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2018 (10) TMI 1521 – GUJARAT HIGH COURT – 2018 (19) G. S. T. L. 430 (Guj.) , [2019] 61 G S.T.R. 20 (Guj) – Transitional Credit – validity of period of limitation – CENVAT credit of excise duty paid on capital goods which were in transit as on 01.07.2017 – inputs/capital goods – Vires of of Article 14 and 19(1)(g) of the Constitution of India – Gujarat Goods and Service Tax Act – IGST Act.
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Held that:- Subsection (5) of section 140 allows a registered person, credit of eligible duties and tax in respect of inputs or input services which were received on or after the appointed day but on which the tax was paid earlier. In absence of any matching provisions pertaining to capital goods, in a situation where the duty had been paid on purchase of goods prior to the appointed day but the goods were received on or after the appointed day, there would be no possibility of availing credit on such tax under the GST regime.
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The legislature made a clear and conscious demarcation between

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inite period of time.
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If it is accepted that there is no time period for claiming input tax credit as contained in section 19(11), the provision would become too flexible and would give rise to large number of disputes including of verification of claim of input credit. Taxing statutes contained self contains scheme of levying computation and calculation of tax. The time under which a return is to be filed for the purpose of assessment of tax cannot be dependent on the will of a dealer.
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The statute in any manner do not violate Article 14 or 19(1)(g) of the constitution – petition dismissed. – R/Special Civil Application No. 22056 of 2017 Dated:- 16-10-2018 – Mr. Justice Akil Kureshi And Mr. Justice B.N. Karia For the Petitioner(s) : Mr Anand Nainawati(5970) For the Respondent(s) : Mr Nirzar S Desai (2117), Mr Sudhir M Mehta (2058) And Notice Served(4) ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioner has prayed for a declaration that the action of the

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07.2017, a manufacturer would be entitled to take CENVAT credit of duty paid on inputs as well as on capital goods utilized in the manufacturing process, subject to conditions and restrictions provided in the CENVAT Credit Rules, 2004. With the introduction of Integrated Goods and Service Tax Act ('IGST Act' for short) and Gujarat Goods and Service Tax Act ('GGST Act' for short) with effect from 01.07.2017, such facility enabling the manufacturers to take credit of the duties paid on inputs as well as capital goods continued with certain modifications. CGST Act also contains transitional provisions as per which, unutilized CENVAT credit could be brought over to the GST regime. Such facility of migration would be available both in relation to inputs as well as capital goods. The statute also makes provisions to enable the assessee to avail the credit of duty paid on inputs which were in transit as on 01.07.2017. However, when it comes to the question of taking credit of

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ve been purchased prior to 01.07.2017 but received by an assessee after said date, from the facility of availing benefit of excise duty paid on such capital goods. In this context, counsel for the petitioner raised following contentions: I. Section 140 of the CGST Act is a transitional provision which covers the situation of migration of unutilized CENVAT credit; both pertaining to input and capital goods. This provision also enables the assessee to take credit of the excise duty paid on inputs in transit. An artificial distinction is made only with respect to the capital goods in transit which is discriminatory and arbitrary. II. It was contended that the classification between capital goods and inputs was an artificial demarcation. In order to be reasonable, such classification must have rational relation with the objects sought to be achieved. III. Reference was made to the decision in case of Shayara Bano v. Union of India and others (MINISTRY OF WOMEN AND CHILD DEVELOPMENT SECRETA

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in economics sphere and tax legislation, the legislature has grater latitude. The Court cannot strike down a statutory provision merely on the opinion that the same is unreasonable or harsh. 7. Under the erstwhile Central Excise Rules, 1944, rule 57Q was inserted vide notification dated 01.03.1994. Subrule (1) of rule 57Q essentially provided the benefit of duty paid on capital goods used by the manufacturer in his factory for payment of duty of excise leviable on its final product subject to conditions contained therein. Term capital goods defined in the definition below subrule (1). Subrule (2) of rule 57Q provided that notwithstanding anything contained in subrule (1), no credit of the specified duty paid on capital goods shall be allowed if such duty has been paid on such capital goods before first day of March 1994. Thus, this rule for the first time granted the facility of utilizing the specified duty paid on capital goods used by the manufacturer in the factory discharging its

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al goods received by the provider of output services or the manufacturer of final products can claim the credit of duty paid on such capital goods for an amount not exceeding 50% of such duty in the same financial year and the balance credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer or the premises of the goods of output services. 9. Section 2(19) of the CGST Act defines the term capital goods as to mean the goods, the value of which is capitalized in the books of account of the person claiming the input tax credit and which are used or intended to be used in the course or furtherance of business. Term 'input' is defined in section 2(59) as to mean any goods other than capital goods used or intended to be used by a supplier in the course or furtherance of a business. Section 2(62) defines the term 'input tax' in relation to a registered person as to mean the Central tax

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achinery under the provisions of the Income Tax Act, 1961, the input tax credit on the said tax component shall not be allowed. 11. Section 17 of CGST Act pertains to apportionment of credit and blocked credits. Subsection (1) of section 17 provides that where the goods or services or both are utilized by the registered person partially for the purpose of any business and partially for other purposes, the amount of credit shall be restricted to so much of the input tax as is attributable to the purposes of his business. Likewise, subsection (2) of section 17 provides that where the goods or services or both are used by the registered person partially for affecting taxable supplies including zero rated supplies and partially for exempt supplies, the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies including zero rated supplies. 12. Rule 43 of the Central Goods and Service Tax Rules, 2017 ('CGST Rules' for short) pro

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be prescribed: PROVIDED that the registered person shall not be allowed to take credit in the following circumstances, namely:- (i) where the said amount of credit is not admissible as input tax credit under this Act; or (ii) where he has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date; or (iii) where the said amount of credit relates to goods manufactured and cleared under such exemption notifications as are notified by the Government. (2) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, credit of the unavailed CENVAT credit in respect of capital goods, not carried forward in a return, furnished under the existing law by him, for the period ending with the day immediately preceding the appointed day in such manner as may be prescribed: PROVIDED that the registered person shall not be allowed to take credit unless th

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he appointed day: Provided that the period of thirty days may, on sufficient cause being shown, be extended by the Commissioner for a further period not exceeding thirty days: Provided further that said registered person shall furnish a statement, in such manner as may be prescribed, in respect of credit that has been taken under this subsection. 14. These statutory provisions make a few things clear. Facility to avail credit on excise duty paid on capital goods used by the manufacturer in his factory for discharging duty liability on the finished products was made available under rule 57Q of the Central Excise Rules, 1945 with effect from 01.03.1994. This continued even under the CENVAT credit Rules, 2004, subject to conditions. As per clause, subrule (2) of rule 4 of the CENVAT credit Rules, 2004, would be restricted to a maximum of 50% of the duty paid on such capital goods in the financial year in which the capital goods were received in the factory of the manufacturer. Remaining 5

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allowed. Similarly, subsections (1) and (2) of section 17 which pertain to restriction of the tax credit when the goods or services are utilized partially for business purpose and partially for other purposes or partially for affecting taxable supplies and partially for nontaxable supplies, also makes no distinction between capital goods and inputs. Rule 43 of the CGST Rules makes detailed provision for working out such restriction on eligibility of input tax credit on capital goods to which subsections (1) or (2) of section 17 would apply. 16. However, when it comes to the transition from the central excise to GST regime, the legislature has made slightly different provisions for credit on inputs and capital goods. In this context, section 140 of the CGST Act assumes significance. Subsection (1) of section 140 enables a registered person other than a person who has opted for payment of tax on composition basis to carry forward CENVAT credit of eligible duties in relation to the perio

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t of which has been paid by the supplier under the existing law, subject to the condition that the invoice or any other duty or tax paying document of the same was recorded in the books of account of such person within a period of thirty days from the appointed day. As per the proviso to subsection (5) such period could be extended by the Commissioner for a further period not exceeding thirty days on sufficient cause being shown. 17. Very clearly thus subsection (5) of section 140 allows a registered person, credit of eligible duties and tax in respect of inputs or input services which were received on or after the appointed day but on which the tax was paid earlier. In absence of any matching provisions pertaining to capital goods, in a situation where the duty had been paid on purchase of goods prior to the appointed day but the goods were received on or after the appointed day, there would be no possibility of availing credit on such tax under the GST regime. 18. It can thus be seen

