GST Transitional Credit Limitation Period Upheld; Does Not Violate Constitutional Rights Under Article 14 or 19(1)(g.
Case-Laws
GST
Transitional Credit – validity of period of limitation unde
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Appellant's Activities Classified as Composite Supply: Intermediary Services as Principal Service with Accounting Services Included.
Case-Laws
GST
Classification of supply – The entire gamut
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Electro Ink with consumables is a mixed and continuous supply under GST Act sections 2(74) and 2(32).
Case-Laws
GST
Classification of suppy – The supply of Electro Ink supplied along with con
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GST RATE CUT BENEFIT NOT PASSED IS A ANTI-PROFITEERING STANCE
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 30-10-2018
The National Anti-profiteering Authority (NAA) is one of its recent order dated 07.09.2018 in Pawan Sharma C/o Kalptaru Departmental & General Stores and Director General of Anti-profiteering v. Sharma Trading Company [(2018) 9 TMI 625 (NAA)] has upheld the charge of anti-profiteering where the supplier did not pass on the benefit of GST rate cut to the customer. It also ordered that a monetary penalty of ₹ 10,000 or actual amount of tax not reduced whichever is higher, be imposed.
In the instant case, there was a complaint that the benefit of reduction in the rate of tax has not been
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nded that profit was made by HUL and not Sharma Trading.
The Authority noted that “It is clear from the facts of the present case that the Respondent was fully aware of the Notification dated 14.11.2017 whereby the rate of GST was reduced on the above product from 28% to 18%. It was also fully aware of the provisions of Section 171 of the above Act whereby it was bound to pass on the benefit of reduction in the rate of tax by the commensurate reduction in the price of the above product.
The contention that no profiteering was involved on the part of respondent on the contention in the present case as the Applicant had returned the product on 15.12.2017 which was sold to him on 15.11.2017 and a credit note had been issued in his favour by
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availed by him.
However, the Respondent has deliberately acted in defiance of the above law and hence he is guilty of the conduct which is contumacious and dishonest. It has further acted in conscious disregard of the obligation which was cast upon him by the law, by issuing incorrect invoices in which the base price was deliberately enhanced exactly equal to the amount of reduced tax and thus it had denied the benefit of reduction in the rate of tax granted.
NAA order dictate
* Reduce sale price with immediate effect
* Pass the rate deduction benefit to customers
* Pay penalty of ₹ 10000 or tax involved, whichever is higher
While confirming the imposition of the penalty, the NAA directed the respondent to reduce the sale pr
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Central Goods and Services Tax (Thirteenth Amendment) Rules, 2018
60/2018 Dated:- 30-10-2018 Central GST (CGST)
GST
CGST
CGST
Government of India
Ministry of Finance
(Department of Revenue)
Central Board of Indirect Taxes and Customs
Notification No. 60/2018 – Central Tax
New Delhi, the 30th October, 2018
G.S.R. 1075 (E). – In exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government hereby makes the following rules further to amend the Central Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Central Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be inserted, namely:-
“83A. Examination of Goods and Services Tax Practiti
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ecified by NACIN on the official websites of the Board, NACIN and common portal.
(5) Examination centers.- The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration.
(6) Period for passing the examination and number of attempts allowed.-
(i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule.
(ii) A person required to pass the examination may avail
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cure fifty per cent. of the total marks.
(9) Guidelines for the candidates.- (i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: –
(a) obtaining support for his candidature by any means;
(b) impersonating;
(c) submitting fabricated documents;
(d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination;
(e) found in possession of any paper, book, note or any other material, the
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to the applicants by e-mail and/or by post.
(12) Handling representations.- A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal.
(13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation :- For the purposes of this sub-rule, the expressions –
(a) “jurisdictional Commissioner” means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST PCT-1 has been selected as Centre, or the Commissioner of
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Rules.”.
3. In the said rules, in rule 109A,
(a) in sub-rule (1), in clause (b), for the words and brackets “the Additional Commissioner (Appeals)”, the following words and brackets shall be substituted, namely:-
“any officer not below the rank of Joint Commissioner (Appeals)”;
(b) in sub-rule (2), in clause (b), for the words and brackets “the Additional Commissioner (Appeals)”, the following words and brackets shall be substituted, namely:-
“any officer not below the rank of Joint Commissioner (Appeals)”.
4. In the said rules, after rule 142, the following rule shall be inserted, namely:-
“142A. Procedure for recovery of dues under existing laws. – (1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be upload
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death of sole proprietor” and ending with the words “surrender of registration falls”, the following paragraphs shall be substituted, namely:-
“In case of death of sole proprietor, application shall be made by the legal heir / successor before the concerned tax authorities. The new entity in which the applicant proposes to amalgamate itself shall register with the tax authority before submission of the application for cancellation. This application shall be made only after the new entity is registered.
Before applying for cancellation, please file your tax return due for the tax period in which the effective date of surrender of registration falls or 1[furnish an undertaking to the effect] that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration).”.
6. In the said rules, in FORM GSTR-4, in the Instructions, for Sl. No. 10, the following shall be substituted, namely:-
“10.
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ntral Tax/State Tax/UT Tax/Integrated Tax/ CESS/ amount under existing law/Total)
Tax
Interest
Penalty
Fee
Others
Total
Status (Stayed / Un-stayed)
15
16
17
18
19
20
21
*[Debit (DR) (Payable)] / [Credit (CR) (Paid)] / Reduction (RD)/ Refund adjusted (RF)]
Note –
1. All liabilities accruing, other than return related liabilities, will be recorded in this ledger. Complete description of the transaction shall be recorded accordingly.
2. All payments made out of cash or credit ledger against the liabilities would be recorded accordingly.
3. Reduction or enhancement in the amount payable due to decision of appeal, rectification, revision, review etc. will be reflected here.
4. Negative balance can occur for a single Demand ID also if appeal is allowed/ partly allowed. Overall closing balance may still be positive.
5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the
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ws
Reference No.
Date –
Part A – Basic details
Sr. No.
Description
Particulars
(1)
(2)
(3)
1.
GSTIN
2.
Legal name
<< Auto >>
3.
Trade name, if any
<< Auto >>
4.
Government Authority who passed the order creating the demand
__ State /UT
__ Centre
5.
Old Registration No.
6.
Jurisdiction under earlier law
7.
Act under which demand has been created
8.
Period for which demand has been created
From – mm, yy To mm, yy
9.
Order No. (original)
10.
Order date (original)
11.
Latest order no.
12.
Latest order date
13.
Date of service of the order (optional)
14.
Name of the officer who has passed the order (Optional)
15.
Designation of the officer who has passed the order
16.
Whether demand is stayed
__Yes __No
17.
Date of stay order
18.
Period of stay
From – to –
Part B – Demand details
19.
Details of demand created
(Amount in Rs. in all Tables)
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State/ UT Act
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ent heads of the liabilities under existing laws should be synchronized with the heads defined under Central or State tax.
4. Latest order number means the last order passed by the relevant authority for the particular demand.
5. Copy of the order vide which demand has been created can be attached. Documents in support of tax payment can also be uploaded, if available.”.
10. In the said rules, after FORM GST DRC-08, the following form shall be inserted, namely:-
“FORM GST DRC-08A
[See rule 142A(2)]
Amendment/Modification of summary of the order creating demand under
existing laws
Reference no.
Date –
Part A – Basic details
Sr. No.
Description
Particulars
(1)
(2)
(3)
1.
GSTIN
2.
Legal name
<< Auto >>
3.
Trade name, if any
<< Auto >>
4.
Reference no. vide which demand uploaded in FORM GST DRC-07A
5.
Date of FORM GST DRC-07A vide which demand uploaded
6.
Government Authority who passed the order creating the demand
__State UT __ Centre
<< Auto >>
7.
Old R
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tral Acts
State / UT Acts
CST Act
23.
Updation of demand
Act
Type of updation
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
8
1.
Quashing of demand (Complete closure of demand)
2.
Amount of reduction, if any
3.
Total reduction (1+2)
24.
(22-23)
Balance amount of demand required to be recovered under the Act
<< Auto-populated >>
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State / UT Acts
CST Act
Signature
Name
Designation
Jurisdiction
To
_______________ (GSTIN/ID)
Name
_______________ (Address )
Copy to –
Note –
1. Reduction includes payment made under existing laws. If the demand of tax is to be increased then a fresh demand may be created under FORM GST DRC-07A.
2. Copy of the order vide which demand has been modified /rectified / revised/ updated can be uploaded. Payment document can also be attached.
3. Amount recovered under the Act including adjustment made of refund claim will be automatic
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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
97/GST-2 Dated:- 30-10-2018 Haryana SGST
GST – States
Haryana SGST
Haryana SGST
HARYANA GOVERNMENT
EXCISE AND TAXATION DEPARTMENT
Notification
The 30th October, 2018
No.97/GST-2.- In exercise of the powers conferred by section 148 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), read with secti
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Shri Narayan Prasad Gour Versus CGST, CE & ST, Bhopal
Service Tax
2018 (11) TMI 33 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 30-10-2018
Service Tax Appeal No. 52638- 52639 of 2015 – FINAL ORDER No. 53202-53203/2018
Service Tax
Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial)
Ms. Rinki Arora, Advocate for the Appellants
Shri Sanjay Jain, AR for the Respondent
ORDER
Per C L Mahar:
The appellants are engaged in providing taxable services under the category of “Goods Transport Agency Services” to M/s. Western Coal Field Ltd. during the period January 2009 to March 2011. Show Cause Notice dated 05.02.2010, for the period January 2009 to March, 2009, Show Cause Notice dated 27.09.2010 for the period April 2009 to March 2010 and Show Cause Notice dated 04.10.2011 for the period April, 2010 to March 2011 were issued on the ground that the appellants were doing loading, transport and unloading of coal from mining under the cate
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to EDC Siding via bye-pass road including unloading. (Lead 25.60 KMs
35,000 MT each
Rs.95.00 MT
Rs.33,25,000/-
12 (Twelve months)
Clause No. 28.
Escalation if applicable will be payable as per the tender document as the contract period is for 12 (Twelve) months as per clause No. 37.00 of Special Terms and Conditions of Tender document for price variation clause.
