Author: admin_gst

In-Principle approval given for Law Amendments during 31stMeeting of the GST Council
GST
Dated:- 22-12-2018

The GST Council in its 31st meeting held today at New Delhi gave in principle approval to the following amendments in the GST Acts:
* Creation of a Centralised Appellate Authority for Advance Ruling (AAAR) to deal withcases of conflicting decisions by two or more State Appellate Advance Ruling Authorities on the same issue.
* Amendment of section 50 of the CGST Act to pro

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Mineral Sand Excavation and Transport Classified as 'Transport of Goods' for Taxation Under Goods Transport Agency Rules.
Case-Laws
GST
The composite activity of excavation and moveing / shif

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Printing Bibles on Order Classified as Service Supply Under SAC 9989; Ineligible for Export Benefits in India.
Case-Laws
GST
Classification of supply – The Applicant’s activity of printing

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Private Railway Siding for Raghunathpur TPS Classified as Composite Works Contract, Taxed at 12% Under Agreement with DVC.
Case-Laws
GST
Construction of a private railway siding for carriage

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WHAT MAY TRIGGER SUSPICION IN GST
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 22-12-2018

We all know that GST is a tax law which is largely an e-tax with every-thing from registration to appeals being filed online and every data is online subject to sharing among tax officials as well as business intelligence by the tax authorities. Tax officials could probe the following transactions or may have reason to initiate enquiries.
Following are few illustrative areas which may trigger suspicious business / trade practices in GST regime and raise alert at the revenue authority's end:
* Substantial carry forward of input tax credit on closing stock as on 30.06.2017 (GST applicable w.e.f. 1.7.2017) .
Major c

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ment of goods.
Linking of major purchase bills / sales bills with e-way bills may give leads on fictitious billing.
Any substantially high input tax credit claims should raise doubts. Similarly, input tax credit foregone may also be probed.
Reconciliation of audited financial statements with returns furnished under GST [Rule 80(3)].
Scrutiny of audit reports if the two auditors (financial / GST) are different.
Examination of major changes in business practices / accounting policies post 1.7.2017.
Scrutiny of stock transfers, free of cost supplies and dealings with related parties.
Wrong carry forward of transitional credits (TRAN-1 return).
Input tax credit lapsed due to no duty paying evidence (may be due to cash transacti

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The Commissioner of Central Tax, GST Delhi (West) Versus Rajesh Jindal
GST
2018 (12) TMI 1350 – PATIALA HOUSE COURT – TMI
PATIALA HOUSE COURT – DSC
Dated:- 22-12-2018
Application No. 3040/18 Case No. 1594/18
GST
SHRI SATISH KUMAR ARORA
1. By this order, I shall decide the application I petition preferred by the applicant / petitioner Commissioner of Central Tax, GST, Delhi (West) seeking cancellation of bail as granted to the accused/ respondent Rajesh Jindal by the Ld. CMM, PHC. New Delhi vide order dated 01.08.2018.
2. Case of the petitioner as per the petition is that accused/respondent alongwith co-accused Adesh Jain was arrested by the officials of the petitioner on 01.08.2018 and was produced before the Ld. CMM of the very same day. Since the Ld. CMM was not available, the respondent/accused and the co-accused were produced before the Ld. Link Magistrate. On the remand application preferred against them, the Ld. Link MM admitted the accused/ respondent on

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before the Ld. Link MM, it was noted by the Ld. MM vide his order dated 01.08.2018 that the offence stated to be made out against the accused persons falls under the provisions of Sec. 132 (1)(b) of the CGST Act, 2017 and that as per the mandate of the law as provided under clause (4), all the offences under this Act except the offences referred to in sub-sec (5) are non-cognizable and bailable. The offence u/s 132(1)(b) of the Act is the one which falls within the domain of sub-section (5) of Sec. 132 of the CGST Act if the amount of tax evaded or the amount of input tax credit wrongly availed or utilized or the amount of refund wrongly taken exceeds Rs. 5 crore, thus, making the offence as cognizable and non-bailable. Ld. MM then noted that perusal of the proceedings of GST (West) at that stage revealed that the allegations of tax evasion against accused Rajesh Jindal was for a sum of Rs. 4,58,19,883/- which is less than Rs. 5 Crores and as such, the offence u/s 132(1)(b) being punis

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endered voluntarily u/s 70 of the CGST Act wherein he stated that they were sharing the profits equally. It is averred that the accused/respondent in his statement again recorded on 03.08.2018 u/s 70 of the CGST Act had further admitted that he and co-accused Adesh Jain were sharing profits and expenses and were selling the invoices to various persons. It is averred that as such, even on the date when the accused/ respondent was produced before the Ld. Link MM, the amount of tax evasion was of more than Rs. 27 crores and as such the offence was covered u/s 132(5) of the CGST Act, 2017 making it cognizable and non-bailable. In addition, it has been averred that during further investigation, the amount of GST so fraudulently passed has increased to the tune of Rs. 50 crores and is increasing with each passing Step of the investigation.
6. It is averred that the modus operandi of the accused/respondent is that he floated various bogus firms by using the name of poor persons. less educate

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nd issuing fake invoices. The searches carried out at the premises of the accused/ respondent and of the co-accused resulted in seizure of many fake and bogus tax invoices and also of the computers wherein such information was used to be stored.
7. It is averred that as such the order dated 01.08.2018 vide which the Ld. Link MM had made a distinction of the case against the accused/ respondent is patently illegal. It is averred that as such, the applicant I petitioner preferred an application seeking cancellation of bail of the accused/ respondent before the Ld. CMM, PHC which came to be dismissed vide order dated 14.08.2018 which was passed on extraneous considerations. It is averred that thereafter the petitioner/ applicant preferred a petition Crl. M.C. No. 4767 of 2018 which was disposed of by the Hon'ble High Court of Delhi vide its order dated 18.09.2018 giving liberty to the petitioner to approach the Court of Sessions u/s 439(2) Cr.PC. Hence, the present application before thi

