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NOUSHAD ALLAKKAT Versus THE STATE TAX OFFICER (WC) , STATE GST DEPARTMENT, MANJERI, THE ASST. TAX OFFICER, SQUAD NO. VII, STATE GST DEPARTMENT, PALAKKAD, STATE TAX OFFICER, SQUAD NO. VII, STATE GST DEPARTMENT, PALAKKAD, STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, THIRUVANANTHAPURAM AND THE MANAGER, MALAPPURAM – 2018 (12) TMI 66 – KERALA HIGH COURT – TMI – Levy of penalty – Confiscation of goods – invocation of Section 129 of the Integrated Goods and Services Tax Act, 2017 – appellant obtained provisional release of the goods by furnishing bank guarantee for the applicable tax and penalty as spoken of under Section 129 of the Integrated Goods and Services Tax Act, 2017, as also bond for production of the goods and furnishing security for the value of the goods as spoken of under Rule 140(2) of the Central Goods and Services Tax Rules, 2017.
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Held that:- We notice from Section 129 that the confiscation proceedings under Section 130 would be possible only if the

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ished under Rule 140, in case of detention under Section 129 – the non-production of goods as noticed in the order is not a ground for imposition of penalty.
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Appeal disposed off. – WA. No. 2070 of 2018 Dated:- 8-11-2018 – MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Appellant : ADVS. SRI. HARISANKAR V. MENON AND SMT. MEERA V. MENON For The Respondent : SRI MOHAMMED RAFIQ SR GP JUDGMENT Vinod Chandran, J. The appellant, who obtained provisional release of the goods by furnishing bank guarantee for the applicable tax and penalty as spoken of under Section 129 of the Integrated Goods and Services Tax Act, 2017 (for short IGST Act ), as also bond for production of the goods and furnishing security for the value of the goods as spoken of under Rule 140(2) of the Central Goods and Services Tax Rules, 2017 (for short CGST Rules ), is before us aggrieved by the judgment of the learned Single Judge directing an appeal to be filed. 2. The learned Counsel for the appellant points o

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s passed under Section 129(3), according to the appellant, there was no direction to produce the goods. However, when the final order was issued, it contained two grounds for demanding tax applicable and imposing penalty. One of the grounds was violation as indicated herein above of the collection of CGST and SGST, when actually IGST should have been collected. The other ground alleged was that the goods were not produced under Section 140. The order was challenged before this Court in a Writ Petition, in which the learned Single Judge found that there was no reason to invoke the extra-ordinary jurisdiction under Article 226, especially when there was an appellate remedy available. 4. We would have normally not interfered with the refusal to exercise discretion by the learned Single Judge. However, we notice that the appellant had specifically challenged Rule 140(2) of the CGST Rules. In such circumstances, it would have been appropriate, even if refusing to interfere with the impugned

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r considering the provision requiring production of goods on a demand made; also directed expeditious finalization of adjudication proceedings, since the dealer would not be entitled to deal with the goods till adjudication is over. We reiterate for emphasis that it was a case in which there was a discrepancy noticed with respect to the documents accompanied and the actual goods in transport. We also would observe that there was no declaration in the said judgment that there is an imperative mandate to produce the goods when there is an order passed under sub-section (3) of Section 129. 6. We also have to notice yet another bench decision of this Court in W.A.No.509/2018 (Asst.STO v. Ibrahim K.K.), again by a Division Bench, ourselves, wherein the aforesaid question was considered. Madhu M.B. was also noticed and it was found so on the requirement for production of goods under Rule 140, as follows:- 5. The further contention raised by the learned Government Pleader is based on Rule 140

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such circumstances, we are of the opinion that release of the goods can be made on the petitioner furnishing a Bank Guarantee for the entire tax and penalty and also executing a bond as provided in Form GST INS 04 but however without any liability to produce the goods, which can be dealt with by the petitioner. The interim order is modified to the above extent. 7. We notice from Section 129 that the confiscation proceedings under Section 130 would be possible only if the dealer fails to pay the applicable tax and penalty imposed by an order under Section 129(3). Confiscation is hence a coercive measure to ensure payment of the tax and penalty levied on a delinquent dealer; who otherwise is at threat of loosing the goods itself. Confiscation is not an automatic consequence ensuing from detention and an order passed under Section 129(3), of there being a contravention of the provisions of the Act or rules made thereunder. We would not look at other situations, wherein confiscation is ma

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ivalent to the value of the goods which could be invoked in lieu of the confiscation proceedings. 9. We were also invited to look into Ext.P7 order by the learned Senior Government Pleader and his submission is that there is only a statement that the dealer had not produced the goods on a demand made and that is not a ground for which there is a penalty imposed. In any event, we hold that it cannot be a ground for imposition of a penalty and the other grounds as found in the order for imposition of penalty could be challenged before the statutory authority. Hence, we only observe that the production of goods under Rule 140 is only for invocation of confiscation proceedings, which would not be necessary if the security equivalent to the value of the goods is furnished under Rule 140, in case of detention under Section 129. With the above observation, we dispose of the Writ Appeal, confirming the order of the learned Single Judge refusing to exercise discretion under Article 226 in inter