Contract No.WCL/Pench/CME (OPR)/89/2009-10 dated 23.3.2010
Description of work
Quantity
Rate
Value
Period
Loading of coal into tippers by Pay Loader and Transportation of coal by Tippers from coal stockyard of Vishnupuri UG Mine No. II to EDC Siding including unloading. (Lead 13.90 KMs)
27,000 MT each
Rs.64.00 MT
Rs.17,28,000/-
12 (Twelve months)
Clause No. 31.
The rates are based on ruling price of diesel as on 1.03.2010 i.e. Rs. 39.87 per litre. Escalation if applicable will be paid as per clause No. 37 of Special Terms and Conditions of Tender document for price variation clause.
3. It can be seen from
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facie, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected as follows:
(a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description;
(b) composite service consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable;
(c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merit consideration.]
4. It can be seen from a plain reading of 65A (2)(b) that the classification in the case of combined service is to be decided by analyzing the fact as to which service gives essential character to the service being performed. As can
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M/s Diamond Metal Versus State of U.P. And 2 Others
GST
2018 (11) TMI 56 – ALLAHABAD HIGH COURT – 2019 (21) G. S. T. L. 305 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 30-10-2018
Writ Tax No. – 1406 of 2018
GST
Pankaj Mithal And Ashok Kumar JJ.
For the Petitioner : Aditya Pandey
For the Respondent : C.S.C.
ORDER
Heard Sri Aditya Pandey, learned counsel for the petitioner and learned Standing Counsel on behalf of the respondents.
The Aluminium scrap of the petitioner transported from Kanpur to Jaunpur has been intercepted and detained under Section 129(1) of the U.P. GST Act, only for the reason that the vehicle number do not tally with the vehicle number mentioned on the E-way bill. Petitioner is a registered dealer
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M/s. ARMOUR STEEL BUILDINGS INDIA PVT LTD. Versus THE ASSISTANT STATE TAX OFFICER (INTELLIGENCY OFFICE), THRISSUR AND THE INTELLIGENCE INSPECTOR SQUAD NO. I, STATE GOODS AND SERVICE TAX DEPARTMENT, THRISSUR
GST
2018 (11) TMI 143 – KERALA HIGH COURT – 2019 (20) G. S. T. L. 196 (Ker.)
KERALA HIGH COURT – HC
Dated:- 30-10-2018
WP (C). No. 35214 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : SMT. S. K. DEVI AND SRI. SANTHOSH P. ABRAHAM
For The Respondent : GP DR. THUSHARA JAMES
JUDGMENT
The petitioner, an assessee under the GST Act in Tamil Nadu, sent goods across to the State. The Assistant State Tax Officer intercepted the goods and detained them. After the initial procedural formalities the petit
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. The petitioner-Company is a dealer with its registration in Tamil Nadu. When it wanted to comply with the statutory demand and get the goods released, the respondent authorities insisted that the petitioner should have a temporary registration, remit the amounts using that registration, and get the goods released. The petitioner is disinclined to follow that procedure. In the alternative, the authorities wanted the driver of the vehicle to remit the amounts in his name and have the goods released. For this alternative, the petitioner's counsel cites practical difficulties as an answer.
3. Then, the Government pleader took instructions from the authorities, and informed the Court that the petitioner's representative can approach t
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The Gujarat Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
60/2018-State Tax Dated:- 30-10-2018 Gujarat SGST
GST – States
Gujarat SGST
Gujarat SGST
NOTIFICATION
FINANCE DEPARTMENT.
Sachivalaya, Gandhinagar.
Dated the 30th October, 2018.
Notification No. 60/2018-State Tax
No. (GHN- 110)/GSTR-2018(34)TH:-In exercise of the powers conferred by section 164 of the Gujarat Goods and Services Tax Act, 2017 (Guj.25 of 2017), the Government of Gujarat hereby makes the following rules further to amend the Gujarat Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Gujarat Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Gujarat Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be inserted, namely:-
“83A. Examination of Goods and Services Tax Practitioners
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ied by NACIN on the official websites of the Board, NACIN and common portal.
(5) Examination centers.-The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration.
(6) Period for passing the examination and number of attempts allowed.-
(i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule.
(ii) A person required to pass the examination may avail
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ecure fifty per cent. of the total marks.
(9) Guidelines for the candidates.-
(i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: –
(a) obtaining support for his candidature by any means;
(b) impersonating;
(c) submitting fabricated documents;
(d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination;
(e) found in possession of any paper, book, note or any other material,
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d to the applicants by e-mail and/or by post.
(12) Handling representations.-A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established byNACIN on the official websites of the Board, NACIN and common portal.
(13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation :- For the purposes of this sub-rule, the expressions –
(a) “jurisdictional Commissioner” means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST PCT-1 has been selected as Centre, or the Commissioner o
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ations, Circulars and orders issued from time to time under the said Acts and Rules.”.
3. In the said rules, after rule 142, the following rule shall be inserted, namely:-
“142A. Procedure for recovery of dues under existing laws. –
(1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01.
(2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be upl
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ion. This application shall be made only after the new entity is registered.
Before applying for cancellation, please file your tax return due for the tax period in which the effective date of surrender of registration falls or furnish an application to the effect that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration).”.
5. In the said rules, in FORM GSTR-4, in the instructions, for Sl. No.10, the following shall be substituted, namely;-
“10. Information against the Serial 4A of Table 4 shall not be furnished.”.
6. In the said rules, for FORM GST PMT-01relating to “Part II: Other than return related liabilities”, the following form shall be substituted, namely:-
“Form GST PMT -01
[See rule 85(1)]
Electronic Liability Register of RegisteredPerson
(Part-II: Other than return related liabilities)
(To be maintained at the Common Portal)
Reference No.-
GSTIN/Temporary I
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y.
2. All payments made out of cash or credit ledger against the liabilities would be recorded accordingly.
3. Reduction or enhancement in the amount payable due to decision of appeal, rectification, revision, review etc. will be reflected here.
4. Negative balance can occur for a single Demand ID also if appeal is allowed/ partly allowed. Overall closing balance may still be positive.
5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer.
6. The closing balance in this part shall not have any effect on filing of return.
7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules.
8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. De
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Order No. (original)
10.
Order date (original)
11.
Latest order no.
12.
Latest order date
13.
Date of service of the order (optional)
14.
Name of the officer who has passed the order (Optional)
15.
Designation of the officer who has passed the order
16.
Whether demand is stayed
ð Yes ð No
17.
Date of stay order
18.
Period of stay
From – to –
Part B – Demand details
19.
Details of demand created
(Amount in Rs. in all Tables)
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State/UT Acts
CST Act
20.
Amount of demand paid under existing laws
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State/UT Acts
CST Act
21.
(19-20)
Balance amount of demand proposed to be recovered under GST laws << Auto-populated >>
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State/UT Acts
CST Act
Signature
Name
Designation
Jurisdiction
To
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be inserted, namely:-
“FORM GST DRC-08A
[See rule 142A(2)]
Amendment/Modification of summary of the order
creating demand under existing laws
Reference no.
Date –
Part A – Basic details
Sr. No.
Description
Particulars
(1)
(2)
(3)
1.
GSTIN
2.
Legal name
<
3.
Trade name, if any
<
4.
Reference no. vide which demand uploaded in FORM GST DRC-07A
5.
Date of FORM GST DRC-07A vide which demand uploaded
6.
Government Authority who passed the order creating the demand
State /UT ð Centre <
7.
Old Registration No.
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8.
Jurisdiction under earlier law
<< Auto, editable>>
9.
Act under which demand has been created
<
10.
Tax period for which demand has been created
<
11.
Order No. (original)
<
12.
Order date (original)
<
13.
Latest order no.
<
14.
Latest order date
<
15.
Date of service of the orde
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M/s Nitin Spinners Ltd. Versus CGST. CC & CE, Jodhpur-I
Central Excise
2018 (11) TMI 156 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 30-10-2018
Appeal No. E/52451/2018-DB – Final Order No. 53220/2018
Central Excise
Mrs. Archana Wadhwa, Member (Judicial) And Mr. Bijay Kumar, Member (Technical)
Shri S.C. Jain, Advocate – for the appellant
Shri S.K. Bansal, D.R. – for the respondent
ORDER
Per Mrs. Archana Wadhwa:
After hearing both the sides, we find that the appellant is a 100% EOU and is authorised to sell their product in the DTA, after seeking the permission of Development Commissioner. The appellant applied to the Development Commissioner for clearance of the goods up to the extent of value of Rs.
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phical mistake, and amended the DTA sale entitlement certificate by replacing the amount of Rs. 240.66 lakhs to Rs. 204.66 lakhs. It is also seen that vide their letter dated 18th Sept. 2002, the Assistant Development Commissioner opined that the excess sale of Rs. 36 lakhs may be treated as advance DTA sale and be adjusted against future DTA sale entitlements. Ld. Advocate informs us that the said excess sale was so adjusted against the future sales made by them. Further, the Assistant Development Commissioner addressed another letter dated 7.2.2006 to the Deputy Commissioner, Central Excise proposing to recover the differential duty amount on excess DTA sale of Rs. 36 lakhs granted to the unit.
3. In the above, proceedings were initiated
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ner allowing the appellant to clear the goods in DTA to the extent of Rs. 240.66 lakhs. The subsequent detection of mistake at the end of the Development Commissioner, on account of an audit objection raised, resulting in amendment of the certificate by him will have no bearing to the goods already cleared in terms of a proper, correct and legitimate certificate issued by the Development Commissioner issued initially. As such, it cannot be said that when the goods were cleared, the appellant was not having any valid certificate and the same were cleared against them against an invalid certificate.
5. Apart from above, we also find that the said excess clearances stand adjusted against the clearances for the future period, in which case no
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M/s. Sify Technologies Limited Versus Commissioner of GST and Central Excise Chennai South
Service Tax
2018 (11) TMI 179 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 30-10-2018
Appeal No. ST/184/2012 – Final Order No. 42732/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri V. Padmanabhan, Member (Technical)
Shri Raghavan Ramabhadran, Advocate for the Appellant
Shri K. Veerabhadra Reddy, JC (AR) for the Respondent
ORDER
Per Ms. Sulekha C.S.
