Author: admin_gst

Goods and Services Tax – GST – Dated:- 16-1-2019 – In pursuance of decision in the 32nd Meeting of GST Council held on 10th January, 2019 at New Delhi, a Group of Ministers (GoM) for boosting the Real Estate Sector under the GST regime has been constituted. The GoM for boosting Real Estate Sector under the GST regime shall consist of the following members: Sl. No. Name Designation and State 1 Shri Nitin Patel Hon ble Deputy Chief Minister, Government of Gujarat Convener 2 Shri Sudhir Mungantiwar Hon ble Finance Minister, Government of Maharashtra Member 3 Shri Krishna Byre Gowda Hon ble Finance Minister, Government of Karnataka Member 4 Dr. T.M. Thomas Isaac Hon ble Finance Minister, Government of Kerala Member 5 Shri Manpreet Singh Badal

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vis-a-vis introduction of suggested Scheme; (iii) Examine various aspect of levy of GST on Transfer of Development Rights (TDR) and Development Rights in a joint Development Agreement and suitable model; (iv) Examine legality of inclusion/exclusion of land or any other ingredient, in Composition and suggest Valuation Mechanism; (v) Examine and suggest any other aspect relevant to boost Real Estate Sector, which may be brought to the notice of GoM. (vi) The GoM for boosting Real Estate Sector under GST regime may invite officers from the Centre and the States, as may be required. The Conveners of Law Committee and Fitment Committee will assist the GoM. (vii) The Secretary for the GoM for boosting the Real Estate Sector under GST regime shal

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GST – Started By: – rajnikant bhosale – Dated:- 16-1-2019 Last Replied Date:- 19-1-2019 – Which HSN will use when raising the debit note if SCP/party missing the operation when manufacturing of the material??? in that case we were not reject the material but we want to debit the party , against the provide invoice – Reply By KASTURI SETHI – The Reply = Dear Querist, What do you mean by the term, Missing Operation here ? – Reply By Ganeshan Kalyani – The Reply = Query is not clear. – Discussion-

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2019 (1) TMI 807 – NATIONAL ANTI-PROFITEERING AUTHORITY – TMI – Profiteering – sale of Fortune ADW Detergent 1 Kg. and Fortune Rinse Aid 500 ml. – benefit of reduction in the GST rate not passed – base price of goods also increased – contravention of provisions of Section 171 of CGST Act, 2017 – penalty – Held that:- The Respondent has admittedly not passed on the benefit of tax reduction since the base prices of the above two products were increased to maintain the same selling prices which were existing before the reduction in the rate of tax. The Respondent, who is a registered manufacturer, is liable to pass on the benefit to the recipients irrespective of the fact whether the base prices are still lower as compared to the pre-GST price or not. Moreover, from the documents submitted to the DGAP by the Respondent it is also established that the base prices of the two products in question were increased to maintain the same selling prices (inclusive of GST), although there was a red

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(i) of the Act – Held that:- As it is clear from the facts of the present case that the Respondent was fully aware of the Notification No. 41/2017-Central Tax (Rate) dated 14.11.2017 whereby the rate of GST was reduced from 28% to 18% and he was also fully aware of Section 171 of the CGST Act 2017, whereby he was bound to pass on the benefit of reduction in the rate of tax by commensurate reduction in the prices of the products in question, therefore he is liable for penalty – respondent has committed an offence under section 122 (1) (i) of the above Act and hence, he is liable for imposition of penalty under the above Section read with Rule of the CGST Rules 2017.
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Decided against Respondent. – Case No. 02/2019 Dated:- 16-1-2019 – SH. B. N. SHARMA, CHAIRMAN, SH. J. C. CHAUHAN, TECHNICAL MEMBER, SH. AMAND SHAH, TECHNICAL MEMBER None for the Applicant No. 1. Ms. Gayatri, Deputy Commissioner, for the Applicant No. 2. Sh. Rakesh Upadhyaya, Director and Dr. Prabhat Kumar, Advocate f

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the Standing Committee on Anti-Profiteering, as per the minutes of it's meeting dated 28.2.2018, forwarded the same to the DGAP for detailed investigation under Rule 129 (1) of the CGST Rules, 2017. 2. The DGAP, on receipt of the application, issued notice to the Respondent seeking his reply as to whether the benefit of reduction of GST rate has been passed on to the consumers or not? The Respondent had replied vide his letters dated 1 1.04.2018 and 19.05.2018 that prior to coming into force of the GST, he was a SSI unit, manufacturing synthetic detergents falling under Chapter 34 of the erstwhile Central Excise Tariff Act, 1944 and that he had been availing SSI exemption and charging VAT @ 12.5 % on the base prices. He had further submitted that on introduction of the GST, 28% tax was levied and since this disturbed his pricing pattern he had reduced the base prices. He had also stated that w.e.f. 15.11 .2017, when the CST rate on his products in question was reduced from 28% to

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rther states that the Respondent instead of reducing the base prices sold 20,315 units of Fortune ADW Detergent 1 Kg. and 11,214 Units of Fortune Rinse Aid 500 ml. at the increased base prices across various States. Thus, by increasing the base prices of the said products consequent to the reduction in the GST rate, the benefit of reduction in the GST rate from 28% to 18% was not passed on to the recipients. The report also submitted that the total amount of profiteering covering the period between 15.11.2017 to 31.03.2018, came out to be ₹ 4,64,849.74, but the Applicant No. 1 was supplied Fortune ADW Detergent 1 kg. at the price of ₹ 186.99 and Fortune Rinse Aid 500 ml. at the price of ₹ 127.49 which were lower than the commensurate cum-tax prices of these products and therefore, the Applicant was not eligible for any refund. 4. The above Report was considered by the Authority in it's meeting held on 11.09.2018 and it was decided to hear the interested parties on

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e GST era, but he had not increased the base prices and absorbed the increased burden of taxes from 12.5% to 28% himself. He has also claimed that in the same financial year 2017-18 he had three rates of tax viz. 12.5% prior to July, 28% from July to November and 18% from 15th November onwards, however during this entire period, the prices to the consumers had remained the same and accordingly, the consumers had paid lower prices even though the rate of tax was enhanced. He has also quoted the Hon'ble Finance Minister stating that the GST rate of 28% was tax neutral and only pertained to those units which were paying 12% Central Excise Duty and VAT @ 12.5%. However, this rate did not apply to him as he was availing exemption under the SSI notification. The above submissions of the Respondent were forwarded to the DGAP for reply who vide his submission dated 22.10.2018 stated that the Respondent has reiterated the earlier submissions and nothing more was to be added by the DGAP. Fin

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duty of the Authority to determine whether any reduction in the rate of tax on any supply of goods or services or the benefit of Input Tax Credit (ITC) has been passed on to the recipient by way of commensurate reduction in the prices or not? In the instant case the Respondent has not disputed the fact that there has been reduction in the rate of tax from 28% to 18% with effect from 15th November 2017 vide Notification No. 41/2017- Central Tax (Rate) dated 14.1 1 .2017 and has also not disputed the calculation made by the DGAP based on his outward sales data. The DGAP vide Annexure-II of his report has quantified profiteered amount as ₹ 4,64,849/- in which he has taken the actual selling price of Fortune ADW Detergent 1 Kg. i.e. ₹ 220/- and worked out the base price and the commensurate cum-tax price. The base price of the above product before rate reduction on 14.11.2017 was ₹ 171.80 and the Post-GST rate reduction it was ₹ 186.44 which has not been disputed a

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nse AID 500 ml. however, the base price has varied from ₹ 133.40 (April to December 2016) to ₹ 117.19 (July to November 2017) and ₹ 127.12 (15.1 1.2017 to March 2018). For this product also he has claimed that though the base price has increased from ₹ 117.19 to ₹ 127.12 after rate reduction in November 2017, the base price had remained less than ₹ 133.40 which was prevalent prior to the introduction of GST. Thus the Respondent has claimed that the consumer had effectively paid the same price or less price which was prevalent in pre GST era. However, this argument of the Respondent does not hold good as not to increase the MRPs when tax rates were increased on account of implementation of the GST, was the business call taken by him and therefore he cannot claim any concession on this ground. The benefits arising due to the GST rate reduction cannot be denied to the consumers just because in the earlier scenario MRPs were not changed to extend some ex

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constant at ₹ 220/- and ₹ 150/- per unit for the above products the Respondent has profiteered an amount of ₹ 4,64,849.74 for the period w.e.f. 15.11.2017 to 31.03.2018. However as far as the Applicant No. 1 is concerned he has bought both the above products @ ₹ 186.99 (Fortune ADW Detergent 1 Kg.) and at ₹ 127.49 (Fortune Rinse AID 500 ml.) which are lower than the commensurate cum tax prices. Therefore there is no profiteering in respect of the products purchased by him. 8. From the above discussions, it is clear that the Respondent has admittedly not passed on the benefit of tax reduction since the base prices of the above two products were increased to maintain the same selling prices which were existing before the reduction in the rate of tax. The Respondent, who is a registered manufacturer, is liable to pass on the benefit to the recipients irrespective of the fact whether the base prices are still lower as compared to the pre-GST price or not. More

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rate of the tax to his customers as per Rule 133(3)(a) of the CGST Rules, 2017. The Respondent is also directed to deposit the profiteered amount of ₹ 4,64,849.74 into the Consumer Welfare Fund as per the provisions of Rule 133 (3) (c) in the ratio of 50:50 in the Central and the State Consumer Welfare Funds, along with interest at the rate of 18% to be calculated from the date of collection of the higher amount till the date of deposit into the Consumer Welfare Fund. Out of the entire profiteered amount of ₹ 4,64,849.74, an amount of ₹ 2,32,424.87 will be deposited into the Central Consumer Welfare Fund and the balance amount shall be deposited into the State Consumer Welfare Fund as per the Table-I given below. The Authority, as per Rule 136 of the CGST Rules, 2017, directs the DGAP and the respective Commissioners of both CGST and SGST to monitor this order by ensuring that the amount profiteered by the Respondent as ordered by the Authority, is deposited in the Co

