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2018 (12) TMI 65 – ALLAHABAD HIGH COURT – TMI – Release of seized goods – submission is that there was no violation of any provision of the Act to justify the seizure of the goods – Held that:- Sri Tripathi may seek instructions and file counter affidavit within three weeks. One week thereafter for filing rejoinder affidavit.
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List for admission/final disposal on the expiry of the aforesaid period. – Writ Tax No. – 1461 of 2018 Dated:- 15-11-2018 – Pankaj Mithal And Ashok Kumar JJ. For the Petitioner : Shubham Agrawal For the Respondent : C.S.C. ORDER Heard Ms. Sanyukta Singh and Sri Subham Agrawal, learned counsel for the petitioner and Sri C.B. Tripathi, learned counsel appeared for the respondents. The goods of the petitioner in t

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2018 (12) TMI 1408 – CALCUTTA HIGH COURT – 2018 (19) G. S. T. L. 411 (Cal.) – Permission for manual filing of appeal – contention of the petitioner is that, it is not in a position to upload the appeal electronically – Held that:- the appellate authority will consider such appeal papers as the appeal of the petitioner and will dispose of the same in accordance with law. -This order will not be construed to mean that, the petitioner is not required to comply with the other provisions regarding appeal including pre‐deposit.
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In the event, pre‐deposit as required is made by the petitioner for preferring the appeal within seven days from date and in the event, the petitioner complies with other formalities of the appeal, the a

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manual filing of the appeal. Learned Advocate for the petitioner makes over the appeal papers in Court to the learned Advocate for the State. In such circumstances, the appellate authority will consider such appeal papers as the appeal of the petitioner and will dispose of the same in accordance with law. Learned Advocate for the State is requested to make over the appeal papers to the appellate authority as expeditiously as possible and preferably within seven days from date. This order will not be construed to mean that, the petitioner is not required to comply with the other provisions regarding appeal including pre‐deposit. In the event, pre‐deposit as required is made by the petitioner for preferring the appeal within seve

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2018 (12) TMI 1426 – CESTAT MUMBAI – TMI – CENVAT Credit – input services – repair and maintenance of staff quarters – expenses incurred towards staff welfare services – travelling expenses – membership fees – denial of credit on the ground of nexus – Held that:- Under the unamended definition of input service (effective upto 31.03.2011) the phrase “activities relating to business” was specifically finding place for consideration of the service as input service. The fact is not under dispute that for accomplishing the purpose of the appellant business, the appellant had used and utilized the disputed services. Since the value of taxable service along with service tax paid there-on was considered as business related expenses in the Books of Accounts, the disputed services should be considered as input service in terms of Rule 2(l) of the Rules for the period upto 31.03.2011.
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Under the amended definition of Rule 2(l) (with effect from 01.04.2011), the assessee is permitted to avai

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rder dated 06.12.2017 passed by the Commissioner of CGST, Mumbai East. 2. Brief facts of the case are that the appellant is engaged in providing Information Technology Software Service and Management, Maintenance or Repair Service , defined as taxable services under the Finance Act, 1994. For providing such taxable services, the appellant got it registered with the Service Tax department. The appellant avails CENVAT Credit of service tax paid on the input services used for providing those output services. During the period October, 2007 to March 2013, the appellant had availed CENVAT Credit on various taxable services, including the service tax paid on repair and maintenance of staff quarters, expenses incurred towards staff welfare services, travelling expenses, membership fees etc. Availment of CENVAT Credit on those services were disputed by the department on the ground that such services have no nexus with the output service provided by the appellant and thus, such services cannot

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ted services were used / utilized for providing the output service and such services having been covered under the definition of input service as per the Rule 2(l) of Cenvat Credit Rules, 2004, the benefit of credit shall not to be denied to the appellant. To support his stand that the disputed services are conforming to the definition of input service, the learned Advocate has relied upon the following decisions rendered by the judicial forums:- (a) Axis Bank Ltd. v. CCE- 2017-TIOL 3867-Cestat (b) Xilinx India Technology Services (P) Ltd. – 2016 (44) STR 129 (c) Commissioner of Central Excise v. Greaves Cotton Ltd. 2010 (20) STR 703 (d) Commissioner of Central Excise v. Lupin Ltd. – 2012 (285) ELT 221 (Tri. Mum) 4. On the other hand, learned D.R. appearing for Revenue submits that the disputed services are not conforming to the definition of input service and thus, the appellant should not be eligible for the Cenvat benefit. 5. Heard both sides and perused the records. 6. Under the un

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) of the Rules. Therefore, denial of Cenvat benefit on the disputed services on the ground that those services are not confirming to the definition of input service is not proper and justified. However, since the original authority had specifically recorded the findings that the appellant had not produced any documentary evidences to show nexus as well as the eligibility of Cenvat benefit on the disputed services, we are of the view that the matter should be remanded to the original authority for verification of the documentary evidences to be produced by the appellant to demonstrate that the disputed services are conforming to the definition of input services and were in fact, used / utilized for providing the output service. 7. Under the facts and in the circumstances of the case, the matter is remanded to the original authority for passing of fresh adjudication order in line of our above observations. Needless to say, that opportunity of personal hearing should be granted to the app

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Goods and Services Tax – GST – Dated:- 14-11-2018 – GST Council may have to take a view on the funding of NDRF – Shri N.K.Singh XVFC concludes International Workshop on Financing of Disaster Risk Management in India, urged to come up with a structure to make 'Disaster Mitigation' an integral part of development expenditure XVFC concluded the International Workshop in India on Financing of Disaster Risk Management yesterday in New Delhi. The two-day conference discussed various issues related to Disaster Risk Management (DRM) ranging from urbanization, climate change, coastal erosion, localized catastrophes and the price associated with it, among many other issues. The need for a Disaster Mitigation Fund was also discussed. Chairman

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only the issue of earmarking of funds for DRM but also to ensure that funds earmarked are used for DRM like in case of funds devolved to states on account of Forest cover. Deciding on conditionality for use of such funds is a tricky thing. Shri Subhash Chandra Garg, Secretary DEA in his closing remarks urged the Commission to come up with a structure to make Disaster Mitigation an integral part of development expenditure. We need to rethink about ways to finance flexible safety net for the people during stress, he said. Dr. P. K. Mishra said that issue in funding arises due to the different nature of mitigation activities (non-contingent) and relief activities (contingent needs-depends on scale of disaster). Conference also discussed vario

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include relief, recovery, resilience, mitigation and therefore need careful consideration in decision making which in turn depends on availability of suitable data, analytical tools and replicable models. Experts agreed that any resilience model may be started in Pilot mode and then scaled up. Funds for DRM will require resources and investment not only from govt. but also from private sector, NGOs and civil society. Participants including Ms. Fracine Pickup, Country Director, UNDP and Dr. Junaid Kamal, Country Director, World Bank India thanked the Chairman and members of the Commission for organizing the International Conference on DRM in India and bringing together ideas, models and expertise from across the globe. Ms. Fracine Pickup sai

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Goods and Services Tax – Valuation of goods supplied – The amortised cost of tools which are re-supplied back to the applicant free of cost shall be added to the value of the components while calculat

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Goods and Services Tax – Started By: – Chidambaram Subramaniam – Dated:- 14-11-2018 Last Replied Date:- 2-12-2018 – Dear Sir,Our Company provide temporary accomodation to many of the outstation candidates at the time of joining the company through a vendor and the vendor charges IGST in all their invoices.My Query is whether the company can avail credit of the IGST charged by the vendor for such nature of expenses.Please guide us.thanks and regardsChidambaram – Reply By KASTURI SETHI – The Reply = Dear Querist, Will such expenses form part of Profit & Loss Account in the Company's Annual Report/Balance Sheet ? – Reply By Chidambaram Subramaniam – The Reply = Dear Sir,Yes, It forms part of our P&L account and balance sheet.Regar

