Author: admin_gst

GST – States – F.1(PS-ACCT-HQ)ESTT/CCT/18/933 – Dated:- 12-10-2018 – GOVERNMENT OF RAJASTHA COMMERCIAL TAXES DEPARTMENT ORDER No. F.1(PS-ACCT-HQ)ESTT/CCT/18/933 ORDER Dated: 12.10.2018 In exercise of the powers conferred by sub-section (1) of section 5 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), hereinafter referred as the said Act, read with rule 109A of the Rajasthan Goods and Service Tax Rules, 2017, in supersession of the order no. F. 1 (PS-ACCT-HQ)ESTT/CCT/18/818 dated 22.06.2018, the officers specified in column (3) of the table below are authorised to Act as Appellate Authorities as mentioned against them in column (2) as referred to in Section 107 of the said Act, in respect of orders or decisions passed

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GST – States – F.1(PS-ACCT-HQ)ESTT/CCT/18/935 – Dated:- 12-10-2018 – GOVERNMENT OF RAJASTHA COMMERCIAL TAXES DEPARTMENT ORDER No. F.1(PS-ACCT-HQ)ESTT/CCT/18/935 ORDER Dated: 12.10.2018 In exercise of the powers conferred by sub-section (1) of section 5 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), hereinafter referred as the said Act, read with rule 109A of the Rajasthan Goods and Service Tax Rules, 2017, the officers specified in column (3) of the table below is author

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2018 (11) TMI 560 – ALLAHABAD HIGH COURT – TMI – Application for withdrawal of petition – petitioner wants to withdraw this petition – Held that:- The writ petition is dismissed as withdrawn. – WRIT TAX No. – 1369 of 2018 Dated:- 12-10-2018 – Hon'ble Bharati Sapru and Hon'ble Salil Kumar Rai, JJ. Counsel for Petitioner :- Mayank Krishna S Chandel Counsel for Respondent :- Krishna Agarawal ORDER Learned counsel for the petitioner wants to withdraw this petition. The writ petition is acc

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2018 (11) TMI 822 – CESTAT CHENNAI – TMI – CENVAT Credit – input services – rent-a-cab services – period September 2009 to March 2010 – Held that:- The period involved being prior to 1.4.2011, when the definition of input service had a wide ambit as it included the words ‘activities relating to business’, appellants are eligible to avail CENVAT credit on rent-a-cab services – credit allowed – appeal allowed – decided in favor of appellant. – Appeal No. E/40084/2018 – Final Order No. 42629/2018 – Dated:- 12-10-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) Ms. K. Nancy, Advocate for the Appellant Shri L. Nandakukmar, AC (AR) for the Respondent ORDER The appellant has filed the above appeal against the order passed by Commissioner (Appeals

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Rules, 2004. In appeal, Commissioner (Appeals) upheld the disallowance of credit along with interest but however set aside the penalty. 3. On behalf of the appellant Ms. K. Nancy submitted that rent-a-cab services were availed for the purpose of picking up and dropping of employees of the appellant s factory. She relied on the judgments of the Hon ble High Court of Karnataka in the case of Commissioner of Central Excise, Bangalore Vs. Tata Auto Comp Systems Ltd. – 2012 (277) ELT 315 (Kar.) and that of the Hon ble High Court of Madras in the case of Commissioner of Central Excise Vs. Visteon Automotive Systems India Pvt. Ltd. – 2017-TIOL-57-HC-MAD-CX and also the decision of the Tribunal in the case of Commissioner of Central Excise, Chennai

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2018 (11) TMI 824 – CESTAT HYDERABAD – TMI – Refund of unutilized CENVAT Credit – Rule 5 of the CENVAT Credit Rules, 2004 – Inclusion of value of the exempted goods cleared by them to SEZ in the total turnover of exported goods for the purpose of determination of the eligible amount of refund – Held that:- In the case in hand, there is no dispute that the goods were manufactured in a DTA and cleared to an SEZ unit, eligible CENVAT credit was availed and refund of accumulated CENVAT credit was sought which was sanctioned but subsequently, sought to be recovered from the appellant – the clearances affected by the appellant are only to SEZ unit and it has been settled by the various decisions of the Tribunal that clearances made to SEZ has to be considered as an export.
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Since the refund of the amount is only in respect of the CENVAT credit, and if the cash refund is not sanctioned, the CENVAT credit available to them is not being question, the same has to be given as a credit which

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it was found that the amount of refund so granted included an amount of ₹ 1,58,945/-sanctioned on account of certain exempted goods exported and that the value of such exempted goods exported should not have been included in the value of export turnover to calculate the admissible amount of refund under Rule 5 of CCR, 2004. It appeared that since the goods exported were exempted from payment of duty they were not permitted to be exported without payment of duty under bond/letter of undertaking (LUT) and, therefore, the value of said goods could not have been included in the total turnover of goods ascertained for the purposes of Rule 5 of CCR, 2004. Accordingly, by issue of demand notice under Section 11A of the Central Excise Act, 1944 (CEA, 1944) and under due process of law, the original authority ordered recovery of the said amount of ₹ 1,58,945/- along with interest due thereon under Section 11BB of the Act, 44. 4. The appeal filed by the appellant before the First App

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nd that the entire issue is in a very narrow compass in as much, whether the appellant is entitled to include the value of the exempted goods cleared by them to SEZ in the total turnover of exported goods for the purpose of determination of the eligible amount of refund of accumulated CENVAT credit under Rule 5 of CCR, 2004. 8. In the case in hand, there is no dispute that the goods were manufactured in a DTA and cleared to an SEZ unit, eligible CENVAT credit was availed and refund of accumulated CENVAT credit was sought which was sanctioned but subsequently, sought to be recovered from the appellant. 9. In my considered view, the issue is no more res integra, as submitted by Learned Counsel, in the case of Repro India Limited (supra), Hon ble High Court stated very clearly that for the export made which are exempted an assessee can follow the procedure of LUT bond and is eligible for the CENVAT credit of the amount of Central Excise duty paid on the inputs and consumed for manufacture

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2018 (11) TMI 1348 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – 2018 (19) G. S. T. L. 683 (A. A. R. – GST) – Classification of supply – composite supply or mixed supply – maintenance services rendered on customers’ equipment under the two agreements i.e. comprehensive maintenance services agreement and supply of parts and services agreement which also includes supply and replacement of spare parts – principal supply between goods and services – rate of GST – relevant place of supply – type of tax which needs to be discharged.
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Held that:- The Applicant is a multiproduct, multi-division entity, engaged in manufacturing, distribution and sales agency activities of various industrial products which include metal cutting tools, mining/construction equipment, spares for mining equipment, seamless stainless steel tubes and pipes and wires and heating systems. Further, the Applicant is also engaged in the business of after sales support services for the mining equipment manufactured by i