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e accused/ respondent in itself was illegal as the offence alleged is non-cognizable and bailable. It is averred that even as per the allegations made in the application, the offence as disclosed is of the nature of offence u/s 132(1)(f) of the CGST Act, 2017 which is a non-cognizable and bailable offence irrespective of the amount of the tax allegedly evaded. It is averred that the law is well settled by the Hon'ble Supreme Court of India in DoIat Ram & ors vs state of Haryana, (1995) 1 SCC 349 = 1994 (11) TMI 424 – SUPREME COURT wherein it was held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. It is averred that in the application I petition, no cogent or overwhelming Circumstance has been shown meriting cancellation of bail. Instead, false and vague averments have been made in the application which are not substantiated by any document or material.
10. It is further averred that the application procee

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the Authority/ department but, except of making him wait, the authority did not record any statement. Same was the situation in respect of summons dated 26.10.2018. Not only that, accused/ respondent was coerced by the applicant's officers to deposit Rs. 40 Lacs towards the tax allegedly avoided. The accused/ respondent was also not informed of the grounds of his arrest which is in violation of the provisions of sec. 41(B) of the cr.pc and of sec. 69(2) of CGST Act, 2017.
12. It is further averred that the remand application dated 01.08.2018 did not give the description and the nature of offence except of stating that the alleged offence is u/s 132(1)(b) of the CGST Act, 2017 which is non-bailable and cognizable and that the tax evasion is more than Rs. 5 crores. It is averred that in the remand application, the facts ought to have been stated so as to make out therefrom that offence u/s 132(1)(b) of the Act is made out. Mere allegation of tax evasion in itself is not sufficient to as

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ndent is threatening witnesses. Even otherwise, the alleged Statements of the witnesses placed with the record of present application are of 17.08.2018 and 21.08.2018, which in any case, is after the order dated 14.08.2018. It is averred that even the perusal of the alleged statements of the witnesses that they have been threatened would reveal that it has been typed in a standard format and that it is a pointer that these are false statements. Thus, prayer was made to not only dismiss the application of the applicant /petitioner but also to prosecute the applicant I petitioner u/s 340 Cr.PC.
13. Sh. Harpreet Singh, Ld. Senior Standing Counsel for the applicant / petitioner and Sh. J. K. Mittal, Id. Counsel for the accused/respondent were heard and the record was carefully perused.
14. In his submissions, Id counsel for the applicant/petitioner while making a reiteration of the facts as asserted in the application, placed reliance upon the judgment of Hon'ble Supreme Court of India i

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SCC 280 = 2001 (3) TMI 1053 – SUPREME COURT OF INDIA.
16. Before taking up the rival submissions, it is necessary to take note of the relevant provisions of the law.
Sec. 132 of the CGST Act, 2017 provides for the punishment for certain offences. It lays down:-
(1) Whoever commits any of the following offences, namely:-
(a) supplies any goods or services or both without issue of any invoice…
(b) issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilization of input tax credit or refund of tax
(c) avails input tax credit using such invoice or bill referred to in clause (b).
(d) collects any amount as tax….
(e) evades tax, fraudulently avails input tax credit or…….
(f) falsifies or substitutes financial records or produces fake accounts or documents or furnishes any false information with an intention to evade payment of tax due unde

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exceed five hundred lakh rupees, with imprisonment for a term which may extend to three years and with fine.
(iii) In the case of any Other offence……
(iv) In cases where he commits or abets the commission of an offence specified in clause (f) or clause (g) or clause (j), he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both.
(2) Where any person convicted of an offence under this section is again convicted….
(3) the imprisonment referred to in clauses (i), (ii) and (iii) of sub-section (1) and sub-section (2) shall….
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under this Act, except the offences referred to in sub-section (5) shall be non-cognizable and bailable.
(5) The offences specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) and punishable under clause (i) of that sub-section shall be cognizable and non-bailable.
Now, comi

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rder dated 01.08.2018 had, therefore, formed the opinion that offence u/s 132(1)(b) Of the CGST Act is attracted to the facts presented before him. Also, the contention of Id. Counsel for the accused/ respondent that the allegations disclosed the offence u/s 132(1)(f) of the CGST Act, again has no merits as the said clause concerns the falsification of the financial records or the statements of account for evading tax. As noted, in the present case, the allegations are of wrongfully availing input tax credit on the basis of invoices without actual supply of goods and it squarely falls within clause (b) of sub-section (1) of sec. 132 of the CGST Act.
The other aspect is of the Ld. Link MM having formed the view that from the material available on record, the allegations of tax evasion against the accused/ respondent was of less than Rs. 5 crores and as such taking out the Offence from the purview of sub-section (5) of Sec. 132 of the Act, thus, making it non-cognizable and bailable. Ad

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o bail. Going further, even if it is to be believed that the amount of alleged tax evasion as on the date of production of the accused/respondent upon his arrest was less than Rs. 5 Crores, still the applicant by its application preferred before the Ld. CMM clearly averred that now the tax evasion is around 8.5 crores, thus, making the offence Cognizable and non-bailable. The Ld. CMM vide order dated 14.08.2018 formed the opinion that mere increase in the amount of tax evasion in itself is no ground to cancel the bail already granted when there was no allegation of either the accused / respondent attempting to tamper with the evidence or influence the witnesses or making an attempt to flee from justice. Admittedly, except of the plea of tax evasion being of about 8.5 crores, the applicant/ petitioner in its application for cancellation of bail preferred before the Ld. CMM did not take any other ground.
In respect of Cancellation of bail, the law is well settled that very cogent and ov

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ion preferred before this Court, the ground additionally taken up by the applicant I petitioner is of the accused/respondent having extended threats to the witnesses who as per the applicant are those persons who were used as dummy proprietors of the bogus firms by the accused I respondent and the co-accused. This is a serious issue as it has the effect of tampering with the evidence and also of influencing the witnesses who may otherwise come up before the applicant/ department against the accused/ respondent. Id. Counsel for the accused/ respondent contended that the statements of the witnesses who have alleged that they are being threatened by the accused / respondent cannot be believed as these statements are doctored statements having been prepared only to Cause undue harassment to the accused/ respondent and to falsely implicate him in the present case. This contention of Id counsel has no basis as this is not the Stage to conduct an inquiry as to the veracity of these statements

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justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and Comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial”. It was further Observed that “While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or Vade the due Course of justice. But, that is not all.

