Author: admin_gst

Transition of Customs functions hitherto performed by the Central Excise/ GST officers, including the export procedure and sealing of Containerized export cargo, to the Customs formations, under the Commissioner of Customs, Pune
CORRIGENDUM TO TRADE NOTICE NO. 01/2018 Dated:- 20-11-2018 Trade Notice
Customs
OFFICE OF THE COMMISSIONER OF CUSTOMS
GST BHAVAN, 41/A, SASSON ROAD, PUNE-411001
F. No. VIII/Cus/Tech/Gst-Reorg/ 48-16/2017
Pune Dated: – 20.11.2018
CORRIGENDUM TO TRADE NOTICE NO. 01/2018
Sub: Transition of Customs functions hitherto performed by the Central Excise/ GST officers, including the export procedure and sealing of Containerized export cargo, to the Customs formations, under the Commissioner of Customs, Pune.

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M/s. Vibgyor Printing and Packing P. Ltd. Versus Commissioner of GST & Central Excise Puducherry
Central Excise
2019 (2) TMI 78 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 20-11-2018
Appeal No. E/40756/2018 – Final Order No. 43022/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Ms. S. Sridevi, Advocate for the Appellant
Shri L. Nandakumar, AC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellants are engaged in the manufacture of printed flexible packaging material. They filed refund claim of Rs. 6,85,366/- being the accumulated / unutilized CENVAT credit as they had closed down their manufacturing activity and surrender

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d their central excise registration, they are eligible for the accumulated credit. She relied upon the decision of the Hon'ble High Court of Karnataka in the case of Union of India Vs. Slovak Trading Co. Pvt. Ltd. – 2006 (201) ELT 559 (Kar.). That the appeal filed by the department against the said decision was dismissed as reported in 2008 (223) ELT A170 (SC).
3. The ld. AR Shri L. Nandakumar supported the findings in the impugned order.
4. Heard both sides.
5. The issue is with regard to the refund of unutilized credit as the appellant had stopped the manufacturing activity. The Hon'ble High Court of Karnataka in the case of Slovak Trading Co. Pvt. Ltd. (supra) had occasion to analyze the very same issue and held that even though there

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M/s. Interface Trade Fair Pvt. Ltd. Versus Commissioner of GST & Central Excise Coimbatore
Service Tax
2019 (2) TMI 86 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 20-11-2018
Appeal No. ST/422/2012 – Final Order No. 43024/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
None for the Appellant
Shri B. Balamurugan, AC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellants are engaged in providing business exhibition service and it was noticed that they had not discharged the service tax on the consideration received. Show cause notice was issued demanding service tax of Rs. 99,659/- along with interest and also for imposing penalti

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t from 10.9.2004. They were under the confusion whether the exhibition conducted by them would fall under event management or business exhibition service. From October 2004 to December 2004, they had conducted two exhibitions at Madurai and Coimbatore. Service tax was not collected separately for the business exhibition service since the confusion existed and not paid to the Government. When the Preventive Unit visited the premises, as per the instructions, the appellants have paid the service tax. However, the quantification of service tax as per the show cause notice is erroneous and they are liable to pay service tax only to the tune of Rs. 76,078/- only after adjusting CENVAT credit of Rs. 14,405/-. It is also requested to waive the pen

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e introduced, with effect from 10.9.2004. They did not discharge the service tax for the reason of confusion as to the classification of service. On being instructed by the department in January 2005, they had remitted the service tax. It is also brought out that the appellants have not collected service tax separately and therefore the amount received should be considered as cum-tax value. The request of the appellant is reasonable and tenable. We therefore hold that the adjudicating authority shall requantify the service tax after giving the cum-tax benefit as well as the CENVAT credit benefit to the appellant. We are of the considered opinion that it is a fit case for invoking Section 80 of the Finance Act to set aside the penalties impo

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M/s. Siva Engineering Company Versus Commissioner of GST & Central Excise Coimbatore
Service Tax
2019 (2) TMI 87 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 20-11-2018
Appeal No. ST/424/2012 – Final Order No. 43023/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri V.S. Manoj, Advocate for the Appellant
Ms. T. Usha Devi, DC (AR) for the Respondent
ORDER
Per Bench
The appellant is engaged in execution of works contract. They were engaged by Tamil Nadu Police Housing Corporation Ltd. (TNPHCL) which is a Government of Tamil Nadu company wherein 100% of the shares are held by Tamil Nadu Government for construction of police quarters. A show cause notice was issued to them proposing to demand service tax under the category of 'Construction of Residential Complex Service' for the period from February 2006 to February 2008. After due process of law, the original authority confirmed the demand,

