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DINDA ANTES Versus THE COMMISSIONER OF COMMERCIAL TAXES KERALA STATE GST DEPARTMENT, THIRUVANANTHAPURAM, THE DEPUTY COMMISSIONERKERALA STATE GST DEPARTMENT, TRICHUR, THE STATE TAX OFFICER, TRICHUR, THE GOODS AND SERVICES TAX NETWORK PVT. LTD AND GOODS AND SERVICE TAX COUNCIL, NEW DELHI – 2018 (12) TMI 137 – KERALA HIGH COURT – TMI – Failure to upload FORM GST TRAN-1 within the stipulated time – input tax credit – Held that:- The petitioner may apply to the additional sixth respondent Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner’s uploading FORM GST TRAN-1, without reference to the time-frame – Petition disposed off. – WP(C). No. 36026 of 2018 Dated:- 21-11-2018 – MR DAMA S

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as the learned Government Pleader, besides perusing the record. 3. There is a circular issued by the Government of India for setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal. Paragraph 5 of the circular outlines the procedure the Nodal Officers is to follow. It reads: 5. Nodal officers and identification of issues 5.1 GSTN, Central and State government would appoint nodal officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the Common Portal. This would be publicized adequately. 5.2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the Common Portal i

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lied) 4. Not only the petitioner but also many other people faced this technical glitch and approached this Court. Both the learned counsel submit that this Court on earlier occasions permitted the petitioner to apply to the additional sixth respondent Nodal Officer for the issue resolution. 5. So, in this case also, the petitioner may apply to the additional sixth respondent Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner s uploading FORM GST TRAN-1, without reference to the time-frame. Ordered so. 6. I may also observe that if the petitioner applies within two weeks after receiving this judgment, the Nodal Officer will consider it and take steps within a week thereafter. If

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CHELLAPERUMAL VAIKUNDASEKAR PROPRIETOR, AYYA VAIKUNDA TRADERS Versus ASSISTANT STATE TAX OFFICER SQUAD NO. III, STATE GST DEPARTMENT, THIRUVANANTHAPURAM, JOINT COMMISSIONER OF STATE TAX-1, THIRUVANANTHAPURAM, THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PRINCIPAL SECRETARY AND ADDITIONAL COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM AND UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF REVENUE MINISTRY OF FINANCE, NEW DELHI – 2019 (1) TMI 140 – KERALA HIGH COURT – TMI – Detention of goods with vehicle – misclassification in tax rate – Held that:- The learned Division Bench of this Court in Renji Lal Damodaran Vs. State Tax Officer [2018 (8) TMI 1145 – KERALA HI

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he petitioner sought the following reliefs: (i)To call for the records leading to Exhibit P4 issued by the 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 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 re-processed plastic mats (RP Mats or RP Plastic Mats for short) comes under HSN code No.4601 of Customs Tarriff Act, 1975. (iv) To declare that Sections 129 and 130 of Kerala Goods and Service Tax Act, 2017 and Central Goods and Service

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Form GST INS-04 prescribed there under are unconstitutional, illegal and ultra vires the Kerala Goods and Service Tax Ordinance, 2017, Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017. (viii) To declare that Rule 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. (ix) 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 i

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Goods and Services Tax – Supply of Services – supply of Business Support Service comprising of Back Office Support and Accounting which is its Principle Supply – Do not qualify as Zero Rated Supply in

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Goods and Services Tax – Started By: – sunil jain – Dated:- 20-11-2018 Last Replied Date:- 2-12-2018 – As per section 34(2) of CGST Act, any registered person who issues Credit Note(CN), shall declare the details of such CN in the return for the month during which CN has been issued but not later than September following the end of the FY in which supply was made. Say if supply of good was made in March 2018, and goods are returned back in October, does it mean CN can not be issued in Oct or so? Pl clarify. Thanks, CA. R.K. Aggarwal – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = As per the provisions of law it is yes. But some clarifications have to be issued in this regard by GST Council because of difficulties in actual practice. You

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Goods and Services Tax – Started By: – Ethirajan Parthasarathy – Dated:- 20-11-2018 Last Replied Date:- 28-11-2018 – Due to litigation between landlord of commercial property & tenant, the rents were not received. Civil suit for eviction is likely to be filed.Is landlord liable to pay GST under the above circumstances.One view could be that the landlord has to pay GST atleast to the extent of rental deposit already received. Is this view correct. What will be the situation after fully setting off the rental deposit. – Reply By KASTURI SETHI – The Reply = This is an extract of FAQ dated 31.3.17Q4. What are the necessary elements that constitute supply under CGST/SGST Act?Ans. In order to constitute a supply , the following ele

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nant has neither vacated nor paying rent – Reply By KASTURI SETHI – The Reply = There is not an iota of doubt about leviability of GST on rental deposit. It is an advance. Dr.Govindarajan Sir has rightly opined. – Reply By YAGAY andSUN – The Reply = It will be treated as payments made in advance (i.e.deposits) and adjust accordingly. Hence liable for charging of GST. – Reply By Ganeshan Kalyani – The Reply = When the deposit was received it was not taxable as it was not for the service rendered or to be rendered. But when it is adjusted against the rent to be receivable but not received then it looses its identity as a deposit and it takes the name of rent. Hence, when the deposit is adjusted with the unrealisable rent it is subject to GST.

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Goods and Services Tax – Started By: – Pramod Jadhav – Dated:- 20-11-2018 Last Replied Date:- 21-11-2018 – I am holding Gst Registeration in maharashtra state as composition taxable person, i have to send goods for at exhibition held in another state i.e. Calcutta so how can i send goods through transport is E-way bill compulsary or i can send through delivery challan. and if i can send through delivery challan so can you please give me the format of delivery challan – Reply By DR.MARIAPPAN GOV

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Examination for Confirmation of Enrollment of GST Practitioners Postponed to 17.12.2018 – Goods and Services Tax – GST – Dated:- 20-11-2018 – Reference is invited to Press Release dated 1.11.2018 rega

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Goods and Services Tax – Remittance of amount under the head SGST , instead of IGST – HC directed the revenue that, there is no difficulty for the respondent officials to allow the petitioner s reques

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2018 (11) TMI 1035 – CESTAT NEW DELHI – TMI – CENVAT Credit – input services – outward transportation charge under GTA service – place of removal – period January, 2005 to December, 2011 and July, 2013 to February, 2016 – Held that:- In view of changed definition of input service after April, 2008 the appellant is liable to pay service tax as per the prevalent rate only.
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Penalty – Held that:- The issue was mired in confusion and the issue was resolved only with the decision in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 – SUPREME COURT OF INDIA] – thus this is not a fit case to impose penalty.
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Appeal allowed – decided in favor of appellant. – E/50161, 50421/2018-EX(DB) – Final Order No: 53303-53304/2018 – Dated:- 20-11-2018 – Mr. Bijay Kumar, Member (Technical) and Mr. Ajay sharma, Member (Judicial) Smt. Sukriti Das, Adv for the appellant Shri M.R.Sharma,(DR) for the respondent ORDER Per: Bijay Kumar 1. Both the ap

