Author: admin_gst

2019 (1) TMI 1492 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – TMI – Input Tax Credit – inward supply – distinct persons – Place of Provision of Services – Can a person, registered in WB, claim ITC for CGST and SGST of other states? – adjustment of ITC of one state’s CGST for payment of another state’s CGST – adjustment of ITC of Tamil Nadu GST for payment of IGST, whereas he is not registered in Tamil Nadu – Held that:- In this case, the location of the supplier, providing hotel, banquet hall or restaurant in Tamil Nadu and the location of the recipient i.e. the Applicant, receiving the service, is also Tamil Nadu. So, the Applicant can avail ITC on the said invoices in Tamil Nadu only, if registered in Tamil Nadu. In no case, the Applicant can claim/adjust/avail ITC outside Tamil Nadu on the said invoices, even if the invoices are issued as B2B mentioning the Applicant’s GSTIN in West Bengal – As input tax and its credit are always linked with whether the person is registered or no

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d in WB, cannot claim ITC for CGST & SGST of other states.
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He cannot adjust the ITC of one state’s CGST for payment of another state’s CGST.
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He cannot adjust the ITC of Tamil Nadu GST for payment of IGST, whereas he is not registered in Tamil Nadu. – Case Number 39 of 2018 Order No. 39/WBAAR/2018-19 Dated:- 28-1-2019 – SYDNEY D SILVA AND PARTHASARATHI DEY, MEMBER Applicant s representative heard: Sanjay Mundhra, Authorized Representative 1. The Applicant, stated to be a supplier of Event Management Services in West Bengal and other states, seeks a Ruling on the following points: a. Can a person, registered in WB, claim ITC for CGST and SGST of other states, b. Can he adjust the ITC of one state s CGST for payment of another state s CGST, c. Can he adjust the ITC of Tamil Nadu GST for payment of IGST, whereas he is not registered in Tamil Nadu? Advance Ruling is admissible on this question under Section 97(2)(d) of the CGST/WBGST Act, 2017 (hereinafter collectively called t

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and the invoices are issued as B2B with the Applicant s GSTIN. These invoices are also reflected in the Applicant s GSTR-2A. Such inward supplies are taken to serve the clients and the Applicant desires to know if ITC can be claimed in the GST Returns in West Bengal on the CGST & SGST paid on such invoices in other states. 3. GST is a destination based tax i.e. consumption tax, which means the tax will be levied where goods and services are consumed and will accrue to that state. Under GST, there are three levels of Tax, IGST, CGST & SGST and based on the place of supply so determined, the respective tax will be levied. Place of supply will be determined by the locations of the supplier and the recipient, in the transactions comprising of the goods/services. IGST is levied where the transaction is inter-state, and CGST & SGST are levied where the transaction is intra-state. So, it is very important to determine place of supply for understanding levy of tax and further avai

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g hotel, banquet hall or restaurant in Tamil Nadu and the location of the recipient i.e. the Applicant, receiving the service, is also Tamil Nadu. So, the Applicant can avail ITC on the said invoices in Tamil Nadu only, if registered in Tamil Nadu. In no case, the Applicant can claim/adjust/avail ITC outside Tamil Nadu on the said invoices, even if the invoices are issued as B2B mentioning the Applicant s GSTIN in West Bengal. 6. The answers to the Applicant s questions, therefore, depend upon whether any component of the tax paid on intra-state inward supplies in a state can be used as an input tax credit for paying the outward tax liability in another state. Section 49(4) of the GST Act provides that the amount available in the electronic credit ledger, as defined under Section 2(46), may be used for making such payment toward outward tax liability. The electronic credit ledger contains the balance of input tax credit on inward supplies as per the return of a registered person. Under

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he tax paid on the inward supplies in that state is not input tax in relation to the said person. As the Applicant is not registered under section 25(1) in Tamil Nadu, the SGST and CGST paid on intra-state inward supply in Tamil Nadu are not input tax to the said person. The GST Act does not contain any concept of input tax to an unregistered person. No credit of it is, therefore, admissible under the GST Act. In view of the foregoing, we rule as under. RULING The Applicant is not registered under Section 25(1) of the CGST Act in Tamil Nadu. The SGST and CGST paid on intra-state inward supply in Tamil Nadu are not, therefore, input tax to the Applicant. The GST Act does not contain any concept of input tax in relation to an unregistered person. No credit of it is, therefore, admissible under the GST Act. So, to answer in the Applicant s language: a. A person, registered in WB, cannot claim ITC for CGST & SGST of other states. b. He cannot adjust the ITC of one state s CGST for paym

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2019 (2) TMI 23 – CESTAT CHENNAI – TMI – Penalty u/s 76 and 77 of FA – non-discharge of service tax liability in spite of having collected the same from the service recipient – huge cash flow problem – immediate payment of tax with interest paid on being pointed out by audit team – ST-returns for half year ending 30.09.2009 on 27.08.2010. However, ST-3 returns for half year ending 31.03.2010 had not been filed – no intent to evade present – Held that:- The identical dispute involving non-discharge of service tax liability in spite of having collected the same from the service recipient had been addressed by CESTAT Chennai in the case of Jeyam Automotive Vs CCE Coimbatore [2018 (11) TMI 1150 – CESTAT CHENNAI] wherein it was held when reasonable cause for the failure to discharge service tax liability was available, and especially there is no evidence to show that that the delay / default was due to any wilful act to evade payment of duty, it is a fit case for invocation of Section 80 o

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harged service tax liability amounting to ₹ 77,94,334/- for the period from April 2009 and March 2010, although they realized taxable value as well as service tax from their clients. After being pointed out by audit, it appeared that appellants paid part of the arrears and filed the ST-returns for half year ending 30.09.2009 on 27.08.2010. However, ST-3 returns for half year ending 31.03.2010 had not been filed by them. Accordingly, SCN dt. 11.10.2010 was issued to the appellants inter alia, demanding the said amount with interest thereon and also proposing imposition of penalties under various provisions of law. In adjudication, the Commissioner vide impugned order held that appellant was liable for discharge of service tax under Manpower Recruitment or Supply Agency Service on the gross amount charged by them; that they are liable for imposition of penalty. The adjudicating authority confirmed the said amount of ₹ 77,94,334/- with interest appropriated the like amount pai

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te loans and paid Service Tax of ₹ 56,96,352/- and Interest of ₹ 5,23,793/-. The Appellant was issued with a Show Cause Notice invoking Penalty under Section 76. Balance amount of ₹ 20,97,982/- towards Service Tax and ₹ 1,61,469/- towards Interest was paid after issue of Show Cause Notice. The Appellant paid the entire Service Tax of ₹ 77,94,334/- along with interest of ₹ 6,85,262/- by arranging funds from outside on a very high interest. iii) The payment of the dues by the appellant shown his intention that they want to buy peace. Hence the penalty imposed under Section 76 of the Finance Act, 1994 is not sustainable in law. iv) In any case the appellant has been paying Service Tax on billing basis and the amounts collected from the Appellant s customers was not being used for furtherance of business and this resulted in belated payment of tax in the disputed period. Hence the appellant prays that imposition of penalty under Section 76 is not proper

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t pay tax within the due dates but also withheld the above information by not disclosing to the department in the ST-3 returns. Hence for these reason, there is no ground to interfere with the imposition of penalty. 4. Heard both sides and have gone through the facts. 5.1 We find that the identical dispute involving non-discharge of service tax liability in spite of having collected the same from the service recipient had been addressed by CESTAT Chennai in the case of Jeyam Automotive Vs CCE Coimbatore vide Final Order No.42481-42482/2018 dt. 18.09.2018 wherein it was held when reasonable cause for the failure to discharge service tax liability was available, and especially there is no evidence to show that that the delay / default was due to any wilful act to evade payment of duty, it is a fit case for invocation of Section 80 of the Act. The relevant portions of the aforesaid decision are reproduced below : 7.2 It can be seen from the contentions put forward as well as the records t