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activities on the equipment at regular intervals. Therefore, the predominant element in the composite supply would be provision of maintenance services and the supply of goods would be ancillary to such services – the supply of maintenance services should be considered as the principal supply and the supply of other goods or services shall be ancillary to such principal supply.
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Rate of GST – Held that:- The service code for Maintenance and repair services of commercial and industrial machinery is 9987171 and the prescribed rate of GST is (CGST @ 9% of the taxable value, SGST @ 9% of the taxable value) or IGST @ 18% of the taxable value.
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Relevant place of supply – type of tax which needs to be discharged – Held that:- The determination of place of supply as requested by the applicant cannot be decided by the authorities for Advance Ruling constituted under Section 96 of SGST Act, 2017. The Authority constituted under the said section can determine or pronounce Advance rulin

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rvices, the applicant is liable to pay the highest rate of tax as per Section 8(b) of the CGST Act, 2017. – AAR No. RAJ/AAR/2018-19/21 Dated:- 12-10-2018 – NITIN WAPA AND HEMANT JAIN, MEMBER Present for the applicant: Shri Nitin Vijayvargiya, (Authorised representative) Note: Under Section 100 of the CGST/RGST Act 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act 2017, within a period of 30 days from the date of service of this order. The Issue raised by M/s. Sandvik Asia Pvt. Ltd. {hereinafter the applicant} is fit to pronounce advance ruling as it falls under ambit of the Section 97(2) (a)(e) and it is given as under: a. Classification of any goods or services or both; e. Determination of the liability to pay tax on any goods or services Further, the applicant being a registered person, GSTIN is 08AACCS6638K1ZX, as per the declaration given by him in Form ARA-01, the issue raised by the applicant

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ort, the Applicant provides maintenance services for the imported equipment which includes repair and replacement of parts and tools. The maintenance services are provided for the equipment post issuance of commissioning certificate. The maintenance services are rendered on the equipment for a specific period as agreed with the customer from the commencement of mining operations depending upon the number of hours the equipment are operational or the quantum of output ton produced by the equipment during the equipment life cycle. 1.3. In respect of the supply of part under the proposed agreements, the Applicant would supply parts falling under multiple GST rates such as 12%, 18%, 28%, etc. 1.4. The Applicant intends to execute an agreement for providing maintenance services to prospective customers for equipment located at various sites in the state of Rajasthan. 2. QUESTIONS ON WHICH THE ADVANCE RULING IS SOUGHT Applicant has sought ruling to be pronounced under section 97 (2) (a) (e)

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CANT s INTREPRETATION:- a. As per Section 2 (30) of GST Act, composite supply means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply. b. As per Section 2 (74) of GST Act, mixed supply means two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply. c. As per Section 2 (90) of GST Act, principal supply means the supply of goods or services winch constitutes the predominant element of a composite supply and to which any other supply forming part of that composite supply is ancillary. d. In the present case, the Applicant is entering into agreements with prospective customers with the sole intent

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icant would be supplying goods or services which could vary on each equipment. g. Thus, it is clear that the main activity performed by the Applicant would be in respect of providing maintenance services ensuring uninterrupted operation of equipment irrespective of the quantum of goods required for the said purpose. h. Therefore, it could be said that the supply of spares or other goods for providing maintenance services would be incidental or ancillary to the repair or maintenance services to be provided under the agreement. i. In order to classify any activity as a composite supply, it could be said that the following conditions are required to be fulfilled referring the definition under Section 2(30) of GST Act: a) There should be two or more taxable supplies of goods or services or both; b) The taxable supplies should be naturally bundled in the ordinary course of business; c) The taxable supplies should be supplied in conjunction with each other in the ordinary course of business;

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important to refer to the Education Guide issued by the Central Board of Excise and Customs (CBEC ) now renamed as Central Board of Indirect Tax and Customs ( CBIC ). Para 9.2.4 of the Education Guide mentioned the following: Whether services are bundled in the ordinary course of business would depend upon the normal or frequent practices followed in the area of business to which services relate. The nature of the various services in a bundle of services will also help in determining whether the services are naturally bundled in the ordinary course of business. If the nature of services is such that one of the services is the main service and the other services combined with such service are in the nature of incidental or ancillary services which help in better enjoyment of a main service. Referring to the scope of work to be executed under the above agreement, we have analysed few of the above indicative factors below: i. Perception of the service recipient: The intention of both the

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availability. Therefore the Applicant offers the maintenance services as a whole to its clients charging therein a fixed amount, on the basis of the time the equipment has been in operation or the output the equipment has produced. iii. Single Price: As mentioned above, the Applicant provides these maintenance services as a single package which includes supply of goods and services. The pricing of these services is also fixed on the basis of the time the equipment is in operation or the quantum of output produced by the equipment. Hence, the quantum of goods consumed in providing these services would be irrelevant in respect of the price to be charged to the customers by the Applicant. Further, as discussed earlier, the Applicant may not be able to predict the type of goods that may be required for the maintenance of the equipment prior to providing maintenance services. Hence, it is not practically possible for the Applicant to separate the goods and services being supplied for ensuri

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ply of goods or services or both shall be occurring together or at the same point of time as the sole intention of the agreements is to ensure that the equipment is operating without any interruptions. Hence, it could be said that the supply of goods or services would be done by the Applicant in conjunction with each other. d) One taxable supply should be a principal supply The definition of principal supply states that the supply which constitutes the predominant element of a composite supply and to which the other supply is ancillary shall be the principal supply. As the provision of maintenance services under the said agreements is with the objective to ensure smooth and uninterrupted operation of the equipment. Thus, the activity of providing maintenance and repair service would constitute the predominant element of the composite supply whereas supply of other goods or service that may be required to be supplied under the agreements shall be ancillary to the main service. Further,

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pply of maintenance services. 4. PERSONAL HEARING (PH) 4.1 In the matter personal hearing was given to the applicant on 08/ 10/2018 wherein Sh. Nitin Vijayvargiya, Authorised representative (AR) appeared on behalf of the Applicant. During the PH the AR reiterated the submissions already made in the application for advance ruling and requested that the case may be decided at the earliest. 4.2 The jurisdictional officer in his comments has submitted that the said supply is a mixed supply. As per Section 2 (74) of GST Act, mixed supply means two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply. Under Section 2 (74) of GST Act, the applicable GST for the supply will be 28%. Tax in relation to CGST and RGST for Rajasthan will be leviable only when place of supply is Rajasthan . 5. FINDINGS, ANALYSIS & CONCLUSION: 5.1 We have gon