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are only factory gate /depot and not beyond that, and hence the Cenvat Credit availed on GTS service is not admissible as it does not qualifies as input service, defined under Rule 2 (l) of Cenvat Credit Rules, 2004. 4. In respect of Appeal No. E/50161/2018, this is the second round of litigation for period from January, 2005 to December 2011, and Appeal No. E/50421/2018, is a periodical demand on the same ground. The demands were confirmed after following the due process of law. 5. It is submitted by the Ld. Advocate that up to period March, 2008, the definition of input service contained the phrase from the place of removal . The Cenvat credit availability From place of removal has been settled in their favour in view of Hon ble Supreme Court order dated 17/1/2018 and 5/2/2018 in case of CCE vs. Vasavaddatta Cement Ltd., 2018(11) GSTL3 (SC) and in the case of CC, CE & ST, Guntur vs. The Andhra Sugar Ltd., 2018-TIOL-45-SC-CX. The definition of the input service during the relevant

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ot sustainable and liable to be set aside. 6. It was further submitted by the Ld. Advocate that accordingly to Ld. Advocate for the period from 1/4/2008 onward, the phrase from the place of removal has been substituted by phrase too upto to place of removal . Hon ble Supreme Court in the case of CCE & ST vs. Ultratech Cement Ltd. 2018 (9) GSTL 337 (S.C.) has held as under; 10. In the first instance, it needs to be kept in mind that Board‟s Circular dated August 23, 2007 was issued in clarification of the definition of input service‟ as existed on that date i.e. it related to unamended definition. Relevant portion of the said circular is as under : ISSUE : Up to what stage a manufacturer/consignor can take credit on the service tax paid on goods transport by road? COMMENTS: This issue has been examined in great detail by the CESTAT in the case of M/s. Gujarat Ambuja Cements Ltd. vs. CCE, Ludhiana [2007 (6) S.T.R. 249 (Tri-D)]. In this case, CESTAT has made the following

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se of M/s. Ultratech Cements Ltd v. CCE Bhavnagar – 2007-TOIL-429-CESTAT-AHM = 2007 (6) S.T.R. 364 (Tribunal), it was held that after the final products are cleared from the place of removal, there will be no scope of subsequent use of service to be treated as input. The above observations and views explain the scope of the relevant provisions clearly, correctly and in accordance with the legal provisions. In conclusion, a manufacturer/consignor can take credit on the Service Tax paid on outward transport of goods up to the place of removal and not beyond that. In this connection, the phrase place of 8.2 removal‟ needs determination taking into account the facts of an individual case and the applicable provisions. The phrase place of removal‟ has not been defined in CENVAT Credit Rules. In terms of sub-rule (t) of Rule 2 of the said rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise

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e, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the place of removal‟ does not pose much problem. However, there may be situations where the manufacturer /consignor may claim that the sale has taken place at the destination point because in terms of the sale contract/agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the Service Tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under Section 2

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to be satisfied have to be in the context of upto‟ the place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the said Board‟s circular, nor it could be. 12. Secondly, if such a circular is made applicable even in respect of post amendment cases, it would be violative of Rule 2(l) of Rules, 2004 and such a situation cannot be countenanced. 13. The upshot of the aforesaid discussion would be to hold that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer‟s premises was not admissible to the respondent. Accordingly, this appeal is allowed, judgment of the High Court is set aside and the Order-in-Original dated August 22, 2011 of the Assessing Officer is restored. 7. It was further contended while Ld. Advocate that the demand is not sustainable for period beyond normal period of limitation (one year) on the ground that there was wide spread confusion about t

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s admissible on fulfilment of conditions mentioned in the circular. 1 April 2008 Rule 2(l) of the Credit Rules, 2004 was amended and the phrase from the place of removal was substituted to upto the place of removal . 10 February 2009 Ambuja Cement Ltd. vs Union of India, 2009 (236) E.L.T. 431(P &H) The Hon ble Punjab and Haryana High Court overruled the decision in Gujrat Ambuja Cement(supra) 18 May 2009 ABB Ltd. vs. CCE, 2009 (15) S.T.R. 23(Tri-LB) The Larger Bench held that transportation of final product must be considered in light of the requirement of the business. 15 June 2009 The Department accepted the order of the Hon ble Punjab and Haryana High Court and decided not to file an SLP. 23 March 2011 CCE v. ABB Ltd., 2011(23) S.T.R.97(Kar.) The Hon ble High Court affirmed the decision of the larger bench in ABB (supra). 6 April 2011 CCE v. Parth Poly Woven Pvt. Ltd. 2012(25) S.T.R 4(Guj) The Hon ble Gujarat High Court held that transportation of finished goods is inextricably

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val 3 September 2014 Ultratech Cement Ltd. vs CCE, 2015(37) S.T.R. 364(Tri.-Del) Followed the previous order at 2014(35) S.T.R. 751(Tri.-Del.) 20 October 2014 The Department issed a circular which reiteratd the circular datd 23 August 2007, that the place where the sale takes place is the place of removal. 29 June, 2016 CCE v. Ultratech Cement Ltd., 2016(44) S.T.R. 227(Kar) The Hon ble High Court held that credit on FOR destination sales is admissible Appealed before SC (Civil Appeal No. 11261 of 2016) 17 January 2018 CCE, Belgaumn vs. Vasavadatta Cement Ltd., 2018(11)GSTL 3(SC) The Hon ble Supreme Court held that the credit would be admissible for the period prior to the amendment in 2008 -01 February 2018 CCE & ST vs. Ultratech Cement Ltd. 2018(9) GSTL 337(SC) The Hon ble Supreme Court held that credit is inadmissible for the period after the amendment in 2008 05 February 2018 Commissioner vs. The Andhra Sugar Ltd., 2018 TIOL 45 SC CX The Hon ble Supreme Court held that the credi

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GST – States – F.1-11(91)-TAX/GST/2018(Part-II) – Dated:- 20-11-2018 – GOVERNMENT OF TRIPURA FINANCE DEPARTMENT (TAXES & EXCISE) NO.F.1-11(91)-TAX/GST/2018(Part-II) Dated, Agartala, the 20th November, 2018 CORRIGENDUM In the notification of the Government of Tripura, in the Finance Department, No.F.1-11(91)-TAX/GST/2018(Part-II), dated the 3rd November, 2018, published in the Tripura Gazette, Extraordinary Issue, vide number 1076, dated the 3rd November, 2018, in page 4, in sl. no. 4(b), fo

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2018 (11) TMI 1376 – CESTAT HYDERABAD – TMI – CENVAT Credit – denial on the ground that the duty involved is not indicated in the relevant invoices, also on the ground that the name of the appellant itself does not figure in the invoice – credit of input services where SSI benefit availed – Held that:- Unless there is evidence on record that the input services corresponding to the disputed invoices (raised not in the name of the appellant but in the name of the appellant’s corporate office or in the name of some other entity) are used by the appellant, they cannot claim CENVAT credit. It is different from a case where the use of inputs/ input services is not in dispute and only the invoice indicates a wrong address but such is not the case.
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Denial of credit of ₹ 73,571/- on input services – contravention of the provisions of the Notification No.8/2003-CE dated 01.03.2003 – Held that:- As far as the exemption under N/N. 8/2003-CE is concerned, Para 2 (iii) clearly lays dow

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plates for vehicles registered under the States of Telangana and Andhra Pradesh. An audit was conducted at the premises of the appellant in period April, 2012 to March, 2016 and a show cause notice dated 23.05.2017 was issued to the appellant for recovery of credit of ₹ 1,71,944/- along with interest and it was also proposed to impose penalty. This denial was on five grounds. The lower authority confirmed the demands and interest and imposed penalty. On appeal, the first appellate authority allowed the credit on one ground amounting to ₹ 20,400/- which was denied by the lower authority on the ground that the duty involved is not indicated in the relevant invoices. The department has not appealed against this credit allowed by the first appellate authority and hence this issue has reached finality. Learned counsel submits that they are not contesting denial on another ground, viz., the denial of ₹ 19,684/- on account of trading activity although they had initially cont