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e assessee was undergoing much financial hardship. The Hon ble High Court held that the penalties imposed under Section 77 and 78 ibid., set aside by the Tribunal invoking Section 80, was correct and proper. The relevant portion of the judgment is reproduced as under : 28. Though Mr. A. P. Srinivas, learned counsel appearing for Customs, Central Excise and Service Tax, reiterated the grounds of challenge, we are not inclined to accept the same for the reason that both the adjudicating authority viz., the Commissioner of Customs, Central Excise, and Service Tax, Coimbatore, as well as the final fact finding appellate authority, CESTAT, Madras, have categorically held that the assessee / respondent has discharged a portion of the interest liability prior to the issuance of the Show Cause Notice. 29. Perusal of the material on record discloses that the interest payable on the belated payment of service tax was ₹ 12,63,324/- and that even prior to the issuance of the Show Cause Notic

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crisis due to criminal breach of trust committed by their sub-agent and thereafter, paid the service tax voluntarily, the penalties imposed have been rightly set aside invoking Section 80. The Tribunal in the case of M/s. Dusters Total Solutions Services Pvt. Ltd. Vs. C.S.T., Chennai vide Final Order No. 41943/2018 dated 28.06.2018 had analysed the invocation of Section 80 to set aside the penalty imposed under Section 76, 77 and 78 of the Act, ibid. The appellant having paid entire demand of service tax along with interest, the prayer for setting aside the penalties, in our view, merits consideration, especially when there is no evidence to show that the delay/default was due to any wilful act to evade payment of duty. 8. From the above discussions and following the ratio laid down in the above case laws, we are of the opinion that this is a fit case to invoke Section 80 since the appellant has put forward reasonable cause for the failure to discharge the service tax liability. We th

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acts with intention to evade payment of service tax. On perusal of the documents such as the list of sundry debtors etc., it is seen that there was huge amount pending as receivables. So also they had to meet expenses for salary, accident compensation of employees provided under manpower supply service. The department does not have a case that any of the transactions were unaccounted or that they had been indulging in a parallel accounting. It is commonly understood that the employees supplied through manpower supply service have to be given the salaries within due time. If the service receivers delay the payment, it would cause much hardship to the service provider as they have to make the statutory payments such EPF, ESI etc. to the Government. Therefore, we find that the appellant has put forward reasonable cause for not paying the service tax within due time and is a fit case for invoking Section 80 of the Finance Act for setting aside the penalties. We hold that the impugned order

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GST – Started By: – MarketingServices INDIALLP – Dated:- 25-1-2019 Last Replied Date:- 28-1-2019 – SirI am a marketing service provider. I provide marketing services in India to a foreign party situated outside india. My work is to promoted about the business of foreign party in india. Please suggested whether it accounts to export of services or not? – Reply By KASTURI SETHI – The Reply = Dear Querist, You are playing the role of intermediary service. You are working for and behalf of another

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GST – Started By: – satbir singhwahi – Dated:- 25-1-2019 Last Replied Date:- 31-1-2019 – Unit located in Punjab is receiving goods from Rajasthan, the freight paid by unit in Punjab, and reverse charge under gst . Whether Igst need to be paid or cgst and sgst. – Reply By KASTURI SETHI – The Reply = CGST + SGST covered under Section 8(a) of IGST Act, 2017. – Reply By Ganeshan Kalyani – The Reply = If the address of the transporter is of Punjab then CGST+SGST, otherwise IGST. – Reply By YAGAY and

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GST – Started By: – SUNDARA MOORTHI – Dated:- 25-1-2019 Last Replied Date:- 28-1-2019 – MACHINERY PURCHASED DURING VAT REGIME IN 2012. VAT INPUT TAX NOT AVAILED.DEPRECIATION CLAIMED UNDER INCOME TAX AS PER IT RULES.THE USED MACHINERY IS BEING SOLD OUTSIDE THE STATE. (INTERSTATE)THE ISSUE IS WHAT IS THE RATE OF GST AND ON WHAT VALUE.?NEED A DETAILED REPLY ASAP. – Reply By Ganeshan Kalyani – The Reply = GST is applicable on the value of supply at applicable rate. – Reply By KASTURI SETHI – The Reply = You are to pay GST at depreciated value. Depreciated value can be computed by many methods but two methods are very suitable and beneficial to the assessees. These are : Written down method and straight line method. Both are easily available on

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 25-1-2019 – The GST law contains a provision on anti-profiteering measure as a deterrent for trade and industry to enjoy unjust enrichment in terms of profit arising out of implementation of Goods and Services Tax in India, i.e., anti-profiteering measure would obligate the businesses to pass on the cost benefit arising out of GST implementation to their customers. The Authority constituted by Central Government has powers to impose a penalty in case it finds that the price being charged has not been reduced consequent to reduction in rate of tax or allowance of input tax credit. During the two years of initial transition into GST regime, Anti-Profiteering Authority (NAA) has the mandate to ask businesses that have not passed on full benefits of reduced tax burden to consumers to make up for such benefit, with interest. During the year 2018, the NAA has passed 28 orders against the complaints referred to it. Following i

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orders against the complaints referred to it. Following is the gist of NAA Orders issued in 2018. It may be noted that out of 28 Orders, Anti-profiteering could not be established in 18 cases. S.No. Date Complaint Against Issue Anti-Profiteering Citations 1 27.03.2018 M/s Vrandavaneshwree Automotive Pvt. Ltd. Price difference on sale of car in GST regime booked in pre-GST regime Not established (2018) 4 TMI 1377 (NAA) 2 04.05.2018 M/s KRBL Ltd Levy of GST @5% on branded rice in GST regime Not established (2018) 5 TMI 760 (NAA) 3 31.05.2018 M/s Schindler India Pvt. Ltd., Mumbai Purchase of lift before and after GST, GST charged on excise duty Not established (2018) 6 TMI 687 (NAA) 4 18.07.2018 M/s Flipkart Internet Pvt. Ltd., Bangalore Discount withdrawn on sale of Godrej almirah on Flipkart Not established (2018) 7 TMI 1490 (NAA) 5 07.09.2018 M/s Sharma Trading Company Rate of Vaseline reduced from 28% to 18%, but supplier charged 28% Upheld (2018) 9 TMI 625 (NAA) 6 18.09.2018 M/s Pyra

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athing Bar and instant Drink Powder on old MRP even after GST fixed @ 18% Not established (2018) 11 TMI 1011 (NAA) 13 16.11.2018 M/s Hard Castle (McDonald s) No passing of benefit of GST rate reduction from 18% to 5% on supplies of burgers Upheld [2018] 11 TMI 1073 (NAA) 14 28.11.2018 M/s Theco India Pvt. Ltd. (Milling Machine Furnace) No passing of benefit of GST rate reduction and ITC on purchase of important machinery Upheld 2018 (12) TMI 135 (NAA) 15 06.12.2018 M/s J.P. and Sons (Johnson & Johnson Baby) Charge of same MRP after tax reduction Upheld (2018) 12 TMI 472 (NAA) 16 07.12.2018 M/s Harish Bakers & Confectioners Pvt. Ltd. (Cadbury Dairy Milk Chocolate) No passing of benefit of GST rate reduction from 28% to 18 % on chocolates Upheld (2018) 12 TMI 473 (NAA) 17 17.12.2018 M/s Landmark Automobiles Pvt. Ltd. (Honda Car) Allegation of not passing of benefit of ITC on sale of Honda Car Not established (2018) 12 TMI 1002 – (NAA) 18 17.12.2018 M/s Zeba Distributors, Immanuel

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Goods and Services Tax – GST – By: – Mr. M. GOVINDARAJAN – Dated:- 25-1-2019 – Anti Profiteering Measure Section 171(1) of the Central Goods and Services Tax Act, 2017 provides that any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall be passed on to the recipient by way of commensurate reduction in prices. Section 171 deals with two situations- one relating to the passing on the benefit of reduction in the rate of tax; and the second pertaining to the passing on the benefit of ITC. In this articles some of the case laws are discussed in which cases the anti-profiteering has not been attracted. Change in tax rate There may be circumstances for change of tax rate as detailed below- Reduction of tax rate in the post GST period than the pre GST period; Reduction of tax rate in the post GST period after 01.04.2017 by the decision taken by the GST Council in the meeting.There are many occasions the Council reduced rates of taxes.Recently

