Author: admin_gst

Hallmark Infrastructure Pvt. Ltd. Versus Commissioner of GST & Central Excise, Chennai South Commissionerate
Service Tax
2018 (12) TMI 1040 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-12-2018
Application No. ST/Misc/41618/2017, Appeal No. ST/573/2012 – FINAL ORDER No. 43116/2018
Service Tax
Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial)
Ms. Vishnupriya, Advocate For the Appellant
Ms. T. Usha Devi, DC (AR) For the Respondent
ORDER
Per Shri Madhu Mohan Damodhar
The facts of the case are that appellants were providing construction services and site formation services. From the investigation caused by the department, it emerged that appellants were rendering construction of residential complex in respect of Golden Country Project at Maraimalai Nagar, Kanchipuram District concerning 240 flats in Phase-I. It also appeared that they were engaged in providing site formation and clearance service with respect to their

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arance service for the period April 2006 to March 2008, totalling to Rs. 1,11,53,419/- towards service tax liability along with interest thereon. Equal penalty was imposed under Section 78 of the Act. Penalty was also imposed under Section 77 (2) ibid for not filing ST-3 returns. Hence this appeal.
2. When the matter came up for hearing, on behalf of the appellants, Ld. Advocate Ms. Vishnupriya made oral and written submissions which can be broadly summarised as under:
(i) With regard to the demand made under “residential complex service”, the issue as to whether a composite contract involving provision of service as well as transfer of property in goods could be covered under “Residential Complex Service” (hereinafter referred to as “RCS”) from the date of introduction of service tax on such services was being litigated upon and which was finally settled by the Hon'ble Supreme Court in the case of CCE Vs Larsen and Toubro Ltd – 2015 (39) STR 913 (SC). The Apex Court observed that in

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n activity involving construction of new residential complex involving indivisible composite contract, such services will require to be exigible to service tax only under “Works Contract Service”. It is settled law that for an activity involving indivisible composite contract, such service will be exigible to service tax only under “works Contract Service” on or after 01.06.2007 and not under “Residential Complex Service” as per the judgment of this Hon'ble Tribunal in the case of Real Value Promoters Pvt Ltd Vs Commissioner of GST and Central Excise – final order no.42436-42438/2018 dated 18.09.2018. Therefore, in view of the above, the demand proposed under “Residential Complex Service” cannot sustain.
(iii) With regard to the demand made under “site formation and clearance service”, the amount of Rs. 2,38,89,740/- (FY 2006-07) has been subjected to service tax erroneously. This amount consists of two figures, namely, a sum of Rs. 1,91,89,740/- received from one of the promoters of

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it and loss account of the respective financial years.
(vii) A sum of Rs. 1,58,08,252/- (FY 2007-08) is accounted as sale of land in the Profit and Loss Account for the year ending 31st March 2008 and an amount of Rs. 15,54,548/- is shown as land development charges under the head “Income”. Actually, both these figures are nothing but income from sale of UDS. The sum of Rs. 1,58,08,252/- has been accounted as income from sale of land in the Profit and Loss account for the year ending 31st March 2008 and an amount of Rs. 15,54,548/- has been accounted under the head “Land Development Charges” in the Profit and Loss Account for the year ending 31st March 2008.
(viii) It is a settled law that any expense incurred before the transfer of goods forms part of the sale price and cannot form part of any service tax liability.
(ix) The aforesaid amount of Rs. 2,38,89,740/- is a reimbursement for the expenses (i.e. Rs. 2,90,73,680/-) incurred by them without any provision of service.
3. On th

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t as per the law laid down by the Hon'ble Supreme Court in the case of Larsen & Toubro Ltd. (supra) and the decision of this very Bench in the case Real Value Promoters (supra), the said activity will be exigible to service tax only under “Works Contracts Service” and not under Residential Complex Service as has been demanded in the impugned order. In view thereof, we have no hesitation in setting aside the demand of Rs. Rs. 83,77,188/- with interest thereon under the category of construction of residential complex service. The portion of the impugned order to the contrary demanding the aforesaid amount with interest thereon is set aside.
6.2 The second demand relates to site formation and clearance service allegedly provided by the appellant. During the adjudication proceedings appellants have contended that the said activities were undertaken before sale of land took place, hence the service was a self-service and there is no service provider and service recipient relationship and t

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out, the plotting of the land with various parcels will naturally fetch higher price for the land. This being so, the site formation and clearance activity has obviously been done by the appellant by themselves, for themselves. Further neither the agreement for sale had not seen light of the day, nor were the buyers visible on the horizon, at the time when the site formation etc of the land was carried out by the appellant.
6.3 We therefore have no doubt in our mind that the such activity was a self service and hence the same cannot be exigible to service liability under the Finance Act,1994. This being so, portion of the the impugned order to the contrary demanding Rs. 27,76,231/- with interest thereon under the category of site formation and clearance service cannot be sustained and will have to be set aside, which we hereby do. The demands having been set aside, in consequence penalties are also set aside.
7. Appeal is therefore allowed in toto with consequential benefits, if any

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NIPPON KOEI INDIA PVT. LIMITED Versus CCT, SECUNDERABAD GST
Service Tax
2018 (12) TMI 1041 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 18-12-2018
APPEAL No. ST/30780/2018 – A/31570/2018
Service Tax
Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL)
Shri G.S.V. Prasad, Chartered Accountant for the Appellant.
Shri C. Mallikharjuna Reddy, Superintendent /AR for the Respondent.
ORDER
Per: Mr. P.V. Subba Rao
1. This appeal has been filed against Order-in-Appeal No. HYD-SVTAX- SC-AD1-052-17-18 Dated 23.03.2018. The facts of the case, in brief, are that the appellant herein is engaged in providing taxable services to their clients and have been registered with Service Tax Department. During the verification of records by the Audit, it was found that appellant had taken CENVAT Credit on common input services which were used for both taxable and exempted services. It was also found that they have not maintained separate accounts as required under Rule 6 (2) of

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ch 2014.
e) An amount of Rs. 2,97,730/- being irregular availment of input service tax credit on ineligible services and excess credit for the period 2012- 13 to 2014-15.
f) Why interest should not be demanded from them on the above amounts.
g) Why penalties should not be imposed under Rule 15(3) of CCR 2004 and under section 78 of Finance Act, 1994.
2. After following due process of law, the lower authority dropped all the demands. However, on an appeal by the Revenue, the first appellate authority has modified the order of lower authority as follows:-
(i) Confirmed the demand of Rs. 18,90,121/- holding that the appellant had not maintained separate records as required under Rule 6(2) of CCR 2004. He held that it is impossible to maintain separate accounts for the services such as telephone services, photo copying services, common services for all output services (both taxable and exempted).
(ii) With regard to non payment of service tax of Rs. 11,56,727/- and irregular credit o

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the appellant is liable to pay an amount of Rs. 18,90,121/- as 6% of the value of exempted services in terms of Rule 6(3) (i) of CCR 2004 and (b) whether the penalties are imposable on appellant.
4. Ld. Representative of the appellant submits that it is incorrect to say that they have not maintained separate accounts for the taxable and exempted projects. In fact, they have maintained separate records for each of their projects which is a fact which can be verified. He further submits that they have produced the details of these accounts before the lower authority as well as the first appellate authority and the lower authority has dropped the demands accordingly, while the first appellate authority has confirmed the same. He also produced their records before the Bench.
5. Ld. DR points out that the appellant has availed CENVAT Credit not only on inputs used in the projects but also on input services used in their Corporate Office. He draws my attention to the details of the input

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ained a separate account for the exempted projects and have not availed CENVAT Credit on the same.
6. On the question of penalties, the appellant submits that there were some mistakes in taking credit and in those cases they have conceded and paid the amount with interest and they had no malafide intention in evading service tax or availing irregular CENVAT Credit, therefore all penalties may be dropped. Ld. DR on the other hand submits that in their ST-3 returns, the appellant has clearly indicated that they have maintained separate accounts whereas the facts show that it is impossible even to maintain separate accounts in respect of common input services availed in the Corporate Office. Ld. Representative of the appellant concedes that it is not possible to maintain separate accounts for the services availed in the Corporate Office.
7. I have considered the arguments on both sides and perused the records. The short point to be decided is whether the appellant had availed credit on

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PIAGGIO VEHICLES PRIVATE LIMITED Versus THE ASSISTANT STATE TAX OFFICER, KERALA, THE COMMISSIONER STATE GST DEPARTMENT, TAX TOWER, THIRUVANANTHAPURAM, THE SECRETARY CENTRAL BOARD OF EXCISE AND CUSTOMS, NEW DELHI, UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE NEW DELHI AND THE AUTHORISED OFFICER THE GST NETWORK, NEW DELHI
GST
2018 (12) TMI 1085 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 18-12-2018
WP (C). No. 41284 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADV. SRI.K.S.HARIHARAN NAIR
For The Respondent : DR THUSHARA JAMES, GP.
JUDGMENT
The petitioner, an assessee under the GST Act, manufactures and sells commercial vehicles. The petitioner&#3

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icials to demand tax and penalty and detention of goods and vehicle as unconstitutional till the smooth, efficient and glitches free functioning of the GST Net work system is guaranteed to assesses;
(iv) Declare the provision empowering the intercepting officer as the adjudicating authority for the same case as unconstitutional; and
(v) issue such other writ, order, or direction, which this Hon'ble court deems fit and necessary in the interest of justice.
2. The learned Division Bench of this Court in Renji Lal Damodaran v. State Tax Officer Judgment dated 06.08.2018 in W.A. No.1640 of 2018 has dealt with an identical issue.
3. Applying the ratio of that judgment, I direct the respondent authorities to release the petitioner&#3