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GST – States – G.O. Ms. No. 57 – Dated:- 8-11-2018 – GOVERNMENT OF PUDUCHERRY COMMERCIAL TAXES SECRETARIAT (G.O. Ms. No. 57, Puducherry, dated 8th November 2018) NOTIFICATION In exercise of the powers conferred by section 164 of the Puducherry Goods and Services Tax Act, 2017 (Act No. 6 of 2017), the Government of Puducherry hereby makes the following rules further to amend the Puducherry Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Puducherry Goods and Services Tax (Thirteenth Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 30th day of October, 2018. 2. In the Puducherry Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be inserted, namely:- 83A. Examination of Goods and Services Tax Practitioners.- (1) Every person referred to in clause (b) of sub-rule (1) of rule 83 and who is enrolled as a goods and services tax practitioner under

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

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

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NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal. (13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons. Explanation:- For the purposes of this sub-rule, the expressions- (a) jurisdictional Commissioner means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST PCT-1 has been selected as Centre, or the Commissioner of State Tax if the enrolling authority in FORM GST PCT-1 has been selected as State; (b) NACIN means as notified by notification issued vide F.No.3240/CTD/GST/2018/5, dated 28.05.2018. ANNEXUR

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ws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01. (2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be uploaded on the common portal in FORM GST DRC-08A and Part II of Electronic Liability Register in FORM GST PMT-01 shall be updated accordingly. . 4. In the said rules, in FORM GST REG-16,- (a) against serial number 7, for the heading, the following heading shall be substituted, namely:- In case of

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ring the intervening period (i.e. from the date of registration to the date of application for cancellation of registration). . 5. In the said rules, in FORM GSTR-4, in the Instructions, for Sl. No. 10, the following shall be substituted, namely:- 10. Information against the Serial 4A of Table 4 shall not be furnished. . 6. In the said rules, for FORM GST PMT-01 relating to Part II: Other than return related liabilities , the following form shall be substituted, namely:- Form GST PMT-01 [See rule 85(1)] Electronic Liability Register of Registered Person (Part-II: Other than return related liabilities) (To be maintained at the Common Portal) Reference No.:- GSTIN/Temporary Id- Date:- Name (Legal)- Trade name, if any- Period- From …to… (dd/mm/yyyy) Stay status- Stayed/Un-stayed Act – Central Tax/State Tax/UT Tax/Integrated Tax/CESS/All (Amount in Rs.) Sr.No. Date(dd/mm/yyyy) Reference No. Tax Period, if applicable Ledger used for dis-charging liability Description Type of T

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balance may still be positive. 5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer. 6. The closing balance in this part shall not have any effect on filing of return. 7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules. 8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. Debit and credit entry will be created simultaneously. . 7. In the said rules, in FORM GST APL-04, after serial number 9, and the Table relating thereto, the following shall be inserted, namely:- 10. Details of IGST Demand Place of Supply (Name of State/UT) Demand Tax Interest Penalty Other Total 1 2 3 4 5 6 7 . Disputed Amount Determined Amount 8. In the said rule

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t in Rs. in all Tables) Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act 20. Amount of demand paid under existing laws Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act 21. (19-20) Balance amount of demand proposed to be recovered under GST laws << Auto-populated >> Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act Signature Name Designation Jurisdiction To _______________ (GSTIN/ID) _________________ Name _______________ (Address) Copy to:- Note:- 1. In case of demands relating to short payment of tax declared in return, acknowledgement/reference number of the return may be mentioned. 2. Only recoverable demands shall be posted for recovery under GST laws. Once a demand has been created through FORM GST DRC-07A, and the status of the demand changes subsequently, the status may be amended through FORM GST DRC-08A. 3. Demand paid up to the date of uploa

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he demand ð State/UT ð Centre <<Auto>> 7 Old Registration No. << Auto, editable>> 8 Jurisdiction under earlier law <<Auto, editable>> 9 Act under which demand has been created <<Auto, editable>> 10 Tax period for which demand has been created <<Auto, editable>> 11 Order No. (original) <<Auto, editable>> 12 Order date (original) <<Auto, editable>> 13 Latest order No. <<Auto, editable>> 14 Latest order date <<Auto, editable>> 15 Date of service of the order <<Auto, editable>> 16 Name of the officer who has passed the order (optional) <<Auto, editable>> 17 Designation of the officer who has passed the order <<Auto, editable>> 18 Whether demand is stayed ðYes ð No 19 Date of stay order 20 Period of stay 21 Reason for updation <<Text box>> Part B – Demand details 22. Details of demand posted originally through Table 21 of

