Author: admin_gst

Goods and Services Tax – Goods and Services Tax Council – Journey so far – GST Council met 30 times, took 918 decisions since its Constitution – 96% of decisions already been implemented through 294 Notifications – TMI Updates – Highlights

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Goods and Services Tax – Started By: – Bibhuti Dash – Dated:- 29-10-2018 Last Replied Date:- 30-10-2018 – Dear Experts, Please guide me on how to do amendment in credit notes for wrong GST no. Currently we can amend Credit notes, but the amending GSTN in credit notes is freezed. Thanks in advance ! – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = You may contact the portal for remedy. – Reply By KASTURI SETHI – The Reply = Grievances Redressal Cell/ Help Desk may unfreeze to resolve your problem. In one of my client's case GSTR 3 B return (Filed) was opened by the system and I refiled the return but in this case there was snag in common portal system. There was no fault of assessee. In your case error is on your part. But I think the

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Goods and Services Tax – Started By: – rajeshh rawat – Dated:- 29-10-2018 Last Replied Date:- 31-10-2018 – kindly confirm GST rate on marble statues with natification – Reply By KASTURI SETHI – The Reply = In my view, marble statuette is covered under Chapter/Heading/Sub-heading 2515 20 90 attracting GST 5% (CGST 2.5% and SG​​​​​​IST 2.5%. – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = Kasthuri sir correctly told. – Reply By Alkesh Jani – The Reply = Dear Experts, Can we classify the marble statues under 44,68, 83 Sl.No. 92A of Notification No.1/2017 with corresponding rate of 6% Plus 6% (CGST Plus SGST)? Thanks in Advance. – Reply By KASTURI SETHI – The Reply = Dear Alkesh Jani, Let us discuss. Don&

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lar (including square) shape . Therefore, statue cannot fall within the ambit of blocks or slabs. Moreover, statuettes is mentioned at Chapter 44, 68 or 83. Now, as Ch. 44 stands for woods, hence not applicable in the instant case, Sl.No.177E clearly states other than statues for Chapter 6802 and Chapter 8306 is with regards to base metals, hence not applicable in the instant case. For GST purpose, based on the above, I am of the view that the marble statues can be classified at Sl.No. 453 Any Chapter Goods which are not specified in Schedule I, II, IV, V or VI and hence attracts 18% GST. Here, it is pertinent to note that statues of marble are imported under Chapter heading 6802. Thanks, With regards, – Discussion-Forum – Knowledge Sharing

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Goods and Services Tax – GST – Dated:- 29-10-2018 – Goods and Services Tax Council – Journey so far; GST Council met 30 times, took 918 decisions since its Constitution; 96% of decisions already been implemented through 294 Notifications Till date, the Goods and Services Tax (GST) Council has taken 918 decisions related to GST laws, rules, rates, compensation and taxation threshold etc. More than 96% of the decisions have already been implemented through 294 Notifications issued by the Central Government and the remaining are under various stages of implementation. Almost equal number of corresponding SGST Notifications have been issued by each State. The GST Council Members under the Chairpersonship of the Union Finance Minister have spen

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Goods and Services Tax – Large scale of bogus billing activities – Validity of provisional orders of attachment – By freezing the petitioner s bank accounts and attaching the properties, the petitione

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Goods and Services Tax – Started By: – Puttaraj T – Dated:- 29-10-2018 Last Replied Date:- 30-10-2018 – We have filed November-2017 GSTR1 return but clerical error the B2B invoice we have shown in the B2C, now we want to change it for B2B. GSTR1 for the month of September-2018 is filed, when I try to add B2C amendment in October-2018 it s not showing FY.2017-18. Kindly suggest me to make amendment – Reply By SHIVKUMAR SHARMA – The Reply = No.You can not amend GSTR-1 For the period July 2017 to

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2018 (10) TMI 1614 – NATIONAL ANTI-PROFITEERING AUTHORITY – 2018 (19) G. S. T. L. 509 (N. A. P. A.) – Profiteering – benefit of reduction in the GST rates not passed to customers – Amway Business Owners (ABOs). – Rule 129 (6) of the Central Goods & Services Tax (CGST) Rules, 2017 – Held that:- The Applicant No. 1 had not supplied details of the products or the invoices vide which he had bought them from the Respondent inspite of repeated requests made by the Applicant No. 2 and therefore, the investigation conducted in the allegation levelled by the Applicant No. 2 against the Respondent could not establish profiteering for want of cogent and reliable evidence and hence no violation of the provisions of Section 171 of the CGST Act 2017 has been found in this case – There are no violation of provisions – application dismissed. – 12/2018 Dated:- 29-10-2018 – SH. B.N. SHARMA, CHAIRMAN, SH. J. C. CHAUHAN, TECHNICAL MEMBER, SMT. R. BHAGYADEVI, TECHNICAL MEMBER, SH. AMAND SHAH, TECHNICAL M

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Report has stated that vide emails dated 09.05.2018, 21.05.2018 and 09.07.2018, the Applicant No. 1 at the available Email Id, was requested to provide the name and address of the supplier against whom the complaint was made, and to provide the pre-GST and post-GST amount charged by the supplier and the invoices evidencing the same, however no reply was received from the Applicant No. 1. He has also stated that the above Applicant was also contacted on the phone number available in his application and he had provided a new email id, on which he was again requested to send the details however, no reply was received from him. The Applicant No. 2 has further stated that the Respondent was a direct selling Company with more than 5,50,000 ABOs and was selling about 140 products covering five categories and had nationwide presence with over 130 sale offices, 4 regional mother warehouses, 3 regional hubs and 34 city warehouses. The Applicant No. 1 in his report has held that the Applicant No

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ainst him under section 171 of the CGST Act, 2017 as there was no specific evidence of profiteering against him. Amongst other things, he has also stated that the above Applicant had also recommended that no meaningful investigation could be conducted against him. He has further stated that in view of the report submitted by the Applicant No. 2, the allegation of profiteering had not been proved against him and therefore the present proceeding should be dropped. 5. We have carefully considered the Report filed by the Applicant No. 2 as well as the submissions made by the Respondent and it is revealed from the facts stated above that the Applicant No. 1 had not supplied details of the products or the invoices vide which he had bought them from the Respondent inspite of repeated requests made by the Applicant No. 2 and therefore, the investigation conducted in the allegation levelled by the Applicant No. 2 against the Respondent could not establish profiteering for want of cogent and rel

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2018 (10) TMI 1615 – NATIONAL ANTI-PROFITEERING AUTHORITY – 2018 (19) G. S. T. L. 90 (N. A. P. A.) – Profiteering – restaurant service – benefit of reduction of tax from 18% to 5% not passed to customers – it was also alleged that Respondent was illegally profiteering by appropriating the amount of reduction of tax by fleecing the poor customers as he was denying them the benefit of reduction – Held that:- The investigation conducted in the matter by the Applicant No. 2 against the Respondent No. 1 could not establish profiteering for want of credible evidence and hence no violation of the provisions of Section 171 of the CGST Act 2017 could be established – there are no violation of the provisions of Section 171 of the CGST Act, 2017 – application dismissed. – 11/2018 Dated:- 29-10-2018 – SH. B.N. SHARMA, CHAIRMAN SH. J. C. CHAUHAN, TECHNICAL MEMBER SMT. R. BHAGYADEVI, TECHNICAL MEMBER SH. AMAND SHAH, TECHNICAL MEMBER None for the Applicant No. 1. Sh. Manoranjan Singh, Assistant Com

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g by appropriating the amount of reduction of tax by fleecing the poor customers as he was denying them the benefit of reduction and therefore action should be taken against him. 2. In his report dated 30.07.2018, the Applicant No. 2 has stated that vide his emails dated 04.05.2018, 21.05.2018 and 18.07.2018, the Applicant No. 1 was requested to provide the pre and post GST invoices of the products sold by the Respondent No. 1 and the details like name and address of the concerned outlet being run by the above Respondent regarding which the allegation of profiteering had been made so that the matter could be investigated, however, no reply was received from him. He has also stated that on preliminary enquiry from the internet, it was gathered that there were more than 700 outlets in India of the KFC brand which was a subsidiary of US based M/S Yum! Brand Inc. . The Applicant No. 1 has further stated that the above Brand was operating around 300 stores in northern India through M/s. Dev

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. 1 did not appear. The Applicant No. 2 was represented by Sh. Manoranjan Singh, Assistant Commissioner and the Respondent No. 1 was represented by Sh. Dharmender Gupta, Director (Tax). The Respondents No. 2 and 3 also did not appear. 4. The Respondent No. 1 vide his written submission dated 16.08.2018 and 06.09.2018 has stated that the Applicant No. 2 in his report dated 30.07.2018 had not recommended initiation of proceedings against him under section 171 of the CGST Act, 2017 as there was no specific evidence of profiteering against him. He has also stated that the above Applicant had also recommended that no meaningful investigation could be conducted against him. He has further stated that in view of the report submitted by the Applicant No. 1, the allegation of profiteering had not been proved against him and therefore the present proceeding should be dropped. 5. We have carefully considered the Report filed by the Applicant No. 2 as well as the submissions made by the Respondent