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e. Learned counsel submits that they have received these services and not mentioning the name of the recipient in the invoice is a technical lapse for which they should not be denied CENVAT Credit. (c) Denial of ₹ 73,571/- on input services during the availment of SSI benefit. The appellant submits that they had availed the benefit of Exemption Notification No. 08/20013 which provides for exemption based on the value of credit on the condition that they do not avail CENVAT Credit of duty on inputs. In this case the credit was taken as input services and not on inputs. He asserts that there is nothing in the Notification No. 08/20013 which will disentitle them to the benefit of the credit of input services. He prayed that their appeal may be allowed and the impugned order may be set aside to the extent credit by them. 3. Learned departmental representative submits that insofar as the denial of credit of ₹ 28,523/- is concerned, it is wrong to say that they have been denied c

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it on input services is not available. He asserts that the credit was sought to be denied in terms of the transitional provisions under Rule 11 of the CENVAT Credit Rules. He, therefore, asserts that CENVAT Credit is not admissible to the appellant. 4. I have gone through the records of the case and considered the arguments on both sides. In so far as the credit of ₹ 28,523/- in respect of the invoices which were in the name of corporate office of the appellant and the credit of ₹ 29,766/- which was not in the name of the appellant at all are concerned, it is the argument of the learned counsel that these are technical lapses and they should not be denied credit of input services on that ground. Learned departmental representative draws my attention to the relevant portions of the Order-in-Original which are as follows. 11(1)(a) Wrong availment of CENVAT Credit on input services addressed to another unit during the period 2014-15 & 2015-16: I have perused the relevant i

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ssesee under Rule 9(2) of the Cenvat Credit Rules, 2004. (b) In respect of Invoice dt.03.07.2015 issued by M/s Strategic International, 14-2-340, Pan Mandi, Agapura, Hyderabad pertaining to claiming of charges for Business Support services involving input service credit of ₹ 29,766/-, it is observed that the invoice is in the name of M/s Link Point Infrastructure Pvt Ltd., thus, it does not pertain to the services provided to M/s Link Autotech Pvt Ltd, Hyderabad. Hence, credit cannot be allowed on the said invoice under Rule 9(2) of the Cenvat Credit Rules, 2004. 5. I find strong force in the argument of the learned departmental representative that unless there is evidence on record that the input services corresponding to the disputed invoices (raised not in the name of the appellant but in the name of the appellant s corporate office or in the name of some other entity) are used by the appellant, they cannot claim CENVAT credit. It is different from a case where the use of inpu

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13-14 and also during the year 2014-15. As per the said records, it was observed that they came out of the SSI exemption in the month of October, 2014, but availed Cenvat Credit of ₹ 73,571/- during the said period. I find that the assesee has availed SSI exemption from April, 2014 to September, 2014 under Notification No.8/2003-CE dated 01.03.2003 and also availed Cenvat credit during the said period, which is gross violation of the provisions of Notification No.8/2003-CE dated 01.03.2003. As per condition No.2(1) of the Notification, a manufacturer has the option not to avail the exemption contained in this notification and instead pay the normal rate of duty on the goods cleared by him. Such option shall be exercised before effecting his first clearances at the normal rate of duty. Such option shall not be withdrawn during the remaining part of the financial year. Thus, the assesee shall exercise his option before effecting his first clearance, whereas in the instant case, the

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2018 (11) TMI 1377 – CESTAT KOLKATA – TMI – Irregular availment of CENVAT Credit – the said credit was adjusted before issuance of the show cause notice – demand of interest and penalty – Held that:- There is no dispute regarding quantum of the credit availed and subsequently reversed by the assessee. They also paid the interest amounting to ₹ 18,552/- much before issuance of the SCN and the same finds mentioned in the show cause notice and has also been appropriated in the adjudication order.
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Penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 – Held that:- The CENVAT credit taken by the appellant was reversed much before issuance of the SCN and the same has already been appropriated by the adjudicating authority. Though there is allegation in the show cause notice regarding suppression, but it has not been specifically explained in the show cause notice as well as in the adjudication order as to how the intent

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he appellant is engaged in the manufacture of M.S. Pole Black Pipe, G.I. Pipe, S.T. Pole Accessories, G.I. H.M. Pole, G.I. Tower, PVC/SWR Pipe & Fittings, Hand Pump etc. classifiable under Chapter 73,39 and 84 of the First Schedule to the Central Excise Tariff Act, 1985. They are availing the services of different persons and are also paying the service tax on such services. The services being in the nature of security services , professional fees for project report and labour charges for the appellant s other unit situated at Gurap , on residential accommodation of employees and works contract . The period of dispute is 2011-2012. Show cause notice dated 11.01.2013 was issued for disallowance and recovery of cenvat credit of ₹ 1,08,365/- along with interest and imposition of penalty and also for appropriation of the amount already paid by the assessee. The adjudicating authority confirmed the demand of ₹ 1,08,362/- alongwith interest and appropriated the amount paid by

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ad already reversed the credit taken by them and have also paid the interest thereon. I find from the records that the said credit was adjusted before issuance of the show cause notice and this fact also finds mention in the show cause notice itself. Hence, there is no doubt regarding the recovery of irregular credit and the said amount having already been paid by them and has also been appropriated. 4. Ld. DR justified the impugned order. 5. Heard both sides and perused the appeal records. 6. I find from the records that there is no dispute regarding quantum of the credit availed and subsequently reversed by the assessee. They also paid the interest amounting to ₹ 18,552/- much before issuance of the show cause notice and the same finds mentioned in the show cause notice and has also been appropriated in the adjudication order. 7. As regards imposition of penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 is concerned

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2018 (11) TMI 1378 – CESTAT KOLKATA – TMI – Quantum of demand – appellant are claiming that there is some discrepancy in the demand confirmed to the tune of ₹ 2,28,032/-, whereas as per their calculation, the total demand should have been ₹ 1,55,768/ Held that:- The issue is covered by the judgment of the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Belgaum vs. Vasavadatta Cements Ltd. [2018 (3) TMI 993 – SUPREME COURT]. In the aforesaid judgment the Hon’ble Supreme Court has held that w.e.f 01.04.2008, the cenvat credit is available only upto the place of removal.
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The demand of duty alongwith interest is upheld and since the dispute relates to interpretation of statutory provisions and there were diverse decisions of various High Courts and the matter has recently been stayed at rest by the Hon’ble Supreme Court, the imposition of penalty in the present case is not warranted – the penalty imposed under Rule 15(2) of the Cenvat Credit Rules, 2

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Excise Tariff Act, 1985. During the period from April, 2011 to March, 2012, the appellant availed cenvat credit on carriage outward service in respect of transporting of their finished goods for delivery at buyers premises. Since the service tax on the transportation charges were paid by the appellant under the Reverse Charge Mechanism in terms of Section 68(2) of the Finance Act, 1994, they availed cenvat credit to that extent. Show cause notice was issued on 16.08.2012 for disallowance and recovery of credit on input service tax so availed by the appellant along with interest and for imposition of penalty. The adjudicating authority confirmed the demand of duty amounting to ₹ 2,28,032/- alongwith interest and imposed penalty of equal amount under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. On appeal, the ld. Commissioner (Appeals) upheld the adjudication order to the extent of demand of duty and interest. He reduced the im

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377; 1,55,768/- by reversing their cenvat account vide entry Sl.No.1/4 dated 30.05.2013 and deposited the liability of interest of ₹ 40,217/- and 50% of the penalty of ₹ 77,885/- vide GAR-7 Challan No.00166 dt. 30.05.2013. Ld. Consultant cited various decisions where it was held that penalty is not imposable when dispute related to interpretation of statutory provisions. 4. Ld. DR reiterates the order of the lower authorities. 5. Heard both sides and perused the appeal record. 6. I find that the appellant is not disputing the demand of duty and interest and have also paid 50% of the penalty of the admitted demand. However, they are claiming that there is some discrepancy in the demand confirmed to the tune of ₹ 2,28,032/-, whereas as per their calculation, the total demand should have been ₹ 1,55,768/-. I find that the issue is covered by the judgment of the Hon ble Supreme Court in the case of Commissioner of Central Excise, Belgaum vs. Vasavadatta Cements Ltd.

