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GST – States – 101/GST-2 – Dated:- 22-11-2018 – HARYANA GOVERNMENT EXCISE AND TAXATION DEPARTMENT Corrigendum The 22nd November, 2018 No.101/GST-2.- In the Haryana Government, Excise and Taxation Department, notification No. 99/GST-2, dated the 6th November, 2018, in page 3527, in line 13, for furnish an application to the effect , read furnish an undertaking to the effect . SANJEEV KAUSHAL, Additional Chief Secretary to Government, Haryana, Excise and Taxation Department. – Notification – Circ

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2018 (11) TMI 1504 – ALLAHABAD HIGH COURT – 2019 (20) G. S. T. L. 3 (All.) – Detention of goods with vehicle – seizure order was passed solely on the ground that the e-way bill accompanying the goods had expired – Clause (a) and (b) of Sub-section (1) of Section 129 of the Act – Held that:- In view of the the fact that the petitioners alleged that the vehicle with the goods had entered Kanpur at 8.00 p.m. on 10.11.2018 much before the period mentioned in the e-way bill had expired which fact remains unanswered in the instructions, the seizure of the goods on the ground that accompanying e-way bill had expired is not justified rather it was allowed to expire after the detention of the goods by incorrectly recording the time of interception – the order of seizure dated 11.11.2018 issued under Section 129(1) of the Act to the writ petition is quashed – petition allowed. – Writ Tax No. – 1471 of 2018 Dated:- 22-11-2018 – Pankaj Mithal And Ashok Kumar JJ. For the Petitioner : Rajan Tripat

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pted at Kanpur during the intervening night of 10/11.11.2018 and after the statement of the person incharge of the vehicle was recorded at 11:36 a.m., on the next date ie. 11.11.2018 a seizure order under Section 129 (1) of the Goods and Service Tax Act, 2017 (in short of the Act) was passed solely on the ground that the e-way bill accompanying the goods had expired. Thereafter, on the next date an order for release of the goods was passed on 12.11.2018 under Section 129 (3) of the Act subject to deposit of applicable tax and penalty as provided under Clause (a) and (b) of Sub-section (1) of Section 129 of the Act. The petitioners aggrieved by the aforesaid order have preferred this petition contending that the very basis of the seizure of the goods is non existing as at the time of interception of the goods e-way bill accompanying the goods was very much valid and that only on account of delay in the issue of the memo of seizure, the time mentioned in the e-way bill expired. The seizu

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id instructions clearly reveal that the vehicle had entered Kanpur atleast by 12:30 in the night of 10.11.2018 when it was checked/intercepted at Jarib Chowki, Kanpur ie., hardly 30 minutes after the time prescribed in the e-way bill had expired. The petitioners in paragraph 8 have categorically state that the vehicle had reached Kanpur Nagar around 8 p.m., on 10.11.2018 much before the expiry of the period mentioned in the e-way bill. It is also stated that it was intercepted at 8 p.m., on 10.11.2018 at the Jarib Chowki, outpost Kanpur Nagar. The instructions received from the Assistant Commissioner, Commercial Tax Incharge MS-IX, Kanpur do not match with the documents which has been produced by none other than the Assistant Commissioner which clearly states that the vehicle was intercepted at 8:23 am on 11.11.2018 at Jarib Chowki Kanpur. The instructions states that the interception/checking was done at 12.30 in the night of 10.11.2018. The averments regarding the entry of vehicle in

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he vehicle. This gives an ample handle to the Officers not to enter the actual time of interception and to prepare the seizure memo at leisure making the dealer of the goods to suffer and more particularly the transporter whose vehicle unnecessarily for no fault of his remains seized depriving him of his business of transport being carried through the said vehicle. In the above circumstances and the fact that the petitioners alleged that the vehicle with the goods had entered Kanpur at 8.00 p.m. on 10.11.2018 much before the period mentioned in the e-way bill had expired which fact remains unanswered in the instructions, we are of the opinion that the seizure of the goods on the ground that accompanying e-way bill had expired is not justified rather it was allowed to expire after the detention of the goods by incorrectly recording the time of interception. Accordingly, the order of seizure dated 11.11.2018 issued under Section 129(1) of the Act (Annexure-1) to the writ petition is quas

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GST – States – L.A. BILL No. LXXI OF 2018 – Dated:- 22-11-2018 – In pursuance of clause (3) of article 348 of the Constitution of India, the following translation in English of the Maharashtra Goods and Services Tax (Amendment) Bill, 2018 (L. A. Bill No. LXXI of 2018), introduced in the Maharashtra Legislative Assembly on the 22nd November 2018, is hereby published under the authority of the Governor. By order and in the name of the Governor of Maharashtra, RAJENDRA G. BHAGWAT, Secretary (Legislation) to Government, Law and Judiciary Department. – L. A. BILL No. LXXI OF 2018. A BILL further to amend the Maharashtra Goods and Services Tax Act, 2017. WHEREAS both Houses of the State Legislature were not in session ; AND WHEREAS the Governor of Maharashtra was satisfied that circumstances existed which rendered it necessary for him to take immediate action further to amend the Maharashtra Goods and Services Tax Act, 2017, for the purposes hereinafter appearing ; and, therefore, promulgat

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es Tax Act, 2017 (Mah. XLIII of 2017.) (hereinafter referred to as the principal Act ),- (a) in clause (4), for the words the Appellate Authority and the Appellate Tribunal the words, brackets and figures, the Appellate Authority, the Appellate Tribunal and the Authority referred to in sub-section (2) of section 171 shall be substituted ; (b) in clause (16), for the words Central Board of Excise and Customs the words Central Board of Indirect Taxes and Customs shall be substituted ; (c) in clause (17), for sub-clause (h), the following sub-clause shall be substituted, namely :- (h) activities of a race club including by way of totalisator or a license to book maker or activities of a licensed book maker in such club; and ; (d) clause (18) shall be deleted ; (e) in clause (35), for the word, brackets and letter clause (c) the word, brackets and letter, clause (b) shall be substituted; (f) in clause (69), in sub-clause (f), after the word and figures article 371 the words, figures and le

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accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II. ; (c) in sub-section (3), for the words, brackets and figures sub-sections (1) and (2) the words, brackets, figures and letter sub-sections (1), (1A) and (2) shall be substituted. Amendment of section 9 of Mah. XLIII of 2017. 4. In section 9 of the principal Act, for sub-section (4), the following subsection shall be substituted, namely: – (4) The Government may, on the recommendations of the Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services or

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provided in sub-section (1), he is not engaged in the supply of services; . Amendment of section 12 of Mah. X 6. In section 12 of the principal Act, in sub-section (2), in clause (a), the words, brackets and figure sub-section (1) of shall be deleted. Amendment of section 13 of Mah. XLIII of 2017. 7. In section 13 of the principal Act, in sub-section (2), the words, brackets and figure sub-section (2) of , at both the places where they occur, shall be deleted. Amendment of section 16 of Mah. XLIII of 2017. 8. In section 16 of the principal Act, in sub-section (2),- (a) in clause (b), for the Explanation, the following Explanation shall be substituted, namely:- Explanation.-For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services- (i) where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or du

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, except when they are used for making the following taxable supplies, namely:- (A) further supply of such motor vehicles; or (B) transportation of passengers; or (C) imparting training on driving such motor vehicles; (aa) vessels and aircraft except when they are used- (i) for making the following taxable supplies, namely:- (A) further supply of such vessels or aircraft; or (B) transportation of passengers; or (C) imparting training on navigating such vessels; or (D) imparting training on flying such aircraft; (ii) for transportation of goods; (ab) services of general insurance, servicing, repair and maintenance in so far as they relate to motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa): Provided that, the input tax credit in respect of such services shall be available,- (i) where the motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) are used for the purposes specified therein; (ii) where received by a taxable person engaged- (I)

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s leave or home travel concession : Provided that, the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. . Amendment of section 20 of Mah. XLIII of 2017. 10. In section 20 of the principal Act, in the Explanation, in clause (c), for the words and figures under entry 84 the words, figures and letter under entries 84 and 92A shall be substituted. Amendment of section 22 of Mah. XLIII of 2017. 11. In section 22 of the principal Act, – (a) in sub-section (1), after the proviso, the following proviso shall be inserted, namely:- Provided further that, the Government may, at the request of a special category State and on the recommendations of the Council, enhance the aggregate turnover referred to in the first proviso from ten lakh rupees to such amount, not exceeding twenty lakh rupees and subject to such conditions and limitations, as may be

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Zone in the same State. ; (b) in sub-section (2), for the proviso, the following proviso shall be substituted, namely:- Provided that, a person having multiple places of business in the State may be granted a separate registration for each such place of business, subject to such conditions as may be prescribed. . Amendment of section 29 of Mah. XLIII of 2017. 14. In section 29 of the principal Act,- (a) in the marginal note, after the word Cancellation the words or suspension shall be inserted ; (b) in sub-section (1), after clause (c), the following proviso shall be inserted, namely:- Provided that, during pendency of the proceedings relating to cancellation of registration filed by the registered person, the registration may be suspended for such period and in such manner as may be prescribed. ; (c) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:- Provided further that, during pendency of the proceedings relating to cancellation of registration

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e Government or a local authority, whose books of account are subject to audit by the Comptroller and Auditor-General of India or an auditor appointed for auditing the accounts of local authorities under any law for the time being in force. . Amendment of section 39 of Mah. XLIII of 2017. 17. In section 39 of the principal Act,- (a) in sub-section (1),- (i) for the words in such form and manner as may be prescribed the words in such form, manner and within such time as may be prescribed shall be substituted ; (ii) the words on or before the twentieth day of the month succeeding such calendar month or part thereof shall be deleted ; (iii) the following proviso shall be inserted, namely :- Provided that, the Government may, on the recommendations of the Council, notify certain classes of registered persons who shall furnish return for every quarter or part thereof, subject to such conditions and safeguards as may be specified therein. ; (b) in sub-section (7), the following proviso shall

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ng contained in sub-section (2) of section 16, section 37 or section 38, every registered person shall in the returns furnished under sub-section (1) of section 39 verify, validate, modify or delete the details of supplies furnished by the suppliers. (2) Notwithstanding anything contained in section 41, section 42 or section 43, the procedure for availing of input tax credit by the recipient and verification thereof shall be such as may be prescribed. (3) The procedure for furnishing the details of outward supplies by the supplier on the common portal, for the purposes of availing input tax credit by the recipient shall be such as may be prescribed. (4) The procedure for availing input tax credit in respect of outward supplies not furnished under sub-section (3) shall be such as may be prescribed and such procedure may include the maximum amount of the input tax credit which can be so availed, not exceeding twenty per cent. of the input tax credit available, on the basis of details fur

