Goods and Services Tax – Classification of goods – Rates of GST – Unleavened Flatbreads – Leavened Flatbreads – Corn Chips, Corn Taco and Corn Taco Strips – Pancakes – Pizza Base – Certain goods are e
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Goods and Services Tax – Levy of GST – Reimbursement of salary on behalf of foreign entity – pure agent – The applicant will not be liable to pay GST on Salary amount received from RMS and disbursed to the Crew. – TMI Updates – Highlights
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Goods and Services Tax – Levy of GST – The applicant shall charge GST on the consultancy services rendered to Municipal Corporation of Grater Mumbai (MCGM) for an upcoming project of establishment & d
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Goods and Services Tax – Services by way of conducting religious ceremonies by hiring various Pundits / Brahmins for the welfare of the people through its own website – GST on commission which the App
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Goods and Services Tax – GST – By: – Shilpi Jain – Dated:- 18-12-2018 Last Replied Date:- 21-2-2019 – Joint development agreement (JDA) is an agreement entered between the landowner and the developer wherein the landowner would provide the right to the developer to develop the land, in return for construction services to be provided by the developer.The developer would be entitled for a share in the developed property(generally allotted through supplementary agreement (SA))in return for such construction services. Without getting into whether GST is liable or not on these activities, let us examine what is the levy that needs to be examined i.e. GST or Service Tax, for such agreements in the below scenario. Let us take a scenario, wherein the JDA is enteredprior to 01.07.2017 and the SA is entered in the GST regime. Since, the two agreements are entered in periods where two different taxeswere liable, a question would arise regarding, the liability of which tax has to be examined, eit
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es that the service tax shall be levied on all taxable services provided or agreed to be provided in the taxable territory, other than those covered under the Negative List u/s 66D of the of the Act. Here the activity to be examined is the construction services provided by the developer to the landowner, whether this would be a service or not. If yes, whether on the date of entering into the JDA, the levy would be attracted or not? The term Service is defined u/s 65B (44) of the Service Tax Act, to mean any activity carried out by a person for another person for consideration and includes declared services. On perusal of the declared services, clause (b) and clause (h) of section 66E of the Service Tax Act are relevant which are as under: Clause (b) provides Construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the consideration received is received after issuance of completio
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clause (a). Date of payment. Further, even though the services provided by the developer are for a longer period of time, since there are no periodic payment obligations other than the requirement of handing over the units, it cannot be said to be a continuous supply of service. However, with respect to construction services between the landowner and the developer, there would not be any system of issue of invoices. Therefore, the PoT would be the date of completion of the service or receipt of payment (i.e. receipt of right or possession of land/development rights). In the case of JDA, the consideration received by the developer is the development rights and the agreed share of land or undivided share of land. The said consideration crystallizes when the SA is entered into, where the specific units belonging to the developer are identified and after such date, the developer would have right over his units to enter into sale agreements with its customers. Accordingly, service tax is re
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s that in case of JDAs entered prior to GST, where the SA is entered into after 30.06.2017, no tax liability could exist. The article has been written by CA. Shilpi Jain and Hema Muralidharan. For any queries mail @ shilpijain@hiregange.com. – Reply By Praveen kumar – The Reply = We have a piece of land and we entered into a JDA on Year 2016 (Prior to GST Implementation, July 1st 2017) and Entered Supplementary Agreement, SA in October 2017 for the development of it with a reputed builder. The land was bought by my grand father in 1957. The same has been inherited by my father (current sole owner) and he entered into this JDA. As per JDA we will be getting 7 flats as part of JDA. Now my questions are What is the Capital Gain Tax we have to pay once the possession is given to my father by the builder? Even if we not sell any flats still on getting possession do we need to pay Capital Gains Tax? If we need to pay capital gain taxes, are they considered as Long Term OR Short Term Capital
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2018 (12) TMI 1040 – CESTAT CHENNAI – TMI – Construction service – period involved is 2006-2009 – Site formation and clearance service – real estate projects at Silver County, Platinum County and other projects – non-payment of service tax – non-filing of periodical ST-3 returns.
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Construction service – period involved is 2006-2009 – Held that:- Hon’ble Supreme Court in the case of Larsen & Toubro Ltd. [2015 (8) TMI 749 – SUPREME COURT] and the decision of this very Bench in the case Real Value Promoters [2018 (9) TMI 1149 – CESTAT CHENNAI], the said activity will be exigible to service tax only under “Works Contracts Service” and not under Residential Complex Service as has been demanded in the impugned order. In view thereof, there is no hesitation in setting aside the demand of Rs. ? 83,77,188/- with interest thereon under the category of construction of residential complex service. The portion of the impugned order to the contrary demanding the aforesaid amount with interest
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investigation caused by the department, it emerged that appellants were rendering construction of residential complex in respect of Golden Country Project at Maraimalai Nagar, Kanchipuram District concerning 240 flats in Phase-I. It also appeared that they were engaged in providing site formation and clearance service with respect to their real estate projects at Silver County, Platinum County and other projects. Department took the view that appellants had not paid appropriate service tax; not filed periodical ST-3 returns in respect of the said services provided by them. Hence a show cause notice dt. 29.07.2010 was issued inter alia, demanding service tax liability of ₹ 1,36,61,900/- in respect of construction residential complex service for the period 2006-07 to 2008-09 and ₹ 31,16,246/- in respect of site formation and clearance service during the period 2006-07 to 2007-08 with interest thereon and also proposing imposition of penalties under various provisions of law.
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er of property in goods could be covered under Residential Complex Service (hereinafter referred to as RCS ) from the date of introduction of service tax on such services was being litigated upon and which was finally settled by the Hon ble Supreme Court in the case of CCE Vs Larsen and Toubro Ltd – 2015 (39) STR 913 (SC). The Apex Court observed that in as much as Section 67 of the Finance Act (hereinafter referred to as the Act ), dealing with valuation of taxable services, refers to the gross amount charged for service, the service of RCS would cover only pure service activity as any contrary view would imply that the union government can levy service tax on the gross amount, including the value of transfer of property in goods also, which is constitutionally impermissible. The Hon ble Apex Court also held that it was only with the introduction of Works Contract Service (WCS) as a separate taxable service with effect from 01.06.2007, the statutory mechanism to exclude the value of t
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d proposed under Residential Complex Service cannot sustain. (iii) With regard to the demand made under site formation and clearance service , the amount of ₹ 2,38,89,740/- (FY 2006-07) has been subjected to service tax erroneously. This amount consists of two figures, namely, a sum of ₹ 1,91,89,740/- received from one of the promoters of the Appellant Company, namely, Mr. Anand and ₹ 47,00,000/- income received from sale of land. (iv) Appellant submits only effected outright sale of land during the financial year 2006-07 and the aforesaid figures i.e. ₹ 1,9,89,740/- and ₹ 47,00,000/- are nothing but income from sale of UDS. (v) The sum of ₹ 2,38,89,740/- (total) received by the Appellant has been spent on the expenses incurred on the land prior to sale. These expenses include expenses such as site filling and other site preparatory expenses. The amount of ₹ 2,90,76,680/- has been spent towards land development expense towards land development
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and Loss Account for the year ending 31st March 2008. (viii) It is a settled law that any expense incurred before the transfer of goods forms part of the sale price and cannot form part of any service tax liability. (ix) The aforesaid amount of ₹ 2,38,89,740/- is a reimbursement for the expenses (i.e. ₹ 2,90,73,680/-) incurred by them without any provision of service. 3. On the other hand, Ld.A.R Ms. T. Usha Devi supports the impugned order. With respect to the demand under site formation and clearance service, appellants had collected consideration from the buyers of flat under two separate categories as sale of land and land development charges, namely, consideration towards land cost which is reflected in the sale deed and the balance amount towards land development charges. It is therefore clear that site formation and clearance service has been provided by the assessee to the buyers of flats and consideration towards the said activity has also been collected from the b
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mount with interest thereon is set aside. 6.2 The second demand relates to site formation and clearance service allegedly provided by the appellant. During the adjudication proceedings appellants have contended that the said activities were undertaken before sale of land took place, hence the service was a self-service and there is no service provider and service recipient relationship and therefore they are not liable for service tax demand. The adjudicating authority has however held that though site formation and clearance activity took place before sale of land, as the assessee collected consideration from the buyers of flats as land development charges; that even if appellant had entered into an agreement for sale of flats, it is a composite agreement wherein element of sale and service are clearly discernible and therefore value of service portion is chargeable to service tax. We are unable to appreciate such a line of argument. It is not disputed that the land in question belong
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2018 (12) TMI 1041 – CESTAT HYDERABAD – TMI – CENVAT Credit – common input services which were used for both taxable and exempted services – Rule 6(3) of CCR 2004 – Held that:- As far as the services utilised in the Corporate Office on which they have taken the credit is concerned, there cannot be separate records for different projects (exempted and taxable). Therefore, the appellant had an option under Rule 6(3) of either reversing the proportionate amount of credit or paying 6% of the value of the exempted projects – impugned order upheld.
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As far as other demands confirmed in the impugned order are concerned, the appellant concedes the same.