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2018 (10) TMI 1621 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 625 (All.) – Release of detained goods – delayed submission of E-Way bill – Held that:- E-way bill could not be down loaded but it was subsequently produced after down loading it on 24.10.2018 which is valid upto 2nd November 2018.
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It is directed for the release of the goods of the petitioner and the vehicle on deposit of the proposed amount of tax of ₹ 28,000/- and ₹ 25,000/- towards penalty – petition disposed off. – WRIT TAX No. – 1397 of 2018 Dated:- 29-10-2018 – Pankaj Mithal And Ashok Kumar JJ. For the Petitioner : Aloke Kumar For the Respondent : C.S.C.,A.S.G.I. ORDER U.P. GST on the value of the goods for the purposes of release of the goods. The s

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2018 (10) TMI 1622 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. J76 (All.) – Validity of seizure order – Section 67(2) of the U.P. Goods and Services Tax Act, 2017 – apart from directing for the deposit of the Central G.S.T., State G.S.T. and penalty under both the Acts, an equivalent amount of fine has also been imposed under both the Acts – Held that:- The imposition of penalty and fine simultaneously amounts to double jeopardy and that the interest of the petitioner be protected by releasing deemed reasonable conditions which were deemed proper by the court.
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We direct the Standing Counsel as well as counsel for the Tax Department to seek instructions and file counter affidavit within a month. Two weeks thereafter are allowed to

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ng satisfied that the remedy of appeal may not be available to the petitioner, a writ petition has already been entertained, therefore, we have heard the counsel on merits. On the merits of the order dated 21.08.2018 passed for the confiscation of the goods it is submitted that apart from directing for the deposit of the Central G.S.T., State G.S.T. and penalty under both the Acts, an equivalent amount of fine has also been imposed under both the Acts. The imposition of penalty and fine simultaneously amounts to double jeopardy and that the interest of the petitioner be protected by releasing deemed reasonable conditions which were deemed proper by the court. In view of the aforesaid facts and circumstances, we direct the Standing Counsel a

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GST – States – 26/2018-GST – Dated:- 29-10-2018 – GOVERNMENT OF ASSAM OFFICE OF THE COMMISSIONER OF TAXES, ASSAM KAR BHAWAN DISPUR, GUWAHATI-6 CIRCULAR NO. 26/2018-GST Dated Dispur the 29th October, 2018. Subject : Clarifications of issues under GST related to casual taxable person and recovery of excess Input Tax Credit distributed by an Input Service distributor – Reg. No. CT/GST-15/2017/197.- Representations have been received seeking clarification on certain issues under the GST laws. The same have been examined and the clarifications on the same are as below: Sl.No Issue Clarification 1. Whether the amount required to be deposited as advance tax while taking registration as a casual taxable person (CTP) should be 100% of the estimated

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

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

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GST – States – 25/2018-GST – Dated:- 29-10-2018 – GOVERNMENT OF ASSAM OFFICE OF THE COMMISSIONER OF TAXES, ASSAM KAR BHAWAN DISPUR, GUWAHAT1-6 CIRCULAR NO. 25/2018-GST Dated Dispur the 29th October, 2018. Subject : Reg. No. CT/GST-15/2017/196. – Various representations have been received seeking clarifications on various issues in relation to processing of the applications for cancellation of registration filed by taxpayers in FORM GST REG-16. In order to clarify these issues and to ensure uniformity in the implementation of the provisions of law across the field formations, the Commissioner, in exercise of its powers conferred by section 168 of the Assam Goods and Services Tax Act, 2017 (hereinafter referred to as the Assam GST Act ), hereby clarifies the issues as detailed hereunder: 2. Section 29 of the Assam GST Act, read with rule 20 of the Assam Goods and Services Tax Rules, 2017 (hereinafter referred to as the Assam GST Rules ) provides that a taxpayer can apply for cancellati

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

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

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tion (5) of the section 29 of the Assam GST Act. It may be noted that the last date for furnishing of FORM GSTR-10 by those taxpayers whose registration has been cancelled on or before 30.09.2018 has been extended till 31.12.2018. 8. Further, sub-section (5) of section 29 of the Assam GST Act, read with rule 20 of the Assam GST Rules states that the taxpayer seeking cancellation of registration shall have to pay, by way of debiting either the electronic credit or cash ledger, the input tax contained in the stock of inputs, semi-finished goods, finished goods and capital goods or the output tax payable on such goods, whichever is higher. For the purpose of this calculation, the stock of inputs, semi-finished goods, finished goods and capital goods shall be taken as on the day immediately preceding the date with effect from which the cancellation has been ordered by the proper officer i.e. the date of cancellation of registration. However, it is clarified that this requirement to debit t

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Assam GST Act, the cancellation of registration does not, in any way, affect the liability of the taxpayer to pay any dues under the GST law, irrespective of whether such dues have been determined before or after the date of cancellation. 9. In case the final return in FORM GSTR-10 is not filed within the stipulated date, then notice in FORM GSTR-3A has to be issued to the taxpayer. If the taxpayer still fails to file the final return within 15 days of the receipt of notice in FORM GSTR-3A, then an assessment order in FORM GST ASMT-13 under section 62 of the Assam GST Act read with rule 100 of the Assam GST Rules shall have to be issued to determine the liability of the taxpayer under subsection (5) of section 29 on the basis of information available with the proper officer. If the taxpayer files the final return within 30 days of the date of service of the order in FORM GST ASMT-13, then the said order shall be deemed to have been withdrawn. However, the liability for payment of inte

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he proceedings related to cancellation. Although the provisions of Assam GST (Amendment) Act, 2018 have not yet been brought into force, it will be prudent for the field formations not to issue notices for non-filing of return for taxpayers who have already filed an application for cancellation of registration under section 29 of the Assam GST Act. However, the requirement of filing a final return, as under section 45 of the Assam GST Act, remains unchanged. 12. It may be noted that the information in table in FORM GST REG-19 shall be taken from the liability ledger and the difference between the amounts in Table 10 and Table 11 of FORM GST REG-16. 13. This Circular is clarificatory in nature and not meant for any interpretation of provisions of the Act and rules. 14. Difficulties, if any, in implementation of the above instructions may be brought to the notice of the Commissioner at an early date. Sd/- Anurag Goel, IAS., Commissioner of State tax, Assam, Dispur, Guwahati Memo No. CT/G

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Creation of GST Helpdesks for MSME sector by CBIC coinciding with the event of Hon ble Prime Minister on 2nd November, 2018 to support MSMEs- convened by Department of Financial Services – reg. – Goods and Services Tax – F. No. 349/94/2017-GST(Pt) – Dated:- 29-10-2018 – F. No. 349/94/2017-GST(Pt) Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes & Customs GST Policy Wing Room 159-A, North Block, New Delhi Dated 29th October, 2018 To, Principal Chief Commissioners/Chief Commissioners of Central Tax (All) Madam/ Sir, Subject: Creation of GST Helpdesks for MSME sector by CBIC coinciding with the event of Hon'ble Prime Minister on 2nd November, 2018 to support MSMEs- convened by Department of

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he above program, it is imperative to operationalise in these districts, special GST Helpdesk for MSME sector, to highlight CBIC's hand-holding of the MSME sector, particularly with regard to GST Registration/ Return filing/ Refunds/ E-way Bill etc. Further, CBIC's GST publicity material, particularly in relation to the MSME sector, may be adequately displayed and disseminated in local languages and outreach initiatives be carried out in these districts for the said period. 3. Accordingly, it is requested that nodal officers for these 80 districts may be appointed and the details may be sent to asim.anand@gov.in with a copy to ravneet.khurana@nic.in by tomorrow 1 PM positively, in order to place the same on the CBIC's website. T

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other educational material. 4. The Director General (Tax Payer Services) has been requested to prepare and circulate adequate GST-related publicity material specially for MSME SECTOR in English, Hindi and regional languages which can be used by the Zones over the duration of the program, including the following: a. Professionally made Videos on GST (2 to 3 minutes) which can be shared on social media such as WhatsApp, Facebook and You Tube; b. Updated FAQs, Acts, Rules, Forms, Notifications and Circulars in booklet format which can be easily printed and distributed. 5. GST Council Secretariat is being requested to communicate about the said program to all the State Governments so that they can also support in this outreach by appointing St

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GST – States – 09/2018-19 – Dated:- 29-10-2018 – Government of Karnataka (Department of Commercial Taxes) No. KSA/GST/CR-108/2017-18 Office of the Commissioner of Commercial Taxes Vanijya Terige Karyalaya, Gandhinagar, Bengaluru-560009, Dated: 29-10-2018 COMMISSIONER OF COMMERCIAL TAXES CIRCULAR No. (GST) 09/2018-19 Subiect: Clarifications of issues under GST related to casual taxable person and recovery of excess Input Tax Credit distributed by an Input Service distributor – Reg. Representations have been received seeking clarification on certain issues under the GST laws. The same have been examined and the clarifications on the same are as below: S. No Issue Clarification 1. Whether the amount required to be deposited as advance tax whi

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a Goods and Services Tax Act, 2017 (hereinafter referred to as the KGST Act ), period of operation by causal taxable person is ninety days with provision for extension of same by the proper officer for a further period not exceeding ninety days. Various representations have been received for further extension of the said period beyond the period of 180 days, as mandated in law. 1. It is clarified that in case of long running exhibitions (for a period more than 180 days), the taxable person cannot be treated as a CTP and thus such person would be required to obtain registration as a normal taxable person. 2. While applying for normal registration the said person should upload a copy of the allotment letter granting him permission to use the