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– (i) within six months of taking registration; (ii) who has defaulted in payment of tax and where such default has continued for more than two months from the due date of payment of such defaulted amount, shall be such as may be prescribed. . Amendment of section 48 of Mah. XLIII of 2017. 19. In section 48 of the principal Act, in sub-section (2), after the word and figures section 45 the words and to perform such other functions shall be inserted. Amendment of section 49 of Mah. XLIII of 2017. 20. In section 49 of the principal Act,- (a) in sub-section (2), for the word and figures section 41 the words, figures and letter section 41 or section 43A shall be substituted; (b) in sub-section (5),- (i) in clause (c), the following proviso shall be inserted, namely :- Provided that, the input tax credit on account of State tax shall be utilised towards payment of integrated tax only where the balance of the input tax credit on account of central tax is not available for payment of integrat

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(f) of sub-section (5) of section 49, the Government may, on the recommendations of the Council, prescribe the order and manner of utilisation of the input tax credit on account of integrated tax, central tax, State tax or Union territory tax, as the case may be, towards payment of any such tax. . Amendment of section 52 of Mah. XLIII of 2017. 22. In section 52 of the principal Act, in sub-section (9), for the word and figures section 37 the words and figures section 37 or section 39 shall be substituted. Amendment of section 54 of Mah. XLIII of 2017. 23. In section 54 of the principal Act,- (a) in sub-section (8), in clause (a), for the words zero-rated supplies the words export and exports shall respectively, be substituted; (b) in the Explanation, in clause (2),- (i) in sub-clause (c), in item (i), after the words foreign exchange the words or in Indian rupees wherever permitted by the Reserve Bank of India shall be inserted; (ii) for sub-clause (e), the following sub-clause shall

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m the said order, the words subject to a maximum of fifty crore rupees, shall be inserted. Amendment of section 129 of Mah. XLIII of 2017. 27. In section 129 of the principal Act, in sub-section (6) and in the proviso, for the words seven days , the words fourteen days shall be substituted. Amendment of section 143 of Mah. XLIII of 2017. 28. In section 143 of the principal Act, in sub-section (1), in clause (b), after the proviso, the following proviso shall be inserted, namely :- Provided further that, the period of one year and three years may, on sufficient cause being shown, be extended by the Commissioner for a further period not exceeding one year and two years respectively. . Amendment of Schedule I of Mah. XLIII of 2017. 29. In Schedule I appended to the principal Act, in paragraph 4, for the words taxable person the word person shall be substituted. Amendment of Schedule II of Mah. XLIII of 2017. 30. In Schedule II appended to the principal Act, in the heading, after the word

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ehoused goods shall have the same meaning as assigned to it in the Customs Act, 1962. (52 of 1962.) . Repeal of Mah. Ord. XXII of 2018 and saving. 32. (1) The Maharashtra Goods and Services Tax (Amendment) Ordinance, 2018, (Mah. Ord.XXII of2018.) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken (including any notification or order issued) under the corresponding provisions of the principal Act, as amended by the said Ordinance, shall be deemed to have been done, taken or, as the case may be, issued under the corresponding provisions of the principal Act, as amended by this Act. STATEMENT OF OBJECTS AND REASONS The Maharashtra Goods and Services Tax Act, 2017 (Mah. XLIII of 2017) has been enacted with a view to make a provision for levy and collection of tax on intra-State supply of goods or services or both. 2. The Act provides for certain provisions for smooth transition of existing tax payers to new goods and services tax regime. However, the new

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unregistered suppliers ; (iii) to amend section 10 of the Act, so as to enhance the limit of composition levy from one crore rupees to one crore and fifty lakh rupees ; (iv) to amend section 17 of the Act, so as to specify the scope of input tax credit ; (v) to amend section 22 of the Act, in view of the enhancement in the exemption limit for registration in the special category States from ten lakh rupees to twenty lakh rupees ; (vi) to amend section 25 of the Act, so as to facilitate tax payer to have the option to obtain multiple registrations for multiple places of business located within the same State and to provide for separate registration for Special Economic Zone unit or developer ; (vii) to amend section 29 of the Act, so as to insert a provision for temporary suspension of registration while cancellation of registration is under process ; (viii) to insert a new section 43A, so as to provide for the new system of filing return and availing input tax credit ; (ix) to amend s

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. MEMORANDUM REGARDING DELEGATED LEGISLATION The Bill involves the following proposals for delegation of legislative power, namely :- Clause 1(3).-Under this clause, power is taken to the State Government, to bring into force the provisions of the Act by notification in the Official Gazette, and appoint different dates for different sections. Clause 13.-Under this clause, power is taken to the State Government to prescribe, by rules, the procedure for allowing persons having multiple places of business in a State or Union territory to obtain separate registrations for each such place of business. Clause 14.-Under this clause, power is taken to the State Government to prescribe, by rules, for suspension of registration while cancellation of registration is under process. Clause 17.-Under this clause, power is taken to the State Government to prescribe, by rules, the procedure for filing of returns and payment of taxes. Clause 18.-Under this clause, power is taken to the State Government

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GST – States – 47/2018 – Dated:- 22-11-2018 – GOVERNMENT OF WEST BENGAL DIRECTORATE OF COMMERCIAL TAXES 14, BELIAGHATA ROAD, KOLKATA-700015 TRADE CIRCULAR No. 47/2018 (Circular No. 66/40/2018-GST) DATED: 22.11.2018 Subject: GST on Residential programmes or camps meant for advancement of religion, spirituality or yoga by religious and charitable trusts. Certain representations have been received seeking clarification as regards applicability of GST on residential programmes or camps meant for advancement of religion, spirituality or yoga where the fee charged includes the cost of boarding and lodging. 2. The issue has already been clarified by CBIC in the Chapter 39 GST on Charitable and Religious Trusts of Compilation of 51 GST Flyers upda

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ituality or yoga. However, if charitable or religious trusts merely or primarily provide accommodation or serve food and drinks against consideration in any form including donation, such activities will be taxable. Similarly, activities such as holding of fitness camps or classes such as those in aerobics, dance, music etc. will be taxable . 3. It is accordingly clarified that taxability of the services of religious and charitable trusts by way of residential programmes or camps meant for advancement of religion, spirituality or yoga may be decided accordingly. 4. Difficulty if any, in the implementation of this Trade Circular may be brought to the notice of the Commissioner. 5. This Trade Circular shall be deemed to have come into force wi

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GST – States – 48/2018 – Dated:- 22-11-2018 – GOVERNMENT OF WEST BENGAL DIRECTORATE OF COMMERCIAL TAXES 14, BELIAGHATA ROAD, KOLKATA-700015 TRADE CIRCULAR No. 48/2018 (Circular No. 69/43/2018-GST) DATED: 22.11.2018 Subject: Processing of Applications for Cancellation of Registration submitted in FORM GST REG-16. The Commissioner is in receipt of representations seeking clarifications on various issues in relation to processing of the applications for cancellation of registration filed by taxpayers in FORM GST REG-16. In order to clarify these issues and to ensure uniformity in the implementation of the provisions of law across the field formations (i.e. jurisdictional officers), the Commissioner, in exercise of its powers conferred by section 168 (1) of the West Bengal Goods and Services Tax Act, 2017 (hereinafter referred to as the WBGST Act ), hereby clarifies the issues as detailed hereunder: 2. Section 29 of the WBGST Act, read with rule 20 of the West Bengal Goods and Services Ta

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ansferred/disposed over a period of time in a piece meal fashion. In such cases, the 30-day deadline may be liberally interpreted and the taxpayers application for cancellation of registration may not be rejected because of the possible violation of the deadline. 4. While initiating the application for cancellation of registration in FORM GST REG-16, the Common portal captures the following information which has to be mandatorily filled in by the applicant: a) Address for future correspondence with mobile number and email address; b) Reason for cancellation; c) Date from which cancellation is sought; d) Details of the value and the input tax/tax payable on the stock of inputs, inputs contained in semi-finished goods, inputs contained in finished goods, stock of capital goods/plant and machinery; e) In case of transfer, merger of business, etc., particulars of registration of the entity in which the existing unit has been merged, amalgamated, or transferred (including the copy of the or

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e listed at (a) and (b) above, the application for cancellation of registration should be immediately accepted by the proper officer and the order for cancellation should be issued in FORM GST REG-19 with the effective date of cancellation being the same as the date from which the applicant has sought cancellation in FORM GST REG-16. In any case the effective date cannot be a date earlier to the date of application for the same. 6. In situations referred to in (a) or (b) in para 5 above, the proper officer shall inform the applicant in writing about the nature of the discrepancy and give a time period of seven working days to the taxpayer, from the date of receipt of the said letter, to reply. If no reply is received within the specified period of seven working days, the proper officer may reject the application on the system, after giving the applicant an opportunity to be heard, recording reasons for rejection in the dialog box that opens once the Reject button is chosen. If reply to

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is to ensure that the taxpayer discharges any liability that he/she may have incurred under sub-section (5) of the section 29 of the WBGST Act. It may be noted that the last date for furnishing of FORM GSTR-10 by those taxpayers whose registration has been cancelled on or before 30.09.2018 has been extended till 31.12.2018 vide notification No. 1540-F.T., dated the 30th October, 2018. 8. Further, sub-section (5) of section 29 of the WBGST Act, read with rule 20 of the WBGST Rules states that the taxpayer seeking cancellation of registration shall have to pay, by way of debiting either the electronic credit or cash ledger, the input tax contained in the stock of inputs, semi-finished goods, finished goods and capital goods or the output tax payable on such goods, whichever is higher. For the purpose of this calculation, the stock of inputs, semi-finished goods, finished goods and capital goods shall be taken as on the day immediately preceding the date with effect from which the cancel

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x credit available, then the difference shall be paid by him/her in cash. It is reiterated that, as stated in sub-section (3) of section 29 of the WBGST Act, the cancellation of registration does not, in any way, affect the liability of the taxpayer to pay any dues under the GST law, irrespective of whether such dues have been determined before or after the date of cancellation. 9. In case the final return in FORM GSTR-10 is not filed within the stipulated date, then notice in FORM GSTR-3A has to be issued to the taxpayer. If the taxpayer still fails to file the final return within 15 days of the receipt of notice in FORM GSTR-3A, then an assessment order in FORM GST ASMT-13 under section 62 of the WBGST Act read with rule 100 of the WBGST Rules shall have to be issued to determine the liability of the taxpayer under sub-section (5) of section 29 on the basis of information available with the proper officer. If the taxpayer files the final return within 30 days of the date of service o