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Goods and Services Tax – GST – By: – Sandeep Rawat – Dated:- 14-11-2018 Last Replied Date:- 18-11-2018 – Government has announced for annual return to be filed under Goods & Service tax Act. However a Lot of difficulties are being faced by taxpayers and professionals while filing GST returns due to technical glitches and ambiguous law. After filing monthly returns, a regular person has to even file an Annual Return which is quite detailed. it s critical to start focusing on various compliances such as input and output reconciliations, preparation and filing of annual return and GST audit certification. Annual Return and GST Audit GSTR-9 ANNUAL RETURN GSTR 9 form is an annual return to be filed once in a year by the registered taxpayers under GST including those registered under composition levy scheme. It consists of details regarding the supplies made and received during the year under different tax heads i.e. CGST, SGST and IGST. It consolidates the information furnished in the

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p by consolidating summary from all GST returns filed in previous FY. Part-III Details of ITC declared in returns filed during the FY. This will be summarised values picked up from all the GST returns filed in previous FY. Part-IV Details of tax paid as declared in returns filed during the FY. Part-V Particulars of the transactions for the previous FY declared in returns of April to September of current FY or up to the date of filing of annual returns of previous FY whichever is earlier. Usually, the summary of amendment or omission entries belonging to previous FY but reported in Current FY would be segregated and declared here. Part-VI Other Information comprising details of: -GST Demands and refunds, HSN wise summary information of the quantity of goods supplied and received with its corresponding Tax details against each HSN code, Late fees payable and paid details and Segregation of inward supplies received from different categories of taxpayers like Composition dealers, deemed su

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accounts along with GSTR 9C. This form is to be prepared and audited by a chartered accountant or cost accountant. This statement is to be filled for every GSTIN separately and therefore there-can be several reports of GSTR-9C for same PAN. This form is divided into mainly 2 parts- PART-A: RECONCILIATION STATEMENT The figures in the audited financial statements are at PAN level. Hence, the turnover, Tax paid and ITC earned on a particular GSTIN( or State/UT) must be pulled out from the audited accounts of the organisation as a whole. The Reconciliation Statement is divided into five parts as follows: Part-I: Basic details: Consists of FY, GSTIN, Legal Name and Trade Name. The taxpayer must also mention if he is subject to audit under any other law Part-II: Reconciliation of turnover declared in the Audited Annual Financial Statement with turnover declared in Annual Return (GSTR 9)- This involves reporting the gross and taxable turnover declared in the Annual return with the Audited Fi

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ill be after considering the reversals of ITC claimed, if any. Part-V: Auditor s recommendation on additional Liability due to non-reconciliation- Here, the Auditor must report any tax liability identified through the reconciliation exercise and GST audit, pending for payment by the taxpayer. This can be non-reconciliation of turnover or ITC on account of : Amount paid for supplies not included in the Annual Returns(GSTR 9) Erroneous Refund to be paid back Other Outstanding demands to be settled Lastly, the instructions to the format of GSTR-9C specify that an option will be given to taxpayers to settle taxes as recommended by the auditor at the end of the reconciliation statement. PART-B: CERTIFICATION. The GSTR-9C can be certified by the same CA who conducted the GST audit or it can be also certified by any other CA who did not conduct the GST Audit for that particular GSTIN. The difference between both is that in case the CA certifying the GSTR-9C did not conduct the GST audit, he m

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the GST Law for not getting the accounts audited by a Chartered Accountant or a Cost Accountant. Therefore, in terms of Section 125 of CGST Act, 2017, he shall be subjected to penalty up to ₹ 25,000/-. MAJOR PROBLEM/ISSUE WHILE CARRRING OUT GST AUDIT Major problem faced while carrying out GST audit for the financial year 2017-18 HSN of inward supplies is required in the annual return GSTR 9 which was not needed while filing monthly GSTR 3B. Multiple audits under indirect tax laws: VAT audits and Service Tax audit may be required to be carried out for the first quarter and GST audit for the next three quarters; The difference in the annual return as per the books of accounts and GST data filed during the financial year. Segregated details of ITC availed are required as Inputs/Input services/ Capital Goods Reporting of the amended transactions relevant to the FY 2017-18 filed in the returns of April to September of current FY or up to the filing of annual return of FY 2017-18 i.e.

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2018 (11) TMI 710 – ALLAHABAD HIGH COURT – TMI – Seizure of goods – goods have been seized on account of the fact that a proper E-way bill was not accompanying the goods – In view of the circular dated 16th August 2017, no proceeding for seizure ought to have been undertaken – Revenue submits that the above circular would not be applicable in view of the amendment in Rule 138 of the Rules with effect from 1.4.2018.
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The matter requires consideration. Sri Tripathi may file counter affidavit within three weeks. – Writ Tax No. – 1449 of 2018 Dated:- 14-11-2018 – Pankaj Mithal And Ashok Kumar JJ. For the Petitioner : Shubham Agrawal For the Respondent : C.S.C. ORDER Heard Sri Shubham Agrawal, learned counsel for the petitioner and Sri C.

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2018 (11) TMI 711 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 409 (All.) – Release of seized goods – deposit of amount of tax and penalty for release of goods – Held that:- It is not a fit case for exercise of our discretionary jurisdiction in the matter as the petitioner had been transporting the seized goods in contravention of the provisions of the Act – It is open for the petitioner to either get the goods release as directed by the impugned order or to challenge it in appeal or alternatively wait for the final determination of the assessment / penalty – petition dismissed. – Writ Tax No. – 1446 of 2018 Dated:- 14-11-2018 – Pankaj Mithal And Ashok Kumar JJ. For the Petitioner : Rahul Agarwal For the Respondent : C.S.C. ORDER Heard

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2018 (11) TMI 739 – CESTAT CHENNAI – TMI – Penalty – it was alleged that appellants have availed CENVAT credit based on invoices issued by their head office as input service distributor without getting registered as ISD – Held that:- It is seen that they have reversed the credit much before issuance of the show cause notice. It is also submitted that the appellants had sufficient balance in their CENVAT account – penalty cannot sustain relying on the case of THE COMMISSIONER OF CENTRAL EXCISE, MADURAI VERSUS M/S. STRATEGIC ENGINEERING (P) LTD. [2014 (11) TMI 89 – MADRAS HIGH COURT] – appeal allowed in part. – Appeal No. E/42092/2018 – Final Order No. 42882/2018 – Dated:- 14-11-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) Ms. S. Sridevi

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posing to disallow the credit and also for imposing penalty. After due process of law, the original authority confirmed the demand and imposed equal penalty, which was upheld by the Commissioner (Appeals). Hence this appeal. 2. On behalf of the appellant, ld. counsel Ms. S. Sridevi submitted that the appellants are not contesting the appeal on merits and is confining their argument to the equal penalty imposed. She submitted that the appellant had reversed the entire credit even before issuance of the show cause notice. The only violation alleged by the department is that the head office had distributed the credit without taking ISD registration. Since there is only one unit apart from the head office, the credit was distributed and therefo

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2018 (11) TMI 801 – PUNJAB AND HARYANA HIGH COURT – TMI – Extension of period for filing GST TRAN-1 form – unable to upload the form within prescribed time – input tax credit – Held that:- Notification No. 48, dated September 10, 2018 has been issued for amending the Central Goods and Services Tax Rules, 2017 giving power to the Commissioner for extension of time for submission of declaration form GST TRAN-1 upto March 31, 2019. The power can be exercised by the Commissioner on the recommendation of the Council – petition disposed off. – CWP No. 28745 of 2018 (O&M) Dated:- 14-11-2018 – Mr Rajesh Bindal And Mr Manoj Bajaj, JJ. For The Petitioner : Mr. Jagmohan Bansal and Mr. Chetan Jain, Advocates For The Respondent : Mr. Tajender K. Joshi

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2018 (11) TMI 956 – ALLAHABAD HIGH COURT – TMI – Release of seized goods alongwith vehicle – Section 129(3) of the U.P. GST – Held thar:- The seized goods and the vehicle shall be released on the petitioner depositing the amount in accordance with the provision of Section 129(1)(a) of the Act and on giving an indemnity bond of the same amount. – Writ Tax No. – 1445 of 2018 Dated:- 14-11-2018 – Pankaj Mithal And Ashok Kumar JJ. For the Petitioner : Rahul Agarwal For the Respondent : C.S.C. ORDER Heard Sri Rahul Agarwal, learned counsel for the petitioner and Sri C.B. Tripathi, learned counsel for the respondents. The petitioner has come up in this petition against the order passed under Section 129(3) of the U.P. GST Act indicating the pro