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Penalties – Held that:- It is clear that the appellant has declared that they have maintained separate records in their return whereas they have not disclosed that they also are availing credit on common input services availed in the Corporate Office and have not reversed the proportionate amount of credit attributed to the exempted
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the exempted services as required under Rule 6(3) of CCR 2004. Some other discrepancies were also noticed and a show cause notice was issued to the appellant calling upon to explain as to why- a) An amount of ₹ 18,90,121/- @ 6% of the value exempted services should not be demanded from them as per Rule 6(3)(i) under Rule 14 of CCR 2004 read with the proviso to Section 73(1) of the Finance Act, 1994, for the period 01.10.2013 to 01.07.2014. b) An amount of ₹ 11,56,727/- should not be demanded from them towards non payment of service tax for the period 11.07.2014 to 30.09.2014. c) Irregular input service tax credit of ₹ 5,26,742/- on input services used exclusively for the exempted services during the period 01.10.2013 to 10.07.2014 should not be recovered. d) An amount of ₹ 8,45,644/- should not be demanded from them towards non payment of service tax for the period January 2014 to March 2014. e) An amount of ₹ 2,97,730/- being irregular availment of input
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paid the same along with interest and therefore the lower authority should have confirmed the demands and appropriated the amounts paid against the demands instead of dropping the demand on these two issues. He, therefore, modified the order with respect to these two demands. (iii) With regard to the availment of irregular CENVAT Credit of ₹ 2,93,730/-, he found that Revenue has appealed against dropping of ₹ 2,62,840/- only of which an amount of ₹ 2,16,972/- was with respect to credit on health and life insurance policies for the employees and held that credit on these services were not admissible. He rejected the Revenue s appeal with respect to ₹ 45,868/-. 3. In their present appeal, the appellant has prayed for dropping of the demand of ₹ 18,90,121/- and dropping of all penalties. They conceded the confirmation of the remaining amounts. In this factual matrix, the only fact to be decided is (a) whether the appellant is liable to pay an amount of ₹
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ch has a specific column for the details of the credit availed at their Corporate office. He argued that the services of the Corporate Office are availed by all the projects – both exempted and taxable – and therefore should be considered as common input services. The appellant could have reversed the proportionate amount of common input service credit availed attributable to the exempted projects but they failed to do so. They are, therefore, required to pay an amount @ 6% of the value of the exempted projects under Rule 6(3) of CCR 2004. On a specific query from the Bench, Ld. Representative of the appellant concedes that they have availed CENVAT Credit of input services in the Corporate Office and have not reversed the proportionate amount of credit with respect to the exempted projects. He asserts that as far as other services including the Telephone, FAX, photocopier etc. are concerned, which are used in the project, they have maintained a separate account for the exempted project
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onate amount of credit or paid 6% of the value of exempted projects under Rule 6(3) of CCR 2004. The appellant s argument is that they have maintained separate records for each project. Be it as it may, as far as the services utilised in the Corporate Office on which they have taken the credit is concerned, there cannot be separate records for different projects (exempted and taxable). Therefore, the appellant had an option under Rule 6(3) of either reversing the proportionate amount of credit or paying 6% of the value of the exempted projects. It is evident from the records that they have not done either and therefore the demand was confirmed by the first appellate authority @ 6% of the value of exempted projects. I have, therefore, no option but to uphold the impugned order on this ground. As far as other demands confirmed in the impugned order are concerned, the appellant concedes the same. As far as the penalties on the appellant are concerned, it is clear that the appellant has de
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PIAGGIO VEHICLES PRIVATE LIMITED Versus THE ASSISTANT STATE TAX OFFICER, KERALA, THE COMMISSIONER STATE GST DEPARTMENT, TAX TOWER, THIRUVANANTHAPURAM, THE SECRETARY CENTRAL BOARD OF EXCISE AND CUSTOMS, NEW DELHI, UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE NEW DELHI AND THE AUTHORISED OFFICER THE GST NETWORK, NEW DELHI – 2018 (12) TMI 1085 – KERALA HIGH COURT – TMI – Detention of goods with vehicle – expiration of the validity of e-way bill – Held that:- The learned Division Bench of this Court in Renji Lal Damodaran v. State Tax Officer [2018 (8) TMI 1145 – KERALA HIGH COURT] has dealt with an identical issue where It is directed to release the goods on the appellant furnishing Bank Guarantee for
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fficer for reason of expiration of the validity of e-way bill. Aggrieved, the petitioner has filed the writ petition seeking the following prayers: (i) issue a Writ of Certiorari, or any other appropriate writ, order or direction as this Hon'ble Court deems fit and proper in the circumstances of the case, calling for the records leading to the issue of Ext.P3, P3(a) and Ext.P3(b), Ext.P4 & P5 reports and notices after scrutinizing the same, to strike down and quash the same; (ii) issue a writ of mandamus or other appropriate writ, order or directions, directing the 1st respondent to release the goods and vehicles; (iii) declare the provision empowering the GST officials to demand tax and penalty and detention of goods and vehicle as
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2018 (12) TMI 1113 – CESTAT CHENNAI – TMI – Classification of services – Business Auxiliary Service or not – rendering activities of collection of instalment / loan from the customers of the bank – time limitation – Held that:- Undisputedly appellants are acting in the capacity of collecting agents for ICICI Bank and they collect the dues payable by customers to such Banks on behalf of the Banks – As per the agreement dated 28.1.2005, the appellant has been appointed as mere collection agent. The agreement itself is named as ‘Collection Agreement’. The scope of the work is to act as collection agents of ICICI. Such activity would definitely fall under ‘Recovery Agent Service’. The demand under BAS for the period after 1.5.2006 therefore cannot sustain, the demand of service tax under BAS after 1.5.2006 is therefore set aside.
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Time Limitation – Held that:- Though the department alleges that the appellant is guilty of suppression of facts, there is no evidence brought forth as to
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e impugned orders are modified to the extent of setting aside the demands on BAS prior to 1.5.2006 on the ground of being time-barred – After 1.5.2006, the demand is set aside since the activity does not fall under BAS – appeal allowed – decided in favor of appellant. – Appeal Nos. ST/340/2011 and ST/41643/2013 – Final Order Nos. 43117-43118/2018 – Dated:- 18-12-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri M.N. Bharathi, Advocate for the Appellant Shri K. Veerabhadra Reddy, ADC (AR) for the Respondent ORDER Per Bench Brief facts are that appellants are holding service tax registration under the category of Business Auxiliary Service (BAS). They entered into an agreement with ICICI Bank for rendering activities of collection of instalment / loan from the customers of the bank. The department was of the view that the said activity would fall within the category of BAS as defined under Section 65(105)(zzb) of Finance Act, 1994. Sh
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s on reimbursable expenses. 2.1 On behalf of the appellant, ld. counsel Shri M.N. Bharathi submitted that the appellant had entered into an agreement with ICICI bank engaging the appellants to collect the instalments from customers / depositers. The said activity comes under Recovery Agent Service which came within the taxable net only with effect from 1.5.2006. The demand prior to this date cannot sustain for the reason that the said activity would not fall under BAS. The demand after 1.5.2006 is not sustainable under BAS since the services would fall under Recovery Agent Service. 2.2 It is further submitted by him that the appellant had not received any service tax from ICICI bank as the bank was of the view that the said activity carried out by appellant is not liable to service tax. The appellant had informed the Assistant Commissioner of Central Excise vide letter dated 10.11.2005 intimating this fact. In the said letter, the appellant had intimated that the ICICI bank was refusin
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by the appellant to reach to the department seeking clarification as to whether the activity is subject to service tax or not. Though they raised the invoices showing the service tax separately ICICI refused to pay the tax. Taking note of the fact that ICICI has not paid service tax to appellant, the Commissioner while adjudicating the show cause notice for the earlier period dated 21.4.2010 has given the appellant the cum-tax benefit. These being the facts, the show cause notices are time-barred and the demands cannot sustain. 2.3 With regard to the demand on reimbursable expenses, he submitted that these were actual expenses incurred by the appellant for obtaining demand drafts, courier charges, telephone charges, travelling expenses etc. Being reimbursable expenses, they are not subject to levy of service tax during the relevant period as decided by the Hon ble Supreme Court in the case of Union of India Vs. Intercontinental Consultants and Technocrats P. Ltd. – 2018 (3) TMI 357 (SC
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pressed the facts with intention to evade payment of service tax and therefore the demand raised invoking extended period is legal and proper. 4. Heard both sides. 5.1 The first contention put forward by the ld. counsel for the appellant is that the activity of collecting amounts from the customers / defaulters would not come under BAS prior to 1.5.2006. Undisputedly appellants are acting in the capacity of collecting agents for ICICI Bank and they collect the dues payable by customers to such Banks on behalf of the Banks. The definition of BAS under Section 65(19) of the Act is reproduced as under:- Business Auxiliary Service means any service in relation to, – (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or [Explanation. – For
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provided to a banking company or a financial institution including a non-banking financial company or any other body corporate or a firm, by any person, in relation to recovery of any sums due to such banking company or financial institution, including a non-banking financial company, or any other body corporate or a firm, in any manner; Though the services fall under Recovery Agent Service, the demand has been raised under BAS which in our view is incorrect. In S.K. Associates Vs. Commissioner of Central Excise, Salem vide Final Order No. 42043 to 42046/2017 dated 11.9.2017, the Tribunal had analysed the scope of activities that would come under BAS. In the said case, the assessee therein was engaged by ICICI bank to canvass prospective customers to perform the work from the stage of obtaining the application from prospective customers, processing such application, verify, undertake file sourcing till disbursement of loan. Such activities would fall under BAS even after 1.5.2006. As p
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esponded to this letter of the appellant. However, the show cause notice for the period from 2004 – 05 to 2009 – 10 has been issued only on 21.4.2010. Further, it is seen from the receipts that the ICICI bank has not paid service tax. The Commissioner has quantified the liability of service tax after giving cum-tax benefit. The appellant had not been paying service tax only for the reason that they were under the bonafide belief that the said services are not subject to levy of service tax. Even after seeking clarification from the department, since they did not receive any reply, they have opted not to pay the service tax believing that these services are not taxable. Though the department alleges that the appellant is guilty of suppression of facts, there is no evidence brought forth as to what is the positive act committed on the part of the appellant. The various documents show that the appellants have furnished the entire documents as requested by the department. In fact, the dema
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2019 (1) TMI 507 – CESTAT MUMBAI – TMI – Condonation of delay in filing of appeal – non-payment of pre deposit – section 35F of the Central Excise Act – Held that:- Date of receipt being admitted by the Commissioner himself to be 15.06.2017 and appeal being filed on 08.09.2017, delay is only about 3 weeks over the normal appeal period and not even a month which was within the condonable period available with the Commissioner – Further having, been acknowledged that possession of appellant office was taken over by the Punjab National Bank authorized officer during the corresponding period, the Commissioner (Appeals) should not have refused to condone the delay on such narrow technical ground that flat number is different since there might be possibility that both the flats were being possessed by the appellant – delay condoned.