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7.565 32. Dadar & Nagar Haveli 28.37 Grand Total 232424.87 10. It is clear from the narration of the facts stated above that the Respondent has indulged in profiteering in violation of the provisions of Section 171 of the CGST Act, 2017 and has not passed on the benefit of reduction of tax as per the Notification 41/2017-Central Tax(Rate) dated 14.11.2017 in respect of the above products to his customers and therefore, he is liable for penalty under Rule 133(3)(d) of the CGST Rules, 2017, the relevant provisions of which state as under:- 133. x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-xx-x-x-x-x-x-x-x-x-x-x-x-x-x-x-xx-x (3) Where the Authority determines that a registered person has not passed on the benefit of the reduction in the rate of tax on the supply of goods or services or the benefit of input tax credit to the recipient by way of commensurate reduction in prices, the Authority may order – (a) reduction in prices: (b) return to the recipient, an amount equivalent to the amount not passe

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enal provisions, the Respondent had not put forth any submissions on them except stating that he had not profiteered as has been discussed in para 5 above. As it is clear from the facts of the present case that the Respondent was fully aware of the Notification No. 41/2017-Central Tax (Rate) dated 14.11.2017 whereby the rate of GST was reduced from 28% to 18% and he was also fully aware of Section 171 of the CGST Act 2017, whereby he was bound to pass on the benefit of reduction in the rate of tax by commensurate reduction in the prices of the products in question, therefore he is liable for penalty. The Respondent has deliberately defied the law on the pretext that he had not increased the prices of his products when the rate of tax was increased to 28% and increased the base prices to maintain the same old selling price prior to reduction of rate of tax from 28% to 18%, by issuing wrong invoices to his recipients. Accordingly, he has committed an offence under section 122 (1) (i) of

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2019 (1) TMI 1039 – CESTAT CHENNAI – TMI – Penalty u/s 77 and 78 of FA – non-payment/short payment of service tax – the appellant had got itself registered and paid service tax with interest and late fee – Held that:- Essentially, it implies that the Revenue should have reasons before alleging fraud, suppression etc. and secondly, the provisions of Section 78 stand controlled by Section 80 of the Finance Act, 1994, ibid. This makes that for every default, penalties under Section 77 and 78 are not automatic.
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In the case on hand, much before the issuance of show cause notice the assessee has got itself registered, paid the taxes along with applicable interest and this also is established by the fact that the same is appropriated in the Order-in-Original – In the SCN as well as the orders of the lower authorities, the Revenue has but for reiterating the wordings in the Sections itself, has not gone beyond that to put on record any reasons on the alleged malafides, fraud or suppress

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ppeal relates to two returns viz., for the periods 01.01.2013 to 31.03.2013 for non-submission of service tax return electronically and for the period 01.04.2013 to 30.09.2013, appellant voluntarily submitted service tax return electronically, with a delay of 180 days and also paid late filing fee for the delayed filing of returns. Hence, penal action for non-submission of service tax electronically is unwarranted. For belated submission of service tax the appellant remitted applicable late fee. Further, the appellant had paid the entire service tax along with interest well before the receipt of the show cause notice and there is no allegation of service tax having not been paid or has been short levied or short paid, erroneously refunded, by any reason of fraud or collusion or wilful mis-statement or suppression of facts with intent to evade payment of service tax on the part of the appellant. Hence, except delay in filing service tax electronically, no other contravention of any of t

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f penalty under Section 77 (2) and 78 of the Act ibid. 4.1 I have carefully considered the rival submissions and gone through various decisions relied on by the Ld. Consultant. Section 77 deals with a situation when penalty is leviable for contravention of rules and provisions of the Act for which no penalty is specified in the statute. Admittedly, the appellant had got itself registered and paid service tax with interest and late fee as well and in any case Section 77 stands controlled by Section 80. Section 78 of the Finance Act, 1994 envisages two situations viz. 1. failure to pay service tax and 2. for reasons of fraud, suppression etc. Further, non-payment or short payment of service tax as the case may be is for the reason of fraud or collusion etc. on whom a notice under Section 73 (1) is issued. Essentially, it implies that the Revenue should have reasons before alleging fraud, suppression etc. and secondly, the provisions of Section 78 stand controlled by Section 80 of the Fin

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2019 (1) TMI 1096 – CESTAT CHENNAI – TMI – Valuation – Discrepancies in the figures shown in the Profit & Loss account and ERI returns – the total value of both the traded goods and the manufactured goods as shown in the worksheet was found to be less than the value as shown in the profit and loss accounts for each of the three financial years – demand of differential duty – Held that:- Commissioner has said that though the proprietor of the assessee has given statement that they are doing some modification on the goods, there is nothing to show that a new product emerges from such modification. The goods received and the goods sold are one and the same and there is no change in CETH or description of the goods. The Commissioner has therefore categorically held that the activity if any of modifying the goods does not amount to manufacture.
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It is for the department to show as to what are the inputs used for doing such modification and what is the activity actually involved for do

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37/- raised in the show cause notice and confirmed the demand of only ₹ 23,14,649/- along with interest and imposed equal penalty. 2. On behalf of the appellant, ld. AR Shri S. Govindarajan supported the grounds of appeal. He submitted that the show cause notice was issued after noting discrepancies in the figures shown in the Profit & Loss account and ERI returns. The respondent was engaged in trading of goods also. When they were asked to produce evidence, the respondent produced a worksheet showing the break-up of the invoices in respect of traded goods and manufactured goods for the years 2007 – 08, 2008 – 09 and 2009 – 10. The respondents had purchased the traded goods from M/s. Sam Turbo Industries Ltd. Coimbatore and sold to various Thermal Power Stations. However, the total value of both the traded goods and the manufactured goods as shown in the worksheet was found to be less than the value as shown in the profit and loss accounts for each of the three financial year

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at the activity amounts to manufacture. When there is increase in the value, it is strong indication that the respondents have undertaken process of manufacture on the goods purchased. Thus, the demand of duty on the amount corresponding to the enhanced value shown in the sales invoice as raised in the show cause notice ought to have been confirmed. 3. The ld. counsel Shri M.N. Bharathi submitted that the grounds of appeal stated is entirely different from that of the argument put forward by the ld. AR. In the grounds of appeal, the only ground stated is that the Commissioner has not given any finding for setting aside the demand on the ground of limitation. In the impugned order, the Commissioner has not dropped the demand of ₹ 34,94,737/- on the ground of limitation. In fact, in paragraphs 15 and16 of the impugned order, the Commissioner has categorically held that although the respondents are doing some modifications on the goods received into the factory, there is no new prod

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tion or with regard to confirmation of interest and demand. 6. In the impugned order, in paragraphs 13 to 16, the Commissioner has discussed the issue of the difference in the figures reflected in the returns filed by the respondent and the financial statement. The demand in respect of ₹ 34,94,737/- is made only in respect of such amount reflected in the sales invoices wherein the goods have been sold at a higher price by the respondent. In para 15, the Commissioner has said that though the proprietor of the assessee has given statement that they are doing some modification on the goods, there is nothing to show that a new product emerges from such modification. The goods received and the goods sold are one and the same and there is no change in CETH or description of the goods. The Commissioner has therefore categorically held that the activity if any of modifying the goods does not amount to manufacture. In that case, it is for the department to show as to what are the inputs u

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HUSKY INJECTION MOLDING SYSTEMS (INDIA) PRIVATE LIMITED Versus THE COMMISSIONER OF STATE TAX KERALA GST DEPARTMENT, THIRUVANANTHAPURAM, ASSISTANT COMMISSIONER (INT) PALAKKAD, KERALA GST DEPARTMENT, PALAKKAD, DEPUTY COMMISSIONER OF STATE TAX, PALAKKAD AND ASSISTANT STATE TAX OFFICER SQUAD NO. 1, KERALA GST DEPARTMENT, PALAKKAD – 2019 (1) TMI 1152 – KERALA HIGH COURT – TMI – Detention of goods – person in registered in other state not in the state of detention – Method suggested for interim custody – Review of earlier order [2019 (1) TMI 23 – KERALA HIGH COURT] – Held that:- As to the first objection, I reckon it is, perhaps, an eminent ground of appeal; not that of review. About the second, at this length of time, I could not recollect wheth

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ted a particular method. But the petitioner insisted that it would pay the bank guarantee and the bond based on its registration in Tamil Nadu, rather than on a temporary registration in Kerala, as suggested by the authorities. In that context, it filed this Writ Petition. This Court has disposed of the Writ Petition with the following observations: 2. This case, as the Government Pleader submits, is covered by a Division Bench's judgment in Renji Lal Damodaran v. State Tax Officer Judgment dated 06.08.2018 in W.A. No.1640 of 2018 . But before I consider that aspect, I must note the peculiarity of this case. The petitioner-Company is a dealer with its registration in Tamil Nadu. When it wanted to comply with the statutory demand and get

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etitioner's representative. That person, then, can approach the Bank, remit the amount, and produce the proof before the authorities. Thereafter, the authorities will release the goods. The petitioner's counsel agrees for this arrangement. Recording the arrangement as suggested by the Government Pleader, and as agreed to by the petitioner's counsel, I dispose of the writ petition. 2. In this Review Petition, the petitioner has taken two contentions: (i) The methods suggested by the authorities and accepted by this Court have no statutory sanction; (ii) The judgment, in fact, records that the petitioner's counsel has agreed to the Government Pleader's suggestion; it is factually incorrect. 3. As to the first objection, I