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– 2018 (12) TMI 1002 – THE NATIONAL ANTI-PROFITEERING AUTHORITY, the Authority found that from the DGAP s investigation report that there was no reduction in the tax rates, the allegation of profiteering by the respondent on account of change in rate is not sustainable. In State Level Screening Committee on Anti Profiteering, Kerala v. Zeba Distributors – 2018 (12) TMI 1001 – THE NATIONAL ANTI-PROFITEERING AUTHORITY, it was alleged profiteering by the respondent on the supply of Eastern Meat Masala (HSN Code No.0910) by not passing on the benefit of reduction in the rate of tax at the time of implementation of GST. The DGAP has intimated that there was no reduction in the rate of tax on the product which was 5% both in the pre-GST era well as in the post GST era. The respondent did not increase the per unit base price (excluding tax) of the product which was ₹ 238/- during both the periods. The Authority held that the provisions of anti-profiteering would not attract in the case

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ROFITEERING AUTHORITY, it was alleged anti-profiteering by the respondent on the supply of Granure Hard Nero-10MM & Granure Hard Crema – 10 MM Tiles by not passing on the benefit of reduction in the rate of tax of GST with effect from 15.11.2017 from 28% to 18%. The Authority found from the report that the sale price of these products was reduced from ₹ 1037.52 (pre GST revision) to ₹ 840.68 (post GST revision) when the GST rate on the above items was revised from 28% to 18%. Thus it is clear that the base prices have not been changed and accordingly the selling prices of the products have been reduced. The respondent has duly passed on the benefit of reduction of tax rate by the keeping the base price constant thus reducing the selling price of the products in question. Therefore the anti profiteering provisions are not attracted. Passing on the benefit of ITC In Shylesh Damodaran v. Landmark Automobiles Private Limited – 2018 (12) TMI 1002 – THE NATIONAL ANTI-PROFITEE

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e respondent revealed that the base price charged from the applicant had been reduced as the benefit of ITC was passed on by the respondent to the applicant. Therefore the allegation that the applicant had not been given the benefit of ITC by the respondent was not proved. The Authority dismissed the application of the applicant. Reduction in discount In Kerala State Screening Committee on Anti-profiteering v. Asian paints Limited – 2019 (1) TMI 21 – NATIONAL ANTI-PROFITEERING AUTHORITY it was alleged anti profiteering by the respondent on the supply of the product Paint [AP Apex Classic WT 10 LT (HSN Code 3209)] by not passing the benefit of reduction in the rate of tax of GST at the time of its implementation. The Authority found that the respondent has increased the sale price of the product from ₹ 1855.05 to ₹ 1859.55 resulting in the increase of ₹ 4.50. It is apparent that the post GST price before discount has been reduced from ₹ 2159/- to ₹ 1927/-.

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2019 (1) TMI 1500 – GUJARAT HIGH COURT – TMI – Attachment of immovable property – recovery of penalty imposed upon the Director from the petitioner company – It was submitted that in the facts of the present case, since no notice as contemplated under rule 4 of the Recovery Rules has been issued upon the petitioner, the question of resorting to the provisions of rule 5 does not arise – Held that:- Issue Notice returnable on 31st January, 2019. By way of ad-interim relief, the respondents are restrained from proceeding further pursuant to the attachment order dated 8.1.2019. – R/SPECIAL CIVIL APPLICATION NO. 1444 of 2019 Dated:- 25-1-2019 – MS HARSHA DEVANI AND DR A. P. THAKER, JJ. For The Petitioner (s) : MR ANAND NAINAWATI (5970) ORAL OR

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or attaching the property at this stage. 3. The attention of the court was further invited to the provisions of Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995 (hereinafter referred to as the Recovery Rules ), to point out that rule 4 thereof requires the Principal Commissioner or Commissioner to authorise any officer subordinate to him to cause notice to be served upon the defaulter requiring the defaulter to pay the amount specified in the Certificate within seven days from the date of service of the notice and intimate that in default, such subordinate officer is authorised to take steps to realise the amount mentioned in the Certificate in terms of the rules. It was submitted that in the presen

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on the petitioner, the question of resorting to the provisions of rule 5 does not arise. It was further pointed out that rule 6 of the recovery rules requires that the attachment by arrest or distrain of the property shall not be excessive, that is to say, the property attached shall be as nearly as possible proportionate to the amount specified in the Certificate. It was submitted that in the facts of the present case, plot No.6102/10, 4th Phase, GIDC, Vapi has been attached by the respondents, the value whereof runs into crores, for recovery of dues of an amount of approximately ₹ 30,00,000/-, which is clearly in breach of rule 6 of the Recovery Rules. 4. Having regard to the submissions advanced by the learned advocate for the peti

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2019 (2) TMI 19 – CESTAT MUMBAI – TMI – Refund of CENVAT Credit – input services – Air Travel Agent Services – Banking & Financial Services – Business Auxiliary Services – General Insurance Services – denial on account of nexus – Denial of excess refund claim to the Appellant for the quarters October, 2014 to December, 2014 and January, 2015 to March, 2015.
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General Insurance Services – Held that:- The insurance policy is taken by the Appellant in relation to the financial risks during the course of business that may arise upon the appointment of the employees as Nominee Director/Alternate Director in the investee company and not for the personal consumption of the employees. The said input service is used in the course of provision of output service and has not only a nexus with the output services but is essential for the business of the Appellant, therefore the Appellant is eligible for CENVAT credit on “General Insurance Services” – refund allowed.
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Air Travel Agent Serv

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ed.
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Denial of excess refund claim to the Appellant for the quarters October, 2014 to December, 2014 and January, 2015 to March, 2015 – denial on account of non-reversal of erroneous credit availed by the Appellant in their ST-3 return – mis-match between the opening and closing balance for the month of September, 2014 & October, 2014 – Held that:- Both the Authorities below have erred in considering the amount of unutilised credit for the quarter, which was calculated by deducting the amount of domestic services tax liability for the period discharged through utilisation of CENVAT credit, from the amount of CENVAT credit availed by the Appellant during the period. The submission of the Appellant seems to be reasonable that nowhere in Notification No. 27/2012 or in Rule 5 ibid there is a requirement to consider the amount of unutilised credit for the period. The calculations/tables have been produced by the Appellant for comparing the amount of CENVAT credit balance available on t

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Mumbai by which the learned Commissioner partly allowed the appeal filed by the Appellant and rejected the claim of CENVAT credit qua Air Travel Agent Services , Banking & Financial Services , "Business Auxiliary Services" and General Insurance Services on the ground that there is no nexus between the input services and output services and therefore the Appellant has wrongly availed the CENVAT credit on these services. The learned Commissioner has also rejected the appeal qua the excess refund claim on account of non-reversal of erroneous credit admittedly availed by the Appellant in their ST-3 returns. 2. I have heard learned Counsel for the Appellant and learned Authorised Representative for the Revenue and perused the records. 3. Learned Counsel for the Appellant submitted that the learned Commissioner has erred in rejecting the refund claim filed by the Appellant under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012. He

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vices Business Auxiliary Services A B C D E F G H I J 1 23.12.15 (Pg. 27) Oct 14 to Mar 15 – 63,559 12,666 3,872 1,172 8,41,890 9,23,159 2 19.07.16 (Pg. 45) Apr 15 to Sep 15 7,70,288 77,662 8,806 1,439 831 – 8,59,026 Total 7,70,288 1,41,221 21,472 5,311 2,003 8,41,890 17,82,185 The facts of the matter in brief are that the Appellant is engaged in providing financial advisory services to overseas clients which includes assistance in monitoring and providing updates about the performances made by the overseas clients. For providing assistance in monitoring and providing updates the Appellants are required to appoint persons as a Nominated Director/Alternate Director in the investee company where investment had been made by overseas client, in order to facilitate the process of portfolio monitoring. The said Nominated Director/Alternate Director do not have any decisions making authority and the overseas client of the Appellant provides guidance on the agenda to the said Director prior to

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f providing services to its overseas clients. Therefore, it is clear that the insurance policy is taken by the Appellant in relation to the financial risks during the course of business that may arise upon the appointment of the employees as Nominee Director/Alternate Director in the investee company and not for the personal consumption of the employees. The said input service is used in the course of provision of output service and has not only a nexus with the output services but is essential for the business of the Appellant, therefore the Appellant is eligible for CENVAT credit on General Insurance Services . In the matter of Morgan Stanley Advantage Services Private Limited which is Appellant s group entity, the Adjudicating Authority in respect of refund claim for the period from April, 2016 to June, 2016 had admitted that the General Insurance Services procured by the claimant had direct nexus with output services and hence eligible for refund. 6. So far as Air Travel Agent Serv