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ely result in weakening the prosecution case and have adverse impact on the society”.
As already noted, not only there are serious allegations against the accused/ respondent of his having made fictitious sales of value of more than Rs. 200 crores and having consequently caused loss to the government of the GST evasion/wrongful availment of input tax credit of the value of more than Rs. 27 Crores, it is also alleged that the accused/respondent had indulged in the act of threatening the witnesses who were otherwise coming forward to give their statement to the department/petitioner as to how the bogus firms were created and how their documents were misused. There are, thus, merits in the application of the applicant/ petitioner seeking cancellation of bail of the accused / respondent. The application is accordingly allowed and the order granting bail to the accused/ respondent is hereby set aside. Accused I respondent is taken into custody and is directed to be produced before the Ld.

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WHAT GST COUNCIL SHOULD DO ?
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 21-12-2018

GST Council is meeting on Saturday, 22nd December, 2018, perhaps for the last time in 2018 and for the first time after recent elections in few states. With the dates for filing GST Annual returns already postponed to March 2019, this meeting is likely to focus on GST rate cuts to bring further rationalisation in rate structure in India. This meeting may also address the woes of several trade concerns regarding taxability of certain goods and services, which are widely consumed across India.
In view of the fact that India goes to general elections for Parliament in less than six months from now (May, 2019) and the recent s

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as surrender of registration
* Number of returns may be reduced
* Payment of tax be allowed on cash basis or on quarterly basis
* TDS / TCS may be made non-applicable
* All types of payment of tax under RCM to be with held
* 'Aggregate turnover' threshold may be increased for both services and goods
* Composition scheme to be expanded
* Rate of interest on delayed payment be reduced for MSMEs.
* Exemption from audit of accounts under GST, if already audited otherwise
* Repetitive billing to be allowed on consolidated basis
* No tax on advance money received
* Export procedures to be simplified further
* Time bound processing of refunds pending verification
* Special facilitation centres for assistance in filing / p

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GSTIN on E-Way Bill
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 21-12-2018 Last Reply Date:- 25-12-2018 Goods and Services Tax – GST
Got 4 Replies
GST
In Some cases of dispatch wherein the billing address of the customer is Maharashtra & shipping address is other than Maharashtra. While preparing E-Way Bill GSTIN No is mentioned Bill to party & there in no field to mention the Shipp to Party GSTIN No. in E-Way Bill form. However, recently as informed by the transporters,

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GST UNDER REVERSE CHARGE
Query (Issue) Started By: – mohan sehgal Dated:- 21-12-2018 Last Reply Date:- 25-12-2018 Goods and Services Tax – GST
Got 3 Replies
GST
A registered dealer is availing legal consultancy from an advocate firm interstate..
The dealer is in U.P. and the Legal Firm of advocates is in Delhi…
The dealer in U.P. has to deposit 18% GST under RCM on the Invoiced value of the legal consultancy…
Whether the dealer should deposit the GST amount under RCM in IGST

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Indian Army's Hire of Non-AC Vehicles Not Exempt from GST; 5% Rate Applies if No Input Tax Credit Used.
Case-Laws
GST
Rate of GST – supply of non-air conditioned vehicles on hire to Indian Army – Contract carriage – The Service provided by the applicant is not exempted under Notification No. 12/2017 as this Service does not fall under ‘non-airconditioned contract carriage’ category – Rate of GST is 5% if credit is not availed.
TMI Updates – Highlights, quick notes, marquee, anno

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Applicant Authorized to Issue E-Way Bill with 'Bill To' M/s. RSE/RPG and 'Ship To' M/s. X.
Case-Laws
GST
Supply – e-way bill – The applicant can issue an e-way bill in which the ‘bill to’

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GST Applies to Energy-Efficient Street Lighting Services with Infrastructure; Not Exempt as “Pure Services” Due to Goods Involvement.
Case-Laws
GST
Levy of GST – Supply of goods or not – pure services – providing energy efficient street lighting services with infrastructure to BMC – pure service should mean pure unadulterated service not mixed with any other element (in this case without any mixture of goods) – Benefit of exemption is not available.
TMI Updates – Highlights, quick n

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Bounce Charges Under GST: Considered Supply and Liable to Tax as Penalty or Liquidated Damages.
Case-Laws
GST
Levy of GST – penalty/ liquidated damages – supply of service or not – Whether th

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APPELLATE ADVANCE RULINGS IN GST ON SOLAR PLANTS
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 21-12-2018

The orders of Appellate Advance Ruling Authority (AAAR) have started pouring in. In this article, to recent Appellate advance rulings on solar power plants and works contracts in relation thereto are discussed.
Appellate advance ruling on works contract and rate of GST (AAR ruling affirmed )
M/s. Fermi Solar Farms Private Ltd. (Appellant) is engaged in operation of renewable energy power plant projects. These typically include operation of solar power plants set up across India for generation and distribution of electricity generated. The appellant is emerging as a leading builder of renewable energy projects.
The Appellant filed an Application for Advance Ruling for seeking clarification basis the draft contracts of the Appellant, in view of the provisions of 'composite supply' and the rate of tax provided for Solar Power Generating Syst