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M/s. Benchmark Services Versus Commissioner of GST & Central Excise Coimbatore
Service Tax
2018 (12) TMI 1113 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-12-2018
Appeal Nos. ST/340/2011 and ST/41643/2013 – Final Order Nos. 43117-43118/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri M.N. Bharathi, Advocate for the Appellant
Shri K. Veerabhadra Reddy, ADC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that appellants are holding service tax registration under the category of Business Auxiliary Service (BAS). They entered into an agreement with ICICI Bank for rendering activities of collection of instalment / loan from the customers of the bank. The department was of the view that the said activity would fall within the category of BAS as defined under Section 65(105)(zzb) of Finance Act, 1994. Show cause notice dated 21.4.2010 was issued for the period 2004 – 05 to December

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N. Bharathi submitted that the appellant had entered into an agreement with ICICI bank engaging the appellants to collect the instalments from customers / depositers. The said activity comes under Recovery Agent Service which came within the taxable net only with effect from 1.5.2006. The demand prior to this date cannot sustain for the reason that the said activity would not fall under BAS. The demand after 1.5.2006 is not sustainable under BAS since the services would fall under Recovery Agent Service.
2.2 It is further submitted by him that the appellant had not received any service tax from ICICI bank as the bank was of the view that the said activity carried out by appellant is not liable to service tax. The appellant had informed the Assistant Commissioner of Central Excise vide letter dated 10.11.2005 intimating this fact. In the said letter, the appellant had intimated that the ICICI bank was refusing to pay service tax contending that the activity of the appellant of recoveri

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r the activity is subject to service tax or not. Though they raised the invoices showing the service tax separately ICICI refused to pay the tax. Taking note of the fact that ICICI has not paid service tax to appellant, the Commissioner while adjudicating the show cause notice for the earlier period dated 21.4.2010 has given the appellant the cum-tax benefit. These being the facts, the show cause notices are time-barred and the demands cannot sustain.
2.3 With regard to the demand on reimbursable expenses, he submitted that these were actual expenses incurred by the appellant for obtaining demand drafts, courier charges, telephone charges, travelling expenses etc. Being reimbursable expenses, they are not subject to levy of service tax during the relevant period as decided by the Hon'ble Supreme Court in the case of Union of India Vs. Intercontinental Consultants and Technocrats P. Ltd. – 2018 (3) TMI 357 (SC).
2.4 Without prejudice to the above submissions, he submitted that the is

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fore the demand raised invoking extended period is legal and proper.
4. Heard both sides.
5.1 The first contention put forward by the ld. counsel for the appellant is that the activity of collecting amounts from the customers / defaulters would not come under BAS prior to 1.5.2006. Undisputedly appellants are acting in the capacity of collecting agents for ICICI Bank and they collect the dues payable by customers to such Banks on behalf of the Banks. The definition of BAS under Section 65(19) of the Act is reproduced as under:-
“Business Auxiliary Service” means any service in relation to, –
(i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or
(ii) promotion or marketing of service provided by the client; or
(iii) any customer care service provided on behalf of the client; or
(iv) procurement of goods or services, which are inputs for the client; or
[Explanation. – For the removal of doubts, it is hereby declared that for the p

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stitution including a non-banking financial company or any other body corporate or a firm, by any person, in relation to recovery of any sums due to such banking company or financial institution, including a non-banking financial company, or any other body corporate or a firm, in any manner;”
Though the services fall under Recovery Agent Service, the demand has been raised under BAS which in our view is incorrect. In S.K. Associates Vs. Commissioner of Central Excise, Salem vide Final Order No. 42043 to 42046/2017 dated 11.9.2017, the Tribunal had analysed the scope of activities that would come under BAS. In the said case, the assessee therein was engaged by ICICI bank to canvass prospective customers to perform the work from the stage of obtaining the application from prospective customers, processing such application, verify, undertake file sourcing till disbursement of loan. Such activities would fall under BAS even after 1.5.2006. As per the agreement dated 28.1.2005, the appell

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However, the show cause notice for the period from 2004 – 05 to 2009 – 10 has been issued only on 21.4.2010. Further, it is seen from the receipts that the ICICI bank has not paid service tax. The Commissioner has quantified the liability of service tax after giving cum-tax benefit. The appellant had not been paying service tax only for the reason that they were under the bonafide belief that the said services are not subject to levy of service tax. Even after seeking clarification from the department, since they did not receive any reply, they have opted not to pay the service tax believing that these services are not taxable. Though the department alleges that the appellant is guilty of suppression of facts, there is no evidence brought forth as to what is the positive act committed on the part of the appellant. The various documents show that the appellants have furnished the entire documents as requested by the department. In fact, the demand has been quantified basing upon the do

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Shlok Media Pvt. Ltd. Versus CCGST & CX, Mumbai West
Service Tax
2019 (1) TMI 507 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 18-12-2018
Appeal No. ST/87331, 87352/18 – A/88133-88134/2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
Shri Devender Jain, Advocate for the appellant
Shri O.S. Shivdikar, AC (AR) for the respondent
ORDER
Disposal of two appeals filed by the appellant before the Commissioner (Appeals III), GST & CX, Mumbai against adjudication orders confirming duty demand, interests and penalties solely on the ground of belated filing and non-payment of pre deposit is the subject matter of the appeal before this Tribunal.
2. Contention of the appellant, as submitted by Learned C.A. Shri Devendra Jain, is that Appellant could not file the said appeal before the Commissioner (Appeals) within two months of receipt of the order but filed the same within 30 days thereafter with a prayer for condonation of delay explaining sufficient grou

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for which the Commissioner had rightly given his finding. Further he disputed the contention of the appellant that substantial portion of the duty liability was discharged. Since both the OIOs and OIA revealed that duty demand of Rs. 7,72,500/- and Rs. 13,28,013/- respectively against availment of cenvat credit on capital goods not recorded in the CC register were confirmed by those orders along with interests and penalties, Section 35F bars the appeal bereft of pre deposit for which interference by this appellate court is uncalled for.
4. Perused the case record including the OIA. It is found from paragraph 8 of the OIA that OIOs were received admittedly by the appellant on 15.06.2017 that is after 9 months 3 days and 14 days of the orders passed on 20.08.2014 and 31.08.2016. It was also recorded by the Commissioner appeals that no documentary evidence was furnished by the appellant concerning the receipt of OIOs. At the same time he had brought it on record that the Punjab National

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f 7.5% duty demand and penalty and the same had not been complied with.
5. On close scrutiny of the documents on record and OIA, it is apparently clear that acknowledgment of receipt of orders in original by the appellant vide exhibit E contains the date of receipt as 15.06.2017. The ground of rejection of delay condonation petition by the Commissioner (Appeals) indicates that appellant had applied to the Department in writing on 24.08.2017 i.e. two weeks before filling of appeal, as held by Commissioner, but no finding is forthcoming as to if any previous proof of delivery of OIOs on the appellant was established. Therefore the date referred in the acknowledgment vide Exhibit E has to be accepted as the date of delivery of OIOs on the appellant. The Commissioner has relied upon the decision of the Hon'ble Supreme Court pronounced in respect of Singh Enterprises vs. Commissioner of C. Ex., Jamshedpur 2008 (221) E.L.T. 163 (S.C.) and by the CESTAT, Chennai in S. Benjamin's case 2013 (2

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tantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay and there is no presumption that delay was occasioned deliberately.
6. In another decision, reported in (2001) 9 SCC 106, Hon'ble Supreme Court has observed that where the delay is of a few days, the court should adopt a liberal approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of few days. Whether the delay is inordinate, the consideration of prejudice to the opposite party will be a relevant factor calling for a more cautious approach, but in the latter case where the delay is of few days, no such consideration may arise, and such a case deserves a liberal approach. The Hon'ble Supreme Court also observed that in exercise of discretion on the facts of each case, keeping in mind that in construing the expression “sufficient cause”, the principle of advancing substantial just

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cise Act 1994 and the Central Excise Rules. Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable as hit by the period of limitation.
9. Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner (Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions. Hon'ble Supreme Court in Saheli Leasing & Industry Ltd. – 2010 (253) ELT 705 (SC) also proposed a guideline to be followed by quasi judicial

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Ceedeeyes Infrastructure Development Private Ltd Versus Commissioner of GST & Central Excise, Chennai-South Commissionerate
Service Tax
2019 (1) TMI 1434 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 18-12-2018
Appeal No. ST/MISC/CT/41143/2017, ST/420/2012, ST/421/2012 – FINAL ORDER No. 43144-43145/2018
Service Tax
Ms. Sulekha Beevi C.S. Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Sh. M.A. Mudimannan, Advocate For the Appellant
Shri K. Veerabhadra Reddy, ADC (AR) For the Respondent
ORDER
The issue involved in both these appeals being the same, they are heard together and disposed by this common order.
2. The appellants were issued show cause notices proposing to demand service tax unde

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Board's Circular in 2007. The show cause notices have been issued alleging that the services fall under Works Contract Services. However, after adjudication, the Commissioner has classified the services under Commercial or Industrial Construction Services. He submitted that the works executed by the appellants are in the nature of composite contracts which involved both supply of materials as well as renting of services. It is argued by him that since the works executed are in the nature of composite contracts after 1/6/2007, the said services rendered by the appellants would not fall under Construction of Residential Complex Services. He relied upon the decision of the Tribunal in the case of Real Value Promoters Pvt Ltd. And others repor

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est & Penalties)
Rs.2,11,52,669
6. At the foremost, it has to be mentioned that the appellant was discharging the service tax under Construction of Residential Complex. However, the show cause notice has been issued proposing to demand under Works Contract Services. After adjudication, the Commissioner held that the services are rightly classifiable under Construction of Residential Complex Services and confirmed the demand raised in the show cause notice under Works Contract Service. The Commissioner has travelled beyond the scope of the show cause notice and such confirmation of demand on a different category of service is not sustainable. The department has not filed any appeal.
7. The issue whether composite contracts involving both