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he operation and maintenance service and they are not in a position to ascertain which parts are to be supplied in the course of its operation and maintenance. In these two situations the question raised by the applicant is that Whether on facts and circumstances of the case, the maintenance services rendered on customers equipment under the two agreements i.e. comprehensive maintenance services agreement and supply of parts and services agreement which also includes supply and replacement of spare parts should be classified as composite supply under Section 2(30) of Central Goods and Service tax Act, 2017 (CGST Act) and Rajasthan State Goods and Service Tax Act, 2017 (RJ SGST Act) [collectively referred to as the GST Act ] or as mixed supply under Section 2(74) of GSTAct? 5.2 We find that Integrated contract made by the applicant is classifiable under Composite supply in terms of Section 2 (30) of GST Act, which means a supply made by a taxable person to a recipient consisting of two

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th the package of the services. Supply of parts and services are known and can be supplied individually to the customers, hence, these supplies fall under the services specified under Section 2(74) of the CGST/RGST Act, 2017 and they are chargeable to GST at applicable rates such as 12%, 18%, 28%, etc. whichever is higher. 5.4 As per Section 2 (74) of GST Act, mixed supply means two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply. 5.5 In the present case the applicant can supply the parts or services individually or any combination thereof on a single price which is appropriately covered under mixed supply. 5.6 However, the contention of the applicant regarding Comprehensive Maintenance Contract , that the services would be classifiable under the Composite Services, we are of the view that Services supplied under the said cont

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e Applicant has to supply certain goods such as spare parts and consumables, and would also supply maintenance services through skilled engineers, labourers etc. 5.9 The consumption of goods vary substantially depending on the wear and tear of the equipment, however the consumption of services which would be critical may not vary substantially as these engineers would be stationed at the mine site and accordingly perform maintenance activities on the equipment at regular intervals. Therefore, the predominant element in the composite supply would be provision of maintenance services and the supply of goods would be ancillary to such services. 5.10 Accordingly, the supply of maintenance services should be considered as the principal supply and the supply of other goods or services shall be ancillary to such principal supply. Question no.3 5.11 The maintenance services provided in the above agreements should be classified as a composite supply of maintenance services and hence the tax rat

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nery. This service code does not include: maintenance and repair services of domestic boilers and bunters, cf 995463 and elevators, goods lifts, escalators and moving pavements, cf 998718 5.12 Thus, the service code for Maintenance and repair services of commercial and industrial machinery is 9987171 and the prescribed rate of GST is (CGST @ 9% of the taxable value, SGST @ 9% of the taxable value) or IGST @ 18% of the taxable value. 5.13 For the supply of mixed services, the applicant is liable to pay the highest rate of tax as per Section 8(b) of the CGST Act, 2017. Section8(b) of the CGST act is as below: a mixed supply comprising two or more supplies shall be treated as a supply of that particular supply which attracts the highest rate of tax. Question 4 5.13 The applicant has also made a query about the place of supply, whether in the facts and circumstances of the case, what shall be the relevant place of supply and type of tax which needs to be discharged? (i.e. CGST & SGST o

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off. 6. In view of the above stated facts we pronounce the ruling as under:- RULING 1. The activities performed under the Comprehensive Maintenance Contract are to be treated as a composite supply of services and the activities performed under Equipment Parts Supply and Services Agreement are to be treated as Mixed Supply. 2. In respect of the activities performed under Comprehensive Maintenance Contract , the supply of Operation & Maintenance services is the principal supply and the supply of other services are ancillary to such principal supply. 3. The service code for Maintenance and repair services of commercial and industrial machinery is 9987171 and the prescribed rate of GST is 18% (CGST @ 9% of the taxable value, SGST @ 9% of the taxable value) or IGST @ 18% of the taxable value. For the supply of mixed services, the applicant is liable to pay the highest rate of tax as per Section 8(b) of the CGST Act, 2017. 4. As the query raised by the applicant does not fall in the cat

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2018 (11) TMI 1522 – CESTAT CHANDIGARH – TMI – Levy of Service tax – demand has been confirmed on the basis of income surrender before the Income-Tax Department – services or not – Held that:- The income surrendered with the Income-Tax Department cannot be the turnover of the service provided by the appellant, in the absence of any evidence placed on record by the Revenue that the income or turnover is on account of services provided by the appellant.
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The demand on account of income surrendered with the Income Tax Department cannot be confirmed against the appellant – appeal allowed – decided in favor of appellant. – Appeal No.ST/60907/2018 – A/63318/2018-SM[BR] – Dated:- 12-10-2018 – Mr. Ashok Jindal, Member (Judicial) Present for

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7; 39,85,000/- on account of commercial coaching and training service but for the rest of the amount, the appellant submitted that the same is on account of sale and purchase of immovable property. The Revenue was of the view that the said amount pertained to the services provided by the appellant. Therefore, a show cause notice was issued to the appellant to demand of service tax along with interest and to impose penalty on the appellant. The matter was adjudicated, the demand of service tax was confirmed along with interest and imposed penalties on them. Against this order, the appellant is before me. 3. Ld. Counsel for the appellant submits that the burden lies on the Revenue to establish that while providing taxable service the appellan

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ore, in the light of the decision of this Tribunal in the case of M/s. Garg Furnace Limited (supra) wherein this Tribunal has observed as under:- 2. Heard the parties. Considering the fact that the income surrendered with the Income Tax Department cannot be considered as income or turnover of goods manufactured by the appellant in the absence of any evidence placed on record that the said income or turnover is on account of the goods manufactured by the assessee. As the appellant has failed to come with evidence that the said amount surrendered with the Income Tax Department is on account clandestine removal of goods. In that circumstance, demand against the appellant cannot be confirmed in the light of the decision of this Tribunal in the

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2018 (12) TMI 894 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – TMI – Levy of GST – consultancy services rendered to Municipal Corporation of Greater Mumbai (MCGM) for an upcoming project of establishment & development of textile museum in Mumbai – functions entrusted to a municipality under Article 243 W – pure services – whether the consultancy services as per details above would be exempt under N/N. 12/2017-Central Tax (Rate) dated 28.06.2018?
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Held that:- The applicant in their ARA have stated that Establishment and Development of a museum and recreation ground is not considered as a function entrusted to a Municipality under Article 243 of the Constitution. Since Establishment and Development of a museum and recreation ground is not a function listed in in the 12th Schedule to be read with Article 243 of the Constitution, the applicant has stated that in their view JJ is required to charge GST on consultancy services rendered to MCGM for the above project work, under GST la

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aharashtra Goods and Services Tax Act, 2017) The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and Act ] by SIR J.J. COLLEGE OF ARCHITECTURE CONSULTANCY CELL, the applicant, seeking an advance ruling in respect of the following issue: Whether applicant shall charge GST on the consultancy services rendered to Municipal Corporation of Greater Mumbai (MCGM) for an upcoming project of establishment & development of textile museum in Mumbai. At the outset, we would like to make it clear that the 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 ref