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edit, the excess credit so distributed shall be recovered from such recipients along with interest and penalty if any. 2. The recipient unit(s) who have received excess credit from ISD may deposit the said excess amount voluntarily along with interest if any by using FORM GST DRC-03. 3. If the said recipient unit(s) does not come forward voluntarily, necessary proceedings may be initiated against the said unit(s) under the provisions of section 73 or 74 of the KGST Act as the case may be. FORM GST DRC-07 can be used by the tax authorities in such cases. 4. It is further clarified that the ISD would also be liable to a general penalty under the provisions contained in section 122 (1) (ix) of the KGST Act. 2. It is informed to all concerned t

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GST – States – 07/2018-19 – Dated:- 29-10-2018 – Government of Karnataka (Department of Commercial Taxes) No. KSA/GST/CR-108/2017-18 Office of the Commissioner of Commercial Taxes Vanijya Terige Karyalaya, Gandhinagar, Bengaluru-560009, Dated: 29-10-2018 COMMISSIONER OF COMMERCIAL TAXES CIRCULAR No. (GST) 07/2018-19 This office is in receipt of representations seeking clarifications on various issues in relation to processing of the applications for cancellation of registration filed by taxpayers in FORM GST REG-16. In order to ensure uniformity in the implementation of the provisions of law across the field formations, in exercise of the powers conferred by section 168 (1) of the Karnataka Goods and Services Tax Act, 2017 (hereinafter referred to as the KGST Act ), the issues are hereby clarified as detailed hereunder: 2. Section 29 of the KGS T Act, read with rule 20 of the Karnataka Goods and Services Tax Act, 2017 (hereinafter referred to as the KGST Rules ) provides that a taxpay

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cases, the 30-day deadline may be liberally interpreted and the taxpayers' application for cancellation of registration may not be rejected because of the possible violation of the deadline. 4. While initiating the application for cancellation of registration in FORM GST REG16, the Common portal captures the following information which has to be mandatorily filled in by the applicant: a) Address for future correspondence with mobile number and email address; b) Reason for cancellation; c) Date from which cancellation is sought; d) Details of the value and the input tax/tax payable on the stock of inputs, inputs contained in semi-finished goods, inputs contained in finished goods, stock of capital goods/plant and machinery; e) In case of transfer, merger of business, etc., particulars of registration of the entity in which the existing unit has been merged, amalgamated, or transferred (including the copy of the order of the High Court / transfer deed); f) Details of the last return

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

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liability that he/she may have incurred under sub-section (5) of the section 29 of the KGS T Act. It may be noted that the last date for furnishing of FORM GSTR-10 by those taxpayers whose registration has been cancelled on or before 30.09.2018 has been extended till 31.12.2018 vide notification (23/2018) No. FD 47 CSL 2017 dated the 26th October, 2018. 8. Further, sub-section (5) of section 29 of the KGST Act, read with rule 20 of the KGST Rules states that the taxpayer seeking cancellation of registration shall have to pay, by way of debiting either the electronic credit or cash ledger, the input tax contained in the stock of inputs, semi-finished goods, finished goods and capital goods or the output tax payable on such goods, whichever is higher. For the purpose of this calculation, the stock of inputs, semi-finished goods, finished goods and capital goods shall be taken as on the day immediately preceding the date with effect from which the cancellation has been ordered by the prop

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

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2018 (11) TMI 55 – BOMBAY HIGH COURT – TMI – Prayer for withdrawal of petition – Held that:- The Goods and Services Tax Council has directed the petitioners to make its grievance to the Nodal Officer, having jurisdiction over the petitioners for consideration of its grievance with regard to TRANS-1, which has already been filed.
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Petition is dismissed as withdrawn. – WRIT PETITION NO. 3101 OF 2018 Dated:- 29-10-2018 – M.S. SANKLECHA & RIYAZ I. CHAGLA, J.J. Mr. Shreyash Shah a/w Ms. Rukshin Ghiara I/b Rukshin Ghiara for the petitioners Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for the respondents P.C. 1. Mr. Shah, learned Counsel appearing in support of the petition, on instructions, seeks to withdraw this petition. This for the re

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2018 (11) TMI 212 – RAJASTHAN HIGH COURT – [2019] 60 G S.T.R. 1 (Raj), 2019 (20) G. S. T. L. 212 (Raj.) – Levy of market fee – power of respondent-State to charge tax/cess payable under the provisions of Rajasthan Agriculture Produce Marketing Act, 1961 – Validity of levy after promulgation of Goods and services tax (GST) – whether timber (Imarti Lakadi) is an agricultural produce – their shops and godowns etc. outside the Mandi yard and they do not avail any of the facilities or services provided by the respondent – Mandi.
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Held that:- It is a settled proposition of law that the State can levy market fee under the relevant provisions of a statute, enacted in exercise of powers available to it under Entry 66 of the second list of the VIIth Schedule. It has also been settled by Hon’ble the Supreme Court in the case of Sreenivasa General Traders & Ors. vs. State of Andhra Pradesh & Ors., [1983 (9) TMI 315 – SUPREME COURT] that irrespective of the fact, whether a dealer carries on b

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nd RGST Act, the levy governed by only those enactments have been abolished, which have been enlisted in said sections. The market fee leviable under the Act of 1961 neither finds mention in any of the repeal and saving provisions, nor can it be so done, as the market fee is leviable under a separate enactment under the State’s power to legislate under Entry 66 of the List-II of the VIIth Schedule.
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Petition dismissed. – D.B. Civil Writ Petition No. 1451/2018 Dated:- 29-10-2018 – MR. SANGEET LODHA AND MR. DINESH MEHTA JJ. For Petitioner(s) : Mr. H. R. Soni. For Respondent(s) : – Judgment 1. The petitioner, a Society registered under the provisions of Society Registration Act, 1958 (hereinafter referred to as Petitioner Society ) has preferred the present writ petition, seeking a declaration to the effect that respondent-State has no power to charge tax/cess payable under the provisions of Rajasthan Agriculture Produce Marketing Act, 1961 (hereinafter referred to as the Act of 196

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ounsel that as the shops and godowns of the members of petitioner society are not situated in the Mandi yard and because they do not avail any of the facilities or services provided by the respondent-Agriculture Market Committee, such levy and recovery of Mandi cess from the members of the petitioner society is arbitrary and violative of Article 14 of the Constitution of India on the one hand and is a fetter on their right to carry on trade and business, which stand guaranteed by Article 19 (1) (g) of the Constitution of India. 5. We have heard learned counsel for the petitioner and perused the material available on record. 6. At the outset, we may observe that the entire edifice of the petitioner s case is based on the assumption that the impugned levy under the Act of 1961 is a Cess ; such foundation is clearly contrary to the very provisions of the Statute and law on the subject. 7. Levy under Section 17 of the Act of 1961 is a fee . 8. It is a settled proposition of law that the St

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or sale of notified agricultural produce, livestock or products of livestock is itself a service rendered to persons engaged in the business of purchase or sale of such commodities. The duty of a market committee constituted under Sub-section (1) of Section 4 of the Act does not end with establishing such number of markets in the notified market area under the first part of Sub-section (3) but also extends to the providing of such facilities in the market as the Government may from time to time by general or special order specify under the second part of Sub-section (3). In exercise of their powers under Section 33 of the Act, the State Government have framed the Andhra Pradesh (Agricultural Produce & Livestock) Markets Rules, 1969. Chapter V relates to 'Regulation of trading'. It would appear that Rules 48 to 53 are the machinery provisions for controlling the trade in notified agricultural produce, livestock and products of livestock in a notified area while Rules 54 to

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of livestock outside the market. It says notwithstanding anything in Sub-section (1), no person shall purchase or sell any notified agricultural produce, livestock and products of livestock in a notified market area outside the market in that area. Another unfounded assumption of the learned Counsel was that the activities of the market committee and the facilities provided by it were confined by Act to the market area only. The establishment, maintenance and improvement of the market is one of the purposes for which the market committee fund might be expanded under Section 15 of the Act. The other services such as the provision and maintenance of standard weights and measures, the collection and dissemination of information regarding all matters relating to crop statistics and marketing in respect of notified agricultural produce, livestock and products of livestock, schemes for the extension or cultural improvement of notified agricultural produce including the grant of financial aid

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hedule appended with the Act of 1961. This being the fact situation, the timber or Imarti Lakadi is unquestionably an agricultural produce, exigible to Mandi fee under the Act of 1961. 10. Our aforesaid view is fully fortified by the judgment of Division Bench of this Court in the case of M/s Vishwakarma Timber Mart vs. State of Rajasthan, reported in 1984 WLN 402, which reads as :- Under the definition of agricultural produce it cannot be said that the timber is wholly unconnected with the agriculatural produce and, therefore, no ground is made out for striking down this item. In any case the timber (imarti lakadi) is a notified item in the Schedule and comes within the legislative competence and is covered by the words or otherwise in the Schedule, as defined in the definition of agricultural produce . 11. Moving on to the last point of the petitioner that after promulgation of Goods and Service Tax, the levy of cess under the Act of 1961 cannot continue; we are constrained to observ

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GST – States – 34061-FIN-CT1-TAX-0043/2017-S.R.O. No. 430/2018 – Dated:- 29-10-2018 – GOVERNMENT OF ODISHA FINANCE DEPARTMENT NOTIFICATION The 29th October, 2018 S.R.O.- In exercise of the powers conferred by section 148 of the Odisha Goods and Services Tax Act, 2017 (Odisha Act 7 of 2017) (hereinafter in this notification referred to as the said Act ) read with section 45 of the said Act and rule 81 of the Odisha Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), t