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In Re: M/s. Sam Overseas
GST
2019 (2) TMI 191 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – 2019 (21) G. S. T. L. 364 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – AAR
Dated:- 18-12-2018
AAR Ruling No. 13/2018-19 In Application No. 12
GST
SHRI VIPIN CHANDRA AND SHRI AMIT GUPTA MEMBER
Present for the Applicant: Shri Sanjay Gupta, Partner
Concerned Officer: Mrs. Preeti Manral, DC-SGST
Note : Under Section. 100(1) of the Uttarakhand Goods and Services Tax Act, 2017, an appeal against this ruling lies before the appellate authority for advance ruling constituted under section- 99 of the Uttarakhand Goods and Services Tax Act, 2017, within a period of 30 days from the date of service of this order.
1. This is an application under Sub-Section (1) of Section 97 of the CGST /SGST Act, 2017 (herein after to be referred as “Act”) and the rules made thereunder filed by M/s. Sam Overseas, 32, VIM Square, Rudrapur seeking an advance ruling on the questio

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to be registered
(g) Whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both within the meaning of that term
4. In the present case applicant has sought advance ruling on classification and applicability of GST rate on the 'Rejected Wheat Seed' and 'Rejected Paddy Seed'. Therefore, in terms of said Section 97(2)(a) & (e) of CGST/SGST Act, 2017, the present application is hereby admitted.
5. The Joint Commissioner (Executive), SGST, Rudrapur Division, in concurrence with the report from Deputy Commissioner, SGST, Khand-l, Rudrapur, vide his letter dated 04.10.2018 submitted the report, in this regard, as under:
1. On point no. 1, the question raised by the applicant in his application is neither already pending nor has the same been determined in any proceedings in party's other matters under the provisions of this Act.
2. On point no. 2, there is no entry with the name of “R

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having gone through the issue, I am of the considered opinion that the Wheat Seed' and 'Paddy Seed' rejected as seed, does not remain seed anymore. Further 'Rejected Wheat Seed' and 'Rejected Paddy Seed' can not be termed as cereals either as during the process, it has to under go the chemical treatment, therefore does not remain fit for human consumption as well. I have observed that there is no entry in the name of 'Rejected Wheat Seed' and 'Rejected Paddy Seed' in the GST tariff, however, there is a description of 'All goods other than seed quality' at SI. No. 63 in Schedule-I of the said Tariff. Accordingly, tax is leviable at the rate of 5% on supply of these 'Rejected Wheat Seed' and 'Rejected Paddy Seed'. The details is as under –
Chapter/Heading/Sub-heading/Tariff Item
Description of goods
GST Rates Rate of tax
12.
 
Central CGST
State/UT SGST/UTGST
Inter-State IGST
Compensation Cess
 
All goods other than of seed quality
2.5%
2.5%
5%
Nil
(b) [Ruling

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nbsp;
Description of goods
Unit
(1)
 
(2)
(3)
1001
 
WHEAT AND MESLIN
 
 
–
Durum wheat :
 
10011100

Seed
kg.
 
–
Other :
 
10011900

Other
kg.
10019100

Seed
kg.
100199

Other:
 
10019910

Wheat
Kg
10019920

Meslin
kg.
 
HS Code
 
Description of goods
Unit
(1)
 
(2)
(3)
1006
 
RICE
 
100610
–
Rice in the husk (paddy or rough):
 
10061010

Of seed quality
kg.
10061090

Other
kg.
10062000
–
Husked (brown) rice
kg.
100630
–
Semi- milled or wholly- milled rice, whether or not polished or glazed :
 
10063010

Rice, parboiled
kg.
10063020

Basmati rice
kg.
10063090

Other
kg.
10064000
–
Broken rice
kg.
On going through the relevant HS code of the Customs Tariff, I observe that the 'seed of Wheat and Meslin' has been given under HS Code 10011100 and 10019100 and also, under HS Code 10061010, Rice in the hus

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In Re: M/s. Blackstone Diesels
GST
2019 (2) TMI 192 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – 2019 (21) G. S. T. L. 184 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, RAJASTHAN – AAR
Dated:- 18-12-2018
AAR No. RAJ/AAR/2018-19/26
GST
SHRI J.P. MEENA AND SHRI PANNA LAL
Present for the Applicant: Shri Mukesh Khandelwal, CA, (Authorised Representative)
Note: Under Section 100 of the CGST/RGST Act 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act 2017, within a period of 30 days from the date of service of this order.
The Issue raised by M/s. Blackstone Diesels {hereinafter the applicant} is fit to pronounce advance ruling as it falls under ambit of the Section 97(2) (a) and it is given as under:
a. classification of any goods or services or both;
Further, the applicant being a registered person, GSTIN is 08AFOPB8919C1ZE, as per the declaration given by him in Form ARA-01, the

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m of locomotive and Repair/ Spare Kit supplied to railway.
d. As per the system of classification of HSN Codes the items related to railway locomotives fall under chapter 86. The relevant section heading 8607 reads as follows:-
8607 PARTS OF RAILWAY OR TRAMWAY LOCOMOTIVES OR ROLLING-STOCK
Relevant classification entry under that section is as follows:- 86072100 :-
Air brakes and parts thereof
Thus, as per the use based classification as it is used for railways, the classification can be identified under this heading of chapter 86.
e. However the vendor of the assessee from whom the applicant purchased the material classifies the same under chapter 84 under following heading:-
Filtering or purifying machinery and apparatus for gases 84213990. This classification is based on the assertion that the air dryer and filter is a mechanical appliance classifiable under above heading.
f. It is important to note here that the item supplied by the applicant can be used only for

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if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(c) When goods cannot be classified by reference to 3 (a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
2. As per these rules in case if there is a situation where any commodity falls under two or more heading and where the most specific description also could not be identified then as per rule 3(c) of rules or interpretation as described above the heading which occurs later in the numerical order should be used for classification.
3. Thus by virtue of the classification base

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as Bogies, bissel-bogies, axles and wheels, and parts thereof
2.5
2.5
5
 
6. Further, Vide circular No. 30/04/2018 dated 25.01.2018 Govt, has clarify that … goods classified under Chapter 86, supplied to the railways attract 5% GST rate with no refund of unutilised input tax credit.
7. The Applicant purchases above mentioned goods form Manufacturer of such goods. They have supplied goods under HSN Code 84213990 (Centrifuges, Including Centrifugal Dryers; Filtering or Purifying Machinery and Apparatus, For Liquids or Gases) and charging GST @ 18%.
8. The item supplied by the applicant is part of the Air Breaking System of Locomotive used by Railway Only. They are not to be used independently anywhere.
2. QUESTIONS ON WHICH THE ADVANCE RULING IS SOUGHT
Applicant has sought ruling to be pronounced under section 97(2) (a) of the CGST Act 2017, on the following question:
Tax rate on “Air dryer complete with final filter for used in breaking system of locomotive supplied to

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ur from compressed air. Compressed air dryers are commonly found in a wide range of industrial and commercial facilities.
The process of air compression concentrates atmospheric contaminants, including water vapour. This raises the dew point of the compressed air relative to free atmospheric air and leads to condensation within pipes and the compressed air cools downstream of the compressor.
Excessive water in compressed air, in either the liquid or vapour phase, can cause a variety of operational problems for users of compressed air. These include freezing of outdoor air lines, corrosion in piping and equipment, malfunctioning of pneumatic process control instruments, fouling of processes and products, and more.
There are various types of compressed air dryers. Their performance characteristics are typically defined by the dew point.
c. Usage of Air dryer as per Wikipedia are as:
a. Drying air for use in commercial or industrial processes that demand dry air:
b. Telecom

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rol-filters for internal combustion engines
8421.29 Other
-Filtering or purifying machinery and apparatus for gases:
8421.31 lntake air filters for internal combustion engines.
8421.39-other
-Parts:
8421.91 of Centrifuges, including centrifugal dryers
8421.99 Others
This heading covers:
(I) Machines which, by the use of centrifugal force, completely or partly separate substances according to their specific gravities or which remove the moisture from wet substances.
(ii) Filtering or purifying machinery and apparatus for liquids or gases, other than eg. Filter funnels, milk strainers, strainers for filtering paints(generally chapter 73)
On going through HSN code 8421, it is observed that the Air dryers, which is used for removing water vapour from compressed air or to remove the moisture from wet substances has been classified under 8421 ibid.
Further, M/S Trident Pneumatics Pvt. Ltd., Coimbatore is a manufacturer and supplier of “Air Dryer (LD2000132) Lo

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no refund of unutilised input tax credit and in case of supply of goods falling under any other chapter, the same would attract applicable GST rate as leviable on such goods under the relevant notifications even if supplied to railways.
f. Further, in the light of the fact classification of 'Air Dryer' (HSN 8421) has already been finalised at the supplier's end who also happens to be manufacturer of the goods in question i.e. M/s. Trident Pneumatics Pvt. Ltd., Coimbatore, which is evident from the tax invoice, dated 27.03.2018. The same goods without any modification/ processing are being further supplied to the Western Railways by the applicant. Hence it is clear that HSN of goods do not merits any change in classification merely due to the fact that the goods in question are being supplied to the Indian railways.
6. In view of the foregoing, we rule as under:-
RULING
'Air Dryer complete with final filter for used in breaking system of locomotive' has been rightly classified by

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Governor of Himachal Pradesh, appoint Additional Commissioner of State Taxes and Excise (Grade-I)/ Additional Commissioner of State Taxes and Excise (Grade-II) as Additional Commissioner (Appeals) for carrying out the purposes of section 107 of HPGST Act 2017
No. EXN-B(1)-3/2018 Dated:- 18-12-2018 Himachal Pradesh SGST
GST – States
Himachal Pradesh SGST
Himachal Pradesh SGST
GOVERNMENT OF HIMACHAL PRADESH
EXCISE AND TAXATION DEPARTMENT
NOTIFICATION
Shimla-2, the 18th December,