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rangements. Chapter XX of the CGST Act, as noted, contains transition provisions. Section 140 contained in the said chapter makes detailed provisions for transitional arrangements for input tax credit. Subject to contentions and in the manner as may be prescribed, the unused tax credit would be migrated to the GST regime. This section also would enable a registered person to claim credit of the duty paid prior to the appointed day on the inputs even though the inputs may be received after the appointed day. This section consciously does not provide any such facility in relation to the capital goods in transit. This demarcation itself would not be artificial, arbitrary or in any manner, discriminatory. The capital goods and inputs used in manufacturing process have always been treated differently and distinct treatment have been given under the earlier statutes. If the legislature therefore was of the opinion that in relation to capital goods in transit, duty paid before the appointed d

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s it appears that the suggestion of the respondents is that unlike inputs, the capital goods which can be in the nature of plant and machinery including highly sophisticated specially designed and manufactured machines, may take much longer time for delivery and installation after the orders are placed by the manufacturers and the legislature was not inclined to keep the issues of migration of tax credits and pending claims open for indefinite period of time. 21. In case of R.K.Garg v. Union of India and others reported in (1981) 4 SCC 675 the constitution bench of the Supreme Court held that every legislation particularly in economic matters is essentially empiric and it is based on experimentation. It was further held and observed as under: 7. Now while considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well established principles which have been evolved by the courts as rules of guidance in discharge of it

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ts such as freedom of speech, religion etc. … … … 10. The court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry" that exact wisdom and nice adoption of remedy are not always possible and that "judgment is largely a prophecy based on meagre and uninterpreted experience". Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There, may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out b

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light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. 22. In case of Jayam & Company v. Assistant Commissioner & Anr., reported in [2016] 15 SCC 125, the Supreme Court while upholding the validity of section 19(20) of the Tamilnadu Value Added Tax Act, 2006, made following observations: 12. It is a trite law that whenever concession is given by statute or notification, etc., the conditions thereof are to be strictly complied with in order to avail of such concession. Thus, it is not the right of the "dealers" to get the benefit of ITC but its a concession granted by virtue of section 19. As a fortiorari, conditions specified in section 10 must be fulfilled. In that hue, we find that section 10 makes original tax invoice relevant for the purpose of claiming tax. Therefore, under the scheme of the VAT Act, it is

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mited, reported in [2017] 16 SCC 28 it was held and observed that how much tax credit should be given and under what circumstances, is a domain of a legislature. 24. In a recent judgment dated 12.10.2018, in case of ALD Automative Pvt. Ltd. v. The Commercial Tax Officer, the Supreme Court confirmed the judgment of the Madras High Court upholding validity of section 19(20) of Tamilnadu Value Added Tax Act, 2006, the special provision provides that in case of any registered dealer fails to claim input tax credit in respect of any transaction of taxable purchase in any month, he shall make the claim before the end of the financial year or before 90 days from the date of purchase whichever is later. This provision thus provided time limit for a dealer to claim tax credit in respect of transaction of taxable purchase. This provision was attacked on the ground that it laid down restrictions on enjoyment of input tax credit which the main provision granting such facility does not envisage. It

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GST – States – 54/2018 – State Tax – Dated:- 16-10-2018 – No.J.21011/2(ii)/2018-TAX/Part GOVERNMENT OF MIZORAM TAXATION DEPARTMENT NOTIFICATION No. 54/2018 – State Tax Dated Aizawl the 16th Oct., 2018 In exercise of the powers conferred by section 164 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Governor of Mizoram hereby makes the following rules further to amend the Mizoram Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Mizoram Goods and Services Tax (Twelfth Amendment) Rules, 2018. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Mizoram Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), in rule 89, for s

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

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ary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme. . Sd/-VANLAL CHHUANGA Commr. & Secretary to the Govt. of Mizoram, Taxation Department. Note:- The principal rules were published in the Government of Mizoram notification No. J.21011/1/2014-TAX-Loose, dated the 29th June,2017, and last amended vide notification No. 49/2018-State Tax, dated the 25th September, 2018. – Not

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GST – States – 53/2018 – State Tax – Dated:- 16-10-2018 – No.J.21011/2(1)/2018-TAX/Part GOVERNMENT OF MIZORAM TAXATION DEPARTMENT NOTIFICATION No. 53/2018 – State Tax Dated Aizawl the 16th Oct., 2018 In exercise of the powers conferred by section 164 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Governor of Mizoram hereby makes the following rules further to amend the Mizoram Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Mizoram Goods and Services Tax (Eleventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 23rd October, 2017. 2. In the Mizoram Goods and Services Tax Rules, 2017, in rule 96, for sub-rule (10), the following sub-rule shall

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GST – States – J.21011/2/2018-TAX/Pt – Dated:- 16-10-2018 – No.J.21011/2/2018-TAX/Pt GOVERNMENT OF MIZORAM TAXATION DEPARTMENT Aizawl, the 16th Oct., 2018 Subject: reg Circular No.J.21011/2(i)/2018-TAX/Pt dated 26.09.2018, vide which Guidelines for Deductions and Deposits of TDS by the DDO under GST had been issued by the State Tax Department. 2. On the recommendation of the Controller General of Accounts, the Department of Revenue, hereby issues the following modifications to the said Circula

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GST – States – F.12(46)FD/Tax/2017-Pt-V-123 – Dated:- 16-10-2018 – GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (TAX DIVISION) NOTIFICATION Jaipur, dated: October 16, 2018 In exercise of the powers conferred by section 164 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), the State Government hereby makes the following rules further to amend the Rajasthan Goods and Services Tax Rules, 2017, namely 1. Short title and commencement.- (1) These rules may be called the Rajasthan Goods and Services Tax (Twelfth Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 9th October, 2018. 2. Amendment of rule 89.- The existing sub-rule (4B) of rule 89 of the Rajasthan Goods and Services Tax Ru

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otification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299(E), dated the 13th October, 2017, the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted. . 3. Amendment of rule 96.- The existing sub-rule (10) of rule 96 of

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on 3, Sub-section (i), vide number G.S.R 1321 (E), dated the 23rd October, 2017 has been availed; or (b) availed the. benefit under notification number 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme. . [F.12(46)FD/Tax/2017-Pt-V-123] By Order of the Governor, (Anandhi) Joint Secreta

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GST – States – F.12(46)FD/Tax/2017-Pt-V-122 – Dated:- 16-10-2018 – GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (TAX DIVISION) NOTIFICATION Jaipur, dated: October 16, 2018 In exercise of the powers conferred by section 164 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), the State Government hereby makes the following rules further to amend the Rajasthan Goods and Services Tax Rules, 2017, namely;- 1. Short title and commencement.- (1) These rules may be called the Rajasthan Goods and Services Tax (Eleventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 23rd October, 2017. 2. Amendment of rule 96.- The existing sub-rule (10) of rule 96 of the Rajasthan Goods and Services Ta

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N.V.K. MOHAMMED SULTHAN RAWTHER AND SONS AND WILLSON Versus UNION OF INDIA THROUGH ITS SECRETARY (REVENUE) , MINISRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI, THE COMMISSIONER, GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM, THE STATE TAX OFFICER CIRCLE II, COMMERCIAL TAX DEPARTMENT, DINDIGUL, ASSISTANT STATE TAX OFFICER SQUAD NO. 11, STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD – 2018 (11) TMI 1503 – KERALA HIGH COURT – TMI – Jurisdiction – scope of adjudication proceedings – detention of goods – Ground Betel Nuts (Arecanuts) – dispute with regard to rate of tax and classification of the goods – case of petitioner is that dispute about the rate of tax is not a matter for adjudication in a proceeding under Section 68 or 129 of the GST Act.
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Held that:- The classification or the alleged misbranding of the product-even the alleged tax variation, not evasion though-cannot be considered here – the writ’s province is restricted. It is, indeed, for the assessing authoriti

