position that a large number of assessees are facing difficulties in accessing the GST website and/or uploading the r
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
d to complete the process of filing TRAN-1.8. 8.2 The taxpayer shall not be allowed to amend the amount of credit in TRAN-1 during this process vis-à-vis the amount of credit which was recorded by the taxpayer in the TRAN-1, which could not be filed. If needed, GSTN may request field formations of Centre and State to collect additional document/ data etc. or verify the same to identify taxpayers who should be allowed this procedure. 8.3 GSTN shall communicate directly with the taxpayers in this regard and submit a final report to GIC about the number of TRAN-1s filed and submitted through this process. 8.4 The taxpayers shall complete the process of filing of TRAN 1 stuck due to IT glitches, as discussed above, by 30thApril 2018 and the process of completing filing of GSTR 3B which could not be filed for such TRAN 1 shall be completed by 31stMay 2018. 8. In the light of the aforesaid and the fair submission of Mr.M. Hariharan before me as recorded in paragraph No.5 of this order
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Started By: – IRFAN MALIK – Dated:- 17-2-2019 Last Replied Date:- 18-2-2019 – Query relating to ITC on F&B material purchased by hotel (having restaurant):I have a hotel with restaurant in its premises. Following are GST sales:-1. Accommodation with breakfast (package sales) – GST charged by hotel is 12/18%2. Accommodation with breakfast & lunch/dinner (package sales) – GST charged by hotel is 12/18%3. Direct restaurant sales – GST charged is 5%In such case how to claim ITC on F&B item as no ITC is allowed if GST charged is 5% but package sales include breakfast/lunch/dinner & GST charged is 12/18%my 2nd query is Hotel also provide breakfast,lunch & dinner to its employees (hotel + restaurant staff). Can I claim I
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
and also treat the same as exempt supply for the purpose of Rule 42 & 43 of CGST rules. i.e. reversal of ITC relating to ITC. – refer notification no. 13/2018 CT(R) dated 26.07.2018. Hence in your case, avail the entire ITC of food and beverages and reverse the ITC related to 5% outward supply based on Rule 42 & 43 of CGST rules. Reply to Q.2 – In light of the notification no.13/2018 CT(R) dated 26.07.2018 you have to charge 5% GST on supply of food and beverages services without availing ITC. However, based on the CGST Amendment Act,2018 w.e.f 01.02.2018, you can avail the ITC on such supplies to employees provided the same is mandated under any law in force as on date. (Reason :- Notification can't override the Act) – Reply By
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
GST – Started By: – KV Vijayendra – Dated:- 17-2-2019 Last Replied Date:- 18-2-2019 – Sir Notification Nos.47/17 is applicable for the purchase of laboratory equipment by private institute affiliated to Government approved university. The purchase is made from the government funded laboratory development grant such as MODROB by All India Council for Technical Education [AICTE] Kindly clarify whether the purchase under such grants is entitled for concessional GST – Reply By KASTURI SETHI – The R
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