Brief facts are that the appellants are registered for providing various taxable services under the category of on-line information and database access / retrieval, internet café, franchise services, etc. They are having centralized service tax registration and are a member of Large Taxpayer Unit. They are also rendering exempted services such as software development, e-learning for corporates and companies etc. during the period prior to 16.5.2008, after which date these services became ta
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billed separately to the end-customer and thus were engaged in trading activity also. In respect of taxable output service rendered, service bill is raised separately and service tax is paid only on the service charges billed / realized. They were also availing input tax credit on various services like advertising, air travel agents, business auxiliary service, Chartered Accountants etc. which were common input services used for both taxable services as well as trading activity. The department was of the view that the appellants are not eligible for credit on the common input services used by appellant for trading activity as per Rule 3 of CENVAT Credit Rules, 2004. On intimation, the appellant filed intimation dated 14.10.2010 to exercise option with effect from 14..2008 for reversal of proportionate credit under Rule 6(2)(ii) of CENVAT Credit Rules, 2004 and reversed an amount of Rs. 44,68,272/-relating to the CENVAT credit availed on trading activities in respect of appellant and S
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osed to demand interest and impose penalties. After due process of law, the adjudicating authority confirmed the amount of Rs. 13,90,14,831/- along with interest, ordered appropriation of the already reversed amount and imposed equal penalty under Rule 15(4) of CENVAT Credit Rules, 2004. Aggrieved, the appellant is now before this Tribunal.
2. On behalf of the appellant, ld. counsel Shri Raghavan Ramabhadran appeared and argued the matter. He submitted that with effect from1.4.2011, an explanation was introduced to the definition of exempted services under Rule 2(e) wherein it was clarified that trading is an exempted service. The period involved in the present case is from October 2005 to March 2010. He submitted that in the show cause notice, the department has invoked Rule 3 of CENVAT Credit Rules, 2004 for the purpose of denying the credit availed on trading activity. The appellant had reversed the credit attributable to trading as per Rule 6(3)(ii) of CCR, 2004. In para 10 of the
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butable to trading cannot sustain. Show cause notice is the foundation of the proceedings and when the department has not invoked Rule 6 in the show cause notice, the entire proceeding fail in the light of the decision of the Hon'ble High Court of Madras in Ruchika Global Interlinks (supra). He also places reliance on the judgment of the Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. Brindavan Beverages P. Ltd. – 2007 (213) ELT 487 (SC) to argue that show cause notice is the foundation of the proceedings.
2.1 The ld. counsel has placed reliance upon the decision of the Tribunal in the case of L.G. Electronics India Pvt. Ltd. Vs. Commissioner of Central Excise – 2017 (3) GSTL 249 (Tri. All.) and submitted that on identical facts, the Tribunal has held that Rule 14 cannot be applied for recovery of credit attributable to trading alone without invoking Rule 6 when the allegation is that credit availed is not eligible under Rule 3 of CCR, 2004. It is also fairly s
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finite knowledge of the fact that the appellant is engaged in providing exempt service in the nature of trading. That as per the decision in Nizam Sugar Factory Vs. Commissioner of Central Excise – 2006 (197) ELT 465 (SC), thus the extended period cannot be invoked.
2.3 With regard to penalty, he submitted that since the recovery of CENVAT credit is under Rule 14 cannot sustain, the imposition of penalty under Rule 15(4) merits to be set aside. In addition, being an interpretational issue, penalty cannot be imposed.
2.4 Without prejudice, the ld. counsel submitted that the appellant, in any case is only liable to reverse the proportionate credit to trading activity as per Rule 6 and the same would be only Rs. 64,08,446/- and the appellant has already reversed Rs. 44,68,272/-.
3. On behalf of Revenue, the ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. He submitted that the appellants were very well aware that trading is not an exempted service. It is n
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llegation is wrong availment of credit which is not eligible as per Rule 3(1) r/w Rule 2(l) of CENVAT Credit Rules, 2004. The argument of the appellant all along has been trading activity being an exempted service, they are liable to reverse only proportionate credit under Rule 6 of CENVAT Credit Rules, 2004. Instead the formula adopted for quantifying the demand is the proportion of value of sale of goods to the total income from sale of all goods and services applied to the total credit availed. The case of L.G. Electronics India Pvt. Ltd. (supra) cannot be applied to the facts of the case since in the said case the demand was set aside for the reason that the show cause notice did not make any allegation as to the ineligibility of CENVAT credit. That in the present show cause notice, it is clearly spelt out that the credit is not eligible under Rule 3(1) and therefore the said case law is distinguishable on facts.
4. Heard both sides.
5. The main contention put forward by the ld.
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trading activity as an exempted service. Corresponding amendments were introduced in Rule 6(3A) as to how to calculate the amount that has to be reversed when trading is an exempted service. In Ruchika Global (supra) the Hon'ble jurisdictional High Court held that trading has to be considered as exempted service even prior to 1.4.2011 and only proportionate credit attributable to trading is to be reversed as per Rule 6 of CENVAT Credit Rules, 2004. Undisputedly, the appellants were availing common input services for both taxable service and trading activities and did not maintain separate accounts. In the reply to the intimation given prior to issuance of show cause notice, they have stated that they reversed an amount of Rs. 44,68,272/- and informed the department that they have reversed the proportionate credit pertaining to common input services used for trading as under Rule 6(3)(ii) treating trading activity as an exempted service. In para 10 of the show cause notice, the departm
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tware Development and e-learning etc. It is also stated that the SBUs such as Finance, Human Resource, Administration and Corporate did not render any service and were used for accounting and support service only which were common to all SBUs. In para 4.19 of the reply the appellant has stated as under:-
“When the input service relates to an output services that is exempt or relating to trading activity, n o credit is taken and the entire amount including service tax thereon is debited to expenditure. Accordingly, no CENVAT credit on service tax paid on input service is taken for those input services which are used in SBUs which provide exempted service or involved in trading activity. The input services that are common are accounted under the SBUs of Finance, Human Resource, Administration or Corporate and the credit accounted under common input services. The finance department consolidates all the transactions and prepared periodical financial statements and reports required for mee
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e notice proposes to deny the credit availed on trading as per Rule 3 of CCR, 2004. Rule 3 does not allow credit to be allowed on trading activity. We have no quarrel that the Hon'ble jurisdictional High Court in the case of Ruchika Global Ltd. (supra) has held that for recovery of proportionate credit availed on trading, the trading activity has to be considered as an exempted service prior to 1.4.2011 also. But the said decision was in a case where Rule 6 was invoked for disallowing the credit availed on common input services used for trading also when separate accounts were not maintained. Here the appellant contends to have maintained separate accounts. But such separate accounts is not as provided by Rule 6 is the finding of Tribunal in the appellant's own case as per Final Order cited supra. It is seen that the separate accounts were maintained by appellant for serving its business purposes and not according to provisions of Rule 6(1), (2) or (3) of CCR, 2004. The Tribunal in the
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rvices' meant those 'taxable services which were exempt from the whole of service tax and included those service on which service tax was not leviable under section 66 of the Act'. Based on this conclusion, the Hon'ble High Court held as under:-
“11. Having regard to the rule position and given the admitted fact that no separate accounts were maintained by the appellant, with regard to the taxable and non-taxable services, clause (c) of sub-rule 3 of Rules 6 of 2004 Rules would apply”.
6.2 It is therefore obvious that the Hon'ble High Court was only addressing the aspect of whether by invoking Rule 6(3) trading would be exempted services even prior to 1.4.2011. However, in the instant case, what is alleged in the show cause notice is that as per Rule 2(l) of the CENVAT Credit Rules, 2004, input service means 'any service used for providing output service'. As trading activity undertaken by the appellant is not taxable service, hence the appellant is not eligible to avail credit on
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exempted service even prior to 1.4.2011 and therefore credit availed on trading is admissible. In Ruchika Global, Rule 6 of CENVAT Credit Rules, 2004 was invoked to demand the proportionate credit availed on trading. In the present case, only Rule 3 and Rule 6 has not been invoked. When credit is not admissible under Rule 3, the appellant cannot content that Rule 6 ought to have invoked and that trading is held by the Hon'ble High Court to be exempted service prior to 1.4.2011. The appellant cannot blow both hot and cold.”
We, therefore, hold that the decision in the case of Ruchika Global Ltd. (supra) will be of no assistance to the appellant.
5.4 As already stated, the show cause notice invokes Rule 3 to disallow the credit for the reason that no credit can be availed on trading as per this provision. Undisputedly, the appellants have availed credit on trading activities. Therefore, the demand raised disallowing the credit on trading in our view is legal and proper. The decision
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The Odisha Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
34124-FIN-CT1-TAX-0043/2017-S.R.O. No. 434/2018 Dated:- 30-10-2018 Orissa SGST
GST – States
Orissa SGST
Orissa SGST
GOVERNMENT OF ODISHA
FINANCE DEPARTMENT
NOTIFICATION
The 30th October, 2018
S.R.O. No. 434/2018.- In exercise of the powers conferred by section 164 of the Odisha Goods and Services Tax Act, 2017 (7 of 2017), the State Government on the recommendations of the Goods and Service Tax Council, do hereby makes the following rules further to amend the Odisha Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Odisha Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Odisha Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be inserted, namely:-
“83A. Examination of Goods and Services
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all be specified by NACIN on the official websites of the Board, NACIN and common portal.
(5) Examination centers.- The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration.
(6) Period for passing the examination and number of attempts allowed.- (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule.
(ii) A person required to pass the examination m
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ed to secure fifty per cent. of the total marks.
(9) Guidelines for the candidates.- (i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: –
(a) obtaining support for his candidature by any means;
(b) impersonating;
(c) submitting fabricated documents;
(d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination;
(e) found in possession of any paper, book, note or any other material, t
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lt may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal.
(13) Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation :- For the purposes of this sub-rule, the expressions –
(a) “jurisdictional Commissioner” means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST PCT-1 has been selected as Centre, or the Commissioner of State Tax if the enrolling authority in FORM GST PCT- 1 has been selected as State;
(b) NACIN means the National Academy of Cust
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d rules, after rule 142, the following rule shall be inserted, namely:-
“142A. Procedure for recovery of dues under existing laws. – (1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01.
(2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be uploaded on the common portal in FORM GST DRC-08A and Part II of Electronic Liability Register in FORM GS
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ellation, please file your tax return due for the tax period in which the effective date of surrender of registration falls or furnish an application to the effect that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration).”.