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re that a taxpayer is freed from the routine compliances, including filing returns, under GST Act during the pendency of the proceedings related to cancellation. Although the provisions of CGST (Amendment) Act, 2018 have not yet been brought into force, it will be prudent for the field formations not to issue notices for non-filing of return for taxpayers who have already filed an application for cancellation of registration under section 29 of the WBGST Act. However, the requirement of filing a final return, as under section 45 of the WBGST Act, remains unchanged. 12. It may be noted that the information in table in FORM GST REG-19 shall be taken from the liability ledger and the difference between the amounts in Table 10 and Table 11 of FORM GST REG-16. 13. Difficulty, if any, in implementation of the above instructions may please be brought to the notice of the Commissioner. 14. This Trade Circular shall be deemed to have come into force from 26.10.2018. Sd/- (Smaraki Mahapatra) Com

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GST – States – 50/2018 – Dated:- 22-11-2018 – GOVERNMENT OF WEST BENGAL DIRECTORATE OF COMMERCIAL TAXES 14, BELIAGHATA ROAD, KOLKATA-700015 TRADE CIRCULAR No. 50/2018 (Circular No. 71/45/2018-GST) DATED: 22.11.2018 Subject: Clarifications of issues under GST related to casual taxable person and recovery of excess Input Tax Credit distributed by an Input Service distributor Representations have been received seeking clarification on certain issues under the GST laws. The same have been examined and the clarifications on the same are as below: S.No. Issue Clarification 1. Whether the amount required to be deposited as advance tax while taking registration as a casual taxable person (CTP) should be 100% of the estimated gross tax liability or

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axable person is ninety days with provision for extension of same by the proper officer for a further period not exceeding ninety days. Various representations have been received for further extension of the said period beyond the period of 180 days, as mandated in law. 1. It is clarified that in case of long running exhibitions (for a period more than 180 days), the taxable person cannot be treated as a CTP and thus such person would be required to obtain registration as a normal taxable person. 2. While applying for normal registration the said person should upload a copy of the allotment letter granting him permission to use the premises for the exhibition and the allotment letter/consent letter shall be treated as the proper document as

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lty if any. 2. The recipient unit(s) who have received excess credit from ISD may deposit the said excess amount voluntarily along with interest if any by using FORM GST DRC-03. 3. If the said recipient unit(s) does not come forward voluntarily, necessary proceedings may be initiated against the said unit(s) under the provisions of section 73 or 74 of the WBGST Act as the case may be. FORM GST DRC-07 can be used by the tax authorities in such cases. 4. It is further clarified that the ISD would also be liable to a general penalty under the provisions contained in section 122(1)(ix) of the WBGST Act. 2. Difficulty if any, in the implementation of this Trade Circular may be brought to the notice of the Commissioner. 3. This Trade Circular sha

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GST – States – 52/2018 – Dated:- 22-11-2018 – GOVERNMENT OF WEST BENGAL DIRECTORATE OF COMMERCIAL TAXES 14, BELIAGHATA ROAD, KOLKATA-700015 TRADE CIRCULAR No. 52/2018 (Circular No. 73/47/2018-GST) DATED: 22.11.2018 Subject: Scope of principal and agent relationship under Schedule I of WBGST Act, 2017 in the context of del credere agent. Post issuance of Trade Circular No. 40/2018 dated 17th September, 2018, various representations have been received from the trade and industry, as well as from the field formations (i.e. jurisdictional officers) regarding the scope and ambit of principal agent relationship under GST in the context of del credere agent (hereinafter referred to as DCA ). In order to clarify these issues and to ensure uniformity of implementation across field formations (i.e. jurisdictional officers), the Commissioner, in exercise of his powers conferred under section 168 (1) of the West Bengal Goods and Services Tax Act, 2017 (hereinafter referred to as WBGST Act ) hereb

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t to the DCA at a rate mutually agreed between DCA and buyer. Concerns have been expressed regarding the valuation of supplies from Principal to recipient where the payment for such supply is being discharged by the recipient through the loan provided by DCA or by the DCA himself. Issues arising out of such loan arrangement have been examined and the clarifications on the same are as below: Sl.No. Issue Clarification 1. Whether a DCA falls under the ambit of agent under Para 3 of Schedule I of the WBGST Act? As already clarified vide circular No. 40/2018 dated 17th September, 2018, whether or not the DCA will fall under the ambit of agent under Para 3 of Schedule I of the WBGST Act depends on the following possible scenarios: In case where the invoice for supply of goods is issued by the supplier to the customer, either himself or through DCA, the DCA does not fall under the ambit of agent. In case where the invoice for supply of goods is issued by the DCA in his own name, the DCA woul

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s supplied (to the buyer) by the supplier. It may be noted that vide notification No. 1135-F.T. dated 28th June, 2017 (Sl. No. 27), services by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount (other than interest involved in credit card services) has been exempted. 3. Where DCA is an agent under Para 3 of Schedule I of the WBGST Act and makes payment to the principal on behalf of the buyer and charges interest to the buyer for delayed payment along with the value of goods being supplied, whether the interest will form a part of the value of supply of goods also or not? In such a scenario following activities are taking place: 1. Supply of goods by the supplier (principal) to the DCA; 2. Further supply of goods by the DCA to the recipient; 3. Supply of agency services by the DCA to the supplier or the recipient or both; 4. Extension of credit by the DCA to the recipient. It is clarified that in cases where the DCA

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2019 (1) TMI 418 – AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH – TMI – Levy of GST – Transmission or Distribution of electricity by an electricity transmission or distribution of electricity utility with respect to the Delay Payment Charges recovered by the applicant from its consumers – Entry no. 25 of notification 12/2017- Central Tax (Rate) Dated 28/06/2017 – applicable rate of tax – HSN/SAC code for Delayed Payment Charges – Held that:- The Delayed payment surcharge is a part of Tariff prescribed by MPERC. The Company recovers the said charge at rates fixed by the Authority. The Delayed Payment Surcharge is billed to consumer when the bill is paid by the consumer after the due date mentioned in the bill. The Delayed Payment Surcharge may be mentioned in the bill as Surcharge on Outstanding Amount or Late Payment Surcharge. Thus the nature of the service is interest/ late fee/ penalty for delayed in payment of consideration.
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As per the provision of Section 15(2)(d) of CGST A

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he other services as per circular no. 34/8/2018- GST, dated – 01st March, 2018).
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The Delayed payment surcharge cannot be treated as separate service and same shall be included in the value of initial service. Thus, portion of Delayed payment surcharge attributable to exempted supply shall be exempted and portion of Delayed payment surcharge attributable to taxable supply shall be taxable.
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Ruling:- The Delayed payment surcharge/ Late Payment Surcharge/ Surcharge on outstanding amount (by whatever name called) cannot be treated as separate service and same shall be included in the value of initial supply to which such charges relate, and the portion of Delayed payment surcharge attributable to exempted supply will be exempted and the portion of Delayed payment surcharge attributable to taxable supply is taxable at the rate on which the corresponding supply is taxed. – Order No. 19/2018 Case No. 20/2018 Dated:- 22-11-2018 – RAJIV AGRAWAL AND MANOJ KUMAR CHOUBEY MEMBER Present

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the GST Act. 3. BRIEF FACTS OF THE CASE – 3.1 The Applicant is a Public Sector Undertaking fully owned by Government of Madhya Pradesh and engaged in distribution and supply of electricity in 20 districts of Madhya Pradesh. 3.2 Applicant is involved in electrification work in to the rural and urban areas under the various Government Schemes; it supplies electricity to all the commercial users and noncommercial consumers and recovers charges for supply of electricity along with other non-tariff, 3.3 Applicant issues bills of supply of electricity to its consumers, which has a particular due date to pay, every payment received after the due date mentioned in bills is liable to pay delay payment charges. 4. QUESTION RAISED BEFORE THE AUTHORITY – Whether applicant is eligible to avail the exemption from the levy of GST under Entry no. 25 of notification 12/2017- Central Tax (Rate) Dated 28/06/2017 bearing description 'Transmission or Distribution of electricity by an electricity transm

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) under HSN/SAC code – 9969. 6. RECORD OF PERSONAL HEARING 6.1. Shree Anil Kumar, Authorized Representative of the company appeared for personal hearing on 11.09.18 and reiterated the submission already made in the application 6.2. He submitted that applicant is a Company fully owned and aided by the Govt. of MP. The applicant is a power distribution utility under Electricity Act, 2003 and distributes power to the consumers in eastern part of the state of Madhya Pradesh. 6.3. It is governed by Electricity Act 2003 and directions of Madhya Pradesh Electricity Regulation Commission (MPERC) are binding on the company. The Madhya Pradesh Electricity Regulatory Authority (MPERC) is an Independent Authority fix rates of supply of power in the State of Madhya Pradesh. 6.4. The MPERC exercises the powers conferred by section 50 of the Electricity Act, 2003 for framing rules and regulations to frame Madhya Pradesh Electricity Supply Code,2013 same is reproduced under- The State Commission shall

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– 9.9 All categories of consumers committing default in the payment of the billed amount shall be liable to pay delayed payment surcharge, on the amount outstanding. al rates as per applicable retail supply tariff order. 6.7. The Delayed payment surcharge is a part of Tariff prescribed by MPERC. The Company is duty bound to charge rates as fixed by the Authority and nothing in addition, in any manner. The Delayed Payment Surcharge is billed to consumer when the bill is paid by the consumer after the due date mentioned in the bill. The Delayed Payment Surcharge may be mentioned in the bill as Surcharge on Outstanding Amount or Late Payment Surcharge. 6.8 EXEMPTION NOTIFICATION FOR TRANSMISSION AND DISTRIBUTION OF ELECTRICITY BY UTILITY- A. Electricity Transmission and Distribution Services – 1. Notification No. 12/2017- Central Tax (Rate) dated 28th June, 2017 – As per Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017 the activity of Transmission or distribution of elec

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ibution and retail supply activities in the commissionerates area of Jabalpur, Rewa and Sagar. Thus based on above facts, it is concluded that the applicant is covered in the definition of electricity transmission and distribution utility. 6.9 Notification No. 11/2017- Central Tax (Rate) dated 28th June, 2017 – As per Notification No. 11/2017- Central Tax (Rate) dated 28th June, 2017 at S.No. 13 the activity of electricity, gas, water and other distribution service is taxable and applicable rate of tax is (9% CGST & 9% SGST) – Sl.No. Service Code (Tariff) or SAC code Description of Services Rate (per cent.) Condition 13 Heading 9969 Electricity, gas, water and other distribution service. 9 Being general clause at S.No. 13 Notification No. 11/2017- Central Tax (Rate) dated 28th June, 2017 applicable in cases of electricity distribution services provided by the person other than electricity transmission and distribution utility. Since, the applicant is covered in the definition of el