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mprehensive Architecture service and project management service that includes architecture service and MEP design, reviewing tender document for inviting contractors, site supervision and certifying bills of contractors paid by MCGM. This project involves heritage restoration and adoptive reuse of various structures such as Textile Museum, Library bldg., back office for support staff, shopping area which would be leased out to various state government authorities for showcase of textiles, Auditorium, underground parking, Public Plaza – Landscape area, etc. d. As per notification no TPB 4312/789/CR-27/2013/UD-11 of the urban land department, the textile museum is treated as part of the recreational ground area and ancillary facilities of recreation like exhibition of textile related activities, fabrics machinery, processes, fashion show, souvenir shops, cafeteria, spill out zones, light & sound shows, etc. have been allowed to developed in the said area. Statement containing the app

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unicipality under article 243W of the constitution. b. This entry provides exemption from payment of taxes on pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to central government, state government or union authority or local authority or a government authority by way of any activity in relation to any function entrusted to panchayat under article 243G of the constitution or in relation to any function entrusted to a municipality under article 243W of the constitution. c. In order to claim above mentioned exemption, the service provided to MCGM must be pure service i.e. no involvement of works contract. d. The agreement entered by JJ and MCGM has been registered after payment of stamp duty with government of Maharashtra under article 63/63 as work contact agreement as advised by MCGM. e. Moreover establishment & development of museum and recreation ground is not considered as function entrusted to municipality unde

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Contract service or other Composite supplies involving supply of any goods) provided to the Central government, State Government or Union Territory or Local authority or a Government authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution. Agreement made between J.J. College of Architecture Consultancy cell and Municipal Corporation of Greater Mumbai (MCGM) is under Article 63/ 63 Works Contract, so GST is applicable. Other information is enclosed herewith. (Annexure, Form no. ST-2) Copy of Article 63/63 Works contract agreement 04. HEARING The case was taken up for Preliminary hearing on dt. 08.08.2018 when Sh. Kushal Mehta, C.A. along with Sh. Sumesh Porwal, C.A. appeared and made written submissions and stated that they were not carrying authorization today and would be submitting the same at the earliest . Sh. Sanjay

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the Architecture Consultancy Cell of the applicant college has entered in to an agreement with the Municipal Corporation of Greater Mumbai (MCGM) to provide comprehensive architecture service and project management service that includes architecture service and MEP design, reviewing tender documents for inviting contractors, site supervision and certifying bills of contractors, paid by MCGM in respect of an upcoming project of establishment and Development of a Textile Museum in Mumbai. The project involves heritage restoration and adoptive use of various structures such as textile museum, library building, back office for support staff, shopping area to be leased out to various State Government authorities for showcase of textiles, Auditorium, underground parking, public plaza landscape area, etc. We also find that the applicant has stated that the agreement entered into by JJ and MCGM has been registered after payment of stamp duty with the Government of Maharashtra under Article 63/

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he applicant in their ARA have stated that Establishment and Development of a museum and recreation ground is not considered as a function entrusted to a Municipality under Article 243 of the Constitution. Since Establishment and Development of a museum and recreation ground is not a function listed in in the 12th Schedule to be read with Article 243 of the Constitution, the applicant has stated that in their view JJ is required to charge GST on consultancy services rendered to MCGM for the above project work, under GST laws. Thus in view of the above facts we are required to ascertain if the applicant s services are eligible for exemption as per the Serial No 3 of the Notification referred above. For this we are required to ascertain the exact services being provided in the present case by the applicant and also if Establishment and development of museum and recreation ground is a function entrusted to a municipality under Article 243 W of the Constitution. First of all we find that t

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se in relation to the matters listed in the Twelfth Schedule. We further find that the Twelfth Schedule (Article 243W of the Constitution (Seventy-Fourth Amendment) Act, 1992) reads as under: 1. Urban planning including town planning. 2. Planning of land- use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of ecological aspects. 9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. 10. Slum improvement and up gradation. 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens, playgrounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials and burial grounds; cremations, cremation grounds and electr

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itecture service and MEP design, reviewing tender document for inviting contractors, site supervision and certifying bills of contractors paid by MCGM. This project involves heritage restoration and adoptive reuse of various structures such as Textile Museum, Library bldg., back office for support staff, shopping area which would be leased out to various state government authorities for showcase of textiles, Auditorium, underground parking, Public Plaza – Landscape area, etc. However we find that the applicant has not provided the copies of contract, entered into by them with MCGM which would in detail give the exact nature of activities being done by them and which would be very crucial in deciding whether the services being provided by the applicant are in the nature of Pure Services or Works Contract Services. We find that the jurisdictional officer has submitted before us a copy of receipt of stamp duty paid for registration of contract between the applicant and MCGM wherein the co

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nt to be of the nature of Works Contract Services, we do not find the need to go into their other agreements in respect of claims of exemption under Sr.No. 3 of Notification No. 12/2017-CT(Rate) dated 28.06.2018, as pure services. 05. In view of the extensive deliberations as held hereinabove, we pass an order as follows : ORDER (Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) NO.GST-ARA-54/2018-19/B-128 Mumbai, dt.12.10.2018 For reasons as discussed in the body of the order, the questions are answered thus – Question :- Whether applicant shall charge GST on the consultancy services rendered to Municipal Corporation of Grater Mumbai (MCGM) for an upcoming project of establishment & development of textile museum in Mumbai. Answer:- Answered in the affirmative in view of detailed discussions above. – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxmana

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2019 (2) TMI 1405 – CESTAT CHANDIGARH – 2019 (21) G. S. T. L. 444 (Tri. Chan.) – Refund of service tax paid – Jurisdiction – rejection on the ground that that the appellant is registered as service provider in Gurugram, therefore, the refund claim is required to be filed there. Therefore, they are not entitled to claim refund from the Panchkula office – Held that:- The appellant has filed refund claimed either of the Commissionerates of Gurugram and Panchkula. The appellant is registered with the Service Tax department, Gurugram. However, as the Housing Board Haryana paid service tax on the rendered by the appellant to the Panchkula Commissionerate, then the appellant is having jurisdiction to file refund with the Panchkula Commissionerate. Therefore, they have rightly filed refund claim before the Panchkula Commissionerate.
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Further, the appellant has produced certificate from the Housing Board Haryana certifying that the appellant can file refund of service tax paid by Housing

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f Mega Exemption Notification No.25/12-ST dt.20.6.2012. The appellant filed refund claim to the Assistant/Deputy Commissioner of Service Tax, Gurugram, who rejected the refund claim on the ground that the refund was to be given by the Service Tax Panchkula Commissionerate as the service tax had been paid by the Housing 2 ST/60551/2018 Board Haryana there. The appellant filed the refund application with the Assistant Commissioner, Service Tax, Panchkula on 6.3.2017. The Assistant Commissioner, Service Tax, Panchkula rejected the refund claim on the ground that that the appellant is registered as service provider in Gurugram, therefore, the refund claim is required to be filed there. Therefore, they are not entitled to claim refund from the Panchkula office. Against this order, the appellant is before me. 3. Ld. Consultant appearing on behalf of the appellant submits that on account of rejection of refund claim by either of the Gurugram Commissionerate and Panchkula Commissionerate as th