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MEP Activities Classified as Composite Works Contract u/s 2(119) of CGST Act, Affecting GST Rates.
Case-Laws
GST
Classification of services – Rate of GST – MEP activities (Mechanical, Electri

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Fixed Fee for Beer Services Taxable Under CGST, MGST, IGST; Beer Supply Itself Exempt from GST.
Case-Laws
GST
Levy of CGST/MGST/IGST – fixed fee received – brewing / manufacturing, packing and supply of Products i.e. alcoholic liquor for human consumption – Supply of beer per se is not taxable under GST. What is taxable in the subject case is the job work which is a service provided by PIL to the applicant, for which they are receiving consideration.
TMI Updates – Highlights, quick

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Reversal of common ITC availed on inputs and input services
By: – Shilpi Jain
Goods and Services Tax – GST
Dated:- 17-12-2018

Credit Mechanism is the backbone of the indirect tax regime which allows the assessee to take credit of tax paid on purchase of goods and services availed, in the course of business, though with some conditions and restrictions. Credit under GST is available if used for business purpose and in proportion of its usage for making taxable supplies. Reversal of input tax credit (ITC) is required in respect of procurements that are commonly used for taxable and exempted & non-business supplies or if used for making only exempt supplies or used for non-business purposes.
In this article we would like to explain the credit reversal mechanism for input and input services under various business scenarios, to see how the provision is beneficial is some cases and in some cases not so.
Credit Reversal under Goods & Services Tax
Section 17(2) of the CGST A

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reby can be availed/reversed by September of the following year, in terms of rule 42(2) of the Rules. This can be understood with an illustration:
Say ABC Ltd manufactures two varieties of footwear, one is exempt hawai slippers and the other is taxable shoes. Its turnover w.r.t exempt supplies is ₹ 1,00,000/- and taxable supplies is ₹ 2,00,000/- in a particular tax period and credit that is used commonly for both these supplies is ₹ 15,000/-. Then,
ITC to be reversed = ₹ 5,000/- (i.e. 15,000 * 1,00,000 / (1,00,000+2,00,000)).
Now let's discuss a few more scenarios to understand the same in detail:
Scenario 1: M/s. ABC Ltd has turnover of ₹ 45 lakhs from Jul '17 to Mar '18 as below:
* Jul'17 to Feb'18 – only taxable turnover of ₹ 5 lakhs per month
* Mar '18 – taxable turnover of ₹ 3 lakhs and exempted turnover of ₹ 2 lakhs
Further, total ITC during Jul '17 to Mar '18 is ₹ 4,20,000/- out of which common ITC is ₹ 20,00

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ommon ITC at both these units during the FY:
Unit A – ₹ 12 lakhs
Unit B – ₹ 20 lakhs
Total common ITC = ₹ 32 lakhs
In this case the ITC reversal for M/s. XYZ would be ₹ 23.56 lakhs [ i.e. 32 * 810/1100]
However, if these 2 units were separately registered under GST then the credit reversal would be as under:
Unit A = ₹ 1.2 lakhs [i.e. 12 * 10%}
Unit B = ₹ 16 lakhs [i.e. 20 * 80%]
Total ITC reversal = ₹ 17.20 lakhs
Thereby, it can be seen that by taking separate registration, the quantum of reversal of common credits for Unit A would reduce substantially.
Scenario 3: M/s. DEF Ltd is registered and engaged in providing construction services of residential complex. M/s. DEF Ltd. has sales even after obtaining OC, and if entire consideration for sale of a unit is received after OC, the same would be exempt. The following are details of the project.
Year
Taxable Turnover
Exempted Turnover
Common ITC
1
No
No
No
2
Yes
No
No
3 (O

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= ₹ 26 Lakhs
* Year 2 – 18 Lakhs
* Year 3 – ₹ 6 lakhs (for before OC procurements) and ₹ 2 lakhs (for after OC procurements)
* Year 4 – ₹ 1 Lakh
The credit of Year 1, 2 & before OC credit of Year 3 i.e. ₹ 50 Lakhs would be fully eligible. Credit reversal in this case in terms of rule 42 of the Rules will be only for the credit of ₹ 2 lakhs of the Year 3. The Year 4 credit of ₹ 1 Lakh would be fully ineligible.
In Year 4, any credit accumulated would be relating to exempt supplies and thereby entire credit would not be eligible.
Thus, from the above it can be seen that credit reversals would have to be done on a financial year basis and that too only relating to the common credits. Further, such reversal would be required only when there is any exempted turnover in such financial year. Revisiting the credits availed earlier is not required as there is no express provision in this regard in the law.
Conclusion:
Thus, we can observe tha

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ts of the entire project.
At present even in service tax audits ongoing by the department they have started issuing SCN to assesse even when we are strong on legal grounds in service tax.
Refering to section 17(2) it clearly restricts use of ITC to the extent of taxable supply.
Suppose there are 100 units in a building to be constructed, cement , steel , flooring etc on all the items GST ITC has been availed which has been used in all 100 units.
Now till the time of OC only 30 flats are sold ! So would the builder enjoy ITC on all 100 flats ?? Against output GST of only 30 flats ?? Defies logic.
If department goes into litigation and demand is confirmed it will attract reversal of GST along with 24% interest as it will amount to wrong availemnt of credit.
As consultants One should not go for this option unless and until supported by clients and they are willing to take risk of litigation.
Dated: 18-12-2018
Reply By KASTURI SETHI as =
Nice article indeed.
Dated: 13-7-2019

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Seeks to partially mend notification No. 37/2017-Customs dated 30.06.2017 in order to exempt BCD and IGST for imports by NTRO.
81/2018-Customs Dated:- 17-12-2018 Customs -Tariff
Customs
Miscellaneous Exemption Notifications
Cus
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
Notification No. 81/2018-Customs
New Delhi, the 17th December, 2018
G.S.R. 1214(E).- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 19

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State Level Screening Committee on Anti-Profiteering, Kerala, Director General Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus M/s Zeba Distributors, Immanuel Stores
GST
2018 (12) TMI 1001 – THE NATIONAL ANTI-PROFITEERING AUTHORITY – 2019 (20) G. S. T. L. 384 (N. A. P. A.)
THE NATIONAL ANTI-PROFITEERING AUTHORITY – NAPA
Dated:- 17-12-2018
19/2018
GST
Sh. B. N. Sharma, Chairman, Sh. J. C. Chauhan, Technical Member And Ms R. Bhagyadevi, Technical Member
For the Applicant : Smt. A. Shainamol, Additional Commissioner, SGST, Kerala, Sh. Anwar Ali, Additional Commissioner
ORDER
1 . The present report dated 19.09.2018, has been received from the Applicant No. 2 i.e. The Directorate General of Anti-Profiteering (DGAP) after detailed investigation under Rule 129 (6) of the Central Goods & Service Tax (CGST) Rules, 2017. The brief facts of the case are that The Kerala State Screening Committee on Anti-Profiteering vide the minutes of it's meeting

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lue Added Tax (VAT) on the product “Eastern Meat Masala” was being levied @ 5% and there was no Central Excise Duty as per Central Excise Tariff Act, 1985. In the post GST era the rate of tax was also levied @ 5%. Details of the invoices issued by Respondent are as per the table given below:-
Sr. No.
Description of the product
 
Pre-CST
Post-GST
Difference in price(Rs.)
Invoice No./Date
 
Tax rate (VAT)
Discounte d price excluding VAT (Rs)
Invoice No./Date
Tax rate (GST)
Discounted price excluding GST (Rs)
1 .
Eastern Meat  Masaia (HSN Code 0910)
Z171000232 dated 06/02/2017
 
50/0
238/-
Z1711224125 dated 18/121/2017
5%
238/-
 
 
4. The DGAP after scrutiny of the above two invoices issued by the Respondent has intimated that there was no reduction in the rate of tax on the product “Eastern Meat Masala” which was 5% both in the pre-GST era as well as in the post-GST era (GST). Further, it was also intimated by The DGAP that

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6. We have carefully examined the DGAP's report and the documents on record and find that the following issues are required to be settled in the present proceedings:-
I. Whether there was reduction in the rate of tax on the product in question w.e.f. 01.07.2017?
ll. Whether any benefit of reduction in the rate of tax was to be passed on?
7. Perusal of Section 171 of the CGST Act shows that it provides as under:-
(1). “Any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall be passed on to the recipient by way of commensurate reduction in prices.”
8. It is apparent from the perusal of the facts of the case that there was no reduction in the rate of tax on the above product w.e.f. 01-07-2017, hence the anti-profiteering provisions contained in Section 171 (1) of the Central Goods and Services Tax Act, 2017 are not attracted. There is also no increase in the per unit base price (excluding tax) of the above product and therefor

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Shri Shylesh Damodaran, Director General Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus M/s. Landmark Automobiles Pvt. Ltd.
GST
2018 (12) TMI 1002 – THE NATIONAL ANTI-PROFITEERING AUTHORITY – 2019 (20) G. S. T. L. 379 (N. A. P. A.)
THE NATIONAL ANTI-PROFITEERING AUTHORITY – NAPA
Dated:- 17-12-2018
18/2018
GST
Sh. B. N. Sharma, Chairman, Sh. J. C. Chauhan, Technical Member And Ms. R. Bhagyadevi, Technical Member
For the Applicant No. 1 : None
For the Applicant No. 2 : Sh. Akshat Aggarwal, Assistant Commissioner
ORDER
1. An application dated 12.08.2017 was filed before the Standing Committee on Anti-profiteering under Rule 128 of the Central Goods and Service Tax (CGST) Rules, 2017, by the Applicant No. 1 alleging that he had purchased one Honda City Car from the above Respondent vide Tax Invoice No. A-Tax/998/17-18 dated 14.10.2017 by paying an amount of Rs. 9,54,234/- on which GST @ 28% and Cess @ 17% was charged, however the benefit of I