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ing foreign exchange conversion services for its employees travelling abroad for the business of the Appellant and the "Business Auxiliary Services" have been procured by the Appellant for repairing of the cellular phone of its employees who have been provided with the cellular phone/mobile phone for checking emails and for giving replies to the queries of the overseas clients. Whenever the said employees leave the organisation, they have to surrender the said phones to the Appellant and thereafter the same are sent for formatting to avoid leakage of above information. Therefore in my view, these services are essential and there is nexus between the input services and output services and therefore for these services also the Appellant is entitled for refund. In a similar matter, a Co-ordinate Bench of the Tribunal in the matter of Manhattan Associates (I) Development Centre Pvt. Ltd. Vs. CST, Bangalore reported in 2017 (5) GSTL 99 (Tri.-Bang.) has held that the Appellant ther

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nth of October, 2014 and the CENVAT credit availmnet for the said month of October, 2014 was done in the following manner:- Particulars Amount CENVAT credit availed during the month of October 2014 A 11,29,175 Less: Erroneous availment of CENVAT credit in the month of August 2014 B (7,70,687) CENVAT credit availed (as reflected in service tax return) C = A-B 3,58,488 Although the Appellant could have reduced the aforesaid amount which was erroneously taken from the opening balance for the month October 2014, but according to them, then there would have been a mis-match between the opening and closing balance for the month of September, 2014 & October, 2014 respectively. In order to avoid the mismatch the Appellant had adjusted the excess CENVAT credit for the month of October, 2014. This resulted in a difference in the total availment of CENVAT credit for the period October, 2014 to December, 2014 as per the CENVAT credit register and Service Tax return. The Appellant could have al

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ing of the refund claim, whichever is less. 9. Both the Authorities below have erred in considering the amount of unutilised credit for the quarter, which was calculated by deducting the amount of domestic services tax liability for the period discharged through utilisation of CENVAT credit, from the amount of CENVAT credit availed by the Appellant during the period. The submission of the Appellant seems to be reasonable that nowhere in Notification No. 27/2012 or in Rule 5 ibid there is a requirement to consider the amount of unutilised credit for the period. The calculations/tables have been produced by the Appellant for comparing the amount of CENVAT credit balance available on the last day of the quarters, on the day of filling the refund claim and also the quantum of refund claim worked out as per Notification No. 27/2012- CE (NT) dated 18.06.2012. From a perusal of the same, I am of the view that the Appellant has claimed the amount which is lowest among those three heads. 10. A

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imitations, namely:- (a)…………… (b)…………….. (c)…………….. (d)…………….. (e)…………….. (f)……………….. (g) the amount of refund claimed shall not be more than the amount lying in balance at the end or quarter for which refund claim is being made or at the time of filing of the refund claim, whichever is less. (h)………………… (i)……………….. From the plain reading of the above clause (g) it is crystal clear that amount of refund claimed by the respondent shall not be more than the amount lying in balance at the end of the quarter or at the time of filing of the refund whichever is less. As per the fact narrated by the Ld. Counsel the refund claim amount is lesser, both the amount and cenvat credit balance at the end of the quarter as well as cenvat credit balance at the time of filing the refund and therefore the condition envisaged under clause (g) of para 2 of the notification is scrupulously complied with. It is also obser

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, during the relevant period; (C) "Export turnover of goods" means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) "Export turnover of services" means the value of the export service calculated in the following manner, namely:- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period – advances received for export services for which the provision of service has not been completed during the relevant period; (E) "Total turnover" means sum total of the value of – (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clau

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2019 (2) TMI 21 – CESTAT MUMBAI – TMI – Penalty u/s 77 and 78 of the Finance Act read with 15(3) of Cenvat Credit Rules – short payment of service tax – appellant already paid the said tax along with interest – requirement to issue SCN – appellant was not issued with show-cause under section 73(1) of the Finance Act – Held that:- Though admissibility or inadmissibility of the credit in respect of renting of immovable property and business support service is a mixed question of fact and law, the same requires no discussion here in view of admission by the respondent except to the extent that there is a difference between compliance of audit report and discharge of duty liability in respect of imposition of tax as per Section 265 of the Constitution of India. Moreover, appellant was given a written promise before commencement of Audit that if any discrepancy in the audit is pointed out and the same is complied with, no further litigation would ensue.
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respondent ORDER Order passed by the Commissioner of CGST & CE, (Appeals), Raigad setting aside the penalty imposed by the adjudicating authority on the respondent under section 77 and 78 of the Finance Act read with 15(3) of Cenvat Credit Rules is assailed by the appellant department before this forum. 2. Factual backdrop of the case, in a nutshell, is that respondent Reliance Infocomm Infrastructure Ltd. was pointed out by the audit team to have availed ineligible cenvat credit of ₹ 23,98,774/- on business support service and renting of immovable property service. Between the Financial year 2009-10 and 2011-12, it was also discovered by the said EA 2000 audit that there was mismatch between profit and loss account and balance sheet with ST3 returns for the Financial year 2010-11 and reconciliation of the same brought a difference of ₹ 48,69,069/- in the taxable value which was less shown in the ST-3 returns and accordingly service tax liability of ₹ 5,01,483/-

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which he arrived at such conclusion is illogical. While admitting that show-cause notice does not reveal that proviso to Section 73(1) was invoked for imposition of penalty under section 78 of the Finance Act. Learned AR Shri Suresh submitted that during the corresponding period 2009 to 2012 no such provision in the Finance Act 1994 other than Section 73(1) or Rule 15 of Cenvat Credit Rules 2004 could be pressed into service to make such demand in the show-cause for which Section 73(1) is implicit in the show-cause though not expressly referred inasmuch as Section 15(3) of the Cenvat Credit Rules was invoked in the show-cause notice itself and ingredient of the offence constituting suppression misstatement and intention to evade payment of service tax on the part of respondent was squarely made out in the OIO as discussed in para 1.3 and 1.4. of the order. He placed his reliance on the order of the CESTAT Ahmedabad bench in the case of Geedelon Texo Twist Pvt. Ltd. reported in 2009 (2

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ounsel for the respondent Ms. Ginita Badani submitted that the respondent had received an intimation later from the appellant department on 06.12.2012 intimating the respondent to cooperate in the proper audit to be conducted in its concern and produce relevant documents before it. It also requested that payment of service tax with interest with furtherance of the audit objection by the respondent would help conclude all proceedings and put an end to the litigation. Referring to relevant para of the said audit report produced vide Exhibit A, the learned counsel for the respondent submitted that the respondent was instructed that for voluntary compliance of the audit objection raised by the audit parties, there exist a provision under section 73(3) Chapter V of the Finance Act 1994 wherein only applicable service tax and interest can be paid and a letter seeking waiver of penalty/show-cause notice can be given by the assessee thus leading to better compliance and less litigation. The re

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She further prayed for affirmation of the order passed by the Commissioner (Appeals). 5. Heard from both sides at length, and gone through the case record and relevant case laws produced by both parties. The grounds on which Commissioner (Appeals) had set aside the order of the first appellate authority are mainly two. First, for differential short payment of service tax, no show-cause notice was issued as appellant had already paid the said tax along with interest; Second, appellant was not issued with show-cause under section 73(1) of the Finance Act for which it has to be presumed that department has accepted the liability under section 73(3). Going by the OIO, para 1.3 and 1.4 on which the learned AR for the department placed his reliance, it cannot be said that the adjudicating authority has indicated the manner in which suppression of fact or misstatement has been established against the appellant except that he pointed out that short payment was noticed while making reconciliati

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respondent except to the extent that there is a difference between compliance of audit report and discharge of duty liability in respect of imposition of tax as per Section 265 of the Constitution of India. Moreover, appellant was given a written promise before commencement of Audit that if any discrepancy in the audit is pointed out and the same is complied with, no further litigation would ensue. 6. When show-cause does not contain the rule violated by the respondent while proposing penalty which Commissioner (Appeals) found from the factual aspect of the case to have been covered under Section 73(2) and held that in such an event proceeding is to be concluded under section 73(3) in view of the judicial decisions referred above by the respondent, there is nothing left before this court to interfere with the finding of the Commissioner (Appeals). 7. In respect of penalty imposed under section 77 by the adjudicating authority the Commissioner (Appeals) clearly referred in his order th

