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2018 (12) TMI 473 – NATIONAL ANTI-PROFITEERING AUTHORITY – TMI – Profiteering – benefit of tax reduction not passed on to the recipients – Nestle Munch Nuts 32 Gm. Chocolate – Cadbury Dairy Milk Chocolate – contravention of Section 171 of CGST Act, 2017 – Held that:- It is clear that the Respondent had increased the base price by ₹ 1.56 per unit in respect of the Nestle Munch Nuts 32 Gm. Chocolate and ₹ 3.13 for the Cadbury Dairy Milk Chocolate and hence the MRP charged on both the products had remained ₹ 20/- and ₹ 40/- per unit respectively before and after the reduction in the rate of tax. Therefore, it is established that the Respondent had in fact increased the base prices of these Chocolates and sold them at the same MRPs which he was charging before the reduction in the rate of tax instead of reducing the same and had hence not passed on the benefit of such reduction to the Applicant.
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The Respondent has vehemently argued that he had no control on t

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ustomers to pay additional GST on the increased base prices otherwise the customers should have got further benefit of reduced base prices.
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The Respondent has also argued that M/S CTC and M/S NE had not given him discounts for passing on the benefit of tax reduction. However, perusal of the tax invoices issued by both the above Distributors shows that they had given him discounts to pass on the benefit of tax reduction with specific endorsements that he was required to pass on the benefit of reduced rate of GST.
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It stands concluded that the Respondent has indulged in profiteering in violation of the provisions of Section 171 of the CGST Act, 2017 and has not passed on the benefit of reduction of tax as per the Notification dated 14.11.2017 – Accordingly, the Respondent is directed to reduce the sale prices of the above products immediately commensurate to the reduction in the rate of tax as was notified on 14.11.2017 and pass on the benefit of reduction in the rate of the t

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nvestigation under Rule 129 (6) of the Central Goods & Services Tax (CGST) Rules, 2017. The brief facts of the case are that vide his application dated 29.11.2017 the Applicant No. 1 had complained to the Standing Committee, constituted under Rule 123 (1) of the above Rules alleging that although the GST rate applicable on the Chocolates had been reduced from 28% to 18% w.e.f. 15.11.2017, the Respondent had not reduced the prices of 2 products viz. the Nestle Munch Nuts 32 Gm. Chocolate and the Cadbury Dairy Milk Chocolate (here-in-after referred to as the products) and had thus not passed on the benefit of such rate reduction to him. He had also submitted the pre rate reduction invoice No. 299238 dated 10.11.2017 and the post rate reduction invoice No. 311392 dated 16.11.2017 which showed that both the above products were sold by the Respondent @ ₹ 20/- per piece and ₹ 40/- per piece respectively before and after the rate of tax was reduced on them. Thus it had been al

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s and he had not made any additional profit after the reduction in the GST rate. He had also replied that since their base prices had been increased by their Distributors he had increased the base prices keeping his profit margin same @ 11.5% and 12% respectively and sold the above products at the original Maximum Retail Prices (MRPs) as there was no change in the MRPs. He had further informed that the price of Nestle Munch 32 Gm. Chocolate being charged from him before 15.11.2017 was ₹ 14.01 per piece which was increased to ₹ 15.20 per piece by it's Distributor after 15.11.2017 and it was sold by him at the base price of ₹ 16.95 per piece keeping the same profit margin of 11.50%. He had also submitted that the price of Cadbury Dairy Milk Chocolate was ₹ 27.90 per piece before 15.11.2017 which was enhanced to ₹ 30.27 per piece by it's Distributor after 15.11.2017, which was sold at ₹ 33.90 per piece by him after maintaining the same profit ma

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long with copies of GSTR-I from November, 2017 to February, 2018 but did not provide the details of the invoice-wise outward supplies. The DGAP after examining the facts of the case has reported that vide Notification No. 41/2017-Central Tax (Rate) dated 14.11.2017 the o rate of tax on Chocolates was reduced from 28% to 18% w.e.f. from 15.11.2017. The Report also mentioned that from the sale invoices of the Distributor of Cadbury Chocolates viz. M/s. Chandna Trading Company (here-in-after referred to as M/S CTC) for the period from November 2017 to March 2018 it was revealed that he had given discount to the Respondent on the base price categorically mentioning that the Anti- Profiteering provisions under GST Act require that you pass on the benefits of GST rate reduction given to you; to the consumers . Similarly the Distributor of Nestle Chocolates viz. M/S Navin Enterprises (here-in-after referred to as M/S NE) had also sold Nestle Munch Nuts 32 Gm. bars through it's various sal

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y increasing it's base price from ₹ 15.63 to ₹ 16.95 due to which the MRP had remained ₹ 20/- per bar which he was charging before the tax reduction. The DGAP has also stated that the Respondent should have charged ₹ 18.44 for the above product by realising base price of ₹ 15.63 and GST of 18% whereas he had raised the base price to ₹ 16.95 and hence the MRP had remained same @ ₹ 20/- even after the rate of tax was reduced to 18%. The DGAP has also claimed that similarly 85 units of Cadbury Milk Chocolate were sold post 15.11.2017 at MRP of ₹ 40/- per bar inspite of reduction in the GST rate from 28% to 18% by raising their base price from ₹ 31.25 to ₹ 33.90 although the Respondent should have ideally charged ₹ 36.87 per unit. The Applicant No. 1 had bought one unit of this product at this increased price vide invoice dated 16.11.2017 at the same MRP of ₹ 40/- which he had paid on 10.11.2017. Thus the report su

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e Applicant No. 1 vide invoice date 16.11.2017 while selling two units of the above products to him. Product MRP (Rs.) Before 14.11.2017 (Rs.) 15.11.2017 to 31.03.2018 (Rs.) Profiteering per unit (Rs.) Total profiteering in Rs. Amount charged Base price GST GST rate Amount charged Base price GST GST rate Unit sold Nestle Munch Nuts 32 Gm. 20 20 15.63 28 20 16.95 18 910 1.56 1416 Cadbury Dairy Milk Chocolate 40 20 31.25 28 40 33.90 18 4646 3.13 14542 Total Profiteering 15,958 5. The above Report was considered by the Authority in it's sitting held on 05.07.2018 and it was decided to hear the interested parties on 25.07.2018. Ms. Monika Goel, Advocate appeared on behalf of the Respondent however, the Applicant No. 1 did not appear. The Applicant No. 2 was represented by Sh. Bhupender Goyal, Assistant Director (Costs). The Respondent vide his written pleadings submitted on 25.07.2018 has stated that the complaint against him of not passing on the benefit of reduction in the GST rate t

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us keeping this margin same at 11.5%. He had further stated that the cost of Cadbury Dairy Milk Chocolate was ₹ 27.90 per unit before 15th November, 2017 which was increased to ₹ 30.27 after 15th November, 2017 therefore, he had increased his base price from ₹ 31.25 to ₹ 33.90 maintaining the margin at 12% and hence he had not profiteered. 6. The Respondent had also submitted that as had been noted in para 10 of the Investigation Report he had reduced the rate of tax on the chocolates from 28% to 18% w.e.f. 15.11.2017 as per the Notification No. 41/2017- Central Tax (Rate) dated 14.11.2017. He has also claimed that he did not intend to benefit on account of tax reduction and had not contravened the provisions of Section 171 (1) of the CGST Act, 2017. He has also quoted the case of Dinesh Mohan Bhardwaj v. Vrandavaneshwree Automotive (P) Ltd. (2018) 67 GST 429/92 taxmann.com 360 = 2018 (4) TMI 1377 – THE NATIONAL ANTI-PROFITEERING AUTHORITY (NAA) decided by this

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various schemes which could not be construed as discounts on the basic prices as they had no connection with the reduction in the rate of tax as these discounts were not provided on every purchase and the amount was also different on each schemes. He has further pleaded that the above discounts did not fall in the category of benefit of GST rate reduction given to him as had been mentioned in para 1 1 of the Investigation Report. The Respondent has also averred that no incentives were given to him during the months of November and December, 2017 and the incentive schemes were offered only on some purchases during January to March, 2018. The Respondent has also submitted details of the various incentive schemes offered to him by M/S CTC before and after 15.11.2017 vide Annexures IV and VI to substantiate his claim that no discounts were offered to him by the above Distributor for passing on the benefit of tax reduction. 8. The Respondent has also argued that he had procured Nestle Munch

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bility and statutory obligation of the Respondent to pass on the benefit of tax reduction as he had not received any such benefit and his statutory obligation under Section 171 of the CGST Act, 2017 would arise only on the receipt of the benefit. The Respondent has also stated that the calculation of the profiteered amount in para 13 of the Report as ₹ 1.56 per unit in the case of Nestle Munch Nuts 32 Gm. bars calculated as a difference between the actual MRP and the ideal MRP (Rs. 20 – 18.44) was wrong as the profit if any should be calculated on the increase in the base price i.e. ₹ 1.32 per unit (Rs. 16.95 – ₹ 15.63). The Respondent has further stated that the assessment of profit of ₹ 3.13 per unit in the case of Cadbury Dairy Milk Chocolate as a difference between the actual MRP and the ideal MRP (Rs. 40 – ₹ 36.87) was also incorrect as the amount of profit if any should be calculated on the increase in the base price i.e. ₹ 2.65 per unit (Rs. 3

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urther contended that the point raised by Respondent regarding calculation of the profiteered amount in para 13 of the Report was invalid as prices included both the base prices and also the tax charged on it and therefore, any excess amount collected from the recipients must be returned to them and if they were not identifiable, the same was to be deposited in the Consumer Welfare Fund (CWF). The DGAP has also claimed that the Respondent had stated that the closing stock as on 14.11.2017 of Nestle Munch Nuts 32 Gm. was 32 units and that of Cadbury Dairy Milk Chocolates was 216 units and he had purchased 944 units of the earlier and 4,515 units of the later brand during the period w.e.f. 15.11.2017 to 31.03.2018 and hence the profiteering in respect of the total 910 units of 'Nestle Munch Nuts 32 Gm.' and 4,646 units of 'Cadbury Dairy Milk Chocolates' had been computed in the manner furnished in the table below:- Products Cadbury Dairy Milk Nestle Munch Total Purchase m

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ds Private Ltd (Cadbury) & M/S Nestle Limited India respectively and they couldn't make any change in them expect that of quantity. They also claimed that the GST rate reduction benefits were passed on by them to the Respondent in the form of discounts which had also been reflected in their invoices. Additionally M/S CTC vide his written submissions dated 30.08.2017 contended that the sale invoicing of the products was done through the Company billing software and all the rates & reductions were decided through the Company server system and he could not add/alter/delete any rates/discounts in the Company's billing software. He further submitted that the above Company had provided him discount on his closing stock as on 15.11.2017 and after getting the same in the billing software, he had passed it on to his respective retailers on the directions of the Company and he being the sale Distributor had got only the profit margin on the sales which had remained same during th

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T reduction given to you' and 'with GST benefits where applicable' were recorded on these invoices but the fact remained that the MRPs had remained unchanged. 13. Further Vide his written submissions dated 23.08.2018, the Respondent had specifically admitted profiteering on the closing stock of Chocolates lying with him as on 14th November, 2018. He had also accepted that M/S CTC had given him 6.6% discount on his invoice No. 53129 dated 28.112017 amounting to ₹ 647/-. Accordingly, suo moto he had deposited an amount of ₹ 1295/(Rs. 1250/- for Cadbury Dairy Milk and ₹ 45/- for Nestle Munch Nuts 32 Gm.) including the discount of ₹ 647/- which he had received from M/S CTC and had not passed on to his customers into the CWF vide Demand Draft dated 18.08.2018. He had also submitted that the amount of ₹ 15,958/- reported by the DGAP in his Investigation Report was not correct since he had not received any GST rate reduction benefit from the Distribut

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sold it @ MRP of ₹ 40/after realising GST of 28%. Perusal of the tax invoice dated 16.11.2017 shows that the Respondent had charged base price of ₹ 16.95 per unit for the Nestle Munch Nuts 32 Gm. Chocolate and after levying GST @ 18% had again charged MRP of ₹ 20/- and for one bar of Cadbury Dairy Milk Chocolate he had charged base price of ₹ 33.90 and after charging 18% GST the MRP realised by him from the above Applicant was ₹ 40/-. Therefore, it is clear that the Respondent had increased the base price by ₹ 1.56 per unit in respect of the Nestle Munch Nuts 32 Gm. Chocolate and ₹ 3.13 for the Cadbury Dairy Milk Chocolate and hence the MRP charged on both the above products had remained ₹ 20/- and ₹ 40/- per unit respectively before and after the reduction in the rate of tax. Therefore, it is established that the Respondent had in fact increased the base prices of these Chocolates and sold them at the same MRPs which he was chargi

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accountability as well as the duty cast upon him under the above Notification by contending that he had not increased the base prices whereas he had charged the increased base prices on both the above products after 15.11.2017. The Respondent has failed to produce any evidence to show that he had taken up the issue of giving benefit of reduced rate of tax to his customers with M/S CTC or M/S NE and informed them that he was bound to reduce the MRPs due to reduction in the rate of tax and both of them should either reduce/not increase the base prices or compensate him on account of the benefit which he was required to pass on to his customers, therefore, it is quite apparent that he had deliberately charged the enhanced prices with an intention to pocket the amount which he was bound to pass on to the recipients. The Respondent can also not legally maintain that since he had not received the benefit from his Distributors and hence he would not pass on the same as he was bound by the pro