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ended for investigation, it couldn't reconsider it's decision as it had become 'functus officio'.
3. On receipt of the reference from the Standing Committee on Anti-profiteering, the DGAP had re-examined the Application filed by the above Applicant and vide letter F.No. D-22011/APl/1 1/2018/736 dated 14.03.2018 a Report was submitted by the DGAP to this Authority under Rule 129 (6) of the CGST Act, 2017 stating that the allegation of profiteering was without any basis and hence, no meaningful investigation could be initiated by him. The Report submitted by the DGAP was considered by the Authority and vide it's order dated 24.04.2018 passed in Case No. 2/2018, it had directed the DGAP to conduct fresh investigation in the case and submit a comprehensive and detailed report as no opportunity of being heard had been granted to the above Applicant by the DGAP during the course of the investigation.
4. In consequence of the order dated 24.04.2018 the DGAP has submitted

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vide his reply dated 01.08.2018 the Respondent had sought extension of time by 7 days to file his reply and vide e-mail dated 04.08.2018 he had submitted his detailed reply along with the following documents:-
a) Purchase invoice of the Car sold to the above Applicant.
b) Sale invoice of the Car sold to the above Applicant.
c) Sample Sale and Purchase invoices of the same model Car as was sold to the above Applicant.
d) Price lists applicable pre-GST (01.05.2017) and post-GST (01.07.2017).
e) Worksheet showing details of the sale and purchase of 4 Cars of similar model.
5. The DGAP has mentioned in his Report that the Respondent had submitted that the trade of selling Cars was controlled by the manufacturers and the dealers were bound to follow the ex-show room prices fixed by the manufacturers. He has also mentioned that the Respondent had submitted that margin of the dealers had decreased by about Rs. 7,000/- per Car from the pre-GST regime while the sale price of the same

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able B
Post GST purchase invoice dated 29.09.2017
Post GST
Amount (in Rs.)
Rate of Tax
Remarks
Base Price
6,41,471
 
 
GST
2,88,661.95
45
28% GST +17% Cess on Cars longer than 4 mtrs.
Dealer's Landed Price
9,30,132.95
 
 
Table C
Pre GST sale invoice dated 28.04.2017
Pre GST
Amount (in Rs.)
Dealer's Landed Price (A)
8,14,817
Dealer's Margin (B)
28,589
Total A+B)
8,43,406
VAT (D = of C)
1,26,510.9
Selling price (E= C+D)
9,69,916.9
Table D
Post GST sale invoice dated 14.10.2017 issued to the Applicant
Post GST
Amount (in Rs.)
Dealer's Price (excluding GST paid which is available as Input Tax Credit) (A)
6,41,471
Dealer Margin(B)
16,621
Total (C= A+B)
6,58,092
GST (D= 45% of C)
2,96, 141.4
Selling price (E= C+D)
9,54,233.4
7. The DGAP has further mentioned that the Respondent had submitted that he had received a discount of Rs. 4,500/- for achieving a predefined purchase and sale target for the pre-GST trans

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in the post-GST era. He has also observed that even after taking in to account the trade discounts of Rs. 4,500/- and Rs. 9,000/-, which the Respondent had received for achieving pre-defined purchase and sale targets for the pre-GST and post-GST transactions respectively, the total post-GST profit margin of the Respondent came to Rs. 25,621/- (Rs. 16,621/- + Rs. 9,000/-), which was less than the total pre-GST profit margin of FRS. 33,089/- (Rs. 28,589/- + FRS. 4,500/-). He has further observed that the reduced profit margin of the Respondent was also evident from the fact that the Respondent's post-GST purchase price was Rs. 6,906.05 less than the pre-GST purchase price [Rs. (-) Rs. 9,30,132.95/-]. He has also informed that the post-GST sale price was Rs. 15,683.50/- less than the pre-GST sale price [Rs. 9,69,916.90/- (-) Rs. 9,54,233.40/-] and therefore, the allegation of profiteering made by the Applicant was not established. The DGAP has further informed that the landed price ch

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and post-GST sale invoices issued by the Respondent revealed that the base price charged from the above Applicant was reduced as the benefit of ITC had been passed on by the Respondent to the Applicant No. 1. Therefore, he has maintained that the allegation that the above Applicant had not been given the benefit of ITC by the Respondent was not proved.
10. Investigation Report received from the DGAP was considered in the meeting of the Authority held on 26th September, 2018 and it was decided to accord opportunity of hearing to the Applicant only as there was 'nil' profiteering established in this case by the DGAP.
Accordingly, two hearing opportunities on 09.10.2018 and 29.10.2018 were accorded but the Applicant did not appear. Further, the Applicant vide his e-mail dated 01.11.2018 stated that he did not intend to make any further submissions in the matter.
11. The Authority has carefully considered the DGAP's Report, the written submissions of the above Applicant and

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in tax rate is not sustainable. It is also revealed from the perusal of the record that the profit margin of the Respondent had got reduced from Rs. 28,589/- which he was receiving in the pre-GST period to Rs. 16,621/- in the post-GST period and after taking in to account the discounts of Rs. 4,500/- and Rs. 9,000/-, which the Respondent had received for achieving predefined purchase and sale targets for the above two periods the total post-GST profit margin of the Respondent was Rs. 25,621/- (Rs. 16,621/- + Rs. 9,000/-), which was less than the pre-GST profit margin of Rs. 33,089/- (Rs. 28,589/- + Rs. 4,500/-). It is also apparent that the reduced profit margin was due to the fact that the post-GST purchase price of the Respondent was Rs. 6,906.05 less than the pre-GST purchase price. It is also clear from the record that the postGST sale price charged by the Respondent was Rs. 15,683.50/- less than the pre-GST sale price. The record also reveals that the base price charged by the Re

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M/s. Tamilnadu Warehousing Corporation Versus Commissioner of GST & Central Excise Chennai South
Service Tax
2018 (12) TMI 1181 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 17-12-2018
ST/Misc. /41112/2017 and ST/611/2011 – Final Order No. 43122/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri P.C. Anand, Chartered Accountant for the Appellant
Shri B. Balamurugan, AC (AR) for the Respondent
ORDER
Per Bench
The appellants are engaged in providing storage and warehousing services, cleaning services, business auxiliary services and GTA services. During the audit of accounts, it was noticed that the ST-3 returns filed by the appellant did not tally with the income tax returns in their financial records and they had not discharged service tax correctly. Raising the above allegations, show cause notice was issued to the appellant for demand of service tax along with interest and for imposing p

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/2002- So also the services of fumigation are exempted with regard to storing of agricultural produce. The appellant had provided such services not only for the agricultural produce but also for petroleum products. But the original authority has not taken into consideration the fumigation receipts, dess receipts etc. and has also not given weight to the contention of the appellant that they are using the warehouse for storing of agricultural products such as paddy, wheat etc. The impugned order has confirmed the demand without mentioning the classification of service. The appellant has not been able to understand the category of service on which the demand has been made and with much effort has defended the proceedings. In respect of difference in the ST-3 returns and the income tax returns, he submitted that during the relevant period, which is prior to 2011, the ST-3 returns were on receipt basis whereas the income tax returns were filed on accrual basis. These have been explained to

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to confirm the demand under a particular category. The allegation in the show cause notice as well as confirmation in the impugned order does not indicate as to what are the services under which the demand can sustain. The appellants have rendered storing and warehousing services for agricultural produce as well as petroleum products. They have rendered transportation of services for petroleum products. The department has not considered the exemption eligible for agricultural produce and has raised the demand without mentioning the category of service. It is not understood whether the demand is on storage or warehousing services or under GTA service. There is a fundamental flaw in the show cause notice as well as in the impugned order. For this reason, we hold that the demand cannot sustain and requires to be set aside. The impugned order is set aside and the appeal is allowed with consequential relief, if any.
6. The miscellaneous application filed by Revenue for change of cause titl

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M/s. Raj Kishor Constructions Versus Commissioner of GST & Central Excise Chennai South
Service Tax
2018 (12) TMI 1183 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 17-12-2018
ST/Misc. /41704/2017 and ST/639/2011 – Final Order No. 43140/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri M.A. Mudimannan, Advocate for the Appellant
Shri K. Veerabhadra Reddy, ADC (AR) for the Respondent
ORDER
Per Bench
The appellant is a proprietary concern engaged in providing site formation services which are in the nature of leveling the ground and excavation of earth with the help of excavators etc. They were registered with the service tax department. During the course of audit of accounts, it was noticed that they had not paid service tax on services rendered as sub-contractor during the period from 16.6.2005 to December 2008 under “Site Formation and Clearance Services”. It was also noticed that they h

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e appellant. Aggrieved by such order, the appellant is now before the Tribunal.
2. On behalf of the appellant, ld. counsel Shri M.A. Mudimannan submitted that the site formation services were rendered by the appellant as a sub-contractor and since the main contractor has discharged the service tax on the very same activities (contracts), the appellant is not liable to pay service tax under this category. With regard to the wrong availment of 67% abatement as per Notification No.15/2004 (1/2006), the ld. counsel fairly conceded that the activity does not fall under works contract service and the appellant on the wrong belief that site formation services are in the nature of works contract service and is eligible for abatement had availed the same. It is argued by him, in any case, that the appellant had rendered the services in respect of SEZ development activities and therefore the demand cannot sustain. It is also argued by him that the appellant had disclosed the abatement availed b

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able to clarify these if given a chance by remanding the matter to the adjudicating authority.
3. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. Countering the argument of the ld. counsel for the appellant regarding the discharge of service tax liability by the main contractor, it is submitted by the ld. AR that the appellant has not produced any proof that the main contractor has discharged the service tax. Regarding the availment of abatement, he submitted that the appellants have deliberately availed the abatement to which they are not entitled and therefore it is a clear violation of provisions of law. The contention of the appellant that they have rendered the construction of road work within the SEZ was not raised by them before the adjudicating authority and therefore such a contention cannot be accepted at this stage. In any case, the said plea has to be verified by the adjudicating authority.
4. Heard both sides.
5. The period of dispute