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2018 (11) TMI 1379 – CESTAT KOLKATA – TMI – Demand of interest and penalty – the appellant had reversed the amount of cenvat credit of ₹ 1,02,678/- before issuance of the show cause notice – Held that:- Since sufficient balance was always lying in their cenvat account since the date of credit taken till the reversal of the same, the payment of interest is waived.
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Penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 – Held that:- The Hon’ble High Court at Allahabad in the case of Commr. Of Cus. & C.Ex., Noida vs. Supreme Industries Ltd. [2016 (11) TMI 1289 – ALLAHABAD HIGH COURT] has held that neither any penalty nor interest under Section 11AC and under Section 11AB respectively was payable by assessee when it has deposited disputed duty voluntarily before issuing of notice under Sections 11AC and 11AB.
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, the appellant paid the excise duty amounting to ₹ 1,02,678/- by debiting from RG 23A Part II under intimation to the department on 28.04.2015. Show cause notice dated 28.07.2015 was issued to demand and recover an amount of ₹ 1,02,678/- alongwith interest and to impose penalty. The adjudicating authority passed the following order: Order In view of the findings in foregoing, I hereby pass the following order:- 1. I confirm the demand of an amount ₹ 1,02,678/- (Rupees one lakh two thousand six hundred and seventy eight) only in terms of Rule 14 of Cenvat Credit Rules 2004 read with Section 11A(10) of the Central Excise Act, 1944. 2. As sufficient balance was always lying in their account since the date of credit taken till the date of reversal of the same, I waive the payment of interest. 3. I impose penalty of ₹ 1,02,678/-(Rupees one lakh two thousand six hundred and seventy eight) only on the assessee under Rule 15(2) of the Cenvat Credit Rules, 2004 read wit

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cenvat credit was reversed before issuance of the show cause notice and hence there was no occasion for issuance of show cause notice. Ld. CA made the Bench go through the adjudication order where the ld. Adjudicating Authority has observed that the assessee reversed the amount of cenvat credit vide RG 23A Part II Sl.No.416 dated 28.04.2015 i.e. much before the issuance of the show cause notice. Further, he has also observed that as sufficient balance was always lying in their account since the date of credit taken, till the date of reversal of the same, repayment of interest was waived. Ld. CA further argued that they are not disputing the demand as reversed by them and they are before this Tribunal to contest the payment of interest and imposition of penalty. He relied upon the decision of the Hon ble High Court at Allahabad in the case of Commr. Of Cus. & C.Ex., Noida vs. Supreme Industries Ltd. [2016(341) ELT 607 (All.)]. 4. Ld. DR reiterates the discussions and findings of the

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on of law :- (i) Whether the penalty under Section 11AC is liable to be imposed on assessee and interest under Section 11AB can be levied in view of Explanation-1 of the said sub-section (2B) of Section 11A, where duty has been deposited before issue of show cause notice? 3. It is not disputed that assessee admitted liability of payment of duty and deposited requisite amount on 7-2-2003 while show cause notice was issued on 4-4-2003 proposing to impose penalty under Section 11AC and under Section 11AB of Central Excise Act but this has been set aside by Customs, Excise and Service Tax Appellate Tribunal holding that the petitioner did not intend to defy duty demanded by Tribunal hence penalty is not justified. 4. We find that there is a consensus in various High Courts as also various Benches of High Courts that if disputed duty is paid by an assessee before a show cause notice proposing penalty under Section 11AC and interest under Section 11AB is issued, this would show that there wa

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tion and also neither could place any other authority taking a different view so as to persuade us to take a different view nor could advance any other argument justifying penalty and interest under aforesaid provision even when the assessee admitting disputed liability, has deposited the same even before issuing of a show cause notice under the aforesaid provision. 6. In view of above, aforesaid substantial question of law is answered against Revenue and in favour of assessee. We uphold the view taken by Tribunal that neither any penalty nor interest under Section 11AC and under Section 11AB respectively was payable by assessee when it has deposited disputed duty voluntarily before issuing of notice under Sections 11AC and 11AB. 8. By respectfully following the decision of the Hon ble High Court cited above, the imposition of penalty under 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 is set aside. Regarding payment of interest, the Orde

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GST – States – ERTS(T) 65/2017/Pt.I/261 – Dated:- 20-11-2018 – GOVERNMENT OF MEGHALAYA EXCISE, REGISTRATION, TAXATION & STAMPS DEPARTMENT CIRCULAR No. ERTS(T) 65/2017/Pt.I/261 Dated Shillong the 20th November, 2018. Subject: Guidelines for Deductions and Deposits of TDS by the DDO under Meghalaya Goods and Services Tax (MGST) Act, 2017. Section 51 of the MGST Act 2017 and CGST Act 2017 provided for deduction of tax by the Government Agencies (Deductor) or any other person to be notified in this regard, from the payment made or credited to the supplier (Deductee) of taxable goods or services or both, where the total value of such supply, under a contract, exceeds two lakh and fifty thousand rupees. The amount deducted as tax under this section shall be paid to the Government by deductor within ten days after the end of the month in which such deduction is made alongwith a return in FORM GSTR-7 giving the details of deductions and deductees. Further, the deductor has to issue a cert

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ernment has recently notified that these provisions shall come into force with effect from 1st October, 2018, vide Notification No. 50/2018-State Tax, ERTS(T)65/2017/Pt-1/240, dated 13th September, 2018 and – Central Tax dated 13th September, 2018. 4. In order to give effect to the deduction of tax under GST and for making payment of the same from 01.10.2018, a process flow of deduction and deposit of TDS by the DDOs has been finalised in accordance with CGA guidelines for implementation by State Government Authorities. The process flow is described as under: Bunching of deductions and its deposit by the DDO 5. The DDO will have to deduct the TDS from each bill, for keeping it under the Suspense Head. However, deposit of this bunched amount from the Suspense Head can be made on a weekly, monthly or any other periodic basis. 6. Following process shall be followed by the DDO in this regard: (i) The DDO shall prepare the Bill based on the Expenditure Sanction. The Expenditure Sanction sha

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d can be made on a weekly, monthly or any other periodic basis which is convenient to-the DDO. (vii) The DDO will be required to maintain the Record of the TDS so booked under the Suspense Head so that at the time of preparing the CPIN for making payment on weekly/monthly or any other periodic basis, the total amount could be easily worked out. (viii) At any periodic interval, when DDO needs to deposit the TDS amount, he shall login into the GSTN Portal (using his GSTIN) and generate the CPIN (Challan). In the CPIN he shall have to fill in the desired amount of payment against one/many Major Head(s) (CGST/SGST/UTGST/IGST) and the relevant component (e.g. Tax) under each of the Major Head for the amount (already booked under the Suspense Head). (ix) While generating the CPIN, the DDO will have to select mode of payment as either (a) NEFT/RTGS or (b) OTC. In the OTC mode, the DDO will have to select the Bank where the payment will be deposited through OTC mode. (x) The DDO shall prepare