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2018 (11) TMI 459 – CESTAT CHENNAI – TMI – Demand of Interest – delay in payment of duty – delay for the reason that the agreement as well as the certificates issued by the TNEB for the clearance of poles, agreed upon by both sides, indicates the central excise duty – Held that:- The taxable event in the case of central excise duty is the clearance of goods. Therefore, even though the agreement or TNEB certificate included the central excise duty, the liability to pay the duty arises only at the time of clearance of goods / poles – demand of Interest is unsustainable – appeal allowed – decided in favor of appellant. – Appeal No. E/41095/2018 – Final Order No. 42784/2018 – Dated:- 7-11-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) Shri M

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d, the appellant filed appeal before Commissioner (Appeals) who upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Shri M.N. Bharathi submitted that the taxable event in the case of central excise duty is the clearance of goods. In the present case, the appellant has paid central excise duty whenever the goods have been cleared. The case of the department is that the appellant has to pay central excise duty at the point of agreement as well as when the TNEB has issued certificate for the poles indicating the central excise duty. It is submitted by him that when the goods have been cleared by the appellant, they had discharged the central excise duty and therefore there is no delay in payment of duty. That the dem

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d for the period July 2013 to October 2015. The demand of interest is made by the department alleging that there is delay in payment of duty for the reason that the agreement as well as the certificates issued by the TNEB for the clearance of poles, agreed upon by both sides, indicates the central excise duty. As rightly argued by ld. counsel for the appellant, the taxable event in the case of central excise duty is the clearance of goods. Therefore, even though the agreement or TNEB certificate included the central excise duty, the liability to pay the duty arises only at the time of clearance of goods / poles. For this reason, I find that the demand of interest is unsustainable and requires to be set aside, which I hereby do. The impugned

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2018 (11) TMI 460 – CESTAT CHENNAI – TMI – CENVAT Credit – input services – outward transportation of goods upto the buyer’s premises – Held that:- The issue has attained finality as per the decision of the Hon’ble Supreme Court in the case of Ultratech Cement Ltd. [2018 (2) TMI 117 – SUPREME COURT OF INDIA], where it was held that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer’s premises was not admissible – credit not allowed.
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Penalty – Held that:- There were several litigations pending before various High Courts and that the matter had reached the Hon’ble Supreme Court and being an interpretational, the penalty is unjustified.
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Appeal allowed in part. – Appeal No.

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nfirmed the demand, interest and imposed penalties. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Shri M.N. Bharathi submitted that the appellant has the responsibility to deliver the goods at the customers premises. Even as per the purchase order, the place of removal is the customers premises and the transaction is on FOR basis. Therefore, the input service is not confined to the premises within the factory gate and would therefore be extended to the buyer s premises. He relied upon the Board s Circular No. 97/8/2007-ST dated 23.8.2007. He also submitted that in the recent circular No. 1065/4/2018-CX dated 8.6.2018, the Board has clarified that if the goods are to be deliv

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3.2008. 4. Heard both sides. 5. The issue is whether the appellants are eligible for credit on outward transportation of goods upto the buyer s premises. The issue has attained finality as per the decision of the Hon ble Supreme Court in the case of Ultratech Cement Ltd. (supra). Although the ld. counsel has referred to various circulars of the Board, since the decision of the Hon ble Apex Court is binding, I am of the view that credit is not admissible. 6. The ld. counsel has argued that the issue was interpretational and had reached to the Hon ble Apex Court and therefore the penalty imposed is unwarranted. Taking note of the fact that there were several litigations pending before various High Courts and that the matter had reached the Ho

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BOSCH LIMITED Versus THE ASSISTANT STATE TAX OFFICER SQUAD NO. 12, STATE GOODS AND SERVICES TAX DEPARTMENT, KOLLAM, THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, GOVERNMENT, THIRUVANANTHAPURAM AND UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NEW DELHI – 2018 (11) TMI 517 – KERALA HIGH COURT – TMI – Detention of goods with vehicle – it is alleged that the consignment note does not contain the details of the vehicle used for the transport – Held that:- An identical issue decided in the case of RENJI LAL DAMODARAN, DAMU & SONS SALES CORPORATION VERSUS STATE TAX OFFICER, KOTTARAKKARA AND ASST. STATE TAX OFFICER, KARUNAGAPALLY [2018 (8) TMI 1145 – KERALA HIGH COURT], where it was held that It is directed to release the

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nt note, however, did not contain the details of the vehicle used for the transport. The vehicle and the goods detained under Section 129(1) of the SGST Act, the petitioner filed this writ petition. 2. In the writ petition, the petitioner sought the following reliefs: (i) to declare Rule 140 of the CGST/SGST Rules, to the extent to which it directs collection of security in the form of simple bond for the value of goods and bank guarantee equivalent to the amount of applicable tax, interest and penalty payable as a mandatory condition for the release of the goods detained under section 12993) of the Act as violative of Article 301 of the Constitution; (ii) issue a writ of certiorari, or any other appropriate writ, order or direction as this