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COMS against recovery of charges it had been clarified consumers under State Electricity Act are exempt from GST?. The clarification is as under – S.No. Issue Clarification 4 (1) Whether the activities carried by DISCOMS against recovery of charges from consumers under State Electricity Act are exempt from GST? (1) Service by way of transmission or distribution of electricity by an electricity transmission or distribution utility is exempt from GST under notification No. 12/2017- CT (R), Sl. No. 25. The other services such as, – i. Application fee for releasing connection of electricity; ii. Rental Charges against metering equipment; iii. Testing fee for meters/ transformers, capacitors etc.; iv. Labour charges from customers for shifting of meters or shifting of service lines; v. charges for duplicate bill; Provided by DISCOMS to consumer are taxable. Thus vide above circular it is clarified that the, not all the services of the DISCOMS are exempted. 7. ADVANCE RULLING ISSUED BY THE R

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r no. RAJ/AAR/02/2018-19, Dated – 18/10/2018 had changed the above ruling and provide ruling as under- Based on the available records, we rule that the no GST is chargeable on the delayed payment charges collected from the consumer for delay in payment of consideration for supply of electricity. Thus, the appellate authority had decided that the Delay Payment Charges is exempted as the value of main supply i.e., electricity is exempted. The ruling of Rajasthan authority of advance ruling, GST and the Rajasthan Appellate Authority for Advance Ruling, GST as mentioned above is relevant in the instant case as it is the common practice amongst the electricity distribution Companies to recover the delay payment charges from the consumers in case of delay in payment. Further, the nature of income in the case of applicant and TPADL is same. 8. DISCUSSION AND FINDINGS: The issue raised by the applicant and the material on record are discussed below- 8.1 Vide Notification No. 12/2017- Central T

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the bill is paid by the consumer after the due date mentioned in the bill. The Delayed Payment Surcharge may be mentioned in the bill as Surcharge on Outstanding Amount or Late Payment Surcharge. Thus the nature of the service is interest/ late fee/ penalty for delayed in payment of consideration. As per section 15 of CGST Act, 2017 and MPGST Act, 2017 the Value of Supply is as under – 15. (1) The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply. (2) The value of supply shall include (a) any taxes, duties, cesses, fees and charges levied under any law for the time being in force other than this Act, the State Goods and Services Tax Act, the Union Territory Goods and Services Tax Act and the Goods and Services Tax (Compensation to States) Act, if

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T it is clear that any amount recovered in the name of interest or late fee or penalty tor delayed payment of any consideration for any supply, than same shall be included in the value of such supply. We also observe that component of interest and delayed payment charges are obviously having a direct relation with the value of supply to which such interest/delayed charges relate. These are in fact components of the value of supply and do not have any independent status. Further, as mentioned above as per the ruling of Rajasthan Appellate Authority for Advance Ruling. GST the Delay Payment Charges is exempted as the value of main supply i.e., electricity is exempted. Attention is drawn towards fact the applicant is recovering delay payment charges not only towards supply of electrical energy as goods, supply Transmission/distribution of electricity service as an electricity distribution utility which are exempted, but also towards charges like metering charges and others which are taxab

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2019 (1) TMI 419 – AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH – TMI – Applicability of provisions of S.No.3 & 3A of Table of Notification No. 12/2017 dtd.28.06.2017 – distribution and supply of electricity in western Madhya Pradesh – Government Entity – composite supply – Held that:- The Applicant is a Government Entity and is definitely covered by the definition of Government Entity in terms of Notification No.32/2017 – The application that the Applicant has made a specific mention of Sr. No.3A to notification no. 12/2017, which provides NIL rate of GST for composite supply of goods and services where the value of supply of goods constitute not more than 25% of the value of composite supply provided to the Central government or state government etc. by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution – However, we do not find any specific mention of services in this context in the application. It is pertinent to mention

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the Central Goods & Services Tax Act, 2017 and MP Goods & Services Tax Act, 2017 (hereinafter also referred to CGST Act and MPSGT Act respectively) by M/s. Madhya Pradesh Pashchim Kshetra Vidyut Vitaran Company Limited (hereinafter also referred to as applicant), registered under the Goods & Services Tax. 2. The provisions of the CGST Act and MPGST Act are identical, except for certain provisions. Therefore, unless a specific mention of the dissimilar provision is made, a reference to the CGST Act would also mean a reference to the same provision under the MPGST Act. Further, henceforth, for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST or MP GST Act would be mentioned as being under the GST Act. 3. BRIEF FACTS OF THE CASE – 3.1 The Applicant is a Public Sector Undertaking fully owned by Government of Madhya Pradesh and engaged in distribution and supply of electricity in western Madhya Pradesh. The applicant is a wholly owned

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d by the Central Government, State Government, Union Territory or a local authority . 3.4. Further, vide Notification No.02/2018-CT (Rate) dtd.25.01.2018 following amendments have been made in the Notification no. 12/2017-CT (Rate) dtd.28.06.2017 – (a) Against Serial number 3, in the Entry in Column (3), after the words a Governmental Authority the words 'or a Government Entity' shall be inserted; (b) Also by inserting entry number (3A), NIL rate of GST has been notified for composite supply of goods and services in which the value of supply of goods constitutes not more than 25% of the value of said composite supply provided to the Central Government, State Government or Union Territory or a local authority or a Governmental Authority or a Government Entity by way of any activity in relation to any function entrusted to a Panchayat under Article 243G of the Constitution or in relation to any function entrusted to a Municipality under Article 243W of the Constitution. 3.5 It is

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before us. What has been mentioned in Sr.No.14 of the Application, wherein the Applicant is required to mention the question(s) on which Advance Ruling is sought, is merely Applicability of provisions of S.No.3 & 3A of Table of Notification no. 12/2017 dtd.28.06.2017and corresponding notification issued under MPGST Act, 2017 as amended from time to time on services supplied to the company. 6.2. Thus, there is no specific question posed, and if at all it is a question the same is very generic and no Ruling is practically possible. However, as we could broadly make out from the Application, we presume that the Applicant desires to seek clarification on applicability of Sr.No.3 and 3A to the Notification No.12/2017-CT (Rate) dtd.28.06.2017 corresponding notification issued under MPGST Act,2017 to the services provided by them to Panchayats for Rural Electrification. 6.3. From the documents and evidences placed before us, we do not find any doubt that the Applicant is a Government Ent

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posite supply of goods and services where the value of supply of goods constitute not more than 25% of the value of composite supply provided to the Central government or state government etc. by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution. However, we do not find any specific mention of services in this context in the application. It is pertinent to mention here that applicability of Sr.No.3A will be supply specific and not supplier or recipient specific. Thus it is not possible to give nay ruling about applicability of Sr.No.3A to Applicant, particularly in absence of any specific mention of supply of goods or service or both. 6.5. In view of the above, we conclude that applicability of provisions of Sr.no.3 and 3A shall depend upon the nature of supply and no carte blanche ruling can be given to the Applicant without mention of specific service. 7. RULING (Under section 98 of Central Goods and Services Tax Act, 2017

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2019 (2) TMI 79 – CESTAT CHENNAI – TMI – Supply against International Competitive Bidding – benefit of N/N. 6/2006-CE dated 1.3.2006 – denial on the ground that exemption was available only to M/s. VA-Tech Wabag Ltd., as they were the actual bidders and there was no certificate issued by any authority to the effect that the goods supplied by the appellant to M/s. The Eimco-KCP Ltd. were for use in International Competitive Bidding mega project – Held that:- The respondents have supplied the goods for water treatment plant for human consumption and the only ground for disallowing the benefit of Notification 6/2006 is that the respondents who is a sub-contractor has not participated in the International Competitive Bidding. It is not disputed that M/s. VA-Tech Wabag Ltd. have participated in the International Competitive Bidding.
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The issue as to whether the respondents themselves have to take part in the bidding has been settled in the case of Toshniwal Industries Pvt. Ltd. [2017

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ble only to M/s. VA-Tech Wabag Ltd., as they were the actual bidders and there was no certificate issued by any authority to the effect that the goods supplied by the appellant to M/s. The Eimco-KCP Ltd. were for use in International Competitive Bidding mega project, the department was of the view that Condition No. 19 of the notification was not satisfied. Show cause notice was issued proposing to demand the duty along with interest and also for imposing penalties. After due process of law, the adjudicating authority denied the exemption and confirmed the demand, interest and imposed penalty of ₹ 5.00 lakhs. In appeal, Commissioner (Appeals) vide order impugned herein observed that the respondents are eligible for exemption of the notification and set aside the demand, interest and penalties. Aggrieved, the department has come in appeal. 2. On behalf of the department, ld. AR Shri L. Nandakumar supported the grounds of appeal. 3. The ld. counsel Shri M.N. Bharathi appeared for t

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dents have supplied the goods for water treatment plant for human consumption and the only ground for disallowing the benefit of Notification 6/2006 is that the respondents who is a sub-contractor has not participated in the International Competitive Bidding. It is not disputed that M/s. VA-Tech Wabag Ltd. have participated in the International Competitive Bidding. The issue as to whether the respondents themselves have to take part in the bidding has been settled by the decisions relied by the ld. counsel for the appellant. In Toshniwal Industries Pvt. Ltd. (supra), the very same issue was decided and the relevant portion is as under:- 6. After hearing both sides and on perusal of record, it appears that the Tribunal has decided (supra) that it is not necessary that the manufacturer supplying the goods to the mega power projects should have participated in International Competitive Bidding so long as the goods are supplied to such contract was awarded to a person who took part in the

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2019 (2) TMI 89 – CESTAT CHENNAI – TMI – Construction Services – Construction of Complex Service – appellant entered into agreement with the customers for sale of undivided share of land and for providing construction service – period involved is from 10.9.2004 to 31.10.2008 – Held that:- The contracts entered between the appellant and the service recipient is a composite contract which involves both supply of materials as well as rendering of service.
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The Tribunal in the case of Real Value Promoters Ltd. [2018 (9) TMI 1149 – CESTAT CHENNAI] had occasion to analyse the issue regarding demand of service tax under construction of residential complex services, commercial or industrial construction service and construction of complex service. The Tribunal has held that prior to 1.6.2007, levy of service tax can be under the above categories only for contracts which are purely for services. That after 1.6.2007, the above categories would be applicable only if the contracts are purely