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M/s. Vasu Clothing Private Limited Versus The Union of India and Others
GST
2018 (12) TMI 1352 – MADHYA PRADESH HIGH COURT – [2019] 61 G S.T.R. 144 (MP), 2019 (22) G. S. T. L. 163 (M. P.)
MADHYA PRADESH HIGH COURT – HC
Dated:- 17-12-2018
Writ Petition No. 17999/2018
GST
Shri Justice S.C. Sharma And Shri Justice Virender Singh
For the Petitioner : Shri Vikram Nankani, learned Senior Counsel with Shri Raktim Gogoi, Shri Alok Barthwal, Shri Kartikeya Singh and Shri Varun Saluja, learned counsel
For the Respondents : Shri Prasanna Prasad, learned counsel
ORDER
The petitioner before this Court is a Private Limited Company incorporated under the Companies Act, 1956 having its registered office at 75, Readymade Complex, Industrial Area, Pardeshipura, Indore has filed this present petition seeking indulgence of this Court for grant of relief from payment of goods and service tax by way of exemption and on the goods and service supply to the Duty Free Shops (DFSs) at t

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Free Operator as an “importer”. The imported goods are warehoused at a bonded warehouse (customs warehouse) and the bill of entry also discloses that the goods imported are for “sale only for Duty Free Shop / Export”.
04-It has been further stated that the Duty Free Operator also takes on rent a private bonded warehouse located near the airport as well as certain shops called “Duty Free Shops” at the arrival and departure terminals of international airports in India. The goods are sold to international passengers without payment of duties and taxes. It has been further contended that the Duty Free Operator is granted special warehouse license under Section 58-A of the Customs Act, 1962 for depositing notified class of goods and such warehouse are kept locked by the proper officer and no entry of any person or removal of goods therefrom are allowed without the permission of the proper officer.
05-It has been further stated that Duty Free Operators transfers the goods from customs war

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the warehouse for home consumption (under Section 68) or for export (under Section 69) or for removal to another warehouse or otherwise provided under the Act.
07-The petitioner's contention is that the goods are sold to international passengers at the departure terminal Duty Free Shops and the operator has cleared the goods only for export under Section 69 of the Act. It has been further contended that duty free purchases made from Duty Free Shops at international airports in India are generally paid for in approved currency including foreign currency and this uniqueness brings in valuable foreign currency reserves into the country and there is a significant growth in such sale.
08-The petitioner has further stated that prior to implementation of GST legislation, the duty free operations in India were exempted from payment of Customs Duty, Countervailing Duty (CVD), Special Additional Customs Duty (SACD), Excise Duty, VAT / Sales Tax, OCTROI, etc. The petitioner's contentio

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arrival halls of international airports and to passengers going out of India at the Duty Free Shops located in the departure halls of international airport in the country.
10-It has been further stated that Central Board of Excise and Customs issued a notification on 23/05/2013 granting exemption in respect of payment of taxes subject to certain terms and conditions in respect of certain goods. It has also been brought to the notice of this Court that earlier also notification dated 19/05/1989 has been issued and there were exemptions available to specified goods falling under Chapter 85, when removed for sale from Duty Free Shops at customs airports and since the notification by Government of India was to extend the benefit on all goods, the Central Board of Excise and Customs issued a notification on 23/05/2013 and rescinded the earlier notification.
11-The petitioner has also referred to various other notifications issued from time to time by Central Board of Excise and Customs (C

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is appointed or licensed under the provisions of Sections 57 or 58 of the Customs Act, such godown or retail outlet shall be deemed to be registered as warehouse under Rule 9 of the Central Excise Rules, 2002. By the CBEC circular No.970/04/2013-CX, dated 23/05/2013 the procedure governing the movement of excisable indigenous goods to the Warehouses or retail outlets of Duty Free Shops was laid down.
13-The petitioner has further stated that in the year 2017 the Central Goods and Services Tax Act, 2017 (CGST) and the Integrated Goods and Services Tax Act, 2017 (IGST) were enacted.
The petitioner in the month of June, 2018 keeping in view the notifications issued from time to time by the Central Board of Excise and Customs contacted one of the Duty Free Operators namely “Flemingo Travel Retail Limited”, which operates Duty Free Shops at Delhi and Mumbai International Airport and requested that the petitioner being one of the premier exporters of garments in India would like to retail

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at an Indian Duty Free Shop without payment of duties and taxes. The petitioner has prayed for following relief:-
“(i)Issue a writ of Mandamus or any other appropriate Writ, Order or Direction in the nature of Mandamus, ordering and directing any supply of goods and services made by an Indian supplier to the duty free shops in India to be treated as an export without payment of CGST and IGST, since, the duty free shops at international airports in India are located beyond the customs frontier of India and any transaction that takes place in a duty free shop is said to have taken place outside India.
(ii)Issue a writ of Mandamus or any other appropriate Writ, Order or Direction in the nature of Mandamus, ordering and directing supply of goods and services made by an Indian supplier to the duty free shops in India to be without payment of CGST and IGST, since, transaction undertaken at duty free shop is treated as an export of goods or services.
(iii)Issue a writ of Mandamus or any

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at sale from Duty Free Shops in the past has helped to maximize non-aeronautical revenues at airports, which ultimately bring down aeronautical tariffs for the passengers and ultimately the Government of India is the biggest gainer as it has and will receive significantly large funds from the supplies made from Duty Free Shops at international airport in India as revenue share. The revenue so generated can be utilized by the Government of India to provide air connectivity to far flung corners of the country where private investment may not be forthcoming due to long gestation periods.
18-It has been stated that on account of enactment of GST, the benefits of earlier circulars / notifications is not available and therefore, an appropriate writ, order or direction be issued granting exemption from payment of CGST / IGST / SGST. It has also been stated that various global brands from all over the world can be sold in Indian Duty Free Shops without payment of any taxes and duties and the

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arned counsel for the petitioner has placed reliance upon judgments delivered in the case of reported in , reported in , reported in , passed by apex Court in Special Leave to Appeal (Civil) No.2436/2010 decided on 12/03/2010, passed by Bombay High Court in Writ Petition No.2578/2009 decided on 17/03/2010, reported in , reported in and passed by Bombay High Court in Writ Petition No.8034/2018 on 28/11/2018.
21-A detailed and exhaustive reply has been filed on behalf of the revenue and the respondents have vehemently opposed the reliefs prayed by the petitioner.
The contention of learned counsel for the respondent is that present petition has been filed seeking issuance of a writ to enact a subordinate legislation of a particular nature and a prayer has been made for issuance of a writ, order or direction directing the supply of goods and services to Duty Free Shops in India to be treated as an export without payment of CGST and IGST.
22-It has been argued that keeping in view the ca

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claim of the petitioner deserve to be dismissed.
24-The respondents have also stated that a similar issue was examined by the Authority on Advance Ruling and the same was analyzed in back drop of the judgment passed by the Hon'ble Supreme Court in the case of (Supra) and the respondents have quoted the relevant portion of the Rule and their contention is that by no stretch of imagination the petitioner can be exempted from payment of CGST / IGST / SGST.
25-The respondents have argued before this Court that so far as point of sale is concerned the case goods are being manufactured at Indore, price of the goods is being received at Indore and they are being dispatched to Duty Free Shops, which is certainly within the territory of India and the person, who is purchasing the goods from the Duty Free Shop is the exporter or the person, who has purchased the goods, meaning thereby, the Duty Free Shop is an exporter and not the petitioner.
26-It has also been argued that exemptions ca

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h exemption as prayed by the petitioner.
28-It has been further contended by the respondents that the judgment of the Hon'ble Supreme Court in the case of (Civil Appeal No.2560/2010) reported in was delivered under the erstwhile VAT regime wherein the authority of State to levy VAT on sale of goods taking place at DFS located at international airports was challenged. Sales Tax / VAT Acts of various States have been subsequently subsumed under the GST Law. Also, the present petition does not relate to levy of VAT on sale of goods. Instead, it challenges the discontinuation of exemption that existed under erstwhile Central Excise regime wherein the supply of domestically manufactured goods to DFS was exempted from the payment of Central Excise Duty vide notification No.19/2013-CE (Non-Tariff). However, exemption from payment of GST for such supplies has not been provided under the current GST regime.
29-Learned counsel for the respondent submits that according to sub-section (5) of

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ply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'Export of Goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a Bond / Letter or Undertaking (LUT) under Rule 96-A of the CST Rules, 2017. Also, he cannot claim refund of unutilized Input Tax Credit (ITC) under Section 54 of the CGST Act, 2017.
30-It has been argued by learned counsel that in alternative and without prejudice to whatever has been stated above, under the GST law, the power to grant exemption to such supplies or to clarify such issues is vested with the GST Council (a constitutional body constituted under Article 279-A of the Constitution of India) which comprises of the Union Finance Minister and the Finance Minister of all the States and it is not within the domain of this Court to issue such exemption notifications.
31-The respondents have placed reliance upon the judgments delivered in the c

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al excise duty (entry 84 of Union List), and service tax (entry 97 of Union List). Although entry 92C was inserted in the Union List of the Seventh Schedule of the Constitution by the Constitution (Eighty-eighth Amendment) Act, 2003 for levy of taxes on services, it was not notified. So tax on services were continued to be levied under the residual entry, i.e. entry 97, of the Union List till GST came into force. The Union also levied tax called Central Sales Tax (CST) on inter-State sale and purchase of goods and on inter-State consignments of goods by virtue of entry 92A and 92B respectively. CST however is assigned to the State of origin, as per Central Sales Tax Act, 1956 made under Article 269 of the Constitution.
35-On the State side, the most important sources of tax revenue were tax on sale and purchase (entry 54 of the State List), excise duty on alcoholic liquors, opium and narcotics (entry 51 of the State List), Taxes on luxuries, entertainments, amusements, betting and gam