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P.A. AZEEZ Versus THE STATE TAX OFFICER STATE GOODS AND SERVICE TAXES, PERUMBAVOOR, THE ASSISTANT COMMISSIONER OF STATE TAX, MUVATTUPUZHA, THE COMMISSIONER OF STATE TAX, THIRUVANANTHAPURAM, THE DEPUTY TAHSILDAR, MUVATTUPUZHA, THE VILLAGE OFFICER MULAVUR, MUVATTUPUZHA AND SRI. C.E. ALI, PERUMBAVOOR – 2018 (11) TMI 716 – KERALA HIGH COURT – TMI – Surety Bond – VAT registration – Effect of Withdrawal of sureties – discharge from liability of being surety – Rule 19(4) of the Kerala Value Added Tax Rules, 2005 – Held that:- Rule 19(2)(d) mandates that the bond should be in Form No.6 and that two sureties should sign it. If only one surety withdraws, then the bond remains with a single surety, though the Rule mandates it should contain two sureties. As seen from sub-rule (4), it does not provide for substitution of sureties. It only provides for the substitution of the bond, as one of many alternatives – In this case, the first bond has become unenforceable. If the Department's plea is to be

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d with P.A. Azeez, the petitioner, and Kathiru Pilla, as the two sureties. Later, Kathiru Pilla wanted to withdraw from being the surety. Therefore, he invoked Rule 19(4) of the Kerala Value Added Tax Rules, 2005. As seen from the record, even Azeez submitted the Ext.P4, dated 07.10.2014, declaring his intention that he too must be discharged from the liability of being a surety. Then Ali, the dealer, had to execute a new bond with two other persons as sureties. He did execute, but the Department claims that it was for a different purpose. So it asserts that there are two bonds. The Department, yet, maintains that Kathiru Pilla stood discharged from the obligation, but not Azeez. Is it so? We will answer. 2. Later, because of Ali s default, the Department wanted to invoke both the bonds: the one executed in 2011, in the which Azeez and Kathiru Pilla were the sureties; and the other, executed in 2014. So the Department served on Azeez the Exts. P5 and P6 notices. Aggrieved, he has filed

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nder Rule 19(4) of the Rules. 5. Dr. James accepts that Azeez, too, requested the authorities to discharge him from the liability. Though the Department informed Ali, she stresses, he has so far not come forward to execute a new bond. In this context, she contends that both the bonds could be pressed into service. In other words, Azeez cannot get absolved of his responsibility or liability because to replace him, Ali has produced no new bond with other sureties. 6. Heard Sri Aji V. Dev, the petitioner's counsel, and Dr. Thushara James, the learned Government Pleader. 7. Indeed, the facts are not in dispute. Azeez stood surety for Ali in 2011 and executed a bond under Section 17 of the Act, read with Rule 19 of the Rules. Evidently, he is one of the two sureties. Later, as the record reveals, both the sureties, that is Kathiru Pilla and Azeez, wanted to withdraw as the sureties. For whatever reason, Ali pressed the other surety's cause and volunteered to execute a new bond. And

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ever, be demanded from a dealer who applies for registration as a dealer under sub-section (5) of Section 6. (2) The security or additional security may be furnished by the dealer in any of the following ways, namely:- (a) . . . (b) . . . (c) . . . (d) executing a security bond for such amount in Form No.6 with two sureties, solvent enough for the amount assured and acceptable to the said authority; or (e) . . . (f) . . . (g) . . . (h) . . . (3) The security or additional security furnished shall be maintained in full so long as the registration certificate continues to be in force and may, in the event of default of payment of any tax or any other amount due under the Act be liable to adjustment towards such tax or other amount due, after due intimation to the dealer. (4) Where a person who stood as surety by signing the bond in Form 6 furnished under sub-rule (2) desires to withdraw from the bond, he shall duly serve on the dealer who had executed the bond and to the registering auth

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rceable. If the Department's plea is to be accepted-that is, the second bond is to meet the additional demand on the dealer-then sub-rule (4) of Rule 19 remains unanswered. For the discharge of Kathiru Pilla, the Department, in its own admission, has failed to take a new bond. In that event, with one surety's release and without notice to or the consent of the other surety, the first bond becomes unenforceable. The Rule is emphatic: if a surety notifies his intention to withdraw from the bond, neither the dealer nor, as it seems, the Department has an option. Within sixty days, the dealer must furnish new security in the manner specified under sub-rule (2). And the withdrawal will operate from the date the new security is furnished. 11. Even otherwise, Section 133 of the Contract Act may also come in the way of the Department s defence. Without the surety s consent, if the principal debtor and the creditor vary the contractual terms, then, that variation discharges the surety f

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GST – States – G.O. Ms. No. 56 – Dated:- 7-11-2018 – GOVERNMENT OF PUDUCHERRY COMMERCIAL TAXES SECRETARIAT (G.O. Ms. No. 56, Puducherry, dated 7th November 2018) NOTIFICATION In exercise of the powers conferred by section 148 of the Puducherry Goods and Services Tax Act, 2017 (Act No. 6 of 2017) (hereafter in this notification referred to as the said Act ), read with section 45 of the said Act and rule 81 of the Puducherry Goods and Services Tax Rules, 2017 (hereinafter referred to as the said