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gram. However, as the Housing Board Haryana paid service tax on the rendered by the appellant to the Panchkula Commissionerate, then the appellant is having jurisdiction to file refund with the Panchkula Commissionerate. Therefore, they have rightly filed refund claim before the Panchkula Commissionerate. Further, I find that the appellant has produced certificate from the Housing Board Haryana certifying that the appellant can file refund of service tax paid by Housing Board Haryana and the service tax borne by the appellant. In that circumstance, I hold that the appellant is entitled to file refund claim before the Panchkula Commissionerate. Therefore, the concerned officer of Panchkula Commissionerate is directed to sanction the refund claim to the appellant within 30 days of receipt of this order. 7. The appeal is allowed in the above terms. (dictated and pronounced in the court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanage

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GST – Started By: – ROHIT GOEL – Dated:- 11-10-2018 Last Replied Date:- 17-1-2019 – One of our client (assessee company) is engaged in the activity of building and developing commercial complex. Out of shops constructed therein some shops were sold out while construction on which service tax has been paid in full and some were sold after date of project completion on which no service tax has been paid and remaining shops are held as inventory as of now. Credit of ITC availed has been reversed o

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Customs – Special Drive Fortnight to rectify errors relating to IGST refunds. – TMI Updates – Highlights

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Goods and Services Tax – Started By: – Ravikumar Doddi – Dated:- 11-10-2018 Last Replied Date:- 11-10-2018 – Dear sir, Is it mandatory to file invoice wise details registered inward as mentioned table 4A , there are 17 points to answer to open the Form GSTR-4. Table 6 showing rate of tax wise outward viz., 0%,5%,2% and 1%, Where to mention the GST exempted/nil rated outward where there is no column, only '0' rated was mentioned in respective table(Zero represents- SEZ and Export sales),

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 11-10-2018 – In one of the recent cases, In Re: Lifestyle International Pvt. Ltd. (2018) 9 TMI 1640 (NAA), National Anti-Profiteering Authority vide its order dated 25.09.2018 has confirmed Anti-profiteering charges on sale of goods and penalty imposed. In the instant case, the applicant alleged that the respondent had not passed on the benefit of reduction in the rate of tax by lowering the price of Maybelline FIT Me foundation (product), which she had purchased, when the Goods and Services Tax (GST) was reduced from 28% to 18% on this product on 15.11.2017. She had also alleged that she had bought the above product from the Respondent @ ₹ 525/- per unit vide tax invoice, which included GST @ 18%. She had also claimed that the Respondent had indulged in profiteering in contravention of the provisions of Section 171 of the CGST Act, 2017 and hence appropriate action should be taken against it. The respondent conte

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ken the benefit of Input Tax Credit (ITC) on the purchase of the product, therefore he was required to reduce the Retail Selling Price (RSP) to pass on the benefit of reduction in the rate of GST from 28% to 18% w.e.f. 15.11.2017 to his customers. It was also found by the DGAP that earlier the MRP of the product was ₹ 550/- which was revised to ₹ 575/- post 20.06.2017 and the RSP of the product was decided by the Respondent within the MRP which was printed on the back of the product. The Authority observed and concluded that the Respondent had enhanced the basic price of both the shades of the product which was exactly equal to the amount by which the GST on them had been reduced and hence there is no doubt that the Respondent had resorted to profiteering amounting to ₹ 15,861/- which includes profiteering of ₹ 41/- made by him from the Applicant, which constitutes violation of the provisions of Section 171 of the above Act. It is also established that the Respo

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duce the price of both the shades of the product to ₹ 410/- and ₹ 449/- respectively excluding GST. He was also directed to refund an amount of ₹ 41/- along with interest @ 18% to the Applicant No. 1 from the date when this amount was realised by him from her till the date of refund. Since rest of the recipients were not identifiable, the DGAP was directed to get the balance amount of profiteering of ₹ 15,820/- deposited in the Consumer Welfare Fund of the Central and the Concerned State Govt. as per the provisions of Rule 133 (3) (c) of the CGST Rules, 2017 along with interest @ 18% till the amount is paid. Any amount ordered to be refunded or to be deposited shall be refunded or deposited within a period of 3 months by the Respondent from the date of receipt of this order failing which the same shall be recovered by the DGAP as per the provisions of the CGST Act, 2017 and shall be refunded or deposited. The notice was also directed to be issued to show cause a

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Goods and Services Tax – GST – By: – Prasanna CP – Dated:- 11-10-2018 – SHRI ANKUR JAIN, DIRECTOR GENERAL ANTI-PROFITEERING, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, VERSUS M/S. KUNJ LUB MARKETING PVT. LTD. [ 2018 (10) TMI 510 – NATIONAL ANTI-PROFITEERING AUTHORITY ] The National Anti-Profiteering Authority has issued several order in the consumer sector addressing issues with respect to passing the benefits of reduction in GST rates to consumer by way commensurate reduction in selling price. Let us discuss about the recent order issued by the authority on sale of Maggi. Background of the case: A consumer has purchased Maggi Noodle packs, each weighing 35 grams having MRP of ₹ 5 from the seller. Prior to 15.11.2017, the seller was charging 18% GST on the product s base price of ₹ 3.96 per pack, however, after the GST rate was reduced from 18% to 12% with effect from 15.11.2017, the Seller had started charging 12% GST on the product s increased base price of ₹ 4

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rough other packs of Maggi Noodles having different basic weights. The Respondent had further submitted that in the case of the product the price reduction would have been around 21 paise to the retailer and around 25 paise to the ultimate consumer which would have been inconvenient to both the retailer and the consumer due to legal tender issue, whereas on Maggi Noodles pack of 70 grams bearing MRP of ₹ 12 per pack, the benefit on account of GST rate reduction for the retailer would have been approximately 56 paise against which the respondent had reduced the price by 92 paise with reduced MRP of ₹ 11 and thus, the benefit in respect of ₹ 5 MRP pack had been passed on by reducing the price of other packs of Maggi Noodles by more than what was required. Therefore, the Respondent had claimed that the benefit of GST rate reduction had been passed on in respect of Maggie Noodles as a whole. Absence of clarity in rules: Before arriving at the conclusion the DGAP noted tha