5. In the said rules, for FORM GST PMT-01 relating to “Part II: Other than return related liabilities”, the following form shall be substituted, namely:-
“Form GST PMT -01
[See rule 85(1)]
Electronic Liability Register of Registered Person
(Part-II: Other than return related liabilities)
(To be maintained at the Common Portal)
Reference No.-
GSTIN/Temporary Id –
Date-
Name (Legal) –
Trade name, if any –
Stay status – Stayed/Un-stayed
Period – From To (dd/mm/yyyy)
Act – Central Tax/State Tax/UT Tax/Integrated Tax/CESS /All
(Amount in Rs.)
Sr.No.
Date (dd/mm/yyyy)
Reference No.
Tax Period, if applicable
Ledger used for discharging liabilit
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e Demand ID also if appeal is allowed/ partly allowed. Overall closing balance may still be positive.
5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer.
6. The closing balance in this part shall not have any effect on filing of return.
7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules.
8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. Debit and credit entry will be created simultaneously.”.
6. In the said rules, in FORM GST APL-04, after serial number 9, and the Table relating thereto, the following shall be inserted, namely:-
“10. Details of IGST Demand
Place of Supply (Name of State/UT)
Demand
Tax
Interest
Pena
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tayed
__Yes __No
17.
Date of stay order
18.
Period of stay
From – to –
Part B – Demand details
19.
Details of demand created (Amount in Rs. in all Tables)
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State/ UT Acts
CST Act
20.
Amount of demand paid under existing laws
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State / UT Acts
CST Act
21. (19-20)
Balance amount of demand proposed to be recovered under GST laws << Auto-populated >>
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State / UT Acts
CST Act
Signature
Name
Designation
Jurisdiction
To
_______________ (GSTIN/ID)
Name
_______________ (Address)
Copy to –
Note –
1. In case of demands relating to short payment of tax declared in return, acknowledgement / reference number of the return may be mentioned.
2. Only recoverable demands shall be posted for recovery under GST laws. Once, a deman
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name, if any
<< Auto >>
4.
Reference no. vide which demand uploaded in FORM GST DRC-07A
5.
Date of FORM GST DRC-07A vide which demand uploaded
6.
Government Authority who passed the order creating the demand
__State UT __ Centre
<< Auto >>
7.
Old Registration No.
<< Auto, editable >>
8.
Jurisdiction under earlier law
<< Auto, editable >>
9.
Act under which demand has been created
<< Auto, editable >>
10.
Tax period for which demand has been created
<< Auto, editable >>
11.
Order No. (original)
<< Auto, editable >>
12.
Order date (original)
<< Auto, editable >>
13.
Latest order no.
<< Auto, editable >>
14.
Latest order date
<< Auto, editable >>
15.
Date of service of the order
<< Auto, editable >>
16.
Name of the officer who has passed the order (optional)
<< Auto, editable >>
17.
Designation of the officer who has passed the order
<< Auto, editable >>
18.
Whether demand is stayed
__Yes __No
19.
Date of stay order
20.
Period of Stay
21.
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The Rajasthan Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
F.12(46)FD/Tax/2017-Pt-II-127 Dated:- 30-10-2018 Rajasthan SGST
GST – States
Rajasthan SGST
Rajasthan SGST
GOVERNMENT OF RAJASTHAN
FINANCE DEPARTMENT
(TAX DIVISION)
NOTIFICATION
Jaipur, dated: October 30, 2018
In exercise of the powers conferred by section 164 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), the State Government hereby makes the following rules further to amend the Rajasthan Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Rajasthan Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Rajasthan Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be inserted, namely:-
“83A. Examination of Goods and Services Tax Practitioners.-(1) Every person refe
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websites of the Board, NACIN and common portal.
(5) Examination centers.- The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration.
(6) Period for passing the examination and number of attempts allowed.- (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule.
(ii) A person required to pass the examination may avail of any number of attempts but th
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marks.
(9) Guidelines for the candidates.- (i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii)Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: –
(a) obtaining support for his candidature by any means;
(b) impersonating;
(c) submitting fabricated documents;
(d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination;
(e) found in possession of any paper, book, note or any other material, the use of which is not permitted in the ex
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(12) Handling representations.-A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal.
(13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation :- For the purposes of this sub-rule, the expressions –
(a) “jurisdictional Commissioner” means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST PCT-1 has been selected as Centre, or the Commissioner of State Tax if the enrolling authority in FORM
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2, the following rule shall be inserted, namely:-
“142A. Procedure for recovery of dues under existing laws. – (1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01.
(2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be uploaded on the common portal in FORM GST DRC-08A and Part II of Electronic Liability Register in FORM GST PMT-01 shall be upda
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your tax return due for the tax period in which the effective date of surrender of registration falls or furnish an application to the effect that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration).”.
5. In the said rules, in FORM GSTR-4, in the Instructions for Sl.No.10, the following shall be substituted, namely:-
“10. Information against the Serial 4A of Table 4 shall not be furnished.”.
6. In the said rules, for FORM GST PMT-01 relating to “Part II: Other than return related liabilities”, the following form shall be substituted, namely:-
“Form GST PMT -01
[See rule 85(1)]
Electronic Liability Register of Registered Person
(Part-II: Other than return related liabilities)
(To be maintained at the Common Portal)
Reference No.-
GSTIN/Temporary Id –
Date-
Name (Legal) –
Trade name, if any –
Stay status – Stayed/Un-stayed
Period – From To (dd/mm/yyyy)
Act – Cent
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ction or enhancement in the amount payable due to decision of appeal, rectification, revision, review etc. will be reflected here.
4. Negative balance can occur for a single Demand ID also if appeal is allowed/ partly allowed. Overall closing balance may still be positive.
5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer.
6. The closing balance in this part shall not have any effect on filing of return.
7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules.
8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. Debit and credit entry will be created simultaneously.”.
7. In the said rules, in FORM GST APL-04, after serial number
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of the order (optional)
14.
Name of the officer who has passed the order (Optional)
15.
Designation of the officer who has passed the order
16.
Whether demand is stayed
__Yes __No
17.
Date of stay order
18.
Period of stay
From – to –
Part B – Demand details
19.
Details of demand created
(Amount in Rs. in all Tables)
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State/ UT Acts
CST Act
20.
Amount of demand paid under existing laws
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State / UT Acts
CST Act
21.
(19-20)
Balance amount of demand proposed to be recovered under GST laws
<< Auto-populated >>
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State / UT Acts
CST Act
Signature
Name
Designation
Jurisdiction
To
_______________ (GSTIN/ID)
Name
_______________ (Address)
Copy to –
Note –
1. In case of demands relating to short payment of tax dec
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mand under
existing laws
Reference no.
Date –
Part A – Basic details
Sr. No.
Description
Particulars
(1)
(2)
(3)
1.
GSTIN
2.
Legal name
<< Auto >>
3.
Trade name, if any
<< Auto >>
4.
Reference no. vide which demand uploaded in FORM GST DRC-07A
5.
Date of FORM GST DRC-07A vide which demand uploaded
6.
Government Authority who passed the order creating the demand
__State UT __ Centre
<< Auto >>
7.
Old Registration No.
<< Auto, editable >>
8.
Jurisdiction under earlier law
<< Auto, editable >>
9.
Act under which demand has been created
<< Auto, editable >>
10.
Tax period for which demand has been created
<< Auto, editable >>
11.
Order No. (original)
<< Auto, editable >>
12.
Order date (original)
<< Auto, editable >>
13.
Latest order no.
<< Auto, editable >>
14.
Latest order date
<< Auto, editable >>
15.
Date of service of the order
<< Auto, editable >>
16.
Name of the officer who has passed the order (optional)
<< Auto, editable >>
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Processing of Applications for Cancellation of Registration submitted in FORM GST REG-16.
GST Circular No. 10/2018 Dated:- 30-10-2018 Rajasthan SGST
GST – States
GOVERNMENT OF RAJASTHAN
COMMERCIAL TAX DEPARTMENT
F.17(134)ACCT/GST/2017/3951
Dated: 30.10.2018
GST Circular No. 10/2018
All Joint Commissioner (Adm.),
Commercial Taxes Department,
Subject: Processing of Applications for Cancellation of Registration submitted in FORM GST REG-16 – Reg.
Various representations seeking clarifications on various issues in relation to processing of the applications for cancellation of registration filed by taxpayers in FORM GST REG-16. In order to clarify these issues and to ensure uniformity in the implementation the provisions of law across the field formations, in exercise of powers conferred by section 168 (1) of the Rajasthan Goods and Services Tax Act, 2017, hereinafter referred to as the “RGST Act”, following clarifications are issued:
2. Section 29 of the RGST Act, read w
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uch an event occurs. For instance, a business may be transferred/disposed over a period of time in a piece meal fashion. In such cases, the 30-day deadline may be liberally interpreted and the taxpayers' application for cancellation of registration may not be rejected because of the possible violation of the deadline.
4. While initiating the application for cancellation of registration in FORM GST REG-16, the Common portal captures the following information which has to be mandatorily filled in by the applicant:
a) Address for future correspondence with mobile number and email address;
b) Reason for cancellation;
c) Date from which cancellation is sought;
d) Details of the value and the input tax/tax payable on the stock of inputs, inputs contained in semi-finished goods, inputs contained in finished goods, stock of capital goods/plant and machinery;
e) In case of transfer, merger of business, etc., particulars of registration of the entity in which the existing unit has been mer
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n of the application for cancellation.
In all cases other than those listed at (a) and (b) above, the application for cancellation of registration should be immediately accepted by the proper officer and the order for cancellation should be issued in FORM GST REG-19 with the effective date of cancellation being the same as the date from which the applicant has sought cancellation in FORM GST REG-16. In any case the effective date cannot be a date earlier to the date of application for the same.
6. In situations referred to in (a) or (b) in para 5 above, the proper officer shall inform the applicant in writing about the nature of the discrepancy and give a time period of seven working days to the taxpayer, from the date of receipt of the said letter, to reply. If no reply is received within the specified period of seven working days, the proper officer may reject the application on the system, after giving the applicant an opportunity to be heard, recording reasons for rejection in th
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rder of cancellation, whichever is later. The purpose of the final return is to ensure that the taxpayer discharges any liability that he/she may have incurred under sub-section (5) of the section 29 of the RGST Act. It may be noted that the last date for furnishing of FORM GSTR-10 by those taxpayers whose registration has been cancelled on or before 30.09.2018 has been extended till 31.12.2018.