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intelligence it was found that the assessees are providing taxable service without obtaining service tax registration and without payment of service tax. The department took up investigation and on verification of records, it was noticed that the appellant took up a joint development agreement with M/s. ABU Estates Pvt. Ltd. In terms of the agreement, the land was shared by the land owner and the assessee in the ratio of 60:40 and in lieu of the land, the assessee constructed a banquet hall. In respect of the appellant s share, they entered into agreement with the customers for sale of undivided share of land and for providing construction service. The period involved is from 10.9.2004 to 31.10.2008. It appeared to the department that the construction service undertaken by the appellant is liable to service tax under Construction of Complex Service and Commercial Construction Service, show cause notice was issued proposing to demand service tax of ₹ 67,97,827/- along with interes

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to 31.10.2008. The demand has been raised in the show cause notice under construction of complex services. The contracts entered between the appellant and the service recipient is a composite contract which involves both supply of materials as well as rendering of service. The Tribunal in the case of Real Value Promoters Ltd. (supra) had occasion to analyse the issue regarding demand of service tax under construction of residential complex services, commercial or industrial construction service and construction of complex service. The Tribunal has held that prior to 1.6.2007, levy of service tax can be under the above categories only for contracts which are purely for services. That after 1.6.2007, the above categories would be applicable only if the contracts are purely services and which are not composite contracts. Further, it was held that after 1.6.2007, demand in respect of composite contracts would fall under works contract service only. The relevant portion of the said decision

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nalyzed by the Hon ble Apex Court in Larsen & Toubro case (supra) and held that there can be no levy of service tax on composite contracts (involving both service and supply of goods) prior to 1.6.2007. This read together with the budget speech as above would lead to the strong conclusion that composite contracts were brought within the ambit of levy of service tax only with effect from 1.6.2007 by introduction of Section 65(105)(zzzza) i.e. Works Contract Services. As pointed out by the ld. counsels for appellants, there is no change in the definition of CICS/CCS/RCS after 1.6.2007. Therefore only those contracts which were service simpliciter (not involving supply of goods) would be subject to levy of service tax under CICS / CCS / RCS prior to 1.6.2007 and after. Our view is supported by the fact that the method / scheme for discharging service tax on the service portion of composite contract was introduced only in 2007. 7.11 The ld. AR Shri A. Cletus has tried to counter this c

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rvice was classified under the respective taxable service prior to 1-6-2007. This is because works contract describes the nature of the activity more specifically and, therefore, as per the provisions of Section 65A of the Finance Act, 1994, it would be the appropriate classification for the part of the service provided after that date. 7.12 Thus, for example, while construction of a new residential complex as a service simpliciter would find a place under section 65(105)(30b) of the Act, the same activity as a composite works contract will require to be brought under section 65(105)(zzzza) Explanation (c). For both these categories for the definition of residential complex, the definition given in section 65(105)(91a) will have to be adopted as discussed above will have to be taken into account. 7.13 We find sustenance in arriving at this conclusion by a number of decisions of the Tribunal in which it has held as under:- a. In the case of Commissioner, Service Tax, New Delhi Vs. Swade

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Section 65(105) (xxq). The grievance of the Revenue is with reference to commercial nature of the construction undertaken by the respondent and not on the correct classification of taxable activity. b. In the case of Skyway Infra Projects Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai – 2018-TIOL-360-CESTAT-MUM, in respect of identical issue for the period from 2005 to 2012, the Tribunal in para 7 has held as under:- 7. On careful consideration of the submissions made by both the sides, we find that the issue falls for consideration is whether the services rendered by the appellant in respect of 52 contracts entered with various Govt. authorities need to be taxed under MMRC/CICS/ECIS or otherwise. It is on record and undisputed that the adjudicating authority has specifically held that all the 52 contracts which has been executed by the appellants are with material. Learned Counsel was correct in bringing to our notice that the said findings of the adjudicating authority that the ap

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R 147, the Tribunal in paragraphs 9, 10 and 11 has held as under:- 9. The Hon ble Supreme Court in re Larsen & Toubro & Ors. has decided thus 24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines taxable service as any service provided . All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is referred to in the charging provision is the t

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d been rejected by the adjudicating authority. Therefore, even as the services rendered by them are taxable for the period from 1st June, 2007 to 30th September, 2008 the narrow confines of the show cause notices do not permit confirmation of demand of tax on any service other than commercial or industrial construction service . It is already established in the aforesaid judgment of the Hon ble Supreme Court that the entry under Section 65(105)(zzd) is liable to be invoked only for construction simpliciter. Therefore, there is no scope for vivisection to isolate the service component of the contract. d. In the case of Logos Construction Pvt. Ltd. Vs. Commissioner of Central Excise as reported in 2018 (6) TMI 1361, the Tribunal has held as under:- 5.1 The payment upto 01.06.2007 will get extinguished on account of the law that has been laid down by the Apex Court in the case of Larsen & Toubro Ltd., (supra), relied upon by the Ld. Counsel. So ordered. 5.2 The Ld. Counsel has been at

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of ₹ 36,88,611/- demanded in the impugned order should be considered as having been discharged. We find merit in his argument and hence the demand of ₹ 26,88,611/- under works contract service for the period 01.04.2008 to 30.09.2008 is required to be considered as having been paid, albeit subsequent to the visit of the officers. However, the interest liability if any that arise on this amount if not paid already will have to be discharged by the appellants. So ordered. 8. In the light of the discussions, findings and conclusions above and in particular, relying on the ratios of the case laws cited supra, we hold as under:- a. The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service in the light of the Hon ble Supreme Court judgment in Larsen & Toub

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ract, service tax cannot be demanded under CICS / CCS for the periods also after 1.6.2007 for the periods in dispute in these appeals. For this very reason, the proceedings in all these appeals cannot sustain. 5. Following the above decision, we are of the considered opinion that the demand of service tax under commercial or industrial construction service (residential complex) cannot sustain after the period 1.6.2007. The levy of service tax prior to 1.6.2007 cannot also sustain by application of the decision of the Hon ble Supreme Court in the case of Larsen & Toubro Ltd. – 2015 (39) STR 913 (SC). 6. From the discussions made above, we hold that the impugned order cannot sustain and the same requires to be set aside, which we hereby do. The appeal is allowed with consequential relief, if any. The miscellaneous application for change of cause title is allowed. (Operative portion of the order was pronounced in open court) – Case laws – Decisions – Judgements – Orders – Tax Manage

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2019 (2) TMI 90 – CESTAT CHENNAI – TMI – Construction servcies – works contract service – Transport of Goods by Road service – relevant records to the department for verification of the correctness of the service tax paid by them – period September 2004 to September 2008 not furnished – short payment for the period from 1.1.2005 to 30.9.2008 – Held that:- The contracts entered between the appellant and the service recipient is a composite contract which involves both supply of materials as well as rendering of service.
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The Tribunal in the case of Real Value Promoters Ltd. [2018 (9) TMI 1149 – CESTAT CHENNAI] had occasion to analyse the issue regarding demand of service tax under construction of residential complex services, commercial or industrial construction service and construction of complex service. The Tribunal has held that prior to 1.6.2007, levy of service tax can be under the above categories only for contracts which are purely for services. That after 1.6.2007, the

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al and Industrial Construction Service , Construction of Residential Complex Service , Works Contract Service and services under the category of Transport of Goods by Road. Show cause notice was issued to the appellant on the ground that they have not furnished the relevant records to the department for verification of the correctness of the service tax paid by them for the period September 2004 to September 2008. Short payment of service tax was detected under commercial or industrial construction service and transport of goods by road service for the period from 1.1.2005 to 30.9.2008. After due process of law, the adjudicating authority confirmed the demand of ₹ 76,46,295/- under the category of construction of complex service and ₹ 29,868/- under GTA service along with interest and also imposed penalties. Hence this appeal. 2. On behalf of the appellant, ld. counsel Ms. Kanthi Visalakshi submitted that the period of dispute involved in these appeal is prior to September

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nvolves both supply of materials as well as rendering of service. The Tribunal in the case of Real Value Promoters Ltd. (supra) had occasion to analyse the issue regarding demand of service tax under construction of residential complex services, commercial or industrial construction service and construction of complex service. The Tribunal has held that prior to 1.6.2007, levy of service tax can be under the above categories only for contracts which are purely for services. That after 1.6.2007, the above categories would be applicable only if the contracts are purely services and which are not composite contracts. Further, it was held that after 1.6.2007, demand in respect of composite contracts would fall under works contract service only. The relevant portion of the said decision is reproduced as under:- 7.8 On the contrary, being composite works contracts, they will necessarily fall within the ambit of works contract service as defined under section 65(105)(zzzza) ibid. It is possib

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his read together with the budget speech as above would lead to the strong conclusion that composite contracts were brought within the ambit of levy of service tax only with effect from 1.6.2007 by introduction of Section 65(105)(zzzza) i.e. Works Contract Services. As pointed out by the ld. counsels for appellants, there is no change in the definition of CICS/CCS/RCS after 1.6.2007. Therefore only those contracts which were service simpliciter (not involving supply of goods) would be subject to levy of service tax under CICS / CCS / RCS prior to 1.6.2007 and after. Our view is supported by the fact that the method / scheme for discharging service tax on the service portion of composite contract was introduced only in 2007. 7.11 The ld. AR Shri A. Cletus has tried to counter this contention by stating that works contract service is service / activity which would be of a general nature whereas the construction activities defined in Commercial or Industrial Construction Services, Constru

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ion 65A of the Finance Act, 1994, it would be the appropriate classification for the part of the service provided after that date. 7.12 Thus, for example, while construction of a new residential complex as a service simpliciter would find a place under section 65(105)(30b) of the Act, the same activity as a composite works contract will require to be brought under section 65(105)(zzzza) Explanation (c). For both these categories for the definition of residential complex, the definition given in section 65(105)(91a) will have to be adopted as discussed above will have to be taken into account. 7.13 We find sustenance in arriving at this conclusion by a number of decisions of the Tribunal in which it has held as under:- a. In the case of Commissioner, Service Tax, New Delhi Vs. Swadeshi Construction Company – 2018-TIOL-1096-CESTAT-DEL, the Tribunal in para 7 has held as under:- 7. We note that in the present case, the SCN was issued on 27.05.2011. On that date, both the tax entries, name

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case of Skyway Infra Projects Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai – 2018-TIOL-360-CESTAT-MUM, in respect of identical issue for the period from 2005 to 2012, the Tribunal in para 7 has held as under:- 7. On careful consideration of the submissions made by both the sides, we find that the issue falls for consideration is whether the services rendered by the appellant in respect of 52 contracts entered with various Govt. authorities need to be taxed under MMRC/CICS/ECIS or otherwise. It is on record and undisputed that the adjudicating authority has specifically held that all the 52 contracts which has been executed by the appellants are with material. Learned Counsel was correct in bringing to our notice that the said findings of the adjudicating authority that the appellant is eligible for abatement of 67% of the value of the goods is in itself the acceptance of the fact that the contracts were executed with material. It is also on record that the Revenue has not contest