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TR 815. That this Tribunal in the case of Commissioner of Central Excise Vs. Lanco Tanjore Power Co. Ltd. vide Final Order No. 40792 & 40793/2018 dated 16.3.2018 held that when construction activity is undertaken for personal use, the same is excluded from the definition of residential complex contained in Section 65(91a) of Finance Act, 1994. The appellants were engaged by TNPHCL to construct quarters for police personnel. The contract was awarded vide GO No. 576 dated 8.7.2005 issued by the Government of Tamil Nadu. Since the quarters were constructed for the use of police personnel, the same is outside the purview of definition of construction of residential complex, as it is covered by the Explanation to the said definition. The ownership of the houses constructed vests with the Government of Tamil Nadu who allots houses to police personnel. There is no profit motive involved in these transactions and there is no renting or letting of these quarters for commercial purposes. The lan

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idential complex is reproduced as under:-
As per section 65[(30a) of the Finance Act, 1994, „construction of complex‟ means :-
(a) construction of a new residential complex or a part thereof; or
(b) completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or
(c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex;]
As per Section 65(91a) of the Finance Act, 1994 „residential complex‟ means any complex comprising of:-
(i) a building or buildings, having more than twelve residential units;
(ii) a common area; and
(iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent

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ates (supra), wherein the Tribunal has observed as under:-
“7.1 In this case there is no dispute and it clearly emerges that the residential complex was built for M/s. ITC Ltd. and appellant was the main contractor. Appellant had appointed sub-contractors all of whom have paid the tax as required under the law. The question that arises is whether the appellant is liable to pay service tax in respect of the complex built for ITC. From the definition it is quite clear that if the complex is constructed by a person directly engaging any other person for design or planning or layout and such complex is intended for personal use as per the definition, service tax is not attracted. Personal use has been defined as permitting the complex for use as residence by another person on rent or without consideration. In this case what emerges is that ITC intended to provide the accommodation built to their own employees. Therefore it is covered by the definition of 'personal use' in the explanation.

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ract with GOI, engages a sub-contractor for carrying out the whole or part of the construction, then the sub- contractor would be liable to pay Service Tax as in that case, NBCC would be the service receiver and the construction would not be for their personal use.
It can be seen that if the land owner enters into a contract with a promoter/builder/developer who himself provided service of design, planning and construction and if the property is used for personal use then such activity would not be subject to service tax. It is quite clear that C.B.E.&C. also has clarified that in cases like this, service tax need not be paid by the builder/developer who has constructed the complex. If the builder/developer constructs the complex himself, there would be no liability of service tax at all. Further in this case it was different totally, the appellant, has engaged sub-contractors and therefore rightly all the sub-contractors have paid the service tax. In such a situation in our opinion,

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y or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person.
Explanation. For the removal of doubts, it is hereby declared that for the purposes of this clause,
(a) 'personal use' includes permitting the complex for use as residence by another person on rent or without consideration;
(b) 'residential unit' means a single house or a single apartment intended for use as a place of residence;
The above definition specifically excludes construction undertaken for personal use and such personal use includes permitting the complex for use as residence by another person. We find that the above exclusion clause covers the construction activity undertaken by

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M/s. Maltanb Construction Engineers Pvt. Ltd. Versus Commissioner of GST & Central Excise Coimbatore
Service Tax
2019 (2) TMI 88 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 20-11-2018
ST/ROM/40363 & 40364/2018 in ST/24 and 139/2011 – Misc. Order Nos. 40787 & 40788/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri G. Derrick Sam, Advocate for the Appellant
Shri K. Veerabhadra Reddy, Addl. Commr. (AR) for the Respondent
ORDER
Per Ms. Sulekha Beevi,
The above ROM applications have been filed by the appellant seeking to rectify the error alleged to be apparent inn Final Order No. 43445 & 43446/2017 dated 20.12.2017.
2. The ld. counsel Shri G. D

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rgued that though the service tax in respect of cleaning services rendered by the appellant to education institution was set aside, the cleaning services in respect of certain hospitals which are charitable institutions under the Income Tax Act have been upheld by the Tribunal for the normal period, which requires interference in these ROM applications.
3. The ld. AR Shri K. Veerabhadra Reddy opposed the applications.
4. Heard both sides.
5. The ld. counsel has adverted to our attention to para 6.1 of the impugned order and argued that the Tribunal has erroneously concluded that when fees are collected for treatment, they would become commercial building. It is pointed out by him that there are several decision which hold that mere charg

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me within the ambit of non-commercial entity. However, this depends upon facts of each case and the Tribunal after examining the facts of the case has made such observation and directed for re-examination of these facts on this issue.
6. From the discussions made above, we do not find any error apparent on the face of record that requires interference. An error apparent on the face of record should be so patent and also does not require any long drawn process of argument. In the present case, it is the conclusion or finding made by the Tribunal and is not an error apparent on the face of record. We do not find any ground to interfere in the impugned order. ROM dismissed.
(Operative portion of the order was pronounced in open Court)
Ca