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2019 (1) TMI 231 – KERALA HIGH COURT – TMI – Detention of goods – release on furnishing a bank guarantee – Held that:- The goods detained shall be released to the petitioner on its furnishing the bank guarantee – petition disposed off. – WP(C).No. 36238 of 2018 Dated:- 7-11-2018 – Mr. Dama Seshadri Naidu, J. By adv. Sri.Tomson T.Emmanuel For The Appellant. Other Present: GP. Dr. Thushara James JUDGMENT The petitioner's goods have been detained under Ext.P7. The petitioner seeks their rele

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Goods and Services Tax – Collection of tax at source by Tea Board of India – determination of value – collection of TCS from the sellers (i.e. tea producers) and collection of TCS from the auctioneers – TMI Updates – Highlights

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Goods and Services Tax – Scope of principal and agent relationship under Schedule I of CGST Act, 2017 in the context of del-credere agent (DCA) – CBIC clarifies three issues. – TMI Updates – Highlights

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Goods and Services Tax – Levy of GST – Valuation – applicant is not pure agent – Toll charges paid are not to be excluded from the value of supply under Rule 33. GST shall on the entire value of the s

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Goods and Services Tax – Educational Institution or not – introduction of the IIM Act wef 31/01/2018 – The Applicant is an ‘educational institution’ – Benefit of exemption is available to the applicant. – TMI Updates – Highlights

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Goods and Services Tax – Levy of GST – food supplied to SEZ area to employees of company – employees can neither be treated as SEZ developer nor as SEZ unit – Benefit of Zero rated supply not available. – TMI Updates – Highlights

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Goods and Services Tax – Detention of goods with vehicle – delay in transporting the consignment after filing E-way bill due to flood – revenue ought to have taken a lenient view-rather a practical view. – TMI Updates – Highlights

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 6-11-2018 – Goods and Services Tax (GST), introduced from July 1, 2017 is more than thirteen months old now but has resulted in operational and implementation disruptions affecting all stakeholders. GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council is however, making regular changes to fix the anomalies and hardships faced by taxpayers. 30 meetings of GST Council have been held till 31st October, 2018. Taxpayers have already challenged various provisions of GST laws and rules framed thereunder with our 200 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. Recently, CBIC has issued directions to be officers to defend the writs. Further, we have now rulings from Authority for Advance Ru

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by it on production of payment receipt of GST towards the Goods and Services on the respective item executed under the tender. The assessee had completed the work after the implementation of GST regime and paid the GST at the rate of 18 per cent. It made several representations before the Water Authority for payment of the bill amount and the GST already deposited, but no response. The assessee filed writ petition praying that the Water Authority be directed to honour its bill and to pay the GST already deposited by it. The court observed that so long as the Water Authority does not have a case that the assessee has not paid the GST amount or that it has not completed the works in question satisfactorily, it would not be reasonable on its part to keep these claims pending ad infinitum. A decision in this regard has to be taken by the Competent Authority imperatively and without any further delay. In view of the aforesaid, the Court held that water authority was to be directed to immed

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f another firm for purpose of obtaining registration under Kerala Value Added Tax Act and thus registration was granted w.e.f. 12-8-2017 because of which assessee was unable to comply with statutory requirements in relation to business for period from 1-7-2017 to 12-8-2017, authorities were directed to grant registration to petitioner from the date i.e., 1-7-2017 when GST statute came into force. In Indo Alusys Industries Ltd. v. Commissioner of Central Excise, Alwar (2018) 6 TMI 78 (Cestat, New Delhi); where the assessee was engaged in the manufacture of Aluminium Hollow Sections . It sold the said item and paid the duty on the value. Subsequently, the assessee raised supplementary invoice on account of price variation and paid the duty. However, it did not pay interest on delayed payment of duty on account of supplementary invoice. The Adjudicating Authority held that the assessee was liable to pay interest on delayed payment of duty on account of supplementary invoice. The Commissio

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of section 4 of the Central Excise Act whatever the transaction value is agreed between the parties at the time of clearance is relevant for section 11A and even for the purpose of section 11AB the expression 'ought to have been paid' would mean the time when the price is agreed upon by the seller and the buyer. In other words, the right of the seller to receive the revised price crystallized only when the buyer agrees to sanction the same and only at that time can liability to pay duty, if at all, on the revised price arise. Since both the parties were not aware of escalated price or possibility of escalation at the time the goods were removed, the supplementary invoice could not be taken as a ground to call the said duty paid as the short levied. Resultantly, it was held that no question of paying the same along with interest arises and as such, the appeal was allowed. The order of the Commissioner (Appeals) confirming the liability of the assessee to pay interest was theref