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GST – States – H.12018/243/2017-LJD – Dated:- 29-10-2018 – NOTIFICATION No. H.12018/243/2017-LJD, the 29th October, 2018. The following Ordinance is hereby published for general information. The Mizoram Goods and Services Tax (Amendment) Ordinance, 2018 (Ordinance No. 3 of 2018) Promulgated by the Governor of Mizoram on the Sixty Ninth year of the Republic of India An Ordinance to amend the Mizoram Goods and Services Tax Act, 2017. WHEREAS the Mizoram Goods and Services Tax Act, 2017 came into force on 1st July 2017 respectively; AND WHEREAS the Mizoram Goods and Services Tax Act, 2017 subsumes all existing Indirect Taxation Laws being in place in the State of Mizoram so as to impose goods and services tax (GST) on all goods and services except alcohol for human consumption and five petroleum products (viz. petroleum crude, high speed diesel, motor spirit commonly known as petrol, natural gas and aviation turbine fuel) as per provisions of the Constitution (One Hundred and First Amend

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rt title and commencement (1) This Ordinance may be called the Mizoram Goods and Services Tax (Amendment) Ordinance, 2018. (2) Save as otherwise provided, the provisions of this Ordinance shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Ordinance and any reference in any such provision to the commencement of this Ordinance shall be construed as a reference to the coming into force of that provision. 2. Amendment of section 2: – In section 2 of the Mizoram Goods and Services Tax Act, 2017 (hereinafter referred to as the Principal Act),- (1) in sub-section (4), for the words the Appellate Authority and the Appellate Tribunal , the words, brackets and figures the Appellate Authority, the Appellate Tribunal and the Authority referred to in sub-section (2) of section 171 shall be substituted; (2) in sub-section (16), for the words Central Board of

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y of July, 2017,- (1) in sub-section (1), – (a) in clause (b), after the words or furtherance of business; , the word and shall be inserted; (b) in clause (c), after the words a consideration , the word and shall be omitted; (c) clause (d) shall be omitted; (2) after sub-section (1), the following sub-section shall be inserted, namely:- (1A) where certain activities or transactions constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II. ; (3) in sub-section (3), for the words, brackets and figures sub-sections (1) and (2) , the words, brackets, figures and letter sub-sections (1), (1A) and (2) shall be substituted. 4. Amendment of section 9: – In section 9 of the Principal Act, for sub-section (4), the following sub-section shall be substituted, namely:- (4) The Government may, on the recommendations of the Council, by notification, specify a class of registered person

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a) or clause (b) or clause (c) may supply services (other than those referred to in clause (b) of paragraph 6 of Schedule II), of value not exceeding ten per cent. of turnover in the State in the preceding financial year or five lakh rupees, whichever is higher. ; (2) in sub-section (2), for clause (a), the following clause shall be substituted, namely: – (a) save as provided in sub-section (1), he is not engaged in the supply of services; . 6. Amendment of section 12: – In section 12 of the Principal Act, in sub-section (2), in clause (a), the words, brackets and figure sub-section (1) of shall be omitted. 7. Amendment of section 13: – In section 13 of the Principal Act, in sub-section (2), the words, brackets and figure sub-section (2) of occurring at both the places, shall be omitted. 8. Amendment of section 16: – In section 16 of the Principal Act, in sub-section (2), – (1) in clause (b), for the Explanation, the following Explanation shall be substituted, namely: – Explanation. –

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xcept those specified in paragraph 5 of the said Schedule. ; (2) in sub-section (5), for clauses (a) and (b), the following clauses shall be substituted, namely:- (a) motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely:- (A) further supply of such motor vehicles; or (B) transportation of passengers; or (C) imparting training on driving such motor vehicles; (aa) vessels and aircraft except when they are used- (i) for making the following taxable supplies, namely:- (A) further supply of such vessels or aircraft; or (B) transportation of passengers; or (C) imparting training on navigating such vessels; or (D) imparting training on flying such aircraft; (ii) for transportation of goods; (ab) services of general insurance, servicing, repair and maintenance in so far as they relate to motor vehicles, vessels or aircraft referred to in

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h is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as an element of a taxable composite or mixed supply; (ii) membership of a club, health and fitness centre; and (iii) travel benefits extended to employees on vacation such as leave or home travel concession: Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. . 10. Amendment of section 20: -In section 20 of the Principal Act, in the Explanation , in clause (c), for the words and figures under entry 84, , the words, figures and letter under entries 84 and 92A shall be substituted. 11. Amendment of section 22: – In section 22 of the Principal Act,- (1) in sub-section (1), after the proviso, the following proviso shall be inserted, namely:- Provided further that the Government may, at the request of a s

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2005, in a Special Economic Zone or being a Special Economic Zone developer shall have to apply for a separate registration, as distinct from his place of business located outside the Special Economic Zone in the same State. ; (2) in sub-section (2), for the proviso, the following proviso shall be substituted, namely:- Provided that a person having multiple places of business in the State may be granted a separate registration for each such place of business, subject to such conditions as may be prescribed. . 14. Amendment of section 29: – In section 29 of the Principal Act,- (1) in the marginal heading after the word Cancellation , the words or suspension shall be inserted; (2) in sub-section (1), after clause (c), the following proviso shall be inserted, namely:- Provided that during pendency of the proceedings relating to cancellation of registration filed by the registered person, the registration may be suspended for such period and in such manner as may be prescribed. ; (3) in su

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l be inserted, namely:- Provided that nothing contained in this sub-section shall apply to any department of the Central Government or a State Government or a local authority, whose books of account are subject to audit by the Comptroller and Auditor-General of India or an auditor appointed for auditing the accounts of local authorities under any law for the time being in force. . 17. Amendment of section 39: -In section 39 of the Principal Act,- (1) in sub-section (1),- (a) for the words in such form and manner as may be prescribed , the words in such form, manner and within such time as may be prescribed shall be substituted; (b) the words 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 inserted, namely:- Provided that the Government may, on the recommendations of the Council, notify certain classes of registered persons who shall furnish return for every quarter or part thereof, subject t

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Procedure for furnishing return and availing input tax credit. 43A. Procedure for furnishing return and availing input tax credit. – (1) Notwithstanding anything contained in sub-section (2) of section 16, section 37 or section 38, every registered person shall in the returns furnished under sub-section (1) of section 39 verify, validate, modify or delete the details of supplies furnished by the suppliers. (2) Notwithstanding anything contained in section 41, section 42 or section 43, the procedure for availing of input tax credit by the recipient and verification thereof shall be such as may be prescribed. (3) The procedure for furnishing the details of outward supplies by the supplier on the common portal, for the purposes of availing input tax credit by the recipient shall be such as may be prescribed. (4) The procedure for availing input tax credit in respect of outward supplies not furnished under sub-section (3) shall be such as may be prescribed and such procedure may include t

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safeguards and threshold of the tax amount in relation to outward supplies, the details of which can be furnished under sub-section (3) by a registered person,- (a) within six months of taking registration; (b) who has defaulted in payment of tax and where such default has continued for more than two months from the due date of payment of such defaulted amount, shall be such as may be prescribed. . 19. Amendment of section 48: – In section 48 of the Principal Act, in sub-section (2), after the word and figures section 45 , the words and to perform such other functions shall be inserted. 20. Amendment of section 49: – In section 49 of the Principal Act,- (1) in sub-section (2), for the word and figures section 41 , the words, figures and letter section 41 or section 43A shall be substituted; (2) in sub-section (5),- (a) in clause (c), the following proviso shall be inserted, namely:- Provided that the input tax credit on account of State tax shall be utilized towards payment of integra

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s such payment. Order of utilization of input tax credit. 49B. Order of utilization of the input tax credit. – Notwithstanding anything contained in this Chapter and subject to the provisions of clause (e) and clause (f) of sub-section (5) of section 49, the Government may, on the recommendations of the Council, prescribe the order and manner of utilization of the input tax credit on account of integrated tax, central tax, State tax or Union Territory tax, as the case may be, towards payment of any such tax. 22. Amendment of section 52: -In section 52 of the Principal Act, in sub-section (9), for the word and figures section 37 , the words and figures section 37 or section 39 shall be substituted. 23. Amendment of section 54: – In section 54 of the Principal Act,- (1) in sub-section (8), in clause (a), for the words zero-rated supplies , the words export and exports shall respectively be substituted; (2) in the Explanation, in clause (2),- (a) in sub-clause (c), in item (i), after the

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t of section 112: – In section 112 of the Principal Act, in sub-section (8), in clause (b), after the words arising from the said order, the words subject to a maximum of fifty crore rupees, shall be inserted. 27. Amendment of section 129: – In section 129 of the Principal Act, in sub-section (6), for the words seven days , the words 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 inserted, namely:- Provided further that the period of one year and three years may, on sufficient cause being shown, be extended by the Commissioner for a further period not exceeding one year and two years respectively. . 29. Amendment of Schedule I: -In Schedule I of the Principal Act, in paragraph 4, for the words taxable person , the word person shall be substituted. 30. Amendment of Schedule II: – In Schedule II of the Principal Act, in the heading, after the word