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e case. Therefore, the above contentions of the appellant cannot be accepted. 17. The Respondent has also argued that M/S CTC and M/S NE had not given him discounts for passing on the benefit of tax reduction. However, perusal of the tax invoices issued by both the above Distributors shows that they had given him discounts to pass on the benefit of tax reduction with specific endorsements that he was required to pass on the benefit of reduced rate of GST. The Respondent has himself admitted through his submissions dated 23.08.2018 that he was given discount of 6.6% by M/s. CTC vide invoice No. 53129 dated 28.11.2017 amounting to ₹ 647/-. Therefore, the Respondent was bound to pass on the benefit to his customers which he had not done. Otherwise also the Respondent being a registered dealer under the CGST/SCST Act, 2017 is under legal obligation to pass on the benefit to his customers on account of the reduction in the rate of tax whether he was given any discount by his Distribut

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products and the base price on which he had sold them, however, this argument of the Respondent is fallacious as the amount of profiteering has to include the amount of additional profit margin and the additional tax charged by the Respondent as both of them had been illegally charged by him otherwise the recipients should have got further benefit of reduction in the MRPs of both the products and hence this contention of the Respondent cannot be accepted. 19. The Respondent has claimed that only 944 units of Nestle Munch Nuts 32 Gm. Chocolate and 4515 units of the Cadbury Dairy Milk Chocolate were purchased by him during the period w.e.f. 15.11.2017 to 31.03.2018 however, he has not produced the tax invoices to prove his contention and hence the claim made by the Respondent cannot be relied upon. 20. It is also on record that the Respondent vide his written submissions dated 23.08.2018 has voluntarily admitted that he had profiteered to the extent of ₹ 1295/- on the stock which

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tion in prices, the Authority may order – (a) reduction in prices: (b) return to the recipient, an amount equivalent to the amount not passed on by the way of commensurate reduction in prices along with interest at the rate of eighteen percent from the date of collection of the higher amount till the date of the return of such amount or recovery of the amount including interest not returned, as the case may be; (c) the deposit of an amount equivalent to fifty percent of the amount determined under the above clause in the Fund constituted under section 57 and the remaining fifty percent of the amount in the Fund constituted under section 57 of the Goods and Services Tax Act, 2017 of the concerned State, where the eligible person does not claim return of the amount or is not identifiable; (d) Imposition of penalty as specified under the Act; and x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-xx-x-x-x-x-x-x-x-x-x-x-x-x-x-x- 22. Accordingly, the Respondent is directed to reduce the sale prices of the above

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ndent within a period of 3 months from the date of receipt of this order failing which the same shall be recovered by the DGAP and refunded or deposited as has been directed above. Since the present investigation has been carried out for the period between 15.11.2017 to 31.03.2018 the DGAP is directed to conduct further investigation in respect of the sales made by the Respondent after the above period to assess the amount of profiteering made by the Respondent and submit report accordingly. 23. It is also established from the above facts that the Respondent had issued incorrect invoices while selling the above products to his customers as he had not correctly shown the basic prices which he should have legally charged from them. The Respondent had also forced them to pay additional GST on the increased prices and had also earned additional profit through the incorrect tax invoices which would have otherwise resulted in further benefit to the customers in the shape of reduced prices. I

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2018 (12) TMI 588 – GUJARAT HIGH COURT – TMI – Constitutional validity of rule 138(10) of the Central Goods and Services Tax Rules, 2017 / Gujarat Goods and Services Tax Rules, 2017 – validity period of the e-way bill in terms of distance to be travelled in a day – Held that:- Issue Notice returnable on 10th January, 2019. – R/SPECIAL CIVIL APPLICATION NO. 18982 of 2018 Dated:- 7-12-2018 – MS HARSHA DEVANI AND MR A. P. THAKER, JJ. For The Petitioner (s) : MR VINAY SHRAFF, ADVOCATE with MR.AVINASH PODDAR(9761), MR.VISHAL J DAVE, MR NIPUN SINGHVI(9653), MS HIRAL MEHTA, ADVOCATES ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. This petition challenges the constitutional validity of rule 138(10) of the Central Goods and Services Tax Rules, 2017 / Gujarat Goods and Services Tax Rules, 2017 as being unconstitutional and violative of Articles 14, 19(1)(g) and 301 of the Constitution of India, to the extent the said provision restricts validity period of the e-way bill in terms of

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the person concerned an opportunity of being heard. It was submitted that despite the fact that in the show cause notice the date has been fixed, the order has been passed prior to the said date, without giving an opportunity of hearing to the petitioner, which is in breach of sub-section (4) of section 129 of the Act. 4. It was further pointed out that penalty is sought to be imposed under section 129(1) of the Act, whereas section 122(1)(xiv) of the Act provides that where a taxable person who transports any taxable goods without the cover of documents as may be specified in this behalf, he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short collected or collected but not paid to the Government, etc., whichever is higher. 5. Reference was made to section 73 of the Act, which provides for dete

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dit wrongly availed or utilized by reason of fraud or any wilful misstatement or suppression of facts, and more particularly, to sub-section (8) thereof, which provides that where any person chargeable with tax under sub-section (1) pays the said tax along with interest payable under section 50 and a penalty equivalent to twentyfive per cent of such tax within thirty days of issue of the notice, all proceedings in respect of the said notice shall be deemed to be concluded. It was submitted that therefore, even in the case of fraud or wilful misstatement or suppression of facts, the statute provides for payment of penalty equivalent to twenty-five per cent of the tax within thirty days from the date of the notice. 7. It was further submitted that the statute is required to be read as a whole and that section 129 of the Act ought not to have been read in isolation. Reliance was placed upon the decision of the Supreme Court in Kailash Chandra and others v. Mukundi Lal and others, AIR 2002

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2018 (12) TMI 589 – ALLAHABAD HIGH COURT – TMI – Demand of security as per Section 129(1)(b) of the Act – release of seized goods – Held that:- Since the petitioner is the owner of the goods, the authority concerned is directed to release the goods of the petitioner on the petitioner's furnishing security of the amount equivalent to as provided under Section 129 (1)(a) of the Act – petition disposed off. – Writ Tax No. – 1562 of 2018 Dated:- 7-12-2018 – Pankaj Mithal And Pankaj Bhatia JJ. For

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2018 (12) TMI 610 – GUJARAT HIGH COURT – TMI – Penalty – Circular No.41/15/2018-GST dated 13.4.2018 – Held that:- Issue Notice returnable on 11th December, 2018. In the meanwhile, it would be open for the respondent to release the vehicle in question in accordance with law. – R/SPECIAL CIVIL APPLICATION NO. 18998 of 2018 Dated:- 7-12-2018 – MS. HARSHA DEVANI AND DR. A. P. THAKER, JJ. ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Mr. Vinay Shraff, learned advocate with Mr. Vishal Dave, learned advocate for the petitioner invited the attention of the court to Circular No.41/15/2018-GST dated 13.4.2018 issued by the Government of India and more particularly, to clause 2(l) thereof. It was submitted that the petitioner is ready an

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2018 (12) TMI 620 – GUJARAT HIGH COURT – TMI – Input tax credit – credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return – Restriction of credit u/s 16 – GSTR-3 versus GSTR-3B – Held that:- Issue Notice returnable on 9th January, 2019. – R/Special Civil Application No. 18962 of 2018 Dated:- 7-12-2018 – Ms. Justice Harsha Devani And Dr. Justice A. P. Thaker For the Petitioner : Mr Vinay Shraff with Mr. Avinash Poddar, Mr.Vishal J Dave And Nipun Singhvi ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Mr. Vinay Shraff, learned counsel for the petitioner has invited the attention of the court to the impugned press release dated 18.10.2018 to point out tha

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whereby the Central Goods and Services Tax (Second Amendment) Rules, 2017 came to be notified and more particularly, sub-rule (5) of rule 61 thereof, which provides thus:- (5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, return in FORM GSTR-3B, in lieu of FORM GSTR-3, may be furnished in such manner and subject to such conditions as may be notified by the Commissioner. 2. It was pointed out that the Central Government realising its mistake thereafter, vide Notification No.17/2017-Central Tax dated 27th July, 2017 notified the the Central Goods and Services Tax (Fourth Amendment) Rules, 2017 whereby subrule (5) of rule 6

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turn in FORM GSTR-3B, the last date for availing ITC in relation to the said invoices issued by the corresponding suppliers during the period from July, 2017 to March, 2018 is the last date for the filing of such return for the month of September, 2018 i.e. 20th October, 2018. It was submitted that sub-section (4) of section 16 of the Act contemplates furnishing of return under section 39 thereof which is in FORM GSTR-3 whereas FORM GSTR-3B is to be furnished in the circumstances, as contemplated under subrule (5) of rule 61 of the rules. It was submitted that, therefore, the impugned press release is contrary to the provisions of the Act and the rules. 5. Having regard to the submissions advanced by the learned counsel for the petitioner,

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2018 (12) TMI 709 – BOMBAY HIGH COURT – TMI – Extension of Time limit for submission of TRAN-1 – Held that:- The concerned Commissioner/ Nodal Officer is directed to take appropriate decision on the representations of the respective Petitioners before us. The entire exercise of examining the cases of the Petitioners through the channel, shall be completed latest by 31st January, 2019 – petition disposed off. – WRIT PETITION NO.1856-1858 OF 2018 WITH WRIT PETITION NO.1862-1863 OF 2018 and WRIT PETITION NO.1870 OF 2018 Dated:- 7-12-2018 – AKIL KURESHI & M.S.SANKLECHA, JJ. Mr. Zaid Ansari with Mr. Deep Marabia i/b. Zaid S. Ansari, for the Petitioner in all the Petitions. Mr. J. B. Mishra with Mr. Sham Walve, for the Respondent in WP Nos.

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019 for those if it is found that the registered persons who could not submit said declaration by the due date on account of the technical difficulties on the common portal and in respect of whom the GST Council has made a recommendation for such extension. 3. According to the Petitioner, the cases would fall within the above extended time as provided in the notification. They have made representations to the concerned Commissioner. In many of the cases, such representations are pending. We are informed by the Counsel for the Respondents that, the procedure set up is that where any such request is made, it is for the Commissioner/ Nodal Officer to process the request and forward to the GST Net Work, with recommendations, if any. If the repr

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2019 (1) TMI 366 – CESTAT NEW DELHI – TMI – Valuation – inclusion of subsidy amounts in the value of the goods cleared by the appellants in assessable value – Section 4 of the Central Excise Act – Held that:- It appears that the identical issue has come up before the Tribunal in the case of Shree Cements Ltd. V/s CCE, Alwar [2018 (1) TMI 915 – CESTAT NEW DELHI], where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans – appeal allowed – decided in favor of appellant. – Appeal No. E/51897/2018-DB – Final Order No. 53440/2018 – Dated:- 7-12-2018 – Mr. Anil Choudhary, Member (Judicial) And Mr. C.L. Mahar, Member (Technical) Shri R.S. Sharma, Advocate – for the appellant Shri H.C. Saini, D.R. – for the respondent ORDER Per Anil Choudhary: The present appeal has been filed against the Order-in-Appeal No. 136-AK-CE-JPR/2017 dated 11.5.2018 passed by the Commissioner (Appeals), Central Excise & CGS

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tion of VAT collected for the purpose of Section 4 of the Central Excise Act. Accordingly, the Revenue proceeded to include such subsidy amounts in the value of the goods cleared by the appellants and demanded the differential duty. Being aggrieved, the appellants have filed the present appeals. 3. With this background we have heard Shri R.S. Sharma, Ld. Advocate for the appellant and Shri H.C. Saini, Ld DR for the Revenue. 4. After hearing both sides and on perusal of record, it appears that the identical issue has come up before the Tribunal in the case of Shree Cements Ltd. V/s CCE, Alwar 2018-TIOL-748-CESTAT-DEL where it was observed that:- 7. We have heard both sides at length and perused the appeal record. As out lined above, the appellants are covered by the Investment Promotion Schemes of the Rajasthan Government. In terms of the various schemes of the Rajasthan Government, the appellants are required to discharge their VAT liability by making payment of the same. Out of such V

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, no benefit towards excise duty can be given in terms of Section 4(3)(d). However, we note that the Tribunal in the case of Welspun Corporation Ltd. (Supra) has distinguished the decision of the Apex Court in the light of Gujarat VAT Act, 2003. In the Welspun Corporation Ltd. case, the assesse had opted for remission of tax scheme under which a portion of the VAT paid was remitted back to the assessee. The Tribunal held that such subsidy amounts are not required to the included in the transaction value. 9. In the present case we know that for the initial period the assessees are required to remit the VAT recovered by them at the time of sale of the goods manufactured. A part of such VAT is given back to them in the form of subsidy in Challan 37 B. Such Challans are as good as cash but can be used only for payment of VAT in the subsequent period. In terms of the scheme of the Government of Rajasthan payment of VAT using such Challan are considered legal payments of tax. In view of the