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2019 (2) TMI 750 – CESTAT HYDERABAD – TMI – Imposition of Penalty u/r 25(1)(a) of Central Excise Rules – Default in payment of central excise duty – amount of duty not paid within 30 days from the due date as required – Rule 8 (3A) of Central Excise Rules, 2002 – Held that:- Hon’ble High Court of Gujarat in the case of Indsur Global Limited vs. Union of India [2014 (12) TMI 585 – GUJARAT HIGH COURT] has struck down this Rule and the judgment of Hon’ble High Court of Gujarat has been stayed by Hon’ble Supreme Court. The Hon’ble High Court of Delhi in the case of Space Telelink Limited [2017 (3) TMI 1599 – DELHI HIGH COURT] held that the ratio of the judgment of Hon’ble High Court of Gujarat would still apply notwithstanding the fact that it has been stayed by Hon’ble Apex Court. It has been held that only the operation of the judgment is stayed and not the underlying basis of the judgment itself – the penalty imposed under Rule 25(1)(a) of Central Excise Rules for contravention of Rule

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terms of Rule 8 (3A) of Central Excise Rules, 2002, they are required to pay duty in respect of clearances after this 30 days grace period consignment wise and through PLA. The said Rule 8 (3A) prohibits use of CENVAT Credit for clearances made after the grace period of 30 days. The quantity of goods so removed was 139.55 M.Ts valued at ₹ 40,81,467/- involving a duty of ₹ 2,16,773/-. Apart from the above, the appellants also availed CENVAT Credit twice on the same invoice amounting to ₹ 4,620/-. 2. Initially the Superintendent issued a show cause notice which was contested by the appellant on the ground of lack of jurisdiction of the Superintendent. The Commissioner (Appeals) remanded the matter back to the Asst. Commissioner of Central Excise, Kakinada for adjudication, who imposed a penalty of ₹ 50,000/- on the appellant under Rule 25(1)(a) of Central Excise Rules, 2002 for contravention of Rule 8(3A) of Central Excise Rules and imposed a penalty of ₹ 2,

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io of the judgment would still apply and Rule 8(3A) of Central Excise Rules, 2002 will continue to be inoperative. In support of his argument on this point, he relied on the order of the Tribunal Delhi in the case of GEI Industrial System Limited vs. CCE, Bhopal [2016(11)TMI 227- CESTAT New Delhi] and Space Telelink Limited [2017(3)TMI 1599 – Delhi High Court]. In both these judgments, it has been held that staying of an order of the judgment by a lower Court or authority does not deface the underlying basis of the judgment itself i.e. its reasoning and therefore the ratio would still apply. Both these cases were on the specific point whether the judgment of Hon ble High Court of Gujarat in the case of Indsur Global Limited striking down Rule 8(3A) of Central Excise Rules, 2002 would apply considering the same has been stayed by Hon ble Supreme Court. On the second issue of penalty of ₹ 2,000/- imposed under Rule 15(1)(a) of CENVAT Credit Rules, 2004 for availing the CENVAT Credi

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dgment is stayed and not the underlying basis of the judgment itself. 6. In view of the above, I find that the penalty imposed under Rule 25(1)(a) of Central Excise Rules for contravention of Rule 8(3A) is liable to be set aside and I do so. As far as the penalty of ₹ 2,000/- imposed for availing the CENVAT Credit twice on the same invoice is concerned, I agree with the appellant that the amount involved is small but find that the penalty is equally small and commensurate with the violation of CENVAT Credit Rules, 2004 and therefore I find there is no reason to interfere with this part of the order. 7. In view of the above, I pass the following order. The impugned order is modified to the extent of setting aside the penalty imposed under Rule 25(1)(a) of Central Excise Rules, 2002 for contravention of Rule 8(3A) of Central Excise Rules, 2002. (Pronounced in open court on 25.01.2019) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxm

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2019 (2) TMI 847 – CESTAT CHENNAI – TMI – Quantum of redemption fine and penalty – removal of electric fans from factory to godown without payment of duty – contravention under Rule 25 Clause (c) and (d) of CER – Held that:- Removal from the factory to its godown is not an act of fraud, collusion, suppression etc. to evade payment of duty since, had it been sold to third parties, the same would have amounted to an act against the Government scheme. Even the Revenue has not made out any case that the goods so removed as above have been found to be diverted and thereafter to be sold elsewhere. Thus, the only infraction of removal of goods without prior permission, is only a procedural lapse, which cannot take the characteristic of clandestine removal with intent to evade duty especially, when the goods are otherwise non-marketable.
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The procedural breach would be best served by limiting the redemption fine to ₹ 50,000/- as well as penalty to ₹ 50,000/ appeal allowed in

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ending interalia that duty credit available with the assessee at the end of the month (August, 2015) was ₹ 1,23,39,512/- as against the duty demand of ₹ 13,83,970/-; that the appellant had taken on rent the godown premises for stocking of excisable goods manufactured at the company s registered factory due to space constraint; that the seized goods were not marketable otherwise since the same was manufactured for Tamilnadu Government to be distributed freely as per a scheme of the Government; that the removal of the above goods against the returnable delivery challans was undertaken to facilitate further production at its registered premises, that the contract was for bulk quantity but the supply was effected as per the terms of contract in retail form at each taluk office, etc., but accepted to clear the Central Excise Duty of ₹ 13,83,970/- demanded and also agreed to offer a bank guarantee of ₹ 28,00,000/-. 2. After considering the reply, the adjudicating auth

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are specifically manufactured for the Government of Tamilnadu as per the Government Scheme and otherwise, the impugned goods have no marketability and cannot be sold in the open market. The manufactured fans could only be cleared against the orders by Tamilnadu State Civil Supplies Corporation for free distribution under the State Government s scheme and the said fans carried a specific logo. In the light of the above discussion, I find merit in the plea of the assessee that removal from the factory to its godown is not an act of fraud, collusion, suppression etc. to evade payment of duty since, had it been sold to third parties, the same would have amounted to an act against the Government scheme. Even the Revenue has not made out any case that the goods so removed as above have been found to be diverted and thereafter to be sold elsewhere. Thus, the only infraction of removal of goods without prior permission, is only a procedural lapse, which cannot take the characteristic of cland

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2019 (3) TMI 175 – CESTAT ALLAHABAD – TMI – Rebate of duty – appropriation of the amount – appeal rejected on the ground that the said demand was confirmed against the appellant and recovery was due – Held that:- As on date there is no confirm demand against the appellants. Therefore, there is no justification in appropriation of the amounts – appeal allowed – decided in favor of appellant. – APPEAL No. E/70017-70020/2018-EX[SM] – A/70134-70137/2019-SM[BR] – Dated:- 25-1-2019 – Mr. Anil G. Shakkarwar, Member (Technical) Shri Kartikeya Narain, Advocate, for Appellant Shri Gyanendra Kumar Tripathi, Deputy Commissioner (AR), for Respondent ORDER Per: Anil G. Shakkarwar Above stated four appeals are taken together for decision since the same a

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Central Excise, Noida in Order-in-Original dated 24.12.2010. The learned Commissioner (Appeals) has rejected the appeal filed before him on the ground that the said demand was confirmed against the appellant and recovery was due. I note that learned Counsel for the appellants have submitted a copy of Final Order No. 70221-70231/2018 dated 16.01.2018 which squarely covers the issue. As per the said Final Order the said demand of ₹ 3,91,19,765/- was agitated before this Tribunal in Appeal No. E/789/2011 & E/1001-1006/2010 and the matter was remanded to the Original Authority for fresh consideration by setting aside the Order-in-Original through which said demand was confirmed. I note that as on date there is no confirm demand again

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GST – Started By: – Rafi rafi – Dated:- 24-1-2019 Last Replied Date:- 26-1-2019 – Hi Sir,I had Wrongly Mention the our Export amount in Column 3.1 a instead of 3.1 b in GSTR 3B due to which my export Invoices has not been sent to Icegate for refund. request you to please provide me the solution to rectify and to separate the amount from table 3.1A t table 3.1B in GSTR 3B of Previous month to GSTR 3B of current month.Pls give reply soon.RegardsRafi – Reply By Ganeshan Kalyani – The Reply = Reduc