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2018 (11) TMI 1267 – AUTHORITY FOR ADVANCE RULING, TAMILNADU – 2018 (19) G. S. T. L. 344 (A. A. R. – GST) – Classification of manufactured item – automotive chains (i.e., silent chains used in petrol engines and roller chains used in diesel engines) – whether classified under HSN 8409 or 7315?
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Held that:- It is evident that the items are transmission chains which are used in automotive engines and machinery for transmitting mechanical power from one shaft to another and are made of steel. They are articulated chains i.e. made of a series of links or plates which are driven by external sprockets and do not have any other assembly. The Applicant supplies these mainly to automotive industries where they are used in internal combustion engine, they synchronizes the rotation of the crankshaft and the camshaft(s) so that the engine’s valves could open and close at proper time – It is seen that articulated link chains of steel such as roller chain, inverted tooth (silent) chains are i

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Schedule to the Customs Tariff Act, 1975 as applicable to GST as per Explanation (iii) to Notification 1/2017 -Central Tax (Rate) dt 28.06.2017 and G.O. Ms No. 59, Commercial Taxes and Registration (B1) dt 29th June 2017. – ORDER No. 17/AAR/2018 Dated:- 29-10-2018 – MS. MANASA GANGOTRI KATA, IRS AND SHRI. S. VIJAYAKUMAR, M.SC., MEMBER Note : Any Appeal against the Advance Ruling order shall be filed before the Tamil Nadu State Appellate Authority for Advance Ruling, Chennai under Sub-section (1) of Section 100 of CGST ACT/TNGST Act 2017 within 30 days from the date on which the ruling sought to be appealed against is communicated. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a referenc

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e and sale of following automotive chains which are used as a major component in manufacture of motor engines for motor vehicles (i.e., for both two wheelers and four wheelers). Silent chains/ Inverted tooth chains (Used in Petrol engines) Roller chains/ Bushing (Used in Diesel engines) These automotive chains are part of internal combustion engines that synchronizes the rotation of the crankshaft and the camshaft(s) so that the engine s valves could open and close at proper times. As the automotive chains manufactured by the Applicant are used in further manufacture of engines for motor vehicles, the Applicant had classified their product under following HSN code: HSN Description as per Central Excise tariff schedule 8409 Parts suitable for use solely or principally with the engines of heading 8407 or 8408 8409 9191 ………of petrol engines for motor vehicles 8409 9141 ……..of diesel engines for motor vehicles 2.2. Even under the GST legislation, the Appl

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for Chapter 84 of Customs Tariff, this Section does not cover parts of general use. Notes to Section XV for chapter 73 clarifies that parts of general use includes articles of heading 7315. Further, there is no specific reference to Roller or Silent Chains in Chapter 84. Though automotive chains are made as per the specifications of the engines, they would be classifiable under HSN 7315. Further, explanatory notes to HSN refers to Transmission chains for chains, automobiles or machinery under HSN 7315 and international classification mentions Articulated Link chains and parts thereof . They have relied on the decision of Hon ble CESTAT, WZB in the case of M/S. Impex Corporation Vs. Commissioner of Customs (1998 (103) E.L.T. 548 (Tribunal)) = 1998 (2) TMI 262 – CEGAT, CALCUTTA, wherein the Tribunal has held that steel chains used as parts of agricultural machinery are specifically covered under Tariff Heading 7315 and Voltas Ltd vs Commissioner of Customs, Mumbai (2003 (158) E.L.T (Tri

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ompany, copy of documents relating to exports of Chains by their group companies under HSN 7315. The Applicant further furnished a Technical write-up of the chains with samples, invoices, sample contracts, import documents. 3.2 The submissions of the Applicant were examined. In the case at hand from the technical write-up furnished by the Applicant, it is seen that the product in question are timing chains or Transmission Chains which are used for chain drive mechanism i.e., way of transmitting mechanical power from one shaft to another and are made of steel. They are used for transmitting power between the driver and driving shafts in industrial and automotive applications. Roller chains or Roller bush chains are the most commonly used for transmission of mechanical power on many kinds of domestic, industrial and agricultural machinery including conveyors, cars, motorcycles etc. It consists of a series of short cylindrical rollers held together by side links and driven by a toothed wh

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of links or plates which are driven by external sprockets and do not have any other assembly. The Applicant supplies these mainly to automotive industries where they are used in internal combustion engine, they synchronizes the rotation of the crankshaft and the camshaft(s) so that the engine s valves could open and close at proper time. 4.2 In terms of explanation (iii) and (iv) to Notification No. 1/2017 Central Tax (Rate) dt. 28-06-2017, tariff heading, sub-heading, heading and chapter shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 and the rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975, including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall be applied for the interpretation and classification of goods. 4.3. Chapter 7315 covers Chain and parts thereof, of Iron and Steel and Articulated link chains and parts the

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(2) Anchor or mooring chains; lifting, haulage or towing chains; automobiles skid chains. (3) Mattress chains, chains for sink stoppers, lavatory cisterns, etc. All these chains may be fitted with terminal parts or accessories (e.g. hooks, spring hooks swivels, shackles, sockets, rings and split rings and tee pieces). They may or may not be cut to length, or obviously intended for particular uses. Iron or steel parts of chain specialised as such e.g. side links, rollers, spindles, etc., for articulated chain, links and shackles for non-articulated for non-articulated chain, also fall in this heading. The heading does not cover : (a) Chains having the character of imitation jewellery in the sense of heading 71.17 (e.g. watch chain and trinket chains). It is seen that articulated link chains of steel such as roller chain, inverted tooth (silent) chains are included under 7315 irrespective of their intended use and whether they are cut to length or intended for particular use. In the ins

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r, the heading excludes; (a) Injection pumps (Heading 84.13) (b) Engine crank shafts and cam shafts (heading 84.83) and gear-boxes (heading 84.83). (c) Electrical ignition or starting equipment (including, sparking plugs and glow plugs) (heading 85.11) HSN Explanatory Note (1) (g) of Section XVI which covers chapter heading 84 states as under: 1. This Section does not cover: (a)………………… (g) Parts of general use, as defined in Note 2 to Section XV, of base metal (Section XV), or similar goods of plastics (Chapter 39) Note 2 to Section XV defines parts of general use as under: 2. Throughout this Nomenclature, the expression parts of general use means: (a) Articles of headings 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metal; Further, the General Notes to Section XV also states: (C) PARTS OF ARTICLES In general, identifiable parts of articles are classified as such parts in their appropriate headings in the Nomenclatur

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2018 (11) TMI 1349 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – 2018 (19) G. S. T. L. 537 (A. A. R. – GST) – Supply of goods or supply of services – activity of O & M of Fluoride control project on ESCO Model and O & M work – rate of GST – composite supply – Works contract or not.
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Held that:- The given work is a contract for improvement of the pumping system under the Fluoride control project, wherein transfer of property in goods in the form of new pumping machinery and mechanical/ electrical equipment shall be involved in the execution of such contract – That Works contract in itself is a composite supply in which construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning etc are involved along with transfer or property in goods.
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The water supply for domestic, industrial and commercial purposes is responsibility of Municipality. It is pertinent to note that given activ

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or a Government Department.
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If the value of supplied goods under this contract is below 25% of the total value of the composite supply, then the rate of tax would be Nil. Further, if in the duration of contract the applicant crosses the benchmark of 25% value of goods then the rate of tax will shift from Nil to 12%. – AAR No. RAJ/AAR/2018-19/22 Dated:- 29-10-2018 – NITIN WAPA AND HEMANT JAIN MEMBER Present for the applicant: Shri Yash Dhadda, CA, (Authorized Representative) Note: Under Section 100 of the CGST/RGST Act 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act 2017, within a period of 30 days from the date of service of this order. The Issue raised by Shri Kailash Chandra, (Mali Construction), situated at Mali Vas, Maandava, Mandwa, Sirohi, Rajasthan 307001 (hereinafter the applicant) is fit to pronounce advance ruling as it falls under ambit of the Section 97 (2) (a) (e) which is as gi

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roject on ESCO and O & M contract. b. The terms and scope of the contract combines ESCO Model and O&M work. That the activities under ESCO model and O & M contract are so closely linked in a manner that they form a single indivisible supply. The driving factors are: A single tender shall be floated for Operation and Maintenance of Fluoride Control Project on ESCO Cum O&M Contract where the preamble of scope specifies that the contract combines ESCO model and O&M work. The nature of contract is such that initial activities under ESCO model is the main service and the other services under O&M contract combined with such service are in the nature of ancillary services which help in better operation of main activities under ESCO model and make the model successful. c. Thus, based on above facts and concept such contract shall be a single supply and cannot be treated as distinct supplies. Since all the conditions of composite supply are satisfied, it is a composite s

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llumination, replacement of fitting/ fixtures shall be done by the contractor, if required. h. The applicant shall be responsible for painting, color/ white washing, distempering etc. to the pumping station building, thrice during the entire contract period. Transmission Pipelines The contractor shall be responsible for Patrolling, operation and maintenance of the pipelines, repairing of leakages of pipelines, replacement of burst pipes, repairing of appurtenances of pipelines like air valves, scour valves air vessels system, intermediate OHSR (for vacuum filling system), pressure gauges, joints etc. Switchyards He shall be responsible for replacement of transformers if required according to year 2027 designed capacity of pump sets. He shall also be responsible for painting, color/ white washing, distempering etc. to the switchyard stuff thrice during the entire contract period. Storage Tanks (CWR) He shall also be responsible for painting, color/ white washing, distempering etc. to th