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M/s. MUTHOOS ENTERPRISES Versus COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI
Central Excise
2019 (2) TMI 254 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 20-11-2018
E/42093/2018 – FINAL ORDER NO. 42920/2018
Central Excise
Smt. Sulekha Beevi C.S, Judicial Member
For the Appellant: Shri S. Jayanth, Cons.
For the Respondent: Shri L. Nandakumar, AC (AR)
ORDER
The brief facts are that the appellants are engaged in the manufacture of Bitumen Emulsion and were availing the facility of SSI exemption as per Notification No.8/2003-CE., dated 01.03.2003 till 2010-11. They got registered with Central Excise department from 18.01.2012. On verification of invoices issued by the appellants for the financial year 2011-12, it was noticed that their aggregate value of clearances had reached Rs. 150 lakhs on 12.09.2011 and that they are not eligible for SSI exemption for the financial year 2011-12. They had cleared excisable goods valued at Rs. 68,09,255/- without payin

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matter. He submitted that the main raw material used for the manufacture is Bitumen procured from the oil industries namely, IOCL, BPCL and HPCL. The appellants were availing SSI exemption till 2010-11 as their clearances was below Rs. 150 lakhs. However, it was omitted to notice by oversight that the clearances had exceeded Rs. 150 lakhs on 31.10.2011. It was detected by the appellants themselves and have issued a letter to the department dated 18.01.2013 explaining their clearances have exceeded the prescribed limit and, therefore, they have got registered for payment of Central Excise duty. In such letter, the appellants had given the details of clearances as well as the credit eligible on inputs. The details of 50 invoices as to the eligibility of input for adjustment to the duty liability for the disputed period of 2011-12 was clearly stated in the detailed letter. In the letter dated 18.01.2013, issued to the jurisdictional Assistant Commissioner, the appellants had given tabula

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ome out of the SSI exemption. The appellants believed that the audit party was satisfied that there is no duty liability for the period 2011-12.
3. To the surprise of the appellants', a show-cause notice dated 22.08.2016 was issued invoking extended period, alleging suppression of facts and demand of duty of Rs. 9,81,894/-. The appellants contested the demand and submitted the invoices on which credit was available. They had submitted 36 invoices on which the credit of Rs. 3,73,607/- was worked out by the adjudicating authority. Due to the Wardha Cyclone in 2016, the appellants had lost some of the invoices and could not produce the entire invoices. Though, the appellants had pleaded that the invoices were produced before the audit party and that audit had not raised any objection, it was not considered by the original authority. At the time of hearing the appeal before the Commissioner (Appeals), the appellants had put forward these contentions and also contested the disallowance

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de letter dated 18.01.2013 giving all details with regard to duty liability for the clearances made in 2011-12. The appellants themselves have furnished such details. The demand then made after more than two years alleging suppression of facts cannot sustain. Further, that the audit party had visited the premises and verified all documents in 2013 and had not raised any objection. He, therefore, pleaded that the extended period invoked is incorrect and not sustainable.
5. The learned Authorised Representative Shri L. Nandakumar supported the findings in the impugned order. Admittedly, the appellants exceeded the SSI limit during the period 2011-12. They have taken registration only on 18.01.2012 and have started paying the duty only from such date. The appellants were able to produce the entire invoices to support their claim of Cenvat credit. The authorities below have given assessments of credit of all the invoices produced by the appellants. Therefore, the demand is legal and prope

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18.01.2012. Since then, they have been discharging the excise duty after availing Cenvat Credit. The department had sent an audit party as per letter of the audit party, dated 10.06.2013, the appellants have furnished all the details with regard to the original sales and purchase invoices for the year 2011-12. The appellants have produced all the documents before the audit party. It is seen that the audit party had pointed out only the ineligibility of credit on Steel Roofing to an amount of Rs. 23,084/-. The appellants had rectified the objection by paying up the wrongly availed credit along with interest. The audit party also after verification of amounts had not raised any objection with regard to the adjustment of Cenvat Credit towards the duty liability for the period 2011-12. This leads to the strong inference that audit party did not find any short-payment of duty. Interestingly, the show-cause notice is issued after more than two years invoking the extended period alleging sup

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ANDHRA ORGANICS LIMITED Versus CCT, VISAKHAPATNAM GST
Central Excise
2019 (2) TMI 434 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 20-11-2018
APPLICATIONs No. E/ROM/30722-30723/2018 In APPEAL Nos. E/30445-30446/2018 – M/30580 – 30581/2018
Central Excise
Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL)
Shri M. Rajendran, Advocate for the Appellant.
Shri C. Mallikarjuna Reddy, Superintendent /AR for the Respondent.
ORDER
Per: Mr. P.V. Subba Rao
1. These applications for rectification of mistake were filed by the applicant against the Final Order No. A/30750-30751/2018, dated 24.07.2018 on the following grounds:
a) At the time of hearing of the appeals, the Counsel submitted that the Order-in-Appeal for t