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GST – States – 100/GST-2 – Dated:- 6-11-2018 – HARYANA GOVERNMENT EXCISE AND TAXATION DEPARTMENT Notification The 6th November, 2018 No.100/GST-2.- In exercise of the powers conferred by sub-section (3) of section 1 read with section 51 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), the Governor of Haryana, on the recommendations of the Council, hereby makes the following further amendment in the Haryana Government, Excise and Taxation Department, notification No. 86/GST-2, dated

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GST – States – 099/GST-2 – Dated:- 6-11-2018 – HARYANA GOVERNMENT EXCISE AND TAXATION DEPARTMENT Notification The 6th November, 2018 No. 99/GST-2.- In exercise of the powers conferred by section 164 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), the Governor of Haryana, hereby makes the following rules further to amend the Haryana Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Haryana Goods and Services Tax (Fifteenth Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 30th October, 2018. 2. In the Haryana Goods and Services Tax Rules, 2017 (hereinafter called the said rules), after rule 83, the following rule shall be inserted, namely:- 83A. Examination of Goods and Services Tax Practitioners.-(1) Every person referred to in clause (b) of sub-rule (1) of rule 83 and who is enrolled as a goods and services tax practitioner under sub-rule (2) of the said rule, shall pass an examination as per su

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

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

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by NACIN on the official websites of the Board, NACIN and common portal. (13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons. Explanation :- For the purposes of this sub-rule, the expressions – (a) jurisdictional Commissioner means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST PCT-1 has been selected as Centre, or the Commissioner of State Tax if the enrolling authority in FORM GST PCT-1 has been selected as State; (b) NACIN means as notified by Haryana Government, Excise and Taxation Department, notification No. 55/GST-2, dated the 28th May, 2018. Annexure-A [See sub-rule7] Pattern and Syll

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penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01. (2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be uploaded on the common portal in FORM GST DRC-08A and Part II of Electronic Liability Register in FORM GST PMT-01 shall be updated accordingly. . 4. In the said rules, in FORM GST REG-16,- (a) against serial number 7, for the heading, the following heading shall be substituted, namely:- In case of transfer, merger of business and ch

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from the date of registration to the date of application for cancellation of registration). . 5. In the said rules, in FORM GSTR-4, in the Instructions, for serial number 10, the following shall be substituted, namely:- 10. Information against the Serial 4A of Table 4 shall not be furnished. . 6. In the said rules, for FORM GST PMT-01 relating to Part II: Other than return related liabilities , the following form shall be substituted, namely:- Form GST PMT -01 [See rule 85(1)] Electronic Liability Register of Registered Person (Part-II: Other than return related liabilities) (To be maintained at the Common Portal) Reference No.- GSTIN/Temporary Id – Date- Name (Legal) – Trade name, if any – Stay status – Stayed/Un-stayed Period – From -To (dd/mm/yyyy) Act – Central Tax/State Tax/UT Tax/Integrated Tax/CESS /All (Amount in Rs.) Serial Number Date (dd/mm/yyyy) Reference No. Tax Period, if applicable Ledger used for discharging liability Description Type of Transaction* Amount debited/cre

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ositive. 5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer. 6. The closing balance in this part shall not have any effect on filing of return. 7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules. 8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. Debit and credit entry will be created simultaneously. . 7. In the said rules, in FORM GST APL-04, after serial number 9, and the Table relating thereto, the following shall be inserted, namely:- 10. Details of IGST Demand Place of Supply (Name of State/UT) Demand Tax Interest Penalty Other Total 1 2 3 4 5 6 7 . Disputed Amount Determined Amount 8. In the said rules, after FORM GST DRC-

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Amount in Rs. in all Tables) Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act 20. Amount of demand paid under existing laws Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act 21. (19-20) Balance amount of demand proposed to be recovered under GST laws << Auto-populated >> Act Tax Interest Penalty Fee Others Total 1 2 3 4 5 6 7 Central Acts State/UT Acts CST Act Signature Name Designation Jurisdiction To _______________ (GSTIN/ID) -Name _______________ (Address) Copy to – Note – 1. In case of demands relating to short payment of tax declared in return, acknowledgement / reference number of the return may be mentioned. 2. Only recoverable demands shall be posted for recovery under GST laws. Once, a demand has been created through FORM GST DRC-07A, and the status of the demand changes subsequently, the status may be amended through FORM GST DRC-08A. 3. Demand paid up to the date of uploading the

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ating the demand ð State /UT ð Centre <> 7. Old Registration No. << Auto, editable>> 8. Jurisdiction under earlier law <> 9. Act under which demand has been created <> 10. Tax period for which demand has been created <> 11. Order No. (original) <> 12. Order date (original) <> 13. Latest order no. <> 14. Latest order date <> 15. Date of service of the order <> 16. Name of the officer who has passed the order (optional) <> 17. Designation of the officer who has passed the order <> 18. Whether demand is stayed ð Yes ð No 19. Date of stay order 20. Period of Stay 21. Reason for updation <> Part B – Demand