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with any of branch of the authorized Bank so selected by the DDO. (xiv) Upon successful payment, a CIN will be generated by the RBI/Authorized Bank and will be shared electronically with the GSTN Portal. This will get credited in the electronic Cash Ledger of the concerned DDO in the GSTN Portal. This can be viewed and the details of CIN can be noted by the DDO anytime on GSTN portal using his Login credentials. (xv) The DDO should maintain a Register as per proforma given in Annexure A to keep record of all TDS deductions made by him during the month. This Record will be helpful at the time of filing Monthly Return (FORM GSTR-7) by the DDO. The DDO may also make use of the offline utility available on the GSTN Portal for this purpose. (xvi) The DDO shall file the Return in FORM GSTR-7 by 10th of the following month. (xvii) The DDO shall generate TDS Certificate through the GSTN Portal in FORM GSTR 7A. Sd/- H. Marwein Addl. Chief Secretary to the Government of Meghalaya Excise, Registr

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2018 (11) TMI 1513 – CESTAT MUMBAI – TMI – CENVAT Credit – waste – electricity sold by the appellant that was being generated from bagasse, a waste product of sugar manufacturing – invocation of Rule 6(3A) of Cenvat Credit Rules 2004 – Held that:- Admittedly electricity, though not found in tangible form, is classifiable under Tariff item no. 27160000 of Central Excise Tariff Act, 1985. But it is a non-excisable goods and the process of generation of electricity though a manufacturing process is dutiable if it is generated from mineral oils, bitumen substance, mineral waxes etc. and electricity generated from bagasse is not covered under Chapter 27 like electricity generated through solar power, hydro power, wind power etc.
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For post amendment period it can be said that the duty demand made against such sale of surplus electricity manufactured through waste product is not sustainable in law – appeal allowed – decided in favor of appellant. – Appeal No. E/86537/2018 – A/87964/201

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Rule 6, the departmental authority held a finding against the appellant during the verification of records that such electricity being non-excisable goods cleared for a consideration from the factory had used common input and input services for which appellant had not maintained separate records for generation of such exempted final product i.e. electricity and it was held to have been liable to pay 6% duty on the value of such exempted goods sold by it. The appellant was put to show-cause, matter was adjudicated upon and upon confirmation of the duty demand in the order-in-original and Order-in-Appeal this appeal has been preferred. 3. In the memo of appeal and during course of hearing of appeal, the ld. Counsel for the appellant submitted that department itself had admitted in the case of Gularia Chini Mills 2014 (34) STR 175 (HC-All) before the Hon ble Allahabad High Court that bagasse were neither input nor input service used for generation of electricity and the same had attained

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0314/17/SMB dated 27.10.2017 in the case of Sahakari Shiromani Vasantrao Kale SSK Ltd. & Ors of CESTAT, Mumbai v) Final order no. A/91564-91580/17/SMB dated 13.12.2017 in the case of Shri Dudhganga Vedganga SSK Ltd. & Ors. of CESTAT, Mumbai vi) Ganga Kishan Sahakari Chini Mills Ltd. 2017 (346) ELT 450 (Tri-Del) 4. In response to such submissions, ld. AR for the department, in filing judicial decision reported in 2016 (46) STR 396(Tri-Mum), 2014 (304) ELT 595(Tri-Mum), 2017 (347) ELT 352(Tri-Del), 2017(354) ELT A24 (Chattisgarh), 2017 (352) ELT 86 (Tri-Del), 2017(356) ELT A48 (Chattisgarh), 2018 (360) ELT A121(SC), justified the finding of the Commissioner (Appeals) and argued that out of common inputs, assessee is liable to reverse credit taken in respect of such inputs or input services used for generation of electricity to the extent duty free electricity is sold. Assessee is not eligible to take any cenvat credit of such inputs and input services having nexus with generation

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2018 (12) TMI 86 – CESTAT CHANDIGARH – TMI – Extended period of limitation – no malafide intent – revenue neutral situation as whatever service tax was paid by the appellant was entitled for cenvat credit – paymnet of service tax with interest on being pointed out – penalty for the normal period – Held that:- Whatever amount of service tax is to be paid by the appellant under reverse charge mechanism, the appellant entitled to avail cenvat credit. In that circumstances, relying on the decision of this Larger Bench in the case of Jay Yuhshin Ltd. [2000 (7) TMI 105 – CEGAT, COURT NO. I, NEW DELHI], the extended period of limitation is not invokable.
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Penalty for the demand within normal period – Held that:- The extended period of limitation is not invokable, consequently, for the demand within the period of limitation penalty is not imposable on the appellant – As extended period of limitation is not invokable, therefore, a show cause notice was not required to be issued to the app

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cause notice dated 10.04.2017 was issued to the appellant to demand service tax along with interest and to impose penalty under Section 76, 77 & 78 of the Finance Act, 1994 and to appropriate the amount already paid by the appellant. The matter was adjudicated and demand of service tax for the entire period was confirmed along with interest and penalty under Section 77 & 78 of the Act were imposed and amount already paid was appropriated. Against the said order, the appellant is before me. 3. The ld. Counsel for the appellant submits that in this case whatever service tax was paid by the appellant was entitled for cenvat credit to them, in that circumstances, no mala-fide can be attributable against the appellant. Hence, the extended period of limitation is not invokable, therefore, the demand pertains to the extended period of limitation are to be set aside and for the demands within the period of limitation, it is his submissions that as the appellant has paid service tax alo

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ed on the appellant or not? (A) Whether in the facts and circumstances of the case, the extended period of limitation is not invokable or not? I find that in this case whatever amount of service tax is to be paid by the appellant under reverse charge mechanism, the appellant entitled to avail cenvat credit. In that circumstances, relying on the decision of this Larger Bench in the case of Jay Yuhshin Ltd. reported in 2000 (119) ELT 718 (Tri. LB), I hold that extended period of limitation is not invokable, therefore, the demand pertaining to the extended period of limitation is set aside. Consequently, no penalty is imposable. (B) For the demand within limitation whether penalty under Section 77 & 78 can be imposed on the appellant or not? As discussed hereinabove that extended period of limitation is not invokable, consequently, for the demand within the period of limitation penalty is not imposable on the appellant. Moreover, in this case, the appellant has paid service tax along

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2018 (12) TMI 306 – CESTAT MUMBAI – TMI – Benefit of reduced Penalty u/s 78 of FA – part payment of tax made before issuance of SCN and part payment with interest made after issuance of SCN – Held that:- It is settled position that the assesee is required to be given an option by the adjudicating authority whether he is willing to pay the duty with interest and 25% penalty within 30 days from the date of adjudication. Whenever such option is not given, the facility of paying reduced penalty by fulfilling the condition of deposition of the same with interest within 30 days (along with tax dues if any) should be granted.
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In the instant matter despite the fact that the Appellant has discharged the amount of Service Tax along with interest before passing the order by the Original Authority, the option about the reduced penalty has not been given to the Appellant – In the interest of justice the said option is extended to the Appellant and if the Appellant so desired he can deposit t