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2019 (1) TMI 374 – CESTAT NEW DELHI – TMI – Condonation of delay in filing appeal – Non-Communication of Order – absence of any proof of service of either show cause notice or any subsequent notice of personal hearing upon the appellant – Section 37C of Central Excise Act – Held that:- The copy of Order-in-Original, apparently and admittedly, was received by the appellant only on 10th August, 2015. That too, it was not the certified copy. But still the Commissioner (Appeals) has held the appeal to be delayed for one year and 20 days. The period of limitation i.e. 60 days condonable by Commissioner (Appeals) for another 30 days has to reckon from 10.08.2015.
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The appellant herein has filed an affidavit deposing that the order got communicated to him only on 10.08.2015 – reliance placed in the case of M/s. T. Prabhakara Rao vs. Commissioner, Central Excise, Hyderabad-III [2008 (8) TMI 327 – CESTAT, BANGALORE], wherein it was held that appellant can prove non-receipt of order by fil

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ing Authority was received by the appellant only on 10th August, 2015. It is due to the said reason that the appeal was filed before Commissioner (Appeals) on 21st January, 2016 and that the same was well within the period of limitation but the Commissioner (Appeals) in sheer ignorance thereof has dismissed the appeal on the ground of limitation. Ld. Counsel has relied upon the case of CCE, Ludhiana vs. Best Dyeing reported in 2012 (27) STR 97 (P & H) to impress upon that when there is no evidence to prove that the order was ever served upon the appellant, no interference is warranted in the discretion in allowing the application seeking the condonation of delay. He has also relied upon the decision of Eblitz Inc. vs. Additional Commissioner, Service Tax, Bangalore reported in 2016 (45) STR 163 (Kar.), wherein it was held that limitation begins from the date of receipt of order. The order is accordingly prayed to be set aside and the appeal is prayed to be decided on merits. 3. Whi

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to this effect is on record wherein it is deposed, in addition, that the appellant never received the impugned show cause notice. There is no proof of delivery/service by the Department. It is apparent from the Order-in-Original that the assessee did not file reply to the show cause notice nor attended the personal hearing as were fixed by the Assistant Commissioner. Ex-parte Order-in-Original dated 31.12.2014 support the appellant contention that too in absence of any proof of service of either show cause notice or any subsequent notice of personal hearing upon the appellant. It is also apparent that the said order was dispatched at the old address of the appellant. 5. Though Department s contention is that the same was dispatched vide registered post and no acknowledgement due has been received. But in view of the above discussed facts and circumstances, the mere dispatch of OIO by registered post is not sufficient. 6. As per Section 35 of Central Excise Act, appeal to Commissioner

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rtment is not applicable to present facts. The finding of Commissioner (Appeals) is therefore opined to be wrong in view of the above observed circumstances. 7. The appellant herein has filed an affidavit deposing that the order got communicated to him only on 10.08.2015. While relying upon the decision of M/s. T. Prabhakara Rao vs. Commissioner, Central Excise, Hyderabad-III reported in 2009 (238) ELT 791 (Tri.-Bangalore), wherein it was held that appellant can prove non-receipt of order by filing affidavit and that the same is not rebutted for want of the proof of dispatch by the Revenue for no acknowledgement produced, the Tribunal is empowered to condone the delay, I hereby condone the impugned delay. 8. However, keeping in view that the Commissioner (Appeals) has dismissed the appeal in limini on limitation and has not given any findings on the merits of the appellant, I hereby remand the matter to Commissioner (Appeals) for adjudication on merits. Resultantly, appeal in hand is a

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GST – States – S.O. No. 83 – 60/2018 – State Tax – Dated:- 7-12-2018 – COMMERCIAL TAXES DEPARTMENT Notification 7 December, 2018 Notification No. 60/2018 – State Tax S.O. No. 83 Dated-7 December, 2018:- In exercise of the powers conferred by section 164 of the Jharkhand Goods and Services Tax Act, 2017 (12 of 2017), the Government of Jharkhand hereby makes the following rules further to amend the Jharkhand Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Jharkhand Goods and Services Tax (Thirteenth Amendment) Rules, 2018. (2) This notification shall be deemed to be effective from 30th October, 2018. 2. In the Jharkhand Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be inserted, namely:- 83A. Examination of Goods and Services Tax Practitioners.-(1) Every person referred to in clause (b) of sub-rule (1) of rule 83 and who is enrolled as a goods and services tax practitioner under su

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designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration. (6) Period for passing the examination and number of attempts allowed.- (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment: Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination: Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule. (ii) A person required to pass the examination may avail of any number of attempts but these attempts shall be within the period as specified in clause (i). (iii) A person shall register and pay the requisite fee every

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tion, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal. (ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: – (a) obtaining support for his candidature by any means; (b) impersonating; (c) submitting fabricated documents; (d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination; (e) found in possession of any paper, book, note or any other material, the use of which is not permitted in the examination center; (f) communicating with others or exchanging calculators, chits, papers etc. (on which something is written); (g) misbehavi

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or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal. (13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons. Explanation :- For the purposes of this sub-rule, the expressions – (a) jurisdictional Commissioner means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST PCT-1 has been selected as Centre, or the Commissioner of State Tax if the enrolling authority in FORM GST PCT-1 has been selected as State; (b) NACIN means as notified by notification No. 24/2018- State Tax, dated 13.06.2018. Annexure-A [See sub-rule7

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al Commissioner State Tax or Joint Commissioner State Tax ; (b) in sub-rule (1), in clause (b), shall be omitted; (c) in sub-rule (1), in clause (c), for the words and brackets the Joint Commissioner (Appeals) where such decision or order is passed by the Deputy Commissioner State Taxes, Assistant Commissioner State Taxes or State Tax officer , the following words and brackets shall be substituted, namely:- any officer not below the rank of Joint Commissioner (Appeals) where such decision or order is passed by the Deputy Commissioner State Tax, Assistant Commissioner State Tax or State Tax officer ; (ii) (a) in sub-rule (2), in clause (a), for the words and brackets the Additional Commissioner State Taxes , the following words and brackets shall be substituted, namely:- the Additional Commissioner State Tax or Joint Commissioner State Tax ; (b) in sub-rule (2), in clause (b), shall be omitted; (c)in sub-rule (2), in clause (c), for the words and brackets the Joint Commissioner (Appeals

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osted in Part II of Electronic Liability Register in FORM GST PMT-01. (2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be uploaded on the common portal in FORM GST DRC-08A and Part II of Electronic Liability Register in FORM GST PMT-01 shall be updated accordingly. . 5. In the said rules, in FORM GST REG-16,- (a) against serial number 7, for the heading, the following heading shall be substituted, namely:- In case of transfer, merger of business and change in constitution leading to change in PAN, particulars of registration of entity in which merged, amalgamated, transferred, etc. ; (b) in the instruction, after the Table, for the paragraphs beginning with the words In case of death of sole proprietor and ending with the words surrender of registration falls , the following paragraphs shall be substituted,

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n return related liabilities , the following form shall be substituted, namely:- Form GST PMT -01 [See rule 85(1)] Electronic Liability Register of Registered Person (Part-II: Other than return related liabilities) (To be maintained at the Common Portal) Reference No.- GSTIN/Temporary Id – Date- Name (Legal) – Trade name, if any – Stay status – Stayed/Un-stayed Period – From -To (dd/mm/yyyy) Act – Central Tax/State Tax/UT Tax/Integrated Tax/CESS /All (Amount in Rs.) Sr. No. Date (dd/mm/yyyy) Reference No. Tax Period, if applicable Ledger used for dischargingliability Description Type of Transaction * Amount debited/credited (Central Tax/State Tax/UT Tax/Integrated Tax/CESS/amount under existing law/Total) Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Balance (Payable) (Central Tax/State Tax/UT Tax/Integrated Tax/ CESS/ amount under existing law/Total) Tax Interest Penalty Fee Others Total Status (Stayed / Un-stayed) 15 16 17 18 19 20 21 *[Debit (DR) (Payable)]

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nt is made within the time specified in the Act or the rules. 8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. Debit and credit entry will be created simultaneously 8. In the said rules, in FORM GST APL-04, after serial number 9, and the Table relating thereto, the following shall be inserted, namely:- Place of Supply (Name of State/UT) Demand Tax Interest Penalty Other Total 1 2 3 4 5 6 7 Disputed Amount Determined Amount 9. In the said rules, after FORM GST DRC-07, the following form shall be inserted, namely:- FORM GST DRC-07A [See rule 142A(1)] Summary of the order creating demand under existing laws Reference No.: Date: Part A – Basic details Sr. No. Description Particulars (1) (2) (3) 1 GSTIN 2 Legal name <> 3 Trade name, if any <> 4 Government Authority who passed the order creating the demand ð State/UT ð Centre 5

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te/UT Acts CST Act Signature Name Designation Jurisdiction To _______________ (GSTIN/ID) _________________ Name _______________ (Address) Copy to:- Note:- 1. In case of demands relating to short payment of tax declared in return, acknowledgement/reference number of the return may be mentioned. 2. Only recoverable demands shall be posted for recovery under GST laws. Once a demand has been created through FORM GST DRC-07A, and the status of the demand changes subsequently, the status may be amended through FORM GST DRC-08A. 3. Demand paid up to the date of uploading the summary of the order should only be mentioned in Table 20. Different heads of the liabilities under existing laws should be synchronized with the heads defined under Central or State tax. 4. Latest order number means the last order passed by the relevant authority for the particular demand. 5. Copy of the order vide which demand has been created can be attached. Documents in support of tax payment can also be uploaded, if

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> 13 Latest order No. <> 14 Latest order date <> 15 Date of service of the order <> 16 Name of the officer who has passed the order (optional) <> 17 Designation of the officer who has passed the order <> 18 Whether demand is stayed ðYes ð No 19 Date of stay order 20 Period of stay 21 Reason for updation <> Part B – Demand details 22. Details of demand posted originally through Table 21 of FORM GST DRC-07A (Amount in Rs. In all tables) <> Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act 23. Updation of demand Act Type of updation Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 8 1 Quashing of demand (Complete closure of demand) 2 Amount of reduction, if any 3 Total reduction (1+2) 24. (22-23) Balance amou

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GST – States – G.O.MS.No. 620 – Dated:- 7-12-2018 – GOVERNMENT OF ANDHRA PRADESH REVENUE (COMMERCIAL TAXES-II) DEPARTMENT G.O.MS.No. 620 Dated: 07-12-2018 NOTIFICATION In exercise of the powers conferred by section 148 of the Andhra Pradesh Goods and Services Tax Act, 2017 (Act No.16 of 2017) (hereafter in this notification referred to as the said Act ), read with section 45 of the said Act and rule 81 of the Andhra Pradesh Goods and Services Tax Rules, 2017 (hereinafter referred to as the said

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GST – States – G.O.MS.No. 621 – Dated:- 7-12-2018 – GOVERNMENT OF ANDHRA PRADESH REVENUE (COMMERCIAL TAXES-II) DEPARTMENT G.O.MS.No. 621 Dated: 07-12-2018 NOTIFICATION In exercise of the powers conferred by section 164 of the Andhra Pradesh Goods and Services Tax Act, 2017 (Act No.16 of 2017), the Government hereby makes the following amendment to amend the Andhra Pradesh Goods and Services Tax Rules, 2017, issued in G.O.Ms.No.227 Revenue(CT) Department dated:22.06.2017 as subsequently amended. 1. (i) These rules may be called the Andhra Pradesh Goods and Services Tax (Twenty-Seventh Amendment be deemed to have) Rules, 2018. (ii) They shall come into force with effect on and from 30th October, 2018. AMENDMENTS In the Andhra Pradesh Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be inserted, namely:- 83A. Examination of Goods and Services Tax Practitioners.- (1) Every person referred to in clause (b) of sub-rule (

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n portal. (5) Examination centers.- The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration. (6) Period for passing the examination and number of attempts allowed.- (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment: Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination: Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule. (ii) A person required to pass the examination may avail of any number of attempts but these attempts shall be within the period as s

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CIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal. (ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: – (a) obtaining support for his candidature by any means; (b) impersonating; (c) submitting fabricated documents; (d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination; (e) found in possession of any paper, book, note or any other material, the use of which is not permitted in the examination center; (f) communicating with others or excha

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2017 5 The Goods and Services Tax (Compensation to States) Act, 2017 6 The Central Goods and Services Tax Rules, 2017 7 The Integrated Goods and Services Tax Rules, 2017 8 All The State Goods and Services Tax Rules, 2017 9 Notifications, Circulars and orders issued from time to time under the said Acts and Rules. . (11) Declaration of result.- NACIN shall declare the results within one month of the conduct of examination on the official websites of the Board, NACIN, GST Council Secretariat, common portal and State Tax Department of the respective States or Union territories, if any. The results shall also be communicated to the applicants by e-mail and/or by post. (12) Handling representations.- A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal. (13) Power to relax.- Where the Board or

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II. In the said rules, after rule 142, the following rule shall be inserted, namely:- 142A. Procedure for recovery of dues under existing laws. – (1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01. (2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be uploaded on the common portal in FORM GST DRC-08A and Part II of Electronic Liability Registe