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and operation of a solar photovoltaic plant which is in the nature of a 'works contract' in terms of clause (119) of Section 2 of the GST Act, and hence, should be taxable at the rate of 18%
* In the absence of any documents, the AAR was not able to deal with the question regarding applicability of concessional rate of tax on parts of solar power generating system in the present proceedings.
* With regard to the question whether benefit of concessional rate of 5% of SPGS and parts thereof would be available to sub-contractors, it was held that no documents were provided and hence this question was not dealt with in the proceedings.
Being aggrieved by the advance ruling, the Appellant preferred the appeal before AAAR belatedly as the AAAR was not constituted. The AAAR condoned the delay.
It was ruled that the agreements tendered in support of this question are for setting up and operation of a solar photovoltaic plant and are in the nature of a 'works contract' in

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ant entered into contracts with various Developers who desired to set up and operate solar photovoltaic plants for supply of power generated. In various cases, the Appellant also is a Project developer wherein it is engaged in operation of renewable energy power plant projects.
Typically, a contract is entered into by the Appellant to do end to end setting up of a solar power plant which includes supply of various goods (such as modules, structures, inverter transformer etc.) as well as complete design, engineering and transportation, unloading, storage and site handling, installation and commissioning of all equipments and material, complete project management, civil works/construction related services for setting up of a functional solar power plant.
In the instant case, the contract entered into by the Appellant included end to end activities i.e. supply of various goods and services and hence is for the supply of solar power generating system.
The intent of the contract is that

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site supply. There is a supply of goods and services. They are naturally bundled in the sense that the goods and services may be required to fulfill the intention of the buyer in giving the contract. The supply of goods and services are provide as a package and the different elements are integral to flow of supply i.e. one or more is removed, the nature of the supply would be affected. Thus, from a reading of the entire contract as well as from the definition of composite supply what can be easily gathered is that the buyer has given a contract for setting up Solar Power Generating Supply to the appellant and therefore, it is single composite supply of goods and services and installation thereof.
The contract for providing the design, procurement, supply, development, testing and commissioning of the plant which includes the supply of both goods and services is a composite supply as per the definition in the Act. There are two taxable supplies- one of goods and the other of services a

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PRECISION ELECTRONIC COMPONENTS MANUFACTURING COMPANY Versus CCT, SECUNDERABAD GST
Central Excise
2018 (12) TMI 1177 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 21-12-2018
APPEAL No. E/30418/2018 – A/31590/2018
Central Excise
Mr. M.V. Ravindran, Member (Judicial)
Shri P. Venkata Prasad, Chartered Accountant for the Appellant.
Shri A.V.L.N. Chary, Superintendent /AR for the Respondent.
ORDER
Per: Mr. M.V. Ravindran
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-SC- AP2-0173-17-18-ST, dated 09.01.2018.
2. Heard both sides and perused the records.
3. The relevant facts that arise for consideration, after filtering out unnecessary details are appellants are manufacturers of Wire Wound Resistors and Potentiometers; were availing the CENVAT credit of the duty paid on inputs, capital goods and input services as per the provisions of CENVAT Credit Rules, 2004; during an audit it was noticed that appellants had availed irregular CENVA

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llate authority also held the same view.
4. On careful consideration of the submissions made by both sides, I find that identical issue came up before the Bench of the Tribunal in the case of CCE vs. Imperial Auto Industries [2017-TIOL-2446-CESTAT-CHD]. The entire judgment of the Tribunal is reproduced.
“The Revenue is in appeal against the impugned order.
2. The facts of the case are that the respondent is engaged in the manufacture of motor vehicles parts. During the course of scrutiny of the records, it was observed that the respondent availed credit on courier/freight services used for delivery/transportation of the goods from port of export to foreign buyers premises. Thereafter, the show cause notice issued to deny the credit to the respondent. The adjudication took place and the demand was confirmed along with interest and penalty was also imposed. On appeal, the Commissioner (Appeals) has held that the goods have been sold by the appellant on Delivered Duty Paid (DDP) basis

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Cx dt.28.2.2015 and the decision of the Tribunal in the case of Khanna Industrial Pipes Pv.Ltd.-2016 (43) STR 209 (Tri.-Mum.).
4. On the other hand, learned Counsel for the respondent opposed the contention of the learned AR an submits that the case of Khanna Industrial Pipes Pv. Ltd. is not relevant to the facts of the present case as in that case, the assessee took the credit on business support service, namely, terminal handling charges and documentation charges. In the said case, it is not coming out whether the goods have been delivered to the destination of the buyer or not and delivered the goods upto the premises of the buyers. The ownership remains with the seller or not. Therefore, the said decision is not applicable to the facts of this case. She further submits that in the case of Ambuja Cements (Supra), the Hon'ble High Court has relied on the CBEC circular No.999/6/2015-Cx dt.28.2.2015 wherein it has been stated that if the cost of service has been included by the asses

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ding over of the goods to the carrier/transporter for further delivery of the goods to the buyer, with the seller not reserving the right of disposal of the goods, would lead to passing on of the property in goods from the seller to the buyer and it is the factory gate or the warehouse or the depot of the manufacturer which would be the place of removal since it is here that the goods are handed over to the transporter for the purpose of transmission to the buyer. It is in this backdrop that the eligibility to Cenvat Credit on related input services has to be determined.
7. It is clarified in the above circular that if the seller does not reserve its right for delivery of the goods then destination in the case is the port of export is place of removal of the goods. The same is not in the case in hand. In fact, the respondent has sold the goods on Delivered Duty Paid basis which means that the seller bear all the cost and risks involved in bringing the goods to the place of destinatio