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LEO LOGISTICS Versus UNION OF INDIA, REPRESENTED BY ITS SECRETARY (REVENUE) , MINISTRY OF FINANCE, NEW DELHI, THE PRINCIPAL SECRETARY, FINANCE (GST WING) FINANCE, NEW DELHI, GST COUNCIL, REPRESENTED BY ITS CHAIRPERSON DEPARTMENT OF FINANCE, NEW DELHI, GOODS AND SERVICE TAX NETWORK, NEW DELHI, THE COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM AND THE ASSISTANT COMMISSIONER/NODAL OFFICER, THRISSUR – 2019 (1) TMI 1153 – KERALA HIGH COURT – TMI – Unable to upload FORM GST TRAN-1 – input tax credit – KVAT Act – CST Act – Held that:- There is a circular issued by the Government of India for “setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal.” –

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n, the petitioner had to upload FORM GST TRAN-1 within the stipulated time. The petitioner asserts that though it attempted to upload form within the time, it failed because of some system error. The petitioner, therefore, seeks directions to enable him to take credit of the available input tax. 2. Heard the learned counsel for the petitioner as well as the learned Government Pleader, besides perusing the record. 3. There is a circular issued by the Government of India for setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal. Paragraph 5 of the circular outlines the procedure the Nodal Officers is to follow. It reads: 5. Nodal officers and identification of issues 5.1

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N who would on receipt of application examine the same. GSTN shall after verifying its electronic records and the applications received, identify the issue involved where a large section of tax payers are affected. GSTN shall forward the same to the IT Grievance Redressal Committee with suggested solutions for resolution of the problem. (italics supplied) 4. Not only the petitioner but also many other people faced this technical glitch and approached this Court. Both the learned counsel submit that this Court on earlier occasions permitted the petitioners to apply to the additional sixth respondent for the issue resolution. 5. So, in this case also, the petitioner may apply to the Nodal Officer. The petitioner applying, the Nodal Officer wi

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M/s. P.K CONSTRUCTION COMPANY Versus THE COMMISSIONER KERALA STATE GST DEPARTMENT, THIRUVANANTHAPURAM, THE DEPUTY COMMISSIONER KERALA STATE GST DEPARTMENT, MATTANCHERY, THE STATE TAX OFFICER (WORKS CONTRACT) , ERNAKULAM AND THE GOODS AND SERVICES TAX NETWORK PVT. LTD. – 2019 (1) TMI 1154 – KERALA HIGH COURT – TMI – Opening the official web portal so as to upload FORM GST REG-26 Part B – revival of provisional registration certificate issued to the petitioner firm earlier – Held that:- Now both the counsel agree that GSTN is active and that the petitioner was granted a new registration number – the learned Standing Counsel for the 4th respondent informs the Court that the authorities will look into the petitioner's claim for validation – pet

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o revive the provisional registration certificate issued to the petitioner firm earlier, in order to facilitate the petitioner firm to conduct his business till completion of migration process by the issue of a writ of mandamus or such other writ, order or direction. 2. Now both the counsel agree that GSTN is active and that the petitioner was granted a new registration number. 3. At any rate, the petitioner's counsel submits that for the previous period, after the commencement of GST, the returns have to be validated. 4. In response, the learned Standing Counsel for the 4th respondent informs the Court that the authorities will look into the petitioner's claim for validation. I, accordingly, close the Writ Petition as it does not s

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2019 (1) TMI 1368 – DELHI HIGH COURT – TMI – Profiteering – Failure to reduce Maximum Retail Prices (MRPs) – Petition against the decision of NATIONAL ANTI-PROFITEERING AUTHORITY – CENVAT Credit – TRAN-2 credit – it is the contention of the petitioner that TRAN-2 credit was made available in March, 2018 – Area based exemption – Loss in North East Exemption being denied – case of respondents is that the documents on the amount refunded to Modern Trade Dealers have not been duly certified – Held that:- The petitioner is directed to deposit ₹ 90 crores with the Central Consumer Welfare Fund in two instalments of ₹ 50 crores and ₹ 40 crores which would be paid on or before 15th March, 2019 and 15th May, 2019 respectively – th

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Mr. Sahil Sood, Mr. Harshul Choudhary and Mr. Viplav Acharya, Advs. for R-2. Mr. Amit Bansal, Sr. Standing counsel for R-2 to 4. O R D E R CM APPL. No. 1768/2019 (for exemption) Allowed subject to all just exceptions. W.P.(C) No. 378/2019 & CM APPL. No. 1767/2019 (for stay) We have heard learned Senior Advocate for the petitioner and the learned Additional Solicitor General, who has entered appearance on behalf of the respondents. Learned senior counsel for the petitioner, during the course of hearing, has filed the following chart before us: S.No. Issue Amount(in crores) 1 Amount denied on extra grammage being claimed ₹ 27.77 2 Amount refunded to Modern Trade Dealers but being denied ₹ 26.37 3 Loss in North East Exemption b

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credit was made available in March, 2018, therefore the impugned order is erroneous. On serial no. 3 i.e. loss in North- East Exemption, our attention was drawn to paragraph No. 69 of the petition to submit that the reduction in compensation has not been accounted for and has been treated as irrelevant. On sale of products to Modern Trade Dealers , evidence was produced but the insistence was that the consumer sale price by the customers of the Modern Trade Dealers should be produced. Learned counsel for the respondents has contested the submission and on the last aspect submitted that the documents on the amount refunded to Modern Trade Dealers have not been duly certified. In view of the submissions and contentions raised, we direct that

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2019 (2) TMI 184 – KERALA HIGH COURT – TMI – Validation of returns – migration to GST Regime – Held that:- The learned Standing Counsel for the 4th respondent informs the Court that the authorities will look into the petitioner's claim for validation – Writ Petition is closed as it does not survive for further consideration. – WP(C).No. 30883 of 2018 Dated:- 16-1-2019 – Mr. Justice Dama Seshadri Naidu For the Petitioner : ADV. Mahesh V Menon For the Respondents : ADV. Sri.P.R. Sreejith,SC, Goods And Services Tax Network, GP Sri Mathew George Vadakkel JUDGMENT The petitioner, an assessee under the KVAT Act, faced problems in migrating from one tax regime to another. In that context, it has filed this Writ Petition seeking the following rel

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2019 (2) TMI 1104 – CESTAT CHENNAI – TMI – Penalty u/s 78 of FA – appellant had paid the entire service tax with interest prior to issuance of SCN – suppression of facts – Held that:- Revenue should have reasons before alleging fraud, suppression etc. and secondly the provisions of Section 78 stand controlled by Section 80 of the Finance Act, 1994, ibid. This makes that for every default, penalty under Section 78 is not automatic.
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In the case on hand, much before the issuance of show cause notice the assessee has paid the taxes along with applicable interest and there is no dispute on this. In the orders of the lower authorities, the Revenue has but for reiterating the wordings in the Section itself, has not gone beyond that to put o

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mitted that the first appellate authority has dismissed the appeal without going into the merits by holding that the appeal does not merit interference as regards the penalty imposed under Section 78 of the Finance Act, 1994, and thereby upheld the order of the original authority in toto. Ld. Advocate submits that the allegation of suppression of facts is incorrect and the appellant had paid the entire service tax with interest prior to issuance of the show cause notice. He pleads that there is no intention on the part of the appellant to evade payment of tax and hence the penalty imposed is unwarranted. Ld. Advocate relies on the following case laws in support of his contentions: 1. 2012 (26) STR 3 (Kar.) CCE & ST, LTU, Bangalore Vs. A

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her, non-payment or short payment of service tax as the case may be is for the reason of fraud or collusion etc. on whom a notice under Section 73 (1) is issued. Essentially, it implies that the Revenue should have reasons before alleging fraud, suppression etc. and secondly the provisions of Section 78 stand controlled by Section 80 of the Finance Act, 1994, ibid. This makes that for every default, penalty under Section 78 is not automatic. 4.2 In the case on hand, much before the issuance of show cause notice the assessee has paid the taxes along with applicable interest and there is no dispute on this. In the orders of the lower authorities, the Revenue has but for reiterating the wordings in the Section itself, has not gone beyond that

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2019 (3) TMI 593 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – TMI – Maintainability of Advance Ruling application – Levy of GST – Merchant Discount Rate received by the issuing Bank as 'Interchange Fee' – Held that:- Merchant Discount Rate is the rate charged by Acquiring bank from Merchant on every card transaction. This MDR is as per agreement between Acquiring Bank and Merchant Establishment. From a perusal of transaction it is clear that applicant is neither a supplier nor a recipient and the questions raised is not in relation to the supply of goods or services or both, being undertaken or proposed to be undertaken by the applicant and as such by virtue of section 95 the applicant cannot make an application before this authority.
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Why different practice prevails by the Network in the industry? – Held that:- The question is not on matters or questions specified in Section 97(2) of the Act and as such is inadmissible under section 97 (2) of the Act.
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The present applicat

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THE APPLICANT 1) Statement of relevant facts having a bearing on the questions raised- 1) "The Mobile Wallet Private Limited (hereunder referred as Applicant) registered with the Registrar of Companies Vide Registration No. U67190MH2015PTC267015, having a corporate office at 3rd Floor, Tower 3, Equinox Business Park, LBS Marg, Kurla (West), Mumbai – 400070. 2) The applicant has obtained registration and holding valid registration certificate issued under Central Goods and Services Tax Act, 2017. 3) The applicant is in the business of issuance and operation of Pre-paid Payment instruments as per RBI guidelines. Pre-paid Payment Instrument includes mobile wallet and Pre-paid Card. 4) The applicant company has entered into an agreement dated 16th Jan 2018 with the Federal Bank Ltd having a registered Office at Federal Towers, Aluva-683101, Kerala. Applicant is issuing and operating Pre-paid Payment instruments as Business Correspondent (BC) of Federal Bank. As part of BC arrangement,