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n, please file your tax return due for the tax period in which the effective date of surrender of registration falls or furnish an undertaking to the effect that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration). . IV. In FORM GSTR-4, in the Instructions, for Sl. No. 10, the following shall be substituted, namely:- 10. Information against the Serial 4A of Table 4 shall not be furnished. . V. for FORM GST PMT-01 relating to Part II: Other than return related liabilities , the following form shall be substituted, namely:- Form GST PMT -01 [See rule 85(1)] Electronic Liability Register of Registered Person (Part-II: Other than return related liabilities) (To be maintained at the Common Portal) Reference No.- GSTIN/Temporary Id – Date- Name (Legal) – Trade name, if any – Stay status – Stayed/Un-stayed Period – From -To (dd/mm/yyyy) Act – Central Tax/State Tax/UT Tax/Integrated T

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ision, review etc. will be reflected here. 4. Negative balance can occur for a single Demand ID also if appeal is allowed/ partly allowed. Overall closing balance may still be positive. 5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer. 6. The closing balance in this part shall not have any effect on filing of return. 7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules. 8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. Debit and credit entry will be created simultaneously VI. in FORM GST APL-04, after serial number 9, and the Table relating thereto, the following shall be inserted, namely:- 10. Details of IGST Demand Place of S

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18 Period of stay From – to – Part B – Demand details 19. Details of demand reate (Amount in Rs. In all Tables) Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act 20. Amount of demand paid under existing laws Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act 21. (19-20) Balance amount of demand proposed to be recovered under GST laws << Auto-populated >> Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act Signature Name Designation Jurisdiction To _______________ (GSTIN/ID) _________________ Name _______________ (Address) Copy to:- Note:- 1. In case of demands relating to short payment of tax declared in return, acknowledgement/reference number of the return may be mentioned. 2. Only recoverable demands shall be posted for recovery under GST laws. Once a demand has been created through FORM GST DRC-07A, and the status of the demand changes subsequently, t

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mand uploaded 6 Government Authority who passed the order creating the demand ð State/UT ð Centre <> 7 Old Registration No. << Auto, editable>> 8 Jurisdiction under earlier law <> 9 Act under which demand has been created <> 10 Tax period for which demand has been created <> 11 Order No. (original) <> 12 Order date (original) <> 13 Latest order No. <> 14 Latest order date <> 15 Date of service of the order <> 16 Name of the officer who has passed the order (optional) <> 17 Designation of the officer who has passed the order <> 18 Whether demand is stayed ðYes ð No 19 Date of stay order 20 Period of stay 21 Reason for updation <> Part B – Demand details 22. Details of demand posted originally through Table 21 of FORM GST DRC-07A (Amount in Rs. In all tables) <> Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act 23. Updation of demand Act Type

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GST – Started By: – Tarun Agrawal – Dated:- 6-12-2018 Last Replied Date:- 10-1-2019 – HiI want to know if the credit of GST paid under RCM can be availed in same month or it has to be done next month – Reply By KASTURI SETHI – The Reply = Credit can be taken in the same month. Law is very much clear. – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = After paying the tax only you can avail input tax credit. – Reply By Pankaj Sharma – The Reply = Input Tax Credit of tax paid under Reverse Charge

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Goods and Services Tax – Due date of payment of tax under GST – last date off filing of return – Requirement of filing of GSTR-3 return in addition to GSTR-3B return – Validity of Circular No.07/07/20

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Goods and Services Tax – GST – By: – pranav deshpande – Dated:- 6-12-2018 – Anti-profiteering is a welcome socio-economic measure brought about by the Government, under the GST regime. The objective of the legislation is to ensure that any benefits arising from a reduction in the tax incidence, is not enjoyed by the subject being taxed, but is passed on to the person from whom such tax is recovered. This is also in alignment with the principle of unjust enrichment. However, on the implementation front, there could be a challenge, given the way the section pertaining to anti-profiteering has been drafted and it's placement in the scheme of things. The challenge is interpretational, of course, but does not detract from the possibility of

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oncept of supply was not there under VAT laws or under service tax laws. Earlier, we had terms like 'sale' 'lease' 'service' 'manufacture' 'entry' etc, all of which existed till 30th June 2017 but which got subsumed within one word, 'supply' but with effect from 1st July 2017 and not prior to that. That being the case, it is then possible to hold an interpretation that section 171(1) ultimately provides that anti-profiteering has to be tested, not between ST/VAT and GST regime, but between GST at a higher rate on any product/service and GST at a lower rate on any product/service. That is to say, any query on anti-profiteering, that seeks to compare pre-GST and post-GST models, may well be resp

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Goods and Services Tax – GST – By: – RameshKumar Patodia – Dated:- 6-12-2018 – The Goods and Services Tax regime which was introduced with effect from the 1st day of July 2017 consolidating most of the indirect taxes with a view to increasing the tax base has been considered to be the most revolutionary move in the arena of indirect taxes. The new tax law has brought about a paradigm shift in the process of levy and collection of taxes with a special emphasis on compliances in the light of which due importance has been given to self-assessment and audit procedures for ensuring proper compliance under law, similar to that as was given in the erstwhile regime. The previous direct tax and indirect tax legislations provide for audit in various manners in order to ensure compliance of the respective laws and the GST legislation also provides for the same considering the fact that under the GST regime emphasis is given to the self assessment with checks and balances in the light of artifici

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inancial statements as well as non-financial disclosures present a true and fair view of the concern. It also attempts to ensure that the books of accounts are properly maintained by the concern in pursuance of the requirements of law. The auditor perceives and recognises the propositions before them for examination, obtains evidence, evaluates the same and formulates an opinion on the basis of his judgement which is communicated through his audit report. Meaning of the term Audit under the GST law Now, after understanding the general meaning of the term audit and its importance, it is pertinent to note that audit under the GST law is defined under sub-section (13) of Section 2 of the Central Goods and Services Tax Act, 2017 as examination of records, returns and other documents maintained or furnished by the registered person under this Act or the Rules made thereunder or under any other law for the time being in force, to verify the correctness of turnover declared, taxes paid, refun

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he shall furnish a copy of the audited annual accounts and a reconciliation statement, duly certified, in GSTR 9C, electronically through the common portal either directly or through a Facilitation Centre notified by the Commissioner . Section 44(2) of the CGST Act, 2017 – requirement to furnish annual return in Form GSTR -9, Reconciliation statement in Form GSTR-9C and a copy of the audited annual accounts In this regard, it is further imperative to note that section 44(2) of the Central Goods and Services Tax Act, 2017 provides that every registered person who is required to get his accounts audited in accordance with the provisions of sub-section (5) of section 35 shall furnish, electronically, the annual return under sub-section (1) along with a copy of the audited annual accounts and a reconciliation statement, reconciling the value of supplies declared in the return furnished for the financial year with the audited annual financial statement, and such other particulars as may be

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in Form GSTR -9 through the common portal either directly or through a Facilitation Centre notified by the Commissioner . Meaning of terminologies employed in the provisions referred to hereinabove Now, after taking note of the relevant provisions of the GST law which specifically deals with audit, in order to understand the scope of the applicability of audit under the GST law, it is imperative to understand the meaning of certain terminologies as stated herein under and which have been employed in the provisions of GST law as discussed and reproduced hereinabove: Records Returns Other documents Turnover Aggregate Turnover Audited annual accounts Reconciliation statement Records: The term records have not been specifically defined under the Act. Hence, recourse has to be had to the general meaning of the term as given in various legal dictionaries. In this regard, the advanced law lexicon by P. Ramanatha Aiyar [3rd Edition, 2005] at page no. 3994 defines record as documents which a hi

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as may be prescribed Return: Further, the term return has been defined under section 2(97) of the Act, as any return prescribed or otherwise required to be furnished by or under this Act or the rules made thereunder. Other documents: The term other documents has again not been defined under the Act but while defining the term audit under section 2(13), ibid. the language used is other documents maintained or furnished by the registered person under this Act or the Rules made thereunder or under any other law for the time being in force which implies that for the purposes of audit under this Act, other documents maintained or furnished under this Act or under any other law for the time being in force may also be examined in addition to documents maintained under the GST law. Turnover: Further, the term turnover has not been defined specifically instead turnover in State or turnover in Union territory has been defined under section 2(112) as the aggregate value of all taxable supplies (

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44(2) of the Act, when analysed in the light of the GST law can only be taken to mean the audited annual accounts as required to be maintained by the registered tax payer under the other laws by which the tax payer is governed in absence of any specific definition under the GST law. The relevant provisions of Section 128 and Section 134 of the Companies Act, 2013, Section 44AA and Section 44AB of the Income Tax Act, 1961 therefore assumes importance. Reconciliation Statement: Reconciliation Statement has been discussed in section 44(2) of the Central Goods and Services Tax Act, 2017 as a statement (which is required to be furnished in Form GSTR 9C) reconciling the value of supplies declared in the return furnished for the financial year with the audited annual financial statement, and such other particulars as may be prescribed. Role of the auditor: Now, after taking note of the above, it is important to note that since GST audit would be undertaken for the very first time in F.Y. 201

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provisions of law and applicable taxes both under forward charge and reverse charge has been correctly discharged under the correct head or not and whether there is any short payment of tax? b. Whether payment of GST under forward Charge as well as reverse charge has been made on time? c. Whether GST is paid on receipt of advances, requisite documents have been issued at the time of receipt thereof and proper adjustment thereof has been made at the time of issuance of final invoice? d. Whether interest liability has been discharged in case of delay in payment of taxes? e. Whether all the required GST returns have been filed correctly with complete particulars and within the due date? f. Whether GSTR 1 and GSTR 3B tallies with the books of account? 4. Input Tax Credit: a. Whether ITC has been availed as per the provisions of law? b. Whether reversal of ITC claimed done if payment not made within 180 days? c. Whether the supplier has reported the invoice on the basis of which ITC has be

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ponding tax invoice? d. Whether HSN code has been correctly mentioned (specifically in case of mandatory cases i.e. where the turnover exceeds ₹ 1.5 crores) in the documents issued or received under the Act? 8. Miscellaneous a. Whether the reconciliation of ITC claimed in GSTR 3B with that available in GSTR 2A has been done and in case of difference to ensure whether any action has been taken to blacklist such suppliers who do not pay GST on time and/or file returns on time so as to protect the interest of the recipient of goods or services or both? b. Whether the provisions of Section 171 of the CGST Act 2017 i.e. Anti profiteering are followed and accordingly the benefit of the additional input tax credit as well as the benefit of the tax reduction is passed on? Thus it can be seen that there is an onerous responsibility cast upon the auditor while auditing and reporting as per the mandate of section 35(5) of the CGST Act, 2017 r/w Rule 80(3) of the CGST Rules, 2017 and other r

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t section 122 of the CGST Act provides for certain offences the penalty for which has been prescribed to be ten thousand rupees or an amount equivalent to the tax evaded whichever is higher. Such offences by a taxpayer which inter alia include: falsification or substitution of financial records or production of fake accounts or documents or furnishing of any false information or return with an intention to evade payment of tax due under this Act suppression of his turnover leading to evasion of tax under this Act; failure to keep, maintain or retain books of account and other documents in accordance with the provisions of this Act or the rules made thereunder; Welcome provisions under Section 126 of the Act Section 126 of the Act is a welcome provision for genuine cases which states that no officer under this Act shall impose any penalty for minor breaches of tax regulations or procedural requirements and in particular, any omission or mistake in documentation which is easily rectifiab

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No. GSR 666(E) (No. 33/2018), dated 20.07.2018 under the Direct tax Laws in the light of the new GST Law. In this regard, it is imperative to note that the aforesaid Notification seeks to amend the FORM 3CD as appearing in the Appendix II to the Income Tax Rules, 1962, to provide for certain additional details by amending/inserting two clauses viz. clause 4 and clause 44 respectively, which have been discussed herein under: Amendment of Clause 4 to provide for GST number Clause 4 of Form 3CD has been amended to seek details of GST number in cases where the assessee is liable to pay GST. In this regard, the reason for this amendment seems to be to capture the GST related details of the assessee as it was done for other indirect taxes in the existing clause 4. Further, this seems to be important or necessary because in many instances it is observed that a person though liable to pay indirect taxes does not get himself registered under the relevant law even if his turnover exceeds the thr

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Sl. No. Total amount of Expenditure incurred during the year Expenditure in respect of entities registered under GST Expenditure relating to entities not registered under GST Relating to goods or services exempt from GST Relating to entities falling under composition scheme Relating to other registered entities Total payment to registered entities (1) (2) (3) (4) (5) (6) (7) The purpose behind insertion of the above mentioned clause may be to see whether the expenditure being claimed for deduction under the Income Tax Law has actually been reported under the GST law in the relevant columns as prescribed in the GST returns and that no expenditure which is not allowable under the Act is being claimed by the assessee. Further, another reason may be to put a check on tax evasion which may happen in instances where GST liability has to be discharged under the reverse charge mechanism of tax and which may not have been discharged by the assessee by resorting to non-disclosure of expenditure