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the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines taxable service as any service provided . All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. It will also be noticed that no attempt to remove the non-service elements

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ices do not permit confirmation of demand of tax on any service other than commercial or industrial construction service . It is already established in the aforesaid judgment of the Hon ble Supreme Court that the entry under Section 65(105)(zzd) is liable to be invoked only for construction simpliciter. Therefore, there is no scope for vivisection to isolate the service component of the contract. d. In the case of Logos Construction Pvt. Ltd. Vs. Commissioner of Central Excise as reported in 2018 (6) TMI 1361, the Tribunal has held as under:- 5.1 The payment upto 01.06.2007 will get extinguished on account of the law that has been laid down by the Apex Court in the case of Larsen & Toubro Ltd., (supra), relied upon by the Ld. Counsel. So ordered. 5.2 The Ld. Counsel has been at pains to point out that on-going projects which were only in the nature of works contract prior to 01.04.2007 cannot be brought under different category of Construction Services and CICS subsequently. We fin

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r the period 01.04.2008 to 30.09.2008 is required to be considered as having been paid, albeit subsequent to the visit of the officers. However, the interest liability if any that arise on this amount if not paid already will have to be discharged by the appellants. So ordered. 8. In the light of the discussions, findings and conclusions above and in particular, relying on the ratios of the case laws cited supra, we hold as under:- a. The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service in the light of the Hon ble Supreme Court judgment in Larsen & Toubro (supra) upto 1.6.2007 b. For the period after 1.6.2007, service tax liability under category of commercial or industrial construction service under Section 65(105)(zzzh) ibid, Construction of Complex Servi

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2019 (2) TMI 91 – CESTAT CHENNAI – TMI – Levy of service tax – photography service – the service was brought within the service tax net with effect from 16.7.2001 – period in dispute is October 2002 to September 2006 – Held that:- Photography studio or agency means any professional photographer or a commercial concern engaged in the business of rendering service relating to photography. Undisputedly, the appellant is engaged in doing advertisement film and such other activities. He also renders service in the cinematographic field. A person who renders such service cannot be considered to be an amateur photographer as rightly concluded by the authorities below – Merely because the appellant does not have a studio or has own industry not registered as commercial concern would not take him out of the ambit of the photography service as he is a professional photographer – demand upheld.
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Penalty u/s 78 of FA – Held that:- The appellant had entertained a reasonable view as to whether

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dering service relating to photography. The department was of the view that the appellant has rendered photography service for the period October 2002 to September 2006 and has not discharged the service tax. Show cause notice was issued proposing to demand the service tax along with interest and also for imposition of penalties. After adjudication, the original authority confirmed the demand of ₹ 11,41,608/- along with interest and imposed equal penalty, giving the option of reduced penalty. A penalty of ₹ 1,000/- was imposed under section 77 of the Finance Act, 1994 also. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Shri J. Shankar Raman submitted that the appellant is an individual who is doing freelance photography and is not a commercial concern engaged in the business of rendering services relating to photography. Though photography service was brought into service tax net with effect from 16.7.2001,

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any service tax. It was his bonafide belief that he was not rendering any photography service since he was not rendering from fixed place like a studio. Therefore, he pleaded that the benefit of section 80 may be invoked to set aside the penalties, 3. The ld. AR Ms. T. Usha Devi supported the findings in the impugned order. She submitted that the appellant has collected huge amount as consideration for the photography service. He was engaged in making advertisement film which is a cinematographic film and various other photography services. The contention of the appellant that he does not own a studio and therefore would not come within service tax net cannot be accepted. The appellant is not an amateur photographer and as being a professional photographer would come within the ambit of the definition of photography service. She therefore submitted that the demand, interest and penalties are legal and proper. 4. Heard both sides. 5. The issue to be considered is whether the activity o

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matographic field. A person who renders such service cannot be considered to be an amateur photographer as rightly concluded by the authorities below. Definitely such person who has been receiving such high consideration to the tune of ₹ 1,41,18,840/- for the period under dispute would fall into the category of professional photographer. Merely because the appellant does not have a studio or has own industry not registered as commercial concern would not take him out of the ambit of the photography service as he is a professional photographer. We therefore conclude that the demand raised as well as interest is legal and proper. The issue on merits with respect to the demand raised is held against the assessee. 7. The ld. counsel has vehemently argued to waive the penalty imposed under section 78 of the Finance Act, 1994. The authorities below have imposed an equal penalty under section 78 of the Finance Act. There is nothing brought out from evidence that appellant has suppressed

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2019 (2) TMI 92 – CESTAT CHENNAI – TMI – Levy of Service tax – commission paid to foreign agents – reverse charge mechanism – period from 18.4.2006 to 31.3.2009 – exemption under N/N. 14/2004-ST dated 10.9.2004 – Held that:- The similar issue as to the demand of service tax for services of overseas commission agents for procurement of orders was analyzed by the Tribunal in the case of Texyard International [2015 (8) TMI 794 – CESTAT CHENNAI]. The Tribunal in the said case observed that the assessee is eligible for exemption of the Notification 14/2004-ST dated 10.9.2004 – demand cannot sustain – appeal allowed – decided in favor of appellant. – Appeal No. ST/126/2011 – Final Order No. 43021/2018 – Dated:- 22-11-2018 – Ms. Sulekha Beevi C.S

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ed the demand, interest and imposed penalties. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Shri M.N. Bharathi appeared and argued on behalf of the appellant. He submitted that the appellant engaged overseas agents and paid commission for procurement of export orders. However, the said services are exempted vide Notification No. 14/2004-ST dated 10.9.2004 as applicable during the relevant period. The Tribunal in the case of Texyard International Vs. Commissioner of Central Excise, Trichy – 2015 (40) STR 332 has held that levy of service tax cannot sustain in view of the exemption as per the notification. He also relied upon the decision in the case of M/s. KPR Cotton Mills

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2019 (2) TMI 211 – CESTAT CHENNAI – TMI – Non-imposition of penalty – short payment of service tax – tax was paid before issuance of SCN – sub-section (3) of Section 73 of FA – Held that:- The respondent has discharged the entire service tax liability along with interest before issuance of the show cause notice – As per sub-section (3) of Section 73, as it stood during the relevant period, no penalty can be imposed when the demand of service tax along with interest stands paid before issuance of show cause notice – The respondents have also explained the reason for delay in paying the service tax.
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It is seen that the accountant engaged had left the firm as it was proved that he is unreliable and mischievous. The respondent had paid

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that the respondents have delayed in paying service tax, investigations were conducted. They had provided taxable service to Volkswagen and other customers during the year 2010 – 11 and they collected the service tax but not filed returns or paid the service tax. Show cause notice dated 21.6.2011 was issued proposing to demand service tax along with interest and for imposing penalties. After due process of law, the Commissioner of Central Excise confirmed the demand and interest and appropriated the amount already paid by the appellant but, however, waived the penalties. Aggrieved against non-imposition of penalties, the department has filed the present appeal. 2. On behalf of the department, ld. AR Shri K. Veerabhadra Reddy submitted that

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uance of the show cause notice. As per sub-section (3) of Section 73, as it stood during the relevant period, no penalty can be imposed when the demand of service tax along with interest stands paid before issuance of show cause notice. The respondents have also explained the reason for delay in paying the service tax. It is discussed in para 10 of the impugned order that the delay occurred due to the delay in receiving amounts from the clients and also because they were not able to ascertain the input credits in order to arrive at the exact service tax amount payable by them; that a single person was looking of the entire affairs and it is also created much hardship in accounting. It is seen that the accountant engaged had left the firm as

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2019 (2) TMI 1005 – APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA – TMI – Place of supply – sourcing (on a worldwide basis)) of goods from India – export or not – Challenge to Advance ruling decision – Non-speaking order – It is pleaded that the Ld. AAR has not applied mind while passing the impugned order and the order is non-speaking.
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Held that:- It is observed that the appellant is side tracking the facts by submitting that the appellant is not an agent or broker, as no such question was asked before the AAR – The Id. AAR has answered all the Questions raised, in term of relevant provisions of the GST Act and by giving detailed reasons. The plea of the appellant, that the AAR has given SAC & description alongwith tax rate which was not asked for, does not hold water because AAR has clarified each and every aspect raised in the application for Advance Ruling by giving self-explanatory findings. Thus the arguments raised by the appellant are untenable.
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The appellant has

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grawal, Power of Attorney Holder, M/s. Esprit India Pvt. Ltd. Department Represented by: Sh. Amreshwar Gautam, Asstt. Commissioner Sh. S.K. Saini, Jt. Director(Legal) Order under Section 101 of the Central Goods and Services Tax Act, 2017/the Haryana Goods and Services Tax Act, 2017. The present appeal has been filed under Section 100 (1) of the Central Goods and Services Tax Act, 2017/the Haryana Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and HGST Act respectively ] by M/s. Esprit India Private Limited [hereinafter referred to as the Appellant ] against the Advance Ruling No. HAR/HAAR/R/2018-19/6, dated 11.04.2018. = 2018 (7) TMI 1334 – AUTHORITY FOR ADVANCE RULINGS HARYANA A copy of order dated 11.04.2018 of the Advance Ruling Authority was received by the appellant on 12.07.2018 and the appeal has been filed on 13.08.2018 which is in time. (11-12.08.18 being holidays) BRIEF FACTS OF THE CASE 1. The appellant namely M/s. Esprit India Pvt. Ltd. is a subs

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n to goods and merchandise including wearing apparel, shoes & accessories and fabric. A brief description of the functions/responsibilities of EDCFE and Esprit Germany and Esprit India Pvt. Ltd. is listed below: Sr.No. Functions/Activities Role of EDCFE/Esprit Germany Role of Esprit India 1. Market research No role Esprit India conducts market research to understand market dynamics, gather pricing information from different suppliers and advise on the best available combination of price, quality and delivery of the goods for Esprit Germany. 2. Purchase of goods and trademark protection Esprit Germany directly purchases goods from Indian suppliers Esprit India performs its functions as sub sourcing contractor of EDCFE and does not purchase the goods or trade in its own name. It assists in protection of trademark which includes ensuring that all suppliers execute all trademark confirmation letters, comply with the trademark protection procedures and comply with the sourcing principle