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z. the card holder 3. Network: Provides the payment infrastructure and issuing/ acquiring banks are its members (VISA/ MasterCard/ Rupay etc.) 4. Merchant Establishment: The vendor of goods or service who accepts the card in lieu of cash payment from the card holder. 5. Acquiring bank. Provides payment processing services to Merchant Establishments by entering into a separate agreement with the merchant and placing a swipe machine at the merchant outlet or provide Payment Gateway services for online transactions. 6. Business Correspondent (BC): The Applicant is issuing and operating Pre-paid Payment instruments as Business Correspondent (BC) of Federal Bank. As part of BC arrangements, Appellant has launched Co-branded Pre-paid Cards in India with Federal Bank powered by MasterCard. Interchange Fees is the subject matter of the dispute is earned by Issuing Bank: The flow of business transaction can be explained in a detail as under 1) The card holder does a purchase at the merchant est

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he card holder for purchase of goods or services. Such PG services are provided by the 'Acquiring Bank' to the Merchant Establishments which enables validation and acceptance of payment by Debit/Credit/ Pre-Paid card. 2. The moment card holder swipes the card or enter Card details in PG at Merchant Establishment with amount to be debited, information is transmitted to the Issuing Bank with the help of settlement platform of the Network. The information regarding authenticity of the card holder and amount confirmation is then sent back to the Merchant Establishment by the Network 3. The VISA/ MasterCard/Rupay/AMEX network generates reports for merchant settlement and sends the same to concerned Acquiring Bank who pays the merchant after deducting MDR and applicable GST on MDR. 4. A settlement report is sent to the Issuing Bank for reimbursement to the Acquiring bank by the Network (VISA/ MasterCard / Rupay / AMEX) 5.Out of MDR earned by the Acquiring bank in (3) above, Interchan

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of Issuing Bank Acquiring Bank share part of this 'Merchant Fee' with issuing bank as Interchange Fee. 3) Issuing Bank collects the payment for the purchase transaction from the card holder and makes the payment to the Acquiring Bank after deducting part of the Merchant Service Fee charged by Acquiring Bank in the form of Interchange Fee. 4) Further, Issuing bank pays pre-agreed fees to the Network and discharge the GST tax liability on the same under reverse charge mechanism. 5. The Merchant Discount Fee which is the gross amount received by acquiring bank from a Merchant Establishment towards the support service is subjected to GST @ 18% falling under the category of financial services. Let us elaborate with an Example: Transaction Amount: – ₹ 10,000 online MDR payable by Merchant to Acquirer – 1.80% plus GST Interchange Rate to issuing bank: – 1.60% on MASTER Pre-paid Card for online transaction Interchange Fee Sharing- 85%: 15% between Applicant TMW and Issuing Bank

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tween Business Correspondent (BC) and the Issuing bank in the agreed ratio as in this case it is 85:15 (85% by BC and 15% by Issuing bank). The BC again pays GST on the income value of ₹ 115.26 (85% of ₹ 135.60) @18% raised in favor of Issuing bank. In this case Merchant Discount Rate amount (MDR) was collected from the merchant establishment by the Acquiring Bank (RS.180) and GST is paid on the full MDR of ₹ 180 @ 18% by Acquiring Bank i.e. ₹ 32.40. Now the share of Issuing Bank in the form interchange fee of ₹ 160 also taxed @ 18% thou it is a part of ₹ 180 which had already suffered GST. Here the basic concept of GST is violated as the seamless flow of credit is obstructed. Acquiring bank will not get any credit of the amount of GST paid by the Issuing bank, as the issuing bank is paying GST on Reverse Charge Mechanism (RCM). In this whole simple process of digital payment of MDR of ₹ 180, Gov. collect tax as under at different levels. CGST

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cquiring bank, so Acquiring bank can take a credit of 28.80 against his outward supply liability of ₹ 32.40, resulting in net outflow of ₹ 3.60 MASTER/VISA CASE ₹ 32.40 GST (18% of 180) is charged to the Merchant Establishment by the Acquiring bank. Issuing bank will pay GST of ₹ 24.40 in Reverse charge on ₹ 160 and Acquiring bank will not be able to take a credit of ₹ 24.40 against his outward supply liability of ₹ 32.40, resulting in outflow of ₹ 32.40. ANNEXURE-B 3) [Statement containing the applicant's interpretation of law and/or facts, as the case may be, in respect of the aforesaid question(s) (i.e. applicant's view point and submissions on issues on which the advance ruling is sought) Submission: Section 2(30) of Central Goods and Services Act defines Composite supply as "Composite Supply" means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or bot

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the predominant component in the total price of the supply nor guided by the predominant material involved. The test of predominance must be gathered from the 'predominant object' for which the recipient approached the supplier; The method of billing, assignment of separate prices etc. may not be relevant. In other words, whether separate prices are charged for each of the components of supply or a single consolidated price charged, the identity of each of the components of supply must be unmistakably distinct in the arrangement. In the erstwhile service tax Era, it is a composite service and should not be broken into separate service. The role of the issuing bank in the service provided by the acquiring bank to the merchant establishment is part of a single composite service falling under clause (iii) of Section 65 (33a) and it cannot be broken up into its components and classified as separate service for classification. This is a well-accepted principle of classification. Th

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us supply of services from Merchant Establishment/ Acquiring bank/ Issuing bank/ network provided to the card holder is a single Composite Supply. These supply are not provided as independent activities but are the means for successful provision of the principal supply, namely, the swiping of the card for the purchase of goods or services. The contention that a single composite supply should not be broken into its components and classified as separate supply is a well-accepted principle. Therefore, it is a settled position of law that interchange fee earned by the issuing bank' forming integral part of supply of service of 'acquiring bank' to the merchant establishment, and therefore should not be faxed again with 18% GST. In the present circumstances, the modus operadi goes against the basic principles of GST of seamless flow of credit and double taxation on the same transaction. In this instant case Acquiring bank is paying GST to Government which he is collected from mer

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97 and Section 98 of the GST Act. As per section 95, the term 'advance ruling' means a decision provided by this authority to the applicant on matters or questions specified in subsection 2 of Section 97, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. For the sake of better understanding Section 97 is reproduced as below: Section 97: (1) an applicant desirous of obtaining an advance ruling under this Chapter may make an application in such form and manner and accompanied by such fee as may be prescribed, stating the question on which the advance ruling is sought. (2) The question on which the advance ruling is sought under this Act, shall be in respect of,- (a) classification of any goods or services or both; (b) applicability of a notification issued under the provisions of this Act; (c) determination of time and value of supply of goods or services or both; (d) admissibility of input tax credit of tax pai

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Rate is the rate charged by Acquiring bank from Merchant on every card transaction. This MDR is as per agreement between Acquiring Bank and Merchant Establishment. From a perusal of transaction it is clear that applicant is neither a supplier nor a recipient and the questions raised is not in relation to the supply of goods or services or both, being undertaken or proposed to be undertaken by the applicant and as such by virtue of section 95 the applicant cannot make an application before this authority. With respect to question No. 2 above, we clearly find that the question is not on matters or questions specified in Section 97(2) of the Act and as such is inadmissible under section 97 (2) of the Act. Hence in view of the above discussions we find that the present application seeking ruling on questions stated hereinabove is not maintainable and liable for rejection. 06. In view of the extensive deliberations as held hereinabove, we pass an order as follows ORDER (Under section 98 of

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GST – Detention order – non-compliance of the mandate under the provisions of Section 129(4) of the Act – The Proper Officer realizing the lacuna, has proceeded to pass the rectification order after t

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Goods and Services Tax – GST – By: – Mr. M. GOVINDARAJAN – Dated:- 15-1-2019 – Vide Notification No. 74/2018-Central Tax, dated 31.12.2018 the Central Government made the Central Goods and Services Tax (Fourteenth Amendment) Rules, 2018 further to amend the Central Goods and Services Tax Rules, 2017. These rules, unless otherwise stipulated, came into effect from 31.12.2018. Grant of registration to persons required to deduct tax at source or to collect tax at source Rule 12 provides the procedure for grant of registration to the persons required to deduct tax at source or to collect tax at source. The amendment inserted Rule 12(1A) after Rule 12(1). The newly inserted rule provides that a person applying for registration to collect tax in accordance with the provisions of section 52, in a State or Union territory where he does not have a physical presence, shall mention the name of the State or Union territory in PART A of the application in FORM GST REG-07 and mention the name of th

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issuance of an electronic invoice in accordance with the provisions of the Information Technology Act, 2000. Bill of supply The amendment inserted third proviso to Rule 46. The newly inserted proviso provides that the signature or digital signature of- the supplier; or his authorized representative shall not be required in the case of issuance of an electronic invoice in accordance with the provisions of the Information Technology Act, 2000. Consolidated tax invoice Rule 54(2) provides that where the supplier of taxable service is an insurer or a banking company or a financial institution, including a non-banking financial company, the said supplier may issue a consolidated tax invoice or any other document in lieu thereof, by whatever name called for the supply of services made during a month at the end of the month, whether issued or made available, physically or electronically whether or not serially numbered, and whether or not containing the address of the recipient of taxable ser

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d in the case of issuance of ticket in accordance with the provisions of the Information Technology Act, 2000. Adjusted total turnover Rule 89(5) provides that in the case of refund on account of inverted duty structure, refund of input tax credit shall be granted as per the following formula- Maximum Refund Amount = {(Turnover of inverted rated supply of goods and services) x Net ITC ÷ Adjusted Total Turnover} – tax payable on such inverted rated supply of goods and services. Explanation:- For the purposes of this sub-rule, the expressions – (a) Net ITC shall mean input tax credit availed on inputs during the relevant period other than the input tax credit availed for which refund is claimed under sub-rules (4A) or (4B) or both; and (b) Adjusted Total turnover shall have the same meaning as assigned to it in sub-rule (4). The amendment substituted clause (b) of Explanation as – Adjusted Total turnover and relevant period shall have the same meaning as assigned to them in sub-ru