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to be highlighted by the auditor. Further he has to ensure that the applicable taxes under the GST law have been discharged on the expenditure being claimed. Further, he has to ensure that the assessee has claimed the benefit of either input tax credit or depreciation in case of the expenditure reported and not both. The changes which have been brought about in Form No. 3CD requiring an auditor to certify certain details in the light of GST law brings us to the following issues: The way the financial statements and audited accounts are required to be maintained under the Income Tax Act, 1961 which can be on cash basis as well as mercantile basis cannot at once enable any person to arrive at a conclusion whether the same are in accordance with both the Acts or otherwise unless detailed scrutiny is made in order to ensure whether the audited annual accounts are in compliance with both the laws. There are several expenditures which are deductible under the Income Tax Act, 1961 but are not

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2018 (12) TMI 427 – CESTAT CHENNAI – TMI – Validity of SCN – CENVAT/MODVAT Credit – removal of input as such by raising invoices without reversing credit – diversion of controlled substances (Ephedrine) from the factory – manufacture not taken place – period involved is from 24.8.1998 to 24.3.1999 – penalty – Held that:- The Show cause notice is highly vague and does not give the exact allegation. It is presumed to be alleged that appellant removed inputs as such without reversing the credit and has contravened provisions of 57F. But then it is also stated that inputs are removed as tablets. When the inputs are Ephedrine Powder, then the removal in the form of tablets will not be removal as such requiring reversal of credit. If they are removed as Ephedrine tablets after manufacture then these attract Central Excise duty.
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ing duty alongwith interest on the inputs cleared as such and also proposing to appropriate the amount of ₹ 2,87,986/- paid by them on 14/2/2000. After due process of law, the original authority confirmed the demand alongwith interest and also imposed penalties. In appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, the Ld.Counsel, Sh.M.N.Bharathi submitted that the period involved is from 24.8.1998 to 24.3.1999. During this period, the erstwhile MODVAT Credit Rules were in force. As per 57 F of the said Rules, the appellant can remove the inputs as such on payment of duty equal to the amount of credit availed in respect of inputs. The appellant had already paid the duty which is seen from the invoices relating to the clearances made. He referred to Page 25 of the appeal paper book and argued that on all five invoices, the appellant had paid duty to the tune of ₹ 4,08,901/-. On 14/2/2000, the appellant in order to buy peace

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would show that appellant is not guilty of suppression of facts with intention to evade payment of duty. 3. The Ld.AR, Sh.L.Nanda Kumar appeared and argued the matter. He submitted that the appellants had cleared the items to other persons as well as their Head Office, where no manufacturing activity was taken place. The invoices cannot be relied, as these are fake invoices. These documents cannot be accepted for payment of duty. The inputs having been removed as such in the guise of Ephedrine tablets, the demand and penalties imposed are legal and proper. 4. Heard both sides. 5. On going through the records, it is seen that the investigations were started on the premises of the diversion of controlled substances (Ephedrine) from the factory. The period involved is from 24.8.1998 to 24.3.1999. The said substance was notified as controlled substances vide SO 1296 (E) dt.28/12/1999 only. Thus the investigations had emanated on the premises stating that these are controlled substances fal

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8,901/- + ₹ 2,87,986/-). From the facts narrated in the show cause notice, it is not clear whether the allegation is inputs were removed as such or whether Ephedrine tablets manufactured were removed without payment of duty. When Ephedrine Powder is the input, the allegation that they removed inputs as such in the guise of Ephedrine Tablets does not make any sense. However, from the records, it is made out that the appellants have paid the duty demand of ₹ 6,72,397/-. Duty of ₹ 4,08,901/- was paid on invoices and ₹ 2,87,986/- paid by reversal of credit. Taking this aspect of payments into consideration, I am of the view that a further reversal of credit or payment of duty is not required. The amount already paid as above is to be appropriated by Revenue towards the duty demand. 6. The appellants have also prayed to set aside the penalties. When the amount of duty demand have been paid as per the invoices and credit has been reversed, the penalties imposed cannot

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2018 (12) TMI 428 – CESTAT MUMBAI – TMI – CENVAT Credit – common input and input services used for dutiable and exempted final products – non-maintenance of separate account – Rule 6(3) of CCR – extended period of limitation – Scope of SCN – Held that:- Admittedly reversal of proportionate credit was made much before issue of show-cause notice. Show-cause notice doe not reveal as to how the matter has gone to the knowledge of the department or brought to the notice of the parties but order-in-original at para 2 indicates that during the course of audit, it was noticed that assessee had availed cenvat credit on common inputs and input services which are used in the manufacture of dutiable as well as exempted final products – there is force in the submission of ld. Counsel for the appellant that it had not availed credit of duty paid on common inputs and the dispute is therefore restricted to availment of cenvat credit on common input service.
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at the higher rate would be applicable to the assessee for which the order passed by the Commissioner confirming 6% liability against proportionate availment of 1.33% credit is not sustainable.
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Appeal allowed – decided in favor of appellant. – Appeal No. E/86191/2018 – A/88054/2018 – Dated:- 6-12-2018 – Dr. Suvendu Kumar Pati, Member (Judicial) Shri Govind P. Pingle, Consultant for the appellant Shri D.S. Chavan, Supdt. (AR) for the respondent ORDER Imposition of duty demand of 6% against availment of common input and input services without maintenance of separate account for dutiable and exempted final products against appellant s voluntary reversal of proportionate credit under Rule 6(3) along with penalty invoking extended jurisdiction is assailed in this appeal. 2. The narrow compass in which the dispute has come up to this Tribunal stage is that appellant company was found to have been availing cenvat credit of duty paid on inputs/ capital goods and service tax paid on input

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appeal, ld. Counsel for the appellant Shri Govind P. Pingle, Consultant submitted that on being pointed out by the department, proportionate credit was reversed under Rule 6(3A) and the sole reason for rejection of the appeal is that appellant had not exercised the option in writing to the departmental Superintendent giving particulars which was required under Rule 6(3)(ii) read with 6(3A) of the Cenvat Credit Rules. Concerning the appellant s contention against allegation of suppression of fact, the adjudicating authority has avoided to comment on the same. He further argued that, as reveals from para 5 of the order-in-original, the appellant had not availed cenvat credit of duty paid on common inputs and the issue is therefore strictly restricted to availment of credit on common input services. In referring to the decision of the Tribunal reported in 2016 (43) STR 411 (T-Hyd.) and 2017 (347) ELT 112 (T-Bang.), Ld. Counsel for the appellant argued that condition in Rule 6(3A) to intim

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and admittedly no separate record was maintained by the appellant for which he justified leviability of duty @ 6% as contemplated in the Cenvat Credit Rules. 5. Heard from both sides, perused the case records and gone through the judicial decisions cited by the appellant. Admittedly reversal of proportionate credit was made much before issue of show-cause notice. Show-cause notice doe not reveal as to how the matter has gone to the knowledge of the department or brought to the notice of the parties but order-in-original at para 2 indicates that during the course of audit, it was noticed that assessee had availed cenvat credit on common inputs and input services which are used in the manufacture of dutiable as well as exempted final products. However, a finding is given in the order-in-original at para 5, the relevant portion of which reads as follows:- In this regard the assessee s submission that they have not availed cenvat credit on inputs of exempted goods i.e. Bicycle valve appea

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essed the material fact that they have availed cenvat credit on common input services which was noticed only during audit, for which extended period of limitation as envisaged in proviso to Section 11A(1) prior to 08.04.2001 and Section 11A(4) with effect from 08.04.2001 is justifiably invocable and the demand of 16,65,169/- along with interest and penalty are appropriately imposed. It is found from the Order-in-Appeal that a vague statement at para 17 is made that appellant had availed cenvat credit on raw materials viz. Brass rods, brass stems and rubber components but no such basis is found from its order despite the fact that the appellants contention regarding non-availment of credit on inputs/ raw materials required for manufacture and clearance of final products are noted in para 6 of his order. 7. Now coming to the statutory audit procedure, the purpose of audit, as available in the Manual published by the Institute of Chartered Accountants of India in respect of EA audit and C

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CERA audit party to point out the deficiencies, leakage of revenue and non recoveries of dues by the Central Excise Department. Therefore, it cannot be said that only because audit party had found non-maintenance of separate records appellant is to be tasked for suppression etc. 8. In exercise of option as contemplated in Rule 6(3A), the assessee has to choose either of those options and in view of the judicial precedent set in the above two referred case laws, non-intimation of such exercise of option can only be treated as mere procedural lapse. Further, nowhere in the said procedure it has been mentioned that in the event of such intimation not being given, tax liability at the higher rate would be applicable to the assessee for which the order passed by the Commissioner confirming 6% liability against proportionate availment of 1.33% credit is not sustainable and hence the Order. 9. The Appeal is allowed and the impugned order passed by Commissioner (Appeals) vide Order-in-Appeal

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2018 (12) TMI 429 – CESTAT HYDERABAD – TMI – CENVAT Credit – fake invoices – only invoices issued without receipt of goods – Demand alongwith interest and penalties – extended period of limitation – principles of natural justice – Held that:- The investigation did not take place at the end of the transporters, no statement was recorded of any individual from Padmashri Road Lines, and it is seen from the impugned orders that the adjudicating authority as well as the first appellate authority are not disputing the existence of such consignment note nor it is alleged that this consignment note is a fake – In the absence of anything to discredit consignment note of Padmashri Road Lines which carried the material from Vadodara to Hyderabad, it is difficult to accept the revenue’s view point that the main appellant had availed CENVAT credit only on documents.
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This view is fortified by the decision of the Tribunal in the case of Dhakad Metal Corporation [2015 (8) TMI 146 – CESTAT AHMED

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y issuing the invoices and materials were not supplied. It is the case in the show cause notice dated 30.12.2015 that main appellant during May, 2013 availed CENVAT credit of ₹ 4,45,499/- without receipt of material and hence they issue show cause notice for reversing of the same along with interest and also sought to impose penalties on individual who is the Director of main appellant and M/s Benzo Petro International Ltd for such activity. Appellants contested the show cause notice on merits and also on limitation. Appellant produced before the lower authorities the purchase orders placed by them, the consignment note issued by transporters i.e., Padmashri Road Lines, the goods receipt note and the material issued notes as also filing monthly returns filed with the authorities indicating the receipt of the material. It is also the case of the appellants before the adjudicating authority that they have received the material, manufactured the finished goods and removed the same o

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he has produced documents indicating the receipt of the materials and the consumption thereof. On limitation, it is his submission that they have always kept the department informed about the receipt of the material and also to buttress his argument that they have received the raw material, he would state that they would not have manufactured and cleared the finished goods on payment of duty in the absence of any raw material. 4. Learned department representative, on the other hand, submits that there was a DGCEI enquiry which revealed that Benzo dealers had no facility or procured any materials or processed any materials but only issued Central Excise invoices clearing waste and useless materials through the dealer. He would rely upon the statement of the Executive Director of Benzo dealer, General Manager of Arch Pharma (main appellant) and Shri Manoj Jain (Director of the main appellant) wherein they have admitted that they have not received the material. 5. On careful consideration

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RG-23 Part-I to the authorities during the relevant period. It is also seen from the records that main appellant while filing monthly returns has shown the clearances of the finished goods manufactured out of goods received from the dealers. On this overwhelming evidences which are on record, the lower authorities have relied upon the statements of the individuals and has also on the Executive Director of Benzo dealers to hold against the appellant that they have availed ineligible CENVAT credit. 6. On specific query from the Bench, both sides agreed that the investigation did not take place at the end of the transporters, no statement was recorded of any individual from Padmashri Road Lines, and it is seen from the impugned orders that the adjudicating authority as well as the first appellate authority are not disputing the existence of such consignment note nor it is alleged that this consignment note is a fake. In the absence of anything to discredit consignment note of Padmashri R

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2018 (12) TMI 472 – NATIONAL ANTI-PROFITEERING AUTHORITY – TMI – Profiteering – benefit of tax reduction not passed on – Johnson & Johnson Baby Shampoo 100 ml. – Johnson & Johnson Baby Powder 200 Gms – It was also alleged that instead of reduction, the base prices of the above two products were increased on and thus the Respondent had indulged in profiteering in contravention of the provisions of Section 171 of the CGST Act, 2017.
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Held that:- There is no doubt that the Respondent had increased the base prices of the products w.e.f. 15.11.2017, whereas he was required not to increase them and after charging GST @ 18%, he was legally bound to charge the reduced prices so as to pass on the benefit of reduced tax rate to his customers and hence he has indulged in profiteering.
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The Respondent had increased the base prices of 130 products which were supplied by him during the period between 15.11.2017 to 31.032018 and by doing so he had resorted to profiteering on account of inc

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escape the legal obligation which was imposed upon him by the above Notification by shifting his accountability on this ground.
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The Respondent has also not produced any evidence to show that he had made any correspondence with J & J to inform it that he was bound to reduce the prices due to reduction in the rate of tax and J & J should either not increase the base prices or compensate him for the benefit he was bound to pass on to his customers, therefore, it is quite apparent that he had deliberately charged the enhanced prices with an intention to pocket the amount which he was bound to pass on to the recipients.
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The Respondent is directed to reduce the prices of all the above products as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017 by making commensurate reduction in their prices keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients – The Respondent is also directed to deposit the profiteered amount of &#8