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well as the States and for the purpose of introducing goods and services tax, amendment of the Constitution conferring simultaneous power on Parliament as well as the State Legislatures to make laws for levying goods and services tax on every transaction of supply of goods or services was necessary.
37-The Constitution (115th Amendment) Bill, 2011, in relation to the introduction of GST, was introduced in the Lok Sabha on 11/03/2011. The Bill was referred to the Standing Committee on Finance on 29/03/2011. The Standing Committee submitted its report on the Bill in August, 2013. However, the Bill, which was Lok Sabha. pending in the Lok Sabha, lapsed with the dissolution of the 15th
38-The Constitution (122nd Amendment) Bill, 2014 was introduced in the 16th Lok Sabha on 19th December, 2014. The Constitution Amendment Bill was passed by the Lok Sabha in May, 2015. The Bill was referred to the Select Committee of Rajya Sabha on 12/05/2015. The Select Committee submitted its Report on t

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the course of inter-State trade or commerce which shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council. It also provides that Parliament may, by law, formulate the principles for determining the place of supply, and when a supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.
d)Article 270 has been amended to provide for distribution of goods and services tax collected by the Union between the Union and the States.
e)Article 271 has been amended which restricts power of the Parliament to levy surcharge under GST. In effect, surcharge cannot be imposed on goods and services which are subject to tax under Article 246-A.
f)Article 279-A has been inserted to provide for the constitution and mandate of GST Council.
g)Article 366 has been amended to excl

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at these goods shall not be subject to the levy of Goods and Services Tax till a date notified on the recommendation of the Goods and Services Tax Council.
40-After the constitutional amendment, the Central Government introduced The Central Goods and Services Tax Act, 2017, The Integrated Goods and Services Tax Act, 2017, The Union Territory Goods and Services Tax, 2017, The Goods and Services Tax (Compensation to States) Act, 2017 in Lok Sabha on 27/03/2017. After a long discussion in Parliament, the Lok Sabha has passed these bills on 29/03/2017, while Rajya Sabha passed them on 06/04/2017. The President of India assented them on 12/04/2017 and the law enacted are known as CGST Act, 2017 (12 of 2017), the Integrated GST Act, 2017 (13 of 2017), the Union Territory GST Act, 2017 (14 of 2017) and the GST (Compensation to States) Act, 2017 (15 of 2017).
41-The petitioner before this Court has made a prayer for directing the respondents to treat the goods supplied to the petitioner as a

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to be implied. One can only look fairly at the language used (Principles of Statutory Interpretation by Justice G.P. Singh, Tenth Edition, General Principles of Strict Construction).
44-The Hon'ble Supreme Court has enunciated in similar words the principle of interpretation of taxing laws as under:-
“Bhagwati, J. stated the principles as follows : “In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter” [A. V. Fernandez Vs. State of Kerala, AIR 1957 SC 657, p. 661].
Shah, J., has formulated the princi

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h Tax, Gujarat Vs. Ellis Bridge Gymkhana, AIR 1998 SC 120, pp. 125, 126].
The statute governing the field does not provide any such exemption as prayed by the petitioner.
45-The relevant statutory provisions, which are necessary for adjudicating the present controversy reads as under:-
“Article 269(1) and Article 286(1) of the Constitution of India:-
(i)Article 269(1) before amendment on 08/09/2016 : Taxes on the sale or purchase of goods and taxes on the consignment of goods shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2).
Explanation.-For the purposes of this clause,-
(a)the expression “taxes on the sale or purchase of goods” shall mean taxes on sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce;
(b)the expression “taxes on the

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cted by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.
(2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India.
(3) Notwithstanding anything contained in sub-section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export.
(4) The provisions of sub-section (3) shall not apply to any sale or purchase of goods unless the dealer selling the goods furnishes to the prescribed authority

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oms Act, 1962 (52 of 1962).
Sections 2(4), 2(5), 2(23) and 16(1) of the Integrated Goods and Services Tax Act, 2017:-
2(4).”customs frontiers of India” means the limits of a customs area as defined in section 2 of the Customs Act, 1962 (52 of 1962);
2(5).”export of goods” with its grammatical variations and cognate expressions, means taking goods out of India to a place outside India;
2(23).”zero-rated supply” shall have the meaning assigned to it in section 16;
16(1).”zero rated supply” means any of the following supplies of goods or services or both, namely:
(a)export of goods or services or both; or
(b)supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit.
Section 2(56) of the Central Goods and Services Tax Act, 2017:-
2(56).”India” means the territory of India as referred to in article 1 of the Constitution, its territorial waters, seabed and sub-soil underlying such waters, continental shelf, exclusive economic z

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over, such waters.
(2)The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline.
(3)Notwithstanding anything contained in sub-section (2), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the territorial waters.”
46-Undisputedly, the petitioner is supplying goods to Duty Free Shops and as per Section 2(5) of IGST Act, 2017 export of goods takes place only when goods are taken out to a place outside India. India is defined under Section 2(27) of Customs Act,1962 as “India includes territorial waters of India”. Similarly under the CGST Act, 2017 under Section 2(56) “India” means the territory of India including its territorial waters and the air-space above its territory and territorial waters and therefore, the goods can be said to be exported o

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ritime Zones Act, 1976, and the air-space above its territory and territorial waters and therefore, the export of goods can be treated and it is complete only when the goods crosses air space limits or its territory or territorial waters of India.
49-Undisputedly, in light of the definition as contained under the IGST Act, 2017 a Duty Free Shop situated at the airport cannot be treated as territory out of India. The petitioner is not exporting the goods out of India. He is selling to a supplier, who is within India and the point of sale is also at Indore as the petitioner is receiving price of goods at Indore.
50-The petitioner is a manufacturer and exporter of garments in India and specializes in manufacturing of high quality products for children with customer base in Middle East, South Africa and USA. He intends to supply goods to Duty Free Shops (DFSs) situated in the duty free area at international airports. The petitioner is aggrieved by the fact that the benefit available to h

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ment to grant or to continue to grant a concession except to enjoy benefits of concession during the period of its grant. The apex Court in paragraph No.10 and 11 of the aforesaid judgment has held as under:-
“10. The question referred to this bench, as noticed, is whether the State would be estopped from altering/modifying the benefit of concessional tariff by means of the impugned G.O No. 861 dated 30.4.1982 on the principle of promissory estoppel. In fact, insofar as the caustic soda unit of M/s. Kothari Industrial Corporation Ltd., subsequently taken over by Southern Petro Chemical Industrial Corporation Ltd., is concerned, strictly speaking, the above question would not even arise inasmuch as at the time when the unit was set up and had started commercial production, the Act had not yet come into force. The promise, if any, was made by the letter dated 29.6.1976 on the terms noticed above, namely, the tariff payable by the industry was to be at a rate less than what was applicab

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rs cannot raise plea of estoppel against the Notification dated 7.8.2000 reducing hill development rebate to 0% as there can be no estoppel against the statute.”
In light of the aforesaid judgment, the concessions / exemptions granted earlier during the pre-GST regime cannot be claimed as a matter of right.
53-In addition, the petitioner in paragraph 7(i) of the petition has prayed this Court to issue a writ of mandamus ordering and directing that any supply of goods and services made by and Indian supplier to the DFSs in India to be treated as export since the DFS are located beyond the customs frontier of India and any transaction that takes place in a DFS is said to have taken place outside India. Further, in para 7(ii) of the petitioner it has been prayed to allow supply of goods and services by an Indian supplier to the DFS without payment of GST as the transaction undertaken at DFS is treated as an export of goods or services.
54-As per Section 2(5) of the Integrated Goods an

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s the supply to a DFS by an Indian supplier is not to 'a place outside India', therefore, such supplies do not qualify as 'export of goods' under GST. Consequently, such supplies cannot be made without payment of duty by furnishing a bond/letter of undertaking (LUT) under rule 96-A of the CGST Rules, 2017. Also, he cannot claim refund of unutilized input tax credit (ITC) under Section 54 of the CGST Act, 2017.
55-In light of the above, the petitioner is liable to pay GST on supply of indigenous goods to DFS. Whether, transaction under taken at a DFS (i.e. sale of goods to outgoing passengers) are to be treated as export of goods or services does not form part of the instant writ petition.
56-The judgment relied upon by the learned counsel in the case of (Supra) is not at all applicable in the peculiar facts and circumstances of the case. The Duty Free Shop is situated within India and it is not at all situated outside of India / beyond air-space or territorial waters

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226 from the purview of the Section. Even then general principles of respondent judicata are applicable to such proceedings also though S. 11 as such is not applicable. Though a decision to inter parties may not be respondent judicata even under general principles which do not take in the rigour of S. 11, the law laid down by the High Court is binding on it. Decisions may be on questions of facts, questions of law or on mixed question of fact and law. If a decision on facts is rendered by applying the relevant provisions of law to the facts the binding nature of the decision on that point will come to an end when the law is changed subsequently. That is because the law as then stood alone was interpreted in relation to the facts. When the law is changed the cause of action itself is changed. Though the former decision which has become final may continue to bind the parties thereto, when the law is changed and thus the cause of action became different, the new law will have to be applie

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esaid judgment, as no such exemption is available to the petitioner in light of the GST Act, 2017, the judgment relied upon by the petitioner is of no help and the petitioner cannot escape from the liability of payment of GST.
59-Reliance has also been placed in the case of reported in . Paragraph No.21 of the aforesaid judgment reads as under:-
“21. For resolving such inter se conflicts, one other test may also be applied through the persuasive force of such a test is but one of the factors which combine to give a fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. Section 14A and Chapter IIIA having been enacted with effect from December 1, 1975 are later enactments in reference to Section 19 of the Slum Clearance Act which, in its present form, was placed on the statute book with effect from February 28, 1965 and in reference to Section 39 of the same Act, which came into force in 1956 when the Act itself was passed. T

