Author: admin_gst

In Re: M/s. EX-SERVICEMEN RESETTLEMENT SOCIETY
GST
2019 (1) TMI 1491 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (21) G. S. T. L. 279 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 28-1-2019
Case No. 34 of 2018 Order No. 38/WBAAR/2018-19
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY, MEMBER
Applicant's representative: Major Nirmal Kumar Dhaoa (Retd), President
1. The Applicant, stated to be a registered society providing Security Services and Scavenging Services to various hospitals under the State Government as well as the Central Government, seeks a ruling as to whether exemption from payment of GST is available to them in terms of Notification No 12/2017-CT(Rate) dated 28.06.2017 and WB Govt Gazette Notification-1136-FT dated 28.06.2017, as amended (hereinafter collectively referred to as “the Exemption Notification”).
Advance Ruling is admissible on the question under Section 97(2)(b) of the CGST/WBGST Acts, 2017 (hereinafter ref

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addition to Security Personnel. The nature of activities performed by the Scavenging Personnel comprise of:-
a) Manual cleaning where required;
b) Duties of attendants viz. bringing of Medicine/Oxygen Cylinders from a particular store to different wards;
c) Operating trolleys for the carriage of patients from the Emergency Ward to different wards, or from the Wards to the different laboratories for different tests, like blood tests, x-rays, scans, etc. They have also declared that for the functions of the above categories, no materials/equipments are supplied by them.
3. A careful read of conditions laid down under the Exemption Notification makes it clear that exemption from GST is granted under Serial No 3 to the Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority or a Governmental authority by way of any activity in relation to any fun

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ation) has been substantially, although not in the same form, continued under GST vide Sl No. 3 and 3A of the Exemption Notification. Sl No. 25(a) of the ST notification under the service tax exempts “services provided to the Government, a local authority or a governmental authority by way of water supply, public health, sanitation, conservancy, solid waste management or slum improvement and upgradation.” The Circular further explains in relation to the specific issue of ambulance service to the Government by a private service provider (PSP) that such service is a function of 'public health' entrusted to Municipalities under Art 243W of the Constitution, and, therefore, eligible for exemption under Sl No. 3/3A of the Exemption Notification.
The above Circular leaves no doubt that the phrase 'in relation to any function', as applied in
Sl Nos. 3 and 3A above, makes no substantial difference between Sl No. 25(a) of the ST Notification and Sl No. 3/3A of the Exemption Notification. Unde

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its classification relates to an activity listed under the schedules referred to above.
The Applicant's eligibility under Sl No. 3 or 3A of the Exemption Notification should, therefore, be examined from three aspects:
(1) whether the service being supplied is pure service or composite supply,
(2) whether the recipient is government, local authority, governmental authority or government entity, and
(3) whether the services provided are classifiable as a function entrusted to a Panchayat or a Municipality under the Constitution.
6. Pure service is not defined in the GST Act. However, it appears from the context that services involving no supply of goods are considered as pure service. The Applicant claims he is not supplying any goods while provisioning the services. The Applicant's services are, therefore, classifiable as pure service.
The supplies are made, according to the Application, to hospitals owned or managed by the government. It is, therefore, obvious that the reci

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ural expansion
2 
Land improvement, implementation of land reforms, land consolidation and soil conservation
3 
Animal Husbandry, Dairying and poultry
4 
Fisheries Industry
5 
Minor irrigation, water management and watershed development
6 
Social forestry and farm forestry
7 
Small scale industries in which food processing industry is involved
8 
Minor forest produce
9 
Safe water for drinking
10 
Khadi, village and cottage industries
11 
Rural housing
12 
Fuel and fodder
13 
Rural electrification, including distribution of electricity
14 
Road, culverts, bridges, ferries, waterways and other means of communication
15 
Education including primary and secondary schools
16 
Non-conventional sources of energy
17 
Technical training and vocational education
18  
Adult and non-formal education
19 
Public distribution system
20 
Maintenance of community assets

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ose in relation to the matters listed in the Twelfth Schedule”.
List of 18 items covered under the Twelfth Schedule of the Indian Constitution are as follows;
1 
Regulation of land use and construction of land buildings
2 
Urban planning including the town planning
3 
Planning for economic and social development
4 
Urban poverty alleviation
5 
Water supply for domestic, industrial and commercial purposes
6 
Fire services
7 
Public health sanitation, conservancy and solid waste management
8 
Slum improvement and up-gradation
9 
Safeguarding the interests of the weaker sections of society, including the physically handicapped and mentally unsound
10 
Urban forestry, protection of environment and promotion of ecological aspects
11 
Construction of roads and bridges
12 
Provision of urban amenities and facilities such as parks, gardens and playgrounds
13 
Promotion of cultural, educational and aesth

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s manual cleaning, duties of attendant or operator of trolleys.
Article 243G under Serial No 26 covers “Health and sanitation, including hospitals, primary health centres and dispensaries”.
Article 243W under Serial No 7 covers “Public health sanitation, conservancy and solid waste management”.
No other entries in the Eleventh or the Twelfth Schedules of the Constitution appear relevant while examining applicability of the Applicant's services bundled as 'Scavenging Services'. 'Health Care Service' is defined under clause 2(zg) of the Exemption Notification. It means inter alia any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicine in India and includes services by way of transportation of patient to and from a clinical establishment. It is classified under SAC 99931. It does not include any of the services the Applicant bundled under the description 'Scavenging Services'.
Again, 'Sanitation

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In Re: M/s. Storm Communications Private Limited
GST
2019 (1) TMI 1492 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (21) G. S. T. L. 272 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 28-1-2019
Case Number 39 of 2018 Order No. 39/WBAAR/2018-19
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY, MEMBER
Applicant's representative heard: Sanjay Mundhra, Authorized Representative
1. The Applicant, stated to be a supplier of Event Management Services in West Bengal and other states, seeks a Ruling on the following points:
a. Can a person, registered in WB, claim ITC for CGST and SGST of other states,
b. Can he adjust the ITC of one state's CGST for payment of another state's CGST,
c. Can he adjust the ITC of Tamil Nadu GST for payment of IGST, whereas he is not registered in Tamil Nadu?
Advance Ruling is admissible on this question under Section 97(2)(d) of the CGST/WBGST Act, 2017 (hereinafter collectively called “the GST Act” and includes

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

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rant in Tamil Nadu and the location of the recipient i.e. the Applicant, receiving the service, is also Tamil Nadu. So, the Applicant can avail ITC on the said invoices in Tamil Nadu only, if registered in Tamil Nadu. In no case, the Applicant can claim/adjust/avail ITC outside Tamil Nadu on the said invoices, even if the invoices are issued as B2B mentioning the Applicant's GSTIN in West Bengal.
6. The answers to the Applicant's questions, therefore, depend upon whether any component of the tax paid on intra-state inward supplies in a state can be used as an input tax credit for paying the outward tax liability in another state.
Section 49(4) of the GST Act provides that the amount available in the electronic credit ledger, as defined under Section 2(46), may be used for making such payment toward outward tax liability. The electronic credit ledger contains the balance of input tax credit on inward supplies as per the return of a registered person.
Under Section 2(62) of the GST Ac