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Non-payment of statutory pre deposit amount for filing of appeal – Held that:- The appellant contention that 80 per cent of duty liability has been discha
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y of 3 weeks in filing appeal before the Commissioner (Appeals-III) is condoned at this end – Pre-deposit having been made at this end, matter is remanded back to him for re-adjudication – appeal allowed. – Appeal No. ST/87331,87352/18 – A/88133-88134/2018 – Dated:- 18-12-2018 – Dr. Suvendu Kumar Pati, Member (Judicial) Shri Devender Jain, Advocate for the appellant Shri O.S. Shivdikar, AC (AR) for the respondent ORDER Disposal of two appeals filed by the appellant before the Commissioner (Appeals III), GST & CX, Mumbai against adjudication orders confirming duty demand, interests and penalties solely on the ground of belated filing and non-payment of pre deposit is the subject matter of the appeal before this Tribunal. 2. Contention of the appellant, as submitted by Learned C.A. Shri Devendra Jain, is that Appellant could not file the said appeal before the Commissioner (Appeals) within two months of receipt of the order but filed the same within 30 days thereafter with a prayer f
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g that it was received at their end on 15.06.2017 for which the Commissioner had rightly given his finding. Further he disputed the contention of the appellant that substantial portion of the duty liability was discharged. Since both the OIOs and OIA revealed that duty demand of ₹ 7,72,500/- and ₹ 13,28,013/- respectively against availment of cenvat credit on capital goods not recorded in the CC register were confirmed by those orders along with interests and penalties, Section 35F bars the appeal bereft of pre deposit for which interference by this appellate court is uncalled for. 4. Perused the case record including the OIA. It is found from paragraph 8 of the OIA that OIOs were received admittedly by the appellant on 15.06.2017 that is after 9 months 3 days and 14 days of the orders passed on 20.08.2014 and 31.08.2016. It was also recorded by the Commissioner appeals that no documentary evidence was furnished by the appellant concerning the receipt of OIOs. At the same t
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ch has made mandatory provision concerning pre deposit of 7.5% duty demand and penalty and the same had not been complied with. 5. On close scrutiny of the documents on record and OIA, it is apparently clear that acknowledgment of receipt of orders in original by the appellant vide exhibit E contains the date of receipt as 15.06.2017. The ground of rejection of delay condonation petition by the Commissioner (Appeals) indicates that appellant had applied to the Department in writing on 24.08.2017 i.e. two weeks before filling of appeal, as held by Commissioner, but no finding is forthcoming as to if any previous proof of delivery of OIOs on the appellant was established. Therefore the date referred in the acknowledgment vide Exhibit E has to be accepted as the date of delivery of OIOs on the appellant. The Commissioner has relied upon the decision of the Hon ble Supreme Court pronounced in respect of Singh Enterprises vs. Commissioner of C. Ex., Jamshedpur 2008 (221) E.L.T. 163 (S.C.) a
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sideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay and there is no presumption that delay was occasioned deliberately. 6. In another decision, reported in (2001) 9 SCC 106, Hon ble Supreme Court has observed that where the delay is of a few days, the court should adopt a liberal approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of few days. Whether the delay is inordinate, the consideration of prejudice to the opposite party will be a relevant factor calling for a more cautious approach, but in the latter case where the delay is of few days, no such consideration may arise, and such a case deserves a liberal approach. The Hon ble Supreme Court also observed that in exercise of discretion on the facts of each case, keeping in mind that in construing the expression sufficien
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the appeals and pronounces orders under Central Excise Act 1994 and the Central Excise Rules. Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable as hit by the period of limitation. 9. Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner (Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions. Hon ble Supreme Court in Saheli Leasing & Industry Ltd. – 2010 (253) ELT 705 (SC) also
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2019 (1) TMI 1434 – CESTAT MUMBAI – TMI – Scope of SCN – Works contract services or Construction services – appellants were issued show cause notices proposing to demand service tax under Works Contract Services. After due process of law, the original authority confirmed the demand under Construction of Residential Complex Services – Held that:- The appellant was discharging the service tax under Construction of Residential Complex. However, the SCN has been issued proposing to demand under Works Contract Services. After adjudication, the Commissioner held that the services are rightly classifiable under Construction of Residential Complex Services and confirmed the demand raised in the SCN under Works Contract Service – The Commissioner has traveled beyond the scope of the SCN and such confirmation of demand on a different category of service is not sustainable.
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The issue whether composite contracts involving both element of services as well as supply of goods would fall under
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d together and disposed by this common order. 2. The appellants were issued show cause notices proposing to demand service tax under Works Contract Services. After due process of law, the original authority confirmed the demand under Construction of Residential Complex Services. Aggrieved by such confirmation of demand, the appellant is now before the Tribunal. 3. The Ld. Counsel, Sh. M.A. Mudimannan appeared and argued for the appellants. He submitted that the appellants were engaged in Construction of Residential Complex. They were registered under Renting of Immovable Properties Service as well as Construction of Residential Complex. They filed ST.3 returns under these categories for 2007-08 and 2008-09 as well as for the year 2009-10. For a short period they did not pay service tax under Construction of Residential Complex Services pursuant to the clarification of Board s Circular in 2007. The show cause notices have been issued alleging that the services fall under Works Contract
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e below, as furnished by the appellants :- Appeal before CESTAT Period of dispute SCN No./DATE O in O No./Date Tax Amount as per OIO (after Cum tax) ST/420/2012 Nov 2007 – Mar 2009 504/2010 Dt.17.9.2010 23 dt.24.2.2012 1,30,35,725 14,75,687 ST/421/2012 Apr 2009 – Dec 2009 631/2010 Dt.18.10.2010 24 dt.24.2.2012 66,41,257 Total Disputed Tax (Apart from Interest & Penalties) Rs.2,11,52,669 6. At the foremost, it has to be mentioned that the appellant was discharging the service tax under Construction of Residential Complex. However, the show cause notice has been issued proposing to demand under Works Contract Services. After adjudication, the Commissioner held that the services are rightly classifiable under Construction of Residential Complex Services and confirmed the demand raised in the show cause notice under Works Contract Service. The Commissioner has travelled beyond the scope of the show cause notice and such confirmation of demand on a different category of service is not s
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2019 (2) TMI 191 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – TMI – Levy of GST – supply of ‘Rejected Wheat Seed’ and ‘Rejected Paddy Seed’ – Difference of opinion – Held that:- As there is difference of opinion, a reference made to the Appellate Authority for hearing and decision on said issue in terms of Section 98(5) of the Act ibid which provide that where the members of the Authority differ on any question on which the advance ruling is sought, they shall state the point or points on which they differ and make a reference to the Appellate Authority for hearing and decision on such question.
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Matter referred to Appellate Authority. – AAR Ruling No. 13/2018-19 In Application No. 12 Dated:- 18-12-2018 – SHRI VIPIN CHANDRA AND SHRI AMIT GUPTA MEMBER Present for the Applicant: Shri Sanjay Gupta, Partner Concerned Officer: Mrs. Preeti Manral, DC-SGST Note : Under Section. 100(1) of the Uttarakhand Goods and Services Tax Act, 2017, an appeal against this ruling lies before the a
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n applicant 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 paid or deemed to have been paid (e) Determination of the liability to pay tax on any goods or services or both (f) Whether the applicant is required to be registered (g) Whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both within the meaning of that term 4. In the present case applicant has sought advance ruling on classification and applicability of GST rate on the Rejected Wheat Seed and Rejected Paddy Seed . Therefore, in terms of said Section 97(2)(a) & (e) of CGST/SGST Act, 2017, the present application is hereby admitted. 5. The Joint Commissioner (Executive), SGST, Rudrapur Division, in concurrenc
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r, SGST-Dehradun appointed as concerned officer by the competent authority of State GST was also present during the hearing proceedings. 7. In the present application, applicant has requested for advance ruling on leviability of GST on supply of Rejected Wheat Seed and Rejected Paddy Seed . On this issue we have different views and are discussed as under: (a) [Ruling per: Vipin Chandra, Member] – After having gone through the issue, I am of the considered opinion that the Wheat Seed and Paddy Seed rejected as seed, does not remain seed anymore. Further Rejected Wheat Seed and Rejected Paddy Seed can not be termed as cereals either as during the process, it has to under go the chemical treatment, therefore does not remain fit for human consumption as well. I have observed that there is no entry in the name of Rejected Wheat Seed and Rejected Paddy Seed in the GST tariff, however, there is a description of All goods other than seed quality at SI. No. 63 in Schedule-I of the said Tariff.
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Government indicate that Customs Tariff has been adopted for descriptive classification. of goods under GST. The Section Notes, Chapter Notes and Rules of interpretation of Customs Tariff have also been adopted. In this regard, the relevant portion of HS Code 1001 and 1006 of Chapter 10 (Cereals) of the Customs Tariff is reproduced as under – HS Code Description of goods Unit (1) (2) (3) 1001 WHEAT AND MESLIN – Durum wheat : 10011100 – Seed kg. – Other : 10011900 – Other kg. 10019100 – Seed kg. 100199 – Other: 10019910 Wheat Kg 10019920 Meslin kg. HS Code Description of goods Unit (1) (2) (3) 1006 RICE 100610 – Rice in the husk (paddy or rough): 10061010 Of seed quality kg. 10061090 Other kg. 10062000 – Husked (brown) rice kg. 100630 – Semi- milled or wholly- milled rice, whether or not polished or glazed : 10063010 Rice, parboiled kg. 10063020 Basmati rice kg. 10063090 Other kg. 10064000 – Broken rice kg. On going through the relevant HS code of the Customs Tariff, I observe t
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2019 (2) TMI 192 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – TMI – Classification of goods/services – rate of tax – Air dryer complete with final filter for used in breaking system of locomotive supplied to Railway – Held that:- On going through HSN code 8421, it is observed that the Air dryers, which is used for removing water vapour from compressed air or to remove the moisture from wet substances has been classified under 8421 ibid. – Further, M/S Trident Pneumatics Pvt. Ltd., Coimbatore is a manufacturer and supplier of “Air Dryer (LD2000132) Locomotive Dryer-Il” as per the Invoice No. TPPL/3187/1718 dated 27.03.2018 invoiced to the applicant by classifying the said good under Chapter 8421 of the GST Tariff Act 2017 which attracts GST@18% (9% CGST + 9% SGST).