8. Further, sub-section (5) of section 29 of the RGST Act, read with rule 20 of the RGST Rules states that the taxpayer seeking cancellation of registration shall have to pay, by way of debiting either the electronic credit or cash ledger, the input tax contained in the stock of inputs, semi-finished goods, finished goods and capital goods or the output tax payable on such goods, whichever is higher. For the purpose of this calculation, the stock of inputs, semi-finished goods, finished goods and capital goods shall be taken as on the day immediately preceding the date with effect from which t
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input tax credit available, then the difference shall be paid by him/her in cash. It is reiterated that, as stated in sub-section (3) of section 29 of the RGST Act, the cancellation of registration does not, in any way, affect the liability of the taxpayer to pay any dues under the GST law, irrespective of whether such dues have been determined before or after the date of cancellation.
9. In case the final return in FORM GSTR-10 is not filed within the stipulated date, then notice in FORM GSTR-3A has to be issued to the taxpayer. If the taxpayer still fails to file the final return within 15 days of the receipt of notice in FORM GSTR-3A, then an assessment order in FORM GST ASMT-13 under section 62 of the RGST Act read with rule 100 of the RGST Rules shall have to be issued to determine the liability of the taxpayer under sub-section (5) of section 29 on the basis of information available with the proper officer. If the taxpayer files the final return within 30 days of the date of ser
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to ensure that a taxpayer is freed from the routine compliances, including filing returns, under GST Act during the pendency of the proceedings related to cancellation. Although the provisions of RGST (Amendment) Act, 2018 have not yet been brought into force, it will be prudent for the field formations not to issue notices for non-filing of return for taxpayers who have already filed an application for cancellation of registration under section 29 of the RGST Act. However, the requirement of filing a final return, as under section 45 of the RGST Act, remains unchanged.
12. It may be noted that the information in table in FORM GST REG-19 shall be taken from the liability ledger and the difference between the amounts in Table 10 and Table 11 of FORM GST REG-16.
13. It is directed to publicize and make aware the trade and industry about the contents of this circular.
(Alok Gupta)
Commissioner, State Taxes,
Rajasthan, Jaipur
F.17 (134) ACCT/GST/2017/3952-3957
Dated: 30.10.2018
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Clarifications of issues under GST related to casual taxable person and recovery of excess Input Tax Credit distributed by an Input Service distributor.
GST Circular No. 12/2018 Dated:- 30-10-2018 Rajasthan SGST
GST – States
GOVERNMENT OF RAJASTHAN
COMMERCIAL TAX DEPARTMENT
F.17(134)ACCT/GST/2017/3966
Date: 30.10.2018
GST Circular No. 12/2018
All Joint Commissioner (Adm.),
Commercial Taxes Department,
………………………………………………
Subject: Clarifications of issues under GST related to casual taxable person and recovery of excess Input Tax Credit distributed by an Input Service distributor – Reg.
Representation
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sthan Goods and Services Tax Act, 2017 (hereinafter referred to as the said Act), period of operation by causal taxable person is ninety days with provision for extension of same by the proper officer for a further period not exceeding ninety days. Various representations have been received for further extension of the said period beyond the period of 180 days, as mandated in law.
2. It is accordingly clarified that the amount of advance tax which a casual taxable person is required to deposit while obtaining registration should be calculated after considering the due eligible ITC which might be available to such taxable person.
1. It is clarified that in case of long running exhibitions (for a period more than 180 days), the taxable pers
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ed in section 20 of the RGST Act.
1. According to Section 21 of the RGST Act where the ISD distributes the credit in contravention of the provisions contained in section 20 of the RGST Act resulting in excess distribution of credit to one or more recipients of credit, the excess credit so distributed shall be recovered from such recipients along with interest and penalty if any.
2. The recipient unit(s) who have received excess credit from ISD may deposit the said excess amount voluntarily along with interest if any by using FORM GST DRC-03.
3. If the said recipient unit(s) does not come forward voluntarily, necessary proceedings may be initiated against the said unit(s) under the provisions of section 73 or 74 of the RGST Act as the cas
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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.
1540-F.T.-58/2018-State Tax Dated:- 30-10-2018 West Bengal SGST
GST – States
West Bengal SGST
West Bengal SGST
GOVERNMENT OF WEST BENGAL
FINANCE DEPARTMENT
REVENUE
NOTIFICATION
No. 1540-F.T.
Howrah, the 30th day of October, 2018.
No. 58/2018-State Tax
In exercise of the powers conferred by section 148
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Seeks to extends the time limit for furnishing the declaration in FORM GST ITC-04 for the period from July, 2017 to September, 2018 till 31st December, 2018.
26/2018-C.T./GST-59/2018-State Tax Dated:- 30-10-2018 West Bengal SGST
GST – States
West Bengal SGST
West Bengal SGST
GOVERNMENT OF WEST BENGAL
DIRECTORATE OF COMMERCIAL TAXES
14, BELIAGHATA ROAD, KOLKATA-700015
NOTIFICATION BY THE COMMISSIONER OF STATE TAX
Notification No. 26/2018-C.T./GST
Dated: 30.10.2018
Notificatio
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The Tamil Nadu Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
G.O. Ms. No. 143 Dated:- 30-10-2018 Tamil Nadu SGST
GST – States
Tamil Nadu SGST
Tamil Nadu SGST
NOTIFICATIONS BY GOVERNMENT
COMMERCIAL TAXES AND REGISTRATION DEPARTMENT
[G.O. Ms. No.143, Commercial Taxes and Registration (B1), 30th October 2018,
Aippasi 13, Vilambi, Thiruvalluvar Aandu-2049.]
No. SRO A- 51(b)/2018.
In exercise of the powers conferred by Section 164 of the Tamil Nadu Goods and Services Tax Act, 2017 (Tamil Nadu Act 19 of 2017), the Governor of Tamil Nadu hereby makes the following rules further to amend the Tamil Nadu Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Tamil Nadu Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Tamil Nadu Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the
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e as specified by NACIN, and the amount for the same and the manner of its payment shall be specified by NACIN on the official websites of the Board, NACIN and common portal.
(5) Examination centers.- The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration.
(6) Period for passing the examination and number of attempts allowed.- (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second
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and syllabus are specified in Annexure-A.
(8) Qualifying marks.- A person shall be required to secure fifty per cent. of the total marks.
(9) Guidelines for the candidates.- (i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: –
(a) obtaining support for his candidature by any means;
(b) impersonating;
(c) submitting fabricated documents;
(d) resorting to any unfair means or practices in connection with the examination or in connection with the result
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ent of the respective States or Union territories, if any. The results shall also be communicated to the applicants by e-mail and/or by post.
(12) Handling representations.- A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal.
(13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation :- For the purposes of this sub-rule, the expressions –
(a) “jurisdictional Commissioner” means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central T
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ices Tax Rules, 2017
9
Notifications, Circulars and orders issued from time to time under the said Acts and Rules.”.
3. In the said rules, after rule 142, the following rule shall be inserted, namely:-
“142A. Procedure for recovery of dues under existing laws. – (1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01.
(2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws,
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f the application for cancellation. This application shall be made only after the new entity is registered.
Before applying for cancellation, please fi le your tax return due for the tax period in which the effective date of surrender of registration falls or furnish an application to the effect that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration).”.
5. In the said rules, in FORM GSTR-4, in the Instructions, for Sl. No. 10, the following shall be substituted, namely:-
“10. Information against the Serial 4A of Table 4 shall not be furnished.”.
6. In the said rules, for FORM GST PMT-01 relating to “Part II: Other than return related liabilities”, the following form shall be substituted, namely:-
“FORM GST PMT -01
[See rule 85(1)]
Electronic Liability Register of Registered Person
(Part-II: Other than return related liabilities)
(To be maintained at the Common Portal)
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recorded in this ledger. Complete description of the transaction shall be recorded accordingly.
2. All payments made out of cash or credit ledger against the liabilities would be recorded accordingly.
3. Reduction or enhancement in the amount payable due to decision of appeal, rectification, revision, review etc., will be reflected here.
4. Negative balance can occur for a single Demand ID also if appeal is allowed/ partly allowed. Overall closing balance may still be positive.
5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer.
6. The closing balance in this part shall not have any effect on fi ling of return.
7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules.
8. Payment made against the show cause notice or any other payment made volu
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nder which demand has been created
8.
Period for which demand has been created
From – mm, yy To mm, yy
9.
Order No. (original)
10.
Order date (original)
11.
Latest order No.
12.
Latest order date
13.
Date of service of the order (optional)
14.
Name of the officer who has passed the order (Optional)
15.
Designation of the officer who has passed the order
16.
Whether demand is stayed
ð Yes ð No
17.
Date of stay order
18.
Period of stay
From – to –
Part B – Demand details
19.
Details of demand created
(Amount in Rs. in all Tables)
Act
Tax
Interest
Penalty
Fee
Others
Total
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Central Acts
State/UT Acts
CST Act
20.
Amount of demand paid under existing laws
Act
Tax
Interest
Penalty
Fee
Others
Total
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Central Acts
State/UT Acts
CST Act
21.
(19-20)
Balance amount of demand proposed to be recovered under GST laws
<< Auto-populated >>
Act
Tax
Interest
Penalty
Fee
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an be attached. Documents in support of tax payment can also be uploaded, if available.”.
9. In the said rules, after FORM GST DRC-08, the following form shall be inserted, namely:-
“FORM GST DRC-08A
[See rule 142A(2)]
Amendment/Modification of summary of the order creating demand under existing laws
Reference No.
Date –
Part A – Basic details
Sr.No.
Description
Particulars
(1)
(2)
(3)
1.
GSTIN
2.
Legal name
<
3.
Trade name, if any
<
4.
Reference no. vide which demand uploaded in FORM GST DRC-07A
5.
Date of FORM GST DRC-07A vide which demand uploaded
6.
Government Authority who passed the order creating the demand
ð State /UT ð Centre
<
7.
Old Registration No.
<< Auto, editable>>
8.
Jurisdiction under earlier law
<
9.
Act under which demand has been created
<
10.
Tax period for which demand has been created
<
11.
Order No. (original)
<
12.