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

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World Class Management Service Versus Commissioner of GST & CE Chennai South Commissionerate
Service Tax
2019 (2) TMI 23 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 28-1-2019
Application No. ST/Misc/CT/41605/2017, Appeal No. ST/251/2012 – FINAL ORDER No. 40170/2019
Service Tax
Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial)
Shri S. Sivaramakrishnan, Advocate For the Appellant
Shri B. Balamurugan, AC (AR) For the Respondent
ORDER
Per Shri Madhu Mohan Damodhar
The facts of the case are that appellants are engaged in the business of man power supply and registered with the department under ‚Man Power Supply Agency Service‛. Pursuant to audit, it appeared to the department that appellants had not discharged service tax liability amounting to Rs. 77,94,334/- for the period from April 2009 and March 2010, although they realized taxable value as well as service tax from their clients. After being pointed out

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cate Shri Siva Ramakrishnan made oral and written submissions which can be broadly summarized as under :
i) Service Receivers of the Appellant Company were taking 5 to 6 months and some times more than 6 months for settling the bills of the Appellant. However, the Appellant was paying Service Tax in advance on billing basis to avoid confusion. Apart fro that, the Appellant had to pay PF and ESI to the Manpower Supplied, on a monthly basis, in addition to making salary payments to the Manpower supplied. This created a huge cash flow problem to the Appellant and the Appellant were forced to borrow loan at high rates from private financial institutions apart from the bank loans to overcome this perennial problem.
ii) Immediately pursuant to Audit, appellant had arranged private loans and paid Service Tax of Rs. 56,96,352/- and Interest of Rs. 5,23,793/-. The Appellant was issued with a Show Cause Notice invoking Penalty under Section 76. Balance amount of Rs. 20,97,982/- towards Service

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ns Pvt. Ltd.. Vs. Commissioner of GST & Central Excise, Chennai South; Final Order Nos.42768-42769 / 2018 in the case of M/s.Sri Kalki Enterprises Vs. Commissioner of GST & Central Excise, Chennai and Final Order No.42481-42482/2018 in the case of M/s.Jeyam Automotive Ltd., Commissioner of GST & Central Excise, Coimbatore.
3. On the other hand, Ld. A.R Shri A.R. Balamurugan supports the impugned order. He justifies the imposition of penalty. He also submits that appellant being partnership concern was required to pay service tax by the 5th month of the month immediately following quarter in which the payments towards the value of taxable value of services were received as per Section 68 (1) of the Finance Act, 1994. Appellants not only did not pay tax within the due dates but also withheld the above information by not disclosing to the department in the ST-3 returns. Hence for these reason, there is no ground to interfere with the imposition of penalty.
4. Heard both sides and have g

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ome time for them to recover and for that reason, the service tax liability got accumulated. Nothing is brought out from evidence that there was any positive act of suppression with an intention to evade payment of service tax. Other than the delay caused due to financial crisis, we do not find any material to establish an intention to evade payment of service tax.
7.3 The Hon'ble jurisdictional High Court in the case of C.C.E., Coimbatore Vs. M/s. Sasi Advertising Pvt. Ltd. in C.M.A. No. 101/2018 dated 24.01.2018 had occasion to consider the appeal filed by the Department against the Order passed by the Tribunal, upholding the Order passed by the Commissioner setting aside the penalties imposed. The ground raised by the assessee in that case was that the assessee was undergoing much financial hardship. The Hon'ble High Court held that the penalties imposed under Section 77 and 78 ibid., set aside by the Tribunal invoking Section 80, was correct and proper. The relevant portion of the

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on 80 of the Finance Act, 1994, notwithstanding anything contained in the provisions of Section 77 or 1st proviso to Section 78, no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure.
31. Going through the reasons assigned by the assessee, on belated payment, we are of the view that the assessee substantiated reasonable cause for the failure in payment of service tax, within the stipulated time and hence, he is entitled to the benefit under Section 80 of the Finance Act.”
7.4 In C.S.T., Chennai Vs. Lawson Travel & Tours (I) Pvt. Ltd. – 2015 (38) S.T.R. 227 (Mad.), the Hon'ble High Court held that when the assessee faced financial crisis due to criminal breach of trust committed by their sub-agent and thereafter, paid the service tax voluntarily, the penalties imposed have been rightly set aside invoking Section 80. The Tribunal in the case of M/s. Dusters Total Sol

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i vide Final Order No.42768-42769/2018 dt. 23.10.2018, in a case where the appellant had pleaded that financial exigencies as a ground for non-payment of service tax in due time, this Bench held in favour of the appellant in the matter of invocation of imposition of penalty. The relevant portion of the aforesaid order is reproduced below :
“5. The appellant is contesting the penalties imposed only. In Appeal No. ST/300/2012, the adjudicating authority has imposed a penalty under section 76 and in Appeal No. ST/301/2012, the adjudicating authority has imposed penalty under section 78 of the Finance Act, 1994. The ld. consultant has furnished documents to argue that there was only delay in payment of service tax and there was no act of suppression of facts with intention to evade payment of service tax. On perusal of the documents such as the list of sundry debtors etc., it is seen that there was huge amount pending as receivables. So also they had to meet expenses for salary, accident

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Service Provided in India to a Foreign Party residing in a foreign Country.
Query (Issue) Started By: – MarketingServices INDIALLP Dated:- 25-1-2019 Last Reply Date:- 28-1-2019 Goods and Services Tax – GST
Got 3 Replies
GST
Sir
I am a marketing service provider. I provide marketing services in India to a foreign party situated outside india. My work is to promoted about the business of foreign party in india. Please suggested whether it accounts to export of services or not?
Repl

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REVERSE CHARGE GTA FROM OUTSIDE STATE
Query (Issue) Started By: – satbir singhwahi Dated:- 25-1-2019 Last Reply Date:- 31-1-2019 Goods and Services Tax – GST
Got 5 Replies
GST
Unit located in Punjab is receiving goods from Rajasthan, the freight paid by unit in Punjab, and reverse charge under gst . Whether Igst need to be paid or cgst and sgst.
Reply By KASTURI SETHI:
The Reply:
CGST + SGST covered under Section 8(a) of IGST Act, 2017.
Reply By Ganeshan Kalyani:
The Reply:
If t

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SALE OF USED MACHINERY
Query (Issue) Started By: – SUNDARA MOORTHI Dated:- 25-1-2019 Last Reply Date:- 28-1-2019 Goods and Services Tax – GST
Got 4 Replies
GST
MACHINERY PURCHASED DURING VAT REGIME IN 2012. VAT INPUT TAX NOT AVAILED.
DEPRECIATION CLAIMED UNDER INCOME TAX AS PER IT RULES.
THE USED MACHINERY IS BEING SOLD OUTSIDE THE STATE. (INTERSTATE)
THE ISSUE IS WHAT IS THE RATE OF GST AND ON WHAT VALUE.?
NEED A DETAILED REPLY ASAP.
Reply By Ganeshan Kalyani:
The Reply:
GST is applicable on the value of supply at applicable rate.
Reply By KASTURI SETHI:
The Reply:
You are to pay GST at depreciated value. Depreciated value can be computed by many methods but two methods are very suitable and beneficial to the assessees

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CASES THAT NOT AMOUNT TO PROFITEERING
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 25-1-2019