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f the CGST Act, 2017 in this case? If yes, then what was the quantum of profiteering? After careful examination of DGAP s report and submissions from both applicant and respondent, the following observations were made by the Anti-Profiteering Authority. Product of concern MRP per pack Period of sales: 1st Nov to 14th Nov 2017 Period of sales: 15th Nov 2017 to 28th Feb 2018 Amount charged Base price GST rate Amount charged Base price GST rate Maggi 35 grams 5 4.67 3.96 18% 4.67 4.17 12% The respondent is required to reduce the MRP of the product by taking into effect of the reduction in rate of tax. The respondent further required to fix the MRP as per the provisions of the Legal Metrology (Packaged Commodities) Rules, 2011. As per rule 2(m) retail sale price means the maximum price at which the commodity in packaged form may be sold to consumer and the price shall be printed on the package after taking into account the fraction of less than fifty paise to be rounded off to the precedin

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Goods and Services Tax – Renting of immovable property service – Small Business Exemption – Co-owners – collection of rent jointly – Whether small business exemption under Section 22 of the GST Act is

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Goods and Services Tax – Classification of service – Intermediary Services or not – The contract of services supplied are not pure and mere promotion and marketing services and the services provided i

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Goods and Services Tax – Levy of GST – Supply or not? – naturally bundled services – placement of specified medical instruments to unrelated customers being hospital/ laboratory – The principal supply

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Goods and Services Tax – ITC – construction services – The Input Tax Credit availed in respect of the GST paid on goods and/or services used/consumed for the development of the land, in respect of the

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Goods and Services Tax – Supply of works contracts awarded by Government attracts 12% GST. – Supply of work awarded by M/S. HLL Infra Tech Services Ltd. For the construction of Biotech lab and adminis

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Goods and Services Tax – Started By: – Rishabh Mishra – Dated:- 11-10-2018 Last Replied Date:- 12-10-2018 – Sir,I want to send some material directly from my purchasing party in Dadra Nagar Haveli to another party in Gwalior, Madhya Pradesh. Party in Dadra Nagar haveli generated a e-way bill to Party in Gwalior. Do we have to generate a E-way bill?What to be done in such circumstances. – Reply By SHIVKUMAR SHARMA – The Reply = Your Supplier from DNH can genereted an E Way bill as under:Bill to Your Name & Ship to -Your Customer Name of Gwalior.You need not to generate E way bill. – Reply By Ganeshan Kalyani – The Reply = Agreed, supplier in Dadra and Nagar Haveli shall bill on you but ship to your customer place in Madhya Pradesh. The

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oods directly to 'C'. 'B' is the person who is sending goods directly to 'C' on behalf of 'A'. 'C' is the recipient of goods. 2. In this complete scenario two supplies are involved and accordingly two tax invoices are required to be issued: Invoice -1, which would be issued by 'B' to 'A'. Invoice -2 which would be issued by 'A' to 'C'. 3. Queries have been raised as to who would generate the e-Way Bill for the movement of goods which is taking place from 'B' to 'C' on behalf of 'A'. It is clarified that as per the CGST Rules, 2017 either 'A' or 'B' can generate the e-Way Bill but it may be noted that only one e-Way Bill is require

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2018 (10) TMI 696 – CESTAT CHENNAI – TMI – CENVAT Credit – Suo moto credit taken on excess credit debited by appellant – denial on the ground that credit availed without any supporting documents as prescribed under CENVAT Credit Rules, 2004 – Held that:- It is clear that the appellants had adjusted higher amount from the CENVAT credit amount towards discharging duty liability for the months of July and November 2012. Later, realizing the mistake, they had taken suo moto credit of the excess CENVAT amount debited by them.
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The department has denied the suo moto credit alleging that there are no proper documents for availing the credit for the second time – this allegation by the department is erroneous for the reason that for the second time, the appellants have taken the credit only because they had made a wrong book entry at the initial stage. This does not amount to availing credit for second time.
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The Hon’ble Karnataka High Court in the case of Motorola India Pvt. Ltd. [

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ny supporting documents as prescribed under CENVAT Credit Rules, 2004. The appellants explained that they had paid excess duty utilizing the CENVAT credit for the month of July 2012 and November 2012 and on realizing the same had taken suo moto credit of the said amount. The department was of the view that the credit availed is ineligible as such credit was not supported by documents and that the appellants are not entitled to take suo moto credit. Show cause notice was issued raising the above allegations and proposing to recover the wrongly availed credit to the tune of ₹ 11,48,094/- along with interest and also proposing to impose penalties. After due process of law, the original authority confirmed the demand, interest and penalties. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Ms. Krithika Jaganathan submitted that the appellant has been regularly discharging the excise duty at applicable rates and also fili

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payment of excise duty and the entry of adjustment / debit was only an error made in the book entry. The recredit so taken by the appellant was declared in ER-1 returns filed for July 2014. The appellant also informed such recredit at the time of audit investigation. The department alleges that the appellant ought not to have taken suo moto credit and ought to have filed a refund claim for the excess duty paid. She submitted that the appellant had availed the recredit only because the credit had been not utilized for any duty liability and was eligible for the same. She submitted that the authorities below had relied upon the decision of the Larger Bench of the Tribunal in the case of BDH Industries Ltd. Vs. Commissioner of Central Excise – 2008 (229) ELT 364 (Tri. LB). That the said Larger Bench decision was per incuriam as the Hon ble Karnataka High Court by an earlier decision in the case of Motorola India Pvt. Ltd. – 2006 (206) ELT 90 (Kar.) had already held that the mistake in exc

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dure for taking suo moto credit under the Act. 4. Heard both sides. 5. From the Table above, it is clear that the appellants had adjusted higher amount from the CENVAT credit amount towards discharging duty liability for the months of July and November 2012. Later, realizing the mistake, they had taken suo moto credit of the excess CENVAT amount debited by them. The department has denied the suo moto credit alleging that there are no proper documents for availing the credit for the second time. I find that this allegation by the department is erroneous for the reason that for the second time, the appellants have taken the credit only because they had made a wrong book entry at the initial stage. This does not amount to availing credit for second time. The Larger Bench of the Tribunal in the case of BDH Industries Ltd. (supra), had held that the assessee cannot take suo moto credit. However, the Hon ble Karnataka High Court in the case cited supra had earlier held that the mistake of de

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as per Rule 6(5) of the Cenvat Credit Rules, 2004. as there is no dispute of the fact that a sum of ₹ 3,21,308/- available as Cenvat credit was in respect of input services, which are given under Rule 6(5) of the Cenvat Credit Rules, 2004. When that being the case, in respect of those services specifically mentioned under Rule 6(5) of the Cenvat Credit Rules, 2004 as it existed during the relevant period viz., 2004-2006 getting the reversal of the entry is in tune with its stand taken, which was accepted by the Tribunal in the earlier round of litigation. 6. This decision was followed by the Hon ble High Court of Allahabad in Krishnav Engineering Ltd. – 2016 (331) ELT 391 (All.). Following the said decisions of the Hon ble High Courts, I am of the view that the allegations in the show cause notice cannot sustain. The impugned order is set aside and the appeal is allowed with consequential relief, if any. (Dictated and pronounced in open court) – Case laws – Decisions – Judgeme