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In the light of the fact, classification of ‘Air Dryer’ (HSN 8421) has already been finalised at the supplier’s end who also happens to be manufacturer of the goods in question i.e. M/s. Trident Pneumatics Pvt. Ltd., Co
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services or both; Further, the applicant being a registered person, GSTIN is 08AFOPB8919C1ZE, as per the declaration given by him in Form ARA-01, the issue raised by the applicant is neither pending for proceedings nor proceedings were passed by any authority. Based on the above declarations, the application is admitted to pronounce advance ruling. 1. SUBMISSION OF THE APPLICANT: a. The applicant is a trader in Air dryer which is used by Railway in breaking system of locomotives. The applicant has received a purchase order number 69185017150035 dated 14.03.2018 from Western Railway for Air Dryer complete with final filter for MEMU DMC (02 quantity). b. The applicant also submitted few additional documents during the personal hearing along with copy of invoice (wherein goods are received by the applicant from the supplier-manufacturer, M/S Trident Pneumatics Pvt. Ltd., Coimbatore,) dated 27.03.2018. c. The applicant is engaged in supply of various goods to the railways. Such Goods suppl
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able under above heading. f. It is important to note here that the item supplied by the applicant can be used only for the purpose of railway locomotives. Based on this the most appropriate entry for the classification seems to be 86072100. g. The Applicant s opinion:- 1. The most appropriate chapter heading for classification of the goods in question seems to be chapter 86 based on its use. Still if we go by the rules of interpretation for tariff classification, then the rule 3 applies. Rule 3 is reproduced as below:- Rule 3: When by application of Rule 2 (b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be affected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set pu
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the numerical order should be used for classification. 3. Thus by virtue of the classification based on the use of the material under chapter 86 sees to the most specific description and without prejudice to this as per rule 3(c) of Tariff Classification General Rules of Interpretation, chapter 86 seems for the purpose of classification. 4. Taxability These items fall under Chapter 86 of the Customs Tariff Act, 1975 under heading 8607 which reads as follows:- PARTS OF RAILWAY OR TRAMWAY LOCOMOTIVES OR ROLLING-STOCK Further, item fall under subheading 860721000 which reads as under: Air brakes and parts thereof The item mentioned as above is used in the Air Brakes of locomotives used by railway only. 5. For heading 8607 there is one entry of taxation in notification no. 01/2017 Central Tax (Rate) dated 28.06.2017, as amended from time to time; all of them are given below:- Chapter/Heading/Sub-heading/Tariff item Description of Goods CGST Rate (%) SGST/UTGST Rate (%) IGST Rate (%) Compen
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final filter for used in breaking system of locomotive supplied to Railway as per order attached given by Western Railway. 3. PERSONAL HEARING (PH) In the matter personal hearing was given to the applicant, Shri Mukesh Khandelwal, CA, (Authorised representative) of applicant appeared for personal hearing on 13.12.2018. During the PH they reiterated the submissions already made in the application for advance ruling along with few additional documents and requested that the case may be decided at the earliest. 4. COMMENTS FROM THE JURISDICTIONAL OFFICER: The jurisdictional officer, Deputy Commissioner, Circle-D, Jodhpur, SGST Rajasthan has submitted that the rate of Tax on Air Dryer is 18% in HSN code 8421. 5. FINDINGS, ANALYSIS & CONCLUSION: a. We find that, the applicant has received a purchase order number 69185017150035 dated 14.03.2018 from Western Railway for Air Dryer complete with final filter for MEMU DMC (02quantity). b. The definition of Air dryer as per Wikipedia means: A
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cesses that demand dry air: b. Telecomm industry (pressurizes its underground cables to repel moisture and avoid shorts) c. Painting d. Pneumatic tools e. Textile manufacturing f. Pneumatic control systems g. Feed air for zeolite type oxygen and nitrogen generators h. Dental office air i. Truck and train air brake systems. j. Submarine ballast tank blow systems (implemented on American submarines after USS Thresher (SSN-593) disaster). Thus it is concluded that the air brake can be used in train braking systems. d. Further, as per the description under the HSN code reproduced below:- (Centrifuges, Including Centrifugal Dryers; Filtering or Machinery and Apparatus, For Liquids or Gases) -Centrifuges, including centrifugal dryers: 8421.11 Cream Separators 8421.12-Clothes-dryers 8421.19-Others -Filtering pr purifying machinery and apparatus for liquids: 8421.21-for filtering or purifying water 8421.22 – for filtering or purifying beverages other than water 8421.23-OiI or petrol-filters fo
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TPPL/3187/1718 dated 27.03.2018 invoiced to the applicant by classifying the said good under Chapter 8421 of the GST Tariff Act 2017 which attracts GST@18% (9% CGST + 9% SGST). e. The applicant itself has cited Circular No. 30/4/2018-GST Dated 25.01.2018 issued by Tax Research Unit, Department of Revenue has also emphasised on point No. 4 which is reproduced below: 4. Accordingly, it is hereby clarified that; only the goods classified under Chapter 86, supplied to the railways attract 596 GST rate with no refund of unutitised input tax credit and other goods [falling in any other chapter], would attract the general applicable GST rates to such goods, under the aforesaid notifications, even if supplied to the railways. Since, the Circular No. 30/4/2018-GST Dated 25.01.2018 issued by Tax Research Unit, Department of Revenue categorically states that if any good is supplied to railways under chapter 86 then it attracts GST @ 5% with no refund of unutilised input tax credit and in case of
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Governor of Himachal Pradesh, appoint Additional Commissioner of State Taxes and Excise (Grade-I)/ Additional Commissioner of State Taxes and Excise (Grade-II) as Additional Commissioner (Appeals) for carrying out the purposes of section 107 of HPGST Act 2017 – GST – States – No. EXN-B(1)-3/2018 – Dated:- 18-12-2018 – GOVERNMENT OF HIMACHAL PRADESH EXCISE AND TAXATION DEPARTMENT NOTIFICATION Shimla-2, the 18th December, 2018 No. EXN-B(1)-3/2018.-In exercise of the powers conferred by section 3 o
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Goods and Services Tax – Classification of services – Rate of GST – MEP activities (Mechanical, Electrical & Plumbing Works) undertaken by the applicant falls within the definition of composite supply
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Goods and Services Tax – Levy of CGST/MGST/IGST – fixed fee received – brewing / manufacturing, packing and supply of Products i.e. alcoholic liquor for human consumption – Supply of beer per se is no
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Goods and Services Tax – GST – By: – Shilpi Jain – Dated:- 17-12-2018 Last Replied Date:- 18-12-2018 – Credit Mechanism is the backbone of the indirect tax regime which allows the assessee to take credit of tax paid on purchase of goods and services availed, in the course of business, though with some conditions and restrictions. Credit under GST is available if used for business purpose and in proportion of its usage for making taxable supplies. Reversal of input tax credit (ITC) is required in respect of procurements that are commonly used for taxable and exempted & non-business supplies or if used for making only exempt supplies or used for non-business purposes. In this article we would like to explain the credit reversal mechanism for input and input services under various business scenarios, to see how the provision is beneficial is some cases and in some cases not so. Credit Reversal under Goods & Services Tax Section 17(2) of the CGST Act, 2017 (hereinafter referred to
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of the following year, in terms of rule 42(2) of the Rules. This can be understood with an illustration: Say ABC Ltd manufactures two varieties of footwear, one is exempt hawai slippers and the other is taxable shoes. Its turnover w.r.t exempt supplies is ₹ 1,00,000/- and taxable supplies is ₹ 2,00,000/- in a particular tax period and credit that is used commonly for both these supplies is ₹ 15,000/-. Then, ITC to be reversed = ₹ 5,000/- (i.e. 15,000 * 1,00,000 / (1,00,000+2,00,000)). Now let s discuss a few more scenarios to understand the same in detail: Scenario 1: M/s. ABC Ltd has turnover of ₹ 45 lakhs from Jul 17 to Mar 18 as below: Jul 17 to Feb 18 – only taxable turnover of ₹ 5 lakhs per month Mar 18 – taxable turnover of ₹ 3 lakhs and exempted turnover of ₹ 2 lakhs Further, total ITC during Jul 17 to Mar 18 is ₹ 4,20,000/- out of which common ITC is ₹ 20,000/- during Mar 18. Thereby, amount of ITC to be reversed for M
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– ₹ 20 lakhs Total common ITC = ₹ 32 lakhs In this case the ITC reversal for M/s. XYZ would be ₹ 23.56 lakhs [ i.e. 32 * 810/1100] However, if these 2 units were separately registered under GST then the credit reversal would be as under: Unit A = ₹ 1.2 lakhs [i.e. 12 * 10%} Unit B = ₹ 16 lakhs [i.e. 20 * 80%] Total ITC reversal = ₹ 17.20 lakhs Thereby, it can be seen that by taking separate registration, the quantum of reversal of common credits for Unit A would reduce substantially. Scenario 3: M/s. DEF Ltd is registered and engaged in providing construction services of residential complex. M/s. DEF Ltd. has sales even after obtaining OC, and if entire consideration for sale of a unit is received after OC, the same would be exempt. The following are details of the project. Year Taxable Turnover Exempted Turnover Common ITC 1 No No No 2 Yes No No 3 (OC received) Yes Yes Yes 4 No Yes No From the above it can be seen that in Year 1 there were no sales
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fter OC procurements) Year 4 – ₹ 1 Lakh The credit of Year 1, 2 & before OC credit of Year 3 i.e. ₹ 50 Lakhs would be fully eligible. Credit reversal in this case in terms of rule 42 of the Rules will be only for the credit of ₹ 2 lakhs of the Year 3. The Year 4 credit of ₹ 1 Lakh would be fully ineligible. In Year 4, any credit accumulated would be relating to exempt supplies and thereby entire credit would not be eligible. Thus, from the above it can be seen that credit reversals would have to be done on a financial year basis and that too only relating to the common credits. Further, such reversal would be required only when there is any exempted turnover in such financial year. Revisiting the credits availed earlier is not required as there is no express provision in this regard in the law. Conclusion: Thus, we can observe that even if there is unequal reversal of ITC during different months due to varied pattern of turnover, the same would be streamline
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Customs – 81/2018-Customs – Dated:- 17-12-2018 – GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) Notification No. 81/2018-Customs New Delhi, the 17th December, 2018 G.S.R. 1214(E).- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, hereby makes the following amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 37/2017-Customs, dated the 3
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2018 (12) TMI 1001 – THE NATIONAL ANTI-PROFITEERING AUTHORITY – 2019 (20) G. S. T. L. 384 (N. A. P. A.) – Profiteering – supply of “Eastern Meat Masala” – benefit of reduction in the rate of tax not passed – Section 171 of the CGST Act – Held that:- There was no reduction in the rate of tax on the above product w.e.f. 01-07-2017, hence the anti-profiteering provisions contained in Section 171 (1) of the Central Goods and Services Tax Act, 2017 are not attracted. There is also no increase in the per unit base price (excluding tax) of the above product and therefore the allegation of profiteering is not sustainable.