Orde
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The Arunachal Pradesh Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
46/2018-State Tax Dated:- 30-10-2018 Arunachal Pradesh SGST
GST – States
Arunachal Pradesh SGST
Arunachal Pradesh SGST
GOVERNMENT OF ARUNACHAL PRADESH
DEPARTMENT OF TAX, EXCISE & NARCOTICS
ITANAGAR
–
Notification No. 46/2018-State Tax
The 30th October, 2018
No. GST/23/2017/Vol-I.-In exercise of the powers conferred by section 164 of the Arunachal Pradesh Goods and Services Tax Act, 2017 (7 of 2017), the State Government hereby makes the following rules further to amend the Arunachal Pradesh Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Arunachal Pradesh Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Arunachal Pradesh Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be
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, and the amount for the same and the manner of its payment shall be specified by NACIN on the official websites of the Board, NACIN and common portal.
(5) Examination centers : The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration.
(6) Period for passing the examination and number of attempts allowed : (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3)
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fied in Annexure-A.
(8) Qualifying marks : A person shall be required to secure fifty per cent of the total marks.
(9) Guidelines for the candidates : (i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: –
(j) obtaining support for his candidature by any means;
(k) impersonating;
(l) submitting fabricated documents;
(m) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination;
(
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tates or Union territories, if any. The results shall also be communicated to the applicants by e-mail and/or by post.
(12) Handling representations : A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal.
(13) Power to relax : Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation : For the purposes of this sub-rule, the expressions –
(c) “jurisdictional Commissioner” means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling auth
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Notifications, Circulars and orders issued from time to time under the said Acts and Rules.”.
3. In the said rules, in rule 109A,
(a) in sub-rule (1), in clause (b), for the words and brackets “the Additional Commissioner (Appeals)”, the following words and brackets shall be substituted, namely:-
“any officer not below the rank of Joint Commissioner (Appeals)”;
(b) in sub-rule (2), in clause (b), for the words and brackets “the Additional Commissioner (Appeals)”, the following words and brackets shall be substituted, namely:-
“any officer not below the rank of Joint Commissioner (Appeals)”.
4. In the said rules, after rule 142, the following rule shall be inserted, namely :-
“142A. Procedure for recovery of dues under existing laws : (1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed da
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nstruction, after the Table, for the paragraphs beginning with the words “In case of death of sole proprietor” and ending with the words “surrender of registration falls”, the following paragraphs shall be substituted, namely:-
“In case of death of sole proprietor, application shall be made by the legal heir / successor before the concerned tax authorities. The new entity in which the applicant proposes to amalgamate itself shall register with the tax authority before submission of the application for cancellation. This application shall be made only after the new entity is registered.
Before applying for cancellation, please file your tax return due for the tax period in which the effective date of surrender of registration falls or furnish an application to the effect that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration).”
6. In the said rules, for FORM GST PMT-01 relat
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y
Fee
Others
Total
Status (Stayed / Un-stayed)
15
16
17
18
19
20
21
*[Debit (DR) (Payable)] / [Credit (CR) (Paid)] / Reduction (RD)/ Refund adjusted (RF)]
Note : –
9. All liabilities accruing, other than return related liabilities, will be recorded in this ledger. Complete description of the transaction shall be recorded accordingly.
10. All payments made out of cash or credit ledger against the liabilities would be recorded accordingly.
11. Reduction or enhancement in the amount payable due to decision of appeal, rectification, revision, review etc. will be reflected here.
12. Negative balance can occur for a single Demand ID also if appeal is allowed/ partly allowed. Overall closing balance may still be positive.
13. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer.
14. The closing balance in t
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)
(3)
1.
GSTIN
2.
Legal name
<
3.
Trade name, if any
<
4.
Government Authority who passed the order creating the demand
ð State /UT ð Centre
5.
Old Registration No.
6.
Jurisdiction under earlier law
7.
Act under which demand has been created
8.
Period for which demand has been created
From – mm, yy To – mm, yy
9.
Order No. (original)
10.
Order date (original)
11.
Latest order No.
12.
Latest order date
13.
Date of service of the order (optional)
14.
Name of the officer who has passed the order (Optional)
15.
Designation of the officer who has passed the order
16.
Whether demand is stayed
Yes No
17.
Date of stay order
18
Period of stay
From – to –
Part B – Demand details
19.
Details of demand created (Amount in Rs. in all Tables)
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Total
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e heads defined under Central or State tax. = = = = = = = = Plain text (Extract) only = = = = = = = = thers = = = = = = = = Plain text (Extract) only = = = = = = = =
4. Latest order number means the last order passed by the relevant authority for the particular demand.
5. Copy of the order vide which demand has been created can be attached. Documents in support of tax payment can also be uploaded, if available.”.
9. In the said rules, after FORM GST DRC-08, the following form shall be inserted, namely:-
“FORM GST DRC-08A
[See rule 142A(2)]
Amendment/Modification of summary of the order creating demand under existing laws
Reference No. :-
Date :-
Part A – Basic details
Sl. No.
Description
Particulars
(1)
(2)
(3)
1.
GSTIN
2.
Legal name
<
3.
Trade name, if any
<
4.
Reference No. vide which demand uploaded in FORM GST DRC-07A
5.
Date of FORM GST DRC-07A vide which demand uploaded
6.
Government Authority who passed the order creating the demand
State /UT Centre
<
7.
Old Registration No.
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8.
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Total
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8
1.
Quashing of demand (Complete closure of demand)
2.
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3.
Total reduction (1+2)
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<
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Total
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CST Act
Signature
Name
Designation
Jurisdiction
To
_______________ (GSTIN/ID)
_______________ Name
_______________ (Address)
Copy to –
Note –
1. Reduction includes payment made under existing laws. If the demand of tax is to be increased then a fresh demand may be created under FORM GST DRC-07A.
2. Copy of the order vide which demand has been modified /rectified / revised/ updated can be uploaded. Payment document can also be attached.
3. Amount recovered under the Act including adjustment made of refund claim will be automatically updated in the liability register. This form shall not be filed for such recoveries.”.
Anirudh S
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The Meghalaya Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
ERTS(T) 65/2017/Pt. II/58-60/2018-State Tax Dated:- 30-10-2018 Meghalaya SGST
GST – States
Meghalaya SGST
Meghalaya SGST
GOVERNMENT OF MEGHALAYA
EXCISE, REGISTRATION, TAXATION & STAMPS DEPARTMENT
NOTIFICATION
No. 60/2018-State Tax
Dated Shillong the 30th October, 2018.
No. ERTS(T) 65/2017/Pt.II/58.-In exercise of the powers conferred by section 164 of the Meghalaya Goods and Services Tax Act, 2017 (Act No. 10 of 2017), the Government of Meghalaya hereby makes the following rules further to amend the Meghalaya Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Meghalaya Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come into force with effect from the 30th day of October, 2018.
2. In the Meghalaya Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), after rule 83, the following rule shall be inserted, namel
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for the same and the manner of its payment shall be specified by NACIN on the official websites of the Board, NACIN and common portal.
(5) Examination centers.- The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration.
(6) Period for passing the examination and number of attempts allowed.- (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule.
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-A.
(8) Qualifying marks.- A person shall be required to secure fifty per cent. of the total marks.
(9) Guidelines for the candidates.- (i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under:-
(a) obtaining support for his candidature by any means;
(b) impersonating;
(c) submitting fabricated documents;
(d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination;
(e) found in poss
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erritories, if any. The results shall also be communicated to the applicants by e-mail and/or by post.
(12) Handling representations.- A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal.
(13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation:- For the purposes of this sub-rule, the expressions-
(a) “jurisdictional Commissioner” means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST
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d orders issued from time to time under the said Acts and Rules.”.
3. In the said rules, after rule 142, the following rule shall be inserted, namely:-
“142A. Procedure for recovery of dues under existing laws.- (1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01.
(2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be uploaded on the common po
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all be made only after the new entity is registered.
Before applying for cancellation, please file your tax return due for the tax period in which the effective date of surrender of registration falls or furnish an undertaking to the effect that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration).”.
5. In the said rules, in FORM GSTR-4, in the Instructions, for Sl. No. 10, the following shall be substituted, namely:-
“10. Information against the Serial 4A of Table 4 shall not be furnished.”.
6. In the said rules, for FORM GST PMT-01 relating to “Part II: Other than return related liabilities”, the following form shall be substituted, namely:-
“Form GST PMT-01
[See rule 85(1)]
Electronic Liability Register of Registered Person
(Part-II: Other than return related liabilities)
(To be maintained at the Common Portal)
Reference No.:-
GSTIN/Temporary Id-
Date:-
Name (Leg
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2. All payments made out of cash or credit ledger against the liabilities would be recorded accordingly.
3. Reduction or enhancement in the amount payable due to decision of appeal, rectification, revision, review etc. will be reflected here.
4. Negative balance can occur for a single Demand ID also if appeal is allowed/partly allowed. Overall closing balance may still be positive.
5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer.
6. The closing balance in this part shall not have any effect on filing of return.
7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules.
8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. Debit a
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riginal)
10
Order date (original)
11
Latest order No.
12
Latest order date
13
Date of service of the order (optional)
14
Name of the officer who has passed the order (optional)
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Designation of the officer who has passed the order
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Whether demand is stayed
ð Yes ð No
17
Date of stay order
18
Period of stay
From – to –
Part B – Demand details
19.
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(Amount in Rs. in all Tables)
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Others
Total
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7
Central Acts
State/UT Acts
CST Act
21.
(19-20)
Balance amount of demand proposed to be recovered under GST laws
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To
_______________ (GSTIN/ID)
______
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inserted, namely:-
“FORM GST DRC-08A
[See rule 142A(2)]
Amendment/Modification of summary of the order creating demand under existing laws
Reference No.
Date
Part A – Basic details
Sr. No.
Description
Particulars
(1)
(2)
(3)
1
GSTIN
2
Legal name
<
3
Trade name, if any
<
4
Reference No. vide which demand uploaded in FORM GST DRC-07A
5
Date of FORM GST DRC-07A vide which demand uploaded
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Government Authority who passed the order creating the demand
ð State/UT ð Centre
<
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<< Auto, editable>>
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Jurisdiction under earlier law
<
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<
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In Re: M/s. Merck Life Science Private Limited
GST
2018 (12) TMI 767 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2019 (20) G. S. T. L. 679 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 30-10-2018
GST-ARA- 62/2018-19/B-133
GST
SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER
PROCEEDINGS
(Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act,
2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by Merck Life Science Private Limited, the applicant, seeking an advance ruling in respect of the following questions.
i. Whether applicant's direction to the seller (directed in agreement dated 21 June 2018) for direct transfer of BP business to MSPL and PM business to MPMPL, respectively would qualify as a 'supply betwe
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Ruling, a reference to such a similar provision under the CGST Act / MGST Act would be mentioned as being under the “GST Act”.