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ing authority to initiate the proceedings “for assessment of any alleged sale, at which the petitioner will have all his opportunities to put forward his pleas on law and on fact.” Indeed, emphatic is the enunciation of law in Rams that the process of detention of the goods cannot be resorted to when the dispute is bona fide, especially, concerning the exigibility of tax and, more particularly, the rate of that tax.
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Thus, it can be concluded that the Ext.P11 is arbitrary and unsustainable, and is accordingly set aside – the Assistant State Tax Officer will release the goods forthwith – petition allowed. – WP (C). No. 32324 of 2018 Dated:- 16-10-2018 – MR DAMA SESHADRI NAIDU, J. For The Petitioner : ADVS. SRI. K. I. MAYANKUTTY MATHER KUM. NARAYANI HARIKRISHNAN AND SRI. R. JAIKRISHNA SREEKALA ASOKAN For The Respondent : ADV. MR. R. PREMSANKAR, CGC BY DR. THUSHARA JAMES, GOVERNMENT PLEADER JUDGMENT The first petitioner is a manufacturer of Ground Betel Nuts (Arecanuts) with the bra

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he petitioners had allegedly been trying to evade tax by misdescribing the product. 4. Served with the Exhibit P11 detention notice, dated 26.09.2018, the petitioners authorised representative met the ASTO and explained about the genuineness of the transport. He tried to impress upon the authority that there was neither misclassification nor evasion of tax. But the ASTO remained unconvinced. Aggrieved, the petitioners filed this Writ petition. 5. The petitioners seek the Court to (a) declare that the petitioners Arecanut Ground with HSN 0802 attracts GST only at 5%, as in item falling under Serial No. 28 of Schedule I of G.O.(P) No. 62/2017/TAXES, as amended; (b) direct the authority not to detain the petitioners commodity en route alleging that the rate of tax is 18% and not 5% as shown in the invoices; (c) direct the ASTO to release the lorry and goods (arecanut) covered by the Exts.P9 and P10, as carried in Lorry No. TN-37-BS-9384, forth with. Submissions: The Petitioners : 6. In th

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he relies on M/s. Crane Betal Nut Powder Works v. Commissioner of Customs and Central Excise, Tirupati (2007) 4 SCC 155. He also contends that ASTO s detaining the consignment is arbitrary, unjust, and without jurisdiction, too. 9. To elaborate, Sri Mather submits that the detention power conferred on the officers, either under Section 68 or Section 129, must be exercised only under the circumstances and grounds set out in those provisions. He also submits that Section 122 of the GST Act defines the offences warranting imposition of penalty. Misclassification of goods in the invoice, according to him, is not an offence falling under either Section 122, 67, or 68 of the Act. 10. About the HSN Code, too, Sri Mather has extensively argued. But I reckon the adjudicatory scope of this writ petition confines itself to detention and release of goods. Classification-or rather misclassification-of a commodity is not within the scope of this writ; that issue goes beyond it. 11. In the end, Sri

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a particular rate cannot be assailed. Referring to the Exts.P8 and P8(a) returns, Dr. James contends that returns are filed under the statutory mandate. Unless those returns are subjected to scrutiny and upheld, they remain, according to her, the assessee s mere self-declaration. She thus asserts that a return can only mean a true and correct return, accepted by the authorities on scrutiny and verification. 15. To elaborate on the tax regime and the statutory scheme, Dr. James has taken me through various provisions including Sections 31, 95, and 122, besides Rule 46 of the KSGST Rules. She repeatedly stressed that the petitioners have an efficacious alternative remedy and that they ought to have taken recourse to it. For her, the petitioners effort before this Court is premature, and any adjudication at this stage will stultify the statutory authority s efforts at fair adjudication. 16. Heard Sri Mayankutty Mather, the petitioners counsel, and Dr. Thushara James, the Government Pleade

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of the product turn on its classification. Is it simple betel nut ground to a particular size with certain additions for easy human consumption? Has the product lost its character as betel nut? On the other hand, is the petitioners product supari, which is distinctively a different product, having betel nut as one of its ingredients? 20. Granted, Mr. Mather relied on the Supreme Court s Crane Betal Nut Powder Works. Further granted, the Supreme Court in that has held that by crushing betel nuts and processing them with spices and oils, a new product could be said to have come into being which attracted duty separately under the Schedule to the Tariff Act. 21. Then, the Court has held that the process of manufacture employed by the appellant company did not change the nature of the end product: The betel nut remains a betel nut . Sri Mather has also produced literature before the Court, besides the brochures of supari producers, to underline what supari is and how it differs from mere b

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mechanism. Now, we focus on the release of the product, and it lies in narrow confines. Suffice it for me to examine this singular issue: Can the State Tax Officer invoke Section 129 of the Act and detain goods on the ground the tax paid on the product is less? Here, the documents are in order and the product description accords with what the first petitioner has already declared, say, in his returns before the assessing authority. Then, can the ASTO still hold up the consignment because the declaration already made does not suit his notion of what the product is? 25. True, a literal reading of Section 129 of the Act presents a different picture and, perhaps, lends support to the State s view. But purposive interpretation and the practical commercial considerations trump that view. 26. Chapter XVI of the Combined Acts deals with inspection, search, and seizure. Section 129 under Chapter XIX provides the mechanism for detention, seizure, and release of goods and conveyances in transit.

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he first petitioner s purchase and supply invoices. 28. The Exts.P8 and P8(a) are important; they are the first petitioner s recent GST returns for June and August, 2018. In those returns, the first petitioner has assigned the same HSN Code, as he did reflect in the Ext.P9 invoice. He paid tax only at 5%. Thus the documents before the assessing authority and those that accompanied the consignment accord with one another. 29. In this context, we may examine J.K. Synthetics Limited v. Commercial Taxes Officer (1994) 4 SCC 276. On how to interpret Tax Statutes, the Supreme Court has held that charging provisions must be construed strictly, but not the machinery provisions, which should be construed like any other statute . It has also held that the power to levy and collect interest is substantive law though part of machinery provision . 30. In J.K. Synthetics Limited the issue was whether the appellant should pay interest on the additional sales tax. The Revenue, as it has done here, con

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course, the tax so deposited is to be deemed to be provisional and subject to necessary adjustments under the final assessment. 31. To support its ratio, J.K. Synthetics Limited accepts the minority of view in Associated Cement Co. Ltd.. v. CTO (1981) 4 SCC 578. And it has finally held that if the assessee pays the tax, which according to him is due based on the information supplied in his return, there would be no default on his part to meet his statutory obligation. Therefore, it would be difficult to hold that the 'tax payable' by him 'is not paid' and that he is liable for consequences. 32. The correctness of the Exts.P8 and P8(a) accepted, as held in J. K. Synthetics Limited, we will examine what amounts to statutory violation or contravention under Section 129 of the Act. Apt is the case decided by this Court: Rams v. Sales Tax Officer. The petitioner in Rams contracted with the Government of India to print and supply a large number of telephone directories. For

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there was any taxable sale at all. Rams, then, further observes: In such cases it is not for the check-post authority to act on mere suspicion and to find that there is any attempt at evasion of payment of tax, which alone vests him with the jurisdiction to act under S. 29A. At best, he can only alert the assessing authority in Ernakulam to initiate proceedings for assessment of any alleged sale, at which the petitioner will have all his opportunities to put forward his picas on law and on fact. The process of detention of the goods at the check post, cannot be resorted to in such cases when there is a bona fide dispute regarding the very existence of a sale and exigibility for tax. S. 29 A is not intended to subserve such an object. 35. I may examine the impugned Ext.P11 notice, or in other words the act of detention, in the light of the dicta in J.K. Synthetics Limited and Rams. In the former, the Supreme Court has emphatically held that if the dealer furnishes all particulars about

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specting authority can alert the assessing authority to initiate the proceedings for assessment of any alleged sale, at which the petitioner will have all his opportunities to put forward his pleas on law and on fact. Indeed, emphatic is the enunciation of law in Rams that the process of detention of the goods cannot be resorted to when the dispute is bona fide, especially, concerning the exigibility of tax and, more particularly, the rate of that tax. Conclusion: 37. I reckon that the case before me falls within the adjudicatory ambit of both J.K. Synthetics Limited and Rams. I, accordingly, hold that the Ext.P11 is arbitrary and unsustainable, and is accordingly set aside. As a result, the Assistant State Tax Officer will release the goods forthwith. 38. I, however, clarify that this Court has not given any judicial imprimatur to the petitioners' classification of goods or the HSN Code they have applied. The Revenue is at liberty to initiate appropriate proceedings if they deem i