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SHRI SHIRDI SAI TRAVELS Versus CCT, CE&ST, MEDCHAL GST
Service Tax
2018 (12) TMI 1189 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 21-12-2018
APPEAL No. ST/31173/2018 – A/31589/2018
Service Tax
Mr. M.V. Ravindran, Member (Judicial)
Shri M.V.S. Sridhar, Advocate for the Appellant.
Shri Guna Ranjan, Superintendent /AR for the Respondent.
ORDER
Per: Mr. M.V. Ravindran
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-MD- AP2-0058-18-19-ST, dated 30.08.2018.
2. Heard both sides and perused the records.
3. On perusal of records, it transpires that the issue is regarding the amount of tax to be paid on the services rendered by the appellant to SEZ Unit.
4. Appellant herein, during the period in question from 01.04.2011 to 30.06.2012 rendered the services of Tour Operator Services/Rent-a-cab service to EI Dupont Services India Pvt. Ltd. The said EI Dupont Services India Limited was an unit situated and functioned as an SEZ and are enti

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nded interest. The first appellate authority also dismissed the appeal only on the ground that SEZ unit M/s EI Dupont had not filed the declaration required under notification No. 9/2009-ST to the authorised authorities and the same was not produced before the authorities.
5. On perusal of records, I find that the services is rendered by appellant to SEZ unit and the said SEZ unit is authorised to receive the services without payment of service tax. The provisions of Section 51 of the Special Economic Zone Act, 2005 mandates that the provisions of SEZ Act shall have overriding effect notwithstanding anything inconsistent in any act. The provisions of Section 26 of SEZ Act mandates for exemption of service tax, draw backs and concessions to developer. On holistic reading, the services rendered to an SEZ unit are not taxable, is the settled law. In my view, there being no dispute that the services rendered by the appellant to an unit in SEZ who was supposed to follow the provisions of t

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ication No. 9/2009- S.T., dated 3-3-2009 for the services provided inside SEZ. Before this amendment also, exemption was available to the service recipient by way of refund by the service recipient subject to certain conditions. In this regard, appellant has relied upon the judgment of Tata Consultancy Services Ltd. v. CCE & ST (LTU), Mumbai (supra), under which it was held that even if a service provider was not required to pay duty as per the amended provisions of Notification No. 9/2009-S.T. but paid for some reasons then the service provider was entitled to refund under Section 11B of the Central Excise Act, 1944. On the same analogy when services supplied to SEZ are considered as services provided inside a SEZ unit, there is no Service Tax liability on such deemed export as held by CESTAT in the case of Sujana Metal Products Ltd. v. CCE, Hyderabad [(T.-Bang.)].
6.The appellant has further relied upon the judgment of Intas Pharma Ltd. v. CST, Ahmedabad (supra) holding that in vie

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of Service Tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so Interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the Service Tax, wherever assessed and collected by Revenue or remitted otherwise by the taxable service provider, inadvertently. Considered in the light of this analysis, the substituted provisions, of clause/sub-paragraph 'C' of Notification No. 15/2009 cannot be inferred to have imposed any disability on the recipient of services consumed wholly within the SEZ, from seeking refund of Service Tax remitted on such transactions, by the providers of such services.”
It is also relevant to quot

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In Re: RITES Limited
GST
2018 (12) TMI 1226 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (20) G. S. T. L. 657 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 21-12-2018
27/WBAAR/2018-19 Case No. 28 of 2018
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY MEMBER
Applicant's representative heard:  Shri Anmol Gupta, CA
1. The Applicant, stated to be a Consulting Engineer rendering services related to engineering consultancy and monitoring agency to a large number of projects, both of the Government and of the Private Sector, seeks a ruling on whether the rate of GST for the construction of railway siding will be under Sl. No 3(v)(a) or Sl No 3(xiii) of Notification no 11/2017-CT(Rate) dated 28.06.2017 (and analogous notification issued under the WBGST Act), as amended, as applicable (hereinafter referred to as “the Rate Notification”) under the CGST/WBGST Acts, 2017 (hereinafter referred to, collectively, as “the GST Act”).
Advance Ruli

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for passing the bills of the vendors and contractors after necessary scrutiny, and making the payments from a specially designated escrow account in which DVC deposits the requisite amount, and deduction of statutory taxes and deposit of the same, issuance of tax deduction certificates etc.
3. In support of his submissions, the Applicant has provided a copy of the agreement with DVC. It is an agreement to undertake Engineering and Construction Management Service for construction of Railway Infrastructure including commissioning of the railway system and advance procurement of railway section and P. way materials. The Construction Management includes procurement of Rails and PSC sleepers with fittings, points and crossings, track fitting etc, construction of railway formation and bridges and procurement of stone ballast as per specifications of the Indian Railways, laying of new P. way with Points and Crossings, procurement and installation of electrical equipment etc. Apart from track

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of original works pertaining to railways, including monorail and metro, is taxable @ 12%. Original work, as defined under para 2(zs) of Notification No. 12/2017-CT (Rate) dated 28/06/2017, means all new construction involving (i) all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable, and (ii) erection, commissioning or installation of plant, machinery or equipment or structures, whether pre-fabricated or otherwise.
The term “railways” is not defined in the GST Act. It, however, is defined under section 2(31) of the Railways Act, 1989, meaning “a railway, or any portion of a railway, for the public carriage of passengers or goods, and includes
(a) All lands within the fences or other boundary marks indicating the limits of the land appurtenant to a railway;
(b) All lines of rails, sidings, or yards, or branches used for the purpose of, or in connection with, a railway;
(c) All electric traction equipment, power supp