02 FACTS AND CONTENTION – AS PER THE APPLICANT
The submissions, as reproduced verbatim, could be seen thus-
A. STATEMENT OF FACTS HAVING A BEARING ON THE QUESTIONS RAISED
1. The Merck Life Science Private Limited (hereinafter referred to as 'the Applicant') has entered into business transfer agreement dated 21 June 2018 with Merck Limited (seller) wherein the seller has agreed to sell, transfer, convey, assign and deliver to the applicant or to any affiliates as directed by applicant for the BPL business which would be transferred as a slump sale on going concern basis. BPL business means BP business, LS Business and PM business as going concern as outlined in 'Definitions and Interpretations'. Refer Exhibit 1 for details of agreements. Pursuant to the above, another agreement executed between the seller and Merck Specialties Private Limited (hereinafter
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ed 21 June 2018. Refer copy of the said intimation in Exhb 3.
2. At outset, we would like to make it clear that the provisions of both CGST Act and MGST Act are same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purpose of this advance ruling application, a reference to such a similar provision under the CGST Act/MGST Act would mentioned as being under the 'Goods and Service Act (GST Act).
C. APPLICANT'S INTERPRETATION OF LAW OR FACTS, AS THE CASE MAY BE
6. Applicants direction to the seller basis which the seller would make an independent third party sale does not qualify as an activity nor as a 'supply of service' between the applicant and the third party (MSPI./NIPMPL):
In the present case, the applicant and the seller entered business transfer agreement for transfer of BPL b
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business and LS business) as going concern on slump sale basis to its affiliates. As per Schedule 12 – Definition and Interpretation of business transfer agreement, the term 'Affiliates means in relation to any party, any subsidiary or any parent company of that party and any subsidiary of any such parent companies, in each case from time to time.
MSPL and MPMPL are fellow subsidiary (affiliates) of MLSPL, all three entities are subsidiaries of the Company's ultimate holding company, Merck KGaA, Darmstadt, Germany. Hence, in the present case, the applicant, MSPL and MPMPL qualifies as affiliates.
Further, the applicant vide agreement for transfer of BP and PM businesses has directed the seller to transfer, convey, assign, and deliver (as the case may be) BP business to MSPL and PM business to MPMPL as going concern on a slump sale basis. However, it is pertinent to note that the direction is given by the applicant to the seller and there is no activity between the applicant and its
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as 'supply between the applicant and MSPL/MPMPL.
In the present case, the board of directors of MSPL/MPMPL have independently evaluated the opportunity and valued the businesses. Basis their independent evaluations the acceptance has been given to the seller. The direction provided by the applicant has not resulted in any economic benefits or reduction in the consideration for the related parties (MSPL/ MPMPL). This further strengthen the above stand.
7. In absence of the element of 'supply' between the applicant' and 'MSPL/MPMPL', the evaluation of applicability of schedule 1 does not arise.
Further, as per above agreements there is no consideration paid by MSPL/MPMPL to the applicant for transfer of business as going concerns. Hence, in the instant case, it is relevant to analyses provision of schedule 1 of GST Act. In terms of section 7(1)(c) of the GST Act, activities specified in Schedule I to be treated as supply which are made or agreed to be made without a consideration as
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fy between the applicant' and 'MSPL/MPMPL' under GST Act.
8. Since full input tax credit is available to MSPL/MPMPL the notional consideration should be considered to be open market value.
Without prejudice to above, even for argument sake it is presumed that the above transaction qualifies as supply between the applicant and MSPL/MPMPL, both being related parties, the notional consideration (percentage of business transfer value) would be an academic discussion and the invest treated as open market value as per Rule 28 of GST Rule.
Notwithstanding above, in the present case, if supply' exists between the applicant and MSPL/MPMPL than value of being related parties may be determined under Rule 28 of GST Rules,
In the present case, MSPL and MPMPL are affiliates (fellow subsidiary) of applicant, all three entities being subsidiaries of the Company's ultimate holding company, Merck KGaA, Darmstadt, Germany hence, they are related parties.
Hence, in absence of any consideration betwe
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ety percent of the price charged for the supply of goods of like kind and quality by the recipient to his customer not being a related person:
Provided further that where the recipient is eligible for full input tax credit, the value declared in the invoice shall be deemed to be the open market value of the goods or services.
In terms of section 16 of GST Act, every registered person entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the furtherance of his business. On perusal Of above provision, it is evident that in the present case also MSPL and MPMPL are registered person under GST Act in the state of Maharashtra. Further, the transaction would be used or is intended to be used in the course or furtherance of business by MSPL and MPMPL. Hence, both MSPL and MPMPL are eligible to claim input tax credit on GST charged by the applicant. Therefore, in view of above, the applicant may adopt to
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if it is treated as 'supply' then the value of the consideration would be academic and the invoice value would be considered as the open market value for all GST purposes. Hence, even if a percentage of sale is considered to be the value the same should be acceptable.
We shall be glad to furnish such additional information and relevant documents as the Authority may require for passing its decision where the application is admitted.
Prayer
In view of the above factual and legal position, it is most humbly prayed that this Hon'ble Authority may clarify that:
i. Whether applicant's direction to the seller (directed in agreement dated 21 June 2018) for direct transfer of BP business to MSPL and PM business to MPMPL respectively would qualify as a 'supply' between the applicant' and 'MSPL/ MPMPL'?
ii. If the answer to the above question is 'affirmative' then as the parties are related, even in absence of the actual consideration does the applicant have to attribute a notional conside
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te that the initial business transfer agreement between the seller and the applicant was executed on 21 June 2018 which authorizes the applicant or any of its affiliate to buy the BPL business on the closing date. On the very same date, another agreement was executed simultaneously between the seller, the appllant, MSPL and MPMPL for selling the respective business on a slump sale basis.
This clearly highlights that the applicant and its affiliates, as directed/ identified by the applicant, had the right to buy out the respective BPL business under the initial agreement which was respectively identified and sold business wise in the second agreement.
Hence, it is evident from above facts that the intention Was always to undertake the slump sale of BPL business to the applicant, MSPL and MPMPL independently. In the present case, a two- step approach was followed with regards to the documentation. It is also important to note that the entire transaction is between the group companies.
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For example, the Service Tax Guidelines dated June 2012 issued by the Central Board of Excise & Customs vide para 6.7.1 have clarified that when a person refrains from comptetion and received an anti- compete fee, then such abstinence is treated as deemed service as per Schedule-Il. The case of the applicant does not fit into it.
Activity of agreeing to the obligation to tolerate an act or a situation, or to do an act – As per dictionary meaning, 'tolerate' means 'accept or endure (someone or something unpleasant or disliked) with forbearance'. In our case, neither the applicant nor its affiliates are tolerating any act on behalf of each other. The entire transaction is happening between the seller and applicant independently without any aspect of tolerating an act or situation. An obligation to tolerate an act or a situation or to do an act flows from the contractual agreements between the parties. For example if A has taken a loan from the Bank and B has stood guarantor for the Sai
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to the Applicant in whatsoever form. Thus, no service provided by the applicant in the course or furtherance of business.
C. Slump sale is not in course or furtherance of business
Historically there were disputes as to whether the slump sale is goods or not. It was consistently held that the slump sale is not goods because it is not done in course of the business. In the case of M/s. Paradise Food Court, vs The State of Telangana, on 18 April, 2017 (2017-VIL-238-AP) = 2017 (5) TMI 127 – ANDHRA PRADESH HIGH COURT, the Hon'ble High Court of Andhra Pradesh held that slump sale if not goods and cannot be sold in the course of trade or business. Relevant extract is cited below for your reference;
“.. … As we have pointed out earlier, sale of business as a whole is not made taxable even now under the charging provision. It is only the sale of goods which is chargeable under Section 4(1). The definition of the expression sale would apply to a case only if the sale takes place in the co
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rtherance of business of the applicant.
Section 2(17) of CGST Act defines –
“business” includes- (a) any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar whether or not it is for a pecuniary benefit;
The Pecuniary benefit is nothing but the economic benefit accrued to the service provider immediately in exchange for the said service provided, directly or indirectly and is co-relatable with the service provided. There has to be a direct nexus between the service provided and the economic benefit accrued whether direct or indirect.
This means if the economic benefit is accrued in future and the said benefit is not co-relatable with the service provided, then the said economic benefit is not covered by the pecuniary benefit mentioned in the definition. In such a case, it would be treated as provision of service without any pecuniary benefit.
Hence if the economic benefit accrues in future and is not co-relatable with the service provided, th
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s not co-relatable with the service provided by the holding company.
In view of the above, if an economic benefit accrues in future and is not co-relatable with the service provided, then it would be treated as provision of service without any consideration. Such service if provided to a related person would qualify as supply of service without consideration in course or furtherance of business as per Sch.- I of the CGST Act.
In order to qualify any service as in course of business, the said service should be provided with the intention of deriving economic benefits. If the benefits are not immediate and direct and also not co-relatable, then apparently it looks like without consideration as per Schedule- l. There is no other situation when the service is provided without consideration in course of business. If the service is provided in course of business, then economic benefits must accrue. If it accrues immediately, directly or indirectly, then the same is treated as provision of
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ompanies is not for any economic benefits whatsoever, whether direct or indirect, immediate or in future or co-relatable or un-co-relatable. Department cannot prove that there is any economic benefit, whatsoever, attached to such relinquishing of the rights. Hence such activity of relinquishing the right is not in course of business. According said activity does not qualify as an activity mentioned in Schedule-I
If the intention of law was to include activities not in course or furtherance of business, then there would have been no mention of “in course or furtherance of business” in the definition of supply under section 7 of CGST Act. There is no legal construction to declare slump sale as supply of service by inferences or implications or indirect interpretation. That is not the object and purpose of the construct of Schedule-II. The settled rule of legal construction is to presume the legislature to have meant what they have actually expressed. The intent of the parliament must b
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. v. State of U.P., 2008 (225) E.L.T. 321 (S.C.) = 2008 (4) TMI 101 – SUPREME COURT, the Learned Counsel submitted that, when a commodity has been accepted to be of a particular nature by the Assessing Officer for a long time, it should remain to be classified as such without any change, and the common parlance test, or user test, cannot be said to be decisive in such a situation, and the onus would be on the Department to show, as to why, a different interpretation should be resorted to, when there is no change in the statutory provision, and if two views are possible, then, one, which is favorable to the assessee has to be adopted.