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2018 (11) TMI 1523 – CESTAT HYDERABAD – TMI – Renting of immovable property services – penalty – Held that:- I do find that the appellant had intimated the lower authority regarding the discharge of service tax liability and the interest thereof on 17.09.2012. The appellants were correct in following the law and are eligible for the benefit of Section 80(2) of the Finance Act, 1994 – having discharge of service tax liability within time there was no reason to visit the appellant on any penalty. The penalty imposed on appellant is set aside.
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Demand of ineligible CENVAT credit – Held that:- The submission of the Counsel seems to be acceptable these payments were made from the head office as a receiver of the services. In my view, the Adjudicating Authority should consider the plea of the appellant in its correct perspective and go through the documents and come to a conclusion as to the correctly availed the CENVAT credit – the matter is remitted back to the Adjudicating Authority

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its that in respect of Renting of immovable property service, the service tax amount of ₹ 20,116/- and interest thereof was paid by the appellant on 17.09.2012 when the Order-in-Original was passed. It is his submission that this payment is complying with the provisions of Section 78 of the Finance Act, 1994 which was granted to the appellant if the tax amount and interest is paid within six months of date on which the payment is made i.e. 28.05.2012. He submits that the First Appellate Authority has not considered the payment of service tax and not set aside the penalty involved. As regards the CENVAT credit availed on various input services, he draws my attention to the chart prepared by them. The CENVAT credit of service tax paid on various input services like Telephone charges, Mobile Charges, Advertisement, Vehicle Servicing and Polishing, Travels, Insurances, Cleaning, Courier and Security Services. He draws my attention to the specimen invoices enclosed and produced before

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unt of service tax liability and the interest in respect of Renting of immovable property services is discharge within six months from 28.05.2012. In view of this, I find that having discharge of service tax liability within time there was no reason to visit the appellant on any penalty. The penalty imposed on appellant is set aside. 7. As regards the confirmation of the demand of ineligible CENVAT credit, I find both the lower authorities have not recorded any findings as to the submissions made by the Learned Counsel before them on the eligible to avail the CENVAT credit of service tax paid on various services like telephone, Mobile charges etc. On causal perusal of the documents enclosed, which are voluminous in nature, I find that the submission of the Counsel seems to be acceptable these payments were made from the head office as a receiver of the services. In my view, the Adjudicating Authority should consider the plea of the appellant in its correct perspective and go through th

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2019 (1) TMI 235 – CESTAT NEW DELHI – TMI – Waste product or not – gad, sludge, acid oil and spent earth, etc. – N/N. 89/95–CE dated 18.05.1995 – whether the impugned by-products arising in the course of said crude vegetable oils are to be treated as waste or not? – Held that:- This issue has been dealt with by this Tribunal in Ricela Health Foods Ltd. Vs. CCE, Chandigarh & Allahabad [2018 (2) TMI 1395 – CESTAT NEW DELHI] where it was held that the removal of unwanted materials resulting in products like gum, fatty acid and wax (as therein) cannot be called as the process of manufacture of these products and the same cannot be considered to be manufactured excisable goods. It was further held that same were merely waste and thus eligible for exemption under Notification No. 89/95-CE.
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The Order confirming the demand even for the normal period is therefore not sustainable – Appeal allowed – decided in favor of appellant. – Excise Appeal No. E/52742/2018 [DB] – A/53337/2018-EX[DB]

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Notification No. 115/75-CE dated 30.04.1975 despite that the exemption of the said Notification has been withdrawn by the Notification No. 21/2006-CE dated 01.03.2006. Resultantly, two Show Cause Notices dated 05.02.2014 for the period w.e.f. 01.04.2010 to 31.12.2013 demanding a duty of ₹ 46,18,619/- and dated 03.02.2015 for the period 01.01.2014 to 31.12.2014 demanding a duty ₹ 14,74,980/- respectively were served upon the appellant under Section 11A(1) of Central Excise Act, 1944. The interest at appropriate rate and the proportionate penalties were also proposed. The said demand was confirmed vide Order No. 34-35 dated 21.09.2015. Being aggrieved the Appeal was before the Commissioner(Appeals) who vide the Order under challenge had upheld the demand for the normal period of limitation only and the penalty was reduced to ₹ 5 lakhs instead of penalty of ₹ 46,18,619/- + ₹ 3 lakhs. Still being aggrieved, the appellant is here before this Tribunal. 2. We ha

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prayed to be set aside and Appeal is prayed to be allowed. Ld. Counsel has relied upon the decision of this Tribunal in appellants own case titled as Arihant Solvex Pvt. Ltd. Vs. CCE, Jaipur 2015(316) ELT 290(Tri.-Del.). 4. Per contra, Ld. DR has justified the impugned order impressing upon that Commissioner (Appeals) has been justified and reasonable while appreciating the entire facts and circumstances. There are enough reasons recorded in the Order for not considering the decisions of appellant s own case. Appeal is accordingly prayed to be dismissed. 5. After hearing both the parties and going through the entire record of the present Appeal, we observe and held as follows:- The admitted fact of the case is that the appellant manufactures refined vegetable oil by processing of crude oil and in course of refining of said crude vegetable oils, gad, sludge, acid oil and spent earth, etc. emerge as unavoidable by-products. During the period of dispute, the refined vegetable oil, the fin

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oods. It was further held that same were merely waste and thus eligible for exemption under Notification No. 89/95-CE. The relevant provision of the Order is as follows:- 11. …………….While no general guidelines can be laid down to decide when a product will be treated as a waste or a by product, in the present set of facts the products under consideration are clearly not in the nature of by products emerging during the course of manufacture. The process of manufacturing refined vegetable oil is essentially by removing the unwanted materials that were present in the crude vegetable oil so that a refined vegetable oil can be obtained. In this process of refining, the unwanted materials are removed. Hence, we are of the considered view that the removal of unwanted materials resulting in products like gums, waxes and fatty acid with odour cannot be called as a process of manufacture of these gums, waxes and fatty acid with odour. The process of manufacture is for refined rice bran

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n is as follows:- 4. We have considered the facts of the case and the appellants contention. The Hon ble Supreme Court in the case of Markfed Vanaspati & Allied Indus. (supra) has held that spent earth remained earth even after the processing and therefore no duty is leviable on spent earth. It is also seen that in the case of Maheshwari Solvent Extraction Ltd. (supra), the Hon ble CESTAT held that impurities consisting of gums, waxes and fatty acids are eligible for the benefit of Notification No. 89/95-CE. Similarly, in the case of CCE, Hyderabad Vs Shree Siddhi Vinayaka Agro Extractions P. Ltd. 2010-TIOL-183-CESTAT-BANG. the Hon ble CESTAT held that soap stock and wax emerging during process of manufacture of vegetable refined oil is waste and not a by-product and is therefore, eligible for the benefit of Notification No. 89/95. The goods in dispute herein i.e. gad (gum), sludge (soap stock), acid oil and spent earth merely emerge during the manufacture of refined oil and are co

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Goods and Services Tax – GST – By: – Sandeep Rawat – Dated:- 15-10-2018 – TDS stands for Tax Deduction at Source (TDS).It facilitates sharing of responsibility of tax collection between the deductor and the tax administration. It also ensures regular inflow of cash resources to the Government. It acts as a powerful instrument to prevent tax evasion and expands the tax net, as it provides for the creation of an audit trail. I have prepared all working steps with necessary explanation to get registration by deductor under provision of the GST law. Persons liable to deduct tax under GST Law: As per the Section 51 of the CGST Act, the following persons are mandatorily required to deduct TDS :- a department or establishment of the Central/ State Government; or local authority; or Governmental agencies; or such persons or category of persons as may be notified by the Government on the recommendations of the Council. The following class of persons under clause (d) of section 51(1) of the CGS

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AN/TAN. The entire process is online. The process of registration of TDS Deductors in GST have been prepared in only five steps : STEP – I : Entering User credentials for Registration Application Go to the GST Portal at www.gst.gov.in Click on the Services Tab →Click on Registration →Select New Registration . Find the box I am a which will capture your status as an applicant. Select Tax Deductor from the drop-down menu. Look below for the options: I have a (a) PAN (b) TAN. Please select the option TAN . Enter the TAN in the box below. Now find the box State and select your State (e.g. West Bengal) from the drop-down Menu. Select the applicable district (e.g. Howrah) from the drop- down Menu in the District box. Find the box Legal name of the Tax deductor . Enter the name as mentioned in TAN. Please don t deviate from such data. Enter your e-mail address and Mobile Number in the respective boxes. Please ensure that this e-mail and mobile are regularly accessed by you. OTP for