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ing of pump foundation and extension of pump house, replacement of fittings/ fixtures and painting of all permanent structures like pumping station building etc. are involved in the contract. j. Based on above facts and the intent of the proposed activity, it is implied that the given work is a contract for improvement of the pumping system under the Fluoride control project, wherein transfer of property in goods in the form of new pumping machinery and mechanical/electrical equipment shall be involved in the execution of such contract. k. That Works contract in itself is a composite supply in which construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning etc are involved along with transfer or property in goods. l. Now whether a supply is a works contract or not is dependent on whether the plant or device or property is a movable or immovable property. To decide whether a propert

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components and thus cannot be reassembled, then the items involved not be considered as moveable and will, therefore, not be excisable goods. p. Further, such a contract can amount to works contract in GST only if the improvement is of any immovable property. Taking references from the concepts evolved from the precedents, it is understood that the properties for which improvement works has been assigned like pump houses, storage tanks, headworks campus etc. cannot be moved from one site to another. All the components of the pumping system are erected at the prescribed location and permanently attached to the earth and they cannot be dismantled and reassembled as such dismantling may cause substantial damage to the system and its components. Thus, according to applicant the property of improvement is an immovable property and thus the given work should be treated as works contract. 2. OUESTIONS ON WHICH THE ADVANCE RULING IS SOUGHT Whether the activity of O & M of Fluoride control

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The given activities undertaken by the applicant are culminating into works contract services. Now works contract service in itself is a composite supply. The same has been defined under Schedule-Il under Entry 6 which is read under: 6. Composite supply The following composite supplies shall be treated as a supply of services, namely: (a) works contract as defined in clause (119) of section 2; and (b) supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (other than alcoholic liquor for human consumption), where such supply or service is for cash, deferred payment or other valuable consideration. 3. The terms and scope of the contract combines ESCO Model and O&M work. That the activities under ESCO model and O&M contract are so closely linked in a manner that they form a single indivisible supply. The driving factors are: A single tender is being floated for Operation and Maint

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per requirement. Extension of pump house if required to remodel the configuration of pump sets or as per site condition. The supply and installation of new pumping machinery and other equipments shall be done as per best engineering practice. b. The operation and maintenance work shall be carried out of all the electrical and mechanical instruments, pumping machinery etc. c. The pumping station and its surrounding shall be kept clean and in dry condition, properly ventilated and illuminated. For the purpose of illumination, replacement of fitting/ fixtures shall be done by the contractor, if required. d. He shall be responsible for painting, color/ white washing, distempering etc. to the pumping station building, thrice during the entire contract period. e. Transmission Pipelines The contractor shall be responsible for Patrolling, operation and maintenance of the pipelines, repairing of leakages of pipelines, replacement of burst pipes, repairing of appurtenances of pipelines like air

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and best fit automation interventions to get transparent real time data and remote monitoring. O&M work The scope of work of O&M contract includes operation and maintenance of rising mains of RWSS/Clusters, OHSR and water treatment plant at Baghera. 5. It is understood based on the scope of work detailed above that ESCO model requires improvement of the whole water supply system involving pump houses, pumping stations, transmission lines, switchyards, storage tanks and headwork campus. Re-modelling of pump foundation and extension of pump house, replacement of fittings/ fixtures and painting of all permanent structures like pumping station building etc. are involved in the contract. 6. Based on above facts and the intent of the proposed activity, it is implied that the given work is a contract for improvement of the pumping system under the Fluoride control project, wherein transfer of property in goods in the form of new pumping machinery and mechanical/ electrical equipment

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tached to earth can be treated as immovable property. Any attachment with earth which is temporary in nature or can be shifted from part of earth to another without causing substantial damage to it cannot be treated as immovable property. 11. On the given issue, CBEC has also clarified in its circular number 58/ 1/2002-CX dated 15/ 1/2002 where in para (e) it was clarified that;- If items assembled or erected at site and attached by foundation to earth cannot be dismantled without substantial damage to its components and thus cannot be reassembled, then the items involved not be considered as moveable and will, therefore, not be excisable goods. 12.According to definition of works contract under GST regime, the supply of goods and services are done by the supplier simultaneously which is for immovable property. Hence in works contract supply of goods and services together is compulsory. Thus, based on above facts and concept we find that the contract shall be a single supply and cannot

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otal value of supply and service if provided to State Government or a local authority and the supply is by way of an activity in relation to functions entrusted to Municipality under Article 243W of the Constitution then no GST is applicable. 14. The activities entrusted to the Municipality under Article 243W of the Constitution of India and listed under Twelfth Schedule are enumerated as under; [Article 243-W] 1. Urban planning including town planning. 2. Regulation of land use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of ecological aspects. 9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. 10. Slum improvement and up gradation. 11. Urban poverty alleviat

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accordance with the Notification No 11/2017-CT (Rate) dated 28.06.2017, as amended from time to time. On perusal of said Notification under S. No. 3(iii), for schedule of rate of Tax on works contract Services, following is mentioned:- Heading 9954 (Construction services) CGST Rate % SGST Rate % IGST Rate % Remarks (iii) Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017, supplied to the Central Government, State Government, Union territory, a local authority, a Governmental Authority or a Government Entity by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of, – (a) a historical monument, archaeological site or remains of national importance, archaeological excavation, or antiquity specified under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); (b) canal, dam or other irrigation works; (c) pipeli

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2018 (11) TMI 1350 – AUTHORITY FOR ADVANCE RULING, TAMILNADU – 2018 (19) G. S. T. L. 342 (A. A. R. – GST) – Maintainability of Advance Ruling application – Liability to pay tax on the services supplied to applicant – exemption to service providers on imported agricultural products Viz., Wheat – exemption under chapter heading 9986 in Sl.No. 54(e) of GST Notification No.12/2017-CT (R) dated 28.6.2017 – recipient of services.
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Held that:- It is evident that an applicant can seek an Advance Ruling in relation to supply of goods or services or both undertaken or proposed to be undertaken by the applicant. Further, as per Section 103(1) of the CGST Act, the ruling is binding only the applicant and the Concerned officer or the jurisdictional officer of the applicant – In the case at hand, the applicant is the recipient of the services and not supplier of such service. Accordingly, the Application is not liable for admission and therefore rejected without going into the merits of the ca

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mil Nadu Goods and Service Tax Act. M/s. Naga Limited, No.1, Trichy Road, Dindigul 624005. (herein after referred as the Applicant or Naga) is a registered person under GST 2017 with GSTIN 33AAACN2369LIZD. They have sought Advance Ruling on the following question : Whether exemption provided under the chapter heading 9986 in Sl.No. 54(e) of GST Notification No.12/2017-CT (R) dated 28.6.2017 for the service providers who have rendered Handling services such as loading , unloading, packing, storage or ware housing of agricultural products is applicable for agricultural products viz. Wheat, when imported through sea ports . The Applicant has submitted the copy of application in Form GST ARA – 001 and also submitted a copy of Challan evidencing payment of application fees of ₹ 5,000/- each under sub-rule (1) of Rule 104 of CGST rules 2017 and SGST Rules 2017. 2.0 The Applicants are importer of Agricultural products viz. Wheat through various Sea Ports for carrying out Milling operati

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only to the supply chain commencing from the stage of the Cultivator or Producer and extended up to the primary market. It did not include an entire market including further traders and ultimate consumers. Since, in the instant case, the service is not for the supply from Cultivators to the primary market, but from an importer (through availing the handling services of the port company) to the secondary or tertiary market in respect of unprocessed Agricultural produce, few service providers feel exemption may not be applicable in respect of imported goods and pay GST on the services rendered and claim the same from the applicant. The applicant has stated that as per the definition of Agricultural Produce , the restriction of primary market is applicable only in respect of processed Agricultural produce and the restriction is not applicable to unprocessed Agricultural produce. Therefore, as far as wheat is concerned, when there is no processing is carryout out the exemption will cover o

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cant avails the services of loading, unloading, storage, etc from various service providers. It is made clear that the applicant do not make any of the supplies in question, but are in fact the recipients of the various supplies as stated in their application. Thus, the question is on the liability to pay tax on the services supplied to them and not on the supply made by them. 4.1 Section 95 (a) of CGST and TNGST Act defines advance ruling as (a) advance ruling means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of section 97 or sub-section (1) of section 100, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant;; From the above, it is evident that an applicant can seek an Advance Ruling in relation to supply of goods or services or both undertaken or proposed to be undertaken by the applicant. Further, as per Section 103(1) of the C

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2018 (11) TMI 1467 – CESTAT CHENNAI – TMI – Erection, Commissioning and Installation Service – Non-payment of Service tax – works contract service – non-payment on the ground that the services performed for road, bridges etc. is excluded from the service tax purview under section 65(105)(zzzza) of the Finance Act, 1994 – period involved in the present case is July 2007 to September 2011 – Held that:- The contract entered between the appellant and the service recipient is a composite contract which involves both supply of materials as well as rendering of service.
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The Tribunal in the case of Real Value Promoters Ltd. [2018 (9) TMI 1149 – CESTAT CHENNAI] had occasion to analyze the issue regarding demand of service tax under construction of residential complex services, commercial or industrial construction service and construction of complex service. The Tribunal has held that prior to 1.6.2007, levy of service tax can be under the above categories only for contracts which are p