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GST – Started By: – Vinay Kunte – Dated:- 24-1-2019 Last Replied Date:- 13-2-2019 – We have a GST registered Manufacturing Unit in Daman and want to transfer the unit to Maharashtra. We have huge amount of ITC Accumulated due to the high Imports under Excise and also under GST. What is the way out / procedure to be followed to enable us to transfer the ITC to the new Unit after utilising the ITC for payment of GST Payable on raw materials, finished goods and capital goods are stock transferred to new unit? – Reply By KASTURI SETHI – The Reply = Dear Querist, . ITC-02 has to be filled in on Common Portal System.Procedure has been laid down under Rules 41(1), 41(2), 41(3) & 41(4) CGST Rules, 2017 – Reply By Vinay Kunte – The Reply = Dear

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l the provisions of Rule 41 (1) to 41(4) be applicable in case of the transfer of unit w/o transfer of liability as such under an agreement as there is no change in ownership of the Business? Please give your valuable guidance in this respect please. – Reply By KASTURI SETHI – The Reply = Dear Vinay Ji, Let me re-examine. I shall revert soon. – Reply By Vinay Kunte – The Reply = Dear Mr. Kasturi SirCan you guud ne futher in the issue? – Reply By KASTURI SETHI – The Reply = Dear Sh.Vinay Kunte Ji, Pl. refer to your query dated 27.1.19(Serial No.2). When you say it is a transfer to same ownership(PAN is same) but to a different registration, so a person having a different registration under same PAN in an other State is a distinct person as p

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GST – Started By: – Kumar Kedia – Dated:- 24-1-2019 Last Replied Date:- 29-1-2019 – Hi Sir, I have a query regarding why if imports are made after completing the export obligation then those imports shall be used only in manufacture and supply of taxable goods. What is the intention of government in making such change in Notification 1/2019- CGST? Thanks – Reply By KASTURI SETHI – The Reply = Dear Kedia Ji, Notification No.1/19-Central Tax dated 15.1.19 has made two changes as under: (i) Insertion of requirement of a certificate from C.A. (ii) Omission of words, on pre-import basis in the Explanation given in Notification No.48/2017- CT dated 18.10.17. The condition of producing a certificate from C.A. to the effect that inputs imported under Advance Authorisation have been used only in the manufacture and supply of taxable goods, was already in force vide Para No.4.16 of Foreign Trade Policy (2015-2020). The words dutiable goods have been replaced with the words, taxable goods in the

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n, the goods imported against such Advance Authorisation shall be utilized only in the manufacture of dutiable goods whether within the same factory or outside (by a supporting manufacturer). For this, the Authorisation holder shall produce a certificate from either the jurisdictional Central Excise Authority or Chartered Accountant, at the option of the exporter, at the time of filing application for Export Obligation Discharge Certificate to Regional Authority concerned. 6[4.14: Details of Duties exempted (FTP 2015-20) Imports under Advance Authorisation are exempted from payment of Basic Customs Duty, Additional Customs Duty, Education Cess, Anti-dumping Duty, Countervailing Duty, Safeguard Duty, Transition Product Specific Safeguard Duty, wherever applicable. Import against supplies covered under paragraph 7.02 (c), (d) and (g) of FTP will not be exempted from payment of applicable Anti-dumping Duty, Countervailing Duty, Safeguard Duty and Transition Product Specific Safeguard Duty

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thereafter, material is to be imported free of tax under Advance Authorization. Prior to 15.1.19, situation was contra. In my reply dated 27.1.19, I have detailed of Customs duties/taxes for which exemption is being availed under Advance Authorisation. Though export is zero rated, yet exported goods are treated as duty paid goods for the purpose of availment of ITC. No ITC is required to be reversed in respect of inputs used in the manufacture of exported goods. Duty/Tax paid on finished goods, if paid, is also refunded by way of refund/rebate. So many other benefits have also been provided in respect of exportation. After availing these benefits, Govt. intends to tax the goods manufactured out of those materials/inputs which are to be imported free of Customs duties including IGST and Compensation Cess (mentioned above in reply dated 27.1.19). Hence these goods must suffer CGST/SGST or IGST when cleared for home consumption so that indigenous goods should be able to compete with thos

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gainst such Advance Authorisation shall be utilized only in the manufacture of dutiable goods whether within the same factory or outside (by a supporting manufacturer like Job worker).Waste / Scrap arising out of manufacturing process, as allowed, can be disposed off on payment of applicable duty even before fulfilment of export obligation – Reply By Kumar Kedia – The Reply = Dear Sirs, Thank you for your replies I agree with the fact that after completion of export obligation if any inputs are imported same shall be used in taxable goods and cannot be transferred but I am extremely sorry that I am not able to understand that :- In notification 1/2019 or even in pre-GST era as stated in the proviso:- Provided that goods so supplied, when exports have already been made after availing input tax credit on inputs used in manufacture of such exports, shall be used in manufacture and supply of taxable goods (other than nil rated or fully exempted goods) and a certificate to this effect from

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GST – Started By: – Surendra Prasad – Dated:- 24-1-2019 Last Replied Date:- 27-1-2019 – Dear Sir/Madam,In regard to subject kindly guide whether GST is applicable or not.Fact of transaction We ,are a bonded warehouse located at Kandla Port.One of our client a foreign company, Dubai based imported Chemical from Japan and store at our bonded warehouse at Kandla port , we enter into rental agreement for storing his chemical at Kandla.The said chemical was store for period of one month. The same chemical parcel was re-exported to Dubai by the foreign cl ient without entering home marketNow we are billing to foreign client for rental service for the storage of parcel. Now question arises whether such type of service provided at Indian port bonded warehouse GST is to be charged or not or service is exempted . If applicable what type of GST ( igst /c+s gst)Kindly guide – Reply By KASTURI SETHI – The Reply = Dear Querist, You are charging godown rent for the period the goods remained in the g

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d company is liable to GST ? or since good doesnot enter India GST is not leviable on the services provided? or if applicable whether C+Sgst or IGST. Please guide. – Reply By KASTURI SETHI – The Reply = Dear Sh.Prasad Ji, I have posted the case law in order to understand the situation. This case law is not fully applicable to the situation explained by you. In my view, this situation consists of two components . 1.Supply of service 2 Supply of goods for re-export. In the first situation, you have provided/supplied rewarehousing services (rental) and charged the amount (consideration) for one month. In this instance, place of supply is in taxable territory (India) and within same State. It is not export of service. Hence CGST and SGST payable. Re-export of goods is another aspect in this situation and both the situations should not be intermingled. This is my view. – Reply By KASTURI SETHI – The Reply = In continuation if my reply dated 24.1.19, I further add as under:- . An An warehous

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perty is India (as per the definition India includes territorial water), therefore, although immovable property is as Customs Area, As rightly viewed by Sh. Kasturiji Sir, CGST + SGST is applicable for the services rendered. Any different view is highly solicited. Thanks, With regards, – Reply By Surendra Prasad – The Reply = In regards to above subject , had instead of renting of immovable property( ware housing services), our service fall under cargo handling service , i.e we store at bonded ware house chemical , we provide heating on chemical while storage for the chemical , we provide security also., we have taken insurance for product also. Had there will be any change from GST applicablity if we are providing cargo handling services at our Tank farm all risk and responsiblity for proper storage of chemical lies with us.RegardsSurendra – Reply By Alkesh Jani – The Reply = Sir,In continuation to your query, the services rendered by you falls within the ambit of Storage and warehous

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GST – Started By: – Kaustubh Karandikar – Dated:- 24-1-2019 Last Replied Date:- 26-1-2019 – XYZ(Manufacturer) supplying goods to customers on payment of GST. Subsequently, goods are supplied on FOC basis, 1) During warranty period if found defective or damaged or 2) After warranty period if found defective, damaged or short supplied. a) Whether XYZ is required to pay GST on goods supplied on FOC basis under both the situations i.e. before and after warranty period? b) How to arrive at the value for FOC supply c) Whether proportionate ITC is required to be reversed if GST is not required to be paid on FOC supply? – Reply By KASTURI SETHI – The Reply = Dear Sir, The following case law is relevant for your query:- 2018 (18) G.S.T.L. 834 (A.A.