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pires beyond 15 days, you will have to follow the steps as detailed in STEP I and STEP II all afresh. STEP – III : Filling up the registration Form : Entering TRN Go to the GST Portal at www.gst.gov.in Click on the Services Tab →Click on Registration →Select TRN . Enter the TRN as you have noted down previously. Enter the Captcha Code as displayed on screen. Click on the button Proceed . You will be guided to the next page. STEP – IV : Filling up the registration Form : OTP Verification This time only 1 OTP will be sent to your e-mail id & the Mobile number. Enter the OTP in the respective box. In case, you have not received the OTPs due to any reason, you may click on the link Click here to resend the OTP . Click on the button Proceed . You will be guided to the My saved Applications page. The link of your application for Registration as a Tax Deductor in Form GST REG 07 will be displayed on screen with the corresponding expiry date of 15 days. Click on the blue coloured

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You need not worry even it shows as the current date because you will be liable to deduct TDS only from the day, Section 51 of the CGST/SGST Acts, 2017 is notified i.e. with effect from 01.10.2018. If you apply for registration after this date, you will be liable from the date of application for registration. Enter the State Jurisdiction details by selecting the applicable District and Sector/Circle/Charge/Unit from the drop-down menu. Enter the Center Jurisdiction accordingly. To know the Central Jurisdiction, you may click on the designated link given therein and find the appropriate data. Click on Save and Continue to proceed to the next tab. Once all the required data are filled up, you will find that the Tab: Business Details will be displayed with a tick (√) mark. Tab 2 : DDO Details 1. Enter the Personal details of the DDO in the first part of this page. 2. Here you will have to enter: (a) name of DDO, (b) Father s name of DDO, (c) Date of Birth, (d) Mobile Number, (e) e-

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ll find that the Tab: Authorised Signatory Details will be displayed with a tick (√) mark. Tab 4 : Office Address Details Enter the DDO s Office Address details in the first part of this page. Enter the Office Contact details in the second part of this page. Select the nature of possession of premises from drop-down menu. Now, select from the drop-down menu, a type of document you want to upload as an address proof. Now upload such document accordingly either in PDF or JPEG format (file size max. 2mb) Click on Save and Continue to proceed to the next tab. Once all the required data is filled up, you will find that the Tab: Office Address Details will be displayed with a tick (√) mark. Tab 5 : Verification Select the Verification Check Box. Select the DDO s name (with TAN) from the drop-down menu of Name of Authorised Signatory . Enter Place. You can sign the application either with your DSC or with EVC. Select the appropriate option and proceed accordingly. In case you face

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Goods and Services Tax – Started By: – Ethirajan Parthasarathy – Dated:- 15-10-2018 Last Replied Date:- 20-10-2018 – For GST audit covered cases, is it necessary to prepare audited financials for the period July'17 to Mar'18, in additions to audited financials for the whole year. – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = GST Audit and financial audits are separate. – Reply By Yash Jain – The Reply = Dear Sir, No. Just reconcile 9 months input with 2A. Identify inputs yet to be

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Goods and Services Tax – Levy of GST or VAT – Work Contracts executed up to 30.06.2017 – since the raising of invoices and payment for the supplies would be under the GST regime and the transaction we

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Goods and Services Tax – Classification of supply – setting up a project in the school – Recipient of the service OKCL is a body corporate which cannot be regarded as Government – The supply undertake

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2018 (10) TMI 1138 – PUNJAB AND HARYANA HIGH COURT – TMI – Extension of period for filing GST TRAN-1 forms – the forms could not be uploaded on the portal within the time granted due to technical glitches – Held that:- Notification No.48, dated September 10, 2018 has been issued for amending the Central Goods and Services Tax Rules, 2017 giving power to the Commissioner for extension of time for submission of declaration form GST TRAN-1 upto March 31, 2019. The power can be exercised by the Commissioner on the recommendation of the Council.
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In case the petitioner represents to the Council, his grievance shall be redressed by the Competent Authority after affording him opportunity of hearing upto November 30, 2018 – petition disposed

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GST – States – 91/GST-2 – Dated:- 15-10-2018 – HARYANA GOVERNMENT EXCISE AND TAXATION DEPARTMENT Notification The 15th October, 2018 No. 91/GST-2.- In exercise of the powers conferred by Section 164 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), the Governor of Haryana, hereby makes the following rules further to amend the Haryana Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Haryana Goods and Services Tax (Thirteenth Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 23rd October, 2017. 2. In the Haryana Goods and Services Tax Rules, 2017, in rule 96, for sub-rule (10), the following sub-rule shall be substituted, namely:- (10) The persons claimi

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GST – States – 92/GST-2 – Dated:- 15-10-2018 – HARYANA GOVERNMENT EXCISE AND TAXATION DEPARTMENT Notification The 15th October, 2018 No. 92/GST-2.- In exercise of the powers conferred by Section 164 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), the Governor of Haryana, hereby makes the following rules further to amend the Haryana Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Haryana Goods and Services Tax (Fourteenth Amendment) Rules, 2018. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Haryana Goods and Services Tax Rules, 2017 (hereinafter called the said rules), in rule 89, for sub-rule (4B), the following sub-rule shall be substitute

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1272(E), dated the 13th October, 2017 or Notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, section 3, sub-section (i), vide number G.S.R 1299(E), dated the 13th October, 2017, the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted. . 3. In the said rules, in rule 96, for sub-rule (10), the following sub-rule shall be substituted, namely:- (10) The persons claiming refund of integrated tax paid on exports of goods or services should not have – (a) received supplie

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2018 (10) TMI 1371 – BOMBAY HIGH COURT – 2019 (365) E.L.T. 319 (Bom.) – Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the appellant did not have sufficient unutilised credit balance during each of the months for which the demand is raised in the face of the Chartered Accountant's certificate on record? – Held that:- The impugned order of the Tribunal has disregarded the Chartered Accountant's certificate and without giving any reasons came to the conclusion that the appellant did not have excess unutilised credit available during the month for which demand was issued. Thus, this makes the order bad as being an order without reasons – the appeal is restored to the file of th

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: Ms. Mansi Patil For the Respondent : Mr.Vijay Kantharia with Mr.J.B.Mishra ORDER P.C.: This appeal under section 35G of the Central Excise Act, 1944 challenges the order dated September 28, 2017 passed by the Custom, Excise and Service Tax Appellate Tribunal, Mumbai (the Customs, Excise and Service Tax Appellate Tribunal (for short the Tribunal )). 2. Ms.Manasi Patil, the learned counsel appearing for the appellant urges the following substantial questions of law for our consideration is :- a) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the appellant did not have sufficient unutilised credit balance during each of the months for which the demand is raised in the face of

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reversed. This was after rejecting the evidence in the form of Chartered Accountant's certificate which shows month- wise balance of credit available. This would establish that the appellant had total credit available in excess of that utilised during the months for which demand has been made. Thus, it follows that the wrongly taken credit was not utilised by the appellant so as to charge any interest. 6. The impugned order of the Tribunal has disregarded the Chartered Accountant's certificate and without giving any reasons came to the conclusion that the appellant did not have excess unutilised credit available during the month for which demand was issued. Thus, this makes the order bad as being an order without reasons. In the ab

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2018 (10) TMI 1520 – PUNJAB AND HARYANA HIGH COURT – TMI – Extension of time for filing GST TRAN-1 – input tax credit – transition to GST Regime – Held that:- Respondents submitted that Notification No. 48 dated September 10, 2018 has been issued for amending the Central Goods and Services Tax Rules, 2017 giving power to the Commissioner for extension of time for submission of declaration form GST TRAN-1 upto March 31, 2019. The power can be exercised by the Commissioner on the recommendation of the Council – petition disposed off. – CWP-21563-2018 (O&M) Dated:- 15-10-2018 – MR RAJESH BINDAL AND MR MAHABIR SINGH SINDHU, JJ. For The Petitioner : Ms.Dixit Garg, Advocate And Ms.Anjali Bansal, Advocate For The respondent : Mr.Arun Sharma, Adv