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GST – States – F.1-11(91)-TAX/GST/2018(Part-I) – Dated:- 14-11-2018 – GOVERNMENT OF TRIPURA FINANCE DEPARTMENT (TAXES & EXCISE) NO.F.1-11(91)-TAX/GST/2018(Part-I) Dated, Agartala, the 14th November, 2018 NOTIFICATION In exercise of the powers conferred by sub-section (3) of section 1, read with section 51 of the Tripura State Goods and Services Tax Act, 2017 (Tripura Act No. 9 of 2017), hereafter in this notification referred to as the said Act, the State Government, on the recommendations of the Council, hereby makes the following further amendments in the notification of the Government of Tripura in the Finance Department, No.F.1-11(91)-TAX/GST/2018(Part), dated the 14th September, 2018, published in the Tripura Gazette, Extraordinar

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2018 (11) TMI 1019 – CESTAT CHENNAI – TMI – CENVAT Credit – time limitation – it was alleged that appellant had wrongly availed credit to the tune of ₹ 21,35,493/- beyond the time limit of six months / one year in contravention of Rule 4(1) of CENVAT Credit Rules, 2004 – Held that:- The assessee has to avail credit on the invoices within a period of six months /one year from the date of issue of the invoices / documents – In the present case, it is seen that all the invoices are issued even prior to 11.7.2014. The department has issued the show cause notice on the wrong interpretation of the provisions that credit has been availed by the appellant after 11.7.2014. The amended provision has no retrospective effect.
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Demand cannot sustain – appeal allowed – decided in favor of appellant. – Appeal No. E/42032/2018 – Final Order No. 42881/2018 – Dated:- 14-11-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) Ms. S. Sridevi, Advocate for the Appellant Shri L. Nandakumar, AC (AR)

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the time limit was prescribed for availing credit under the notification provided for CENVAT credit and cannot be availed after six months from the date of issue of invoices. The said time limit was thereafter extended to one year vide Notification No.6/2015-CE(NT) dated 1.3.2015. As per the said amended provision, the appellant can avail credit on invoices within a period of one year from the date of the first notification, when the notification has come into force with effect from 1.9.2014. In the present case, all the invoices are dated prior to 1.9.2014. She adverted to pages 49 to 51 of the appeal paper book and submitted that all the invoices are dated 14.6.2012 to 9.1.2014. and are issued prior to 1.9.2014. The time limit for availing credit was prescribed or has come into effect only with effect from 1.9.2014. Thus the invoices on which credit has been later availed by the appellant having been issued prior to 1.9.2014, the credit availed by the appellant is correct and proper.

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Notification Nos.21/2014 and 6/2015. The said notification provided that the assessee has to avail credit on the invoices within a period of six months /one year from the date of issue of the invoices / documents. In the present case, it is seen that all the invoices are issued even prior to 11.7.2014. The department has issued the show cause notice on the wrong interpretation of the provisions that credit has been availed by the appellant after 11.7.2014. The amended provision has no retrospective effect. The issue has been analyzed in the case of M/s. Voss Exotech Automotive Pvt. Ltd. (supra), wherein the Tribunal has discussed as under:- 4. On careful consideration of the submissions made by both the sides, I find that for denial of the credit, the Notification No.21/14-CE(NT) dated 11.7.2014 was invoked wherein six months period is available for taking credit. As per the facts of the case, credit was taken in respect of the invoices issued in the month of March and April 2014 in No

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GST – States – G.O.MS.No. 569 – Dated:- 14-11-2018 – GOVERNMENT OF ANDHRA PRADESH REVENUE (COMMERCIAL TAXES-II) DEPARTMENT G.O.MS.No. 569 Dated: 14-11-2018. NOTIFICATION In exercise of the powers conferred by section 164 of the Andhra Pradesh Goods and Services Tax Act, 2017 (Act No.16 of 2017), the Government hereby make the following amendment to the Andhra Pradesh Goods and Services Tax Rules, 2017 issued in G.O.Ms.No.227, Revenue (CT-II) Dept., Dt.22-06-2017 as subsequently amended. 1. (i) These rules may be called the Andhra Pradesh Goods and Services Tax (Twenty Sixth Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect on and from 9th October, 2018. AMENDMENT In the Andhra Pradesh Goods and Services

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India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R 1299(E), dated the 13th October, 2017, the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted. . (ii) in rule 96, for sub-rule (10), the following sub-rule shall be substituted, namely:- (10) The persons claiming refund of integrated tax paid on exports

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GST – States – G.O.MS.No. 568 – Dated:- 14-11-2018 – GOVERNMENT OF ANDHRA PRADESH REVENUE (COMMERCIAL TAXES-II) DEPARTMENT G.O.MS.No. 568 Dated: 14-11-2018. NOTIFICATION In exercise of the powers conferred by section 164 of the Andhra Pradesh Goods and Services Tax Act, 2017 (Act No.16 of 2017), the Government hereby make the following amendment to the Andhra Pradesh Goods and Services Tax Rules, 2017 issued in G.O.Ms.No.227, Revenue (CT-II) Dept., Dt.22-06-2017 as subsequently amended. 1. (i) These rules may be called the Andhra Pradesh Goods and Services Tax (Twenty Fifth Amendment) Rules, 2018. (ii) They shall be deemed to have come into force with effect on and from the 23rd October, 2017. AMENDMENT In the Andhra Pradesh Goods and Ser

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2018 (11) TMI 1147 – DELHI HIGH COURT – TMI – Clandestine removal – Principles of Natural justice – CESTAT rejected the appeal without appreciating the facts and evidence before it – Held that:- No doubt, the CESTAT has not discuss the evidence as greatly as it normally does and is expected to. What is however evident – from a plain reading of paras 6 to 10 is that the main points, which ultimately led the Commissioner to impose penalty and also inflict duty liability were taken into account. It is of course, desirable that the CESTAT as First Appellate Forum should discuss the evidence in some depth.
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This Court is of the opinion that upon a total analysis of the circumstances, especially having regard to the statements made by the various parties including the third parties i.e. the sellers of the raw material, the inference drawn by the Commissioner could not have been faulted – questions of law urged by the appellant are purely factual.
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Appeal dismissed. – CEAC 45/2018,

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e allegations in the show cause notice were briefly that the material included certain loose sheets and diaries, all of which tied up by the statements recorded in the course of the investigation from suppliers of raw materials. The Revenue also relied in the show cause notice, upon the statement of the proprietor as well as his brother. It also relied upon the statement of an employee who worked with the appellant as an Superintendent in the office. The appellant denied allegations of clandestine removal and submitted – besides arguing that the diaries per se did not have any evidentiary value, that the materials on record nowhere justified an inference that clandestine removal has been resorted to. The appellant also produced other documents and materials including electricity consumption bills etc. to say that the activity carried on and the returns filed with the excise authorities did not warrant a finding of clandestine removal or attract a duty liability. It was urged that the b

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er with penalty of equal amount from the appellant. ₹ 15 lacs which was deposited by the appellant was directed to be appropriate towards the amounts due. 4. The appellant approached the CESTAT complaining that the order-in-original recorded perverse finding which was based upon the materials on record. The Tribunal rejected the appeal. The material portion of the Tribunal s order is as follows: 8. The main evidences on which the Revenue's case is based as summarised below. (i) Unaccounted raw material as well as finished goods were found in the factory at the time of search on 08.08.2011. (ii) Some loose slips and sale invoices, recovered from the factory at the time of search indicated clearances of finished products by using invoices in the name of M/s Universal Enterprises, Shahdara to various customers. The firm in the above name was found to be not in existence at the address cited in the invoices. This firm was admitted to be a fake firm as confirmed by Sh. Chittaranja

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the appellant. He also confirmed that the quantum of raw materials as was found in the loose papers recovered from residence of Sh. Lalit Jain was supplied to the appellant. (v) The other suppliers also confirmed the same. During investigation, upon checking the bank account of the appellant, it was found that some of the supplied raw materials found in the loose sheets were paid for by cheque by the appellant. (vi) Certain books/ diaries were also recovered from residence of Sh. Lalit Jain. In such diaries, the details were found regarding sale of finished products. Such diaries recorded partywise, datewise, running account of sale value, receipt of sale proceeds and outstanding balance, for the period 2008-09 to 2010/2011. Upon verification of the bank account of the appellant, it was noticed that many of the sale transactions were found tallied with the credit entries in the bank account. Further, many of the entries found in the diaries were also duplicated in the loose sheets. (vi