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transportation. Esprit India based on the guidelines received from EDCFE conducts quality checks at various stages of production. It also checks whether the goods meet the specification, quality, delivery time, and other requirement of Esprit Germany. 6. Logistics Products are dispatched by the suppliers to Esprit Germany. Esprit India makes logistics arrangement for the goods in accordance with the instructions of Esprit Germany received through EDCFE and assure that all documents related to shipment of the goods Esprit Germany are proper. 7. Contract conclusion No role Esprit India does not participate in activities which bring supplier and Esprit Germany into binding contract of purchase of goods. 8. Involving and payment Suppliers directly invoice to Esprit Macao and it makes payment directly to the suppliers No role in the invoicing and payment process as all invoices are sent directly by suppliers to Esprit Germany without any involvement of Esprit India. After notice and opportu

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nt in no manner arranged or facilitated sale of Goods from vendors in India to Esprit Germany The Appellant does not qualify as an agent or a broker for EDCFE E. The services performed by the Appellant are in nature of support services F. Services in the present case are indeed exported. Services provided by the Appellant would qualify as exports in terms of Section 2 (6) of Integrated Goods and Services Tax Act 2017 (the IGST Act). G. The remuneration of the Appellant for support services to EDCFE is independent of purchase of goods by Esprit Germany from India. H. The Ld. AAR has erred both in law and facts while passing the Impugned Order on assumptions and presumptions which is against the facts and the provisions of law. Sh. Nitin Agrawal, Power of Attorney, is present today on behalf of the appellant M/S Esprit India Private Limited. He has reiterated the grounds taken in the memorandum of appeal. It is pleaded that the Ld. AAR has not applied mind while passing the impugned orde

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New Delhi v. Menon Associates (2015 77 VST 168 Del.) = 2014 (11) TMI 970 – DELHI HIGH COURT 3. Commissioner of Service Tax, New Delhi v. Menon Associates (2015 77 VST 168 Del.) = 2014 (11) TMI 970 – DELHI HIGH COURT 4. Sunrise Intermediary services-case law. 5. ARA ruling Global Reach Education [2018-VIL-06-AAR] WB 2017-18-02 (West Bengal) = 2018 (4) TMI 808 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL 6. AAR ruling Gogte Infrastructure Development Corporation Ltd. (2018-VIL-30-AAR-02) Karnataka. = 2018 (5) TMI 759 – AUTHORITY FOR ADVANCE RULING – KARNATAKA 7. Evalueserve.com Pvt. Ltd. V.CST, Gurgaon 2018 ACR 390 CESTAT Chandigarh. = 2018 (3) TMI 1430 – CESTAT CHANDIGARH With these arguments he pleaded that the impugned order of Ld. AAR may be set aside. Of the Department : The representatives of CGST/HGST Authorities have defended the impugned order, stating that the Authority for Advance Ruling has passed a detailed and self-speaking order answering all the questions raised by the app

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rovert the cited authorities of other States, it is pleaded by the department that the same are not binding on the appellant and in support of this argument, the provisions of Section 103 have been refereed to, which read as under:- 103. (1) The advance ruling pronounced by the Authority or the Appellate Authority under this Chapter shall be binding only- (a) on the applicant who had sought it in respect of any matter referred to in sub-section (2) of section 97 for advance ruling. (b) on the concerned officer or the jurisdictional officer in respect of the applicant. (2) The advance ruling referred to in sub-section (1) shall be binding unless the law, facts or circumstances supporting the original advance ruling have changed. It is argued that the Question No. 1 raised by the applicant/appellant has rightly been answered by the AAR and Questions No. 2 and 3 (of the applicant/appellant) have also been rightly refused because they do not fall within the ambit of Section 97(2) of the CG

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giving detailed reasons. The plea of the appellant, that the AAR has given SAC & description alongwith tax rate which was not asked for, does not hold water because AAR has clarified each and every aspect raised in the application for Advance Ruling by giving self-explanatory findings. Thus the arguments raised by the appellant are untenable. The case laws cited by the appellant are distinguishable as the facts and circumstances of the present case are different. The appellant has himself admitted that he has been providing services to the Esprit Germany in terms of the contract between Esprit Germany and Esprit Hong Kong and for that purpose an agreement was made between Esprit Hong Kong and Esprit India (appellant). The appellant is providing the services of market research and assisting in trade mark protection, identification of supplies and inspection and quality control of the goods/services. Therefore, we find that the AAR has rightly identified the SAC description with rate

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GST – States – 1054/2018/10(120)/XXVII(8)/2018/CT-58 – Dated:- 22-11-2018 – Government of Uttarakhand Finance Section-8 NOTIFICATION November 22, 2018 No. 1054/2018/10(120)/XXVII(8)/2018/CT-58 – WHEREAS the State Government is satisfied that it is expedient so to do in public interest; Now, THEREFORE, in exercise of the powers conferred by section 45 of the Uttarakhand Goods and Services Tax Act 2017 (06 of 2017) (hereafter in this notification referred to as the said Act), read with Section 14

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Goods and Services Tax – Profiteering – Bathing Bar and Instant Drink Powder 50 Gms. – Since the reduction in the base prices of these products is more than the additional ITC eligible thereon, the al

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Goods and Services Tax – Classification of services – catering services provided by the Applicant under B2B Model and B2C Model – the activity of the applicant would fall under clause (i) of Notificat

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Goods and Services Tax – GST – By: – Ramesh Patodia – Dated:- 21-11-2018 – Goods and Services Tax, commonly known as GST , is a multi-stage consumption-based value added tax levied on the supply of goods and services and most acclaimed tax reforms of the century which was brought into effect from the 1st day of July 2017 upon enactment of various State and Central GST legislation for which the roadmap was laid by the Constitution (101st) Amendment Act, 2016. The GST replaced the existing multiple cascading taxes levied both by the Centre and the State and all powerful GST Council was assigned the task of Implementation of the law. The Council prescribed five tax slabs for collection of tax viz. 0%, 5%, 12%, 18% and 28% including various rules and regulations. The rationale behind introduction of GST is laid down in the Rajya Sabha Select Committee Report on the Constitution (One Hundred and Twenty Second) Amendment Bill, 2014 as under: To do away with the multiplicity of taxes at the

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as been addressed though multiple issues still remain. While no doubt it would take years for the GST law to become perfect in view of the diverse nature of the Country with several prominent sectors, Real Estate Sector is one of the sectors of the country which is gripping with multiple issues of falling sales, rising cost of inputs, labour issues, income-tax issues etc. One prominent issue which is hotly debated across the country as far as real estate sector is concerned, is the Issue of allowability of input credit towards inputs and input Services used in the construction of a Shopping complex, Mall and/or office complex. The general consensus amongst the various stakeholders seems to be that such input credit is not allowable in view of the express provisions as contained in Section 17(5)(d) of the CGST Act, 2017 and similar provisions as contained in the multiple SGST Acts. The present article examines the ambit and scope of clause (d) of sub-section (5) of section 17 of the CGS

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ion (1) states that every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner as specified in section 49, be entitled to take credit of input tax charged on supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person . On reading of the above stated provision, it is clear that subject to certain conditions, every registered person is eligible to take credit of input taxes charged on the supply of goods or services or both to him provided the goods or services – i) are used; or ii) Intended to be used in the course or furtherance of his business Provisions of Section 17(5)(d) of the CGST Act However, section 17 of the Act dealing with the provisions relating to Apportionment of credit and blocked credit vide sub clause (d) of Sub section (5) restricts the utilisation of input tax cre

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phrase and therefore ordinary meaning of the said expression has to be taken. The plain and simple meaning of the said term would be for his own purposes . The phrase on his own account cannot be taken to refer to a situation where any taxable person who is engaged in any business or profession and uses the goods or services or both on his own account. This is because immediately after the phrase on his own account , the words including when such goods or services or both are used in the course or furtherance of business is written. Apparently if the meaning of the phrase on his own account is deemed to be wide enough to cover every situation of business or commerce including the situation where a real estate company is intending to utilise the Immovable property for the purposes of renting, then there was no need of saying including when such goods or services or both are used in the course or furtherance of business. If the usage of the words on account of furtherance of business wa

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en restricted via Section 17(5). Rationale behind introduction of the provisions as contained in Section 17 of the CGST Act Now it is to be seen as to what is the rationale behind introduction of the provisions as contained in Section 17 of the CGST Act which starts with the heading Apportionment of credit and blocked credit. The first four sub-sections of section 17 viz. sub-section (1) to (4) deals with the situation where the credit is apportioned between eligible and ineligible credit depending upon the utilisation of the goods and services for the purpose of any business and the other purposes and it is Section 17(5) which deals with the cases relating to the blocked credit where the input tax credit is blocked in certain situations as contained in the said sub-section. A glance at the provisions as contained in the said Section 17(5) would reveal that the blocked credit is in respect of such situations where the goods or services or both are not utilised for the purposes of makin

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s also well-settled principle of law that at first one has to apply literal interpretation and only in cases of absurd results, one has to apply purposive interpretation . It is well settled law that while interpreting a statute the basic principle of literal rule of interpretation has to be followed (See B. Premanand and Ors. v. Mohan Koikal and Ors. reported in 2011 (3) TMI 1590 – SUPREME COURT . The relevant portion of the said decision is as follows: 9. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to th

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situation where a company which is engaged in the construction as well as rendition of Real Estate services will be denied the input tax credit in all cases since primarily a real estate company is expected to be engaged in the selling of the properties or renting of the properties and the property in such a situation may be constructed by it on its own account as it is not expected that a real estate company will know in advance the purpose for which the construction is being done i.e., for the purpose of sale or for the purpose of renting out and till such time, the decision is made whether the company will sell or rent out, the construction will always be on own account and therefore if the interpretation of the phrase own account is done in the manner as is being done, the said interpretation will be against the basic framework of the GST law as per which the inputs tax credit is available in respect of goods or services or both which are used for the purpose or intended to be used

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scussion hereinabove, it can be safely concluded that the phrase own account by any stretch of imagination cannot be interpreted to mean that it covers a situation where the property is intended to be leased out. It is not permissible to assume or intend when the intention of the law makers is very clear. Even if the purposive interpretation is applied, from a simple reading of the provisions as contained in Section 17 , it is apparent that in a situation where a movable asset after purchase is rented out then there are express provisions in Section 17 to allow the Input tax credit on purchase of the movable asset against the output taxable supply of the renting of the movable asset and thus it cannot be said that the law makers wanted the supply of movable and immovable property (in so far as utilisation of the property for the purposes of renting) to be treated differently thereby resulting in violation of Article 14 and 19(1)(g) of the Constitution of India. Plant or machinery exclu