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cal crystalliser. The only argument on behalf a Narne Tulaman Manufacturers Pvt. Ltd. was that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridges were not 'good' within the meaning of the Act was not raised and no evidence in that behalf was brought on record. We cannot assume that weighbridges sand on the same footing as mono vertical crystallisers in that regard and told that because weighbridges were held to be exigible to excise duty so must mono vertical crystalliser. A decision cannot be relied upon in support of a proposition that it did not decide.”
In light of the aforesaid judgment, the issue involved in the present case has not been decided in the case of M/s. Hotel Ashoka (Supra) as it was not a case of supplier supplying goods to a Duty Free Operator.
61-Similarly the judgment delivered by the Bombay High Court in the case of (Supra) does not deal with the subject i

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M/s. Prasad Corporation Limited Versus Commissioner of GST & Central Excise Chennai South
Service Tax
2019 (1) TMI 506 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 17-12-2018
Appeal Nos. ST/546 to 548/2011 – Final Order Nos. 43119-43121/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Ms. Krithika Jaganathan, Advocate for the Appellant
Shri A. Cletus, Addl. Commissioner (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellants are engaged in post-production services and provide specialized data processing services to customers according to their specifications. They are engaged in rendering services like creation of special effects, improving the quality of picture or image and convert the digital image file to film etc. For carrying out such work, the appellants received inputs through digital data or digital image files from their respective foreign customers in back-up t

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n services to customers as per their specifications. In other words, the quality of the image or picture is digitally enhanced or restored for archival purposes. Sometimes, images are converted into digital image files for ease of storage or greater clarity.
c. Reverse Telecine:- The appellant also provides services of 'Reverse Telecine' whereby digital image files are converted to 35mm film by processing digital data received on various input media as stated above to increase sharpness as the images are blown up from a low resolution digital format to high resolution film format.”
3. The above services are provided to domestic as well as customers located outside India and the appellant has discharged service tax by classifying them under photography services for the services rendered to domestic customers. For transactions with foreign customers, no service tax was paid as these amounts to export of services. The department has demanded service tax by classifying the activity as

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under:-
“4. Heard both sides and have gone through the facts. It is clear that the services performed by the appellant definitely do not involve his recording of any programme, event or function. In fact, this aspect has been considered even by the adjudicating authority in para 5.3 of the order. The activities of services of Computer Graphics, Digital Restoration, and Reverse Telecine all involving activities on old feature films is definitely a post-production film activity inter alia, rendered for service recipients abroad as per their requirements. This being so, we are not able to fathom how the adjudicating authority, having stated that the appellants are not engaged in the recording of any programme etc. has concluded that services or restoration, giving special effects etc. on the old films would be a “Video Tape Production”. Ostensibly, the department and the adjudicating authority have been influenced by the second limb of the definition of “Video Tape Production” in Section

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M/s Scott Edil Pharmacia Limited Versus Assistant Commissioner, State Taxes and Excise and others
GST
2019 (1) TMI 677 – HIMACHAL PRADESH HIGH COURT – 2019 (21) G. S. T. L. 468 (H. P.)
HIMACHAL PRADESH HIGH COURT – HC
Dated:- 17-12-2018
CWP No. : 2970 of 2018
GST
Mr. Justice Surya Kant, Chief Justice And Mr. Justice Ajay Mohan Goel, Judge
For the Petitioner : M/s Vishal Mohan & Praveen Sharma, Advocates.
For the Respondents : Mr. Ajay Vaidya, Senior Additional Advocate General.
ORDER
SURYA KANT, CHIEF JUSTICE (ORAL):
The petitioner assails the Order dated 17th September, 2018 (issued on 9th October, 2018), passed by the Assistant Commissioner, State Taxes and Excise, Baddi, Circle1, whereby the petitioner Company

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thority, who has passed the impugned order, is also questioned.
3. On the other hand, learned Senior Additional Advocate General, submits that the Assistant Commissioner, State Taxes and Excise, is fully authorized to pass the subject order. He refers to various proceedings to urge that the petitioner's representatives have been adequately heard and thus, there is no violation of the principles of natural justice and fair play. Nonetheless, he admits that no Appellate Forum has been notified so far.
4. In view of the fact that the Statute contemplates the remedy of appeal, we are of the view that the aggrieved party cannot be left remedy less merely because the State Government has not notified the Appellate Forum. The Writ Petition is ac

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Parry Sugars Refinery India Pvt Ltd Versus CCT, Visakhapatnam – GST
Service Tax
2019 (2) TMI 479 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 17-12-2018
Appeal No. ST/30754/2018 – A/31605/2018
Service Tax
Mr. P. Venkata Subba Rao, Member (Technical)
Ms. Swetha, Advocate for the Appellant.
Shri Arun Kumar, Dy. Commissioner/AR for the Respondent.
ORDER
Per: P.V. Subba Rao.
1. This appeal has been filed against Order-in-Appeal No. VIZ-EXCUS-002- APP-138-17-18 dated 28.02.2018.
2. The facts of the case in brief are that the appellant herein imports of raw sugar from Brazil and after reprocessing exports it to other countries. They operate as an SEZ unit in Kakinada. The appellant filed a refund claim in Notification No. 12/2013-ST before the Asst. Commissioner of Service Tax, Kakinada for refund of the service tax paid on input services. A show cause notice was issued on 09.06.2016 calling upon them to explain as to why refund claim of Rs. 3,91,64

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fication No. 12/2013-ST dated 01.07.2013 Para 3 (iii) (e) of which stipulates the claim for refund shall be filed within one year from the end of the month in which actual payment of service tax was made or such extended period as the Asst. Commissioner of Central Excise or Dy. Commissioner of Central Excise, as the case may be, shall permit. It is her assertion that the small delay in filing the refund claim with respect to these amounts were condonable by the Asst./Dy. Commissioner but the same has been unfairly rejected. She relies on the case law of HBL Power Systems Ltd [2018 (10) TMI 168 (CESTAT-HYD)] in which such delay was condoned. With respect to the rejection of Rs. 20,80,749/- on the ground that the services in question were not approved by the Development Commissioner, she submits that rejection of refund on this ground was beyond the scope of the show cause notice which was issued. The show cause notice nowhere sought to reject this amount and therefore such rejection nee

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estion of rejection of refund of Rs. 3,91,649/-, he draws the attention of the bench to the Order-in-Original in which the Asst. Commissioner had recorded that he had not found sufficient reason to not condone the delay.
5. I have considered the arguments on both sides and perused the records. The bulk of the demand pertains to rejection of invoices meant for waste disposal services availed by the appellant on the ground that these were not approved by the Development Commissioner. No show cause notice was issued to the appellant on this ground. The show cause notice which was issued was only covering another part of the refund claim. In view of the above, I find the principles of natural justice have been violated and therefore the matter needs to be remitted to the original authority with direction to issue a show cause notice with respect to all the amounts of refund which he seeks to reject and after following due process of law and following principles of natural justice, issue a

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Goa Goods and Services Tax (Removal of Difficulties) Order, 2018
Order No. 01/2018-State Tax Dated:- 17-12-2018 Goa SGST
GST – States
Goa SGST
Goa SGST
GOVERNMENT OF GOA
Department of Finance
Revenue & Control Division
Order
38/1/2017-Fin(R&C)/1973
01/2018-State Tax
Whereas, sub-section (1) of section 44 of the Goa Goods and Services Tax Act, 2017 (Goa Act 4 of 2017) (hereafter in this Order referred to as the said Act) provides that every registered person, other than an Input Service Distributor, a person paying tax under section 51 or section 52, a casual taxable person and a non-resident taxable person, shall furnish an annual return for every financial year electronically in such form and manner as may be prescribe

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by section 172 of the Goa Goods and Services Tax Act, 2017, the Government of Goa, on recommendations of the Council, hereby makes the following Order, to remove the difficulties, namely:-
1. Short title.- This order may be called the Goa Goods and Services Tax (Removal of Difficulties) Order, 2018.
2. In section 44 of the Goa Goods and Services Tax Act, 2017, after sub-section (2), the following Explanation shall be inserted, namely:-
“Explanation.- For the purposes of this section, it is hereby declared that the annual return for the period from the 1st July, 2017 to the 31st March, 2018 shall be furnished on or before the 31st March, 2019.”.
By order and in the name of the Governor of Goa.
Sushama D. Kamat, Under Secretary,
Finance

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Seeks to provide taxpayers whose registration has been cancelled on or before the 30th September, 2018 time to furnish final return in FORM GSTR-10 till 31st December, 2018.
FTX.56/2017/Pt-I/160 Dated:- 17-12-2018 Assam SGST
GST – States
Assam SGST
Assam SGST
GOVERNMENT OF ASSAM
ORDERS BY THE GOVERNOR
FINANCE (TAXATION) DEPARTMENT
NOTIFICATION
The 17th December, 2018
No. FTX.56/2017/Pt-I/160.- In exercise of the powers conferred by section 148 the Assam Goods and Services Tax

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Interest on late filing of GST Returns
Query (Issue) Started By: – Ravikumar Doddi Dated:- 15-12-2018 Last Reply Date:- 15-12-2018 Goods and Services Tax – GST
Got 1 Reply
GST
Dear sir,
Kindly clarify that interest on late filing of returns is it on gross payable or net payable ( after deducting ITC), Section 50 says liable to pay tax. Any how if there is no ITC it is gross,when it is ITC failed to file before prescribed date shall we calculate on gross or net. Rate of interest how

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Slump Sale of BP and PM Business to Related Parties Considered Service Supply Under GST; Input Tax Credit Addressed.
Case-Laws
GST
Supply of service or not – direct transfer of BP business to

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