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e obtained under duress and dictated to him. (ii) The manufacturing capacity of the factory was not enough to manufacture the quantum of goods alleged to have been cleared clandestinely. It has been argued that with only two extruders and winding machine the quantum of production alleged would not have been achieved. (iii) It has also been argued that the documents recovered from residence of Sh. Lalit Jain do not pertain to the appellant, but pertains to the business of his brother Sh. Prithaviraj Jain who is said to have been working as commission agent. (iv) The adjudicating authority, in the impugned order, has given detailed findings on all the above grounds. The documents recovered from house of Sh. Lalit Jain clearly indicate the names of various raw material suppliers, quantity of raw materials procured and the period during which the same has been procured. The documents also indicate in detailed the various customers with the details of goods cleared as well as the payments r

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the residence of Shri Lalit Jain do not pertain to the appellant, but pertains to the commission agent business said to have been run by Shri Prithaviraj Jain, brother of Shri Lalit Jain. This contention has been dealt with in para 16 of the impugned order. The Revenue has sent repeated summons to Sh. Prithaviraj Jain to seek his clarifications in connection with discrepancies in the statements made by Sh. Lalit Jain and Sh. Prithaviraj Jain. Shri Prithaviraj Jain has chosen to disappear from the scene and absent himself. Accordingly, the adjudicating authority rightly did not place credence on the statements given by Sh. Prithaviraj Jain. 12. After considering the totality of facts and circumstances of the present case, we come to the conclusion that in the light of the evidences placed on record by the Revenue in the form of documents as well as various inculpatory statements, we are of the view that the allegation that the appellant has procured raw materials, manufactured wires an

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o glaring discrepancies. In this regard, it was highlighted that as against the total sum of over ₹ 6.1 crores, allegedly paid, the appellants allegedly had a turnover of ₹ 5.21 crores. Learned counsel submitted that this was an inherent improbability, which exposes the findings of the Revenue. He submitted that, since the CESTAT did not apply its mind, its findings are perverse. 6. The Commissioner in the order-in-original took note of the fact that the seizures of the documents and other materials (including loose sheets, invoices, diaries etc.) were tied up by the statements of the raw material suppliers. At one stage, the appellant had urged that the material belongs to one Prithvi Raj Jain, his brother. However, the statement of Prithvi Raj Jain did not fully corroborate the version given by Lalit Jain, the proprietor of the appellant. The order-in-original noted importantly as follows: 14. It is submitted by RCI in defense that the documents on the basis of which dema

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name of the item, size, quantity, rate, value and name of the party. Shri Lalit Jain confessed that M/s Universal Enterprises was a fake firm created by him and sale affected through these invoices had not been accounted for in their books of accounts. Further, the impugned documents (three Scholar Fancy Memo Book) resumed very clearly mention the names of the buyers. These parties are buyers as these very parties are reflected in the sale invoices of RCI. I further find that names of these very buyers are mentioned in the loose pages 1 to 7 of S.No. 6 of Annexure 'A' to panchnama dated 8.8.11 drawn at the residence of Shri Lalit Jain, proprietor of RCI. The clinching evidence is that in these 1 to 7 pages some payment was shown to have been received from these very parties by cheque/DD on various dates. These payments on verification by the Department were found to have been credited in the bank account of RCI, details of which were supplied to RCI as Annexure-III. Similar is

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s i.e., three Scholar Fancy Memo Book (diaries) contain party-wise and date wise running account which is clearly sale value, receipt of sale proceeds and outstanding balance. Shri Lalit Jain explained that the entry occurring like 364=25, 482=22, 52771=5S on page22, 16 and 27 of diary (Scholar Fancy Memo Book) No.1, 2 and 3 were to be read as ₹ 36,425/-, ₹ 48,222 and ₹ 52,77,158/- respectively; that due to stiff market competition they used to purchase unaccounted raw material from the suppliers in cash and accordingly sale of finished goods i.e. PVC wire and cable was made in cash only and that they did not maintain any record in respect of goods sold without bills. The above goes to prove that the transactions shown in the resumed documents were very clearly related to sale of wire and cables and purchase of raw materials only. Thus, there is sufficient evidence on record to show that the amount mentioned in the resumed documents represented value of the wire and c

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ous motive to help his brother Shri Lalit Jain, he was summoned to appear on 22.10.2012, 31.10.2012, 7.11.2012, and 20.11.2012. However, the summons was received back undelivered with the remarks from the postal authorities that-no such person resided at that address. Further, on22.03.13 summons were sent through special messenger who met Smt Jyotsna Jain wife of Shri Lalit Jain who informed that Sh. Prithviraj earlier used to reside with them but since last one and a half year he had shifted to Rajasthan. She could not give the present address of Sh. Prithvirai, Moreover, Sh. Lalit Jain, in his statement dated 11.04.13 had given address of Sh. Prithviraj as Village Bharini, District Jallore, Rajasthan. Again summons was dispatched on the given Rajasthan address on 16.04:13 but the same were also returned back undelivered. Thus, it is apparent that Sh. Prithviraj intentionally avoided his appearance before the department and facts disclosed by him in his statement dated 4.1.12 cannot b

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Metals, who admitted having received the amounts mentioned on page 6 (of loose page 1 to 7) in cash and cheque for supply of bare copper wire was seized both from the factory premises of M/s Balaji Metals and RCI. Thus, the documents were clearly related to RCI and contained details of raw material suppliers and buyers and the monetary value of the raw material received in cash and wire and cables supplied in cash. 17. Referring to typed and in English language statements dated 11.4.2013 and 17.5.2013 of Shri Lalit Jain, it is argued that he could neither type nor had working knowledge of English and these statements were just placed before him and he was made to put his signatures. I find from statement dated 11.4.2013 of Shri Lalit Jain that he admitted at the start of the statement that "I am 8th pass. I can read and write Hindi and understand English". He also wrote in his own hand "Seen & Read" before putting his signatures in English . Further, on panchnam

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my signature and it is recorded as per facts". I further find that the statements were tendered on 11.4.2013 and 17.5.2013 and this is the first time after over a year that an effort has been made to retract from them. Such belated retraction has no meaning. 18. Further argument of RCI is that the statements of the raw material supplies namely Shri Mahesh Kumar Taparia of M/s Taparia Polymers and of Shri Vimal Taparia of M/s Ankur Plastics cannot be used against them. I do not agree. In fact both these suppliers in their unretracted statements tendered under Section 14 of the Central Excise Act, 1944 admitted having sold PVC to RCI on kachi parchi. These statements are corroborated by the fact of seizure of unaccounted PVC made from factory premises of RCI on 8.8.2011 weighing 2920 kg. valued at ₹ 1,31,400/- and are admissible as evidence. Regarding statement of Shri Naresh Gupta proprietor of M/s Balaji Metals, who admitted having supplied bare copper wire to RCI and also

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nducted investigation at buyer's end as well as from the transporters but did not bring on record the result of such investigation. I find that the Department is at liberty to prove its case by any means consistent with the Central Excise law, The evidence available against RCI has been supplied to them and they have been given an opportunity to rebut the allegations leveled. Further, -copies of all the non-relied upon documents have also been returned to Shri Lalit Jain, proprietor of RCI on 12.12.2103. I note that Shri Lalit Jain stated on 8.8.2011 that the transporter M/s S.R.D. Transport did not issue any bilty for the transportation of goods. 20. Next argument of RCI is that the unit is working on two extruders and maximum capacity of such extruder is not more than 20-25 bundles of cables of size Tffii-ri1f the extruders run continuously for 8 hrs that the unit worked in one shift only and did not have Generator Set in the factory. 20.1 I find from record that on 8.8.2011 when