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

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

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ttee on Anti-Profiteering v. Asian Granito India Limited' – 2018 (12) TMI 1401 – NATIONAL ANTI-PROFITEERING AUTHORITY, it was alleged anti-profiteering by the respondent on the supply of 'Granure Hard Nero-10MM & Granure Hard Crema – 10 MM Tiles' by not passing on the benefit of reduction in the rate of tax of GST with effect from 15.11.2017 from 28% to 18%. The Authority found from the report that the sale price of these products was reduced from ₹ 1037.52 (pre GST revision) to ₹ 840.68 (post GST revision) when the GST rate on the above items was revised from 28% to 18%. Thus it is clear that the base prices have not been changed and accordingly the selling prices of the products have been reduced. The respondent has duly passed on the benefit of reduction of tax rate by the keeping the base price constant thus reducing the selling price of the products in question. Therefore the anti profiteering provisions are not attracted.
Passing on the benefit of ITC
In 'Shylesh Da

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

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NATIONAL ANTI-PROFITEERING AUTHORITY (NAA) AND ITS ORDERS IN 2018
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 25-1-2019

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

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

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nefit of GST rate reduction from 18% to 5% on supplies of burgers
Not established for want of evidence
(2018) 10 TMI 1615 (NAA)
12
16.11.2018
M/s Fabindia
Sale of Bathing Bar and instant Drink Powder on old MRP even after GST fixed @ 18%
Not established
(2018) 11 TMI 1011 (NAA)
13
16.11.2018
M/s Hard Castle
(McDonald's)
No passing of benefit of GST rate reduction from 18% to 5% on supplies of burgers
Upheld
[2018] 11 TMI 1073 (NAA)
14
28.11.2018
M/s Theco India Pvt. Ltd.
(Milling Machine Furnace)
No passing of benefit of GST rate reduction and ITC on purchase of important machinery
Upheld
2018 (12) TMI 135 (NAA)
15
06.12.2018
M/s J.P. and Sons
(Johnson & Johnson Baby)
Charge of same MRP after tax reduction
Upheld
(2018) 12 TMI 472 (NAA)
16
07.12.2018
M/s Harish Bakers & Confectioners Pvt. Ltd. (Cadbury Dairy Milk Chocolate)
No passing of benefit of GST rate reduction from 28% to 18 % on chocolates
Upheld
(2018) 12 TMI 473 (NAA)
17
17.12.2018

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hed
(2018) 12 TMI 1403 (NAA)
23
24.12.2018
M/s Impact Clothing Co.
Allegation of profiteering on sale of garments
Not established
(2018) 12 TMI 1404 (NAA)
24
27.12.2018
M/s Raj & Company
Allegation of not passing benefit of tax rate reduction and not changing MRP of various FMCG products
Upheld
(2019) 1 TMI 22 (NAA)
25
27.12.2018
M/s Janson
Allegation of not passing benefit of tax rate reduction on supply of Lungi
Not established
(2018) 12 TMI 1600 (NAA)
26
27.12.2018
M/s Lorenzo Vitrified Tiles Pvt. Ltd.
Allegation of not passing benefit of tax rate reduction on supply of Mirror Series Tiles
Not established
(2018) 12 TMI 1601 (NAA)
27
27.12.2018
M/s Ahuja Radios
Allegation of not passing benefit of tax rate reduction on supply of Ceiling / wall speaker
Not established
(2018) 12 TMI 1602 (NAA)
28
27.12.2018
M/s Asian Paints Ltd.
Allegation of not passing benefit of tax rate reduction on supply of paint product
Not established
(2019) 1 TMI 2

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M/s GLORY CHEMICALS LIMITED Versus ASSISTANT COMMISSIONER OF GST AND CENTRAL EXCISE
Central Excise
2019 (1) TMI 1500 – GUJARAT HIGH COURT – TMI
GUJARAT HIGH COURT – HC
Dated:- 25-1-2019
R/SPECIAL CIVIL APPLICATION NO. 1444 of 2019
Central Excise
MS HARSHA DEVANI AND DR A. P. THAKER, JJ.
For The Petitioner (s) : MR ANAND NAINAWATI (5970)
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. The learned advocate for the petitioner has tendered a draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith.
2. Mr. Anand Nainawati, learned advocate for the petitioner has invited the attention of the court to the order of attachment of immovable property dated 8.1.2019,

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e to him to cause notice to be served upon the defaulter requiring the defaulter to pay the amount specified in the Certificate within seven days from the date of service of the notice and intimate that in default, such subordinate officer is authorised to take steps to realise the amount mentioned in the Certificate in terms of the rules. It was submitted that in the present case, no notice as contemplated under rule 4 of the Recovery Rules has been served upon the petitioner. Referring to rule 5 of the Recovery Rules, it was pointed out that it is only if the amount mentioned in the notice issued in terms of rule 4 is not paid within seven days from the date of service of notice that the Proper Officer may proceed to realise the amount by

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M/s Morgan Stanley India Financial Services Pvt. Ltd. Versus Commissioner of CGST, Mumbai East
Service Tax
2019 (2) TMI 19 – CESTAT MUMBAI – [2019] 71 G S.T.R. 226 (CESTAT – Mum)
CESTAT MUMBAI – AT
Dated:- 25-1-2019
APPEAL NO. ST/87641 & 87737/2018 – A/85196-85197/2019
Service Tax
SHRI AJAY SHARMA, MEMBER (JUDICIAL)
Shri Prasad Paranjape, Advocate with Shri Suyog Bhare, Advocate for Appellant
Shri Onil Shivdikar, Assistant Commissioner (AR) for Respondent
ORDER
These appeals have been filed by the Appellant from the Order-in- Appeals dated 04.04.2018 passed by the Commissioner of CGST & Central Excise (Appeals-II), Mumbai by which the learned Commissioner partly allowed the appeal filed by the Appellant and rejected the claim of CENVAT credit qua “Air Travel Agent Services”, “Banking & Financial Services”, “Business Auxiliary Services” and “General Insurance Services” on the ground that there is no nexus between the input services and output services and the

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dvantage Services Pvt. Ltd. He also produced the copy of the said order.
4. Learned Authorised Representative appearing on behalf of the Revenue reiterates the findings recorded in the impugned order and prayed for dismissal of the appeal.
5. During the course of hearing learned Counsel for the Appellant has also produced a chart indicating the amount in issue against each head, the said chart is taken on record and is extracted as under:-
Sr. No.
OIO Date and Page No.
Period
Nexus Issue
Excess Refund Claimed
Total
General Insurance Services
Air Travel Agent Services
Storage & Warehousing Services
Banking or Financial Services
Business Auxiliary Services
 
 
A
B
C
D
E
F
G
H
I
J
1
23.12.15 (Pg. 27)
Oct 14 to Mar 15
–
63,559
12,666
3,872
1,172
8,41,890
9,23,159
2
19.07.16 (Pg. 45)
Apr 15 to Sep 15
7,70,288
77,662
8,806
1,439 831
–
8,59,026
 