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rted Rule 109B. The newly inserted Rule 109B(1) provides that where the Revisional Authority decides to pass an order in revision under section 108 which is likely to affect the person adversely, the Revisional Authority shall serve on him a notice in FORM GST RVN-01 and shall give him a reasonable opportunity of being heard. Rule 109B(2) provides that the Revisional Authority shall, along with its order under sub-section (1) of section 108, issue a summary of the order in FORM GST APL-04 clearly indicating the final amount of demand confirmed. Changes in E-way Bill The amendment substituted Explanation 1 to rule 138(1). The newly substituted Explanation 1 provides defines the term handicrafts . The term handicrafts is defined as having the meaning as assigned to it in the Government of India, Ministry of Finance, notification No. 56/2018-Central Tax, dated the 23rd October, 2018, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1

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urnishing of the said information in PART A of FORM GST EWB 01, subject to such conditions and restrictions as may be specified by him. The second proviso to this Rule provides that no order rejecting the request of such person to furnish the information in PART A of FORM GST EWB 01 under the first proviso shall be passed without affording the said person a reasonable opportunity of being heard. The third proviso to this rule provides that the permission granted or rejected by the Commissioner of State tax or Commissioner of Union territory tax shall be deemed to be granted or, as the case may be, rejected by the Commissioner. The explanation to this Rule defines the term Commissioner as the jurisdictional Commissioner in respect of the persons specified in clauses (a) and (b). Forms The amendment inserted the following new form- Form GST RVN – 01 – Notice to a person in case of revision. The amendment substituted the following existing forms for new forms- Form GST RFD – 1- Applicatio

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GST – 01/2019 – Dated:- 15-1-2019 – GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue) [CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS] Notification No. 1/2019-Central Tax New Delhi, the 15th January, 2019 G.S.R. 33 (E).- In exercise of the powers conferred by section 147 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby makes the following amendment in the notification of the Government of India in the Ministry of Finance, Department of Revenue No. 48/2017-Central Tax dated the 18th October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R 1305(E) dated the 18th October, 2017, namely:- In

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2019 (1) TMI 771 – CESTAT NEW DELHI – TMI – CENVAT Credit – input services – Maintenance Charges – it is alleged that the said maintenance service is not used by the appellant in or in relation to manufacture of final products or clearance of final products up to place of removal – Held that:- It is the admitted fact that the manufacturing activity of appellant is carried from the premises as are taken on rent. It is apparent from record that the impugned maintenance charges are the part of lease/ rent charges. M/s AKVN i.e. the leaser is also charging the service charges in their lease bills raised for lease amount and maintenance amount. Though the maintenance is for roads, street lights, drainage, etc. i.e. for facilities being provided beyond the manufacturing/ factory premises of appellant but the simultaneous fact is that such services are charged on the basis of per square meter of business premises occupied by the appellant – The lease/ rent charge are the eligible inputs.
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service tax ₹ 5,84,363/- paid on Maintenance Charges recovered by M/s M.P. Audyogic Kendra Vikas Nigam (AKVN) Indore Ltd. who has leased the plot to appellant. The said maintenance service is not used by the appellant in or in relation to manufacture of final products or clearance of final products up to place of removal. Hence, vide SCN dated 07.06.2017, department alleged that cenvat credit availed by the appellant on said service appeared as not admissible. Accordingly, appellant was asked to pay/ reverse the said wrongly availed credit of ₹ 5,84,363/- (Rs.2,11,201/- + ₹ 3,73,162/-) alongwith interest and applicable penalty. The said demand has been confirmed vide Order-in-Original dated 25.04.2018. Commissioner(Appeals) also vide Order-in-Appeal dated 27.07.2018 holding that maintenance charge is not specifically mentioned in the main parts as well as the inclusive part of the definition of Input Service. The appellant is therefore before this Tribunal. 2. It is s

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ri.-Mum.). 3. From the argument of both the parties, the narrow compass of adjudication appears to be whether Maintenance Charges for common area of a business premises taken on rent is eligible input service? 4. As per definition of Input Service, applicable to the impugned period are input service used by a manufacturer, those which are used directly or indirectly in or in relation to the manufacture of final products and clearance of final products upto the place of removal and also includes services which are used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation o

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GST – States – FIN/REV-3/GST/1/08(Pt-1)(Vol.1)/18 – Dated:- 15-1-2019 – GOVERNMENT OF NAGALAND FINANCE DEPARTMENT (REVENUE BRANCH) F.NO. FIN/REV-3/GST/1/08(Pt-1)(Vol.1)/18 Dated: 15th January, 2019 NOTIFICATION In exercise of the powers conferred by section 147 of the Nagaland Goods and Services Tax Act, 2017 (4 of 2017), the State Government, on the recommendations of the Council, hereby makes the following amendment in the notification of the Government of Nagaland, Finance Department (Revenue Branch), F.NO.FIN/REV-3/GST/1/08 (Pt-1)/52 dated the 26th October, 2017, namely:- In the said notification, (i) In the Table, the column number (2) against S. No. 1, after the entry, the following provision shall be inserted, namely : – "Provi

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GST – Started By: – swamynathan pitchai – Dated:- 14-1-2019 Last Replied Date:- 14-1-2019 – Dear sir A is the manufacturer at GJ.B is the End user at TN ordered a product X on A. B intend to transport X from A's place at GJ to B's project site at MH.Trading firm C (Only GST registered – sole proprietorship firm) @ KA intend to take this order from B. Since C does not have vehicles C wants to utilise the service of GTA. Hence C introduces a GTA D and offload the order. C is the authorised agent of D to promote their business formally entered an agreement.C receives the order from B and offload to DD will raise the bill to C and C will raise the bill to B.Waybill would be issued to D by A & B & Consignment not would be issued

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Goods and Services Tax – GST – By: – Ganeshan Kalyani – Dated:- 14-1-2019 – New Cess in the State of Kerala: Revenue Mobilization for Natural Calamities: GST Council approved Levy of Cess on Intra-State Supply of Goods and Services within the State of Kerala at a rate not exceeding 1% for a period not exceeding 2 years. Composition Scheme: Increase in Turnover Limit: The limit of Annual Turnover in the preceding Financial Year for availing Composition Scheme for Goods shall be increased from ₹ 1 crore to ₹ 1.5 crore. This change will be made operational from the 1st of April, 2019. Compliance Simplification: The compliance under Composition Scheme shall be simplified as now they would need to file one Annual Return but Payment

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position Scheme to Residential Segment and tax on lotteries. A seven Member Group of Ministers shall be constituted to examine the proposal of giving a Composition Scheme to Boost the Residential Segment of the Real Estate Sector. And a Group of Ministers shall be constituted to examine the GST Rate Structure on Lotteries. Threshold limit for registration: Higher Exemption Threshold Limit for Supplier of Goods: There would be two threshold Limits for exemption from Registration and Payment of GST for the suppliers of Goods i.e. ₹ 40 lakhs and ₹ 20 lakhs. States would have an option to decide about one of the limits within a weeks time. The Threshold for Registration for Service Providers would continue to be ₹ 20 lakhs and

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2019 (1) TMI 770 – CESTAT CHENNAI – TMI – Clandestine removal – demand based on data / computer print outs retrieved from the computers which was used in head office / factory etc. – Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence – Section 36B of the Central Excise Act, 1944 – Held that:- The mahazars dated 11.9.2007 and 17.9.2007 prepared at the appellant premises and office of DGCEI respectively would show that employees of the appellant viz. Ashok Kumar, Anil Kumar, Selvaraj were present. They have endorsed signature in the mahazar. The question is whether such endorsement of signature would fulfill the condition required in sub-section (4) of Section 36B. Any statement / print out taken out of the computer would be admissible in evidence only if it is supported by a certificate as required under sub-section (4) of Section 36B. There is no such certificate stating that it is prepared as per the requirement of Section

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be admissible as evidence.
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The statements cannot be considered as standalone documents to prove the allegations in the show cause notice. The evidence put forth is too flimsy to establish a serious charge of clandestine manufacture and clandestine clearance of goods. Though the department need not establish clandestine clearance with mathematical precision, the evidence should establish a probability of such clandestine clearance. On appreciating the facts of the present case, the Commissioner himself having found that the main evidence relied for quantification of duty i.e. computer print outs being not admissible in evidence, the demand could not have been confirmed.
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The department has miserably failed to establish the allegations raised in the show cause notice – appeal allowed – decided in favor of appellant. – Appeal Nos. E/342 & 343/2010 – Final Order No. 40059-40060/2019 – Dated:- 14-1-2019 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar,

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ence gathered, show cause notice was issued to the appellant proposing to demand excise duty of ₹ 68,77,758/- for the period 2004 – 05 to 2007 – 08 (upto August 2007) along with interest and also for imposing penalties. The amount already paid by the appellant was sought to be appropriated. After due process of law, the Commissioner vide the order impugned herein confirmed the demand along with interest and also imposed equal penalty besides separate penalty on the Director of the company. Aggrieved, the appellants are now before the Tribunal. 2. On behalf of the appellant, ld. counsel Shri M. Karthikeyan appeared and argued the matter. He submitted that the evidence relied upon by the department is the statements recorded during investigation. Though computer documents were recovered at the time of search, the procedure prescribed under Section 36B of Central Excise Act, 1944 was not complied by the department and the Commissioner himself after analyzing the provision has held t