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2018 (12) TMI 145 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2019 (20) G. S. T. L. 317 (A. A. R. – GST) – Classification of services – Supply of Services or not – Services to NMC by providing the Busses along with Driver, Fuel & Maintenance for use of General Public at Large – under which Chapter Heading / Service Code the activity is required to be classified? – Held that:- The applicant has entered into an agreement with NMC and as per the agreement, they are providing the Services of Running AC Green City Buses for Transport of General Public, for which NMC is paying them Service Charges calculated on the Total Run effective kilometers and the fare from the passengers is collected by NMC – NMC is providing transportation services to the passengers and the applicant, for such transportation, is supplying to NMC Buses along with drivers, fuels, maintenance, etc. In effect, it is found that there is no connection between the applicant and the passengers.
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The applicant is just

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agreement have been transferred to NMC for a period of 15 years from the commercial operations date (COD). COD in the agreement has been defined as the date on which period of 6 months are completed from the date of execution of the agreement.
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In the subject case there is transfer of the right to use any goods (Buses) for any purpose i.e for transportation purpose and for a specified period of 15 years for cash. Thus as per sub-clause (f) of clause 5 of Schedule II appended to both, the CGST Act, 2017 and the MGST Act, 2017 the subject activity of the applicant would be considered as Supply of Services.
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The applicant is rendering services to NMC by way of giving out on rent/hire, Buses which are further used by NMC for transportation of passengers. Such renting of Buses by the applicant squarely falls under Sr. No. 10, Heading No. 9966 sub- clause (ii) as rental Service of transport vehicles, in this case with operators and therefore attracts CGST and SGST @ 9% each on rem

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provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act / MGST Act would be mentioned as being under the GST Act . 02. FACTS AND CONTENTION – AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus- we, M/s. SST SUSTAINABLE TRANSPORT SOLUTIONS INDIA PRIVATE LIMITED, a private limited company having its Registered office at Plot NO. C-49, Hingna Road, MIDC, Nagpur-440028 had entered into an agreement i.e. Service Provider Agreement dated 18/08/2017 with Nagpur Municipal Corporation (NMC) for Operation and maintenance of AC Green Buses Running on Bio Ethanol Fuel for Nagpur Urban Region . As per the agreement we are pro

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en Bus Operations is Nil. We want to confirm from your office that under which Chapter Heading / Service Code our above activity will classify. As per our interpretation and looking to the services provided by us to the General Public at Large, the same should classify under chapter heading 9966 i.e. Services by way of giving on hire – (a) to a state transport undertaking, a motor vehicle meant to carry more than twelve Passengers; or (b) to a goods transport agency, a means of transportation of goods. (c) motor vehicle for transport of students, faculty and staff, to a person providing services of transportation of students, faculty and staff to an educational institution providing services by way of pre-school education and education upto higher secondary school or equivalent. Kindly give your confirmation about the classification of our activity on the basis of the above and as per our Agreement With NMC, Copy of which is enclosed herewith for your perusal. Statement containing the

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4.1.w) 2. Providing Fuel for Buses,(clause 4.1 c) 3. Repair & maintenance of the Buses, 4. The service provider shall operate and maintain the Bus provided for AC Green Buses Service in accordance with the basic requirements of the Scope of work and requirements for operation schedules on trips/ routes in area as prescribed/ directed by NMC (clause 4.8 a) 5. Service provider has right to receive payment of hiring charges from NMC (clause 5.1.a) (b) The main obligations of the NMC are 1. The NMC is required to pay Service Charges on the basis of per Effective Run Kilometers. As per clause 3.1,3.2, 3.3 of the agreement, 2. NMC would provide certain premises for set up the parking yard and facilities to operate and maintenance of buses as per clause 4.2 of the agreement. 3. NMC would provide the space for fuel filling stations, 4. NMC shall have complete and full right for collection of fare for the Bus Service and to determine and implement methodology for the same. (clause 7.1 h) (c

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t in case of Tripura Bus Syndicate 122 STC 175 = 2001 (1) TMI 946 – GAUHATI HIGH COURT, and in the case of Godavari Finance co (2008) SCC 0107 S.C.= 2008 (4) TMI 766 – SUPREME COURT it is observed that though the drivers were the employee of the owner of the vehicle they have to follow the directions and instructions of the transferee and thus the vehicles under the effective control of the hirer. In the case of Rajasthan State Road Transport Corporation, 1997 (007) SCC 481 = 1997 (9) TMI 634 – SUPREME COURT OF INDIA, while deciding the case of compensation, Supreme Court has observed that notwithstanding the fact that the driver would continue to be on the pay roll of the owner, he has to act under the instructions, control and command of the conductor and other officers and the effective control is transferred to hirer. Reference can also be made to the case of G.S. Lamba and Sons (43 VST 323) = 2011 (1) TMI 1196 – ANDHRA PRADESH HIGH COURT where in Hon ble Andhra Pradesh High court

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l control does not mean always physical control and even if the manner, method, modification modalities and time of use of goods; and(v) the approvals, concessions, licences or permit in relation to goods would also available to the user of the goods even if such licences or permits are in the name Of the owner(transferor) of the goods, and (vi) during the period of Contract exclusive right to use goods along with permits, licences, etc vests in the lessee. It is also pertinent to mentioned here that logo of NMC is pasted on the vehicle provided to NMC thus the ratio decidendee of GS Lambas case is squarely applicable to the present issue. In light of the position of law there is a possibility that the transaction is of the nature of transfer of right to use any goods for any purpose cannot be denied. 2. Whether Hiring charges: The applicant is engaged in the business to undertake and carry on the activity of providing all kind of services in the nature of plying, hiring, operation and

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ed verbatim hereunder- This is to confirm that as per Sl. No.15 of the Notification No.12 of 2017- Central Tax (Rate), dated 28.06.2017, stage carriage other than air- conditioned stage carriage attracts NIL rate of CST. In response to the communication of NMC dated 30/12/2017 the company had filed return reply through letter dated 12 Feb.2018 [the copy of the letter is annexed hereto and marked as Exhibit -III] which states that the clarification issued by the Joint Commissioner is in respect of the transaction of supply between the Corporation and the passengers-traveler to whom the Corporation would charge fare charges. Sr. No. 15 (c) of the Notification No 12/2017-State Tax (Rate) dated 29th June, 2017 read thus stage carriage other than air- conditioned Stage carriage -rate of tax Nil [the copy of Notification is annexed hereto and marked as exhibit-IV] It is pertinent to mention here that the Green Bus provided to the Corporation is Air Conditioned Bus and the entry for tax rate

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v),(v) and (vi) above – rate of CGST -9%) The Corporation did not agree with the said rate and stickup to its earlier stand, this has been communicated by the Corporation through its letter dated 21/06/ 2018 [the copy Of the letter is annexed hereto and marked as exhibit -VII] (D) SUBMISSION: Your applicant, to know the correct rate of tax on the transaction of supply between the service provider and NMC and desires advance ruling under sub-section (1) of section 97 of the Maharashtra Goods and Service Tax Act, 2017. Accordingly, has filed an application in form GST ARA-01 on 03/07/2018 under Application Reference No. AD270718000170G. Your applicant had made required payment under Payment Reference Number- IP2707180000010. And sought advance ruling under clause (a) of sub-section (2) of section 97 of the MGST Act, 2017. In this connection your applicant submits that- (1) The communication from the Joint Commissioner of Central Excise, Customs and Service Tax, Nagpur through letter no,

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ing fare to the passengers. (2) Your applicant desires advance ruling whether the transaction would be classifiable under Sl No 10(ii) of the notification No. 11/2017- State Tax (Rate) dated 29th June, 2017 liable to tax @ 9%. Which reads as rental service of transport vehicles with or without operators, other than (i) above liable to tax @ 9% SGST. (3) Your applicant desires advance ruling whether the transaction would be classifiable under Sl No 8(vii)) of the notification No. 11/2017- State Tax (Rate) dated 29th June, 2017 liable to tax @ 9%. Which reads as Passenger transport service other than (i), (ii), (iii), (iv), (v)and (vi) liable to tax @ 9% SGST. (4) Your applicant desires to know whether the transaction would be classifiable under sub-clause (f) of clause 5 of Schedule II appended to the MSGST Act, 2017 [copy of schedule II is annexed hereto and mark as exhibit-VIII] which reads as (f) transfer of the right to use any goods for any purpose( whether or not for a specified p