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cable referred to by RCI in defence, is known as 14/11, as stated by Shri Lalit Jain in reply to questionNo.2 of statement dated 11.4.2013. Wire and cable of this l rnm (14/11) size is also mentioned in S.B. Electrical, Erode account and 152 bundles were cleared on 1.7.2011 and 207 bundles on 11.7.2011. Further, needless to say that this is clearance made to one party only. Unaccounted raw material collectively valued at ₹ 3,27,960/- was also seized on 8.8.2011. I further observe that though stated to be working for 8 hours only, nothing prevented RCI from working round the clock. In the light of above discussion I find that RCI had the capacity to produce wire and cables of the value alleged in the SCN. It is further contended that their electricity expenses were in the range of ₹ 10,000/- to ₹ 20,000/- per month as per the sub-meter installed in the factory. I find the ledger account of Power & Electricity for the year 2006-07 to 2011-12 submitted along with re

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t evidence on record to prove that the documents resumed pertained to RCI, purchase of unaccounted raw material and sale of wire and cable by them and that statement of Shri Prithviraj was untruthful and baseless. I observe that unaccounted receipt of raw material as reflected in the resumed documents stand corroborated as detailed in paragraph 10 to 10.3, 11 to 11.2 and 12 above. Further, clandestine removal is also corroborated in the manner explained in paragraph 13 to 13.6 and discussions and findings above. Reliance has been placed by RCI on a number of case laws. The decisions in these cases appear to have been rendered in the unique facts and circumstances of the case and are, therefore, distinguishable. I have discussed all these points canvassed by RCI as mentioned above and in my humble view there is no merit in the arguments advanced. 7. It is evident that when the appellant s premises were visited by the anti-evasion team, manufacturing activity was carried out. According t

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s of the loose sheets and the documents. He further noted that certain payments against raw material suppliers namely Naresh, Taparia, Omex and buyers namely Classic, Sasi Elec.Vinayalca, Paras Elec., Vikram Elec., Deepak Elec. were made by cheques/DDs. These were found to have been credited/debited in the bank accounts of the appellants. This according to the Commissioner constituted evidence to establish that purchase of raw material to produce the machinery have been corroborated. Furthermore, the three diaries i.e. the Scholar fancy memo book clearly mention the names of the buyers. The names of these parties were reflected in the sale invoices. 8. Initially, the proprietor Sh. Lalit Jain stated that his brother Prithvi Raj Jain was unemployed and dependent on him. Sh. Prithvi Raj Jain, on the other hand, stated that he was a commission agent and the documents pertain to purchase and sale of the household goods of different persons. The Commissioner deduced that Sh. Prithvi Raj Jai

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2018 (11) TMI 1188 – PUNJAB AND HARYANA HIGH COURT – TMI – Extension of time for filing GST TRAN-1 – Held that:- Notification No. 48, dated September 10, 2018 has been issued for amending the Central Goods and Services Tax Rules, 2017 giving power to the Commissioner for extension of time for submission of declaration form GST TRAN-1 upto March 31, 2019. The power can be exercised by the Commissioner on the recommendation of the Council – petition disposed off. – CWP No. 28733 of 2018 (O&M) Dated:- 14-11-2018 – Mr. Rajesh Bindal and Mr. Manoj Bajaj Present Mr. Jagmohan Bansal and Mr. Chetan Jain, Advocates, for the petitioner. Mr. Tajender K. Joshi, Advocate, for respondent nos. 1 to 3. Mr. Pankaj Gupta, Additional Advocate General, Punja

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GST – States – 33T of 2018 – Dated:- 14-11-2018 – Office of the Commissioner of State Tax, (GST), 8th floor, GST Bhavan, Mazgaon, Mumbai-400010. TRADE CIRCULAR To, ………………………… ………………………… No. JC/HQ-I/GST/Refund/Trade Cir./01/2017-18 Mumbai, Date: 14/11/2018 Trade Cir. No. 33T of 2018 To, ………………….. – Subject: : Processing of refund under the GST. Sir/Gentlemen/Madam, 1. Various representations have been received seeking clarification on issues relating to refund. In order to clarify these issues and to ensure uniformity in the implementation of the provisions of law across the field formations, the Commissioner of State tax, Maharashtra State, in exercise of its powers conferred by section 168 (1) of the Maharashtra Goods and Services Tax Act, 2017 (hereinafter referred to as the MGST Act ), hereby clarifies the issues as detailed hereunder: 2. Modification in the earlier Trade Circular No. 22T of 20

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etely based on the information provided by the claimants, it becomes necessary that invoices are scrutinized. Accordingly, it was clarified that the invoices relating to inputs, input services and capital goods were to be submitted for processing of claims for refund of integrated tax where services are exported with payment of integrated tax; and invoices relating to inputs and input services were to be submitted for processing of claims for refund of input tax credit where goods or services are exported without payment of integrated tax. 3.2. The claimant shall submit the details of the invoices on the basis of which input tax credit had been availed during the relevant period for which the refund is being claimed, in the format enclosed as Annexure-A manually along with the application for refund claim in FORM GST RFD-01A and the Application Reference Number (ARN). The claimant shall also declare the eligibility or otherwise of the input tax credit availed against the invoices relat

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the return for the said period has been filed; and (c) The balance in the electronic credit ledger of the claimant at the time of filing the refund application. 4.2. After calculating the least of the three amounts, as detailed above, the equivalent amount is to be debited from the electronic credit ledger of the claimant in the following order: (a) Integrated tax, to the extent of balance available; (b) Central tax and State tax/Union Territory tax, equally to the extent of balance available and in the event of a shortfall in the balance available in a particular electronic credit ledger (say, State tax), the differential amount is to be debited from the other electronic credit ledger (i.e., State tax/Union Territory tax, in this case). 4.3. The procedure described in para 3.2 above, however, is not presently available on the common portal. Till the time such facility is made available on the common portal, the taxpayers are advised to follow the order as explained above for all refu

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t to be recredited to the electronic credit ledger of the claimant using FORM GST RFD-01B. For recovery of this amount, a demand notice shall have to be simultaneously issued to the claimant under section 73 or 74 of the MGST Act, as the case may be. In case the demand is confirmed by an order issued under subsection (9) of section 73, or sub-section (9) of section 74 of the MGST Act, as the case may be, the said amount shall be added to the electronic liability register of the claimant through FORM GST DRC-07. Alternatively, the claimant can voluntarily pay this amount, along with interest and penalty, if applicable, before service of the demand notice, and intimate the same to the proper officer in FORM GST DRC-03 in accordance with sub-section (5) of section 73 or sub-section (5) of section 74 of the MGST Act, as the case may be, read with sub-rule (2) of rule 142 of the MGST Rules. In such cases, the need for serving a demand notice will be obviated. 5.2. In case of rejection of cl

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file an appeal or in case he files an appeal, the same is finally decided against the claimant. 6. Scope of rule 96(10) of the MGST Rules: 6.1. Rule 96(10) of the MGST Rules, as amended retrospectively by notification No. 39/2018-State Tax, dated 18.09.2018 provides that registered persons, including importers, who are directly purchasing/importing supplies on which the benefit of reduced tax incidence or no tax incidence under certain specified notifications has been availed, shall not be eligible for refund of integrated tax paid on export of goods or services. For example, an importer (X) who is importing goods under the benefit of Advance Authorization/EPCG, is directly purchasing /importing supplies on which the benefit of reduced/Nil incidence of tax under the specified notifications has been availed. In this case, the restriction under rule 96(10) of the MGST Rules is applicable to X. However, if X supplies the said goods, after importation, to a domestic buyer (Y), on payment o

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to question the validity of the sanction order on certain grounds. E.g. a tax officer of one administration has sanctioned, on a provisional basis, 90 per cent. of the amount claimed in a refund application for unutilized ITC on account of exports. On receipt of the provisional sanction order, the tax officer of the counterpart administration has observed that the provisional refund of input tax credit has been incorrectly sanctioned for ineligible input tax credit and has therefore, refused to disburse the tax amount pertaining to the same. 7.2. It is clarified that the remedy for correction of an incorrect or erroneous sanction order lies in filing an appeal against such order and not in withholding of the disbursement of the sanctioned amount. If any discrepancy is noticed by the disbursing authority, the same should be brought to the notice of the counterpart refund sanctioning authority, the concerned counterpart reviewing authority and the nodal officer, but the disbursal of the

