Profiteering Allegations on Panasonic LED Supply Dismissed Due to Post-GST Tax Rate Change Under CGST Act Section 171.
Case-Laws
GST
Profiteering – supply of “Panasonic LED TH43E200DX#45580
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Mattress Price Hike Due to Tax Increase Not Profiteering, Says Section 171 of CGST Act 2017.
Case-Laws
GST
Profiteering – supply of Peps Spring Koil Bornell Normal Maroon 75x60x6″ Mattress –
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M/s M. Junction Services Ltd. Versus Commr. of CGST & Central Excise, Kolkata North
Service Tax
2019 (1) TMI 66 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 26-12-2018
S.T. Appeal No.78641/18 – FO/A/77158/2018
Service Tax
SHRI P. K. CHOUDHARY, JUDICIAL MEMBER
Shri Nanda Kishore Kothari & Shri Akshay Goenka, both C.As. for the Appellant (s)
Shri S. Mukhopadhyay, Supdt.(A.R.) for the Revenue
ORDER
Per Shri P.K. Choudhary :
The present appeal is listed for admission today. After hearing both sides and despite the amount involved in this case being below the threshold of Rs. 2.00 lakhs, the appellant intends to contest the issue on merits, which is admitted.
3. With the consent of both sides, the appeal itse
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amount of Rs. 1,72,331/- as service tax (including cess) already paid on 30.03.2012, should not be appropriated.
(ii) An amount of Rs. 67,253/- calculated as interest should not be demanded and recovered from them in terms of Section 75 of the said Act and the said amount of Rs. 67,253/- already paid, should not be appropriated.
(iii) Penalty should not be imposed upon them in terms of Section 78 of the said Act for violation of the above mentioned provisions of the said Act and the said Rules.
(iv) Penalty should not be imposed upon them in terms of Section 77 of the said Act for non-obtaining Service Tax Registration and non-submission of ST-3 Returns for material period.
5. The Adjudicating Authority confirmed the demand of Service T
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vice tax along with interest had already been paid by the assessee, for which, separate show-cause notice was issued, which culminated into a separate proceeding altogether. Subsequently, present show-cause notice has been issued for demanding service tax on the amount of Tax Deducted at Source (TDS), which was inadvertently left out by the assessee. On being pointed out, they immediately paid the amount of Rs. 1,72,331/- along with interest amounting to Rs. 67,253/- and intimated to the jurisdictional authorities.
8. I find that there is no material available on record to establish the allegation of suppression of facts, mis-declaration etc. with an intent to evade payment of service tax. On the other hand, the appellant assessee immediat
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FEDERATION OF GUJARAT WEAVERS WELFARE ASSOCIATION Versus UNION OF INDIA
GST
2019 (1) TMI 358 – GUJARAT HIGH COURT – 2019 (22) G. S. T. L. 9 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 26-12-2018
R/SPECIAL CIVIL APPLICATION NO. 20626 of 2018
GST
MS HARSHA DEVANI AND DR A. P. THAKER, JJ.
For The PETITIONER (s) : MR DHAVAL SHAH (2354)
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE HARSHA DEVANI)
Mr. Prakash Shah learned advocate with Mr. Dhaval Shah, learned advocate for the petitioner invited the attention of the Court to sub-section (3) of Section 54 of the Central Goods and Services Tax Act, 2017, to submit that the clause (ii) thereof provides that where the credit has accumulated on account of rate of tax on inputs being
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It was submitted that at the same time, vide clause (ii) of the proviso it has been provided that in respect of said goods, the accumulated input tax credit lying unutilized in balance, after payment of tax for and upto the month of July, 2018 on the inward supplies received up to the 31st day of July, 2018 shall lapse. It was submitted that sub-section (3) of section 54 empowers the Government to notify the goods in respect of which the proviso to subsection (3) of section 54 would not apply. However, the said section does not in any manner empower the Government to provide for lapsing of the input tax credit. It was submitted that the respondents are therefore not granting refund to the petitioner unless the petitioner reverses the input
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INDOFIL INDUSTRIES LTD Versus STATE OF GUJARAT
GST
2019 (2) TMI 1151 – GUJARAT HIGH COURT – 2019 (30) G. S. T. L. J53 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 26-12-2018
R/SPECIAL CIVIL APPLICATION NO. 20559 of 2018
GST
MR HARSHA DEVANI ANXD DR A. P. THAKER, JJ.