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The Respondent has not contravened the provisions of Section 171 of the CGST Act, 2017 and hence there is no merit in the application filed by the above Applicant and the same is accordingly dismissed – application dismissed. – 19/2018 Dated:- 17-12-2018 – Sh. B. N. Sharma, Chairman, Sh. J. C. Chauhan, Technical Member And Ms R. Bhagyadevi, Technical Member For the Ap
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e Kerala State Screening Committee had relied on two invoices issued by the Respondent, one dated 06.02.2017 (Pre-GST) and the other dated 18.12.2017 (Post-GST). 2. The above reference was examined by the Standing Committee on Anti-Profiteering and was further referred to the DGAP vide minutes of its meeting dated 02.07.2018 for detailed investigations under Rule 129 (1) of the CGST Rules, 2017. 3. The DGAP has stated in his report dated 19.09.2018 that in the pre-GST era, the applicable Value Added Tax (VAT) on the product "Eastern Meat Masala" was being levied @ 5% and there was no Central Excise Duty as per Central Excise Tariff Act, 1985. In the post GST era the rate of tax was also levied @ 5%. Details of the invoices issued by Respondent are as per the table given below:- Sr. No. Description of the product Pre-CST Post-GST Difference in price(Rs.) Invoice No./Date Tax rate (VAT) Discounte d price excluding VAT (Rs) Invoice No./Date Tax rate (GST) Discounted price exclud
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the Respondent was not established. 5. The above report was considered by the Authority in it's meeting held on 26.09.2018 and it was decided that as there was no private applicant, The Kerala Screening Committee may be asked to appear before the Authority on 09.10.2018. Smt. A. Shainamol, Additional Commissioner, SGST, Kerala appeared on behalf of the Applicant No. 1. During the hearing she agreed to the report submitted by the DGAP. 6. We have carefully examined the DGAP's report and the documents on record and find that the following issues are required to be settled in the present proceedings:- I. Whether there was reduction in the rate of tax on the product in question w.e.f. 01.07.2017? ll. Whether any benefit of reduction in the rate of tax was to be passed on? 7. Perusal of Section 171 of the CGST Act shows that it provides as under:- (1). "Any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall be passed on to the r
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2018 (12) TMI 1002 – THE NATIONAL ANTI-PROFITEERING AUTHORITY – 2019 (20) G. S. T. L. 379 (N. A. P. A.) – Profiteering – purchase of one Honda City Car – benefit of Input Tax Credit (ITC) was not passed on – benefit of reduction in the rate of tax – Section 171 of the CGST Act, 2017.
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Reduction in the tax rates – Held that:- It is clear from the DGAP's investigation report that there was no reduction in the tax rate in this case hence, the allegation of profiteering by the Respondent on account of change in tax rate is not sustainable.
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Benefit of ITC – Held that:- The record also reveals that the base price charged by the Respondent in the post-GST sale invoice dated 14.10.2017 was ₹ 1,73,346/- less than the base price in the preGST sale invoice dated 28.04.2017 due to the reason that in the preGST period, the credit of Excise Duty, NCCD and Cesses etc. was not available to the Respondent as only credit of VAT was admissible while in the post-GST period, the Responden
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application filed by the Applicant No. 1 requesting for action against the Respondent for violation of the provisions of the Section 171 (1) of the CGST Act, 2017 is not maintainable and hence the same is dismissed – application dismissed. – 18/2018 Dated:- 17-12-2018 – Sh. B. N. Sharma, Chairman, Sh. J. C. Chauhan, Technical Member And Ms. R. Bhagyadevi, Technical Member For the Applicant No. 1 : None For the Applicant No. 2 : Sh. Akshat Aggarwal, Assistant Commissioner ORDER 1. An application dated 12.08.2017 was filed before the Standing Committee on Anti-profiteering under Rule 128 of the Central Goods and Service Tax (CGST) Rules, 2017, by the Applicant No. 1 alleging that he had purchased one Honda City Car from the above Respondent vide Tax Invoice No. A-Tax/998/17-18 dated 14.10.2017 by paying an amount of ₹ 9,54,234/- on which GST @ 28% and Cess @ 17% was charged, however the benefit of Input Tax Credit (ITC) was not passed on to him by the above Respondent and therefo
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ome 'functus officio'. 3. On receipt of the reference from the Standing Committee on Anti-profiteering, the DGAP had re-examined the Application filed by the above Applicant and vide letter F.No. D-22011/APl/1 1/2018/736 dated 14.03.2018 a Report was submitted by the DGAP to this Authority under Rule 129 (6) of the CGST Act, 2017 stating that the allegation of profiteering was without any basis and hence, no meaningful investigation could be initiated by him. The Report submitted by the DGAP was considered by the Authority and vide it's order dated 24.04.2018 passed in Case No. 2/2018, it had directed the DGAP to conduct fresh investigation in the case and submit a comprehensive and detailed report as no opportunity of being heard had been granted to the above Applicant by the DGAP during the course of the investigation. 4. In consequence of the order dated 24.04.2018 the DGAP has submitted the present Report dated 17.09.2018 and intimated that vide e-mail dated 09.05.2018,
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to file his reply and vide e-mail dated 04.08.2018 he had submitted his detailed reply along with the following documents:- a) Purchase invoice of the Car sold to the above Applicant. b) Sale invoice of the Car sold to the above Applicant. c) Sample Sale and Purchase invoices of the same model Car as was sold to the above Applicant. d) Price lists applicable pre-GST (01.05.2017) and post-GST (01.07.2017). e) Worksheet showing details of the sale and purchase of 4 Cars of similar model. 5. The DGAP has mentioned in his Report that the Respondent had submitted that the trade of selling Cars was controlled by the manufacturers and the dealers were bound to follow the ex-show room prices fixed by the manufacturers. He has also mentioned that the Respondent had submitted that margin of the dealers had decreased by about ₹ 7,000/- per Car from the pre-GST regime while the sale price of the same Car had reduced by ₹ 15,683/- [Rs. (Pre-GST price) – Rs. (Post-GST price)]. 6. The DG
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Price 9,30,132.95 Table C Pre GST sale invoice dated 28.04.2017 Pre GST Amount (in Rs.) Dealer's Landed Price (A) 8,14,817 Dealer's Margin (B) 28,589 Total A+B) 8,43,406 VAT (D = of C) 1,26,510.9 Selling price (E= C+D) 9,69,916.9 Table D Post GST sale invoice dated 14.10.2017 issued to the Applicant Post GST Amount (in Rs.) Dealer's Price (excluding GST paid which is available as Input Tax Credit) (A) 6,41,471 Dealer Margin(B) 16,621 Total (C= A+B) 6,58,092 GST (D= 45% of C) 2,96, 141.4 Selling price (E= C+D) 9,54,233.4 7. The DGAP has further mentioned that the Respondent had submitted that he had received a discount of ₹ 4,500/- for achieving a predefined purchase and sale target for the pre-GST transactions and a trade discount of ₹ 9,000/- for the post-GST transactions. 8. The DGAP has also intimated that he had given an opportunity to the Applicant vide e-mail dated 04.09.2018, to inspect the nonconfidential evidences/reply furnished by the Respondent on a
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actions respectively, the total post-GST profit margin of the Respondent came to ₹ 25,621/- (Rs. 16,621/- + ₹ 9,000/-), which was less than the total pre-GST profit margin of FRS. 33,089/- (Rs. 28,589/- + FRS. 4,500/-). He has further observed that the reduced profit margin of the Respondent was also evident from the fact that the Respondent's post-GST purchase price was ₹ 6,906.05 less than the pre-GST purchase price [Rs. (-) ₹ 9,30,132.95/-]. He has also informed that the post-GST sale price was ₹ 15,683.50/- less than the pre-GST sale price [Rs. 9,69,916.90/- (-) ₹ 9,54,233.40/-] and therefore, the allegation of profiteering made by the Applicant was not established. The DGAP has further informed that the landed price charged by the Respondent in the post-GST sale invoice dated 14.10.2017 was ₹ 1,73,346/less than the landed price in the pre-GST sale invoice dated 28.04.2017 (FRS. (-) ₹ 6,41,471/-) due to the reason that in the pre-
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he has maintained that the allegation that the above Applicant had not been given the benefit of ITC by the Respondent was not proved. 10. Investigation Report received from the DGAP was considered in the meeting of the Authority held on 26th September, 2018 and it was decided to accord opportunity of hearing to the Applicant only as there was 'nil' profiteering established in this case by the DGAP. Accordingly, two hearing opportunities on 09.10.2018 and 29.10.2018 were accorded but the Applicant did not appear. Further, the Applicant vide his e-mail dated 01.11.2018 stated that he did not intend to make any further submissions in the matter. 11. The Authority has carefully considered the DGAP's Report, the written submissions of the above Applicant and the Respondent placed on record. The issues to be decided by the Authority in this case are as under:- 1) Whether there was any violation of the provisions of Section 171 of the CGST Act, 2017 in this case? 2) If yes then
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6,621/- in the post-GST period and after taking in to account the discounts of ₹ 4,500/- and ₹ 9,000/-, which the Respondent had received for achieving predefined purchase and sale targets for the above two periods the total post-GST profit margin of the Respondent was ₹ 25,621/- (Rs. 16,621/- + ₹ 9,000/-), which was less than the pre-GST profit margin of ₹ 33,089/- (Rs. 28,589/- + ₹ 4,500/-). It is also apparent that the reduced profit margin was due to the fact that the post-GST purchase price of the Respondent was ₹ 6,906.05 less than the pre-GST purchase price. It is also clear from the record that the postGST sale price charged by the Respondent was ₹ 15,683.50/- less than the pre-GST sale price. The record also reveals that the base price charged by the Respondent in the post-GST sale invoice dated 14.10.2017 was ₹ 1,73,346/- less than the base price in the preGST sale invoice dated 28.04.2017 due to the reason that in the pre
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2018 (12) TMI 1181 – CESTAT CHENNAI – TMI – Validity of SCN – case of appellant is that the category of services are not clear from the show cause notice or the impugned order, which has confirmed the demand – Held that:- The department has not mentioned the category / classification of the service under which the demand is made. Various allegations have been raised in the SCN. However, the classification of the service upon which the specific demand of service tax has been made is not forthcoming. Even after receiving the reply of the appellant, the adjudicating authority has not been able to confirm the demand under a particular category.