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t debited under rule 89 (3) shall be re-credited to the electronic credit ledger. Therefore, the intent of the law is very clear that in case a deficiency memo in FORM GST RFD-03 has been issued, the refund claim will have to be filed afresh. 8.2. It has been learnt that certain field formations are issuing show cause notices to the claimants in cases where the refund application is not re-submitted after the issuance of a deficiency memo. These show-cause-notices are being subsequently adjudicated and orders are being passed in FORM GST RFD-04/06. It is clarified that show-cause-notices are not required to be issued where deficiency memos have been issued. A refund application which is re-submitted after the issuance of a deficiency memo shall have to be treated as a fresh application. No order in FORM GST RFD-04/06 can be issued in respect of an application against which a deficiency memo has been issued and which has not been resubmitted subsequently. 9. Treatment of refund applicat

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GST – States – TAMIL NADU ORDINANCE NO. 2 OF 2018 – Dated:- 14-11-2018 – Tamil Nadu Acts and Ordinances The following Ordinance which was promulgated by the Governor on the 13th November 2018 is hereby published for general information:- An Ordinance to amend the Tamil Nadu Goods and Services Tax Act, 2017. WHEREAS the Legislative Assembly of the State is not in session and the Governor of Tamil Nadu is satisfied that circumstances exist which render it necessary for him to take immediate action for the purposes hereinafter appearing; NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution, the Governor hereby promulgates the following Ordinance:- 1. Short title and commencement. (1) This Ordinance may be called the Tamil Nadu Goods and Services Tax (Amendment) Ordinance, 2018. (2) (i) Sections 3 and 30 shall be deemed to have come into force on the 1st day of July 2017; (ii) Other sections of this Ordinance shall come into force on such da

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lause 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"; (4) clause (18) including the Explanation thereunder shall be omitted; (5) in clause (35), for the expression "clause (c)", the expression "clause (b)" shall be substituted; (6) in clause (69), in sub-clause (f), after the expression "Article 371", the expression "and Article 371J" shall be inserted; (7) in clause (102), the following Explanation shall be added, namely:- "Explanation.- For the removal of doubts, it is hereby clarified that the expression "services" includes facilitating or arranging transactions in securities.". 3. Amendment of section 7. In section 7 of the principal Act,- (1) in sub-section (1),- (a) in clause (b), after the expression "or furtherance of business;", the expression "and" shall be

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th 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 both.". 5. Amendment of section 10. In section 10 of the principal Act,- (1) in sub-section (1),- (a) for the expression "in lieu of the tax payable by him, an amount calculated at such rate", the expression "in lieu of the tax payable by him under sub-section (1) of section 9, an amount of tax calculated at such rate" shall be substituted; (b) in the proviso, for the expression "one crore rupees, as may be recommended by the Council.", the expression "one crore and fifty lakh rupees as may be recommended by the Council:" shall be substituted; (c) after the proviso, the following proviso shall be added, namely:- "Provided further that a

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ll 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 during movement of goods, either by way of transfer of documents of title to goods or otherwise; (ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person."; (2) in clause (c), for the expression "section 41", the expression "section 41 or section 43A" shall be substituted. 9. Amendment of section 17. In section 17 of the principal Act,- (1) in sub-section (3), the following Explanation shall be added, namely:- "Explanation.- For the purposes of this sub-section, the expression "value of exempt supply'' shall not incl

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nance 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) in the manufacture of such motor vehicles, vessels or aircraft; or (II) in the supply of general insurance services in respect of such motor vehicles, vessels or aircraft insured by him; (b) the following supply of goods or services or both,- (i) food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, leasing, renting or hiring of motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) except when used for the purposes specified therein, life insurance and health insurance: Provided that the input tax credit in respect of such goods or serv

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ll be added, namely:- "Provided further that where such person makes taxable supplies of goods or services or both from a special category State in respect of which the Central Government has enhanced the aggregate turnover referred to in the first proviso, he shall be liable to be registered if his aggregate turnover in a financial year exceeds the amount equivalent to such enhanced turnover."; (2) in the Explanation, in clause (iii), the following shall be added at the end, namely:- "except the State of Jammu and Kashmir and the States of Arunachal Pradesh, Assam, Himachal Pradesh, Meghalaya, Sikkim and Uttarakhand.". 12. Amendment of section 24. In section 24 of the principal Act, lor clause (x), the following clause shall be substituted, namely:- "(x) every electronic commerce operator who is required to collect tax at source under section 52.". 13. Amendment of section 25. In section 25 of the principal Act,- (1) in sub-section (1), after the proviso

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all be added, 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."; (3) in sub-section (2), after the proviso, the following proviso shall be added, namely:- "Provided further that during pendency of the proceedings relating to cancellation of registration, the proper officer may suspend the registration for such period and in such manner as may be prescribed.". 15. Amendment of section 34. In section 34 of the principal Act,- (1) in sub-section (1),- (i) for the expression "Where a tax invoice has", the expression "Where one or more tax invoices have" shall be substituted; (ii) for the expression "a credit note", the expression "one or more credit notes for supplies made in a financial year" shall be substituted; (2) in sub-section (3),- (i) for the expressi

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er and within such time as may be prescribed" shall be substituted; (b) the expression "on or before the twentieth day of the month succeeding such calendar month or part thereof" shall be omitted; (c) the following proviso shall be added, 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."; (2) in sub-section (7), the following proviso shall be added, namely:- "Provided that the Government may, on the recommendations of the Council, notify certain classes of registered persons who shall pay to the Government the tax due or part thereof as per the return on or before the last date on which he is required to furnish such return, subject to such conditions and safeguards as may be specified therein."; (3) in sub-section (9),- (a) for the expression

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f 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 furnished by the suppliers under the said sub-section. (5) The amount of tax specified in the outward supplies for which the details have been furnished by the supplier under sub-section (3) shall be deemed to be the tax payable by him under the provisions of the Act. (6) The supplier and the recipient of a supply shall be jointly and severally liable to pay ta

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;section 45", the expression "and to perform such other functions" shall be inserted. 20. Amendment of section 49. In section 49 of the principal Act,- (1) in sub-section (2), for the expression "section 41", the expression "section 41 or section 43A" shall be substituted; (2) in sub-section (5),- (a) in clause (c), the following proviso shall be added, 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 integrated tax."; (b) in clause (d), the following proviso shall be added, namely:- "Provided that the input tax credit on account of Union territory 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 integrated tax.". 21. Insertion of new sections 49A

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ct, in sub-section (9), for the expression "section 37", the expression "section 37 or section 39" shall be substituted. 23. Amendment of section 54. In section 54 of the principal Act,- (1) in sub-section (8), in clause (a),- (a) for the expression "on zero-rated supplies", the expression "on export" shall be substituted; (b) for the expression "such zero-rated supplies", the expression "such exports" shall be substituted; (2) in the Explanation, in clause (2),- (a) in sub-clause (c), in item (i), after the expression "foreign exchange", the expression "or in Indian rupees wherever permitted by the Reserve Bank of India" shall be inserted; (b) for sub-clause (e), the following sub-clause shall be substituted, namely:- "(e) in the case of refund of unutilised input tax credit under clause (ii) of the first proviso to sub-section (3), the due date for furnishing of return under section 39 for the period

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luding the proviso, for the expression "seven days", in two places where it occurs, the expression "fourteen days" shall be substituted. 28. Amendment of section 143. In section 143 of the principal Act, in sub-section (1), in clause (b), after the proviso, the following proviso shall be added, 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.". 29. Amendment of Schedule I. In Schedule I of the principal Act, in paragraph 4, for the expression "taxable person", the expression "person" shall be substituted. 30. Amendment of Schedule II. In Schedule II of the principal Act, in the heading, after the expression "ACTIVITIES", the expression "OR TRANSACTIONS" shall be inserted. 31. Amendment of Schedule III. In Schedule III of the principal Act,- (1) after para

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2019 (2) TMI 1603 – APPELLATE AUTHORITY FOR ADVANCE RULING, ODISHA – TMI – Classification of supply – setting up a project in the school – supply of goods and services including training – challenge to AAR Decision – Applicability of Entry No. 72 of Notification No. 12/2017-Central Tax(Rate), dated 28.06.2017, read with Entry No. 72 of Notification bearing SRO No. 306/2017-Finance Department – services provided under the category of Information and Communication Technology (ICT) @ School Project
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Held that:- The Appellant themselves have contended that the activities undertaken by the Appellant are under BOOT model basis and therefore, the ownership in the infrastructure developed by them would be transferred after the expiry of the contract period (i.e 5 years) This is also clearly provided in the agreement that the ownership of the entire hardware software, other equipment, etc. will be transferred at zero value at the end of the contract period Therefore, the stand taken by th