For The Respondent (s) : UCHIT N SHETH (7336)
For The Respondent (s) : ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP (99)
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Mr. Uchit Sheth, learned advocate for the petitioners invited the attention of the court to the provisions of section 7 of the Integrated Goods and Services Tax Act, 2017, to submit that by virtue of sub-section (5) thereof, supply of goods or services or both to or by a Special E
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Exemption of Igst
Query (Issue) Started By: – Piyush Kumar Dated:- 25-12-2018 Last Reply Date:- 26-12-2018 Customs – Exim – SEZ
Got 4 Replies
Customs
Hello sir
If I export an item to Nepal which I purchased locally from Bihar paying 6+6 cgst and igst…will the sales will be applicable for exemption from Igst. By
Giving letter of undertaking And how I will claim my Gst paid for purchase?
Reply By KASTURI SETHI:
The Reply:
Yes. You can export and claim refund of GST paid from t
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Taxability of Milk Chilling & Storage Charges
Query (Issue) Started By: – sanjeev agrawal Dated:- 25-12-2018 Last Reply Date:- 26-12-2018 Goods and Services Tax – GST
Got 3 Replies
GST
As per Notification No. 12/2017 dated 28 June, 2017
Agriculture produce means " Any produce out of cultivation of plants and rearing of all life forms of animals except the rearing of horses, for food, fibre, fuel, raw material or other similar products, on which either no further processing is done of such processing is done as is usually done by a cultivator or producer which does not alter its essential charateristics but makes it marketable for primary market."
As per S. no. 54 Any services relating to cultivation of plants and re
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e) dated 28.6.17 as amended:-
25.
0401
Fresh milk and pasteurised milk, including separated milk, milk and cream, not concentrated nor containing added sugar or other sweetening matter, excluding Ultra High Temperature (UHT) milk
26.
0403
Curd; Lassi; Butter milk
27.
0406
Chena or paneer, other than put up in unit containers and bearing a registered brand name;
Reply By KASTURI SETHI:
The Reply:
Chilling does not amount to manufacture as it does not change the character of the goods. It avoids to spoiling milk. CESTAT Delhi and Jaipur have decided the issue in favour of assessee but the department has filed civil writ petition in the Supreme Court. In my view, it conforms to the definition of 'agriculture produce'. Howeve
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admitted the Diary No. 10936 of 2017 filed by Commissioner of Central Excise, Jaipur against the CESTAT Final Order No. 51354/2016, dated 28-4-2016 as reported in 2018 (10) G.S.T.L. 66 (Tri.-Del.) = 2016 (4) TMI 1144 – CESTAT NEW DELHI (Acclaim Foods Private Limited v. Commissioner).
The Appellate Tribunal in its impugned order had held that the activity of chilling milk to required temperature, for and on behalf of customer, in its plant by assessee, for carrying in insulated tankers for further processing at customer's plant, as not covered under Business Auxiliary Service following decision in 2015 (37) S.T.R. 660 (Tri. – Del.) = 2014 (6) TMI 493 – CESTAT NEW DELHI SHARMA ICE FACTORY Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-I. The
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Indian Supplier to Duty-Free Shop Not 'Export' Under GST; Rule 96-A Bond/LUT Required for Duty-Free Supplies.
Case-Laws
GST
Exemption from GST – duty free shop – As the supply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'export of goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a bond/letter of undertaking (LUT) under rule 96-A of the CGST Rules, 2017.
TMI Updates – Hi
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Court Allows Interrogation of Custodial Accused in GST Evasion Case Involving Fake Invoices; Statements to be Recorded.