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sessee. – Case No.16/2018 Dated:- 6-12-2018 – SH. B.N. SHARMA, CHAIRMAN SH. JC CHAUHAN, TECHNICAL MEMBER, MS. R BHAGYADEVI, TECHNICAL MEMBER Present:- Sh. Akshat Aggarwal, Assistant Commissioner and Sh. Bhupender Goyal, Assistant Director (Costs) for the Applicant, Sh. Ankit Khandelwal, Proprietor and Sh. Anand Kumar Garg for the Respondent. ORDER 1. This report dated 31.072018, has been received from the Director General of Anti-Profiteering (DGAP) under Rule 129 (6) of the Central Goods and Service Tax (CGST) Rules, 2017. The brief facts of the present case are that the Standing Committee vide the minutes of it s meeting dated 13.042018 had requested the DGAP to initiate investigation under Rule 129 (1) of the CGST Rules, 2017 on the allegation that the Respondent had not passed on the benefit of tax reduction from 28% to 18%, granted by the Central and the State Governments w.e.f. 15.11.2017 by maintaining the same Maximum Retail Prices (MRPs) which he was charging before the above

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e Respondent to submit his reply on the allegations levelled above and also to suo moto determine the quantum of benefit which he had not passed on during the period between 15-11,2017 to 31.032018 on the above products. The Respondent was also requested to provide a copy of the audited Balance Sheet, GST Returns, Tran-1 Returns and the details of the outward taxable supplies etc. 3. The Respondent had submitted replies to the notice issued by the DGAP on 24.05-201B vide his letters dated 08.06.2018 and 22.06.2018, The DGAP has informed that the Central Government on the recommendations of the GST Council had reduced the GST rate on the above products from 28% to 18% w.e.f. 15,11.2017 vide Notification No. 41/2017-Central Tax (Rate) dated 14.11.2017 in consequence of which the Respondent was required to sell the above goods on the base prices which were being charged by him before 1511.2017 and levy GST so that the benefit of reduction in the rate of tax could be passed on to the custo

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l the above products at the base prices which were prevalent before 15.11.2017 and he should have charged GST @ 18% on such base prices to pass on the benefit of reduction in the rate of tax from 28% to 18% w.e.f. 15.11.2017. He has further intimated that since the Respondent was a supplier registered under the CGST/SGST Act, 2017 vide GSTI No. 07AWPPK4876R1ZC, he was legally bound to pass on the benefit of reduction in the rate of GST to his customers immediately w.e.f. 15.11.2017. 5. The DGAP has also submitted that by increasing the base prices of the above products and having maintained the pre-GST rate reduction MRPs, the benefit of GST rate reduction was not passed on to the customers by the Respondent. 6. The DGAP has also stated that from the Price Lists submitted by the Respondent, it was revealed that he had raised the base prices of both the above products during the period between 15.11.2017 to 18.11.2017. He has also informed that the base price of Baby Shampoo 100 ml. was

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134 products comprising of 14 HSN codes were affected by the reduction in the rate of GST from 28% to w.e.f. 15.11.2017, the details of which have been mentioned in Annexure-8 by the DGAP. The DGAP has further observed that out of the above 134 products impacted by reduction in the rate of GST, Il products were not supplied during the period between 01.11.2017 to 14, 11.2017. He has also informed that out of the above 11 products, the prices for calculating the profiteered amount in the case of 9 products had been taken from the price list submitted by the Respondent whereas 2 products had been launched in December, 2017. The DGAP has further informed that in the case of rest 123 products, it was observed that the base prices of 121 products were increased after 15.11.2017 and in the case of 2 products, the base prices were reduced after 1511.2017. Therefore the DCAP has concluded that in respect of the above 130 products, supplied by the Respondent during the period between 15.11.2017

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nted materials other than the Manual, and any online or electronic documentation. He has also claimed that the contract also required him not to use the above software in case he did not agree to the terms of the above agreement. The Respondent has also maintained that the contract stated that the ownership of the licensed software at all times would be with J & J. He has further alleged that through this agreement, he had been given a very limited right of using the software solely for the business of the above company and take prior consent of the concerned officer in case he wanted to use this software for any other business. He has also claimed that the title and full ownership rights of the above software were with J & J and he was required to handover the above software to J & J in case of termination of the agreement. Therefore, he has claimed that once the base prices had been increased by J & J with effect from 15.11.2017 in the software, he had no option excep

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. The Respondent has also filed further submissions on 06.09.2018 in which he has stated that he had deposited the due tax which he had charged from the customers at the rate of 18% and had not misused the Input Tax Credit (ITC) availed off as had been calculated by the DGAP. He has further added that he was only an intermediatory between the Company and the customers and was ready to pay the difference of tax if any but no penalty should be imposed since the circumstances were beyond his control and he had no intention to retain the profit on revised rates, He has further submitted that the calculation of the profiteered amount should be done on the stock which was lying on 14.11.2017 only. instead of the total sales made from 15.11.2017 to 31.03.2018. The Respondent has also submitted that as per the calculation sheet prepared by him on the basis of the stock lying on 14.11-2017, the profiteered amount came out to be ₹ 47,333.03/- only. 13. Clarification was sought from the DGA

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o Retailer Retailer to consumers Upto 14 November 2017 17th November onwards Upto 14 November 2017 17th November onwards Upto 14 November 2017 17th November onwards Base Price 74.76 79.74 80.82 86.21 93.75 100.00 Tax 20.93 14.35 22.63 15.52 26.25 18.00 Invoice Price 95.69 94.09 103.45 101.72 120.00 118.00 JB NMT Shampoo (TBP) 100 ml. Particular J&J to Distributor Distributor to Retailer Retailer to consumers Upto 14 November 2017 17th November onwards Upto 14 November 2017 17th November onwards Upto 14 November 2017 17th November onwards Base Price 52.95 54.06 57.25 58.45 66.41 67.80 Tax 14.83 9.73 16.03 10.52 18.59 12.20 Invoice Price 67.78 63.79 73.28 68.97 85.00 80.00 16. We have carefully considered the material placed before us and it has been revealed that the Central Govt. vide Notification No. 41/2017- Central Tax (Rate) dated 14.11.2017 had reduced the rate of GST from 28% to in respect of the above two products with effect from 15.11.2017, the benefit of which was require

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uced prices so as to pass on the benefit of reduced tax rate to his customers and hence he has indulged in profiteering. 17. It is also revealed from the perusal of Annexure-8 submitted by the DGAP that between the period w.e.f. 15.11.2017 to 31.03.2018, the Respondent had sold 223 products manufactured by J & J out of which rate of tax was reduced in respect of 134 products from 28% to 18% w.e.f 15.11.2017. It is further revealed that out of the above 134 products, 11 products were not supplied during the period between 01.11.2017 to 14.11.2017 and hence for calculating the profiteered amount in respect of 9 products, the prices had been taken from the price list submitted by the Respondent whereas 2 products had been launched in the month of December, 2017. It is also apparent from the record that in respect of the rest 123 products, the base prices of 121 products were increased after 15.11.2017 and in the case of remaining 2 products, the base prices were reduced after 15.11.20

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apparent from the record that the Respondent is duly registered under the CGST/SGST Act, 2017 and he was hence bound to follow the Notification dated 14.11.2017 mentioned above vide which the rate of GST was reduced from 28% to 18% on 130 products which he was selling, He cannot escape the legal obligation which was imposed upon him by the above Notification by shifting his accountability on this ground, The Respondent has himself admitted during the course of the hearing that he was aware that he was required to pass on the benefit of the reduced rate of tax to his customers and therefore also he cannot deny his legal liability. The Respondent has also not produced any evidence to show that he had made any correspondence with J & J to inform it that he was bound to reduce the prices due to reduction in the rate of tax and J & J should either not increase the base prices or compensate him for the benefit he was bound to pass on to his customers, therefore, it is quite apparent

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fiteering should be calculated on the basis of the stock which was lying with him as on 14.11.2017 instead of the sales made between 15.11.2017 to 31.03.2018 and therefore, the total amount of profiteering would be ₹ 47,333.03/-, However, this argument of the Respondent is fallacious as he had made illegal profit on all the supplies which he had made w.e.f. 15.11.2017 to 31.03,2018 as he had charged increased prices on all the 130 products although he was bound not to do so as per the Notification dated 14.11.2017. Hence the amount of profiteering calculated by the DGAP is correct. 21. The Respondent has also claimed that he had deposited the due tax and had not misused the ITC and he was willing to pay the balance tax if any and no penalty should be imposed on him. However, it is apparent from the record that the Respondent had increased the base prices illegally and also forced his customers to pay additional GST on the increased prices otherwise there would have been further r

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,646/- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from his customers till the above amount is deposited. Since the recipients in this case are not identifiable the DGAP is directed to get the amount of profiteering of ₹ 5,01,646/- along with interest deposited from the Respondent in the Consumer Welfare Fund of the Central and the concerned State Govt. as per the provisions of Rule 133 (3) (c) of the CGST Rules, 2017. The above amount shall be deposited within a period of 3 months by the Respondent from the date of receipt of this order failing which the same shall be recovered by the DGAP as per the provisions of the CGST Act, 2017 and shall be deposited as has been directed vide this order, Since the present investigation in to the issue of not passing on the benefit of reduction in the rate of tax by the Respondent has been conducted w.e.f. 15.11.2017 to 31.032018 only, the DGAP is directed to further investigate the

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2018 (12) TMI 531 – KERALA HIGH COURT – [2019] 60 G S.T.R. 144 (Ker) – E-way bill – purchase of car from another state – personal effects – temporary registration in the selling state – can brand new car be treated as used car – detention of car due to omission to upload e-way bill – place of supply of goods – whether the omission to upload e-way bill with respect to the transport of a car purchased in Puthuchery, by a person normally residing in Thiruvananthapuram, attracts Section 129 of the Kerala State Goods and Services Tax Act, 2017?
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Held that:- When, a resident of Trivandrum purchases a car in Puthuchery, takes possession of the same, obtain temporary registration in his name and takes out an insurance cover for a period of one year, also in his name; which insurance cover is mandatory under Section 146 of the M.V. Act, the presumption can only be that the delivery was effected in Puthuchery itself. All of these factors indicate that the transfer of property in goods vest

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f the vehicle in Thiruvananthapuram only after taking either a temporary registration or a permanent one from the registering authority having jurisdiction over Thiruvnanathapuram.
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Here, undoubtedly the vehicle was temporarily registered at Puthuchery. It cannot be said that the temporary registration cannot decide the aspect of sale, especially when the temporary registration was taken out in the name of the purchaser. If the vehicle need not be moved out of the dealership for the purpose of temporary registration, the question arises as how it ran for 17 kilometers; obviously after the registration. The transfer of property of goods was occasioned on the temporary registration being made, but, however, the seller-dealer understood it as an inter-state sale since the purchase was intended for use in a State other than the State from which the sale was effected. The purchaser had also paid IGST, a portion of which would be accrued to the State in which eventually the car would be

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tra-State sale having occasioned and the transport being of used personal effects, we find that the detention was illegal.
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Having found the detention to be without sanction of law, the vehicle having been already released, what remains is to quash the notice issued and the order passed, under Section 129, both being illegal and totally without jurisdiction – appeal allowed. – WA. No. 1803 of 2018 Dated:- 6-12-2018 – MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Appellant : ADVS. HARISANKAR V. MENON, KRISHNA. K AND MEERA V. MENON For The Respondent : SRI C E UNNIKRISHNAN SPL GP JUDGMENT Vinod Chandran, J The issue arises as to whether the omission to upload e-way bill with respect to the transport of a car purchased in Puthuchery, by a person normally residing in Thiruvananthapuram, attracts Section 129 of the Kerala State Goods and Services Tax Act, 2017 (KSG&ST Act for brevity). The impugned judgment found that there should be an adjudication carried on and refused r

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y registration in the name of the 2nd appellant was also taken from Puthuchery Motor Vehicles Department as also an insurance cover obtained. The 2nd appellant then, could have driven the vehicle to Thiruvananthapuram where he normally resides. However, the purchase being made of a fancy car at a fancy price he felt that he should not subject the car to a long journey from Puthuchery to Thiruvananthapuram. He hence entrusted the same to the dealer itself for transportation. Here, we have to notice that the dealer has a transportation and logistic wing which is also registered under the GST enactment. The goods were transported in a specially equipped carriage by road. The invoice of purchase of car showed collection of IGST, obviously deeming the sale to be an inter-state one. An invoice is issued for the transporting charges, which too shows collection of IGST, being the tax for service of transportation of the vehicle. The vehicle in which the car was carried was detained at Amaravil

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the exemption granted under Sub-rule (14) of Rule 138 read with the Annexure. It was also argued that the 2nd appellant if had driven the vehicle from Puthuchery to Thiruvananthapuram there would have been no such detention or demand for tax. The demand raised as per the notice issued and the order passed was the applicable tax and penalty at 100% of the tax applicable, being the IGST which the dealer had already collected as evidenced from the invoice produced at Ext.P1. 6. The learned Single Judge rightly found Section 129 to be the mechanism for detention,seizure and release of goods and conveyance, in transit, with interim release controlled by sub-section (4) of Section 67, by virtue of Section 129(2). Release of goods detained can be effected under sub-clause (a) of Section 129, when the owner comes forth, on payment of applicable tax and penalty coming to 100% of tax and when any other person so offers, on payment of applicable tax and penalty equal to 50% of tax under sub-clau