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motor cab (b) Air conditioned stage carriage (c) Radio taxi Expln- (a) contract carriage has the meaning assigned to it in clause (7) of section 2 of the MVA 1988 (59 of 1988), (b) stage carriage has the meaning assigned to it in clause (40) of section 2 of the MVA 1988 (59 of 1988), This entry is in respect of transport of passengers, SST is not entered in to the contract to transport the passengers but to providing vehicles and related services to NMC, the entry is therefore not applicable to the transactions between SST and NMC. No. 8 (vii) Passenger transport service other than (i), (ii), (iii), (iv),(v) and (vi) above-rate of SGST-9% This entry is in respect of transport of passengers, SST is not entered in to the contract to transport the passengers but to providing vehicles and related services to NMC, the entry is therefore not applicable to the transactions between SST and NMC. stage carriage means a motor vehicle constructed or adapted to carry more than six passengers exclud

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operators, other than (i) above liable to tax @ 9% SGST. The company is under the belief that the transaction would cover under this entry, however it is not clear as to whether the transaction would fall to cover as rental services or leasing of vehicle. Sl. No. 15(ii) of the Notification No 11/2017-State Tax (Rate) dated 29th June 2017 read with schedule II appended to MGST Act transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. The rate of tax would be the same rate of MGST for supply of like goods involved in transfer of title in goods. Your applicant is engaged in supplying AC Green Bus to Nagpur Municipal Corporation, on the basis of operation, repairs & maintenance, providing drivers, etc in accordance with the basic requirements of the scope of work, and requirements for operation schedules on trips/ routs in area as prescribed/ directed by NMC. Prima facie it seems that

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e position of law there is a possibility that the transaction is of the nature of transfer of right to use any goods for any purpose cannot be denied. Notification No. 12/2017- State Tax (Rate) dated 29th June, 2017. SI No 22 (a) Which reads as Service by way of giving on hire- (a) to a state transport undertaking, a motor vehicle meant to carry more than twelve passengers; or liable to tax at Nil rate. This entry would be for hiring services the question whether the classification of transaction is of the nature of hiring services. In a lease, ownership lies with the lessor. The lessee has the right to use the equipment and does not have the option to purchase. Whereas in hire purchase, the hirer has the option to purchase. The hirer becomes the owner of the asset/ equipment immediately after the last installment is paid. In the case of Kotak Mahindra Finance Ltd. 2003-(184)CTR-0527-BOM, 2004-(265)-ITR-0114-BOM =2003 (4) TMI 29 – BOMBAY HIGH COURT the Hon ble Bombay high Court has hel

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may not fall to cover under entry Sl.No. 22 (a) Which reads as Service by way of giving on hire- (a) to a state transport undertaking, a motor vehicle meant to carry more than twelve passengers; or covered under notification NO 12 of 2017 state Tax (rate ) dated 29/06/2017 03. CONTENTION – AS PER THE CONCERNED OFFICER The submission, as reproduced verbatim, could be seen thus- In the present case, the applicant, M/s. SST Sustainable Transport Solutions India Pvt., Ltd., MIDC, Hingna Nagpur, has represented before the authority for advance ruling regarding classification of their services. In their application, M/s. SST Sustainable Transport Solutions India Pvt. Ltd., MIDC, Hingna Nagpur has informed that they have entered into a contract with Nagpur Municipal Corporation (Body constituted under Govt. of Maharashtra) for operation and Maintenance of AC Green Buses run on Bio Ethanol Fuel for Nagpur Urban Region and are providing services relating to transport of passengers in following

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(Motor vehicle designed to carry passengers) where the cost of fuel is included in the consideration charge from the service recipient and falls under service code 996601 attracting GST @ 5% (with no ITC) or 12% (with ITC) [Notification No. 31/2017-Central Tax (Rate) dated 13.10.2017]. 04. HEARING The case was taken up for Preliminary hearing on dt. 11.09.2018 when Sh. Sanjay Gadkari, GST Practitioner along with Sh. Sopan Jachak, Sh. Ashish Sharma, Company Secretary and Sh. Varad Gokhale operation manager appeared and requested for admission of application as per contentions in their ARA. Nobody was present form the side of Jurisdictional Officer. The application was admitted and called for final hearing on 19.09.2018, Sh- Sanjay Gadkari, GST Practitioner along with Sh. Sopan Jachak, Sh. Varad Gokhale operation Manager and Sh. Manish Agarwal, C.A. appeared and made oral and written submissions. Jurisdictional Officer, Sh. Paras Chaure, Supt., Principal Commissioner of GST, Nagpur appe

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of the buses are also undertaken by the applicant for which they have their own workshop and service station. 4. NMC is paying to the applicant, Service Charges on the basis of per Effective Run kilometres. 5. The route of the Buses & the applicable fare is decided and collected by the NMC from the passengers. From the above it is clearly seen that NMC is providing transportation services to the passengers and the applicant, for such transportation, is supplying to NMC Buses along with drivers, fuels, maintenance, etc. In effect we find that there is no connection between the applicant and the passengers. We find that the applicant is just hiring out these AC Buses to NMC and we also find that the effective control is with the applicant so far as the Buses are concerned which are provided to NMC. We also find the Bus Routes are decided by NMC as also the Bus Fares, which are collected from the passengers. Hence it is crystal clear that in the subject case the transaction would be

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ment or other valuable consideration: would be considered as Supply of Services. In the subject case the applicant vide Service Provider Agreement entered into by them with NMC have transferred of right to use the goods i.e. AC Buses belonging to them. The said rights as per the agreement have been transferred to NMC for a period of 15 years from the commercial operations date (COD). COD in the agreement has been defined as the date on which period of 6 months are completed from the date of execution of the agreement. From the terms of payment mentioned in the agreement between the applicant and NMC it is seen that: i. NMC shall pay to the applicant an amount on the basis of kilometers logged by the AC Buses. ii. The applicant shall submit invoice at the end of each 10 days and NMC, within 15 days of receipt of invoice shall verify the same and make payments. iii. NMC has given a guarantee that the Buses so provided to them would travel a number of kilometers not less than 68,000 kilom

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ing 9966 (Rental Services of transport vehicles) (i) Renting of motorcab where the cost of fuel is included in the consideration charged from the service recipient. 2.5 Provided that credit of input tax charged on goods and services used in supplying the service has not been taken. [Please refer to Explanation no. (iv)] (ii) Rental services of transport vehicles with or without operators, other than (i) above. 9 – The parallel Sr. No. 10 in Notification No. 11/2017-State Tax (Rate) dated 29.06.2017, mentioned by the applicant is the same. From the discussions above we find that the applicant is rendering services to NMC by way of giving out on rent/hire, Buses which are further used by NMC for transportation of passengers. Such renting of Buses by the applicant squarely falls under Sr. No. 10, Heading No. 9966 sub- clause (ii) as rental Service of transport vehicles, in this case with operators and therefore attracts CGST and SGST @ 9% each on remuneration received for such services re

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2019 (1) TMI 234 – CESTAT NEW DELHI – TMI – Maintainability of appeal – Process amounting to manufacture or not – classification of such products – issue pending adjudication before higher forum – Held that:- Once the controversy is pending adjudication before the highest forum of the country, there seems no reason to have adjudication on merits in these Appeals. Resultantly, four of the Appeals herein are hereby adjourned sine die so as to follow the judicial discipline to avoid conflict of opinion and also to save parties from unnecessary expenditure of time and money. – Excise Appeal No. E/52128/2015, E/53164/2015, E/50094/2016, E/52286/2016 [DB] – IO/E/91/2018-EX[DB] – Dated:- 15-10-2018 – MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Amit Jain, Advocate Present for the Respondent: Mr. R.K. Mishra, DR ORDER PER: RACHNA GUPTA Present Order deals with the 4 (four) Appeals with the following details: Appeals No. E/52286/201