Case-Laws
GST
Permission to interrogate and record statement of accused
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Bail Canceled for Accused in Fake Invoice Scam Involving Bogus Companies and Dummy Proprietors.
Case-Laws
GST
Cancellation of Bail – opening bogus companies in the name of dummy proprietors a
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GST and Import Duty Levied on Goods from Duty-Free Shops Before Immigration Clearance; Customs Action Upheld.
Case-Laws
GST
Levy of GST / import duty goods purchase from Duty free shops – sho
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Cars for handicapped
Query (Issue) Started By: – Tarun Agarwal Dated:- 25-12-2018 Last Reply Date:- 26-12-2018 Goods and Services Tax – GST
Got 1 Reply
GST
Dear sir iiam a handicapped person with below knee amputation , as per GOVT norms there is some concession in GST for handicapped and they have to get a certificate from heavy industries to avail that , there is a form where doctor in which Doctor and CMO of the Hospital certified and on the basis of that ministry issues the cert
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Interest Calculation u/s 50 of CGST Act
Query (Issue) Started By: – PANKAJ KUMAR Dated:- 25-12-2018 Last Reply Date:- 27-12-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Hi..
We had liability for the month of July 2018 ₹ 50 Lakh and CENVAT of ₹ 45 Lakh, net liability comes to ₹ 5 lakh. my query is on which amount we have to pay interest u/s 50 of CGST act.
We have to pay interest on ₹ 50 Lakh as liability still not set off at the portal?
Reply By KASTURI SETHI:
The Reply:
You are required to pay interest on RS.50 lakhs as Liability was not set off and not any amount was credited into Govt . Account.
Reply By PAWAN KUMAR:
The Reply:
rightly explained by kasturi sir. on total amount of rs. 50 l
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Ancillary supplies to Health Care Services
By: – CA Akash Phophalia
Goods and Services Tax – GST
Dated:- 25-12-2018
Whether medicines, consumables and implants used in the course of providing health care services are taxable?
Introduction
Health care services always enjoy a special place in the revenue laws. Generally, health care services provided to treat the deficiency and for diagnosis of any disease is exempted form payment of tax. In this article author aims to discuss the implication about the taxability of the ancillary supplies made to patients during the course of provision of health care services.
Meaning of Health Care Services
Health care services means any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India and includes services by way of transportation of the patient to and from a clinical establishment, but does not include hair transplant or cosmetic
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nt. The out-patients are those who visit the hospital. for routine check-ups or clinical visits.
The medicines, consumables and implants are generally used in the course of providing services to the patients admitted for diagnosis or treatment in the hospital or clinical establishment is naturally bundled in the ordinary course of business. Now the moot question arises whether the said medicines, consumables and implants used for providing services to the patients admitted are taxable as an independent supply or whether the supply of medicines, consumables and implants alongwith health care services shall be classified as supply of health care services or supply of medicines.
Naturally bundled services
The concept of naturally bundled services was explained in the Education Guide issued by the C.B.E. & C. in the year 2012 (the Education Guide) and the same is borrowed in explaining the meaning of naturally bundled services under GST law vide CBEC Flyer No 4 dated 1-1-2018. The rele
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ertain services supplied during provision of health care services by hospitals. The relevant extract is reproduced here for quick reference:-
* Retention Money – Hospitals charge the patients, say, ₹ 10000/- and pay to the consultants/technicians only ₹ 7500/- and keep the balance for providing ancillary services which include nursing care, infrastructure facilities, paramedic care, emergency services, checking of temperature, weight, blood pressure, etc. Will GST be applicable on such money retained by the hospitals?