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d on merits. I have not found any evidence to support either argument. Be that as it may, the earlier order of the Commissioner (Appeals) is not a binding precedent on the CESTAT and therefore an independent decision can be taken in this regard”.
On the second question of binding precedence of the CESTAT's decision as claimed by the applicant, the final order specifically relied on the ratio of the judgments of Hon'ble High Court of Bombay in the case of Manikgarh Cement [2010(20) STR 456 (Bom.)] and the judgment of Hon'ble Apex Court in the case of Maruti Suzuki Limited [2009(240) ELT 641 (SC)], while deciding the matter.
3. I, therefore, find that there is no error apparent on record calling for rectification of mistake.
4. The applic

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M/s PYRAMID INFRATECH PRIVATE LIMITED Versus UNION OF INDIA AND ORS.
GST
2019 (3) TMI 149 – DELHI HIGH COURT – TMI
DELHI HIGH COURT – HC
Dated:- 20-11-2018
w. p. (C) no. 10999 of 2018 C. M. Appl. Nos. 42815, 42816 And 48246 of 2018
GST
MR  SANJIV KHANNA AND MR ANUP JAIRAM BHAMBHANI, JJ.
For The Petitioner : Mr.Abhishek A. Rastogi and Ms.Rashmi Deshpande, Advocates
For The Applicant : Mr.Atul Kumar and Mr.Harshit Sanwal, Advocates
For The Respondents : Mr.Vinod Diwakar, CGSC Mr.Amit Bansal, Sr. Standing Counsel And Ms.Gargi Sethi, Advocate for respondent
ORDER
C.M. APPL. No. 42816/2018 (Exemption)
Exemption is allowed subject to just exceptions. Application disposed of.
W.P.(C) No. 10999/2018
Counsel for th

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, 2018. Rs. 7.16 crores was paid in cash in August, 2017 and Rs. 5.39 crores was paid through input tax credit. No tax has been paid thereafter. It is stated that the last instalment was accounted for making adjustment against input tax credit. In other words, total amount paid in cash or input tax credit was Rs. 12.56 crores.
3. Counsel for respondents state that the total amount collected from VAT/buyers under the GST regime is Rs. 18.37 crores.
4. Our attention has also been drawn to the letter dated 05.10.2018 written by the petitioner wherein it is recorded that the petitioner had offered to pay an amount of Rs. 5,11,60,450/- to resolve the issue amicably with the customers.
5. Learned counsel for the petitioner submits that this fi

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Back office support services for overseas clients, like payroll processing, are subject to GST, including post-transaction services.
Notes
GST
Levy of GST on providing back office support ser

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Levy of GST on providing back office support services, payroll processing, to main records of employees and after finalization of purchase / sale between the client and its customers.
Section 13 – Place of supply of services where location of supplier or location of recipient is outside India. INTEGRATED GOODS AND SERVICES TAX ACT, 2017
GST
Act-Rules
Dated:- 19-11-2018
Section 2 – Definitions.
Section 13 – Place of supply of services where location of supplier or location of recipient is outside India.
INTEGRATED GOODS AND SERVICES TAX ACT, 2017
2018 (11) TMI 959 – AUTHORITY FOR ADVANCE RULING
Levy of GST – palace of supply of services – providing back office services to overseas clients – scope of the definition and ter

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s of employees to overseas companies i.e. clients and after finalization of purchase / sale between the client and its customers.
Applicant is clearly covered and falls within in the definition of an intermediary as defined under the IGST Act. – Section 13(8) of the IGST is applicable in this case to determine place of supply – In the instant case and as per the applicant's own admission, the applicant is supplier of services. – The place of supply in case of services provided by the applicant being intermediary would be the location of supplier of services.
To qualify a transaction of supply of services as export of services that transaction has to satisfy all five ingredients of the definition of export of services simultaneously. In th

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Prototyping Services in India Subject to IGST Despite Zero-Rated Supply Status Due to Local Provision.
Case-Laws
GST
Levy of IGST – Zero-rated supply – the said services of testing of the pro

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Applicant Liable for IGST on Lottery Tickets via Reverse Charge Mechanism u/s 5(3) of IGST Act 2017.
Case-Laws
GST
Levy of IGST u/s 5 (3) of IGST act, 2017 – supply of lottery tickets by the

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GST Applies to DFIA License Transactions; Distinct from Duty Credit Scrips and Not Classified as Such.
Case-Laws
GST
Levy of GST – Sale and/or Purchase of DFIA licenses – DFIA is distinguisha

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Penal Interest on EMI Defaults is Taxable Supply Under GST; Subject to GST as Supply of Services.
Case-Laws
GST
Levy of GST – collected penal interest for default in repayment of EMI – The ac