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rovided that if OKCL fails to discharge the obligation under the agreement, OMSM would discharge all the responsibilities. The agreement cited between OMSM and OKCL is not relevant to the present issue. The Appellant themselves have admitted that OKCL will release the money for the supplies made by the Appellant. The contention/pleading of the Appellant that they merely act as an implementing agency on behalf of OMSM, is factually not correct.
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The Advance Ruling passed by the Authority for Advance Ruling, Odisha, made under Section 98 of the Goods and Services Act, 2017 in RE: M/S. IL & FS EDUCATION AND TECHNOLOGY SERVICES LTD. [2018 (10) TMI 780 – AUTHORITY FOR ADVANCE RULING, ODISHA] upheld. – ORDER No. 01/ODlSHA-AAAR/Appeal/2018 Dated:- 14-11-2018 – SHRI RAKESH KUMAR SHARMA MEMBER AND SHRI SASWAT MISHRA, MEMBER Present For the Appellant 1. Shri Kapil Kumar Sharma, Advocate, Partner, Lakshmikumaran & Sridharan Attorneys, 2. Smt. Saumya Dubey, Advocate, Associate, Lakshmiku

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2 The Appellant is a public limited company incorporated in India and registered under the Companies Act, 1956. The Appellant having GSTIN 21AABC12106HIZC is registered in Khordha, Odisha and falls within the jurisdiction of State of Odisha. The Appellant is the social infrastructure arm of IL&FS group and is engaged in the key areas of education, skill development, healthcare and cluster development for a long term and sustainable impact. 1.3. The present appeal concerns, one such ICT project being implemented by the Appellant in the State of Odisha. The Odisha Madhyamik Shiksha Mission (hereinafter referred to as OMSM ), Government of Odisha, has mandated the Odisha Knowledge Corporation Limited (hereinafter referred to as OKCL ) to implement ICT project in 4000 government and government aided higher secondary schools across the State of Odisha. Accordingly, OKCL floated a tender (Tender Code No.3) on e-tendering portal of Secured e-Tendering System (SeTs). 1 4 The said tender wa

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t filed an application on 27.03.2018 before the Authority for Advance Ruling of Odisha, under Section 97 of CGST Act, 2017 and OGST Act, 2017 read with Rule 104 of CGST Rules, 2017 & OGST Rules, 2017 in Form GST ARA-01 seeking an Advance Ruling on the applicability of Entry No. 72 of Notification No. 12/2017-Central Tax read with Entry No. 72 of Notification bearing SRO No. 306/2017-Finance Department, Government of Odisha to the services provided by them under the ICT @ School Project. Entry No. 72 of Notification No. 12/2017-Central Tax(Rate), dated 28.06.2017, which is relevant to this appeal, is reproduced below for ease of reference SL.No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent) Condition (1) (2) (3) (4) (5) 72 Heading 9992 Services provided to the Central Government, State Government, Union territory administration under any training programme for which total expenditure is borne by the Central Government, State Govern

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0.06.2018 = 2018 (10) TMI 780 – AUTHORITY FOR ADVANCE RULING, ODISHA, held that the applicant is not entitled to the benefit of exemption under Entry No.72 of Notification No.12/2017-Central Tax(Rate), dated 28.06.2017, and has given Ruling as under RULING (a) Recipient of the service OKCL is a body corporate which cannot be regarded as Government. (b) The supply undertaken by the applicant is in the nature of composite supply. It includes supply of goods and services which are not naturally bundled. Each of the components of the composite supply are distinctly identifiable both in terms of quantity and value. The service provided or to be provided is not exclusively in the nature of training programme. (c) Though the source of funding for the service is the State Government and Central Government, yet, as per the contract, the payment responsibility is vested on OKCL. Therefore, the activities of the applicant by way of supply of goods and services under the ICT project are not covere

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lows:- (i) To set aside the impugned ruling vide Order No- 01/ODISHA-AAR/18-19, dated 20.06.2018 = 2018 (10) TMI 780 – AUTHORITY FOR ADVANCE RULING, ODISHA and allow the appeal in full, with consequential reliefs to the Appellant; (ii) To hold that Entry No.72 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, read with Entry No.72 of Notification SRO No.306/2017-Finance Department, is applicable to the services provided by the Appellant under the ICT Project. 1.11 The Appellant has also made a prayer for condonation of 5 days delay, under sub-section-2 of Section 100 of the CGST Act, 2017. 2. The grounds of appeal, as mentioned by the Appellant, in their Appeal, are summarised here-as-under; 2.1 First pre-requisite: The services are provided under the training programme: The Appellant has contended that they are carrying out various activities viz. installation, commissioning, site maintenance, operation, etc. to implement the ICT Project in the government schools and go

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vices; The Appellant has contended that in terms of the agreement, during the period of contract (i.e. 5 years), the operation and maintenance of the entire IT infrastructure equipment is to be carried out by the Appellant on its own cost. It is to be noted that during this period, the ownership of the equipment and infrastructure remains with the Appellant. This can be interred from the following terms of the contract: (a) during the period of contract, the equipment, infrastructure, etc. are to be repaired by the Appellant at its own cost. (b) it is the responsibility of the Appellant to obtain necessary insurance for the equipment, infrastructure, etc. Thus, for the entire contract period, the risk remains with the Appellant. (c) the Appellant is also claiming the depreciation of the IT equipment, infrastructure, etc. Thus, the IT equipment, infrastructure appears as assets in the books of accounts of the Appellant. Therefore, the above referred terms of the agreement clearly establ

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ct, the repair and maintenance of the equipment and infrastructure is performed by the Appellant so that it may continue to provide computer training during the contract period in a smooth manner, without any obstruction. Point No.(vi) There is no supply of goods during the period of contract: As already submitted, the activities undertaken by the Appellant are under BOOT model basis and therefore, the ownership in the infrastructure developed by it would be transferred after the expiry of the contract period (i.e. 5 years). This is also clearly provided in the agreement that the ownership of the entire hardware, software, other equipment, etc. will be transferred at zero value at the end of the contract period. In view of the above, it can be concluded that during the entire period of contract, the Appellant is not engaged in the supply of goods inasmuch as supply of goods is taking place only after the expiry of contract period of 5 years. It is to be noted that the Appellant is clai

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is responsible for provision of computer training for five years using the newly built infrastructure. Entry No. 72 of Notification No. 12/2017 requires that the services must be provided under a training programme. It is important to analyse if the services of provision of computer training by the Appellant can be considered to have been provided under a training programme. It is pertinent to note that the term 'training' used in the above referred Entry No. 72 has not been defined in the Notification No. 12/2017. Further, this term is also not defined in the CGST/OGST Act as well as in CGST/OGST Rules. 2.2 Further, the Appellant has rebutted to the findings of the Advance Ruling Authority, as mentioned herein below: (a) that under the CGST Act, the concept of composite supply is applicable only when two or more identifiable and taxable supplies of goods or services or both, which are naturally bundled, are rendered in conjunction with each other. To understand the same, atten

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t of the Appellant as regards the said transfer involving supply of goods. Conversely, in the application as well as in the additional submissions submitted by the Appellant before the Ld. AAR, the Appellant has emphasized on the fact that supply under the JCT Project involves supply of goods as well as supply of services, and whilst supply of services is the principal supply, supply of goods is merely an ancillary supply taking place at the end of the contract period, at zero value. The Appellant would like to highlight here that as per the contract entered into between the Appellant and OKCL, title in the goods/infrastructure is transferred to SMED and not to OKCL. In such a case, even by applying Para l(c) of Schedule II, it cannot be said that the Appellant is supplying goods to OKCL. (e) With respect to services provided to Government of State of Odisha, the Appellant submitted that OKCL is a corporation established under Companies Act, 1956, which has been mandated by OMSM, Gover