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hri Ashok Kumar and Shri V Vasant Selvaraj who have been permitted to cross examination have retracted their depositions. Shri V Arun from whom statement was recorded and relied upon in the impugned proceedings was not made available for cross examination also. The three buyers from whom statements have been recorded and relied upon in this proceedings have filed affidavits wherein they have deposed that they had no knowledge about the computer ledger extracts shown to them based on which confirmation was taken by the investigation forcibly and they disowned the entire depositions made in such statements and they had purchased furniture s from the appellant only under the cover of invoices. The following decisions are relied upon in support of their contention based on Section 9D. a) Jindal Drugs Pvt. Ltd Vs. Union of India, reported in 2016 (340) E.L.T. 67 (P & H). b) Shiv Shakthi Earthmovers – 2018-TIOL-258-Ces-Chd c) Ambica International Vs. UOI – 2016 TIOL 1238 HC P&H d) Vi

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ally permissible evidences and they lack evidentiary value as held by the adjudicating authority. The statements recorded and relied upon are not admissible as evidence in the absence of examination in terms of Section 9D. The other documents relied upon by the department are also not capable of proving the charge of clandestine manufacture. It has been time and again reiterated by various judicial pronouncements that the charge of clandestine removal has to be proved with cogent evidences and the demand cannot be confirmed on the basis of presumptions and assumptions. Hence, it is humbly prayed that the entire demand of duty with consequential interest and penalties (both on the appellant and the co-appellant) may be set aside with consequential relief. 3. The ld. AR Shri B. Balamurugan supported the findings in the impugned order. He adverted to para 72 of the impugned order and submitted that though the Commissioner has recorded that it would be difficult to admit the computer print

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. Though department has taken reasonable efforts to acquire presence of the witness before the investigating authority, the witness has not appeared. On such circumstance, the statement given by the witness has to be accepted in toto. The statement of Shri V. Arun would throw light on the contents of the computer print outs which evidences the charges alleged in show cause notice. The file title II Stock 2005 – 06 recovered from factory which is Annexure B13 contains reports showing alleged unaccounted clearances for the year 2005 – 06 and 2006 – 07. The details contained in such documents tallied with the details contained in the print outs which is Annexure 20 and relevant for the year 2005 – 06 which is the basis for quantification of demand for such year. So also V.G. Sashankan who is the Manager (Stores & Dispatch) has stated that he has maintained two private diaries for cash receipts and payments. It is deposed by him that the signature of the receipt of the amount is that o

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computers and seized under mahazar dated 17.9.2007. 5.2 Section 36B of the Central Excise Act, 1944 envisages conditions for admissibility of such date retrieved from computer. The said provision is reproduced as under:- SECTION[36B. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. – (1) Notwithstanding anything contained in any other law for the time being in force, – (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a computer print out ), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and

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ting properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether – (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more c

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the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, – (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it

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er sub-section (4) of Section 36B. There is no such certificate stating that it is prepared as per the requirement of Section 36B. Further, though all the persons who have endorsed signature in the mahazar dated 17.9.2007 at the office of DGCEI were present at the appellant s premises on 11.9.2007 at the time of search, instead of retrieving the data from the appellant premises itself, the computers as a whole have been seized and taken to the office of DGCEI. Further, on 27.9.2007, 27.8.2008, 26.9.2007 also print outs were taken. Para 45 of show cause notice says that the quantification of duty has been based on the print outs from the computers seized as per mahazar from factory and Head office. Then it becomes highly necessary on the part of department to establish that the provisions of Section 36B has been complied. 5.4 In para 72 of the impugned order, the Commissioner has addressed this issue of the requirement to comply with the provisions of Section 36B of the Act ibid and has

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support the computer print outs and therefore the evidence of clandestine manufacture and clearance is established. The statements of persons have to be subjected to examination-in-chief as well as cross-examination as per the provision under section 9D of Act in order to be admissible as evidence. This principle is settled in the decisions relied upon by the ld. counsel namely Jindal Drugs Pvt. Ltd. (supra), Shiv Shakthi Earthmovers (supra) and Ambica International (supra). It is also seen that Shri V.Arun who is said to have been accountant of the appellant-company did not appear for cross-examination. Though it is alleged that V. Arun was maintaining the accounts, his statement or certificate as to feeding of the data in the computer has not been obtained by the department. It is brought out that the witnesses namely Shri V.G. Sashankan, Shri Ashok Kumar and Shri V. Vasant Selvaraj whose cross-examination was conducted have retracted from their depositions. These are the persons all

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M/s. POPULAR VEHICLES AND SERVICES LIMITED Versus UNION OF INDIA, GOODS AND SERVICE TAX NETWORK (GSTN) , GOODS AND SERVICE TAX COUNCIL, THE DEPUTY COMMISSIONER, THE NODAL OFFICER FOR STATE GST AND THE COMMISSIONER, DEPARTMENT OF KERALA STATE GOODS AND SERVICE TAX – 2019 (1) TMI 1079 – KERALA HIGH COURT – TMI – Acceptance of manual filing of revised FORM GST TRAN-I and the resultant FORM GST TRAN-2 – error in electronic filing due to technical reasons – Held that:- The fourth respondent is directed to accept FORM GST TRAN-I and FORM GST TRAN-2 from the petitioner manually. The petitioner shall submit FORM GST TRAN-I and FORM GST TRAN-2 within one week from the date of receipt of a copy of this judgment. If the petitioner submits FORM GST TRA

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rror in filing the same on account of the technical reasons. 2. The respondents submitted that they have no objection in allowing the petitioner's request in view of the fact that it was occurred on account of the technical reasons. 3. The petitioner submits that they would submit FORM GST TRAN-I and FORM GST TRAN-2 before the fourth respondent manually and the fourth respondent may be directed to transmit it into electronic credit ledger of the petitioner. In view of the above, the fourth respondent is directed to accept FORM GST TRAN-I and FORM GST TRAN-2 from the petitioner manually. The petitioner shall submit FORM GST TRAN-I and FORM GST TRAN-2 within one week from the date of receipt of a copy of this judgment. If the petitioner s

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2019 (1) TMI 1241 – CESTAT NEW DELHI – TMI – Refund of CENVAT Credit – export of output service – rejection on the ground that the applicant /appellant has failed to fulfil the condition of the Notification No.27/2012 dated 18.06.2012, for the reason that the details of the Cenvat Credit were not appearing in the ST-3 Return for the period October, 2015 to December 2015 and no concrete evidence was submitted with the claim that cenvat credit is available to them – Held that:- What is to be determined to ascertain the eligibility of refund, is the balance of credit lying with the assessee, as on the last date of quarter as well as on the date of filing of the refund. To check the balance lying with the assessee the relevant documents are the accounts of the assessee in the form of balance sheets, bills & invoices. Though whatever balance is being shown in the accounts of the assessee has to find mention in the ST-3 but due to the said documents being the basis of ST-3 as far as the amo

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– The mistake in ST-3 return was a rectifiable mistake – This Tribunal in the case of Serco Global Services Pvt. Ltd. vs. Commissioner of Central Excise, Delhi-III [2015 (6) TMI 270 – CESTAT NEW DELHI] has held that even if ST-3 return for a particular period do not show any unutilized balance of cenvat credit, the refund still is to be granted on the basis of cenvat credit available in cenvat credit account and not on the basis of closing balance of cenvat credit shown in ST-3 return.
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The findings of Commissioner (Appeals) are held to lack the appreciation of all the documents as were relied upon by the appellant and based whereupon revision of ST-3 return inadvertently showing balance as nil, was proposed – appeal allowed – decided in favor of appellant. – Service Tax Appeal No.ST/51520/2018-ST [SM] – FINAL ORDER NO. 50067/2019 – Dated:- 14-1-2019 – MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Manish Saharan, Advocates Present for the Respondent: Mr. P.R.

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al of rejection was confirmed by the Order in Original No.06 dated 13.09.2016 and appeal thereof was rejected. Being aggrieved, the appellant is before this Tribunal. 3. I have heard Mr. Manish Saharan, ld. Advocate for the appellant and Mr. P. Gupta, ld. D.R. for the Department. 4. It is submitted on behalf of the appellant that the only ground of rejection of the claim, as is apparent from order in appeal is the alleged non-fulfilment of condition (g) of the Notification No.27/2012 dated 18.06.2012 which requires that the amount of refund claim shall not be more than the amount lying in balance at the end of quarter for which refund claim is being made or at the time of filing of the refund claim, whichever is less. It is submitted that though inadvertently in the impugned ST-3, the balance was shown Nil . But it was highly inappropriate on the part of the adjudicating authorities below to ignore the relevant documents as were submitted by the appellant to show the existing balance i

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d. 5. Ld. D.R. while rebutting these arguments has submitted that only document to check the balance available with the assessee at the end of quarter is the ST-3 return filed by the assessee. Since the assessee /appellant herein admittedly had filed the ST-3 return showing Nil balance, the Commissioner (Appeals) has rightly formed an opinion about non-fulfillment of condition (g) of Notification No.27/2012. It is submitted that though the appellant herein requested to the Range Superintendent about filing a revised ST-3 return but as per the statutory provision, the return can be modified only within a period of 90 days that too electronically. None, admittedly, was the case of the appellant. The impugned modification was proposed after a gap of 8 months. The Commission (Appeals) has rightly adjudicated the controversy in the given circumstances. Appeal is accordingly, prayed to be dismissed. 6. After hearing both the parties and perusing the entire record, I find that it is an admitt