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2019 (1) TMI 1486 – KERALA HIGH COURT – TMI – Detention of goods with vehicle – wrong declaration in the e-way bill – Held that:- Division Bench of this Court in Renji Lal Damodaran v. State Tax Officer [2018 (8) TMI 1145 – KERALA HIGH COURT] has dealt with an identical issue – the respondent authorities are directed to release the petitioner's goods and vehicles on its furnishing Bank Guarantee for the tax and penalty due, and a bond for the value of goods in the form as prescribed under Rule 140(1) of the CGST Rules – petition disposed off. – WP(C) 1843/2019, WP(C). 1847/2019 Dated:- 24-1-2019 – MR DAMA SESHADRI NAIDU, J. For The Petitioner (s) : ADVS. SRI. ANIL D. NAIR SMT. ARYA ANIL SHRI. GOKULRAJ L. SMT. NILOOFAR O. NIZAM AND SRI. SR

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2019 (2) TMI 125 – MADRAS HIGH COURT – TMI – Detention of vehicle along with goods – the driver of the vehicle did not extend proper cooperation – specific stand taken by the writ petitioner is that the driver without knowing the correct route had taken a wrong turn and headed towards Sivakasi – evasion taking place or not? – Held that:- It is not in dispute that the bill is addressed only to the writ petitioner's principal office at Sivakasi; delivery alone is to be made at Virudhunagar. Even if by mistake, a wrong instruction had been given to the driver of the vehicle to head towards Sivakasi. Still it would not really matter.
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When the writ petitioner is a registered dealer, when the tax in respect of the goods have already been remitted and when the transportation of goods is duly covered by proper documentation, the respondent ought to have taken a sympathetic and indulgent view of the lapse committed by the driver of the vehicle – detention order dated 28.12.2018 and the o

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They have registered themselves as an assessee under the Goods and Service Tax Act, 2017 with the respondent. While so, the writ petitioner had placed orders with their principal for delivery of 40 numbers of two wheelers [Pulsar Bike]. The invoice dated 23.12.2018 is enclosed at Page No.1 of the typed set of papers. E-way bill is also enclosed. The goods were shipped from Pune to be delivered at Branch Office of the writ petitioner at Virudhunagar. The goods were moved from Pune on 23.12.2018. It appears that the vehicle transporting two wheelers instead of halting at Virudhunagar, had moved towards Sivakasi. When the vehicle was enrout to Sivakasi and 7 km away from Virudhunagar, it was intercepted by the respondent roving squad. The respondent seized the vehicle and called upon the driver of the vehicle to cooperate. It appears that the driver of the vehicle did not extend proper cooperation. In these circumstances, the impugned order of the detention came to be passed. The respond

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rds Sivakasi. Only when the vehicle had travelled a distance of 7 km away from Virudhunagar, the respondent roving squad intercepted the vehicle. The respondent official would point out that the driver of the conveyance / vehicle was enquired and he had categorically stated that the vehicle moved towards Sivakasi only on the instructions of an official representing the writ petitioner. 6. No doubt the vehicle ought to have stopped at Virudhunagar and the goods ought to have been offloaded at Virudhunagar itself. But then, the question is whether a drastic order passed by the respondent herein was really warranted in the facts and circumstances of the case. 7. It is not in dispute that the writ petitioner is an authorised dealer of Bajaj Auto Limited. It is also not in dispute that the goods are covered by appropriate documents. The tax payable has also been paid by the writ petitioner's principal. Thus, it is not a case of any evasion of tax. It is not in dispute that the writ peti

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ffloaded. The vehicle was intercepted when it was in transit. The respondent ought to have directed the driver of the vehicle to move back towards Virudhunagar. Instead adopting such a procedure, the respondent had chosen to be harsh and vindictive. When the writ petitioner is a registered dealer, when the tax in respect of the goods have already been remitted and when the transportation of goods is duly covered by proper documentation, the respondent ought to have taken a sympathetic and indulgent view of the lapse committed by the driver of the vehicle. The detention order dated 28.12.2018 and the order dated 11.01.2019 suffer from vice of gross unreasonableness and disproportionality. When a power is conferred on a statutory authority, it should be exercised in a reasonable manner. 11. The learned counsel appearing for the writ petitioner draws my attention to the circular dated 14.09.2018 issued by the Government of India, calling upon the officials to condone the minor lapses and

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2019 (2) TMI 298 – PUNJAB AND HARYANA HIGH COURT – TMI – Permission to withdraw the petition – Held that:- Petition withdrawn with liberty to the petitioners to approach the respondent- authority by filing a detailed and comprehensive representation at the first instance bringing the facts as stated in the writ petition to his notice – petition dismissed as withdrawn. – CWP-1974-2019 Dated:- 24-1-2019 – MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL, JJ. For The Petitioners : Mr. Alok Yadav, Advocate with Mr. Shantanu Bansal, Advocate ORDER AJAY KUMAR MITTAL, J (ORAL) The petitioners inter alia have approached this Court under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing th

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2019 (2) TMI 388 – KARNATAKA HIGH COURT – TMI – Levy of tax on construction activities – value of the land at one-third of the total amount charged – Constitutional validity of entry 5(b) of Schedule II to the GST Act, 2017 – legislative competence – Article 246A and 265 of the Constitution – Held that:- passing of a legislation by itself does not confer any such right to file the writ petition unless a cause of action arises therefor
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Enacting a legislation or issuing Notification/Circular could not confer a right to challenge unless the litigant is affected by the action initiated by the executive in furtherance of such legislation/administrative Circular/Notification more particularly, in taxing statutes. Cause of action is sine qua non for challenging such legislation/ Notification/Circular. The writ Court cannot adjudicate upon such matters in vacuum – The petitioner involved in construction activity or works contract would not be suffice to examine the constitutional vires

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CGST Act, 2017 (enclosed as Annexure-A) being unconstitutional lacking legislative competence and violative of Article 246A and 265 of the Constitution. (C) Writ or direction in the nature of a Writ of Certiorari or any other writ or direction to quash the provisions of entry 3(i) read with para 2 of the Notification No.11/2017-CT(R) dt. 28.06.2017 to the extent it covers entry 3(i) (enclosed as Annexure-B) as unconstitutional being violative of Article 14, 19(1)(g), 246A, 265, 366(12A) and 366(29A) of the Constitution. (D) Writ or direction in the nature of a Writ of Certiorari or any other writ or direction to quash the provisions of entry 3(i) read with para 2 of the Notification No.11/2017-CT(R) dt. 28.06.2017 to the extent it covers entry 3(i) (enclosed as Annexure-B) as being illegal and ultra vires the provisions of Section 15 of CGST Act, 2017; In the alternative to read down the said provisions of paragraph 2 as not being mandatory and the petitioner is allowed to value the l

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ble Apex Court reported in (2004)6 SCC 254 = 2004 (4) TMI 342 – SUPREME COURT OF INDIA in the case of Kusum Ingots & Alloys Limited Vs. Union of India and another. 4. Learned Counsel for the petitioner, placing reliance on the judgments of the Hon ble Apex Court as well as other High Courts, submitted that the petitioner is aggrieved by the Notification and Circular issued by the respondent-authorities pursuant to Entry 5(b) of Schedule II to the Central Goods and Services Tax Act, 2017 ( Act for short) which envisages levy of tax on construction activities and deeming the value of the land at one-third of the total amount charged. Learned Counsel argued that irrespective of any action initiated or not by the respondent-authorities, the petitioner is entitled to challenge the same and hence the writ petition is maintainable. Host of cases are referred to, and the same are discussed infra. 5. I have carefully considered the rival submissions of the learned counsel appearing for the

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uddin (Nasiruddin Vs. State Transport Appellate Tribunal reported in 1975 (2) SCC 671 = 1975 (8) TMI 126 – SUPREME COURT) and Kusum Ingots & Alloys Limited observed that, keeping in view the expression cause of action used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered. The jurisdiction of the High Court based on the cause of action doctrine was the subject matter adjudicated upon. 9. In the case of Namit Sharma Vs. Union of India reported in (2013) 1 SCC 745 = 2012 (9) TMI 809 – SUPREME COURT the Hon ble Apex Court observed that no prejudice needs to be proved in cases where breach of fundamental rights is claimed. Violation of a fundamental right itself renders the impugned action void. 10. In Dr.Md.Rezaul Karim Vs. State of West Bengal reported in 2017 SCC OnLi