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2018 (11) TMI 906 – CESTAT HYDERABAD – TMI – Delay in payment of excise duty – invocation of Rule 8 (3A) of Central Excise Rules, 2002 – confiscation of goods so removed under Rule 25(1)(a) of the Central Excise Rules, 2002 – case of appellant is that that Rule 8(3A) has already been read down by the Hon’ble High Court of Gujarat and hence the demand is not sustainable – Held that:- The judgment of the Hon’ble High Court in the case of Indsur Global Ltd. has been appealed against and has been stayed by the Hon’ble Apex Court as reported at [2014 (11) TMI 1101 – SUPREME COURT] – The stay granted by the Hon’ble Apex Court leaves me with no option was to hold that the ratio of the judgment of the Hon’ble High Court does not apply.
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Considering the overall facts, the quantum pf penalty is reduced – appeal allowed in part. – Appeal No. E/30484/2018 – A/31465/2018 – Dated:- 6-11-2018 – Mr. P. Venkata Subba Rao, Member (Technical) Shri D. Viswanathan, Consultant for the Appellant. Shri

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(1)(a) for contravention of Rule 8(3A) of the Central Excise Rules, 2002. After following due process, the lower authority imposed a penalty of ₹ 50,000/- on the appellant for removal of excisable goods in contravention of the provisions of Rule 8(3A) of the Central Excise Rules, 2002 read with Rules 4(1) and 6 of the Central Excise Rules, 2002. Aggrieved, the appeal preferred before the First Appellate Authority who, vide the impugned order, upheld the decision of the lower authority and rejected the appeal. 2. Learned Consultant for the appellant submits that the only dispute is with respect to the imposition of penalty under Rule 25 for violation of Rule 8(3A) of the Central Excise Rules, 2002. He would submit that these Rule 8(3A) of Central Excise Rules 2002, has been read down by the Hon ble High Court of Gujarat in the case of Indsur Global Ltd., Vs. Union of India [2014 (12) TMI 585 – Gujarat High Court]. Relying on this judgment of Hon ble High Court of Gujarat, the fol

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ble High Court of Gujarat does not apply any longer. He also submits that in the case laws which were cited including the decision by the CESTAT-Hyderabad Bench in the case of M/s Sri Durga Packing Industries the fact that the Hon ble Apex Court has stayed the judgment of the Hon ble High Court of Gujarat was not brought to the notice of the Bench and hence was not considered. 4. I have considered the arguments on both sides and perused the records. There is no dispute regarding the facts of the case that there was violation of Rule 8(3A) of the Central Excise Rules which rendered the goods is liable to confiscation and the appellant is liable to penalty under Rule 25 of the Central Excise Rules, 2002. The only point on which the Learned Consultant argues is that Rule 8(3A) has already been read down by the Hon ble High Court of Gujarat and hence the demand is not sustainable. Learned Departmental Representative rightly points out that this decision has been stayed by the Hon ble Supr

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2018 (11) TMI 976 – CESTAT HYDERABAD – TMI – Interest on CENVAT Credit reversed – case of appellant is that they have had not utilized the same – Held that:- The records as verified by the Commissioner put so other wise. The Learned Counsel for the appellant also agrees that the disputed amount had been utilized therefore interest is liable to be paid on the disputed amount.
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Penalty u/s 78 – Held that:- It is not in dispute that the appellant had wrongly availed CENVAT credit and utilized the same and thereby evaded payment of service tax and this was noticed only in audit records by the Departmental Officers therefore penalty is liable to be imposed under Section 78 – however, the quantum of penalty reduced to 50%.
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Appeal allowed in part. – Appeal No. ST/30844/2018 – A/31466/2018 – Dated:- 6-11-2018 – Mr. P. Venkata Subba Rao, Member (Technical) Shri Y. Sreenivasa Reddy, Advocate for the Appellant. Shri V.R. Pavan Kumar, Superintendent (AR) for the Respondent. ORDER Per:

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of CENVAT credit and had reversed the same along with interest except to the extent of the above two credits of ₹ 42,750/- and ₹ 4,452/-. The lower authority in this Order-in- Original discussed the facts in detail and ordered recovery of these two amounts along with appropriate interest and imposed a penalty equal to these two amounts under Section 78 of Finance Act, 1994 for irregular availment of CENVAT credit with intent to evaded payment of tax. Aggrieved, the appellant preferred an appeal before the First Appellate Authority who dismissed their appeals and upheld the Orderin- Original of the lower authority. Hence this appeal. 4. Learned Counsel for the appellant submits that the appellant was a small time operator without adequate knowledge of the service tax procedures and CENVAT Credit Rules and therefore had taken CENVAT credit wrongly on several inputs including the two amounts in dispute. On being pointed he had reversed the amounts along with interest except th