Healthcare services have been defined to mean any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India [para 2(zg) of notification No. 12/2017-C.T. (Rate)]. Therefore, hospitals also provide healthcare services. The entire amount charged by them from the patients including the retention money and the fee/payments made to the doctors etc., is towards the healt
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atients are admitted to the hospital when they are extremely ill or have severe physical trauma. As far as an in-patients are concerned, hospital is expected to provided lodging, care, medicine and food as part of treatment under supervision till discharge from hospital. The nature of the various services in a bundle of services will help in determining whether the services are bundled in the course of business. If the nature of services is such that one of the services is the, main services and other services combined with such services are in the nature of incidental or ancillary services which help in better utility of main services then the various element of the services are said to be naturally bundled in course of business. Hence the medicines, implants, room provided on rent, dietary food advised by nutritionists etc. used in course of providing. Health care services to the patients admitted for diagnosis or treatment in the hospitals or clinical establishment is undoubtedly na
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ves no control over his continuous treatment. As far as an outpatient is concerned there is no difference for procuring medicine either from the dispensing outlet within the hospital or from outside the hospital. In both places medicines dispensed based on prescription. Hence there is no privilege for the hospitals that are dispensing medicines to outpatients. Therefore pharmacy run by hospital dispensing medicine to outpatient or bystanders or others can be treated as individual supply of medicine not covered under the ambit of heath care services. Hence such supply of medicine and allied goods are taxable.
Conclusion
In view of the above analysis, legal canons and decision by AAR in 2018 (18) GSTL 831 (AAR-GST) IN RE: KIMS HEALTH CARE MANAGEMENT LTD [ 2018 (11) TMI 281 – AUTHORITY FOR ADVANCE RULINGS, KERALA ], the conclusions can be drawn as under:-
Situation
Kind of service
Taxability
Remarks
I
Out-patient services
(Diagnosis or Treatment)
Not-taxable
Such service shall
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GST Registration
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 24-12-2018 Last Reply Date:- 26-12-2018 Goods and Services Tax – GST
Got 2 Replies
GST
XYZ registered with GST in Maharashtra, have taken service contracts of machine maintenance, under which they depute their service team on sites at different states. At the customers site, the customer is providing accommodation facility in their guest house since the service contract is for a longer duration. 1) Is XYZ requi
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ITC OF RCM PAID ON GTA SERVICES AVILED ON NON TAXABLE SUPPLY
Query (Issue) Started By: – DHARMENDRA SONI Dated:- 24-12-2018 Last Reply Date:- 26-12-2018 Goods and Services Tax – GST
Got 3 Replies
GST
Dear Sir ,
We are supplier of Taxable & Exempt Product . We are paying RCM on GTA services availed for inputs of both type of supplies. Kindly suggest us can we take ITC of RCM paid for both types of supplies.
Reply By KASTURI SETHI:
The Reply:
Under RCM, first you will pay in cash.
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GST INPUT ON SALE PROMOTION
Query (Issue) Started By: – neeta gupta Dated:- 24-12-2018 Last Reply Date:- 25-12-2018 Goods and Services Tax – GST
Got 2 Replies
GST
If we buy t-shirts, key chains etc. and send this for free distribution along with supply for sale promotion. Can we get the input GST on purchase?
Also distribute some gifts under scheme, Can we use GST input?
Reply By KASTURI SETHI:
The Reply:
If such promotional scheme is without any written contract, ITC will not b
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Switchover of GST registration from Compositon to regular
Query (Issue) Started By: – rohit khan Dated:- 24-12-2018 Last Reply Date:- 25-12-2018 Goods and Services Tax – GST
Got 2 Replies
GST
If a business is Registered under Composition Scheme of GST and crosses Limit of 1.5 crores within the financial year, Business registration has to change to Regular. and the business has to submit GSTR-4 for the current quarter and GSTR-1 also from the month in which he crossed the limit. But
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GST Rate Set at 5% for Retrofitting Twin Pipe Air Brake Systems on Railway Wagons as Composite Supply.
Case-Laws
GST
The Applicant’s contract for retro-fitment of Twin Pipe Air Brake System
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Agricultural Soil Testing Minilab Reagents Classified Under GST Tariff Heading 9027, Not Eligible for Exemption Under 8201.
Case-Laws
GST
Classification of goods – rate of tax – Agricultural
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Renting workwear under Schedule II, entry 5(f) of CGST Act 2017 is a mixed supply with services like washing.