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A. Cletus, Addl. Commissioner (AR) for Revenue ORDER Per Bench The issue involved in all these appeals being the same, they were heard together and are disposed by this common order. The parties herein are referred to as assessee and department for the sake of convenience. 2. The assessees are engaged in execution of contracts for erection, installation of electrical poles for street lights etc. for Government and other local bodies namely Municipalities and Panchayats etc. During audit of accounts, it was observed that the assessee was paying service tax under erection, commissioning or installation services upto 30.6.2007 and from 1.7.2007 they opted to pay service tax under works contract service. It was noticed that while paying service tax under works contract service, they have short-paid service tax to the tune of ₹ 1,64,159/- upto March 2008 and also noted that they stopped paying service tax under works contract service on the ground that the services performed for road

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No.. 187 & 188/2012 dt. 30.10.2012 SCN No. 290/2011 dt. 25.8.2011 andSCN No. 88/2012 dt. 4.4.2012 April 2010 to March 2011 Apr. 11 to Sep. 11 Rs.27,79,551/- Rs.33,02,028/- 3. On behalf of the assessee, ld. counsel Shri J. Shankar Raman submitted that in Appeal No. ST/397/2011, the period involved is from July 2007 to September 2008 and the demand made in the show cause notice is under erection, commissioning and installation services. As per the decision of the Tribunal in the case of Real Value Promoters Ltd. Vs. CCE – 2018-TIOL-2867-CESTAT, Chennai, the demand under erection, commissioning and installation service for composite contracts will not sustain. In the said show cause notice, there is an allegation of irregularly availed CENVAT credit on rent-a-cab service also. He submitted that the period is prior to 1.4.2011 and the said services are eligible for credit. In the other show cause notices, the demand is made under ECIS and the original authority confirmed the demand aga

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e department. 5. After hearing both sides, it is brought to light that the period involved in the present case is July 2007 to September 2011. The demand has been raised in the show cause notice under ECIS. The contract entered between the appellant and the service recipient is a composite contract which involves both supply of materials as well as rendering of service. The Tribunal in the case of Real Value Promoters Ltd. (supra) had occasion to analyse the issue regarding demand of service tax under construction of residential complex services, commercial or industrial construction service and construction of complex service. The Tribunal has held that prior to 1.6.2007, levy of service tax can be under the above categories only for contracts which are purely for services. That after 1.6.2007, the above categories would be applicable only if the contracts are purely services and which are not composite contracts. Further, it was held that after 1.6.2007, demand in respect of composit

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x will be levied at only 2 per cent of the total value of the words contract . 7.10 The issue was analyzed by the Hon ble Apex Court in Larsen & Toubro case (supra) and held that there can be no levy of service tax on composite contracts (involving both service and supply of goods) prior to 1.6.2007. This read together with the budget speech as above would lead to the strong conclusion that composite contracts were brought within the ambit of levy of service tax only with effect from 1.6.2007 by introduction of Section 65(105)(zzzza) i.e. Works Contract Services. As pointed out by the ld. counsels for appellants, there is no change in the definition of CICS/CCS/RCS after 1.6.2007. Therefore only those contracts which were service simpliciter (not involving supply of goods) would be subject to levy of service tax under CICS / CCS / RCS prior to 1.6.2007 and after. Our view is supported by the fact that the method / scheme for discharging service tax on the service portion of composi

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

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evenue submitted that the respondent were engaged in construction services liable to tax under tax entry Section65(105) (xxq). The grievance of the Revenue is with reference to commercial nature of the construction undertaken by the respondent and not on the correct classification of taxable activity. b. In the case of Skyway Infra Projects Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai – 2018-TIOL-360-CESTAT-MUM, in respect of identical issue for the period from 2005 to 2012, the Tribunal in para 7 has held as under:- 7. On careful consideration of the submissions made by both the sides, we find that the issue falls for consideration is whether the services rendered by the appellant in respect of 52 contracts entered with various Govt. authorities need to be taxed under MMRC/CICS/ECIS or otherwise. It is on record and undisputed that the adjudicating authority has specifically held that all the 52 contracts which has been executed by the appellants are with material. Learned Counse

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so. c. In the case of URC Construction (P) Ltd. Vs. Commissioner of Central Excise, Salem – 2017 (50) STR 147, the Tribunal in paragraphs 9, 10 and 11 has held as under:- 9. The Hon ble Supreme Court in re Larsen & Toubro & Ors. has decided thus 24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines taxable service as any service provided . All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service r

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

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#8377; 82 lakhs under this category after the visit of the departmental officers and therefore an amount of ₹ 36,88,611/- demanded in the impugned order should be considered as having been discharged. We find merit in his argument and hence the demand of ₹ 26,88,611/- under works contract service for the period 01.04.2008 to 30.09.2008 is required to be considered as having been paid, albeit subsequent to the visit of the officers. However, the interest liability if any that arise on this amount if not paid already will have to be discharged by the appellants. So ordered. 8. In the light of the discussions, findings and conclusions above and in particular, relying on the ratios of the case laws cited supra, we hold as under:- a. The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or

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ction of Complex Service, cannot therefore sustain. In respect of any contract which is a composite contract, service tax cannot be demanded under CICS / CCS for the periods also after 1.6.2007 for the periods in dispute in these appeals. For this very reason, the proceedings in all these appeals cannot sustain. 5. Following the above decision, we are of the considered opinion that the demand of service tax under ECIS cannot sustain after the period 1.6.2007. The denial of CENVAT credit on rent-a-cab service being prior to 1.4.2011 is unjustified and the assessees are eligible to avail CENVAT credit on the same. 6. From the discussions made above, we hold that the impugned orders cannot sustain and are set aside. The appeals filed by the assessee are allowed with consequential relief, if any. The appeals filed by Revenue are dismissed. The cross-objections filed by the assessee are disposed accordingly. The miscellaneous application filed by Revenue for change of cause title is allowed

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2018 (11) TMI 1468 – CESTAT CHENNAI – TMI – Business Auxiliary Service – respondents as distributors were receiving 1% volume discount on the total turnover – liability of service tax – Held that:- The important takeaway from the discussions on the differing nature of assessable value, one for the purpose of levy of Central Excise duty and the other for levy of service tax, is that they are two different and distinct entities. This indeed has to be so, since the purpose of levy of central excise duty is to levy tax on production or manufacture of excisable goods in India whereas service tax is a levy on service, which by its very intrinsic nature cannot then be an activity amounting to “manufacture” and subject to Central Excise levy.
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A value or consideration undisputedly forming part of assessable value for purposes of levy of central excise duty cannot then be also considered as part of the value of taxable service for levy of service tax. This is in keeping with the fundament

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ted diligently in accordance with the provisions of law – there is no suppression of any information or facts.
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The Commissioner has correctly applied the law after appreciating the facts of the case – appeal dismissed. – Application No.ST/MISC/40793/2017 Appeal No.ST/330/2012 – FINAL ORDER No. 42883/2018 – Dated:- 29-10-2018 – Ms. Sulekha Beevi C.S. Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Govindarajan, AC (AR) For the Appellant Shri C. Manickam, Sh. Ajay Kumar Gupta, Advocate & Shri D. Senthil Nathan, Consultant For the Respondent ORDER Per Bench Brief facts are that the respondents, M/s. Redington (India) Ltd are engaged in the business of distributing computer hardware and software of various manufacturers such as M/s. Hewlett Packard, IBM, Microsoft, etc. They are also engaged in maintenance and repair for these products during the warranty period as well as post warranty period. On intelligence that the respondents are not paying servic

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ors for providing reseller sell-through reports as inventory reports on weekly basis to HP. 2. From the foregoing it appeared that respondents as distributors were receiving 1% volume discount on the total turnover made, in respect of HP Products and that this was not a trade or sales discount but a commission for providing HP with strategic market information to enable them to maximize the sales of HP products wherever required. The department was of the view, that respondent were providing Business Auxiliary Service to M/s. HP. Therefore a Show Cause Notice was issued proposing to demand the service tax alongwith interest and for imposing penalties. After due process of law, the original authority dropped the proceedings holding that 1% discount is not consideration received for rendering services and hence not taxable. Aggrieved, the department is now before the Tribunal. 3. The Ld.AR, Sh.S.Govindarajan reiterated the grounds of appeal. He submitted that the findings of the adjudica

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y service in relation to promotion or marketing or sale of goods produced or provided by or belonging to the client would fall under the category of Business Auxiliary Service. Therefore when the respondents are furnishing strategic inventory reports on weekly basis, in a format specified by HP, the same is service incidental or auxiliary or promotion or marketing or sale of goods produced by HP and the 1% discount received by the respondents from HP is chargeable to service tax under Business Auxiliary Service. It is submitted that in a similar case involving M/s.HP and the respondent pertaining to the 1% discount offered to the dealer / distributor as in the present case, the CESTAT, Bangalore [2003(162) ELT 399(T)] considered the issue of includibility of the said 1% additional discount paid to the assesse as a distributor / dealer in the assessable value of the excisable goods manufactured by M/s.HP. In the said case, the Hon ble Tribunal held that the reports sent by the dealers,