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GST Applies to Education and Training Programs by Cooperative Centers; No Exemption for These Services Under GST Rules.
Case-Laws
GST
Levy of GST – education and training programmes conducted

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DISCOUNTS Credit Notes
Query (Issue) Started By: – BALAKRRISHNA PATNAIK Dated:- 19-11-2018 Last Reply Date:- 21-11-2018 Goods and Services Tax – GST
Got 6 Replies
GST
My co. operating Super distributor set up, where in My Co. Invoices to the Super distributors also we some time ask to supply to selected supply in discounted rate. The price difference being claimed to us by super distributors.
My question is while settling of the price difference claim as a Mfg co. can we take GST on such price difference ?
please respond.
Thanks
Balakrrishna Patnaik
Reply By Ganeshan Kalyani:
The Reply:
Yes, you can take GST benefit on the discount amount given by you. The condition is the buyer has to reverse the input tax credit claimed

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w the GST impact on this transaction.
Thanks & Best regards,
Balakrishna Patnaik
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
If there is an agreement between the parties regarding to discount then such discount may be given. No time limit is in law for this. Earlier is advisable.
Reply By Ganeshan Kalyani:
The Reply:
Restriction on taking input tax credit on purchase invoice /debit note is given in section 16. However, the word credit note is not mentioned in it. Hence, I am also of the view that discount can be given in the timlines as mentioned in your query.
Reply By Ganeshan Kalyani:
The Reply:
In view of section 34 which states as under :
(2) Any registered person who issues 2[one or more credit notes for supplies made in a

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Afflatus International Versus Union of India and others
GST
2018 (11) TMI 1129 – PUNJAB AND HARYANA HIGH COURT – 2018 (19) G. S. T. L. 577 (P & H)
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 19-11-2018
CWP-28035-2018
GST
MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL
For The Petitioner : Mr. Rajesh Mahna, Advocate, Mr. Umesh Sarwal, Advocate and Mr. Ramanand Roy, Advocate
ORDER
AJAY KUMAR MITTAL, J.
1. In this writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus directing the respondents to release its refund along with interest.
2. The petitioner is engaged in the business of export of garments and is having GSTN No.06AAGFA0878E1ZO

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dent No.2 for re-credit of Input Tax Credit in electronic credit ledger, but to no effect. Thereafter, the reminders 31.8.2018, 28.8.2018 and 14.9.2018 (Annexures P-15 to P-18 respectively) were sent for the similar relief, but no response has been received till date. Hence, the present writ petition.
3. Learned counsel for the petitioner submitted that for the relief claimed in the writ petition, the petitioner has moved a representation dated 30.8.2018 (Annexure P-14) followed by the reminders (Annexures P-15 to P-18, respectively) to the respondents, but no action has so far been taken thereon.
4. After hearing learned counsel for the petitioner, perusing the present petition and without expressing any opinion on the merits of the case

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LG Electronics India Pvt. Ltd. Versus State of U.P. And 03 Others
GST
2018 (11) TMI 1130 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 19-11-2018
Writ Tax No. – 620 of 2018
GST
Pankaj Mithal  And Ashok Kumar JJ.
For the Petitioner : Atul Gupta,Utkarsh Malviya
For the Respondent : C.S.C.,Gyan Prakash
ORDER
Heard Sri Atul Gupta, learned counsel for the petitioner and Sri C.B. Tripathi, learned counsel appearing for the respondents.
The goods of the petitioner in movement from Haryana to Greater NOIDA were seized on 26.3.2018 on the ground that they were not accompanied with the E-way bill.
The submission of Sri Gupta, learned counsel for the petitioner is that during the period from 1.2.2018 t

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SREE GANESH GEARS PVT. LTD. Versus ASSISTANT STATE TAX OFFICER, SQUAD NO. IV, STATE GST DEPARTMENT, PALAKKAD, KERALA, STATE TAX OFFICER, KERALA, COMMISSIONER, STATE TAX DEPARTMENT, GOVT. OF KERALA, TRIVANDRUM, STATE OF KERALA, REP. BY SECRETARY TO GOVT., GOODS AND SERVICE TAX AUTHORITY, TRIVANDRUM AND M/s KERALA AGRO MACHINERY CORPORATION LTD., ERNAKULAM
GST
2018 (11) TMI 1191 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 19-11-2018
WP (C). No. 37609 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADV. SRI.C.K.SREEJITH
For The Respondents : SMT. M.M.JASMINE, GP
JUDGMENT
The petitioner, a consignor, had its goods detained. With the proceedings under Section 129 of GST Act pending before the S