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2018 (10) TMI 697 – CESTAT CHENNAI – TMI – Refund claim/adjustment of excess paid duty against short paid – finalization of provisional assessment – whether the appellants are eligible for adjusting the excess paid duty towards the short paid as well as whether they are eligible for refund of the excess amount after such adjustment?
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Held that:- In Toyota Kirloskar Auto Parts [2011 (10) TMI 201 – KARNATAKA HIGH COURT] the Hon’ble High Court of Karnataka had occasion to analyse the issue and has held that such adjustment is permissible.
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Since the issue stands settled in favor of the appellant the order directing to credit the sanctioned refund to the Consumer Welfare Fund is not in accordance in law and requires to be set aside – appeal allowed – decided in favor of appellant. – E/41550/2018 – 42582/2018 – Dated:- 11-10-2018 – Ms. Sulekha Beevi, C.S., Member (Judicial) For the Appellant : Shri Sai Prasanth, Advocate For the Respondent : Shri L. Nandakumar, AC (AR) ORDER The

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son that appellant has not proved that the burden of duty has not been passed on to another. In appeal, the Commissioner (Appeals) vide order dt. 22.6.2015 rejected the appeal of the appellant on the ground that appellant has not established that the duty has not been passed on to their buyers. The same was appealed to the Tribunal and vide Final Order No.41892/2016 dt. 07.10.2016, the matter was remanded to the adjudicating authority with a direction to give reasonable opportunity to the appellant and to pass a speaking order. Accordingly, the de novo adjudication order was passed vide OIO No. 13/2017-RF and the refund was sanctioned but the original authority again directed to credit the amount to the Consumer Welfare Fund. In appeal, the Commissioner (Appeals) again upheld such order. Thus appellants are once again before the Tribunal. 2. On behalf of the appellant, Ld.Counsel Shri Sai Prasanth appeared and argued the matter. He submitted that vide order of finalization of provision

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CESTAT Bangalore wherein the Tribunal relied upon the decision in the case of CCE Vs Indian Telephone Industries – 2016 (11) TMI 14-CESTAT Bangalore. 3. Ld. A.R Shri N. Nandakumar argued that the appellant has issue invoices even for the amount which has been excess paid by which the burden of duty is passed on to the other and therefore the refund has been rightly rejected by the authorities below. 4. Heard both sides. 5.1 The issue is whether the appellants are eligible for adjusting the excess paid duty towards the short paid as well as whether they are eligible for refund of the excess amount after such adjustment. In Toyota Kirloskar Auto Parts stated (supra) the Hon ble High Court of Karnataka had occasion to analyse the issue and has held that such adjustment is permissible. The relevant portion of the Hon ble High Court order is reproduced as under : 8. Therefore, it is clear that after a final assessment order is passed, if the duty paid in terms of provisional assessment is l

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ESTAT Bangalore. 5.2 The Tribunal also relied upon the decision in the case of Indian Telephone Industries vide Final Order No. 21010-21011/2016 dt. 25.10.2016 [2016 (11) TMI 14] to observe that excess paid duty of provisional assessment is required to be adjusted towards the duty short paid upon finalization of such provisional assessment. The appeal filed by the department against sanctioned of refund by the authorities below in the appellant s own case reported as above was dismissed by the Tribunal holding that the test of unjust enrichment is not required to be carried out prior to adjustment of excess duty paid. Following the said decisions in the appellant s own case, I am of the view that since the issue stands settled in favour of the appellant the order directing to credit the sanctioned refund to the Consumer Welfare Fund is not in accordance in law and requires to be set aside. Impugned order that extent is set aside. Appeal is allowed with consequential relief, if any, as

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2018 (10) TMI 833 – CALCUTTA HIGH COURT – TMI – Clandestine removal – unlabelled stock – Interpretation of Statute – Rule 10 of the Central Excise Rules 2002 read with the letter of the Board dated 9th November, 1964 – Held that:- There was a stock of unlabelled and unstamped plywood manufactured by the appellant. The stock may not have been very large but it is an admitted position that it was not taken into account at the time of calculation of the demand, by the respondent.
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A mixed question of facts and law arise from the said impugned order of the Tribunal. In our opinion, a thorough adjudication on facts is required to ascertain whether there was any quantity of unlabelled and unstamped plywood? Whether the appellant had entered this stock in the Daily Stock Account R. G. – 1 according to Rule 10 of the said Rules? What is the amount of duty that is to be adjusted against this stock of goods and in that event what would be the ultimate demand of the respondent?
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tion of Rule 10 of the Central Excise Rules 2002 read with the letter of the Board dated 9th November, 1964. Mr. P. K. Das appearing for the appellant submits that in accordance with the ratio of the Supreme Court in the case of Collector of Customs And C. E. Versus Oriental Timber Industries reported in 1985, Volume 20, ELT Page 202(SC) and the said Rule 10, the stock of unlabelled and unstamped plywood manufactured by the appellant was entered in their Daily Stock Account R.G. – 1. The demand of duty of ₹ 2, 45, 850.09/- along with interest and penalty of ₹ 4, 00, 292.00/- has been wrongly imposed on the appellant by the respondent authority by rejecting their argument that this stock of unlabelled and unstamped plywood was to be entered in the Daily Stock Account and accounted for. Mr. Das said that according to the respondent such entry should be ignored and was ignored by them. Learned counsel appearing for the respondent Commissioner submitted that at all stages of th

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? This Court is of the view that these questions of fact and law can be best answered by the tribunal or the adjudicating authorities below. In those circumstances, we formally admit the appeal. By consent of the parties, we have heard it out dispensing with all formalities. Instead of hearing out this appeal on questions of law, it would be proper if the above issues are remanded back to the Tribunal for de novo adjudication upon hearing the parties within four months from the date of communication of this order. We order accordingly. The Tribunal will be at liberty to further remand the matter to a lower over adjudicating authority for fact finding purposes. The Tribunal will not be bound by any observation made herein. As affidavits were not invited, the allegation contained in the stay petition are deemed not to be admitted. The appeal (CEXA No. 55 of 2018) along with the stay application (GA No. 826 of 2018) are disposed of. – Case laws – Decisions – Judgements – Orders – Tax M