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uring the period from April, 2009 to March, 2013 the Appellant had received a total consideration of ₹ 79,55,029/- from service recipient, but he did not pay the Service Tax amounting to ₹ 1,95,692/- since he was not aware. When the department initiated enquiry, the Appellant obtained Service Tax Registration and made part payment of Service Tax amounting to ₹ 1,57,998/- before the issuance of Show cause cum demand notice dated 31.12.2013 and paid the remaining balance of Service Tax amount of ₹ 37,694/- along with interest of ₹ 10,178/- on 22.1.2014 i.e. after the issuance of show cause notice. Therefore there is no dispute that the entire service tax along with interest has been paid by the Appellant before the passing of the Adjudicating order. In the Order-in-Appeal also it has been specifically observed by the ld. Commissioner that there is no dispute that the Appellant has discharged the amount of Service Tax along with interest before passing the or

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ty within 30 days from the date of the adjudicating order or the impugned order, as the case may be. It is settled position that the assesee is required to be given an option by the adjudicating authority whether he is willing to pay the duty with interest and 25% penalty within 30 days from the date of adjudication. Whenever such option is not given, the facility of paying reduced penalty by fulfilling the condition of deposition of the same with interest within 30 days (along with tax dues if any) should be granted. 4. In the instant matter despite the fact that the Appellant has discharged the amount of Service Tax along with interest before passing the order by the Original Authority, the option about the reduced penalty has not been given to the Appellant. Since such option has not been given by any of the authorities below, therefore in the interest of justice, I am inclined to extend the said option to the Appellant and if the Appellant so desired he can deposit the reduced pena

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2018 (12) TMI 731 – CESTAT MUMBAI – TMI – Refund of CENVAT Credit – rejection on the ground of limitation – Section 11B of CEA – Held that:- Admittedly, refund claim was made on 30.07.2015 for the period ending March 2014 and in view of clause (f) of Explanation B to Section 11B of the Central Excise Act 1994, date of payment is to be taken into consideration for computation of one year period to file the refund application. In its order dated 19.02.2016, the original adjudicating authority has given his clear finding under para 5 that provision of Rule 6(3) of the Service Tax Rules, 1994 deals with such a situation and the same is fully applicable to the present refund claim.
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It is an admitted fact that appellant was not put to notice before the rejection of its claim except being asked to submit copies of documents like invoices, GAR-7, cenvat claim certificate, copy of purchase order, work order, work sheet etc. and there is no noting available in the order-in-original as to

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) for the respondent ORDER Eligibility to avail cenvat credit for the amount claimed in the refund application that was rejected on grounds of limitation is the subject matter of this appeal. 2. Facts giving rise to this appeal is that appellant company executed certain maintenance, repairing and construction work for Mazgaon Doc Ltd. (MDL) and Tata Power through work contract agreement and after completion of the work, rate was reduced on renegotiation by both firms against which appellant raised credit notes to their customers for differential rate in the value of services provided and service tax component. The refund claim for excess service tax paid between the period April 2013 to March 2014 amounting to ₹ 28,18,361/- was filed on 30.07.2015 and the adjudicating authority rejected the refund claim filed under Section 11B on the ground that the same was not filed within the stipulated time. Appellant has not challenged the rejection order but put forth its claim with referen

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ending March 2014 and in view of clause (f) of Explanation B to Section 11B of the Central Excise Act 1994, date of payment is to be taken into consideration for computation of one year period to file the refund application. In its order dated 19.02.2016, the original adjudicating authority has given his clear finding under para 5 that provision of Rule 6(3) of the Service Tax Rules, 1994 deals with such a situation and the same is fully applicable to the present refund claim and he has also noted in para 6 to have verified the records and found that service tax was not paid solely in cash and paid in both cash as well as adjusted against cenvat credit available at the claimants end. He also noted the claimant did not receive the value of the services provided under the Service Tax Rules for which refund is claimed. Further, the Commissioner (Appeals) in his order dated 10.01.2018 also noted that after finishing the work the rate was reduced by MDL from ₹ 150/cubic mtr. of dredgi

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of Rule 6(3) after refusal of refund claim made under Section 11B of the Central Excise Act, it is now to be found out if Commissioner (Appeals) is empowered to grant such a relief which was not sought by the appellant before the adjudicating authority. 6. It is an admitted fact that appellant was not put to notice before the rejection of its claim except being asked to submit copies of documents like invoices, GAR-7, cenvat claim certificate, copy of purchase order, work order, work sheet etc. and there is no noting available in the order-in-original as to if alternative plea for availment of cenvat credit was made before the adjudicating authority or not. But as found from the order of the Commissioner (Appeals) that it had made request before him for adjustment of excess payment but such relief was refused as it was not the subject matter of appeal. Going by Section 35A(3) of the Central Excise Act, which is equally applicable to service tax matters, the Commissioner (Appeals) shal

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ive adjudication. This fact is further fortified by the decision of the Hon'ble Supreme Court reported in M.P. Steel Corporation vs. CCE 2015 (319) ELT 373 (SC) wherein spirit of Indian Limitation Act was pressed into service for condoning delay in filing appeals. Therefore, it would not be irrational to invoke order 7 rule 7 of the Civil Procedure Code, which empowers a court to grant such other relief which may always be given, as a court may think just, to the same extent as if it has been asked for. In borrowing the spirit from the provision of the CPC, the following order is passed:- 8. The appeal is allowed in part entitling the appellant to avail cenvat credit for the refused refund claim of ₹ 28,18,361/- and the period of availment of such credit shall commence after the statutory appeal period of appeal is over. Order of the Commissioner (Appeals) is accordingly modified. (Pronounced in Court on 20.11.2018) – Case laws – Decisions – Judgements – Orders – Tax Manage

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2018 (12) TMI 1535 – CESTAT CHENNAI – TMI – CENVAT Credit – input services – consulting engineering service – input services received from foreign company – reverse charge mechanism – denial of credit on the ground that it is not input service – Held that:- The appellant has explained that these services were availed in order to start the township project. These were consultancy services availed for preparatory work for developing the township for which they have taken registration for discharging the service tax on these input services under the reverse charge mechanism – During the disputed period, there was no bar for taking the credit on demand of service tax under reverse charge mechanism – The decision laid down in the case of Kansara Modler Ltd. [2014 (1) TMI 1095 – CESTAT NEW DELHI] have categorically held that the assessees are eligible to take credit of the service tax paid under reverse charge mechanism – Credit allowed.
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, Member (Technical) For the Appellant : Shri K.S. Ravishankar, Advocate For the Respondent : Shri A. Cletus, Addl. Commissioner (AR) ORDER PER BENCH The appellant is a joint venture company formed in the year 2007 between Rakeen Pvt. Ltd. and Trimex Group Company to develop a township at Coimbatore. As a part of preparatory work for the development of the proposed township, the appellant engaged some of the foreign companies and got themselves registered under the category of Consulting Engineer Service for discharging service tax under reverse charge mechanism. The department was of the view that the appellants are not eligible to take credit of such service tax paid by them for the input services received from foreign company for the reason that at the time of availing such services, the appellant had not registered for providing any output service. Show cause notice dated 30.9.2010 was issued for the year April 2009 to March 2010 proposing to recover the irregularly availed credit