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Commissioner of GST and Central Excise J&K Versus Cadila Pharmaceuticals Ltd.
Central Excise
2018 (12) TMI 101 – JAMMU AND KASHMIR HIGH COURT – TMI
JAMMU AND KASHMIR HIGH COURT – HC
Dated:- 19-11-2018
MCC No. 267/2018 c/w CEA No. 21/2018, IA No. 01/2018
Central Excise
The Chief Justice And Mr. Justice Rajesh Bindal, Judge
For the Petitioner : Mr. Jagpaul Singh, Advocate.
For the Respondent : None
ORDER
MCC NO. 267/2018
For the reasons stated in the application which is supported by an affidavit, the same is allowed. Accordingly, providing of the certified copy of the impugned order is dispensed with.
CEA No. 21/2018
It is submitted that the issue raised in the present case is subject matter of consideration in L

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M/s. Hindustan Petroleum Corporation Ltd. Versus Commissioner of CGST, Kolkata (North)
Central Excise
2018 (12) TMI 163 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 19-11-2018
Appeal No. E/78022/2018 – FO/76969/2018
Central Excise
Shri P.K. Choudhary, Member (Judicial)
Shri Madhusudan Lila, Manager for the Appellant (s)
Shri A.K. Biswas, Suptd.(AR) the Respondent (s)
ORDER
Per Shri P.K. Choudhary
This appeal is listed for admission today. After hearing both sides and despite the amount involved in this case being less than Rs. 2.00 lakhs, the appellant intends to contest the issue on merit, which is admitted and since the issue lies in a narrow compass, with the consent of both sides the same is taken up for disposal.
2. The only dispute in this appeal is regarding the demand of Rs. 47,544/-, demanded on account of interest in terms of Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AA of Central Excise Act, 1944.
4. Ld. Representative app

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the Board's Circular dated 03.09.2009 observed that interest is payable even when credit has not been utilized. I find that the Larger Bench of the Tribunal in the case of J.K. Tyre & Industries Ltd. v. Asst. Commr. of C.Ex., Mysore [2016 (340) E.L.T. 393 (Tri.-LB)] held that wrong availment of Cenvat Credit, interest is not payable, if reversed before utilization. The Tribunal in the case of Garden Silk Mills Ltd. v. Commissioners of Central Excise, Customs & Service Tax- Surat-I [2015 SCC Online CESTAT 2361] on the identical issue held in favour of the assessee. The relevant portion of the said decision is reproduced below:-
“4. The learned Authorised Representative for the Revenue strongly refutes the arguments of the learned Counsel and submits that the appellants had reversed the Credit only after the audit pointed out the same and after persuasion by the officers. He also submits that on the issue of interest, there are other decisions by the Hon'ble High Court of Madras and als

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t of the said Cenvat Credit by any other unit. It is also observed that the appellants had reversed the Cenvat Credit on being pointed out by the audit. The appellants have not seriously contested the necessity or correctness of reversal of the Cenvat Credit before the lower authorities. However, they are seriously contesting the levy of interest and penalty. On the issue of levy of interest, there are conflicting decisions by various Hon'ble High Courts and different Benches of the Hon'ble Tribunal. It is seen that the Hon'ble High Court of Gujarat has observed in Para 7 in the case of Dynaflex Pvt. Ltd. (supra), as under :
“7. In this regard it may be germane to refer to the decision of the Apex Court in the case of Commissioner of C. Ex., Mumbai-I v. Bombay Dyeing & Mfg. Co. Ltd., 2007 (215) E.L.T. 3 (S.C.), wherein it has held been that when an entry has been reversed before utilization the same amounts to not taking credit. Rule 14 of the Rules makes provision for recovery of i

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ill the time of reversal of the same. Therefore, the decision of Hon'ble Jurisdictional High Court, relying upon the decision of the Hon'ble Supreme Court on the very same issue is applicable in this case. We, therefore, hold that no interest is payable in the present case. On the issue of penalty under Section 11AC, it is seen that the same is not leviable as there were no intention to evade duty, as is evident from the facts of the case.
7. In the light of the above analysis, we set aside the demand of interest under the provisions of Rule 14 of Cenvat Credit Rules 2004, and penalty under Section 11AC of Central Excise Act 1944. Order-in-Original is upheld with the above modifications. The appeal is allowed on these terms.”
6. Hence, the demand of interest on unutilised Cenvat Credit, cannot be sustained.
7. In view of the above discussion, and as per the submission made by the ld. Representative of the appellant company, the impugned order is modified to the extent, the demand

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KM Trading & Agencies Pvt. Ltd. Versus C.C.E. & CGST, Jaipur
Service Tax
2019 (1) TMI 320 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 19-11-2018
Service Tax Appeal No. ST/51602/2018 [SM] – A/53340/2018-SM[BR]
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Chirag Jain, CA
Present for the Respondent: Mr. P.R. Gupta, DR
ORDER
PER: RACHNA GUPTA
Present is an Appeal directed against the Order-in-Appeal No. 27 dated 01.02.2018. The appellants are engaged in providing renting of immovable property services. Department during an audit, on scrutiny of ST-3 returns/ challan observed that the appellant had made delayed payment of service tax for the period w.e.f. April 2008 to September 2012. However, no interest was paid on the said delayed payment. Accordingly, a Show Cause Notice No. 10060 dated 01.08.2014 was served upon the appellants proposing the recovery for Rs. 2,87,881/- as an interest to be paid on delayed paymen