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ying on trade or other industrial business The said decision of the Apex Court was considered by Hon ble Allahabad High Court in the case of CIT Lucknow-II Vs Kanodia Warehousing Corporation reported in 1979 (11) TMI 97 – ALLAHABAD HIGH COURT and the Hon ble Court observed as follows:- In order to find out if a building or a structure or part thereof constitutes plant the functional test must be applied. It must be seen whether the subject matter involved, that is, the building or structure or part thereof, constitutes an apparatus or a tool of the tax payer or whether it is merely a space where the tax payer carried on his business. If the building or structure or part thereof is something by means of which the business activities are carried on, it would amount to plant but where the structure plays no part in the carrying on of those activities but merely constitutes a place within which they are carried on, it cannot be regarded as plant. The aforesaid decision was followed by Hon

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n this regard, it may be noted that the word or is normally disjunctive and and is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context. One does sometimes reads or as and in a statute but one does not do it unless you are obliged because or generally does not mean and and and does not generally mean or . Where provision is clear and unambiguous, the word or cannot be read as and by applying the principles of reading down (See Principles of Statutory Interpretation 13th edition 2012 Page No 485-486). In the instant case, while section 17(5)(c) of the Act uses the phrase plant and machinery , Section 17(5)(d) uses the phrase plant or machinery . Obviously the law makers wanted to differentiate between the blockage of credit as contained in Section 17(5)(c) and Section 17(5)(d) and the said difference is explained hereinabove whereby the lawmakers wanted to keep the blockage out of Section

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ictions in respect of utilisation of input tax credit have been prescribed in respect of certain kinds of supply of service but no such restrictions have been prescribed therein in respect of renting of immovable property service taxed under the heading Real Estate Services. In this regard it is pertinent to note that while prescribing different bands of tax rate in respect of GST, five bands of tax rate has been prescribed viz. 0%, 5%, 12%, 18% and 28%. These bands of tax rate has been prescribed on the basis of principle that 0%, 5% and 12% is in respect of essential and needy area and also where there are certain restrictions on the allowability of input tax credit, 28% in respect of luxurious area, etc. and the tax rate of 18% has been said to be the ordinary general rate of GST. In this respect it is to be noted that in notification prescribing the Central Tax Rate for different supplies as referred to hereinabove, the restriction in respect of availment of Input tax Credit has be

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d for the provision of renting services shall be allowed as cenvat credit on the pretext that renting service could not have been rendered without construction of property. However, unlike the amended provision under the service-tax as stated herein above, there is no such express provision under the GST law. GST law itself was introduced in order to allow seamless input credit of tax paid on input and input services used for the provision of output taxable supply and if the interpretation as being sought to be done is allowed to be done; it will be patently against the legislation itself without there being reasonable justification for such differentiation. Interpretation of the phrase including when such goods or services or both are used in the course or furtherance of business in Section 17(5)(d). Now coming to the phrase including when such goods or services or both are used in the course or furtherance of business , it has to be seen as to what is the meaning and purpose of this

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or furtherance of business. Now the question arises whether when one is using the goods or services or both for the purpose of construction of an immovable property, can it be said that such goods or services or both are used in the course or furtherance of business. It is not so. The goods and services when used for the construction of an immovable property directly, they cannot simply by such usage be said to have been used in the course or furtherance of business. If the intention of the law makers was to restrict the credit in case the immovable property was used in the course or furtherance of business, then the law makers would have stated on own account including when such immovable property is used in the course or furtherance of business . Having not said so, it cannot by intendment be read that the said phrase including when such goods or services or both are used in the course or furtherance of business seeks to include the immovable property used for the purposes of busines

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is difficult to carve out one from another and the analysis of the provisions has to be therefore done in the light of this. The plain and simple interpretation of the said phrase can be to say that the said phrase seeks to disallow the input tax credit when the goods or services or both are used in the course of any business i.e., where the immovable property is used as a space for the purpose of running the business. Recently, one writ petition has been filed in Karnataka High Court on this issue and is awaiting the judgement. Conclusion: Across the globe, in similar situations VAT on construction cost is eligible to be allowed as input credit against output supply of renting or leasing. Recently, Cyprus introduced VAT on renting with effect from 13/11/2017 and an Interpretative circular was brought out on 2/1/2018 to clarify certain situations. However, there are no restrictions imposed regarding the input credit re construction cost. Similarly under the UK Law, VAT on construction

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Goods and Services Tax – Started By: – SAFETAB LIFESCIENCE – Dated:- 21-11-2018 Last Replied Date:- 21-11-2018 – Dear Experts, Please advise us whether we can take ITC on the following different cases 1. Investment on Factory Building on purchase of Building construction materials and booked in Fixed Assets 2. Investment on Admin Building on purchase of Building construction materials and booked in Fixed Assets A/c.3. Investment on Factory Building on payment of Labour charges and booked in Fixed Assets A/c.4. Investment on Admin Building on payment of Labour charges and booked in Fixed Assets A/c.5. Expenses on Factory Building repairs on purchase of Building construction materials and booked in Building Maintenance Account (P & L acc

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ction 17(5) of the CGST Act. – Reply By Ramaswamy S – The Reply = ITC not eligible as per Section 17(5) of CGST Act. Further there is a recent Advance Ruling by Telangana on the matter. Regards S.Ramaswamy – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = I endorse the views of both experts Shri Yagay and Ramasamy. – Reply By Ganeshan Kalyani – The Reply = Reproducing extract of exclusion clause. Sec 17(5)(c) works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service; (d) goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his o

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Goods and Services Tax – Started By: – Kaustubh Karandikar – Dated:- 21-11-2018 Last Replied Date:- 6-1-2019 – XYZ(India) importing goods from PQR (Japan) which is a parent company. During warranty period, if any defect is found in these goods, PQR is paying the warranty charges to XYZ. Is XYZ liable to pay GST on it? If yes under which provisions? – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = In my view GST is payable under reverse charge. – Reply By kollengode venkitaraman – The Reply =

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2018 (11) TMI 1287 – BOMBAY HIGH COURT – TMI – Classification of the vehicle “Mahindra Armada” – It is the case of the Respondent that the vehicle “Mahindra Armada” is classifiable under Chapter 8702.00 while it the Revenue's contention that its is appropriately classifiable under head 8703.00 of the Tariff Act – Held that:- Apex Court in Navin Chemicals Mfg. & Trading Co. Ltd., v/s. Collector of Customs [1993 (9) TMI 107 – SUPREME COURT OF INDIA] has held that a dispute as to classification of goods directly relates to the rate of duty for purposes of assessment.
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Thus, the remedy, if any, of the Revenue would be an Appeal from the impugned order before the Hon'ble Supreme Court under Section 35L of the Act as this Appeal is not main

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ng any of the grounds discussed in the Order-in-Original? (b) Whether in the facts and in the circumstances of the case and in law, is Tribunal correct in not following the ratio of its own earlier order in similar matter by setting aside the order in Original instead of remanding the matter back to the Adjudicating Authority? 3. It is an undisputed position before us that the basic issue which arose before the Tribunal was the appropriate classification of the vehicle Mahindra Armada under the Central Excise Tariff Act, 1985 (the Tariff Act). It is the case of the Respondent that the vehicle Mahindra Armada is classifiable under Chapter 8702.00 while it the Revenue's contention that its is appropriately classifiable under head 8703.00

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2018 (11) TMI 1395 – BOMBAY HIGH COURT – TMI – Refund of service tax paid on brokerage charges collected from the Foreign Institutional Investors – Unjust enrichment – assessee had paid service tax on the amount actually received on cum tax value – export of services – Held that:- The impugned order of the Tribunal, after holding on merits that, services rendered by the Respondent to the Foreign Institutional Investors were in the nature of export of services – further, in view of the proviso (a) to Section 11B (2) of the Act, no question of unjust enrichment can arise in case of export of services – the view taken by the Tribunal cannot be found fault with – the proposed question does not give rise to any substantial question of law – app

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t enrichment is applicable in the facts and circumstances of the case? 3. The Respondent has filed refund claim on 29th December, 2004 in respect of service tax paid by them for the period December 2003 to October, 2004 on brokerage charges collected from the Foreign Institutional Investors. 4. The Deputy Commissioner issued a show cause notice dated 3rd March, 2005, seeking to reject the above refund application dated 29th December, 2004 on the ground of unjust enrichment. This, by placing reliance upon sub-section (2) of Section 11 B of the Central Excise Act, 1944, as made applicable to Service tax by Section 83 of Finance Act, 1994. 5. The impugned order of the Tribunal, after holding on merits that, services rendered by the Respondent

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T.M. ABOOBUKKAR AND KHALEEL RAHIMAN Versus ASSISTANT STATE TAX OFFICER SQUAD NO. VII, STATE GST DEPARTMENT, KERALA, THIRUVANANTHAPURAM, JOINT COMMISSIONER OF STATE TAX-1, THIRUVANANTHAPURAM, THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, SECRETARY, TAXES DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM AND UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF REVENUE, NEW DELHI – 2018 (12) TMI 136 – KERALA HIGH COURT – TMI – Detention of goods with vehicle – misclassification in tax rate – Held that:- The respondent authorities are directed to release the petitioners' goods and vehicle on their “furnishing Bank Guarantee for tax and penalty found due and a bond for the value of goods in th

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1st respondent and to set aside the same by issuing a writ of certiorari or any other appropriate writ direction or order. (ii) To direct the 1st respondent to release the goods and vehicle covered by Exhibit P4 and P4(a) issued by the 1st respondent unconditionally after retaining a sample of the goods detained by issuing a writ of mandamus or any other appropriate writ order or direction. (iii) To declare that Sections 129 and 130 of Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 and related provisions the Rules made relating to that are unreasonable, arbitrary, illegal and unconstitutional being violative of Articles 14 and 265 of the Constitution of India. (iv) To declare that Rule 138 of Kerala Good

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ule 140 of the Kerala Goods and Service Tax Rules, 2017 issued under Kerala Goods and Service Tax Ordinance, 2017, is not enforceable after the enactment of Kerala Goods and Service Tax Act, 2017 after the lapse of the Kerala Goods and Service Tax Ordinance, 2017. (viii) To issue a direction to the respondents not to implement or not to insist on Rule 140 of the Kerala Goods and Service Tax Rules, 2017 and Central Goods and Service Tax Rules, 2017 and Form GST INS-04 prescribed there under and to keep in abeyance of the same by issuing a writ of mandamus or any other appropriate writ, direction or order. 3. The learned Division Bench of this Court in Renji Lal Damodaran Vs. State Tax Officer1 has dealt with an identical issue. 4. Applying t

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