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penalties. After due process of law, the original authority confirmed the demand, interest and also imposed penalties, against which the appellant has filed Appeal No. ST/348/2011. 3. On behalf of the appellant, ld. counsel Shri K.S. Ravikumar submitted oral as well as detailed written submissions, which can be broadly summarized as under:- 3.1 The appellant is registered under the category of consulting engineer service on 3.1.2008 and was discharging service tax on reverse charge basis for these services availed by them from the foreign company. Later, on 23.10.2009, it got registration certificate amended by including works contract service also. During the disputed period, the appellant in the process of setting up the township project had received various input services like management consultancy, manpower recruitment, renting of immovable property, survey, design, engineering, telecom service etc. These credits were kept in reserve for utilization for future liabilities when the

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2 With regard to the allegation that the service tax is paid under reverse charge mechanism for input services in the nature of consulting engineer service and is not eligible for credit, he relied upon the decision in the case of CST, Bangalore Vs. Arvind Fashions Ltd. – 2012 (25) STR 583 (Kar.) as well as the decision in Kansara Modler Ltd. Vs. Commissioner of Central Excise, Jaipur – 2013 (32) STR 209 (Tri. Del.). 3.3 It is also argued by the ld. counsel that even if the premises is not registered or even before obtaining registration for the output services, the appellant can avail credit. To support this argument, he relied upon the decision in the case of Spandana Spoorthy Financial Ltd. Vs. Commissioner of Central Excise, Hyderabad – 2016 (45) STR 265 (Tri. Hyd.) as well as Commissioner of Service Tax, Bangalore Vs. Tavant Technologies India Pvt. Ltd. – 2016 (43) STR 57 (Kar.). 4. The ld. AR Shri A. Cletus supported the findings in the impugned order. He submitted that the input

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t registered for output services of works contract services and therefore not eligible for credit to the tune of ₹ 1,58,89,282/-, he submitted that the input service were availed for construction of the township and therefore they are not eligible for credit. 5. Heard both sides. 6. The short issue that arises for consideration is whether the demand of ₹ 79,26,871/- alleging that the credit availed on consulting engineering service under reverse charge mechanism is eligible or not. The main ground for disallowing the credit is that the said services does not qualify as input services. The appellant has explained that these services were availed in order to start the township project. These were consultancy services availed for preparatory work for developing the township for which they have taken registration for discharging the service tax on these input services under the reverse charge mechanism. During the disputed period, there was no bar for taking the credit on deman

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e service include a person liable for paying service tax; Rule 2(1)(d)(iv) of Service Tax Rules. (iv) in relation to any taxable service provided or to be provided by any person from a country other than India and received by any person in India under section 66A of the Act, the recipient of such service; 6. If we read Rule 2(q) of Cenvat Credit Rules with Rule 2(1)(d)(iv), we find that appellant is a person liable to Service Tax. Once appellant is person liable to service tax, he becomes provider of taxable service under Rule 2(r) and consequently becomes output service provider under Rule 2(p) of the Cenvat Credit Rules. Revenue is also relying on Rule 5 of Taxation of Services (Provided from Outside India and Received in India) Rules. We find that Rule 5 refers to availing of Cenvat credit and not to utilization of credit. We are therefore of the view that the finding of the Commissioner not treating the appellant as output service provider, is not correct and accordingly we set asi

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ervices which are needed to start providing output service for manufacturing finished products would be eligible for credit. The said issue has been sufficiently analyzed in various cases. The Hon ble High Court of Karnataka in the case of Tavant Technologies Ltd. (supra) had followed the decision in mPortal Wireless Solutions Pvt. Ltd. – 2012 (27) STR 134 (Kar.) and held that for availing as well as refund of unutilized credit, registration of service tax is not required. There is no rule or statutory provision which makes registration a condition precedent for availing credit. Similar view was taken by the Tribunal in the case of Spandana Spoorthy Financial Ltd. (supra). The relevant portion of the decision is as under:- 8. In the event, we hold that the appellant was entitled to avail Cenvat credit on documents evidencing receipt of eligible inputs, capital goods or input services, even before the date they obtained service tax registration. They can very well adjust part or whole o

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Customs – CORRIGENDUM TO TRADE NOTICE NO. 01/2018 – Dated:- 20-11-2018 – OFFICE OF THE COMMISSIONER OF CUSTOMS GST BHAVAN, 41/A, SASSON ROAD, PUNE-411001 F. No. VIII/Cus/Tech/Gst-Reorg/ 48-16/2017 Pune Dated: – 20.11.2018 CORRIGENDUM TO TRADE NOTICE NO. 01/2018 Sub: Transition of Customs functions hitherto performed by the Central Excise/ GST officers, including the export procedure and sealing of Containerized export cargo, to the Customs formations, under the Commissioner of Customs, Pune. Ki

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2019 (2) TMI 78 – CESTAT CHENNAI – TMI – Refund of accumulated / unutilized CENVAT credit – closure of manufacturing activity – applicability of Rule 5 of CENVAT Credit Rules, 2004 – whether relevant Rule 5 of CENVAT Credit Rules deals with situation of export and not of closure of factory? – Held that:- The Hon’ble High Court of Karnataka in the case of Slovak Trading Co. Pvt. Ltd. [2007 (1) TMI 556 – SUPREME COURT] had occasion to analyze the very same issue and held that even though there is no provision for grant of refund on account of closure of factory, since the appellant has gone out of the CENVAT credit scheme, they are eligible for refund – denial of refund is not justified – appeal allowed – decided in favor of appellant. – App

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2004. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Ms. S. Sridevi submitted that the lower authorities have rejected the refund stating that there is no provision in CENVAT Credit Rules to grant refund of amount of accumulated / unutilized credit on account of closure of factory. The relevant Rule 5 of CENVAT Credit Rules deals with situation of export and not of closure of factory. It is argued by her since the appellants have closed down the factory and surrendered their central excise registration, they are eligible for the accumulated credit. She relied upon the decision of the Hon ble High Court of Karnataka in the case of Union of India Vs. Slovak Trading Co. Pvt. Ltd

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ition in terms of Rule 5 that CENVAT credit shall not be refunded when the factory is closed down. Similar view was taken by the Tribunal in the case of Commissioner of Central Excise Vs. Kores India – 2009 (245) ELT 411 (Tri. Bang.). The decision in Slovak TradingCo. Pvt. Ltd. (supra) was followed by the Hon ble High Court of Rajasthan in the case of Welcuredruges and Pharmaceuticals Ltd. Vs. Commissioner of Central Excise – 2018 (8) TMI 1169. 6. Following the above decisions, we are of the opinion that the denial of refund is unjustified. The impugned order disallowing the refund is set aside and the appeal is allowed with consequential relief, if any. (Operative portion of the order was pronounced in open court) – Case laws – Decisions

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2019 (2) TMI 86 – CESTAT CHENNAI – TMI – Penalty – Non-discharge of Service Tax – appellant has paid major part of the service tax demand much before issuance of the SCN – Held that:- The reason for omission to pay the service tax is explained by them – appellant were filing returns as well as were paying service tax under the event management service. Thereafter Business Exhibition Service came to be introduced, with effect from 10.9.2004. They did not discharge the service tax for the reason of confusion as to the classification of service – On being instructed by the department in January 2005, they had remitted the service tax. It is also brought out that the appellants have not collected service tax separately and therefore the amount received should be considered as cum-tax value – The request of the appellant is reasonable and tenable.
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It is a fit case for invoking Section 80 of the Finance Act to set aside the penalties imposed – the adjudicating authority shall requant