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ocuments are the accounts of the assessee in the form of balance sheets, bills & invoices. Though whatever balance is being shown in the accounts of the assessee has to find mention in the ST-3 but due to the said documents being the basis of ST-3 as far as the amounts shown therein as balance is concerned, I am of the opinion that ST-3 cannot be the only reliable record to verify the balance cenvat credit at the end of the quarter, as is held by the adjudicating authority below. 8. It is apparent from the record that the appellant herein, after it came to his notice that ST-3 return for the impugned period is showing Nil balance, had requested the Department vide their letter dated 28.12.2016 and subsequently vide letter dated 16.01.2017 to permit the submission of revised ST-3 return for the impugned period so as to rectify the mistake of cenvat credit figures, but the same has been denied by the Department. Though reliance upon rule 7 B of Service Tax Rules has been placed. Acco

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verpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. 9. In another decision in the case of Salem Advocate Bar Assn. v. Union of In

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ainly on the ground of it being proposed beyond the stipulated period. So has been done by Commissioner (Appeals) while endorsing this finding. 11. Coming back to the issue of the ST-3 return as the sole document to verify the balance, I opine that in view of above discussion about Rule 7 B, it becomes clear that mistake in ST-3 return was a rectifiable mistake. Tribunal, Bangalore in Ceolric Services vs. CST, Bangalore reported in 2011 (23) STR 369 has held that the ST-3 returns are rectifiable and revised return should not have been discarded as nonest. The Tribunal further held as follows:- In view of the provision of Rule 7C of the Rules, the revised return cannot be ignored simply on the ground that the same has been filed after a period provided under Rule 7B of the Rules. In these circumstances, we find that the matter requires re-consideration by the adjudicating authority in view of the provision of Rule 7C of the Rules. The impugned order is set aside, after waiving pre-depos

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2019 (2) TMI 208 – MADHYA PRADESH HIGH COURT – TMI – Rejection of refund claim of service tax – construction of Government buildings – refund arising as a result of restoration of exemption benefit of N/N/. 12/2012 and 25/2012 dated 20/06/2016 – Prospective effect or retrospective effect – Rule 173-S of the Central Excise Rules, 1944.
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Whether an amount paid under the mistaken belief that the service is liable to service tax when the same is actually exempt, be considered as service tax paid? – Held that:- Evidently, the notification No. 12/2012 & 25/2012 ceased to exist w.e.f. 01/04/2015. The exemption was revived by notification dated 01/03/2016. But since it was prospective in effect, the appellant was not entitled for any exemption, which the appellant was aware of and with open mind and eyes deposited the service tax due with interest.
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Evidently, the works contract undertaken by the appellant during said period was not exempted. Therefore, the question that, the servic

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: Shri Praveen Surange, learned counsel ORDER This appeal under Section 35G(1) of the Central Excise Act, 1944 is directed against the final order No. A/51822/2018-SM(BR) dated 14/05/2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, whereby, the Tribunal has upheld the rejection of application for refund claim of ₹ 25,49,317/-, by the Assistant Commissioner, Service Tax, Division Gwalior by his order dated 15/06/2017. The appellant holds service tax registration and paying service tax under the category of Works Contract Services . During the period 01/03/2015 to 30/09/2015 the appellant had paid ₹ 25,49,317/- towards Service Tax and interest of ₹ 57,716/- on the following work contracts:- (i) Construction of EWS houses for Special Area Development Authority (A Government Authority) vide work order No.02/SADA/ 2014-15, Agreement No. 04 dated 22.12.2014. (ii) Construction of LIG houses (Affordable Housing) for Indore Development Authority vide Fou

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4/2015, the appellant was availing exemption for civil works related to State and Union Government establishments used for administrative purpose. The exemption was availed under notification No. 12/2012 and 25/2012 dated 20/06/2016. As the notification dated 20/06/2012 was withdrawn w.e.f. 01/04/2015, the exemption from service tax on the nature of work the appellant engaged in was not available; therefore, he paid service tax with interest for the period 01/03/2015 to 30/09/2015. The exemption was later on restored vide notification No. 9/2016-ST dated 01/03/2016 vide Entry Sr. No. 12A(a) for the services provided under a contract which has been entered into prior to 01/03/2015 and whereon appropriate stamp duty, where applicable, has been paid prior to that date. The exemption was restored till 31/03/2020. However, as the effect of exemption vide executive order was prospective; the legislature, vide Finance Bill 2016 restored the exemption from retrospective effect by incorporating

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or other persons specified in Explanation 1 to clause (44) of section 65B of the said Act, under a contract entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date. (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub-section (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President. The appellant invoking Rule 173-S of the Central Excise Rules, 1944 applied for refund of ₹ 25,49,317/- vide Form-R on 22/03/2017, received by the Department on 24/03/2017. The Authority concern (Assistant Commissioner) on receiving the application issued show cause notice on 01/05/2017 calling upon the appellant as to why the applicatio

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an 'Service Provider', the word 'buyer' shall mean 'Service receiver'. (Except Under Section 12 B) and 'goods', shall mean 'Service' whenever they appear Under the Section of Central Excise Act, 1944 and circular/ Clarification, issued in this regard, which will be quoted referred or discussed in this Show Cause Notice. Further, the word 'Act' appearing in Section 12B of the Central Excise Act, 1944 shall mean 'Finance Act, 1944', and the word 'buyer' shall mean 'ultimate buyer of goods which are manufactured using taxable services'. 2(b) Sub Section (I) Section 11B of the Central Excise Act, 1944 provides that any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall

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r person then the amount shall be paid to such buyer. Explanation annexed to Section 11B defined the 'relevant date' for the purpose of reckoning time period within which refund claim is to be filed. This date is the date of purchase of 'goods' in the case of claimed is other than the 'manufacture'. 3. And whereas the refund claim was received on 24.03.2017 therefore the service tax and interest deposited during the period of 01/03/2015 to 30/09/2015 through challans has been found time barred from the statutory time-limit defined under section 11B of the Central Excise Act, 1944 wherein it is clearly mentioned that refund claim should be submitted within a period of one year of the relevant date. 4. In view of the grounds mentioned above, the claim for refund of Service Tax filed by the Noticee on 24.03.2017 for ₹ 25,49,317/- does not appear to be admissible to them since refund claim of time barred Under Section 11-B of the Central Excise Act, 1944. 5. N

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nd has to be granted. The noticee has complied all the terms and conditions as stipulated in the Notification. Noticee has paid the service tax on the aforesaid tender/ work order and because of withdrawn of exemption by the government w.e.f. 01.03.2015 there was delay in payment of service tax and the noticee has paid the interest of ₹ 57716/- and has applied for refund of the said amount of service tax with interest. And that the notification for restoration of exemption was issued in the month of March 2016 i.e. on 01.03.2016 and the noticee has filed the refund claim on 24.03.2017 within a period of one year from the month in which the exemption notification has been restored. It was further stated in reply that there was ambiguity in the exemption and the refund, the noticee was not aware hence noticee most humbly and respectfully requested that kindly condone the delay in filing of the refund claim if any and sanction at the earliest in the interest of justice. Since, the n

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. It was urged that even if it is then the period of limitation prescribed being one year and since notification for restoration of exemption was issued on 01/03/2016 and the appellant had filed the refund claim on 24/03/2017, the same should have been allowed. The appeal was, however, dismissed on 28/09/2017 by Commissioner (Appeals), on the findings:- 7. To put the legal position in proper prospective, I may mention that initially the mega exemption notification No. 25/2012-ST granted exemption interalia to certain activities under taken for the government. The said notification was amended vide notification No.06/2015- ST dated 01.03.2015 where by the said exemption for the Govt work was withdrawn. Later, vide notification No. 9/2016-ST dated 01.03.2016 the said exemption was restored. The notification No. 9/2016-ST is prospective in nature and it does not grant retrospective exemption to the activities undertaken prior to 01.03.2016 as wrongly contended by the appellant. The retros

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ent; or (iii) an art or cultural establishment; (c) a residential complex predominantly meant for self-use or for the use of their employees or other persons specified in Explanation 1 to clause (44) of section 65B of the said Act, under a contract entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date. (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub-section (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President. 8. It can be seen that section 102 was a self-contained provision for refund of any tax paid during the impugned period. The said section also provided the time limit of 06 months for filing the refund cla

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of the Finance Bill 2016 prescribed specific period of limitation of six months from the date of the assent of the President (which being 14.05.2016) for refund. And that the appellant applied for refund on 24/03/2017, i.e., with a delay of 131 days, dismissed the appeal observing:- 8. Having carefully heard the submissions of both the sides, I find that there is no dispute on the facts. The retrospective exemption having been granted by the legislative, there was a clause for refund of the tax paid during the intervening period subject to the condition that such refund claim are filed within the period of six months. Admittedly, the refund stands filed beyond the said period, thus, contravening the condition. There is no power with the Central Excise Authorities to legislate or to travel beyond the statutory limitations provided by the legislature. Similarly, neither the Tribunal has such powers to go beyond the provisions of the Act. The issue is well settled. Reference can be made t

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m was beyond the control of the appellant inasmuch as the construction service covered in the refund claim is actually exempt of service tax was itself disputed by the authorities as the same was under investigation? (C) Whether service tax paid mistakenly under construction service although actually exempt, is payment made without authority of law? As regard to substantial questions of law as proposed at 'A', we are not commended to any cogent material that the amount of ₹ 25,49,317/- towards service tax and the penalty thereof ₹ 57,716/- for the period 01/03/2015 to 30/09/2015 was deposited under misconception. Evidently, the works contract undertaken by the appellant during said period was not exempted. Therefore, the question that, the service tax and interest was paid under misconception does not arise, as would give rise for the proposed substantial question. As regard to substantial question of law at 'B', the said question in given facts of present a