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he reason that the summons per se was not the subject matter of challenge, but the basis thereof, be that as it may, the clarificatory circular was also the subject matter of challenge. 12. In the case of Collector, District Magistrate, Allahabad Vs. Raja Ram Jaiswal reported in 1985 (3) SCC 1 = 1985 (4) TMI 328 – SUPREME COURT, the Hon ble Apex Court while examining the challenge made to the preliminary Notification issued under Section 4(1) of the Land Acquisition Act, 1894, held that a Notification under Section 4(1) initiates the proceedings for acquisition of land and uses the expression shall , the mandate of the legislature becomes clear and therefore, the infirmities therein cannot be wholly overlooked on the specious plea that the courts do not interdict at the stage of a mere proposal. It is needless to observe that in the land acquisition proceedings, at the time of issuance of preliminary Notification, lands proposed to be acquired are identified along with the respective l

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Industrial Policy and Promotion 2018 (5) TMI 1762 – MADRAS HIGH COURT, the High Court of Madras held that the writ petitioners therein were broadcasters owning several television channels in as many as eight languages which are indisputably being beamed within the territorial jurisdiction of that Court. The impugned clauses in the regulations challenged and the tariff order impact their content creation, generation, exploitation of content, licensing terms and broadcast reproduction rights. In that context, the plea that the writ petitions have to be dismissed on the ground of lack of cause of action was over-ruled. 15. Hence, the judgments relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case. Whereas the dictum laid down by the Hon ble Apex Court in the case of Kusum Ingots and Alloys Ltd., has a bearing in the fact situation. 16. Enacting a legislation or issuing Notification/Circular could not confer a right to challenge unless t

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2019 (2) TMI 461 – KARNATAKA HIGH COURT – TMI – Filing of Form GST Tran-1 – It is the grievance of the petitioners that, the respondent No.6 has issued the endorsement advising the petitioners to contact the respective individual officers for redressal of their grievance – Held that:- In view of the insertion of Rule 1 (1)(A) to Rule 117 of the Central Goods and Service Tax Rules, 2017, which provides that the Commissioner on the recommendations of the counsel, can extend the date for submitting the Form in GST Tran-1 by a further period not beyond March 2019 in respect of registered persons, who could not submit the said declaration on the common portal and the notification issued by the Commissioner dated 17th September 2018 extending th

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dated 6.03.2018 at Annexure G to the writ petition and sought for other consequential reliefs. 2. The petitioners claiming to be a private limited company incorporated under the Companies Act, 1956, are engaged in the business of trading in imported and domestically procured plastic and raw materials of plastics. It appears that on and after the last date prescribed, for filing Form GST Tran-1, the petitioner filed a representation on 6.3.2018 seeking to facilitate the petitioners for filing Form GST Tran-1. It is the grievance of the petitioners that, the respondent No.6 has issued the endorsement advising the petitioners to contact the respective individual officers for redressal of their grievance. 3. However, in view of the insertion o

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M/s. TRANSASIA BIO MEDICALS LTD.,. DHANESH,. COOKING SYSTEMS,. M/s. SMS RUBBERS,. INTECH INTERIOR CONTRACTORS PVT LTD,. KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LTD.,. NASIMON. B,. INDIRA DEVI A. V.,. AJAYAKUMAR P.A AND OTHERS Versus STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,. THIRUVANANTHAPURAM,. THE COMMISSIONER STATE GOODS AND SERVICE TAX,. THIRUVANANTHAPURAM,. ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE-1, ERNAKULAM AND INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES,. ERNAKULAM – 2019 (2) TMI 462 – KERALA HIGH COURT – TMI – Vires of Section 174 of the KSGST Act – power of State to graft the section – demand barred by time limitation u/s 25(1) of the KVAT Act – Held that:- The issue is sq

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USHARA JAMES JUDGMENT In this batch of writ petitions the petitioners have laid challenge, amongst others, on the ground that Section 174 of the KSGST Act is ultra vires of the State's legislative power or on the ground that the demand is barred by limitation under Section 25(1) of the KVAT Act. In some cases, both the grounds have been taken. 2. All counsel agree that the issues stand squarely covered against the petitioners by judgment dated 11th January 2019 in W.P.(C) No.11335 of 2018 and connected cases. I, therefore, dismiss the writ petitions applying the ratio of the judgment referred to above. – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxmanagementindia.com – T

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2019 (2) TMI 846 – CESTAT HYDERABAD – TMI – CENVAT credit – write off of inputs/capital goods on which CENVAT credit availed – obsolete stock – Held that:- There cannot be two opinions that the appellant had required to pay the amount equivalent to the CENVAT credit availed as soon as the inputs/capital goods written off by them and they did not. If they had used some or all materials from which they had reverse the CENVAT credit subsequently there could have taken credit of such amount as per the proviso. Therefore, there is no infirmity in the lower authority confirming the demand and the First Appellate Authority upholding the demand along with interest and penalties.
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However, the appellant now submits that they have documents to show that they have subsequently used the written off material. This requires a detailed examination of the documents and re-calculation of the amount of credit to be reversed and interest as well as the penalties – appeal allowed by way of remand.

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It further provided that if the inputs or capital goods were subsequently used in the manufacture of final products or the provision of taxable services, the manufacturer or the output service provider can take credit of the amount equivalent to the CENVAT credit paid. The appellant had clearly written off many goods on which they have CENVAT credit received as obsolete stock. However, they did not reverse the CENVAT credit taken on them. Therefore, a show cause notice was issued to the appellant on 31.01.2017 demanding CENVAT credit of ₹ 8,19,315/- being the CENVAT credit availed and utilized on the inputs/capital goods valued at ₹ 65,54,521/- written off by showing them obsolete items in their Trial balance for 2015-2016. It was proposed to recover this amount under Rule 14(1) (ii) of CCR, 2004 read with Section 11A of Central Excise Act. It was also proposed to charge interest on duty demanded from them under Section 11AA of Central Excise Act, read with Rule 14(1)(ii) o

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acturer or service provider as the case may be, shall pay an amount equivalent to the Cenvat credit taken in the respect of said inputs or capital goods. Provided that if the said input or capital goods is subsequently used in the manufacture of final products or the provision of taxable services, the manufacturer output service provider, as the case may be, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier subject to the other provisions of the rules. Therefore, in view of the discussion supra I am of the considered opinion that the contention of the appellant that the mere reduction in the value of the goods and stock being available in the factory did not merit reversal cannot be accepted and that the said case law in respect to the case of Ingersoll prior to amendment of the Rule 3 (5B) are not to any avail to the appellant in the instant case. The appellants therefore are liable to pay the duty at time of write-down the inputs/capital

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ting off the goods. In the circumstance of their not having proved the usage of the impugned goods further in the manufacture, I hold that the demand confirmed vide para 19(i) of the impugned order is upheld along with the attendant interest confirmed vide para 19(ii) of the impugned order. 14. The appellant has also assailed the notice in view of that there is no wilful suppression was proved and they regularly filing the ERI/ER4 return where the ER 4 shows the details of obsolete stock and write off the goods of their company. The figures mentioned in the ER 4 shows the total amounts of all the units of the HSIL Ltd not in respect of the appellant. The issue of making provisions of obsolete stock of inputs/capital goods in their Trial balance 2015-2016 came to the knowledge of the department only after verification of records. Therefore the finding of the Adjudicating Authority that it was only on the audit of the accounts of the appellant that brought out the discrepancy culminating

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ity for verification. 5. Learned Departmental Representative submits that this was a case of taking credit on inputs/capital goods and reversing the credit taken in terms of Section 3(5B) of the CCR, 2004. The assessee had suppressed the relevant facts to the department and had not disclosed the fact that they had written off the inputs/capital goods. This fact was revealed only when the audit was conducted. Therefore, the demand was correctly confirmed and was also upheld by the First Appellate Authority. It is clear from the Rule 3(5B) that debit has to be made when they write off the goods as obsolete. If the goods on which the credit has been so debited get subsequently used at a later stage, they can take credit. Merely because the appellant has used some of the obsolete items after writing off, they cannot escape from Rule 3(5B). This amounts to undue financial accommodation. He draws the attention of the Bench to the Board Circular No. 645/36/2002-CX dated 16.07.2012 and CBEC Ci

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