Case-Laws
GST
The activities/transactions of renting of workwear qualify as “transfer of right to use” of goods in terms of entry 5 (f) of Schedule II of Central Goods and Services Act, 2017. – Renting of work wear along with other services such as transportation, weekly washing etc. is mixed supply.
TMI Updates – Highlights, quick notes, marquee, annotation, news, alert
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Limestone slabs classified under Chapter 68 of Customs Tariff Act, 1975, not under Chapter 25.
Case-Laws
GST
Classification of goods – Polished / Processed limestone slabs – The commodity “
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The Commissioner of Central Tax, GST Delhi (West) Versus Rajesh Jindal
GST
2018 (12) TMI 1351 – PATIALA HOUSE COURT – TMI
PATIALA HOUSE COURT – DSC
Dated:- 24-12-2018
Application No. 3040/18 Case No. 1594/18
GST
DEEPAK SHERAWAT, CHIEF METROPOLITAN MAGISTRATE
NEW DELHI DISTRICT PATIALA HOUSE COURT
Present:
Sh. Harpreet Singh, Senior Standing Counsel alongwith Sh. Suresh Chaudhary, Ld. Counsel for complainant department.
Superintendent Vijay Kumar and Inspector/ IO Sahil Yadav are present.
Both applications have been moved on behalf of department seeking permission to interrogate and record statement of accused Rajesh Jindal and Adesh Jain in judicial custody.
It is stated that vide order dt. 22.12.18, Ld. Sessis
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Kerala State Screening Committee on Anti-profiteering. Director General Anti-Profiteering, Central Board of Indirect Taxes & Customs, Versus M/s. Asian Granito India Ltd.,
GST
2018 (12) TMI 1401 – NATIONAL ANTI-PROFITEERING AUTHORITY – 2019 (20) G. S. T. L. 389 (N. A. P. A.)
NATIONAL ANTI-PROFITEERING AUTHORITY – NAPA
Dated:- 24-12-2018
Case No. 21/2018
GST
SH. B. N. SHARMA, CHAIRMAN SH. J. C. CHAUHAN, TECHNICAL MEMBER, MS. R. BHAGYADEVI, TECHNICAL MEMBER, SH. AMAND SHAH, TECHNICAL MEMBER
Smt. A. Shainamol, Additional Commissioner, SGST, Kerala for the Applicant No. 1.
Sh. Anwar Ali T. P., Additional Commissioner for the Applicant No. 2.
ORDER
1. The present report dated 27.09.2018, has been received from the Applicant No. 2 i.e. The Directorate General of Anti-Profiteering (DGAP) after detailed investigation under Rule 129 (6) of the Central Goods & Service Tax (CGST) Rules, 2017. The brief facts of the case are that the Kerala State Screening Committee on An
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-10 MM & Granure Hard Crema-10 MM Tiles (HSN code 69072100) was reduced from 28% to 18% w.e.f. 15. 11.2017, vide Notification No. 41/2017-Central Tax (Rate), dated 14.11.2017. The DGAP has further stated that on scrutiny of the said two invoices issued by the Respondent, it was revealed that the pre & post GST rate reduction sale details and discounted base prices (excluding GST) of the said products were as follows:-
Sl.No.
Pre-revision (before 15.11.2017)
Post-revision (after 15.11.2017)
Difference in Price (in Rs.)
Invoice No./Date
Tax Rate
Price per Box (in Rs.)
Invoice No./Date
Tax Rate
Price per Box (in Rs.)
1.
1101171B/G01063 dated 30.08.2017
28%
743.95/-
110/1716/G02733 dated 28.11.2017
18%
743.95/-
–
2.