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question at 'B' also does not arise for consideration. As regard to substantial question 'C', the contention that the service tax was paid mistakenly is also not borne out from the facts. The decisions relied upon by the appellant in Commr. Of C.Ex. (Appeals), Bangalore Vs. KVR Construction [Writ Appeal No. 2992-2993 of 2009 (Karnataka High Court)], CC&ST Vs. H.K. Dave Ltd. [(2015) 38 STR 77], Wazir Singh Swaran Singh Consignment Stockist (P) Ltd. Vs. CCE [2010 (18) STR 468], CCE Vs. Crompton Greaves Ltd. [(2011) 22 STR 380], CCE Vs. Suresh C. Nayi [(2011) 24 STR 123], Jubilant Enterprises P. Ltd. Vs. CCE [(2014) 35 STR 430], Porcelain Electrical Mfg. Co. Vs. CCE, New Delhi [1998 (98) ELT 583 (SC)], Collector, Land Acquisition & Anr. Vs. Mst. Katiji & others [(1987) 62 CTR (SC)(Syn)23], Bharat Auto Center Vs. CIT [2006 (282) ITR 366 All.], CCE Vs. KVR Construction [(2012) 26 STR 195 (Kar.)] are of no assistance in present fact situation as these judgments tu

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2019 (2) TMI 948 – CESTAT NEW DELHI – TMI – Refund of service tax – export of services – denial on the ground that the details of the Cenvat Credit were not appearing in the ST-3 Return for the period January, 2016 to March, 2016 and no concrete evidence was submitted with the claim that cenvat credit is available to them – N/N. 27/2012 dated 18.06.2012 – Held that:- The bare perusal of this condition makes it clear that what is to be determined to ascertain the eligibility of refund, is the balance of credit lying with the assessee, as on the last date of quarter as well as on the date of filing of the refund. To check the balance lying with the assessee the relevant documents are the accounts of the assessee in the form of balance sheets, bills & invoices. Though whatever balance is being shown in the accounts of the assessee has to find mention in the ST-3 but due to the said documents being the basis of ST-3 as far as the amounts shown therein as balance is concerned, ST-3 cannot

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(JUDICIAL) Present for the Appellant: Mr. Manish Saharan, Advocates Present for the Respondent: Mr. P.R. Gupta, D.R. ORDER PER: RACHNA GUPTA Present appeal has been directed against order in appeal No. IND-EXCUS -000-APP-757-17-18 dated 26.03.2018 passed by the Commissioner (Appeals), CGST & Central Excise, Indore. 2. The facts relevant for the adjudication are that the appellant who provides an output service, which was exported without payment of service tax. Since they were entitled for availing cenvat credit that the appellant filed a refund claim for ₹ 7,36,702/- vide their application dated 18.06.2012 However, vide show cause notice No.2611 dated 12.05.2017 the rejection of the said refund claim was proposed on the ground that the applicant /appellant has failed to fulfil the condition of the Notification No.27/2012 dated 18.06.2012, for the reason that the details of the Cenvat Credit were not appearing in the ST-3 Return for the period January, 2016 to March, 2016 an

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rities below to ignore the relevant documents as were submitted by the appellant to show the existing balance in accordance whereof the impugned refund was filed. Ld. Counsel has impressed upon that while replying the show cause notice itself, a Certificate from the Chartered Accountant certifying the claim of accumulated cenvat credit of ₹ 7,36,702/- was furnished. Alongwith the said certificate all the requisite declarations and documents as that of invoices were also submitted still the authority below has emphasized merely on ST-3 returns despite the fact that request for submitting for the correct returns was placed before the Range Superintendent rather twice which were not considered. Ld. Counsel has relied upon the following case laws to impress upon that refund claim cannot be rejected on the basis of mistakes in ST-3 returns: 1. Broadcom India Research Pvt. Ltd. vs. CST, Bangalore reported in 2015 – TIOL-2870-CESTAT-Bang. 2. Serco Global Services Pvt. Ltd. reported in 2

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to be dismissed. 6. After hearing both the parties and perusing the entire record, I find that it is an admitted fact that the appellant is providing an output service, which was exported but appellant was entitled to credit, due to which, the impugned refund was filed by the appellant. I also find that the adjudicating authority below have rejected the refund claim holding that one of the conditions of Notification No.27/2012 has not been complied upon. The said condition No. (g) is one among various conditions (a) to (i) as provided in the Notification and it reads as under:- (g) the amount of refund claimed shall not be more than the amount lying in the balance at the end of quarter for which refund claim is being made or at the time of filing of the refund claim whichever is earlier. 7. The bare perusal of this condition makes it clear that what is to be determined to ascertain the eligibility of refund, is the balance of credit lying with the assessee, as on the last date of quart

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tify the mistake of cenvat credit figures, but the same has been denied by the Department. Though reliance upon rule 7 B of Service Tax Rules has been placed. According to which a revised ST- 3 return can be filed by an assessee within a period of 90 days and the said rule is taken as a ground to reject the request of the assessee/appellant to submit the revised ST-3 return, but I am of the opinion that Rule 7 B will have no substantive implication in a case where the assessee has cogent documentary evidence to support that the proposed revision of ST-3 is utmost important. In the present case, the ST -3 is showing nil balance, whereas the voluminous documents of the appellant are showing the balance of ₹ 7,36,702/- lying in the account for the impugned period. In such circumstances, Rule 7 B is merely procedural in nature. Hon ble Apex Court has clarified while creating a distinction that a mere procedural lapse is not sufficient to decline the substantive relief to the assessee

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rpretation which eludes or frustrates the recipient of justice is not to be followed. 9. In another decision in the case of Salem Advocate Bar Assn. v. Union of India reported in 2005 (6) SCC 344 the Hon ble Apex Court has considered the question as to whether the Court has any power or jurisdiction to extend the period beyond 90 days. It was held as follows:- It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period. The mandatory or directory of such provision shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view. 10. Seen from this angle also, I opine that Range Superintendent had

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requires re-consideration by the adjudicating authority in view of the provision of Rule 7C of the Rules. The impugned order is set aside, after waiving pre-deposit of the amount of service tax, interest and penalty and the matter is remanded to the adjudicating authority to decide the issue afresh after offering an opportunity of hearing to the appellant. The appeal is allowed by way of remand. 12. This Tribunal in the case of Serco Global Services Pvt. Ltd. vs. Commissioner of Central Excise, Delhi-III reported in 2015 – TIOL – 1044-CESTAT-Del. has held that even if ST-3 return for a particular period do not show any unutilized balance of cenvat credit, the refund still is to be granted on the basis of cenvat credit available in cenvat credit account and not on the basis of closing balance of cenvat credit shown in ST-3 return. In another case titled as Jagdamba Polymers Ltd. vs. CCE Ahmedabad reported in 2010 (253) ELT 626 [2010-TIOL-522-CESTAT-AHM], it was held that omission to re

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GST – Started By: – Madhavan iyengar – Dated:- 13-1-2019 Last Replied Date:- 17-1-2019 – X based in Maharahstra India has a GST regn X helps in procurement of orders for its overseas clients based in US and Germany X receives commission from the clients in US and Germany for the procurement of orders. Thus X is acting as intermediary and accordingly based on POPS the location is Maharashtra state.In the above case X will raise invoice fro commission on the overseas clienst ,Issues: X should discharge which tax IGST or CGST/SGST and can it treat the amount of commission received as inclusive or it has to calculate the tax on the amount received. ?? – Reply By KASTURI SETHI – The Reply = Dear Querist, 1.IGST 2. Why the question of cum tax ? Will X receive tax from foreign client ? Is tax already included in the amount of commission ? Is there such agreement to this extent ? Pl. clarify. – Reply By SHARAD ANADA – The Reply = Reply Rto query 1 Section 8(2) of IGST Act defines that supply

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services is outside India. Now, we are discussing whether intermediary services is Inter-State or Intra-State where the location of supplier or location of recipient is outside India as there is ambiguity on the same. Considering the supplier is located in Maharashtra, the place of supply would also be Maharashtra as per Section 13(8) of IGST Act. In the present transaction, the place of supply and location of supplier are in the same state. One may argue that this transaction would qualify to be as an Intra-State supply as per Section 8(2) of IGST Act. If we carefully see, lawmakers have used the words subject to provisions of section 12 in Section 8 of IGST Act. The literal meaning of the term subject to is dependent upon . Thus, when a provision is made subject to another provision, the former cannot override the later. Let us look at the legal implications of the words subject to proviisons of as held by Hon ble courts in various judgments. In the case of South India Corporation(P

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t is wrong to term intermediary services as an Intra-State supply of services in case where the location of supplier or location of recipient is outside India. This is for the reason that Section 12 is applicable only to determine place of supply where the location of supplier and location of recipient is in India and not covers the cases where the location of supplier or location of recipient is outside India. Therefore, in this view, it shall qualify to be in the course of inter-state trade or commerce on the lines of Section 7(5)(c) as the same is a residuary entry to cover all cases not covered elsewhere. The statutory text of section 7(5)(c) is reproduced as follows-: Supply of goods or services or both- a) When the supplier is located in India and the place of supply is outside India. b) To or by a Special Economic Zone developer or a Special Economic Zone unit: or c) In the taxable territory, not being an intra-State supply and not covered elsewhere in this section. shall be tre

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y By Mahadev R – The Reply = Following is one of the 65 FAQ released on banking service. In this it is clarified that it is subject to CGST + SGST. There is a divergent view on this. Payment of CGST + SGST could be safer option. Q.25 Would intermediary services provided to an offshore client and services provided by a banking company to its offshore account holders be treated as an intra-State supply or an inter-State supply for payment of GST? Ans: Under clause (b) of section 13(8) of the IGST Act, 2017 the place of supply of such services is the location of the provider of services. As the location of supplier and place of supply are in same State, such supplies will be treated as intra-State supply and Central tax and State tax or Union territory tax, as the case may be, will be payable. – Reply By KASTURI SETHI – The Reply = Dear Sh.Mahadev R. Ji, FAQ mentioned by you specifically pertains to Banking service as mentioned by you. Here the query is about service of procurement of ord

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