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The department has not considered the exemption eligible for agricultural produce and has raised the demand without mentioning the category of service. It is not understood whether the demand is on storage or warehousing services or under GTA service – There is a fundamental flaw in the show cause notice as well as in the impugned order.
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ong with interest and imposed equal penalty under section 78 of the Finance Act, 1994 and also ordered for recovery of CENVAT credit of ₹ 2,23,007/-. Aggrieved, appellants are now before the Tribunal. 2. On behalf of the appellant, ld. consultant Shri P.C. Anand appeared and argued the matter. He submitted that the appellant is engaged in storing facility for agricultural produce. In addition to this, they provide storage facility of petroleum products of IOCL etc. For such activities, they had incurred services for fumigation of the warehouse. They had also rendered goods transport agency service. However, though the department has issued a show cause notice proposing to recover the service tax, the show cause notice does not mention the category of service under which the demand is made. The services of storing and warehousing of agricultural produce are exempted vide Notification No. 12/2002- So also the services of fumigation are exempted with regard to storing of agricultura
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ry of services are not clear from the show cause notice or the impugned order, which has confirmed the demand, the appellant prayed that the impugned order may be set aside. He submitted that the appellant had no intention of evading payment of service tax by suppression of facts and therefore the demand raised invoking the extended period cannot sustain. 3. The ld. AR Shri B. Balamurugan supported the findings in the impugned order. 4. Heard both sides. 5. On going through the show cause notice, we find that the department has not mentioned the category / classification of the service under which the demand is made. Various allegations have been raised in the show cause notice. However, the classification of the service upon which the specific demand of service tax has been made is not forthcoming. Even after receiving the reply of the appellant, the adjudicating authority has not been able to confirm the demand under a particular category. The allegation in the show cause notice as w
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2018 (12) TMI 1183 – CESTAT CHENNAI – TMI – Site formation and clearance services – Sub-contract – the main contractor has discharged the service tax liability entirely – period from 16.6.2005 to December 2008 – Held that:- All the aspects have not been considered – there are certain discrepancies to the quantification which needs to be rectified by the clarifications that has to be produced by the appellants – the matter requires to be remanded to the adjudicating authority – appeal allowed by way of remand. – ST/Misc./41704/2017 and ST/639/2011 – Final Order No. 43140/2018 – Dated:- 17-12-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri M.A. Mudimannan, Advocate for the Appellant Shri K. Veerabhadra Reddy, ADC (AR) for the Respondent ORDER Per Bench The appellant is a proprietary concern engaged in providing site formation services which are in the nature of leveling the ground and excavation of earth with the help of excavators
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ing service tax along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, short-payment of service tax on site formation services and also disallowed the abatement availed by the appellant under Notification No. 1/2006. Penalty was also imposed on the appellant. Aggrieved by such order, the appellant is now before the Tribunal. 2. On behalf of the appellant, ld. counsel Shri M.A. Mudimannan submitted that the site formation services were rendered by the appellant as a sub-contractor and since the main contractor has discharged the service tax on the very same activities (contracts), the appellant is not liable to pay service tax under this category. With regard to the wrong availment of 67% abatement as per Notification No.15/2004 (1/2006), the ld. counsel fairly conceded that the activity does not fall under works contract service and the appellant on the wrong belief that site formation services are in the nature of wo
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been constructed within the SEZ area is used as common / public roads and therefore is eligible for this benefit. He furnished the calculation with regard to demand raised as per the impugned order as well as in the show cause notice and argued that there are errors in the quantification and the appellant would be able to clarify these if given a chance by remanding the matter to the adjudicating authority. 3. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. Countering the argument of the ld. counsel for the appellant regarding the discharge of service tax liability by the main contractor, it is submitted by the ld. AR that the appellant has not produced any proof that the main contractor has discharged the service tax. Regarding the availment of abatement, he submitted that the appellants have deliberately availed the abatement to which they are not entitled and therefore it is a clear violation of provisions of law. The contention of the appellant th
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on activity with regard to site formation or construction of roads are rendered within SEZ area has to be looked into by the adjudicating authority. The appellant has requested for further chance to furnish documents with regard to the discharge of service tax by the main contractor as well as the construction activities done within the SEZ area. For these reasons, we find that the matter requires to be remanded to the adjudicating authority. The demand with respect of wrong availment of abatement also can be looked into afresh by the adjudicating authority who shall consider the issue of penalty on this score also. 6. With the above directions, the impugned order is entirely set aside and the appeal is remanded to the adjudicating authority to consider the issues afresh. 7. The application filed by Revenue for change of cause title is allowed. (Operative portion of the order was pronounced in open court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanag
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2018 (12) TMI 1352 – MADHYA PRADESH HIGH COURT – [2019] 61 G S.T.R. 144 (MP) – Exemption from payment of tax – duty free shop – territorial limits – petitioner made a prayer for directing the respondents to treat the goods supplied to the petitioner as an export without payment of CGST and IGST, only on the ground that Duty Free Shop at international airport are located beyond the customs frontier of India and any transaction that takes place in a Duty Free Shop is said to have taken place outside India.
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Held that:- No provision of law has been brought to the notice of this Court under the Central Goods and Services Tax Act, 2017, which grants exemption from payment of taxes. A taxing statute has to be strictly construed. In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language
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17 and should be zero rated supply under Section 2(23) read with Section 15(1) of the IGST Act, 2017 is misconceived.
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The location of the DFS, whether within customs frontier or beyond, shall be within India as long as it is not beyond EEZ (200 nautical miles). Therefore, DFS cannot be said to be located outside India. Instead, the DFS is located within India. As the supply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'export of goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a bond/letter of undertaking (LUT) under rule 96-A of the CGST Rules, 2017.
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The petitioner is liable to pay GST on supply of indigenous goods to DFS – Whether, transaction under taken at a DFS (i.e. sale of goods to outgoing passengers) are to be treated as export of goods or services does not form part of the instant writ petition – petition dismissed – decided against petitioner. – Wri
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out payment of taxes and similar supplies from all over the world except India are permitted without payment of taxes. 03-The petitioner has stated that petitioner is a manufacturer and exporter of garments in India and he intends to supply goods to Duty Free Operator (DFO), who in turn is selling the goods from Duty Free Shops (DFSs). It has been further contended that Duty Free Operator operating in India imports goods like liquor, tobacco products, souvenirs, eyewear, watches, fashion, chocolates, perfumes, etc. by filing import general manifest and Bill of Entry for warehousing with the customs department without payment of import duty on the first importation subject to certain conditions. The bill of entry clearly indicates the Duty Free Operator as an importer . The imported goods are warehoused at a bonded warehouse (customs warehouse) and the bill of entry also discloses that the goods imported are for sale only for Duty Free Shop / Export . 04-It has been further stated that
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ficer as prescribed under Section 60 of the Act. The goods so warehoused are then brought to the Duty Free Shop without payment of duty under escort of the bond officer and then the goods are sold at the Duty Free Shops at the arrival and departure terminals. The overall all supervision and control is of the Customs Officer. 06-The petitioner has further stated that the entire movement of goods from special warehouse to Duty Free Shops for the purpose of sale at arrival and departure takes place strictly in consonance with the warehousing provisions under Chapter IX of the Act and under the custom supervision and control. It has been further stated that as per Section 71 of the Act, the goods so deposited can either be cleared from the warehouse for home consumption (under Section 68) or for export (under Section 69) or for removal to another warehouse or otherwise provided under the Act. 07-The petitioner's contention is that the goods are sold to international passengers at the d
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s further stated that the Duty Free Shops at international airports were permitted to retail of attractive products of foreign origin including liquor, tobacco, confectionery, perfumes, cosmetics, souvenirs, eyewear, watches, fashion, chocolates, etc. It has been further contended that in respect of indigenous products manufactured in India, which were subjected to payment of Excise Duty and VAT and Government of India in the year 2013, based upon representations received from industry and in order to promote Brand India to the world, issued notifications so as to allow excise duty free sale of goods manufactured in India to international passengers or members of crew arriving from abroad at the Duty Free Shops located in the arrival halls of international airports and to passengers going out of India at the Duty Free Shops located in the departure halls of international airport in the country. 10-It has been further stated that Central Board of Excise and Customs issued a notification
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of international airport, appointed or licensed as warehouse under Section 57 or 58 of the Customs Act, and for sale therefrom, against foreign exchange to passengers going out of India or to the passengers or members of crew arriving from abroad, subject to limitations, conditions and safeguards as may be specified by the Central Board of Excise and Customs 12-By another notification No.08/2013-CE NT, dated 23/05/2013, CBEC appointed officers of Customs under whose jurisdiction the godowns and retail outlets of Duty Free Shops at the international airport are located, to be Central Excise Officers. In notification No.09/2013-CE NT, dated 23/05/2013, the CBEC stated that where a godown or retail outlet of a Duty Free Shop is appointed or licensed under the provisions of Sections 57 or 58 of the Customs Act, such godown or retail outlet shall be deemed to be registered as warehouse under Rule 9 of the Central Excise Rules, 2002. By the CBEC circular No.970/04/2013-CX, dated 23/05/2013 t
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basis of various exemptions notification issued from time to time. 14-The petitioner has further stated that he was told to pay GST and in those circumstances, he is being deprived his potential business opportunity to sell the goods from Duty Free Shops. The petitioner's grievance is that in absence of exemption notification under the Central Goods and Services Tax Act, 2017 and the Integrated Goods and Services Tax Act, 2017, the Duty Free Operators are unable to buy the goods manufactured in India without paying the applicable rate of taxes as provided under the CGST, IGST or SGST as the case may be. 15-The petitioner's contention is that supplies from all over the world (except India) are permitted to be at an Indian Duty Free Shop without payment of duties and taxes. The petitioner has prayed for following relief:- (i)Issue a writ of Mandamus or any other appropriate Writ, Order or Direction in the nature of Mandamus, ordering and directing any supply of goods and services