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ellants are now before the Tribunal. 2. None appeared for the appellant even though repeated notices were issued. The matter was taken up for disposal after perusal of records as well as hearing the ld. AR. 3. It is stated by the appellant that they have paid the service tax on the event management service upto the month of October 2004. Subsequently, the service of business exhibition was brought under service tax net with effect from 10.9.2004. They were under the confusion whether the exhibition conducted by them would fall under event management or business exhibition service. From October 2004 to December 2004, they had conducted two exhibitions at Madurai and Coimbatore. Service tax was not collected separately for the business exhibition service since the confusion existed and not paid to the Government. When the Preventive Unit visited the premises, as per the instructions, the appellants have paid the service tax. However, the quantification of service tax as per the show caus

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charge the service tax for the reason of confusion as to the classification of service. On being instructed by the department in January 2005, they had remitted the service tax. It is also brought out that the appellants have not collected service tax separately and therefore the amount received should be considered as cum-tax value. The request of the appellant is reasonable and tenable. We therefore hold that the adjudicating authority shall requantify the service tax after giving the cum-tax benefit as well as the CENVAT credit benefit to the appellant. We are of the considered opinion that it is a fit case for invoking Section 80 of the Finance Act to set aside the penalties imposed as they are unwarranted, which we hereby do. The impugned order is modified to the extent of setting aside the penalties imposed and also directing the adjudicating authority to requantify the demand after giving cum-ax benefit as well as CENVAT credit. The appeal is allowed in the above terms with cons

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2019 (2) TMI 87 – CESTAT CHENNAI – TMI – Works Contract – Construction of Residential Complex Service – period from February 2006 to February 2008 – whether construction of quarters for police personnel would fall within the taxable service of construction of complex service under section 65(30a) r/w section 65(105)(zzzh) of Finance Act, 1994? – Held that:- Undisputedly, the appellants have entered into an agreement with TNPHCL for providing services in relation to construction of residential complex. However, these are meant for use of police personnel.
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The said issue was considered by the Tribunal in the case of Nithesh Estates [2015 (11) TMI 219 – CESTAT BANGALORE], where it was held that that for the period after 1.6.2007, the levy cannot sustain.
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The levy of service tax cannot sustain – appeal allowed – decided in favor of appellant. – Appeal No. ST/424/2012 – Final Order No. 43023/2018 – Dated:- 20-11-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu M

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ce tax prior to 1.6.2007 is settled by the decision of the Hon ble Supreme Court in the case of Commissioner of Central Excise Vs. Larsen & Toubro Ltd. – 2015 (39) STR 913 (SC). The Hon ble Supreme Court in the case of Commissioner of Central Excise Vs. Sobha Developers Ltd. – 2017-TIOL-29 has affirmed the decision in the case of Larsen & Toubro Ltd. which was followed by the Tribunal in the case of URC Construction P. Ltd. Vs. Commissioner of Central Excise – 2017 (50) STR 147. The ld. counsel argued that for the period after 1.6.2007, the levy cannot sustain in terms of the decision in the case of Nitesh Estates Vs. Commissioner of Central Excise – 2015 (40) STR 815. That this Tribunal in the case of Commissioner of Central Excise Vs. Lanco Tanjore Power Co. Ltd. vide Final Order No. 40792 & 40793/2018 dated 16.3.2018 held that when construction activity is undertaken for personal use, the same is excluded from the definition of residential complex contained in Section 65

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rder. 5. Heard both sides. 6. The issue is whether construction of quarters for police personnel would fall within the taxable service of construction of complex service under section 65(30a) r/w section 65(105)(zzzh) of Finance Act, 1994. The period involved in the present appeal is prior and after 1.6.2007. Thus, by applying the decision in the case of Larsen & Toubro – 2015 (39) STR 913 (SC), we hold that the demand for the period prior to 1.6.2007 is not sustainable and requires to be set aside, which we hereby do. 6.1 For the period after 1.6.2007, the ld. counsel has argued that the decision in the case of Nithesh Estates (supra) would apply. The definition of residential complex is reproduced as under:- As per section 65[(30a) of the Finance Act, 1994, construction of complex‟ means :- (a) construction of a new residential complex or a part thereof; or (b) completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor

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al use as residence by such person. Explanation. For the removal of doubts, it is hereby declared that for the purposes of this clause, (a) personal use includes permitting the complex for use as residence by another person on rent or without consideration; (b) residential unit means a single house or a single apartment intended for use as a place of residence; 6.2 Undisputedly, the appellants have entered into an agreement with TNPHCL for providing services in relation to construction of residential complex. However, these are meant for use of police personnel. The said issue was considered by the Tribunal in the case of Nithesh Estates (supra), wherein the Tribunal has observed as under:- 7.1 In this case there is no dispute and it clearly emerges that the residential complex was built for M/s. ITC Ltd. and appellant was the main contractor. Appellant had appointed sub-contractors all of whom have paid the tax as required under the law. The question that arises is whether the appella

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s directly engaged the NBCC for constructing residential complex for Central Government officers. Further, the residential complexes so built are intended for the personal use of the GOI which includes promoting the use of complex as residence by other persons (i.e. the Government officers or the Ministers). As such the GOI is the service receiver and NBCC is providing services directly to the GOI for its personal use. Therefore, as for the instant arrangement between Ministry of Urban Development and NBCC is concerned, the Service Tax is not leviable. It may, however, be pointed out that if the NBCC, being a party to a direct contract with GOI, engages a sub-contractor for carrying out the whole or part of the construction, then the sub- contractor would be liable to pay Service Tax as in that case, NBCC would be the service receiver and the construction would not be for their personal use. It can be seen that if the land owner enters into a contract with a promoter/builder/developer

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ructed for use as quarters of the employees of M/s. Lanco. It is evident from the facts of the case that M/s.Lanco has engaged the assessee with the specific purpose of construction of such residential units which are meant for personal use of the employees of M/s. Lanco. We extract below the statutory definition of section 65(91a) of the Finance Act, 1994:- Residential complex means any complex comprising of (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as resi

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2019 (2) TMI 88 – CESTAT CHENNAI – TMI – Rectification of Mistake application – the said plea of the appellant being that the hospital is a charitable institution, the said observation made by the Tribunal is apparently an error – Held that:- There are no doubt with regard to the conclusion made by the Tribunal. If hospital charges fee for treatment, the same would make the building being used for commercial purpose. In cases where mere registration fees are collected and treatment is completely free, they would come within the ambit of non-commercial entity. However, this depends upon facts of each case and the Tribunal after examining the facts of the case has made such observation and directed for re-examination of these facts on this i

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on of hospital building which is run by a charitable institution would not come within the levy of service tax being a non-commercial entity. In para 6.1 of the impugned order, though the Tribunal discussed this issue, it observed that the hospital charging a fee for treatment by different amount makes it a commercial establishment to make the building a commercial building. That the said plea of the appellant being that the hospital is a charitable institution, the said observation made by the Tribunal is apparently an error. He submitted that based on this observation, the Tribunal limited the demand to the normal period which is erroneous. It is also argued that though the service tax in respect of cleaning services rendered by the appel

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ontended by the ld. counsel that the Tribunal instead of observing and following the decision that mere charging by a hospital would not make it building for commercial purpose has erroneously noted that if fee is charged for treatment, the same would make the building constructed to be for commercial purpose. After perusing the said observation of the Tribunal in para 6.1, we do not find any doubt with regard to the conclusion made by the Tribunal. If hospital charges fee for treatment, the same would make the building being used for commercial purpose. In cases where mere registration fees are collected and treatment is completely free, they would come within the ambit of non-commercial entity. However, this depends upon facts of each cas

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