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detained under Section 129, there has to be necessarily payment of tax and penalty or furnished; bank guarantee for the said amounts and a bond for the value of the goods. The Division Bench had set aside the order of the learned Single Judge which directed interim release, on payment of 50% of the demanded tax in that case. (Asst.Sales Tax Officer v. Indus Motors Ltd. (2018) 5 SGSTR 402 (Ker))was also relied on in which another Division Bench (ourselves) had found that even if the transaction is not taxable, Rules 55 and 138 of the KG&ST Rules prescribed documents to accompany the goods as provided thereunder and any failure; would result in detention under Section 129 and consequent demand of applicable tax and penalty. The learned Single Judge noticed Exts.P1 and Ext.P3, the tax invoice of sale of vehicle and tax invoice for transportation, both of which indicated the supply at Thiruvananthapuram. The second proviso to sub-rule (3) of Rule 138 was noticed to find that even an un

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sonal effect was also noticed. The learned Single Judge refused to venture into such adjudication for it being premature. Considering the fact that the appellant wanted only release of the goods as an interim measure, the learned Single Judge confined his consideration to that. 8. Considering the issue of an interim release, the learned Single Judge held that if the 2nd appellant had driven the car by himself to Puthuchery then, the tax regime would not have hampered the transport. But however, the 2nd appellant having entrusted the vehicle to a transporter, the consequence of his driving the car from Puthuchery to Kerala remains in the conjectural realm, it was observed. Sub-rule (2) of Rule 138 was noticed to find that the registered person as a consignee or as a consignor has to generate e-way bill and upload it in the common portal. The decision in Indus Towers (supra) was relied on to find that if there is contravention of the provisions under the Act and Rules definitely Section

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rris Motors Ltd. v. Litty] and the judgment of a Division Bench of this Court in C.E Appeal 14/2014 dated 07.07.2017. The learned Counsel also takes us through the provisions being Rule 55A and Rule 138 to contend that there is no requirement to upload the e-way bill if it falls under Annexure of Rule 138. 2016 (4) SCC 82 Commissioner of Commercial Taxes , Thiruvananthapuram v. KTC Automobiles is relied on to assert that the sale took place at Puthuchery and the purchaser took possession of the goods by virtue of the temporary registration taken and insurance cover obtained in his name. 10. The learned Special Government Pleader would however, contend that there can be no sale said to have been carried out or a transfer of property in goods, in Puthuchery merely for reason of a temporary registration issued. It is pointed out that the vehicle had run only 17kms as seen from the Odometer, the copy of which is produced as Annexure R2(a). It is contended that temporary registration is a n

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n be no delivery found, at Puthucherry merely by reason of the temporary registration obtained for the car, which is an essential requirement for delivery to the purchaser. The parties to the transaction too understood it to be an inter-State sale, hence the IG&S tax collected in the invoice. A trade certificate as can be seen from Rule 41 of the CMV Rules cannot be the document on which delivery made to a purchaser of a vehicle intended for use in the roads. Rule 42 requires the holder of a trade certificate, being a dealer, to deliver a motor vehicle to a purchaser with registration whether temporary or permanent. 11. The temporary registration taken out for the car has in fact been taken out by the dealer without which the purchaser cannot take the vehicle out on to the public road. It is also argued that for the purpose of temporary registration the vehicle is never taken out of the dealership. There can also be no dispute, it is argued, that the transport was of a brand new ca

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ses where there is no tax effect for the transaction, pursuant to which transport is carried out; the compliance of the statutory prescriptions is sacrosanct, in default of which there could be automatic imposition of penalty. The bonafides or otherwise of a transport, is not at all a question which can be considered by an adjudicating authority especially since it is a civil liability cast on the persons carrying out conveyance. The detention is not related to an attempt at evasion alone, is the compelling argument. The learned Special Government Pleader would urge this Court to leave the adjudication to the adjudicating authority especially since there is a mixed bundle of facts and law involved to be considered. The adjudicating authority at the first instance has to look into it and this Court need not preempt such consideration. The decision relied on by the appellant in KTC Automobiles (supra) has absolutely no application and if at all it can be applied, it has to be in favour o

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pointed out by the learned Special Government Pleader(Taxes)the G&ST regime being destination based and the purchaser being from an outside State, it was understood by the seller that it was an inter-State sales. The State of Kerala stood to benefit by that understanding. There is no dispute that the tax payable on an inter-State sale was paid by the purchaser and the same reflected in the invoice issued by the seller. We however raise a caveat here, that the nature of the transaction whether it is inter-State or intra-State supply is to be decided from the provisions in the statute and not by the intention or understanding of the parties to the transaction. 13. In understanding inter-State and intra-State sale, one has to look at the IG&ST Act, specifically Chapter IV, which speaks of 'Determination of Nature of Supply'; the word supply being defined under Section 7 of the Central Goods and Services Tax Act, 2017 (CG&ST Act). The levy under Section 9 of that Act i

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ment of goods terminates for delivery to the recipient. 14. To determine the place of supply of goods, what is relevant is that the movement of goods should be occasioned by the transaction of supply, as evident from the words where the supply involves movement of goods . It is in such circumstances that the location of supply would be the location of the goods, at the time at which the movement of goods terminates for delivery to the recipient. What is discernible is that, we repeat, the transaction of supply itself, should occasion the movement of the goods. Then the location of the supply would be fixed as the place where the goods are delivered, so as to apply Section 7 or Section 8. 15. A transaction which terminates with the supply within a State is an intra-State supply. However, when a dealer or manufacturer within the State of Kerala purchases goods for the purpose of further sale or manufacture within the State of Kerala, from an outside State dealer and transports it to thei

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e State of Kerala went to the Union Territory of Puthuchery and purchased a car from a dealership there. It is the specific submission of the purchaser that the said car was not available within the State of Kerala for purchase, there being no dealership for the manufacturer within the State of Kerala. There is also no question of any tax evasion as of now, by a purchase made from outside the State, since there is a uniform rate prescribed all over the country. The shift in so far as the GST regime being destination based taxation, is only the shift from the earlier regimes, which was source of goods or origin based. Hence earlier, when goods were sold from one State to another, the levy was under the CST Act, which benefit goes to the State from which the sale originates. In the destination based regime, there is a shift in so far as when there is an inter-State sale, the tax benefit accrues to the State in which supply is made, where the goods eventually are used. 17. When, a residen

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ordance with Sections 7 & 8, read with Section 10 of the IG&ST Act is not the concern of the taxing authorities or even the motor vehicle authorities, the latter of whom is only concerned with the permanent registration being made within the State in which the vehicle is proposed to be used. The requirement also is that, necessarily the vehicle would have to be permanently registered in the State in which the purchaser has his residence or place of business and normally intends to keep it for use as provided in Section 42 of the M.V. Act. 18. Madhu M.B. was a case in which the goods were detained for reason of no nexus between the documents accompanied and the actual goods under transport. The Division Bench found that under Rule 140(2), there is a provision for release of goods on a provisional basis, but only on execution of a bond in Form GST INS 04 and furnishing of security in the form of a bank guarantee equivalent to the amount of applicable tax and penalty payable. The

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the invoice accompanying the transport. The perceived doubt as to whether the transaction was an intra-state or inter-state sale actually brings forth a Catch-22 situation; for if it was the former there is no ground for detention within the State of Kerala and if it was the latter then the applicable tax is satisfied, which document is accompanying the transport also. 19. Rule 41 of the Central Motor Vehicles Rules details the purposes for which motor vehicle with trade certificate may be used. Sub-clause (d) of Rule 41 speaks of for proceeding to or returning from the premises of the dealer or of the purchaser or of any other dealer for the purpose of delivery. Rule 42 however, mandates that the delivery of a vehicle to a purchaser can be only after registering the vehicle temporarily or permanently. The application for registration has to be made under Rule 47 in Form No.20 to the registering authority within a period of 7 days from the date of taking delivery of such vehicle, excl

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the question arises as how it ran for 17 kilometers; obviously after the registration. The transfer of property of goods was occasioned on the temporary registration being made, but, however, the seller-dealer understood it as an inter-state sale since the purchase was intended for use in a State other than the State from which the sale was effected. The purchaser had also paid IGST, a portion of which would be accrued to the State in which eventually the car would be used. 21. In this context, we have to see KTC Automobiles (supra) wherein the Department, under the Kerala General Sales Tax Act, proceeded under Section 45A on the premise that the dealer had shown 263 numbers of car having sold from its Mahe Branch when the cars had never been delivered at Mahe by the manufacturer. The allegation was that the cars were merely registered by the motor vehicles department of Mahe and the cars never physically reached there. Mahe being a Union Territory, at that point, levied lesser tax on

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ration form along with relevant particulars of the vehicle such as engine number and chassis number and hence, registration of a motor vehicle is a post-sale event. 20. But this legal proposition does not take the appellant far. It must be carefully seen as to when the properties, particularly possession of a motor vehicle passes or can pass legally to the purchaser, authorising him to apply for registration. Only after obtaining valid registration under the Motor Vehicles Act, the purchaser gets entitled to use the vehicle in public places. Under the scheme of the Motor Vehicles Act, 1988 and the Central Motor Vehicles Rules, 1989 the dealer cannot permit the purchaser to use the motor vehicle and thus enjoy its possession unless and until a temporary or permanent registration is obtained by him. Only thereafter, the vehicle can safely be said to be no more under possession of the dealer. Clearly, mere mentioning of engine number and chassis number of a motor vehicle in the invoice of

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d owner can take possession and present the vehicle for registration only when it reaches the office of the registering authority. With the handing over of the possession of a specific motor vehicle just prior to registration, the dealer completes the agreement of sale rendering it a perfected sale. The purchaser as an owner under the Motor Vehicles Act is thereafter obliged to obtain certificate of registration which alone entitles him to enjoy the possession of the vehicle in practical terms by enjoying the right to use the vehicle at public places, after meeting the other statutory obligations of insurance, etc. Hence, technically though the registration of a motor vehicle is a post-sale event, the event of sale is closely linked in time with the event of registration. Neither the manufacturer nor can the dealer of a motor vehicle permit the intended purchaser having an agreement of sale to use the motor vehicle even for taking it to the registration office in view of the statutory

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assessee therein not having registered the pre-owned cars in its name and merely facilitates the sale from the prior owner. This Court found that the sale or the ownership transfer of a motor vehicle is governed by the Sale of Goods Act and not the Motor Vehicles Act . We referrred to this only to emphasize that whatever be the position, in the subject transaction there is transfer of property in goods and completed sale within Puthuchery as per the Sale of Goods Act and the Motor Vehicles Act. The fact that temporary registration was obtained at Puthuchery, and insurance cover taken in the name of the registered owner establishes that the sale had been completed at Puthuchery itself. 23. The fact remains that the 2nd appellant could have very well driven the vehicle from Puthuchery to Kerala without any problem. If the vehicle was driven by the petitioner, there was absolutely no reason to upload an e-way bill. However, as noticed at the beginning, the purchaser having taken delivery

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as to whether the brand new car taken delivery of by the 2nd appellant at Puthuchery and transported to Thiruvananthapuram can be termed to be a used car and hence a used personal effect. How used is generally understood, is evident from the various definitions as available in the dictionaries as extracted here-under:- Oxford Advanced Learner's Dictionary: Used: that has belonged to or been used by somebody else before SECOND-HAND: used cars New Webster's Dictionary: Utilized in or employed for some accomplishment or function; having undergone use; secondhand Collins COBUILD English Dictionary: A used car has already had one or more owners Would you buy a used car from this man.. His only big purchase has been a used Ford. We see from the various definitions as extracted from the dictionaries herein above that used means something which is second hand. A car on purchase from the authorised dealer of the manufacturer, with a registration taken is owned by the registered owner an

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dios, etc. Term when used in will, includes only such tangible property as attended the person, or such tangible property as is worn or carried about the person. In re Sorensen's Estate, 46 Cal.App.2d 35, 115 P.2s 241, 243. Term personal effects when employed in a will enjoys no settled technical meaning and, when used in its primary sense, without any qualifying words, ordinarily embraces such tangible property as is worn or carried about the person, or tangible property having some intimate relation to the person of the testator or testatrix; where it is required by the context within which the term appears, it may enjoy a broader meaning. In re Stengel's Estate, Mo.App., 557 S.W.2d 255, 260 26. Rana Hemant Singhji was in the context of the specific words employed in the definition that was considered; which was as follows: (4A) Capital asset means property of any kind held by an assessee, whether or not connected with his business, profession or vocation, but does not includ

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ce to Customs Tariff Act is also irrelevant since the taxing statute herein does not, by specific words or intendment adopt that definition available in the other enactment. Even going by the normal connotations, a car is the personal effect of the person, who carries the registration in his name, who also carries with it the liability to compensate any third party injury caused by the use of such car on the roads. In the case of a car the like of which has been purchased by the 2nd appellant, it is also a priced possession, to be driven around and more to be flaunted as a status symbol. 27. We also are in agreement with the proposition as seen from the English decisions placed before us. Elliott v. Grey was concerned with a situation where a motor car, without an insurance policy, being parked outside the registered owner's house after it had broken down. The vehicle was not in a movable condition, since the owner had jacked up the wheels and removed the battery and terminated his