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ds and services made by an Indian supplier to the duty free shops in India to be free of CGST, SGST and IGST. (iv)Pass such other or further orders or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 16-The petitioner has raised various grounds before this Court and his contention is that the action of the respondents authorities in enacting the GST legislation without clarifying the position regarding supply of goods and services by an Indian supplier without payment of taxes including GST is illegal and has resulted in loss of business opportunity to the petitioner and other identically placed persons. 17-A further ground has been raised stating that sale from Duty Free Shops in the past has helped to maximize non-aeronautical revenues at airports, which ultimately bring down aeronautical tariffs for the passengers and ultimately the Government of India is the biggest gainer as it has and will receive significantly large funds f
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t payment of GST and on account of lack of similar exemptions, which were available during the pre GST regime and the action of the respondent is violative of Articles 12, 14 and 19 (1) (g) of the Constitution of India. The action of the respondent authorities is also in violation of Article 21 of the Constitution of India. It has been argued by learned Senior Counsel appearing before this Court to issue a writ of mandamus by directing the respondents to treat the Duty Free Shops in India as an export without payment of CGST and IGST, since the shops are located beyond the customs frontier of India and any transaction that takes place in a Duty Free Shop is said to have taken place outside India. 20-Learned counsel for the petitioner has placed reliance upon judgments delivered in the case of reported in , reported in , reported in , passed by apex Court in Special Leave to Appeal (Civil) No.2436/2010 decided on 12/03/2010, passed by Bombay High Court in Writ Petition No.2578/2009 deci
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the judgment relied upon by the petitioner in the case of (Supra) is of the year 2012 is of no help to the petitioner as it was a judgment delivered prior to GST regime and in the year 2016 CGST Act has been implemented and an entirely new scheme of statute with various definitions have been introduced to the statute book and in such circumstances, various defining clauses have to be seen and examined in back drop of the present statute, which is in force as on today. It has been further stated that as per Union Budget, 2017, the definition of Indian territory has been extended to 200 nautical miles and in such circumstances also, all such duty free shops fall within the territory of India and the claim of the petitioner deserve to be dismissed. 24-The respondents have also stated that a similar issue was examined by the Authority on Advance Ruling and the same was analyzed in back drop of the judgment passed by the Hon'ble Supreme Court in the case of (Supra) and the respondents
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ng the goods in India, is selling them from Indore to a Duty Free Shop, the question of grant of exemption to the petitioner and to such a class to which the petitioner belongs does not arise. The respondents have prayed for dismissal of the writ petition. 27-It has also been stated that the petitioner does have an alternative remedy also under Section 96 of CGST Act and the petition deserves to be dismissed. It has been argued by Shri Prasanna Prasad, learned counsel for the respondent that this Court is not the competent authority to legislate on a particular subject nor this Court can issue exemption certificate granting exemption to the petitioner as the statute does not provide for any such exemption as prayed by the petitioner. 28-It has been further contended by the respondents that the judgment of the Hon'ble Supreme Court in the case of (Civil Appeal No.2560/2010) reported in was delivered under the erstwhile VAT regime wherein the authority of State to levy VAT on sale of
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n, its Territorial Waters, Seabed and Sub-soil underlying such Waters, Continental Shelf, Exclusive Economic Zone (EEZ) or any other Maritime Zone as referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 and the air-space above its territory and territorial waters. For the purpose of CGST Act, India extends the Exclusive Economic Zone upto 200 nautical miles from baseline. The location of the DFS, whether within customs frontier or outside, shall be within India as long as it is not beyond EEZ (200 nautical miles). Therefore, DFS cannot be said to be located outside India. Instead, the DFS is located within India. As the supply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'Export of Goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a Bond / Letter or Undertaking (LUT) under Rule 96-A of the CST Ru
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des that no tax shall be levied or collected except by authority of law. As per Article 246 of the Constitution, Parliament has exclusive powers to make laws in respect of matters given in Union List (List I of the Seventh Schedule) and State Government has the exclusive jurisdiction to legislate on the matters containing in State List (List II of the Seventh Schedule). In respect of the matters contained in Concurrent List (List III of the Seventh Schedule), both the Central Government and State Governments have concurrent powers to legislate. 34-Before advent of GST, the most important sources of indirect tax revenue for the Union were customs duty (entry 83 of Union List), central excise duty (entry 84 of Union List), and service tax (entry 97 of Union List). Although entry 92C was inserted in the Union List of the Seventh Schedule of the Constitution by the Constitution (Eighty-eighth Amendment) Act, 2003 for levy of taxes on services, it was not notified. So tax on services were c
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f Central VAT and State VAT was possible in form of a dual levy under the constitutional scheme. Power of taxation is assigned to either Union or States subject-wise under Schedule-VII of the Constitution. While the Centre is empowered to tax goods upto the production or manufacturing stage, the States have the power to tax goods at distribution stage. The Union can tax services using residuary powers but States could not. Under a unified Goods and Services Tax scheme, both should have power to tax the complete supply chain from production to distribution, and both goods and services. The scheme of the Constitution did not provide for any concurrent taxing powers to the Union as well as the States and for the purpose of introducing goods and services tax, amendment of the Constitution conferring simultaneous power on Parliament as well as the State Legislatures to make laws for levying goods and services tax on every transaction of supply of goods or services was necessary. 37-The Cons
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2016 w.e.f. 16/09/2016. 39-The important changes introduced in the Constitution by the 101st Amendment Act are the following: a)Insertion of new article 246-A which makes enabling provisions for the Union and States with respect to the GST legislation. It further specifies that Parliament has exclusive power to make laws with respect to GST on inter-State supplies. b)Article 268-A of the Constitution has been omitted. The said article empowered the Government of India to levy taxes on services. As tax on services has been brought under GST, such a provision was no longer required. c)Article 269-A has been inserted which provides for goods and services tax on supplies in the course of inter-State trade or commerce which shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council. It also provides that Parliamen
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the Constitution. Thus, any modification in GST Council shall also require the ratification by the legislatures of one half of the States. i)Entries in List I and List II have been either substituted or omitted to restrict power to tax goods or services specified in these Lists or to take away powers to tax goods and services which have been subsumed in GST. j)Parliament shall, by law, on the recommendation of the Goods and Services Tax Council, provide for compensation to the States for loss of revenue arising on account of implementation of the goods and services tax for five years. k)In case of petroleum and petroleum products, it has been provided that these goods shall not be subject to the levy of Goods and Services Tax till a date notified on the recommendation of the Goods and Services Tax Council. 40-After the constitutional amendment, the Central Government introduced The Central Goods and Services Tax Act, 2017, The Integrated Goods and Services Tax Act, 2017, The Union Terr
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der the Excise Act and Customs Act dated 23/05/2013 i.e. Notification No.07/2013-CE NT, Notification No.08/2013-CE NT, Notification No.09/2013-CE NT and CBEC Circular No.970/04/2013-CX is claiming exemption in the matter of payment of GST. 43-No provision of law has been brought to the notice of this Court under the Central Goods and Services Tax Act, 2017, which grants exemption from payment of taxes. A taxing statute has to be strictly construed. In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used (Principles of Statutory Interpretation by Justice G.P. Singh, Tenth Edition, General Principles of Strict Construction). 44-The Hon'ble Supreme Court has enunciated in similar words the principle of interpretation of taxing laws as under:- Bhagwati, J. stated the principles a
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which is not expressed; it cannot import provisions in the statute so as to supply any assumed deficiency [Sales Tax Commissioner Vs. Modi Sugar Mills, AIR 1961 SC 1047, p. 1051]. K. Iyer, J., more recently observed : Taxation consideration may stem from administrative experience and other factors of life and not artistic visualisation or neat logic and so the literal, though pedestrian interpretation must prevail [Martand Dairy and Farm vs. Union of India, AIR 1975 SC 1492, p. 1494]. Before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section [Commissioner of Wealth Tax, Gujarat Vs. Ellis Bridge Gymkhana, AIR 1998 SC 120, pp. 125, 126]. The statute governing the field does not provide any such exemption as prayed by the petitioner. 45-The relevant statutory provisions, which are necessary for adjudicating the present controversy reads as under:- Article 269(1) and Article 286(1) of the Constitution of India:- (i)A
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hall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place- (a)outside the State; or (b)in the course of the import of the goods into, or export of the goods out of, the territory of India. Section 5 and Section 2(ab) of the Central Sales Tax Act, 1956:- 5. When is a sale or purchase of goods said to take place in the course of import or export.- (1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. (2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods
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se of the export of goods out of the territory of India. Explanation – For the purposes of this sub-section, "designated Indian carrier" means any carrier which the Central Government may, by notification in the Official Gazette, specify in this behalf.] 2(ab). Crossing the customs frontiers of India" means crossing in the limits of the area of a customs station in which imported goods or export goods are ordinarily kept before clearance by customs authorities. Explanation – For the purposes of this clause, "customs station" and "customs authorities" shall have the same meanings as in the Customs Act, 1962 (52 of 1962). Sections 2(4), 2(5), 2(23) and 16(1) of the Integrated Goods and Services Tax Act, 2017:- 2(4). customs frontiers of India means the limits of a customs area as defined in section 2 of the Customs Act, 1962 (52 of 1962); 2(5). export of goods with its grammatical variations and cognate expressions, means taking goods out of India to a