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en, but covers, Government Railway under section 2(20) and Non-Government Railway under section 2(25) of the Act. It, therefore, includes scope for railways under both Government and private administrations.
5. It is evident from the above discussion that the scope of work, as outlined in the Applicant's agreement with DVC, is that of works contract, as defined under section 2(119) of the GST Act, fit to be called an 'original work' within the meaning ascribed to the term in para 2(zs) of Notification No. 12/2017-CT (Rate) dated 28/06/2017, and pertains to 'railways', provided it is meant for public carriage of passengers or goods.
6. Whether the phrase “public carriage of passenger or goods” prevents a private siding from being included in the definition of 'railways' has repeatedly come up for judicial scrutiny. The courts generally held that the phrase 'public carriage of passengers or goods' cannot be construed in such manner as to exclude from the ambit of 'railways' the sidings

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y meaning that may add more exclusion than specifically provided under section 2(31)(ii) of the Railways Act, 1989.
DVC – a public sector undertaking – is the owner of the railway siding being built. It is meant for carriage of coal and oil fuel to RTPS. The purpose of the carriage of goods is, therefore, not recreation, but producing public goods like electricity. It is, therefore, not excluded under section 2(31)(ii) of the Railways Act, 1989.
The construction of the private siding that the Applicant refers to, therefore, pertains to 'railways'.
In view of the foregoing, we rule as under
RULING
Construction of a private railway siding for carriage of coal and oil fuel to Raghunathpur TPS, as described in the agreement between the Applicant and DVC, is a composite supply of works contract taxable @ 12% under Serial No 3(v)(a) of Notification no 11/2017-CT(Rate) dated 28.06.2017.
This Ruling is valid subject to the provisions under Section 103(2) until and unless declared void un

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In Re: Swapna Printing Works Private Limited
GST
2018 (12) TMI 1227 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (20) G. S. T. L. 663 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 21-12-2018
28/WBAAR/2018-19 Case No. 26 of 2018
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY MEMBER
Applicant's Representative: Indranil Das, CA
1. The Applicant, stated to be engaged primarily in the business of printing, seeks a ruling on whether activities undertaken by procuring orders from a foreign party to print religious texts and thereafter deliver them to various places in India can be classified as “supply of goods” or “supply of services”.
The Applicant also seeks a Ruling as to whether this activity can be classified as “export”.
Advance Ruling is admissible on the first question under section 97(2)(a) of the CGST/ WBGST Acts, 2017 (hereinafter referred to, collectively, as “the GST Act”).
The definition of “export” however, falls under sect

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inting and binding Bibles. The version of the Bible is specified by the customer under the Evangelistic version of the text.
Under the Berne Convention copyright is granted to the author on the creation of work, but in the case of religious texts copyrights are granted to editions if they are unique or are translations. In the United Kingdom, the King James' Version of the Bible is covered by a Crown Copyright.
The Gideons International uses the King James' version of the Bible and distributes various editions of the same. The versions the Applicant prints for The Gideons International mention the name of the organization and establish their rights on those versions.
3. It is clear from the above that the rights of the content of the printed matter do not lie with the Applicant. At best it can be said that the Applicant is providing a composite supply wherein the supply of printing a content, rights of which lie with another and thus debarring all likelihood of transfer of title fro

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ing is found to the contrary, will be leviable to GST @ 12% under Serial No. 27(i) of Notification No 11/2017-CT (Rate) dated 28.06.2017, as amended by Notification No 31/2017-CT(Rate) dated 13.10.2017.
5. The Applicant submits photocopies of purchase orders received from The Gideons International (PO18449 dated 23/02/2018 and PO18765 dated 31/08/2018), and Tax Invoice No. 29/08/2018 dated 29/08/2016, as a prototype of such invoices. The analysis of the transactions is, therefore, based on the Applicant's written submission and the above-mentioned purchase orders and prototypes of tax invoices.
It appears from the purchase orders that printed copies of the Bible are required to be delivered to the recipient's branch in India. This apart, as evident from the tax invoice and from the Applicant's written submission, persons specified by the recipient and located in India also take delivery on behalf of The Gideons International. Such persons, who receive the supply on belalf of the reci

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IGST Act.
Furthermore, both the purchase orders and the tax invoice are in INR. Although the Applicant argues that the consideration is being received in US dollars, he has not clarified nor produced any evidence of how payment for purchase orders in INR and tax invoice raised in INR are made in foreign currency. It raises doubt about violation of condition under clause (d) of Section 2(6) of the IGST Act as well.
The Applicant, therefore, is making domestic supplies, on which he is liable to pay GST.
In view of the foregoing, we rule as under
RULING
The Applicant's activity of printing the Bible under the specific orders received from The Gideons International is a supply of service classifiable under SAC 9989.
The above service is supplied to the recipient located in India and the consideration is apparently received in INR. The Applicant is, therefore, liable to pay GST under the appropriate Act on such supplies.
This Ruling is valid subject to the provisions under Section 10

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In Re: Pew Engineering Pvt. Ltd.
GST
2018 (12) TMI 1277 – AUTHORITY FOR ADVANCE RULINGS WEST BENGAL – 2019 (20) G. S. T. L. 660 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS WEST BENGAL – AAR
Dated:- 21-12-2018
29/WBAAR/2018-19 Case No. 27 of 2018
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY MEMBER
Applicant's representative heard: Sri Sandeep Choraria, Advocate Sri Akshat Agarwal, Advocate
1. The Applicant, stated to have received a tender from the Indian Railways (hereinafter referred to as “the Contractee”) for retro-fitment of Twin Pipe Air Brake Systems on wagons, seeks a Ruling as to whether such activity under contract is to be treated as Composite Contract or Works Contract, and If it is determined to be a Composite Contact, whether the Principal Supply will be the supply of the Twin Pipe Air Brake Systems or the supply of services of fitting these goods to the wagons, and what should be the appropriate classification of the supply and rate of tax.
Advance