Total
7,70,288
1,41,221
21,472
5,311
2,003
8,41,890
17,82,185
The facts of the

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company are at financial risk which may arise against them in the event of any fraud is committed in the investee company. Ultimately the said financial liability has to be borne by the Appellant, therefore in order to protect themselves, the Appellant has taken an insurance policy from Tata AIG in its own name with respect to claim that may be made against its employees who are appointed as Nominee Director/Alternate Director in the investee company. The said insurance policy is taken so that the insurance company can pay the losses of the Appellant which may arise from the arrangement of appointing its employee as Nominee Director/Alternate Director in the investee company, during the course of providing services to its overseas clients. Therefore, it is clear that the insurance policy is taken by the Appellant in relation to the financial risks during the course of business that may arise upon the appointment of the employees as Nominee Director/Alternate Director in the investee co

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deliver qualitative services to them. These meetings are essential for the business of the Appellant and in its absence, the business of the Appellant is going to be affected. Therefore, in my view this input service as availed by the Appellant in connection with its business are essential for the provision of output services and therefore the Appellant is entitled for refund of Service Tax on the said services.
7. The “Storage and Warehousing Services” have been availed by the Appellant for storage of important business related information and the files which are very essential for smooth and organise functioning of business. “Banking & Financial Services” had been availed by the Appellant for availing foreign exchange conversion services for its employees travelling abroad for the business of the Appellant and the “Business Auxiliary Services” have been procured by the Appellant for repairing of the cellular phone of its employees who have been provided with the cellular phone/mobi

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on account of non-reversal of erroneous credit availed by the Appellant in their ST-3 return. It is admitted fact that the Appellant had erroneously availed excess CENVAT credit to the tune of Rs. 7,70,687/- in the month of August, 2014 at the time of filling Service Tax return for the period April, 2014 to September, 2014. According to the Appellant they had identified this error after the due date for revision of Service Tax return for the aforesaid period. But while filing the Service Tax return for the period October, 2014 to March, 2015 the Appellant had reversed the CENVAT credit which was erroneously taken by them during the month of August, 2014 from the total availment for the month of October, 2014 and the CENVAT credit availmnet for the said month of October, 2014 was done in the following manner:-
Particulars
 
Amount
CENVAT credit availed during the month of October 2014
A
11,29,175
Less: Erroneous availment of CENVAT credit in the month of August 2014
B
(7,

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____________
Total Turnover
x
CENVAT credit availed during the period as reduced by any reversals required under Rule 3(5C) of the CENVAT Credit Rules, 2004
The amount arrived by the aforesaid formula is maximum amount that can be claimed as refund under Rule 5 ibid. However, the actual sanction amount depends on other conditions and restrictions prescribed under the Notification No. 27/2012-CE (NT) dated 18.06.2012. Para 2(g) of the said notification prescribes that the sanction amount should be subject to quantitative restriction as follows:-
“2(g) the amount of refund claimed shall not be more than the amount lying in balance at the end of quarter for which refund claim is being made or at the time of filling of the refund claim, whichever is less.”
9. Both the Authorities below have erred in considering the amount of unutilised credit for the quarter, which was calculated by deducting the amount of domestic services tax liability for the period discharged through utilisation

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27/2012-CE (NT) dated 18.06.2012 and Rule 5 of CENVAT Credit Rules, 2004 passed the following order:-
“xxxx
xxxx
xxxx
8. ……………………………. As regard the issue that whether the proposal of the Revenue to reduce the cenvat credit utilize for payment of service tax on the domestic clearances of the services for the purpose of considering the net cenvat credit availed for the purpose of formula, I do not agree with the Revenue's proposal for the reason that as per Notification No. 27/2012- CE(NT) dt. 18.6.2012 in para 2(g) it provides as under:
“2. Safeguards, conditions and limitations – Refund of CENVAT Credit under rule 5 of the said rules, shall be subjected to the following safeguards, conditions and limitations, namely:-
(a)……………
(b)……………..
(c)……………..
(d)……………..
(e)……………..
(f)………………..
(g) the amount of refund claimed shall not be more than the amount lying in balance at the end

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tter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette:
Refund amount =
(Export turnover of goods + Export turnover of services)
_______________________
Total turnover
x
Net CENVAT credit
Where,-
(A) “Refund amount” means the maximum refund that is admissible;
(B) “Net CENVAT credit” means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period;
(C) “Export turnover of goods” means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter

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ve formula, and definition of net cenvat credit, it is clear that only cenvat credit availed on the inputs and inputs services by the manufacturer or the output service provider should be taken as 'net Cenvat credit'. The only amount which can be reduced is the amount which is reversed in terms of Sub-rule (5C) of Rule 3 during the relevant period. Therefore no amount which was utilized for payment of service tax in respect of domestic provision of service from cenvat amount is required to be reversed as per formula. The net sum will be the centvat credit attributable to export only. Therefore the formula itself taken care to reduce the element of cenvat credit attributable to the service provided in the domestic market, therefore the proposal of the revenue is based on presumption and assumption which has no authority therefore this proposal is also rejected and refund claim cannot be disputed on this count.”
11. In view of the facts and the decision mentioned above, it is clear tha

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CCGST Belapur Versus Reliance Infocomm Infrastructure Ltd.
Service Tax
2019 (2) TMI 21 – CESTAT MUMBAI – [2019] 65 G S.T.R. 296 (CESTAT – Mum)
CESTAT MUMBAI – AT
Dated:- 25-1-2019
Appeal No. ST/87380/2018 – A/85193/2019
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
Shri Suresh, AC (AR) for the appellant
Ms. Ginita Badani, Advocate for the respondent
ORDER
Order passed by the Commissioner of CGST & CE, (Appeals), Raigad setting aside the penalty imposed by the adjudicating authority on the respondent under section 77 and 78 of the Finance Act read with 15(3) of Cenvat Credit Rules is assailed by the appellant department before this forum.
2. Factual backdrop of the case, in a nutshell, is that respondent Reliance Infocomm Infrastructure Ltd. was pointed out by the audit team to have availed ineligible cenvat credit of Rs. 23,98,774/- on “business support service” and “renting of immovable property service.” Between the Financial year 2009-10 and 2011

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en to the Commissioner (Appeals) by the respondent who set aside the penalty on all scores. The said order is being challenged here by the appellant department.
3. In the memo of appeal and during course of hearing of the appeal, learned AR for the department submitted that the order passed by the Commissioner (Appeals) is erroneous inasmuch as the finding of which he arrived at such conclusion is illogical. While admitting that show-cause notice does not reveal that proviso to Section 73(1) was invoked for imposition of penalty under section 78 of the Finance Act. Learned AR Shri Suresh submitted that during the corresponding period 2009 to 2012 no such provision in the Finance Act 1994 other than Section 73(1) or Rule 15 of Cenvat Credit Rules 2004 could be pressed into service to make such demand in the show-cause for which Section 73(1) is implicit in the show-cause though not expressly referred inasmuch as Section 15(3) of the Cenvat Credit Rules was invoked in the show-cause not

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proof regarding admissibility of cenvat credit on the assessee and in case of any doubt it could have sought advice from the department and should never have misstated the fact in the ST3 return for which the order of the Commissioner (Appeals) is liable to be set aside.
4. In response to such submissions, though that no Cross objection is field, the learned counsel for the respondent Ms. Ginita Badani submitted that the respondent had received an intimation later from the appellant department on 06.12.2012 intimating the respondent to cooperate in the proper audit to be conducted in its concern and produce relevant documents before it. It also requested that payment of service tax with interest with furtherance of the audit objection by the respondent would help conclude all proceedings and put an end to the litigation. Referring to relevant para of the said audit report produced vide Exhibit A, the learned counsel for the respondent submitted that the respondent was instructed that