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Specifically due to the decision of Hon'ble Delhi High Court in the case of Home Solutions Retails India Ltd. & others Vs. Union of India 2009(14) STR 433 vide which the levy of service tax on renting of renting of immovable property was struck down. Observing that renting in itself is not a service as it does not involve any value addition. It is submitted that due to this decision the tenants stopped paying service tax amount and therefore the liability could not be discharged for the said period by the appellant. It is further submitted that entire above facts were very well to the notice of the Department. Still the Show Cause Notice as has been issued on 19.08.2014 is very much beyond the one year period as is prescribed for the issuance thereof. It is submitted that in view of the reason mentioned above there was no intention of the appellant to evade the duty. Department was not entitled to invoke the extended period of limitation. The Show Cause notice is alleged by barred by t

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ails to deposit service tax or any part thereof within the period prescribed.
5. After hearing both the parties and perusing the entire record, I am of the opinion as follows:-
In the impugned case, it is the demand of interest on the delayed payment of service tax in accordance of Section 75 was initially proposed and subsequently confirmed. The admitted facts apparent from the record including the Orders of both the Adjudicating Authorities below are:
(i) That out of the entire disputed period as mentioned in the Show Cause Notice, the payment of service tax for the period of April 2008 to March 2009 and for April 2012 to September 2012 has been made in time.
(ii) With respect to the remaining period of April, 2009 to March, 2012 the same could not be deposited due to not being received from tenants in view of Delhi High Court decision as above. However, the full tax was deposited by the appellant before the issuance of the Show Cause Notice.
I observed that there has been an am

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or the said amendment but since the amendment is beneficial in nature, retrospect effect can be given to the said amendment. Therefore, no question of imposition of penalty at all arises.
6. The appellant has otherwise challenged the Show Cause Notice on the ground of limitation more than on the ground of merits. In view of the above discussion and the facts on record as far as the period and date of Show Cause Notice is concerned, Show Cause Notice is apparently beyond the normal period of one year. There is the apparent acknowledgment on the part of the Adjudicating Authority about the decision of Delhi High Court as has been impressed upon by the appellant. In the given circumstances, the non-payment was actually due to the said prevalent confusion. There is nothing on record which may be considered as an evidence qua positive act of the appellant of having an intention to evade the duty for the said period. Once there is no such intention apparent, Department was not entitled to i

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M/s K.L. Concast P. Ltd. Versus Commissioner, Central GST, Ghaziabad
Central Excise
2019 (1) TMI 701 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 19-11-2018
APPEAL No. E/71246/2018-EX[SM] – A/72643/2018-SM[BR]
Central Excise
Mrs. Archana Wadhwa, Member (Judicial)
Shri Rajesh Chhibber (Advocate) for Appellant
Shri Pawan Kumar Singh (Superintendent) AR for Respondent
ORDER
Per: Archana Wadhwa
After hearing both the side duly represented by Shri Rajesh Chhibber, Advocate for the appellant and Shri Pawan Kumar Singh, Superintendent, AR for the Revenue. I find that the appellant was engaged in the manufacture of MS Shapes and Sections. As per the audit conducted in their factory it was found that the appel

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the assessee by observing that they have paid the duty along with interest even before the issuance of the show cause notice.
3. The said order was appealed against by the Revenue before Commissioner (Appeals) for the purpose of imposition of penalty. The Appellate Authority observed that inasmuch as the appellant cleared the said goods without reflecting the same in their ER-1 return and without paying any duty on the same, they are guilty of mala fide suppression. Accordingly, by taking into account the provisions of Section 11AC (c) of the Central Excise Act he imposed penalty of Rs. 1,33,910/-, being 50% of the total demand of duty.
The said penalty is being challenged before Tribunal.
4. It is appellant's contention that they were n

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former was by raising an invoice in which case, it cannot be said that there was any mala fide on the part of the assessee to suppress the fact of clearance of the transformer. Non-payment duty by itself cannot lead to ipso facto presence of any mala fide. Tribunal in the case of Commissioner of Central Excise & Customs, Aurangabad vs. Shrigonda Sahakari Sakhar Karkhana Ltd. reported at 2015 (327) E.L.T. 429 (Tri-Mumbai) in similar circumstances, set aside the penalty imposed upon the assessee.
6. In view of the foregoing discussions I find no justifiable reason to impose penalty upon the appellant. Accordingly, the impugned order of Commissioner (Appeals) is set aside and appeal is allowed by restoring the order of the Original Adjudicati