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mported goods or export goods are ordinarily kept before clearance by Customs Authorities; 2(18)."export", with its grammatical variations and cognate expressions, means taking out of India to a place outside India; 2(27)."India" includes the territorial waters of India; Section 3(1), (2) and (3) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976:- (1)The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and sub-soil underlying, and the airspace over, such waters. (2)The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline. (3)Notwithstanding anything contained in sub-section (2), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, a
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rated supply under Section 2(23) read with Section 15(1) of the IGST Act, 2017 is misconceived. The term Export of Goods has been defined under Section 2(5) of the IGST Act, 2017 as taking goods out of India to a place outside India. 48-The India is defined under Section 2(56) of the CGST Act as India means the territory of India as referred to in Article 1 of the Constitution, its territorial waters, seabed and sub-soil underlying such waters, continental shelf-exclusive economic zone or any other maritime zone as referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, and the air-space above its territory and territorial waters and therefore, the export of goods can be treated and it is complete only when the goods crosses air space limits or its territory or territorial waters of India. 49-Undisputedly, in light of the definition as contained under the IGST Act, 2017 a Duty Free Shop situated at the airport cannot be tre
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he First Schedule to the Central Excise Tariff Act, 1985 (hereinafter referred to as indigenous goods) when brought into DFS located in the arrival halls at the international customs airports from the factories of their manufacture situated in India for sale to passengers or members of crew arriving from abroad, from the whole of the duty of excise leviable thereon. No such exemption notification has been issued under GST till date. 52-In the case of reported in , the apex Court has held that there is no estoppel against law and recipient of a concession has no legally enforceable right against the Government to grant or to continue to grant a concession except to enjoy benefits of concession during the period of its grant. The apex Court in paragraph No.10 and 11 of the aforesaid judgment has held as under:- 10. The question referred to this bench, as noticed, is whether the State would be estopped from altering/modifying the benefit of concessional tariff by means of the impugned G.O
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of concessional tariff/rebate to an industrial unit carrying on business in the hill areas of the State of U.P. (now the State of Uttarakhand). After an in depth consideration of the provisions of Section 48/49 of the Electricity Supply Act, 1948 under which the concessional tariff/rebate was granted and the provisions of Section 21 of the General Clauses Act as well as the provisions of the U.P. Electricity Reforms Act, 1999 under which the concessional tariff/rebate was later withdrawn this Court in para 51 came to the following conclusion – From the above discussion, it is clear that the petitioners cannot raise plea of estoppel against the Notification dated 7.8.2000 reducing hill development rebate to 0% as there can be no estoppel against the statute. In light of the aforesaid judgment, the concessions / exemptions granted earlier during the pre-GST regime cannot be claimed as a matter of right. 53-In addition, the petitioner in paragraph 7(i) of the petition has prayed this Cou
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clusive Economic Zone (EEZ) or any other maritime zone as referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, and the air space above its territory and territorial waters. For the purpose of CGST Act, India extends upto the Exclusive Economic Zone upto 200 nautical miles from baseline. The location of the DFS, whether within customs frontier or beyond, shall be within India as long as it is not beyond EEZ (200 nautical miles). Therefore, DFS cannot be said to be located outside India. Instead, the DFS is located within India. As the supply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'export of goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a bond/letter of undertaking (LUT) under rule 96-A of the CGST Rules, 2017. Also, he cannot claim refund of unutilized input tax credit (ITC) under Secti
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/ manufacturer of garments at Indore and intent to supply indigenous goods to Duty Free Shops. 58-Respondents have placed reliance upon judgment delivered in the case of reported in . In the aforesaid case, it has been held that binding nature of the decision would come to an end when the law is changed subsequently. Paragraph No.8 of the aforesaid judgment reads as under: 8. Section 11 of the Code of Civil Procedure is only applicable to suits. S. 141 of the Code makes the procedure regarding suits applicable to proceedings. Explanation to Section 141 excludes proceedings under Art. 226 from the purview of the Section. Even then general principles of respondent judicata are applicable to such proceedings also though S. 11 as such is not applicable. Though a decision to inter parties may not be respondent judicata even under general principles which do not take in the rigour of S. 11, the law laid down by the High Court is binding on it. Decisions may be on questions of facts, questio
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reduced. The definition of place in 1991 (1) KLT 543 cannot therefore be relied on now as the law binding the parties in this case. There is no case that Door No.7/597 is more than 50 meters away from Door No.7/594 or that the distance is further reduced. Both are in the same building and as earlier pointed out, the distance is only seven meters as found in the said decision itself. Admittedly, Door No.7/597 was used for the same purpose continuously from 1987-88 upto the end of 1989-90. I do not think that there is any violation of any of the Rules involved. In light of the aforesaid judgment, as no such exemption is available to the petitioner in light of the GST Act, 2017, the judgment relied upon by the petitioner is of no help and the petitioner cannot escape from the liability of payment of GST. 59-Reliance has also been placed in the case of reported in . Paragraph No.21 of the aforesaid judgment reads as under:- 21. For resolving such inter se conflicts, one other test may also
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ould prevail over the former enactment and therefore, as a new enactment has come into existence i.e. Central Goods and Services Tax Act, 2017, the statutory provisions under the Act or 2017 are to be followed. 60-In the case of reported in , it has been held that the judgment is not a precedence on a preposition which it did not decide. Paragraph 8 of the aforesaid judgment reads as under:- 8.Learned counsel for Revenue submitted that if even a weighbridge was excisable, as held in the case of Narne Tulaman Manufacturers Pvt. Ltd. [(1989) 1 SCC 172] so was a mono vertical crystalliser. The only argument on behalf a Narne Tulaman Manufacturers Pvt. Ltd. was that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridges were not 'good' within the meaning of the Act was not raised and no evidence in that behalf was brought on record. We cannot assume that weighbridges sand on the same foot
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does not help the petitioner in any manner. 62-The petitioner cannot escape the liability to pay GST. He is manufacturing certain goods and supplying to a person, who is having a Duty Free Shop. It is true that we cannot export our taxes but the facts remains that it is not the petitioner, who is exporting the goods or taking goods out of India. He is selling to a person, who is having Duty Free Shop (to a Duty Free Operator), which is located in India as per the definition clause as contained under the GST Act. In light of the aforesaid, this Court does not find any reason to issue writ of mandamus directing the respondents not to charge GST on the petitioner or to legislate on the subject granting exemptions as prayed by the petitioner. 63-A statute is an edict of the legislature and the Courts do not have the power to enact a statute and the Court can only do interpretation of statute and once the Court does not have power to legislate, the question of granting exemption in absence
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2019 (1) TMI 506 – CESTAT CHENNAI – TMI – Classification of services – Video Tape Production Services or not? – appellant rendering services like creation of special effects, improving the quality of picture or image and convert the digital image file to film etc. – Held that:- The very same issue was analysed by the Tribunal in the appellant’s own case PRASAD CORPORATION LTD. VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2017 (11) TMI 435 – CESTAT CHENNAI] for the earlier period where the Tribunal held that the activity does not fall under Video Tape Production Services – demand of service tax under Video Tape Production Services cannot sustain – appeal allowed – decided in favor of appellant. – Appeal Nos. ST/546 to 548/2011 – Final Order Nos. 43119-43121/2018 – Dated:- 17-12-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. Krithika Jaganathan, Advocate for the Appellant Shri A. Cletus, Addl. Commissioner (AR) for the Respondent O
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that the activities of the appellant will not fall under Video Tape Production Services. The services rendered by the appellant on which service tax demanded can be briefly described as under:- a. Computer Graphics:- Primarily, the appellant is engaged in post-production film activity by manipulating recorded images into hypothetical scenes with creation of special effects such as computer graphics. b. Digital Restoration:- The appellant is also engaged in providing specialized digital restoration services to customers as per their specifications. In other words, the quality of the image or picture is digitally enhanced or restored for archival purposes. Sometimes, images are converted into digital image files for ease of storage or greater clarity. c. Reverse Telecine:- The appellant also provides services of Reverse Telecine whereby digital image files are converted to 35mm film by processing digital data received on various input media as stated above to increase sharpness as the i
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deo Tape Production Services. She therefore prayed to set aside the impugned order. 3. The ld. AR Shri A. Cletus supported the findings in the impugned order. 4. Heard both sides. 5. The activity of the appellant has been narrated in the paragraphs stated above. The department is of the view that such activities are to be classified under Video Tape Production Services. The Tribunal in the appellant s own case, for a different period had occasion to analyse the issue and has observed as under:- 4. Heard both sides and have gone through the facts. It is clear that the services performed by the appellant definitely do not involve his recording of any programme, event or function. In fact, this aspect has been considered even by the adjudicating authority in para 5.3 of the order. The activities of services of Computer Graphics, Digital Restoration, and Reverse Telecine all involving activities on old feature films is definitely a post-production film activity inter alia, rendered for ser
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2019 (1) TMI 677 – HIMACHAL PRADESH HIGH COURT – TMI – Principles of Natural Justice – right to appeal denied on the ground that no such Appellate Forum has been notified by the State of Himachal Pradesh – Held that:- The aggrieved party cannot be left remedy less merely because the State Government has not notified the Appellate Forum – The petitioner may, if so advised, file an appeal within one week from the date the Appellate Forum is notified. Till such time, no coercive action be taken against the petitioner. It is clarified that we have not expressed any views on merits. – petition disposed off. – CWP No.: 2970 of 2018 Dated:- 17-12-2018 – Mr. Justice Surya Kant, Chief Justice And Mr. Justice Ajay Mohan Goel, Judge For the Petition
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however, no such Appellate Forum has been notified by the State of Himachal Pradesh, due to which, the petitioner has been denied its valuable right of appeal, leaving no other option but to file the instant Writ Petition. Various contentions on merits as well as re: violation of the principles of natural justice and fair play have also been raised. The competence of the Authority, who has passed the impugned order, is also questioned. 3. On the other hand, learned Senior Additional Advocate General, submits that the Assistant Commissioner, State Taxes and Excise, is fully authorized to pass the subject order. He refers to various proceedings to urge that the petitioner s representatives have been adequately heard and thus, there is no vio
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