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State Government of Odisha, the Appellant submitted that in the instant matter, the tender document floated by the Government of Odisha specifically provides that the expenditure of implementing ICT Project in the State of Odisha would be borne by the Central and State Government in the ratio of 75:25. The Appellant has further submitted that the expression used in Notification No. 12/2017 is 'borne' ( total expenditure is borne by the Central Government. .. ) and not 'paid' by the government. There is no dispute as regards to the fact that it is the responsibility of OMSM (State Government) to ensure that appropriate funds are provided for implementation of the ICT Scheme. In fact, the said submission can be traced to Clause 5.2 of the agreement between OMSM and OKCL (Annexure-D). Therefore, even though the expenditure is 'paid' by OKCL under contract to the Appellant, the same is 'borne' by Centra! and State Government only (jointly). 3. A personal he

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that the appeal was filed on 21 08.2018, the delay in filing of appeal is reckoned to be five days. 4.3 The Appellant has also submitted that the delay in filing the present appeal is not intentional and there were rational grounds preventing the Appellant from being able to file the appeal. It may be noted that due to the demise of former Late Prime Minister Atal Bihari Vajpayee, the State holiday was declared on 17.08.2018. Further, 18.08.2018 and 19.08.2018 were Saturday and Sunday. The Appellant also submitted that the Corporate Office of the Applicant is in Noida, U.P., and the appeal was drafted by the Applicant's Attorneys, whose office is situated in New Delhi. Hence, the entire appeal book was prepared in New Delhi and it was subsequently posted to another office of Applicant in Bhubaneswar, Odisha. The appeal book and filing documents were dispatched from Delhi on 17.08.2018 through Blue Dart Express courier. The courier was expected to reach within 2 days of dispatch, i

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rime issue raised by the Appellant is, as to whether the services provided by them to M/s OKCL are eligible for exemption under Entry No.72 of the Notification No. 12/2017, Central Tax (Rate) dated 28.06.2017 and Entry No.72 of Notification SRO No.306/2017, dated 29 06.2017, issued by the Finance Department, Government of Odisha, which is reproduced below for ready reference.- SL No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent) Condition (1) (2) (3) (4) (5) 72 Heading 9992 Services provided to the Central Government, State Government, Union territory administration under any training programme for which total expenditure is borne by the Central Government, State Government, Union territory administration. Nil Nil * Entry No. 72 of Notification SRO No. 306/2017-Finance Department is identical to the Entry No. 72 of Notification No.12/2017-Central Tax(Rate). 4.6 On going through the aforesaid notification, it is noticed that the follow

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ich is a body corporate. The Appellant has failed to produce any documentary evidence as to how the provision of service to OKCL qualifies to be a provision of sevice to the Central Government, state Government or Union Terittory Administration. The Argument put forth by the Appellant that they are the implementing agency on behalf of the Government is not tenable, as they are not providing services to Government. 4.9 On perusal of para 8 of the Agreement dated 12.09.2013 between OKCL and the Appellant it is noticed that the Appellant is required to supply and install the specified goods provide specified services in the ICT Labs of the Govt and Govt. Aided High Schools located in the specified zones. Therefore, it is evident that the Appelant has made supplies to OKCL. which is a body corporate and registered under the Companies Act 1956 as a Company. 4.10 We notice that the Authority for Advance Ruling. Odisha, in their findings (para 5 3 of the Order)has clearly observed that OKCL w

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tive power of the Union or of a State and shall be expressed to be made by the president or by the Governor of the State under Article 299 of the Constitution of India. Article 299 of the Constitution of India does not apply to OKCL. Article 300 of the Constitution of India provides that State can sue or be sued as juristic personality in the name of Union of India and Government of a State Therefore OKCL is neither the Sate Government nor a part of the State Government of Odisha or the Central Government and therefore the supplies by the applicant to OKCL should not be held to be a supply to Government. 4.11 No counter argument has been put forth by the Appellant to substatniate their claim that the supplies were made by them to the Government. Therefor we fully agree with the finding arrived at the Advance Ruling given by the Advance Ruling (AAR), Odisha, on this point and hold so Even if some percentage of shares are owned by Government of Odisha in the OKCL. the company cannot be c

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l , the Appellant themselves have contended that the activities undertaken by the Appellant are under BOOT model basis and therefore, the ownership in the infrastructure developed by them would be transferred after the expiry of the contract period (i.e 5 years) This is also clearly provided in the agreement that the ownership of the entire hardware software, other equipment, etc. will be transferred at zero value at the end of the contract period Therefore, the stand taken by the Appellant is self-contradictory in as much as on one hand, they claim that the provision of service as operation or maintenance of self-owned equipment does not amount to supply of services to third party. But on the other hand, they claim that the ownership in the infrastructure developed by it would be transferred after the expiry of the contract period (i e 5 years). The said transfer of ownership is also unconditional Therefore we hold that the consideration received by the Appellant is in respect of prov

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ellant that they merely act as an implementing agency on behalf of OMSM, is factually not correct. 4.15 Having held that the Appellant have failed to meet the primary requirement of the conditions of the notification i.e., the supply has to be a supply of Service provided to the Central Government, State Government or Union Territory Administration; we refrain from discussing the other aspects of the notification and pass the following order: ORDER We uphold the Advance Ruling passed by the Authority for Advance Ruling, Odisha, made under Section 98 of the Goods and Services Act, 2017, vide their Order No- 01/ODISHA-AAR/18-19, dated 20.06.2018 = 2018 (10) TMI 780 – AUTHORITY FOR ADVANCE RULING, ODISHA. Consequently, the appeal No.01/2018 dated 21.08.2018, filed by the Appellant i.e. M/s. IL & FS Education and Technology Services Ltd., under the provisions of Section 101 of the CGST Act, 2017/Section 101 of SGST Act, 2017, is hereby rejected. – Case laws – Decisions – Judgements –

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Goods and Services Tax – Started By: – Archna Gupta – Dated:- 13-11-2018 Last Replied Date:- 14-11-2018 – Dear Sir We are unable to file refund application of IGST on export of software services on payment of tax. The issue is that when we filed GSTR-3B for the month of July 2017 we showed turnover correctly in zero rated supply but IGST was not shown but we correctly filed our GSTR-1 (on payment of IGST). This mistake in GSTR-3B, we rectified in September 2018. There we showed the IGST amount and also set off the same from TRAN-1 ITC. Now on uploading the file on site, it is showing the error message that IGST amount as per GSTR-3B is less than the amount that we mentioned in our refund application because it is comparing refund amount wi

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018 which are consolidated details. Then how the department will come to know that part of September 2018 details pertained to July 2017. This refund application are verifying the IGST refund details with GSTR-3B. – Reply By KASTURI SETHI – The Reply = Mistake occurred in GSTR-3 B cannot be rectified unless it is reopened (de-freezed) ) by the Grievance Redressal cell) in Common Portal System. That is why mismatch between the two returns still stands. You know very well GSTR 3B is provisional and it is only a proof of payment of GST. So try to lodge your problem with Grievance Redressal Cell. In one of my client's case, GSTR 3 B return was re-opened by Grievance Redressal Cell. It was re-opened because technical snag occurred in the fun

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Goods and Services Tax – Started By: – saketh ch – Dated:- 13-11-2018 Last Replied Date:- 14-11-2018 – I have registered with GST and got GSTN number. But the GSTN wad cancelled within a month. Unfortunately, i have not noticed the same and continue the business without filing returns for span of 6 months.Now, my GSTN was activated after filing all returns and payments for the said period. Now my query is the business during the period is valid under GST rules.Pls clarify with relevant notifica

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Goods and Services Tax – Started By: – Kusalava InternationalLimited – Dated:- 13-11-2018 Last Replied Date:- 14-11-2018 – Supplies made to SEZ shown in GSTR-1 6A instead of GSTR-1 6B.when we apply for refund it is showing error message that these invoices are not availble in SEZ invoice list.How to correct this.Please guide – Reply By KASTURI SETHI – The Reply = Return stands frozen but you will not suffer loss because of this lapse. Such lapse is common. You may contact your jurisdictional GS

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Goods and Services Tax – Principles of Natural Justice – non-service of SCN – Cancellation of registration of dealer – there is no material to support that SCN was served through email – petitioner wa

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