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e distributors for providing reseller sell on the basis of reports and inventory reports submitted to M/s.HP. The adjudicating authority has rightly dropped the proceedings finding that the respondent was neither commission agent nor was rendering any Business Auxiliary Service. The relationship between the respondent and M/s.HP is that of manufacture and buyer and merely because an inventory report is furnished to the manufacturer in regard to the sale of goods, it cannot be said that the appellant has rendered any services to M/s.HP. The decision of the Tribunal, Bangalore rendered in 2003 (162) E.L.T.399 (Tri.-Bang) relied in the grounds of appeal by the department, has held that the 1% discount does not fall in category of permissible discount to be excluded from the assessable value of goods manufactured by HP in terms of Section 4 of Central Excise Act, 1944. For this very same reason, the said discount, if any, has to be included in the assessable value by the manufacturer namel

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r :- As per Section 65 (19) of Finance Act, 1994 ―Business Auxiliary Service‖ means any service in relation to – (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) … … … … … … … … … (v) … … … … … … … … … (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any activ

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isions of this Chapter, where service tax is chargeable on any taxable service with reference to its value, then such value shall, – (i) in a case where the provision of service is for a consideration in money, be the gross amount charged by the service provider for such service provided or to be provided by him; (ii) in a case where the provision of service is for a consideration not wholly or partly consisting of money, be such amount in money as, with the addition of service tax charged, is equivalent to the consideration; (iii) in a case where the provision of service is for a consideration which is not ascertainable, be the amount as may be determined in the prescribed manner. (2) Where the gross amount charged by a service provider, for the service provided or to be provided is inclusive of service tax payable, the value of such taxable service shall be such amount as, with the addition of tax payable, is equal to the gross amount charged. (3) The gross amount charged for the tax

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nt gets such ticket. 6.4 Duties of excise have been made leviable on goods manufactured or produced, under the provisions of the Central Excise Act, 1944, as amended. For the purpose of working out the duty of excise chargeable on any excisable goods, as per Section 4 of the Central Excise Act, inter alia, such value shall – (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value; (b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. 6.5 For the removal of doubts, Explanation to Section 4 (1) declares that that the price-cum duty of the excisable goods sold by the assessee shall be the price actually paid to him for the goods sold and the money value of the additional consideration, if any, following directly or indirectly fr

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rther clarity in respect of valuation for the purposes of levy of Central Excise duty is brought about in Central Excise Valuation Rules, 2000. So also, Service Tax (Determination of Value) Rules, 2006 have been introduced vide Notification No.12/2006-ST dt. 19.4.2006. 6.8 The important takeaway from these discussions on the differing nature of assessable value, one for the purpose of levy of Central Excise duty and the other for levy of service tax, is that they are two different and distinct entities. This indeed has to be so, since the purpose of levy of central excise duty is to levy tax on production or manufacture of excisable goods in India whereas service tax is a levy on service, which by its very intrinsic nature cannot then be an activity amounting to manufacture and subject to Central Excise levy. 6.9 The basic nature of service tax was dealt with by the Hon ble Apex Court in the case of All India Federation of Tax Practitioners Vs UOI – 2007 (7) STR 625 (S.C.) wherein it w

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the principle of equivalence in a sense that consumption of goods and consumption of services are similar as they both satisfy human needs. Today with the technological advancement there is a very thin line which divides a sale from service . That, applying the principle of equivalence, there is no difference between production or manufacture of saleable goods and production of marketable/saleable services in the form of an activity undertaken by the service provider for consideration, which correspondingly stands consumed by the service receiver. It is this principle of equivalence which is inbuilt into the concept of service tax under the Finance Act, 1994. That service tax is, therefore, a tax on an activity. That, service tax is a value added tax. The value addition is on account of the activity which provides value addition, for example, an activity undertaken by a chartered accountant or a broker is an activity undertaken by him based on his performance and skill. This is from t

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ture and subjected to excise levy and at the same time considered to be a service and subjected to service tax. In fact, the process amounting to manufacture is kept specifically out of the scope of Section 65 (19) of Finance Act, 1994 which prescribes service tax liability on processing of goods not amounting to manufacture. 6.11 It has been consistently laid down by the Tribunal, in a plethora of decisions, that consideration which is subject to payment of excise duty is not liable for payment of service tax liability. Some of such decisions, correctly cited by the Ld. Advocate for respondents, are as under : 1) Allengers Medical Systems Ltd. Vs CCE Chandigarh 2009 (14) STR 235 (Tri.-Del.) 2) Alidhara Texspin Engineers Vs CCE & Customs, Vapi 2010 (20) STR 315 (Tri.-Ahmd.) 3) Sharma and Associates Firetech Pvt. Ltd. Vs CCE Indore 2017 (51) STR 289 (Tri.-Del.) 4) Vidarbha Grindeers (P) Ltd. Vs CCE Nagpur 2015 (40) STR 331 (Tri.-Mumbai) In Jubiliant Industries Vs CCE Ghaziabad – 201

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) ELT 399 (Tri.-Bang.) and subsequently affirmed by the Hon ble Apex Court on 06.02.2004 [2004 (167) ELT A137 (SC)]. The department should have taken precautionary measures to issue periodical SCNs on the very same issue from time to time pending final decision in the matter. This being the case, we are unable to fathom the how and why of the department having taken a stand contrary to that settled by the Hon ble Apex Court on 06.02.2004 and deemed it proper to issue a SCN taking an antipodal and opposite proposition. Unless the said judgment of the Supreme Court has been further reviewed, or for that matter, the ratio laid down had been overturned by the Hon ble Apex Court itself, which is certainly not the case here, there is no justification for the department to have initiated the impugned proceedings. In our view, seeking to tax a particular commission amount under excise duty on the one hand, and in respect of the identical transaction, demanding service tax liability on the very

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d in the transaction. 14. In this connection I take support of the decision of Hon ble CESTAT in the case of M/s.Pratap Singh & Sons Vs Commissioner of Central Excise, Mumbai-I, as reported in 2007 (5) STR 389 (Tri-Mumbai), wherein it was held as follows : 5. The appellant have purchased and sold from the principals as their distributor. On purchase of the goods, the ownership changes to the appellant and as owner, dealer or transferee of the goods, it was in his own interest to promote the sales activities and to make advertisement and keep the trained salesman and hence, they are part of the dealers job. This cannot be treated as service rendered to the principals namely the manufacturers. If there was any special relationship or additional consideration leading to charging of lower price to the appellant, at the most, it can become an issue relating to valuation of the goods. The discount given by the manufacturer cannot be taken as service charges. The decision of the Commissio

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03.2007, 03.03.2008 to 05.03.2008, 26.03.2009 to 27.03.2009 and 06.07.2009 to 10.07.2009; that in the process of auditing, all the transactions were duly and properly audited by the Department; that such neither any attempt was made to conceal the facts nor to hide any information and the respondent had acted diligently in accordance with the provisions of law; that therefore it is submitted that there is no suppression of any information or facts. We find merit in these contentions also. 7. From the findings, discussions and conclusions herein above, we hold that the Commissioner has correctly applied the law after appreciating the facts of the case. We find no grounds to interfere with the impugned order. The appeal is dismissed. The miscellaneous application for change of cause title filed by department is allowed. (Operative part of the order pronounced in open court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxma

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2018 (12) TMI 1578 – GUJARAT HIGH COURT – TMI – Validity of attachment order – petitioner could not discharge its GST liabilities for the past several months – According to the petitioner, since it was unable to pay the tax, the Returns could not be filed. – Held that:- The petitioner can restart its manufacturing activities and start repaying the Government dues. In this context, few things become relevant. Firstly, according to the petitioner, the outstanding dues are in the vicinity of ₹ 64.00 Lacs. This does not account for possible interest or penalty or late payment charges. The petitioner must clear the dues as soon as possible. The petitioner, having collected such taxes, would not get any sympathy from us, if the unpaid taxes are not deposited in the Government revenue – The petitioner shall place before the respondent authorities material regarding its purchases and clearances in order to enable the authority to form the best judgment assessment, if so found necessary.

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plant. The petitioner is in the business of manufacturing agrochemicals. 3. The facts admitted by the petitioner are that the petitioner could not discharge its GST liabilities for the past several months. According to the petitioner, tax of ₹ 97.00 Lacs was collected but, could not be deposited with the Government on account of severe financial crisis. Out of such amount, the petitioner has, by now, paid about ₹ 33.00 Lacs, leaving a residue of about ₹ 64.00 Lacs. According to the petitioner, since it was unable to pay the tax, the Returns could not be filed. 4. The GST authorities, therefore, in exercise of powers under Section 83 of the Gujarat Goods and Service Tax Act, 2017 passed the impugned order attaching the petitioner s plant, machinery and stock. 5. Learned counsel for the petitioner submitted that it was on account of acute financial crisis resulting out of the meltdown conditions in the market that the petitioner could not deposit the tax. The order pass

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things become relevant. Firstly, according to the petitioner, the outstanding dues are in the vicinity of ₹ 64.00 Lacs. This does not account for possible interest or penalty or late payment charges. The petitioner must clear the dues as soon as possible. The petitioner, having collected such taxes, would not get any sympathy from us, if the unpaid taxes are not deposited in the Government revenue. Learned AGP may also be correct in pointing out that the figures of unpaid taxes are based on the petitioner s selfassessment and this would be subject to verification. The law permits the authorities to carry out best judgment assessment in case the Returns are not filed. The petitioner shall place before the respondent authorities material regarding its purchases and clearances in order to enable the authority to form the best judgment assessment, if so found necessary. All these procedures can continue. 8. In the meantime, however, subject to certain strict conditions, we would perm

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