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do on-site inspection of fabrication and assembly at various stages of the work in progress and also the final inspection of the complete wagon before issuance of the completion/inspection certificate for each wagon. The Applicant shall provide the necessary facilities for the inspection.
Scrap generated during fabrication and assembly work shall be retained by the Contractee.
3. The Applicant argues that the contract is a single indivisible contract for a Composite Supply, where the supply of goods (i.e. the twin pipe air brake systems) is the Principal Supply constituting about 90% of the contract value, and, hence, should be treated as the predominant element of the supply.
The service of fitting the brake to the wagon, the Applicant submits, is ancillary to the supply of these goods.
4. The contract is for retro-fitment of twin pipe air brake system on wagons. Retro-fitment of twin pipe air brake system involves supply of goods, the air brake system, and supply of service for

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y. No payment is made separately for the supply of goods. Also, the provision for on account payment based on progress of work indicates that the supply of goods is inseparably linked with the supply of service. Mere delivery of the Twin Pipe Air Brake Systems is not sufficient discharge of contractual obligation. Work is measured based on its assembling and fitting on the wagon. In fact, the contract is not only for supply of the air brake system, but also for its retro-fitment. It is, therefore, evident that the two supplies, as far as the terms of this contract, are naturally bundled in the ordinary course of business.
6. In the context of the contract, the supply of the service of fitting the Twin Pipe Air Brake Systems to the wagon cannot be made unless the goods have already been supplied. The supply of services of the fitting is, therefore, dependent upon and ancillary to supply of the Twin Pipe Air Brake Systems. Predominant supply is, therefore, of the Twin Pipe Air Brake Sys

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y of Twin Pipe Air Brake Systems.
8. Twin Pipe Air Brake System is classifiable under Tariff Head 8607 21 00 [Parts of Railway….Air Brakes and part thereof] which is taxable @ 5% under Serial No. 241 of Schedule I of Notification No. 01/2017 – CT (Rate) dated 28/06/2017 with no benefit of refund of the unutilized input tax credit (as per TRU Clarification issued under F.No.354/1/2018-TRU dated 25/01/2018).
In view of the foregoing we rule as under
RULING
The Applicant's contract for retro-fitment of Twin Pipe Air Brake System on Railway Wagons is to be treated as Composite Supply, where the Twin Pipe Air Brake System is the Principal Supply.
Twin Pipe Air Brake System is classifiable under Tariff Head 8607 21 00 and is taxable @ 5% [in terms of Serial No. 241 of Schedule I of Notification No. 01/2017 – CT (Rate) dated 28/06/2017] with no refund of the unutilized input tax credit [as clarified in TRU Clarification issued under F.No.354/1/2018-TRU dated 25/01/2018].
This Ruling i

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Adlabs Entertainment Limited Versus Union of India
GST
2018 (12) TMI 1353 – BOMBAY HIGH COURT – 2019 (27) G. S. T. L. 351 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 21-12-2018
WRIT PETITION NO. 3027 OF 2018
GST
AKIL KURESHI & M.S. SANKLECHA, JJ.
Mr. Abhishek Rastogi a/w Mr. Ankit Shah, Ms. Rashmi Deshpande i/by Khaitan & Co for the Petitioner
Mr. S.P. Bharti for Respondent No. 5
Mr. Himanshu Takke, AGP for Respondent Nos. 3 and 4
Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for Respondent Nos. 1 & 2  
P.C.:
1. Petitioner, a limited company, has set up a theme park and water park at Khalapur, Maharashtra by making sizable capital investment. As a part of the tourism policy of the State Government, the petitioner was o

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he petitioner would now have to pay tax @ 18% of GST at par with other entities. According to the petitioner, this made the petitioner's business totally unviable. The petitioner had borrowed funds from banks and financial institutions for making capital investment which the petitioner was unable to repay on time.
3. Learned counsel for the petitioner submitted that the petitioner was granted incentive under the state tourism policy. The petitioner was unable to recover even its capital investment because the entire tax structure changed with the advent of GST. Under similar circumstances, the State of Rajasthan has issued notification granting partial relief to the similar industries. Learned counsel states that even the State of Utta

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Shafi Khan Khokhar Versus State of Maharashtra & Ors.
GST
2018 (12) TMI 1354 – BOMBAY HIGH COURT – 2019 (20) G. S. T. L. 513 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 21-12-2018
WRIT PETITION NO. 2951 OF 2018
GST
AKIL KURESHI & M.S. SANKLECHA, JJ.
Mr. Anand Mishra i/by Mr. A.M.Saraogi for the Petitioner
Mr. Amit Shastri, AGP for Respondent No. 1
Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for Respondent Nos. 2 & 3  
P.C.:
1. This petition under Article 226 of the Constitution of India seeks to challenge an enquiry initiated by respondent No. 2 – The Superintendent of CGST & Central Excise (AE) Mumbai. This by issuing summons to him dated 28.9.2018 under Section 14 of the Central Excise Act, 1944 and Section 70 of th

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etitioner has taken registration under the CGST Act 2017 & Finance Act, 1994 (service tax) in Mumbai. Thus, having taken registration, he is subject to the jurisdiction of Mumbai authorities in respect of the business which he has carried out within jurisdiction of the authority. It is the case of the petitioner that primarily his business is at Jaipur. This, however, would not determine the issue of whether or not respondent No. 2 has jurisdiction. This is more particularly so as Section 25 of the CGST Act 2017 provides for a separate registration in respect of each state. Once registration has been taken in Mumbai and some services have been rendered in Mumbai, then the petitioner is subject to the jurisdiction of Mumbai Authorities. Thus