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provisions of the Act and circular no. 137/167/2006-CX – IV dated 03.10.2007 clearly stipulates that in such a situation, all proceedings are required to be concluded against the person to whom show-cause is issued under sub section (1) of section 73 if he had paid service tax in full together with interest and penalty, if applicable under sub section (1)(a). She further prayed for affirmation of the order passed by the Commissioner (Appeals).
5. Heard from both sides at length, and gone through the case record and relevant case laws produced by both parties. The grounds on which Commissioner (Appeals) had set aside the order of the first appellate authority are mainly two. First, for differential short payment of service tax, no show-cause notice was issued as appellant had already paid the said tax along with interest; Second, appellant was not issued with show-cause under section 73(1) of the Finance Act for which it has to be presumed that department has accepted the liability un

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admissible and not supported by the Rule except that respondent had accepted the fact of such availment of such credit as inadmissible. Though admissibility or inadmissibility of the credit in respect of renting of immovable property and business support service is a mixed question of fact and law, the same requires no discussion here in view of admission by the respondent except to the extent that there is a difference between compliance of audit report and discharge of duty liability in respect of imposition of tax as per Section 265 of the Constitution of India. Moreover, appellant was given a written promise before commencement of Audit that if any discrepancy in the audit is pointed out and the same is complied with, no further litigation would ensue.
6. When show-cause does not contain the rule violated by the respondent while proposing penalty which Commissioner (Appeals) found from the factual aspect of the case to have been covered under Section 73(2) and held that in such an

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SRI LAKSHMI PRASANNA AGRO PAPER INDUSTRIES LIMITED Versus CCT, VISAKHAPATNAM GST
Central Excise
2019 (2) TMI 750 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 25-1-2019
APPEAL No. E/30483/2018 – A/30110/2019
Central Excise
Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL)
Shri D. Viswanathan, Consultant for the Appellant.
Shri N. Bhanu Kiran, Asst. Commissioner /AR for the Respondent.
ORDER
Per: Mr. P.V. Subba Rao
1. This appeal has been filed against Order-in-Appeal No. VIZ-EXCUS- 002-APP-097-17-18, Dated 21.12.2017. Ld. Consultant appeared for the appellant submits that the issue involved in the present case is that the appellants defaulted in payment of central excise duty during the months of January 2012 and October 2012. They did not pay the amount of duty within 30 days from the due date as required. Accordingly, in terms of Rule 8 (3A) of Central Excise Rules, 2002, they are required to pay duty in respect of clearances after this 30 days grace

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, who vide the impugned order, rejected the appeal and upheld the Order-in-Original. Hence, this appeal.
3. Ld. Counsel submits that the issue in the present appeal is limited to the penalties imposed under the above two rules. A penalty of Rs. 50,000/- was imposed for violating the Rule 8(3A) of Central Excise Rules, 2002. This rule itself has been struck down by Hon'ble High Court of Gujarat in the case of Indsur Global Limited vs. Union of India [2014(12)TMI 585 (Guj.)]. On an appeal by Union of India, this judgment of Hon'ble High Court of Gujarat has been stayed by Hon'ble Supreme Court as reported in [2016(335)ELT A109 (SC)]. However, the judgment of Hon'ble High Court of Gujarat has not been quashed or set aside by Hon'ble Apex Court and only its operation has been stayed. It is his assertion that in such circumstances, the ratio of the judgment would still apply and Rule 8(3A) of Central Excise Rules, 2002 will continue to be inoperative. In support of his argument on this poi

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very small and the same has already been paid with interest.
4. Ld. DR reiterates the findings of the lower authority and argues that the impugned order needs to be upheld.
5. I have considered the arguments on both sides and perused the records. The issue falls in a very narrow compass. As far as the penalty imposed for violation of Rule 8(3A) of Central Excise Rules, 2002 is concerned, I find that Hon'ble High Court of Gujarat has struck down this Rule and the judgment of Hon'ble High Court of Gujarat has been stayed by Hon'ble Supreme Court. The Hon'ble High Court of Delhi in the case of Space Telelink Limited (supra) held that the ratio of the judgment of Hon'ble High Court of Gujarat would still apply notwithstanding the fact that it has been stayed by Hon'ble Apex Court. It has been held that only the operation of the judgment is stayed and not the underlying basis of the judgment itself.
6. In view of the above, I find that the penalty imposed under Rule 25(1)(a) of Central

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M/s. Genus Electrotech Ltd. Versus The Commissioner of GST & CE, Pondycherry
Central Excise
2019 (2) TMI 847 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 25-1-2019
E/41889/2018 – 40162/2019
Central Excise
Shri P. Dinesha, Member (Judicial)
For the Appellant : Shri J. Shankarraman, Advocate
For the Respondent : Shri L. Nandakumar, AC (AR)
ORDER
The appellant is a manufacturer of 'Electric Table Fans and Domestic Electric Food Mixer' for exclusive supply to the Tamilnadu Government, under Rate Contract. Show Cause Notice (SCN) dated 29.02.2016 reveals that the appellant had taken on rent a godown located at No. 107/3A1C, M.N. Kuppam, Navammal Kappir Village, Kandamangalam, Villupuram, Tamilnadu-605102 where, the

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ce constraint; that the seized goods were not marketable otherwise since the same was manufactured for Tamilnadu Government to be distributed freely as per a scheme of the Government; that the removal of the above goods against the returnable delivery challans was undertaken to facilitate further production at its registered premises, that the contract was for bulk quantity but the supply was effected as per the terms of contract in retail form at each taluk office, etc., but accepted to clear the Central Excise Duty of Rs. 13,83,970/- demanded and also agreed to offer a bank guarantee of Rs. 28,00,000/-.
2. After considering the reply, the adjudicating authority vide Order-in-Original dated 31.03.2017 ordered confiscation of the impugned

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ty of redemption fine with equal penalty is justified on the facts and circumstances involved?
4.2 Undisputedly the electric table fans manufactured by the appellant are specifically manufactured for the Government of Tamilnadu as per the Government Scheme and otherwise, the impugned goods have no marketability and cannot be sold in the open market. The manufactured fans could only be cleared against the orders by Tamilnadu State Civil Supplies Corporation for free distribution under the State Government's scheme and the said fans carried a specific logo. In the light of the above discussion, I find merit in the plea of the assessee that removal from the factory to its godown is not an act of fraud, collusion, suppression etc. to evade pay

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M/s Dharampal Satyapal Ltd. Versus Commissioner of CGST & Central Excise, Noida
Central Excise
2019 (3) TMI 175 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 25-1-2019
APPEAL No. E/70017-70020/2018-EX[SM] – A/70134-70137/2019-SM[BR]
Central Excise
Mr. Anil G. Shakkarwar, Member (Technical)
Shri Kartikeya Narain, Advocate, for Appellant
Shri Gyanendra Kumar Tripathi, Deputy Commissioner (AR), for Respondent
ORDER
Per: Anil G. Shakkarwar
Above stated four appeals are taken together for decision since the same are arising out of common impugned Order-in-Appeal No. NOI/EXCUS/000/APPPL165-168/2014 dated 30/09/2014 passed by Commissioner of Customs, Central Excise & Service Tax (Appeals), Noida.
2. After he