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2018 (10) TMI 876 – GUJARAT HIGH COURT – [2018] 59 G S.T.R. 307 (Guj), 2018 (19) G. S. T. L. 440 (Guj.) – Correction of errors in the TRAN-1 declarations – migration to GST Regime – transitional provisions – Three transactions which were in pipeline when the GST was brought into force, due to oversight, were not included in such declaration. – Held that:- There is no scope for directing the respondents to allow the petitioner to correct the TRAN1 declaration already made. We may recall, such time limit initially provided in the rules was extended from time to time and lastly upto 27.12.2017. Further, limited extension has been granted to cover cases where genuine hardships were felt in uploading said declarations due to technical glitches.
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The case of Bombay High Court in case of O/E/N India Ltd. & Anr. [2018 (10) TMI 199 – BOMBAY HIGH COURT] was very different. The petitioner had pointed out a typographical error in filling up figure of unused CENVAT credit available, the Court

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ction 164 of the Central Goods and Services Tax Act, 2017 and also offends Article 14, Article 19(1)(g), Article 265 and Article 300A of the Constitution of India, 1950; (b) Your Lordships may be pleased to issue writ of declaration and/or any other appropriate writ(s) declaring Section 164 of the Central Goods and Services Tax Act, 2017 as unconstitutional as it suffers from vice of excessive delegation; (c) Your Lordships may be pleased to issue writ(s), direction(s) and/or pass necessary order(s) directing the respondents to allow rectification of GST – Tran1, to enable credit of carry forward of Credit on eligible duties of goods and services in transit in electronic credit ledger in terms of Section 140(5) of the Central Goods and Services Tax Act, 2017, either by opening of GSTN portal or to allow it to be filed manually; 2. In view of the judgment of Division Bench of this Court in case of Willowood Chemicals Pvt. Ltd. v. Union of India dated 12th/19th September 2018, in Special

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ed from time to time. Final extension was granted till 27.12.2017. 5. The time limit provisions contained in rule 117 of the respective rules came to be challenged before this Court in case of Willowood Chemicals Pvt. Ltd. (supra). Petitioner therein had challenged section 140(5) of the CGST Act also. Both these challenges were repealed by the High Court by the said judgment. In such judgment, it was noticed that the Government had amended rule 117 providing for limited extension of time for filing TRAN1 declarations with the permission of the concerned Commissioner if previously within the time granted, the same could not be done on account of technical glitches on the official portal. 6. Case of the petitioner is that such TRAN1 was actually filed within the time originally permitted. After the time limit was over, the petitioner noticed certain errors in the declaration made. Three transactions which were in pipeline when the GST was brought into force, due to oversight, were not in

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retation of the provision should be granted. His attempt was therefore to persuade us to apply the provisions for correction of returns to the situation where TRAN1 declaration may have been incorrectly filed. He also drew our attention to an interim order passed by the Bombay High Court on 26.09.2018 in Writ Petition No.2086 of 2018 in case of O/E/N India Ltd. & Anr. v. Union of India & Ors. in which, various recommendations were made to enable the petitioner to correct TRAN1 declaration where the figure of CENVAT credit available was shown as ₹ 11,10,555/instead of ₹ 1,11,05,550/in exercise of powers under section 172 of the CGST Act. 8. On the other hand, learned counsel Shri Ankit Shah for the department opposed the petition contending that this Court in case of Willowood Chemicals Pvt. Ltd.(supra) has examined the time limit provisions contained in the transitional chapter and found that the same cannot be lightly extended. He submitted that the petitioner had

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2017 in which; as noted, subrule (1) of Rule 117 has prescribed, besides other things, the time limit for making declaration in the prescribed form for every dealer entitled to take credit of input tax under Section 140. Subrule [1] of Rule 117 thus applies to all cases of credits which may be claimed by a registered person under section 140 of the Act and is not confined to subsection [3]. This plenary prescription of time limit within which necessary declarations must be made is, in our opinion, neither without authority nor unreasonable. 25. Section 140 of the Act envisages certain benefits to be carried forward during the regime change. As is wellsettled, the reduced rate of duty or concession in payment of duty are in the nature of an exemption and is always open for the legislature to grant as well as to withdraw such exemption. As noted in case of Jayam & Company [Supra], the Supreme Court had observed that input tax credit is a form of concession provided by the legislature

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prescribed time. As noted, subsection [1] of Section 164 of the CGST Act authorizes the Government to make rules for carrying out the provisions of the Act on recommendations of the Council. Subsection [2] of Section 164 further provides that without prejudice to the generality of the provisions of subsection [1], the Government could also make rules for all, or any of the matters, which by this Act are required to be or may be prescribed or in respect of which, provisions are to be or may be made by the rules. Combined effect of the powers conferred to subordinate legislature under subsections [1] and [2] of Section 164 of the CGST Act would convince us that the prescription of time limit under subrule [1] of Rule 117 of the CGST Rules is not ultra vires the Act. Likewise, such prescription of time limit cannot be stated to be either unreasonable or arbitrary. When the entire tax structure of the country is being shifted from earlier framework to a new one, there has to be a degree of

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ovision cannot necessarily be held to be directory in nature and must depend on the context of the statutory scheme. 27. Issue can be looked at from slightly different angle. Granting tax credit is an integral part of computation and collection of tax. Tax collection is an important element of budgetary allocations and estimation of the Union and the States. Such consideration of tax credits at such large scale cannot be allowed to linger on indefinitely which would have a direct effect on the tax collection, estimates and budgetary allocations and in turn, revenue deficit. … … 32. Thus, in the economic matters of such vast scale, the wider considerations of the State exchequer, while interpreting a statutory provisions cannot be kept out of purview. Quite apart from independently finding that the time limit provisions contained in subrule (1) of Rule 117 of the CGST Rules is not ultra vires the Act or the powers of the rule making authority, interpreting such powers as m

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Tribunal or Court in getting such tax collection declared illegal, was further influenced by the fact that any such situation could lead to utter chaos, if the claims are large. Under the circumstances, we do not find any substance in the petitioners challenge to rule 117 (1) of the CGST Rules as well as GGST Rules. 11. Under the circumstances, we do not see any scope for directing the respondents to allow the petitioner to correct the TRAN1 declaration already made. We may recall, such time limit initially provided in the rules was extended from time to time and lastly upto 27.12.2017. Further, limited extension has been granted to cover cases where genuine hardships were felt in uploading said declarations due to technical glitches. 12. The case of Bombay High Court in case of O/E/N India Ltd. & Anr. (supra) was very different. The petitioner had pointed out a typographical error in filling up figure of unused CENVAT credit available, the Court was of the opinion that said mere t

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2018 (10) TMI 997 – PUNJAB AND HARYANA HIGH COURT – TMI – Extension of period for filing GST TRAN-1 form – Held that:- Respondents submitted that N/N. 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-21823-2018 (O&M) Dated:- 11-10-2018 – MR RAJESH BINDAL AND MR MAHABIR SINGH SINDHU, JJ. For The Petitioner : Mr.Balwinder Singh, Advocate for Mr.Rajiv Agnihotri, Advocate For The Respondent : Mr.Tajender Joshi, Advocate Ms.Mamta Singh Talwar, DAG, Haryana

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