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nd sold the cars manufactured through its authorised distributors. An individual purchased a car with warranty, which was for the new vehicle and for the first owner/user. The purchaser took delivery of the car and then sold it to a motor dealer, who advertised the car in a newspaper under the heading 'New Cars', which was challenged by the manufacturer. It was held that a car ceased to be new, when it was sold in retail by the authorised dealer and is registered with the local authority and had been driven away by a purchaser. Here also even accepting the fact that there need be no production of the vehicle for a temporary registration, it has to be noticed that the car had been driven for 17kms. The brand new car would have an odometer showing zero and necessarily it was driven only after the supply to the purchaser. The purchaser came to the possession of the vehicle on its retail sale and had taken out a registration albeit temporary, in his name, as also an insurance, the

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e or intra-State, would not depend on whether the purchaser carries it as a head-load through the borders or transports it through his own conveyance or through a transporter. The incidence of tax is on the supply and not on the nature of transport. There is no distinction in so far as the IG&ST Act is concerned, of a supply by road or on a carriage. We hence are of the opinion that the supply of the new vehicle by its authorised dealer terminated on it being purchased by the 2nd appellant in Puthuchery and the subsequent movement of the goods was not occasioned by reason of the transaction of supply. The goods having come into the possession of the purchaser, and the vehicle having been used, however negligible the distance run, we are also of the opinion that it is his used personal effect and there can be alleged no taxable transaction in so far as the movement of goods from Puthuchery to Trivandrum in Kerala, especially since the car had been registered in the name of the purch

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SHAJAN ABRAHAM Versus UNION OF INDIA THROUGH ITS SECRETARY (REVENUE) , NEW DELHI, THE PRINCIPAL SECRETARY FINANCE (GST WING) FINANCE (REV-1) , NEW DELHI, GST COUNCIL, THROUGH ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NEW DELHI, GOODS AND SERVICES TAX NETWORK THROUGH ITS CHAIRMAN, EAST WING, NEW DELHI, THE COMMISSIONER GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM, DEPUTY COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM, COMMISSIONER, OFFICE OF THE COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE, THIRUVANANTHAPURAM, ASSISTANT COMMISSIONER, VELI RANGE, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE, THIRUVANANTHAPURAM AND PRINCIPAL NODAL OFFICER (TECH) /DEPUTY COMMISSIONER, OFFICE OF THE COM

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Tax regime. To use the input tax available to his credit at the time of migration, the petitioner had to upload FORM GST TRAN-1 within the stipulated time. He asserts that though he attempted to upload it within the time, he failed because of some system error. The petitioner, therefore, seeks directions to enable him to take credit of the available input tax. 2. Heard the learned counsel for the petitioner as well as the learned Government Pleader, besides perusing the record. 3. The Ext.P2 is the circular issued by the Government of India for setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal. Paragraph 5 of the circular outlines the procedure the Nodal Officers i

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

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2018 (12) TMI 922 – CESTAT NEW DELHI – TMI – Interest on delayed refund – relevant date – whether the date of refund application as required in Section 11B of the Customs Act has to be the date of application on which it has been filed or it has to be the date on which the deficiencies in the application got corrected?
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Held that:- When even read with Section 11BB of Central Excise Act that for the payment of interest after three months from the date of receipt of refund application, the applicant shall be entitled for the interest at the rate as prescribed. The provision is nowhere expressing about “application” to be called so only in case it is supported by the requisite documents – The law has been settled that the fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision.
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It is also apparent from record that the deficiency, whatever, noticed in the application was informed to the applicant after 15 days. It is

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adjudication proposing the demand of Central Excise duty of ₹ 74,89,162/- which was confirmed vide the Order-in-Original dated 22.09.2009 alongwith the interest and the penalties. However when the matter was appealed before this Tribunal, vide stay Order dated 28.04.2011, appellant was directed to deposit the entire demand of the aforesaid duty. In a writ petition No. 5314/2011 challenging the said stay order before the Hon ble High Court of Madhya Pradesh, Indore, this Tribunal vide Order dated 22.11.2011 was directed to decide the Application for stay dispensing with the requirements of pre-deposit. Subsequently, vide Order dated 05.12.2012, to the Miscellaneous Application Tribunal directed the appellant to make the pre-deposit of ₹ 40 lakhs within 4 weeks of the said Order. Further, vide Final Order of this Tribunal dated 24.01.2017, the Appeal against the recovery of aforesaid Central Excise duty was allowed in favour of the appellant thereby setting aside the adjudica

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Act is also emphasised. It is submitted that grounds of rejecting the contention praying for interest alongwith the amount of refund has been rejected on unreasonable grounds as that of the want of the copy of the Final Order of this Tribunal. It is submitted that irrespective the appellant himself provided the copy as demanded on 04.01.2018 that the same was available with the Department. Otherwise also, the Department had to ask for the deficiency, if any, within two days thereof. Decision of the Hon ble Apex Court in the case Union of India Vs. Hamdard (WAQF) Laboratories 2016 (333) E.L.T. 193 (S.C.) has been impressed upon. Finally praying for date of application to be considered as 15.03.2018, the Appeal in hand is prayed to be allowed. 4. While rebutting these arguments it is submitted by the Department that though the application for refund was filed on 15.03.2017 but it was an incomplete application for want of documents as that of the copy of Final Order of this Tribunal entit

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adjudicated herein is as to whether the date of refund application as required in Section 11B of the Customs Act has to be the date of application on which it has been filed or it has to be the date on which the deficiencies in the application got corrected. For the purpose, Section 11BB is relevant to be looked into, it reads as follows: 11BB. Interest on delayed refunds – if any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, [not below five percent and not exceeding thirty percent per annum as is for the time being fixed [by the Central Government, by notification in the Official Gazette] on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty: It makes it clear when even read wi

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usal thereof shows that it is a clarificatory decision specifically with respect to the refund of pre- deposit requiring such pre-deposits to be made within three months from the date of the Tribunal Orders. As mentioned in para 4 of the Circular, the word used therein is that such pre-deposit must be returned within three months rather from the date of the Order passed by the appellate Tribunal. The date of the said Order is 24.01.2017. The Department was well representing before the Tribunal for the said Appeal. 6. It is also apparent from record that the deficiency, whatever, noticed in the application was informed to the applicant after 15 days. It is Department s acknowledged case that the application was filed on 15.03.2017 and the copy of the Final Order was asked from the applicant vide the Department s letter dated 30.03.2017. The Hon ble Apex Court in the case of Hamdard (WAQF) Laboratories (supra) has clarified that it is obligatory on the part of the revenue to inform defic

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FIROZ KHAN. M. Versus THE DEPUTY TAHSILDAR (RR) , THE VILLAGE OFFICER., PALAKKAD DISTRICT, THE DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES PALAKKAD, THE INTELLIGENCE OFFICER, COMMERCIAL TAXES OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE) COMMERCIAL TAXES, PALAKKAD, STATE TAX OFFICER, STATE GST DEPARTMENT CHITTUR, PALAKKAD, THE TAHSILDAR, CHITTUR PALAKKAD DISTRICT AND DISTRICT COLLECTOR CIVIL STATION, PALAKKAD – 2018 (12) TMI 1014 – KERALA HIGH COURT – TMI – Recovery proceedings – KVAT Act – petitioner's contention is that the petitioner has inherited no property from his father. Therefore, he cannot be subjected to the recovery proceedings – Held that:- Indeed, the petitioner himself is not an assessee, nor has he owned any tax arrears to the Department. Instead, he was asked to answer the claim against his deceased father. The statutory mandate under Section 27 is unmistakable. A legal heir or representative is liable to answer the claim raised agains

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nst the assessment orders. With some delay though, the petitioner filed the appeal. Again he has approached this Court. 2. He filed W.P.(C)No.3205/2018, insisting, among other things, that the appellate authority should consider the petitioner's stay petition in the appeal expeditiously. This Court disposed it of through the Ext.P5 judgment. Later, the appellate authority passed the Ext.P6 conditional stay. But the petitioner did not comply with that condition. As a result, the stay never came in to operation. 3. Thus, on the Department's request, the revenue administration of the District initiated recovery proceedings as seen from the Ext.P7. Assailing the Ext.P7 notice from the Tahsildar, the petitioner has filed this Writ Petition. 4. The petitioner's contention is that the petitioner has inherited no property from his father. Therefore, he cannot be subjected to the recovery proceedings. 5. On the other hand, the learned Government Pleader submits that the petitioner i

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inst the deceased only to the extent he has succeeded to the deceased person's estate. At any rate, that is a disputed question of fact. 9. The records reveal that the petitioner seems to have approached the District Collector and submitted the Ext.P9 representation. Now the petitioner's counsel also informs the Court that the District Collector has already heard the petitioner. But he is yet to pass orders. 10. Then it will suffice if the District Collector, the 7th respondent, passes orders expeditiously on the petitioner's Ext.P9 application. If he has already heard him. Otherwise, he may hear the petitioner on the Ext.P9 and pass orders. 11. I, therefore, without adverting to the merits, dispose of the Writ Petition with the above direction. Until the District Collector passes orders on the Ext.P9, the respondent authorities will defer coercive steps. The Writ Petition is disposed of. – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagement

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2018 (12) TMI 1289 – CESTAT HYDERABAD – TMI – Rectification of mistake – Held that:- The mistake that is sought to be corrected is in Paragraph 5 – The application for rectification of mistake is disposed off. – Application No. E/ROM/30684/2018 in Appeal No. E/31214/2017 – M/30559/2018 – Dated:- 6-12-2018 – Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) Ms. Sandhya, Chartered Accountant (Rep.) for the Appellant. Shri B. Guna Ranjan, Superintendent/AR for the Respondent. ORDER Per: M.V. Ravindran 1. This

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2019 (1) TMI 969 – CESTAT NEW DELHI – TMI – Clearance of goods to a specified project authority approved by the Government of India – Refund claim – exemption in terms of Notification No. 108/95-Ex dated 13.10.1995 – Held that:- The exemption certificate as furnished by the appellant was providing and was fulfilling all the conditions as are required to be fulfilled for seeking the benefit. The certificate has been signed by Executive Chief Project Implementing Authority/ Chief Project Manager. It has been clarified in the certificate itself that his post is equivalent to Joint Secretary in Government of India in Ministry of Railways. Commissioner(Appeals) has miserably been silent about acknowledging all the details furnished to him vide the exemption certificate rather has opted to be silent for the same. The mere emphasis upon the Notification without acknowledging the complete compliance thereof on the part of the appellant is opined unappreciable on the part of the adjudicating a

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uthority i.e. Deputy Commissioner vide its Order No. 05 dated 25.04.2017. However, when matter was reviewed and Appeal on behalf of Department was filed that the Commissioner(Appeals) vide the Order under challenge has rejected the said claim. Being aggrieved the appellant is before this Tribunal. 2. I have heard Mr. Nitin Mehta, Ld. Advocate for the appellant and Mr. P.R. Gupta, Ld. DR for the Department. 3. It is submitted on behalf of the appellant that the only ground as mentioned by Commissioner(Appeals) for rejecting the refund application is the failure of the appellant to furnish the required document as that of copy of certificate issued from the Executive Head of the Project Implementing Authority and counter signed by an office not below the rank of Joint Secretary to Government of India. It is submitted that alongwith the documents as were filed with the refund application, an exemption certificate was duly filed. The details thereof fulfil all the requirements as have been

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. 03/15-16 dated 31.01.2016 issued by us towards the reversal of Excess duty ₹ 3,79,313/- (iii) Exemption Certificate (iv) Customer Confirmation Letter One of such document is an exemption certificate. The perusal thereof shows that this document contains a letter dated 24.04.2015 as was submitted by the appellant to the Superintendent Central Excise Range, Pithampur submitting the original copy of certificate issued by the competent authority certifying exemption from excise duty as per the Government Notification No. 108/95/CE dated 28.08.1995. The said application was submitted at the time of clearance of goods by the appellant. The certificate as mentioned therein is also the part of the said application as was furnished to the Adjudicating Authorities below in the form of exemption certificate. Now, the narrow compass of the adjudication is as to whether this exemption certificate provides all the details as are required to be furnished by the appellant to seek the benefit o

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. PAC is issued by executive head of Project Implementing Authority PAC has been issued by Chief Project Manager, jointly with Group General Manager of RVNL 4. PAC is countersigned by an officer not below the rank of a Joint Secretary, Govt. of India, in the concerned Line Ministry PAC has been signed by Chief Engineer/ Con-II, East Coast Railway, equivalent of Joint Secretary of Ministry of Railways, Govt. of India 5. Goods are certified to be required by the approved Project In the PAC it is categorically certified that the goods were required for the approved project of doubling of doubling of Raipur- Titagarh rail line in East Coastal Railway, financed by the Asian Development Bank [ADB] The perusal of above table clarifies that the exemption certificate as furnished by the appellant was providing and was fulfilling all the conditions as are required to be fulfilled for seeking the benefit. The certificate has been signed by Executive Chief Project Implementing Authority/ Chief Pro

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