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y was due. I note that learned Counsel for the appellants have submitted a copy of Final Order No. 70221-70231/2018 dated 16.01.2018 which squarely covers the issue. As per the said Final Order the said demand of Rs. 3,91,19,765/- was agitated before this Tribunal in Appeal No. E/789/2011 & E/1001-1006/2010 and the matter was remanded to the Original Authority for fresh consideration by setting aside the Order-in-Original through which said demand was confirmed. I note that as on date there is no confirm demand against the appellants. Therefore, there is no justification in appropriation of above stated amounts. Under those circumstances impugned order does not sustain. I, therefore, set aside the impugned order and allow all the four appea

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GST Return
Query (Issue) Started By: – Rafi rafi Dated:- 24-1-2019 Last Reply Date:- 26-1-2019 Goods and Services Tax – GST
Got 4 Replies
GST
Hi Sir,
I had Wrongly Mention the our Export amount in Column 3.1 a instead of 3.1 b in GSTR 3B due to which my export Invoices has not been sent to Icegate for refund. request you to please provide me the solution to rectify and to separate the amount from table 3.1A t table 3.1B in GSTR 3B of Previous month to GSTR 3B of current month.
Pls give reply soon.
Regards
Rafi
Reply By Ganeshan Kalyani:
The Reply:
Reduce the amount in 3.1 (a) table and show the export amount in 3.1 (b) table in current month return.
Reply By KASTURI SETHI:
The Reply:
Once GSTR 3B return is freezed it ca

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Transfer of Manufacturing Unit and accumulated ITC from one state to another
Query (Issue) Started By: – Vinay Kunte Dated:- 24-1-2019 Last Reply Date:- 13-2-2019 Goods and Services Tax – GST
Got 6 Replies
GST
We have a GST registered Manufacturing Unit in Daman and want to transfer the unit to Maharashtra. We have huge amount of ITC Accumulated due to the high Imports under Excise and also under GST.
What is the way out / procedure to be followed to enable us to transfer the ITC to the new Unit after utilising the ITC for payment of GST Payable on raw materials, finished goods and capital goods are stock transferred to new unit?
Reply By KASTURI SETHI:
The Reply:
Dear Querist, . ITC-02 has to be filled in on Common Portal

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iness is being shifted from 1 state to another under the same ownership (PAN) but to a different Registration as required under GST.
Will the provisions of Rule 41 (1) to 41(4) be applicable in case of the transfer of unit w/o transfer of liability as such under an agreement as there is no change in ownership of the Business?
Please give your valuable guidance in this respect please.
Reply By KASTURI SETHI:
The Reply:
Dear Vinay Ji,
Let me re-examine. I shall revert soon.
Reply By Vinay Kunte:
The Reply:
Dear Mr. Kasturi Sir
Can you guud ne futher in the issue?
Reply By KASTURI SETHI:
The Reply:
Dear Sh.Vinay Kunte Ji,
Pl. refer to your query dated 27.1.19(Serial No.2). When you say it is a transfer to same ownership(PAN is same

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Advance Authorisation
Query (Issue) Started By: – Kumar Kedia Dated:- 24-1-2019 Last Reply Date:- 29-1-2019 Goods and Services Tax – GST
Got 8 Replies
GST
Hi Sir,
I have a query regarding why if imports are made after completing the export obligation then those imports shall be used only in manufacture and supply of taxable goods. What is the intention of government in making such change in Notification 1/2019- CGST?
Thanks
Reply By KASTURI SETHI:
The Reply:
Dear Kedia Ji,
Notification No.1/19-Central Tax dated 15.1.19 has made two changes as under:
(i) Insertion of requirement of a certificate from C.A.
(ii) Omission of words, "on pre-import basis" in the Explanation given in Notification No.48/2017- CT dated 18.10.17.
The condition of producing a certificate from C.A. to the effect that inputs imported under Advance Authorisation have been used only in the manufacture and supply of taxable goods, was already in force vide Para No.4.16 of Foreign Trade P

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eted.
(ii) In case where CENVAT credit facility on input has been availed for the exported goods, even after completion of export obligation, the goods imported against such Advance Authorisation shall be utilized only in the manufacture of dutiable goods whether within the same factory or outside (by a supporting manufacturer). For this, the Authorisation holder shall produce a certificate from either the jurisdictional Central Excise Authority or Chartered Accountant, at the option of the exporter, at the time of filing application for Export Obligation Discharge Certificate to Regional Authority concerned.
6[4.14: Details of Duties exempted (FTP 2015-20)
Imports under Advance Authorisation are exempted from payment of Basic Customs Duty, Additional Customs Duty, Education Cess, Anti-dumping Duty, Countervailing Duty, Safeguard Duty, Transition Product Specific Safeguard Duty, wherever applicable. Import against supplies covered under paragraph 7.02 (c), (d) and (g) of FTP will no

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ly:
Dear Querist,
I do not agree with you. This is not the situation.
In the changed scenario, export obligation has to be completed first and thereafter, material is to be imported free of tax under Advance Authorization. Prior to 15.1.19, situation was contra. In my reply dated 27.1.19, I have detailed of Customs duties/taxes for which exemption is being availed under Advance Authorisation.
Though export is zero rated, yet exported goods are treated as duty paid goods for the purpose of availment of ITC. No ITC is required to be reversed in respect of inputs used in the manufacture of exported goods. Duty/Tax paid on finished goods, if paid, is also refunded by way of refund/rebate. So many other benefits have also been provided in respect of exportation. After availing these benefits, Govt. intends to tax the goods manufactured out of those materials/inputs which are to be imported free of Customs duties including IGST and Compensation Cess (mentioned above in reply dated 2

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

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Applicablity of Rental Service provided to a Transit good which was originated at Japan, store for temporary period at Indian port and again re exported to Dubai
Query (Issue) Started By: – Surendra Prasad Dated:- 24-1-2019 Last Reply Date:- 27-1-2019 Goods and Services Tax – GST
Got 9 Replies
GST
Dear Sir/Madam,
In regard to subject kindly guide whether GST is applicable or not.
Fact of transaction We ,are a bonded warehouse located at Kandla Port.
One of our client a foreign company, Dubai based imported Chemical from Japan and store at our bonded warehouse at Kandla port , we enter into rental agreement for storing his chemical at Kandla.
The said chemical was store for period of one month. The same chemical parcel was re-exported to Dubai by the foreign cl ient without entering home market
Now we are billing to foreign client for rental service for the storage of parcel. Now question arises whether such type of service provided at Indian port bonded warehouse GST

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ai. From Bonded ware house at Kandla port, it was reexported to another country( UAE) Dubai.I am the owner of Bonded Warehouse . I have to collect the storage charges.
Whether service provided by bonded ware house at Indian port to Dubai based company is liable to GST ? or since good doesnot enter India GST is not leviable on the services provided? or if applicable whether C+Sgst or IGST.
Please guide.
Reply By KASTURI SETHI:
The Reply:
Dear Sh.Prasad Ji, I have posted the case law in order to understand the situation. This case law is not fully applicable to the situation explained by you. In my view, this situation consists of two components . 1.Supply of service 2 Supply of goods for re-export. In the first situation, you have provided/supplied rewarehousing services (rental) and charged the amount (consideration) for one month. In this instance, place of supply is in taxable territory (India) and within same State. It is not export of service. Hence CGST and SGST payable. Re-ex