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VST Industries Ltd Versus CCT, Secunderabad – GST
Central Excise
2019 (2) TMI 403 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 19-11-2018
Appeal No. E/30609/2018 – A/31566/2018
Central Excise
Mr. P. Venkata Subba Rao, Member (Technical)
Shri S. Thirumalai, Advocate for the Appellant.
Shri N. Bhanu Kiran, Asst. Commissioner/AR for the Respondent.
ORDER
Per: P.V. Subba Rao.
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-SCAP2- 0247-17-18 dated 09.02.2018.
2. The appellant herein is a manufacturer of cigarettes and the dispute is regarding the CENVAT credit availed on BOPP film and paper which are used for packing the cigarettes. Some part of the BOPP film and the paper become waste

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vision of exempted services or input services as is used in or in relation to the manufacture of exempted goods and their clearance up to the place of removal. Explanation (1) has been added to this Rule as follows.
“For the purpose of this Rule, exempted goods or final products as defined in clauses 'd' and 'h' of Rule 2 shall include non-excisable goods cleared for consideration from the factory.”
4. The department's contention is that in view of the explanation (1) to Rule 6 of CENVAT Credit Rules, 2004, the BOPP film and waste paper scrap, both of which are admittedly waste materials, should be treated as non-excisable goods cleared for consideration and proportionate amount of CENVAT credit has to be reversed.
5. Learned counsel wo

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as been held by the Hon'ble Tribunal in the aforesaid case laws.
6. Learned departmental representative reiterates the findings of the lower authorities and seeks to rely on the CBEC Circular No.1027/15/2016- CX dated 25/04/2016 in which it was clarified in Para 4.2 as follows.
“Consequently, Bagasse, Dross and Skimmings of non-ferrous metals or any such by-product or waste, which are non-excisable goods and are cleared for a consideration from the factory need to be treated like exempted goods for the purpose of reversal of credit of input and input services, in terms of rule 6 of the CENVAT Credit Rules, 2004.”
7. In view of the above, learned departmental representative would argue that the legal position with respect to reversal of

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Supply and Installation of Electric Overhead Travelling Crane – a works contract or Supply of goods?
Query (Issue) Started By: – Shyam Agarwal Dated:- 18-11-2018 Last Reply Date:- 6-1-2019 Goods and Services Tax – GST
Got 12 Replies
GST
Query is regarding Combined contract for Supply and Installation of Electric Overhead Travelling Crane. Whether the same should be considered as a works contract under GST or supply of Goods that is Crane.
As per recent Advance Rulling of Maharashtra – In case of M/s Mukund Ltd-GST AAR Maharashtra = 2018 (10) TMI 1243 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA , it is held that EOT Grab Cranes r liable for GST@5% as these are used for waste to energy product as a Renewable Energy. In this it was also discussed that Electric Overhead Travelling Grab Crane attached to the fixed support classifiable under Tariff heading 84261100.Is it mean that AAR held EOT Cranes as a goods? But after Installation the same should be considered as a works co

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e Reply:
In my view, it is a works contract.
Reply By Shyam Agarwal:
The Reply:
Will your reply differ if gantry beam over which EOT Cranes run is already affixed by client himself with his structure (actually building design itself require some specification if there will be Installation of Electronic Overhead Travelling Crane) and we supply the EOT Crane and install the same on Gantry Beams which is already affixed by client and we do only supply, install and Commissioning the crane.
Reply By Vamsi Krishna:
The Reply:
Under GST laws, the definition of “Works Contract” has been restricted to any work undertaken for an “Immovable Property” unlike the existing VAT and Service Tax provisions where works contracts for movable properties were also considered.
The Works Contracts has been defined in Section 2(119) of the CGST Act, 2017 as “works contract” means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modificatio

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y to install EOT Crane on the Gantry Beams.
Reply By Ganeshan Kalyani:
The Reply:
In my view, it is works contract service. The definition of works contract service is clear.
Reply By Ganeshan Kalyani:
The Reply:
In re. 'Precision Automation And Robotics India Limited' – 2018 (9) TMI 1106 – AAR, Maharashtra
Reply By Shyam Agarwal:
The Reply:
Thanks Sir for your reply please also clear 2nd issue where in Gantry Beams which is attached to Building is in the scope of customer and our scope is to supply the EOT Crane and install the same on the pre fabricated Gantry beams where in the wheels of the EOT Cranes are installed so that they can run and Complete Commissioning of the same then still it remains works contract..
Reply By Ganeshan Kalyani:
The Reply:
I will compare this with lift. In case of lift the final assembling of the lift parts happens at customer sight. This falls under works contract service. Similar would be the case of yours.
Reply By kollengode venkitaraman:
T

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