1110/1716/G01063 dated 28.11.2017
28%
650.93/-
1110/1716/G02733 dated 28.11.2017
18%
650.92/-
-0.01/-
4. The DGAP has further stated that the aforementioned supporting invoices show that the Respondent did not increase the per un
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passed on or not to the recipient as provided under Section 171 of the CGST Act. From the invoices referred above, it is evident that the base prices of both the products had remained same. It is also observed from the Annexure-6 attached with the Kerala Screening Committee's report that sale price of these products was reduced from Rs. 1037.52 (pre-GST revision) to Rs. 840.68 (post-GST revision) when the GST rate on the above items was revised from 28% to 18%. Thus it is clear that the base prices have not changed and accordingly the selling prices of the products have been reduced. This fact has also not been disputed by the representative of the Applicant No. 1.
7. It is apparent from the perusal of the facts of the case that the Respondent has duly passed on the benefit of reduction in the tax rate by keeping the base price constant thus reducing the selling price of the products in question. Therefore the anti-profiteering provisions contained in Section 171 (1) of the CGST
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State Level Screening Committee on Anti-Profiteering, Kerala., Director General Anti-Profiteering, Central Board of Indirect Taxes & Customs, Versus M/s. Peps Industries Pvt. Ltd.,
GST
2018 (12) TMI 1402 – NATIONAL ANTI-PROFITEERING AUTHORITY – 2019 (20) G. S. T. L. 377 (N. A. P. A.)
NATIONAL ANTI-PROFITEERING AUTHORITY – NAPA
Dated:- 24-12-2018
Case No. 22/2018
GST
SH. B. N. SHARMA, CHAIRMAN, SH. J. C. CHAUHAN, TECHNICAL MEMBER, MS. R. BHAGYADEVI, TECHNICAL MEMBER, SH. AMAND SHAH, TECHNICAL MEMBER
Ms. A. Shainamol, Additional Commissioner, SGST, Kerala for the Applicant No. 1.
Sh. Anwar Ali T. P. Additional Commissioner for the Applicant No. 2.
ORDER
1. The present report dated 27.09.2018, has been received from the Applicant No. 2 i.e. The Directorate General of Anti-Profiteering (DGAP) after detailed investigation under Rule 129 (6) of the Central Goods & Service Tax (CGST) Rules, 2017. The brief facts of the case are that The Kerala State Screening Committ
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CGST Rules, 2017.
3. The DGAP has stated in his report dated 28.09.2018 that in the pre-GST era, the applicable Central Sales Tax (CST) on the product 'Peps Spring Koil Bornell Normal Maroon 75x60x6″ Mattress” was being levied @ 2% and Central Excise Duty @ 12.5%. In the post GST era the rate of tax was levied @ 28%. Details of the invoices issued by Respondent are as per the table given below:-
S.No.
Description of the product supplied
Pre GST rate
Post GST rate
Difference (in Rs.)
Invoice No.& Date
CST Rate
Central Excise Duty Rate
Price excluding Taxes (in Rs.)
Invoice No. & Date
GST rate
Price excluding GST (in Rs.)
1.
Peps Spring Koil Bornell Normal Maroon 75X60X6″ Mattress (HSN 94042910)
2901 dated 30.06.2017
2%
12.5%
7,293
C/0014196 dated 09.08.2017
28%
7,986
693
C/002255 dated 15.06.2017
2%
12.5%
7,293
C/003495 dated 21.07.2017
28%
7,643
350
4. After scrutiny of the above four invoices issued by the Res
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, Additional Commissioner, SGST, Kerala appeared on behalf of the Applicant No. 1. During the hearing she agreed with the report submitted by the DGAP.
6. We have carefully examined the report of the DGAP and the documents placed on record and find that the only issue that need to be dwelled upon in as to whether there is a case of reduction in the rate of tax and whether the provision of section 171 of CGST Act, 2017 are attracted in the case.
7. Perusal of Section 171 of the CGST Act shows that it provides as under:-
(1). “Any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall be passed on to the recipient by way of commensurate reduction in prices.”
8. It is clear from the perusal of the facts of the case that there was no reduction in the rate of tax on the above product w.e.f. 01-07-2017 and that the rate of tax on the said product has increased from 14.5% (2% CST + 12.5% Excise) to 28% and therefore the allegation of profiteer
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