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Nirman Estate Developers Private Limited Versus Union of India and ors.
GST
2018 (12) TMI 1442 – BOMBAY HIGH COURT – TMI
BOMBAY HIGH COURT – HC
Dated:- 21-12-2018
WRIT PETITION NO. 3357 OF 2018
GST
AKIL KURESHI AND M.S. SANKLECHA, JJ.
Mr. Abhishek Rastogi with Mr. Ankit Shah with Ms. Rashmi Deshpande i/by M/s. Khaitan & Co. for the Petitioner.
Mr. V.A. Sonpal, Special counsel for Respondent No.3.  
P.C.:
1. This Petition under Article 226 of the Constitution of India challenges Notification No.4 of 2018-Central Tax (Rate) dated 25th January, 2018 and Notification No.4 of 2018-State Tax (Rate) dated 25th January, 2018. The basic grievance of the Petitioner is that the notifications seek to bring the tax an acti

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HUSKY INJENCTION MOLDING SYSTEMS (INDIA) PRIVATE LIMITED Versus THE COMMISSIONER OF STATE TAX KERALA GST DEPARTMENT, THIRUVANANTHAPURAM, ASSISTANT COMMISSIONER (INT.) PALAKKAD, KERALA GST DEPARTMENT, PALAKKAD, DEPUTY COMMISSIONER OF STATE TAX, PALAKKAD, ASSISTANT STATE TAX OFFICER, SQUAD NO. 1, KERALA GST DEPARTMENT, PALAKKAD
GST
2019 (1) TMI 23 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 21-12-2018
WP (C). No. 41535 of 2018
GST
MR. DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI. RAJESH NAIR AND SRI. JOSEPH PRABAKAR
For The Respondent : GP DR. THUSHARA JAMES
JUDGMENT
The petitioner, an assessee under the GST Act in Tamil Nadu, sent goods across to the State. The Assistant State Tax Officer int

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can accept the tax and penalty as demanded by them (subject to the right of the petitioner to challenge the same) from the petitioner only through the registered GST Portal of the petitioner.
(iv) Issue a writ of mandamus or other appropriate writ, order or directions, directing the respondent to release the goods to the petitioner as per the conditions as deemed fit by this Hon'ble Court.
2. This case, as the Government Pleader submits, is covered by a Division Bench's judgment in Renji Lal Damodaran v. State Tax Officer Judgment dated 06.08.2018 in W.A. No.1640 of 2018. But before I consider that aspect, I must note the peculiarity of this case. The petitioner-Company is a dealer with its registration in Tamil Nadu. When it w

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M/s. PORT LAND IMPEX Versus THE ASSISTANT STATE TAX OFFICER SQUAD NO. V, STATE GST DEPARTMENT, STATE GOODS AND SERVICE TAX COMPLEX, KENATHUPARAMBU, KERALA
GST
2019 (1) TMI 24 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 21-12-2018
WP (C). No. 42261 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADV. SRI. M. S. SAJEEV KUMAR
For The Respondent : DR THUSHARA JAMES, GP
JUDGMENT
The petitioner imported car accessories from China, cleared the goods through Chennai Port, and transported them to Ernakulam, based on the Ext.P4 e-way bill and Ext.P7 invoice. The vehicle and the goods were detained by the respondent authorities as per the Ext.P5 proceedings, and demanded penalty under Ext.P6. Aggrie

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M/s Omax Autos Ltd., Gurgaon Versus State of Haryana and others
GST
2019 (1) TMI 416 – PUNJAB AND HARYANA HIGH COURT – 2019 (21) G. S. T. L. 148 (P & H)
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 21-12-2018
CWP-37912-2018
GST
MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL, JJ.
For The Petitioner : Mr. Vikas Bahl, Senior Advocate with Mr. Abhilaksh Grover, Advocate and Mr. Nikhil Sabharwal, 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 allow its claim for transfer of eligible transitional credit amounting to Rs. 9.83 crores or to decide the representations (Annexure P-11 Colly) moved by the petitioner.
2. The petitioner is registered under the GST in the State of Haryana having registration No.GSTN 06AAACO2190C3ZB and is also registered under the Haryana VAT Act, 2003, Central Excise Act, 1944 a

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P-6 Colly) regarding the non-reflection of balance Cenvat Credit carried forword in the last return and for manually submission of GSTR-3B and Trans-I due to GSTN problem, but no response has been received till date. Since the petitioner had a credit of Rs. 1.68 crores on account of invoices raised by the vendors/service providers during July, 2017 for input/input services provided prior to 1.7.2017, the Form Tran-I originally filed by the petitioner on 25.8.2017 was revised on 27.12.2017 and the revised Tran-I (Annexure P-8) was submitted vide e-mail dated 27.12.2017 (Annexure P-7) upon which respondent No.1 assigned ARN as AA061217021933E. The petitioner also furnished details of total Cenvat Credit of Rs. 9.83 crores. As the ITC was not being reflected while punching other parts of Form Tran-1, the petitioner was unable to claim the ITC under the GST Act. The Central Board of Indirect Taxes and Customs vide circular dated 3.4.2018 (Annexure P-9) notified an IT Grievance Redressal Me

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nd the IT Redressal Committee constituted for that purpose. In view of the circular dated 3.4.2018 (Annexure P-9) and the order (Annexure P-10) passed by this Court, the petitioner vide letters dated 21.5.2018, 3.8.2018 and 16.8.2018 (Annexure P-11 Colly) to respondent No.6 for redressal of its grievances, but to no effect.
3. Learned counsel for the petitioner submitted that for the relief claimed in the writ petition, the petitioner has moved the representations dated 21.5.2018, 3.8.2018 and 16.8.2018 (Annexure P-11 Colly) before respondent No.6, 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, we dispose of the present petition by directing respondent No.6 to forward the representations dated 21.5.2018, 3.8.2018 and 16.8.2018 (Annexure P-11 Colly) to the IT Redressal Committee concerned within next fifteen days after verification by the GSTN

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