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y, therefore, question relating to goods does not arises.
Moreover, in respect of query, the renting of immovable property (ware housing service) is very well covered by the Section 13 (4) of IGST Act, 2017, as location of immovable property is India (as per the definition “India” includes territorial water), therefore, although immovable property is as Customs Area, As rightly viewed by Sh. Kasturiji Sir, CGST + SGST is applicable for the services rendered.
Any different view is highly solicited.
Thanks,
With regards,
Reply By Surendra Prasad:
The Reply:
In regards to above subject , had instead of renting of immovable property( ware housing services), our service fall under cargo handling service , i.e we store at bonded ware house chemical , we provide heating on chemical while storage for the chemical , we provide security also., we have taken insurance for product also.
Had there will be any change from GST applicablity if we are providing cargo handling services at our T

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GST on FOC Supply
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 24-1-2019 Last Reply Date:- 26-1-2019 Goods and Services Tax – GST
Got 3 Replies
GST
XYZ(Manufacturer) supplying goods to customers on payment of GST. Subsequently, goods are supplied on FOC basis, 1) During warranty period if found defective or damaged or 2) After warranty period if found defective, damaged or short supplied. a) Whether XYZ is required to pay GST on goods supplied on FOC basis under both the situations i.e. before and after warranty period? b) How to arrive at the value for FOC supply c) Whether proportionate ITC is required to be reversed if GST is not required to be paid on FOC supply?
Reply By KASTURI SETHI:
The Reply:
Dear Sir,
Th

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ncludes the charges to be incurred during the warranty period. Therefore, the supplier who has undertaken the warranty replacement is not required to reverse the input tax credit on the parts/components replaced.
Reply By Ganeshan Kalyani:
The Reply:
The replacement of parts during warranty period is a free supply. Warranty is a written guarantee, issued to the purchaser of goods by its manufacturer, promising to repair or replace it if necessary within a specified period of time. If the goods are supplied with warranty, the consideration received as part of supply includes the consideration for “the promise to repair or replace”. Since the parts are provided to a customer without consideration under warranty no GST is chargeable on such

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UNIBIC FOODS INDIA PVT. LTD. Versus ASSISTANT SALES TAX OFFICER SUVEILLANCE SQUAD NO. XVI, STATE GST DEPARTMENT, WAYANAD
GST
2019 (1) TMI 1486 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 24-1-2019
WP(C) 1843/2019, WP(C). 1847/2019
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner (s) : ADVS. SRI. ANIL D. NAIR SMT. ARYA ANIL SHRI. GOKULRAJ L. SMT. NILOOFAR O. NIZAM AND SRI. SREEJITH R. NAIR
For The Respondent (s) : GP DR. THUSHARA JAMES
JUDGMENT
The petitio

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Tvl. RK Motors Versus State Tax Officer
GST
2019 (2) TMI 125 – MADRAS HIGH COURT – 2019 (23) G. S. T. L. 178 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 24-1-2019
W. P. (MD)No. 1287 of 2019 And W. M. P. (MD)No. 1098 of 2019
GST
Mr. Justice G.R. Swaminathan
For the Petitioner : Mr.A.Chandrasekaran
For the Respondent : Mr.Aayiram K.Selvakumar Additional Government Pleader
ORDER
Heard the learned counsel appearing for the writ petitioner and the learned Additional Government Pleader appearing for the respondent.
2. Mr.A.Valivittan, DCTO (Sattur Road) Roving Squad, O/o.The Assistant Commissioner (ST) (Enforcement), Virudhunagar is present and assisted this Court today.
3. By consent of both parties, this writ petition is taken up for disposal at the stage of admission itself.
4. The writ petitioner is an authorised dealer for Bajaj Auto Limited. They are dealing in two wheelers. They have registered themselves as an assessee under the Goods and Service Tax Act, 2017

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6,000/- had been levied as a penalty. The vehicle has also been seized and detained. Unless the writ petitioner remitted the said penalty amount, it has been made clear that the goods as well as the vehicle would not be released. It has been further made clear that the goods would be liable for confiscation and further proceedings under Section 130 of the Tamil Nadu Goods and Services Tax Act, 2017 would be taken. Hence, this writ petition has been filed questioning the detention order dated 28.12.2018 and the order dated 11.01.2019 passed under Section 129(3) of the Tamil Nadu Goods and Services Tax Act, 2017.
5. The respondent official would submit that the vehicle ought to have halted at Virudhunagar and the goods carried in the vehicle should have been offloaded in the branch office of the writ petitioner at Virudhunagar. But, the vehicle did not stop at Virudhunagar, instead, it moved towards Sivakasi. Only when the vehicle had travelled a distance of 7 km away from Virudhunagar,

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The driver, who drove the vehicle in question is not a Tamilian. His name is Badrinath Bhandari. He hails from Maharashtra.
8. The learned counsel appearing for the writ petitioner states that the said driver knows neither English nor Tamil. He knows only Marathi and Hindi.
9. The specific stand taken by the writ petitioner is that the driver without knowing the correct route had taken a wrong turn and headed towards Sivakasi.
10. It is also not in dispute that the bill is addressed only to the writ petitioner's principal office at Sivakasi; delivery alone is to be made at Virudhunagar. I am of the view that even if by mistake, a wrong instruction had been given to the driver of the vehicle to head towards Sivakasi. Still it would not really matter. The only question that the respondent ought to have posed is whether there is any attempt at evasion. It is not as if the goods had already been offloaded. The vehicle was intercepted when it was in transit. The respondent ought to h

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he said circular contemplates levy of only a minor fine of Rs. 500/-.
12. As rightly pointed out by the learned counsel appearing for the writ petitioner, the goods in question are two wheelers. They cannot be sold without proper registration with the Motor Vehicle Authorities. That would require proper documentation. Therefore, in a case of this nature, the writ petitioner could not have evaded his statutory obligations in any manner. This aspect of the matter ought to have been taken note by the respondent.
13. The learned counsel appearing for the writ petitioner submits that the writ petitioner would pay a sum of Rs. 5,000/- as fine to the respondent.
14. The above submission of the learned counsel appearing for the writ petitioner is recorded. By directing the writ petitioner to pay a sum of Rs. 5,000/- [Rupees Five Thousand only] towards fine to the respondent, the orders impugned in this writ petition stands quashed. The respondent shall forthwith release the vehicle as well

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Cannon Industries Pvt. Ltd. and others Versus Commissioner of Goods And Service Tax, Ludhiana
GST
2019 (2) TMI 298 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 24-1-2019
CWP-1974-2019
GST
MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL, JJ.
For The Petitioners : Mr. Alok Yadav, Advocate with Mr. Shantanu Bansal, Advocate
ORDER
AJAY KUMAR MITTAL, J (ORAL)
The petitioners inter alia have approached this Court under Articles 226/227 of