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as applicable during the relevant period only 50% of the service tax amount is liable to be imposed as a penalty and they may be given the benefit of this proviso. 5. Learned Departmental Representative agrees with the facts of the case narrated by the Learned Counsel and produces before the Bench a letter from the Office of the Commissioner of Central Tax, CGST Commissionerate, Guntur confirming that they had verified the records of the appellant the wrongly availed the CENVAT credit of ₹ 42,750/- and ₹ 4,452/- had been utilized by the assessee for payment of tax liabilities during the period and they had not maintained any credit balance equivalent to the irregular credit taken during the period in dispute. In fact, the assessee had shown zero closing balance of service tax in their ST-3 returns. He, therefore, submits that the appellant was liable to pay interest as they had wrongly utilized the CENVAT credit. He further argues that in so far as these two amounts were c

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amount. Insofar as the penalty under Section 78 is concerned, it is not in dispute that the appellant had wrongly availed CENVAT credit and utilized the same and thereby evaded payment of service tax and this was noticed only in audit records by the Departmental Officers therefore penalty is liable to be imposed under Section 78. However as these facts came into light only during the records already maintained by the appellant by in their books of accounts proviso of Section 78 as applicable during the relevant period applies in its full force and the penalty is liable to be reduced to 50% of the disputed amount. 7. The impugned order is modified to the extent of the reducing the penalty under Section 78 to 50% of the duty evaded. The appeal is disposed of as herein above. (Operative portion of this order was pronounced in open court on conclusion of hearing) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxmanagementindia

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2019 (2) TMI 497 – CESTAT HYDERABAD – TMI – Refund of SAD – N/N. 102/2007-Cus dated 14.09.2007 – applicable rate of VAT is Nil – sale of imported goods on payment of nil rate of VAT – Held that:- On identical issue the principal Bench of Tribunal in the case of Gazal Overseas [2015 (12) TMI 427 – CESTAT NEW DELHI] relying on the CBEC circular No. 06/2008 dated 28.04.2008 (which binding on the Departmental officers) held that the SAD refund is available even when the appropriate rate of VAT payable is nil – refund allowed – appeal dismissed – decided against Revenue. – Appeal Nos. C/31010 & 31099/2018 – A/31557-31558/2018 – Dated:- 6-11-2018 – Mr. P. Venkata Subba Rao, Member (Technical) Shri V.R. Pavan Kumar, Shri Guna Ranjan, Superintendent (ARs) for the Appellant (s). None for the Respondent (s). ORDER Per: P. Venkata Subba Rao These two appeals and the corresponding stay petitions have been filed by the Revenue against the impugned orders of the First Appellate Authority as follows

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subject to VAT at the time of import, SAD is levied on them so as to provide a level playing field to domestic producers of the goods. However, after importing the goods, if the importer sells them on payment of appropriate VAT/sales tax, they are entitled to the refund of the SAD in terms of Notification No. 102/2007-Cus dated 14.09.2007. While the rate of SAD unit is 4%, to claim SAD refund VAT as applicable for the goods in question has to be paid which could be more or less than 4%. In this case the respondent s goods were exempted from VAT and as such nil rate of duty VAT was applicable and they had sold the goods and claimed refund of SAD. The refund applications were rejected by the lower authority holding that they had not fulfilled the conditions of the Notification No. 102/2007-Cus dated 14.09.2007 inasmuch as they had not paid any VAT or sales tax on the goods sold and therefore the exemption notification does not apply to them. 4. Aggrieved, the respondent herein preferred

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the word appropriate with respect to tax does not nil therefore in the case in hand the nil rate of VAT should not be considered as appropriate rate of VAT paid. ii) The Hon ble Tribunal while deciding the case of Gazal Overseas had not considered the judgment of the Hon ble Supreme Court in the case of Dhiren Chemical Industries (supra). In the case of Nikhil Kumar Vs. Commissioner of Customs [2005 (187) ELT 6 (Cal.)] the Hon ble High Court of Calcutta also held that the term appropriate does not include nil . iii) Even, if more than one interpretation is possible the exemption notification must be strictly construed and therefore the benefit of the exemption notification No. 102/2007 should not have been given to the respondent herein. Therefore the orders of the first appellate authority may be set aside. 6. I have considered the arguments and perused the records. The short point to be decided is whether the benefit of SAD in terms of Notification No. 102/2007-Cus is available to im

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Goods and Services Tax – TDS under GST – public sector undertaking – supply from one PSU to another PSU exempted from applicability of provisions relating to TDS – TMI Updates – Highlights

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Goods and Services Tax – The quit rent / lease rent paid to Kerala Government on the land used for agricultural purpose ie, Coffee Plantation be classified under HSN 9986 and eligible for exemption under GST. – TMI Updates – Highlights

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Goods and Services Tax – ‘Classic Malabar Parota’ and ‘Whole Wheat Malabar Parota’ classified under Schedule III of GST Laws, vide Heading 2106 ‘Food preparations not elsewhere specified or included’

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Goods and Services Tax – The supply of medicines, consumables and implants used in the course of providing health care services to in-patients for diagnosis or treatment are naturally bundled and are

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Goods and Services Tax – Recovery of GST dues from the debtors – extreme financial hardship – the revenue shall not compel ONGC or any other debtor of the petitioner to deposit any amount with the dep

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