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sing pictures, certificates and momentos having gold plated nickel foils inside in different sizes of frames (acrylic, wood, glass, etc). They were also involved in processing desktop clocks for fixing the foils as were prepared by the watch manufacturers onto the watch dial. Department on the basis of intelligence gathered, alleged that the appellants are engaged in manufacture and in clandestine removal of the aforementioned goods which were excisable. A search was conducted by the officers of anti evasion of Central Excise Commissionerate in the premises of the appellant on 10.10.2003. It is thereafter that the Show Cause Notices as mentioned above were served upon the appellant for the respective period and the respective demand. Those demands have partly been confirmed. The major part of the said demand has been dropped vide the respective order as already mentioned above. Being aggrieved of the demand confirmed, the Appeals in hand have been filed. 3. We have heard Mr. Amit Jain,

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s till date is mentioned to be pending. The present four Appeals are therefore prayed to be adjourned sine die till the outcome of the Hon ble Apex Court is received. The learned Counsel has relied upon in the case of Mahavir Exports vs. Union of India – 2016 (332) ELT 208 (Guj.) and Union of India vs. Indian Leads Private Limited – 1997 (92) ELT 306 (S.C.) to impress upon that when the appeal of the party is admitted by the Hon ble Apex Court. Petition need to be adjourned sine die till decision of the Apex Court. 5. In addition, ld. Counsel also objected the impugned SCN as being barred by time for want of any evidence for alleged intent of tax evasion. 6. Ld. DR though has conceded for the admissibility of the Appeal before the Hon ble Apex Court and that no outcome as yet. But has impressed upon that the impugned goods are otherwise excisable and the activity of the appellant amounts to manufacture. It is also impressed upon that two out of four of these appeals are the subject mat

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mmon Order-in-Original dated 28.04.2005 confirming the activity to be that of manufacture for framed pictures and Desktop cloks (as above). However, framed pictures were classified under 4901 will NIL duty. Thus, demand thereof was dropped and demand of ₹ 1,23,774/- only was confirmed with penalty of ₹ 25,000/-. Still being aggrieved, appeal before this Tribunal was filed. Department also filed appeal against dropping. Both these appeals were decided vide F.O. No. 611-614/2010 dated 13.08.2010 reported as 2010 (257..) ELT 471 (Del.) as has also been conceded by the parties. Vide the said FO appeal of assessee was rejected and that of department was partly allowed, confirming the activity as manufacture (except for other articles ) and classifying framed pictures under Chapter 8306 and Desktop clocks under Chapter 9102. Being aggrieved of confirmation of entire demand, Civil Appeal No.9478-9479/2010 was preferred before Hon ble Supreme Court (as conceded by both the parties)

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ve on the same Show Cause Notices. Thus, both these Appeals with remaining two appeals being for the subsequent period are maintainable. Since, the issue being common for remaining two appeals i.e. E/52128/2015 & E/53164/2015 and the fact being that the said prior two appeals on same issue have already been admitted by Hon ble Apex Court. It is an admitted fact that no final outcome has yet come. 11. In the given circumstances, once the controversy is pending adjudication before the highest forum of the country, there seems no reason to have adjudication on merits in these Appeals. Resultantly, four of the Appeals herein are hereby adjourned sine die so as to follow the judicial discipline to avoid conflict of opinion and also to save parties from unnecessary expenditure of time and money. It is otherwise legal, proper and also pragmatic to grant the request to block the proceedings and to adjourn the matter awaiting the decision of the Supreme Court. The parties herein are however

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Goods and Services Tax – Started By: – Adarsh Gupta – Dated:- 14-10-2018 Last Replied Date:- 20-10-2018 – Hello,In a AAR, an applicant asks two questions. One is answered in positive and one in negative for the applicant. Applicant decides to go in for appeal for question answered in negative only asks the appellate Authority to set aside/modify this question only. Can the appellate Authority go beyond the prayer and answer second question in negative as well?Thanks. – Reply By DR.MARIAPPAN GOV

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Goods and Services Tax – Started By: – Vinod Maheswari – Dated:- 14-10-2018 Last Replied Date:- 2-11-2018 – Dear Sir 1) What is deemed supply. Please provided example for that. . 2) if I am providing railway wagon loading services to my customer who pay railway freight himself. I am getting consideration for Loading only. Now if loading is not done as per railway parameter than they charges additional freight called under loading / Over Loading charges and recovered the same from my customer.. Now customer instead of taking credit note from me he himself issue Tax Invoice for recovery of under loading/ Over loading charges paid to railways . This invoice issued as per CGST Schedule II (e) which says agreeing to the obligation to refrain fr

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Indian Laws – Started By: – ADS Infoworld – Dated:- 13-10-2018 Last Replied Date:- 14-10-2018 – ADS InfoWorld Pvt Ltd. provides one-stop software solution provider for all businesses for any Company. It is the Customize Software Development Company in Delhi with the dynamic team of technical and business professionals. It has offered several web-based ERP and CRM software solutions for small business, manufacturing industries, CA Software, GST Billing Software, and Real Estate industry and many

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 13-10-2018 – Advance rulings are important in any tax law as it provides a forum for clarification and possible interpretation of statutory provisions. Moreover, it conveys the legislative intention from the revenue s view point. Provisions of advance ruling are contained in section 95 to 106 of CGST Act, 2017 and State / UT GST enactment. Rules 103 to 107 of also provide for forms, manner, certification etc. The Authority for Advance Rulings (AAR) have been set up in all the states and we have now over 200 advance rulings on different issues already pronounced by various State Authorities. The appellate mechanism for filing appeals against AAR rulings is also in place and we have about two dozen of such appellate orders already pronounced. One major issue presently being faced is about multiple authorities (equal to number of States), each pronouncing a ruling of its own even if the matter is covered by some other Stat

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so the services are not under reverse charge mechanism. The Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017 is applicable to provider of service and not recipient of service. It was observed that the instant applicant being recipient of service and not service provider is not the proper person to make the instant advance ruling application. In view of above facts, the applicant's application was held to be liable for rejection as per proviso to section 98(2) and, therefore, could not be entertained by the Authority and is accordingly, rejected as not maintainable.[ IN RE: M/S. VISVESVRAYA NATIONAL INSTITUTE OF TECHNOLOGY, NAGPUR – 2018 (8) TMI 976 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA ]. Advance Ruling on jurisdiction of AAR Where the applicant was an importer of coal and was also a dealer in trading of coal. The applicant sought advance ruling on as to whether Input Tax Credit (ITC) is available on clean environment (energy) Cess paid at the time of import of Co

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xemption is physically shifted to a new location within the area specified in the said area based exemption notifications. If there is any addition or modification in the plant or machinery or on the production of new products after taking over an eligible unit during residual period of exemption. AAR ruled that application seeking advance ruling on notifications and circulars not issued under CGST Act do not fall under section 97(2) (a to g) of CGST Act, 2017 and under purview of Authority of Advance Ruling constituted under the CGST/SGST Acts. [ M/S KANJ PRODUCTS PRIVATE LIMITED – 2018 (6) TMI 429 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND ]. Advance ruling for procedure on receipt of application Where the applicant was engaged in the manufacture of textile yarn and it approached AAR to specify the complete procedure for supplies by DTA to Advance Authorization Holder and specify the applicability of Foreign Trade Policy 2015 2020 mid-term review and specify procedure for procuring

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ection 97(2), as it related to applicability of Foreign Trade Policy 2015-2020 mid-term review and the related procedure. The applicant had sought a ruling for applicability of Foreign Trade Policy which was clearly beyond the ambit of Authority for Advance Ruling. Thus, the application was held to be not worthy of admission. Thus, the application filed by the applicants, being beyond the scope of section 97(2), merit rejection at the stage of admission itself and was rejected. [ IN RE : SPENTEX INDUSTRIES LTD. (2018) 8 TMI 285 (AAR- Madhya Pradesh);] Where the applicant had filed an application in Form GST ARA-01, dated 26.01.2018, for seeking advance ruling on 'clarification of rate of tax', for grain based Extra Neutral Alcohol (ENA) as they are engaged in manufacturing of grain based extra neutral alcohol. The question on which the advance ruling was sought on what tax rate applicable to grain based extra neutral alcohol and whether this comes under 18% or exempted or any o

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Goods and Services Tax – Input tax credit – Establishing, maintaining and furnishing guest houses including landscaping by way of gardening or otherwise is neither a perquisite nor a statutory obligat

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