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M/s. Global Associates Versus Union of India Ministry of Finance,
GST
2019 (2) TMI 388 – KARNATAKA HIGH COURT – [2019] 69 G S.T.R. 161 (Kar)
KARNATAKA HIGH COURT – HC
Dated:- 24-1-2019
WRIT PETITION Nos. 56586 – 56588/2018 (T-TAR)
GST
MRS. S. SUJATHA J.
PETITIONER [BY SRI V. RAGHURAMAN, ADV.]  
RESPONDENTS [BY SRI AMIT DESHPANDE, SENIOR STANDING COUNSEL FOR R-1 & R-3; SRI T.K.VEDAMURTHY, AGA FOR R-2, R-4 & R-5.)  
O R D E R
The petitioner is claiming the following reliefs in the writ petition filed under Articles 226 and 227 of the Constitution of India:-
(A) Writ of declaration or any other appropriate writ, order or direction to declare entry 5(b) of Schedule II to the GST Act, 2017 (enclosed as Annexure-A) as unconstitutional being violative of Article 366(29A) of the Constitution.
(B) Writ of declaration or any other appropriate writ, order or direction to declare entry 5(b) of Schedule II to the CGST Act, 2017 (enclosed as Annexure-A) being

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towards the transfer of land/undivided share in the land;
(E) Writ of certiorari or any other appropriate writ, order or direction to quash the clarification dated 09.01.2018 enclosed in Annexure-C issued by the respondent No.3 as ultra vires and beyond the provisions of CGST Act, 2017 and as being violative of Articles 14 and 19(1)(g) of the Constitution of India and are therefore illegal, ultra vires and unenforceable.
2. Learned AGA appearing for the revenue has raised the preliminary objection regarding the maintainability of the writ petition. It was contended that no cause of action has emerged to the petitioner to challenge the vires of the statutory provisions as well as the Notification and Circular issued by the competent authorities. This court cannot adjudicate upon the correctness and legality of the Notification and Circular as well as the provisions impugned, in vacuum.
3. Learned AGA placed reliance on the judgment of the Hon'ble Apex Court reported in (2004)6 SCC 2

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e provisions of the Act, and the Notification and Circular issued by the respondent authorities have been challenged without there being any cause of action.
7. To answer the preliminary objections raised, it is apt to collate the legal propositions holding the field with reference to the judgments cited by the learned counsel for the parties. The Hon'ble Apex Court in the case of Kusum Ingots (supra), has observed that passing of a legislation by itself does not confer any such right to file the writ petition unless a cause of action arises therefor. However, it is observed that a distinction between a legislation and executive action should be borne in mind while determining the said question. A writ Court would not determine a constitutional question in a vacuum.
8. In Ambica Industries Vs Commissioner of Central Excise reported in (2007) 6 SCC 769 = 2007 (5) TMI 21 – SUPREME COURT OF INDIA, the Hon'ble Apex Court considering the case of Nasiruddin (Nasiruddin Vs. State Transport

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7 – CALCUTTA HIGH COURT, the High Court of Calcutta held that the issue as to whether the fundamental right of a doctor to carry on practice in medical profession stands violated by the provisions of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act of 2017 or not is required to be considered. It is observed that the petitioners therein have canvassed a point of view which makes out a case to go to trial. Therefore, the petition discloses a cause of action.  
11. In Torrent Power Limited Vs. Union of India reported in 2019-TIOL-15-HC-AHM-GST = 2019 (1) TMI 1092 – GUJARAT HIGH COURT on which much emphasis was placed by the learned counsel for the petitioner, the Hon'ble High Court of Gujarat was considering the challenge made to summons issued based upon clarificatory circular, the subject matter of challenge in the writ petition. The contention that the challenge made to the summons is not maintainable was negated for the reason that the summ

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e of action has emerged.
13. In Kshama Sahakari Avas Samiti Limited Vs. State of U.P. 2006 SCC Online All 1443 = 2006 (8) TMI 663 – ALLAHABAD HIGH COURT, the High Court of Allahabad dealing with the preliminary objection raised that the petition is premature and is not maintainable with respect to the challenge to the Notification issued under Section 4 of the Act, 1994, observed that even though the Notification issued under Section 4 of the Act is merely a proposal and is not a conclusive proof of acquisition, the Court may exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to quash the same if the Notification is per se illegal. The said judgment dealing with the provisions of the Land Acquisition Act, where the lands and the respective land owners are identified as aforesaid, would not be of any assistance to the petitioner while dealing with the taxing statute.
14. In the case of Star India Private Limited Vs. Department of Industrial Policy

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fected by the action initiated by the executive in furtherance of such legislation/administrative Circular/Notification more particularly, in taxing statutes. Cause of action is sine qua non for challenging such legislation/ Notification/Circular. The writ Court cannot adjudicate upon such matters in vacuum. Adjudication of such issues sans any cause of action would be merely academic, consuming public time de hors the litigants waiting in serpentine queue seeking justice before the courts for the relief/s sought for, arising out of the cause of action. The petitioner involved in construction activity or works contract would not be suffice to examine the constitutional vires of the Act and the related Notification/Circular unless the cause of action emerges.
For the aforesaid discussion and observations, this Court is of the considered view that the writ petitions at this stage are premature and deserve to be dismissed as not maintainable. Ordered accordingly.'
Case laws, Deci

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M/s. Ravago Shah Polymers Pvt. Limited Versus The Union of India Represented By Its Secretary Minist
GST
2019 (2) TMI 461 – KARNATAKA HIGH COURT – TMI
KARNATAKA HIGH COURT – HC
Dated:- 24-1-2019
WRIT PETITION No. 527/2019 (T-RES)
GST
MRS. S. SUJATHA J.
PETITIONERS (BY SRI R DAKSHINA MURTHY, ADV. FOR SRI RAVI SHANKAR K S, ADV.)  
RESPONDENTS (BY SRI T K VEDAMURTHY, AGA. FOR R2-4)
ORDER
The petitioners have assailed the communication/representation dated 27.06.2018 issued by respondent No.6 inter alia seeking a direction to respondent No.6 to act on the representation of the petitioner dated 6.03.2018 at Annexure G to the writ petition and sought for other consequential reliefs.
2. The petitioners claiming to b

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mendations of the counsel, can extend the date for submitting the Form in GST Tran-1 by a further period not beyond March 2019 in respect of registered persons, who could not submit the said declaration on the common portal and the notification issued by the Commissioner dated 17th September 2018 extending the period for submitting the Form GST Tran-1 till 31.01.2019 for the class of registered persons, who could not submit the Form / declaration by the due date on account of the technical defect on the common portal, the writ petition does not survive for consideration and is rendered infructuous.
4. The petitioners are at liberty to avail the benefit of the notification issued by the Commissioner dated 17th September 2018.
5. Hence the

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M/s. TRANSASIA BIO MEDICALS LTD.,. DHANESH,. COOKING SYSTEMS,. M/s. SMS RUBBERS,. INTECH INTERIOR CONTRACTORS PVT LTD,. KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LTD.,. NASIMON. B,. INDIRA DEVI A. V.,. AJAYAKUMAR P.A AND OTHERS Versus STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,. THIRUVANANTHAPURAM,. THE COMMISSIONER STATE GOODS AND SERVICE TAX,. THIRUVANANTHAPURAM,. ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE-1, ERNAKULAM AND INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES,. ERNAKULAM
GST
2019 (2) TMI 462 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 24-1-2019
WP(C) 33021/2018 , WP(C). 33230/2018 , . WP(C). 33424/2018, . WP(C). 33427/2018, . WP(C). 33628/2018, . WP(C).

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