Also, the applicant and its affiliates (i.e. MSPL and MPMPL) are related person as per explanation to section 15 (5) of GST Act, relevant extract of which is reproduced as under;
“(a) persons shall be deemed to be “related persons” if-
(i) …….
(vi) Both of them are directly or indirectly controlled by a third person….”
Provided that gifts not e
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similar to saying that it is not for running the business but for growing the business. If the business itself does not exist it cannot be stated that it is in course of business or for furtherance of business.
The Government of India vide exemption Notification No. 12/2017- Central Tax (Rate) dated 28th June, 2017 has exempted “Services by way of transfer of going concern. as a whole or independent part thereof.”
The above notification fails to have any relevance on taxability of slump sale because if there is no levy on slump sale, then it cannot be treated as taxable service. It is evident in law from a harmonious reading and interpretation of law and the context in which the Goods and Service Tax law is framed as apparent from the object and purpose of the legislation, that slump sale is neither goods nor services. In view of the above it may be stated that if the levy is not there, the question of exemption does not apply.
It is a cardinal principle of law that it has to be i
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law, still it can be stated that such slump sale is not in course or furtherance of business and will not qualify as supply of service.
Further, mere exclusion of present transaction and slump sale from “Schedule III – activities or transactions which shall be treated neither as a supply of goods nor a supply of services”, should not be construed as that the particular activity is under the ambit Of GST law.
In the proposed amendment to GST Act there was inclusion of multiple activities under Schedule III, which were earlier not part of the said schedule. However, this doesn't imply that these activities were earlier leviable to tax under GST law. GST law like any other tax law is an evolving law and accordingly there are always amendments to incorporate what was missing hitherto. Hence there is no exhaustive list of non-goods or non-service.
E. The applicant will not qualify as “Intermediary”
Without prejudice to above submissions, it may be stated that facilitation activity prov
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ntermediary' and not liable to pay tax.
F. Direction by the applicant for facilitation of any non-service (in the present case slump sale). will not qualify as supply of service.
It is arguable that slump sale is neither supply of goods nor supply of service. In the instant scenario also, the applicant's direction to its seller is neither '”supply of goods” nor will qualify as “supply of service” under GST Act. If the intention of legislature was to levy tax on facilitation of non-service (i.e. slump sale) then they would have made specific inclusion in the definition of “'Service”, “Supply” or Schedule II of GST Act.
In this regard, it may be mentioned that although security is excluded from the definition of 'service', facilitating or arranging transaction in securities is included in the definition of 'Service' through an explanation to section 2 (102) in the proposed amendment in the GST Act for the purpose of removal of doubts with retrospective effect from July 2017. Further,
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e has to be specific inclusion in the definition of service or in Schedule-II.
It is evident from the GST law that there is no specific inclusion of such facilitation service / activity in connection with slump sale, in the definition of Service or in Schedule-II. Hence such activity in connection with slump sale (which is a non-service) is also outside the purview of the definition of Service both in Section 2(102) and also in Schedule-II and accordingly non-taxable.
G. The present transaction would be revenue neutral in the hands of the government
Notwithstanding above, in case the above transaction gets taxable under GST in the hands of applicant the recipient (MSPL and MPMPL) would qualify for input tax credit. Hence, it will be a revenue neutral transaction.
H. Applicant's Understanding
AS discussed in above Para,
* the 'applicant' has directed to the 'seller' for transfer of business vide agreement for transfer of BP and PM business but there is no activity of supply of
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re registered under the Goods and Service Tax Act, 2017, vide the registration no. 27AACCM1226B1Z4.
This is with reference to final hearing for advance ruling vide application no. 62 dated 02nd August, 2018 attended on 19th September, 2018. In continuation to the additional submission made by us 19th September, 2018, we are hereby submitting summary of final discussion held before your goodself:-
* The applicant and its affiliates entered in two agreements with the seller for slump sale of BPL business. In the first agreement, 'the Applicant' has entered into business transfer agreement with seller wherein the seller has agreed to sell to the applicant or to any affiliates as directed by applicant as a slump sale on going concern basis. Second agreement, which was an extension to the first agreement, was entered on the same day immediately after the execution of first agreement. In the second agreement both the applicant and its affiliates (MSPL and MPMPL) were purchasers. Applicant
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of agreeing to the obligation to do an act” (i.e. qualify as a supply of service under schedule II of GST Act), then also in absence of consideration, GST should not be applicable. An obligation means a contractual obligation in legal parlance. In the present case, there is no contractual obligation between the applicant and its affiliates to do any act. Hence, the activity of giving a direction cannot be classified as an “activity of agreeing to the obligation to do an act”.
* Further, the applicant and its affiliates are related parties hence, there is a possibility that it may be considered as supply under schedule I of GST Act even without consideration. However, the direction by the MLSPL to Seller (i.e. Merck Limited) is not in the course or furtherance of business hence, it Will again not qualify as 'supply' under schedule I of GST Act.
Thus, based on the above discussions, it is evident that in substance direction of applicant to seller for slump sale of BPL business doesn'
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p;
BP and PM Transfer Agreement:
* Consideration payable by MSPL to Merck Limited under the BP and PM Transfer for the transfer of the BP Business: INR 6,781,500,000
* Consideration payable by MPMPL to Merck Limited under the BP and PM Transfer for the transfer of the PM Business: INR 808,400,000
* Stamp du ty payable:
Article reference under Schedule I of the Maharashtra Stamp Act
Description of head under which stamp duty is payable
Amount of stamp duty
Article 5(h)(A)(iv)(b)
Agreement which creates any obligation, right or interest and having monetary value above INR 1,000,000
0.2% of consideration paid under the BP and PM transfer agreement
= 0.2% of INR (6,781,500,000 + 808,400,000)
=0.2% of INR 7,589,900,000
= INR 15,179,800
Article 35
Indemnity provision
INR 3000 (INR 500 *6 sets of indemnities under the agreement)
Article 5(h)(B)
Arbitration provision (covered under the residuary provision)
INR 100
Total Stamp Duty Payable
INR 15,182,900
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t No. 4 at Para B i.e. Applicant's eligibility to file present Advance Ruling Application. In light of the facts as per (c), (e) and (g) of point No. 4 at Para B, applicant wishes to seek clarification on the following matters from the Authority for Advance Ruling established under GST Act:
1. Whether applicant's direction to the seller (directed in agreement dated 21 June 2018) for direct transfer of BP business to MSPL and PM business to MPMPL, respectively would qualify as a 'supply' between the 'applicant' and 'MSPL/MPML'?
2. If the answer to the above question is 'affirmative' then as the parties are related, even in absence of the actual consideration does the applicant have to attribute a notional consideration and charge GST in line with schedule 1 of GST Act to be compliant?
3. If the answer to both the questions are 'affirmative' then as the recipients (MSPL/MPMPL) are eligible to avail full input tax credit then the notional consideration (percentage of the business tra
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here is no consideration, subject to condition specified in ITC Section/ Rules.
04. HEARING
The case was taken up for Preliminary hearing on dt. 04.09.2018 when Sh. Gurudas Pai C.A. , Sh. Abhijit Saha, Advocate, Ms. Pooja Singh, C.A. along with Sh. Mangesh Wagle, Manager Indirect tax appeared and made oral and written submissions for admission of application. Jurisdictional Officer, Sh. B.S. Manat, Division – V, CGST, Navi Mumbai Commissionerate appeared and stated that they would be making submissions in due course.
The application was admitted and called for final hearing on 19.09.2018, Sh. Gurudas Pai C.A., Sh. Abhijit Saha, Advocate, Ms. Pooja Singh, C.A. along with Sh. Mangesh Wagle, Manager Indirect tax appeared and made oral and written contentions as per details given in their application. Jurisdictional Officer, Sh. M S A Khan, Supdt., Division – V,CGST, Navi Mumbai Commissionerate appeared and stated that they have made written submissions.
05. OBSERVATIONS
We have gon
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MPMPL by and from seller.
In respect of the above two agreements, the applicant has only directed the seller to transfer these above referred business to the affiliates of MSPL and MPMPL as required, as per the terms of the first agreement between the seller and the applicant referred above.
It is further stated that the applicant, vide the two agreements referred above has directed the seller to transfer the BP business to MSPL and PM business to MPMPL as going concern on slump sale basis. As a result only LS business is sold by the seller to the applicant.
It is further stated in the application that in terms of the above referred agreement, the seller could be receiving lump sum consideration for each slump sale of BP business, PM business and LS business, independently from MSPL, MPMPL and the applicant respectively and further it is stated that this lumpsum consideration received by the seller is exempt from GST vide Sr.No. 2 of Notification No. 12/2017- Central tax (Rate) date
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he purposes of this Act, the expression “supply” includes
(a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business;
(b) import of services for a consideration whether or not in the course or furtherance of business;
(c) the activities specified in Schedule 1, made or agreed to be made without a consideration, and
(d) the activities to be treated as supply of goods or supply of services as referred to in Schedule II.”
Here we are required to refer to Schedule-I and Schedule-Il as well attached to Section 7 to examine the question as raised by the applicant.
From the details submitted before us we find that in respect of transfer of BP business to MSPL and PM business to MPMPL by the seller apparently it is seen and also claimed in the application by the applicant is that the applicant is only directing t
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en the applicant and MSPL and MPMPL.
We find that the agreement dtd. 21.06.2018 between the applicant and seller provides as under:-
“This agreement is made on 21st June, 2018
PARTIES
(1) MERCK LTD., a company incorporated under the provisions of the Companies Act, 1956, having its registered office at Godrej One, 8th floor, Pirojshanagar, Eastern Express Highway, Vikhroli (East), Mumbai-400079 and corporate identity number L99999MH1967PLC013726 (hereinafter referred to as theSeller, which expression shall, unless the context otherwise requires, includes its successors and permitted assigns, and
(2) MERCK LIFE SCIENCE PVT. LTD., a company incorporated under the provisions of the Companies Act, 1956, having its registered office at Godrej One, 8th floor, Pirojshanagar, Eastern Express 400079 with company identification number Highway, Vikhroli (East), Mumbai U24100MH2005PTC152680 (hereinafter referred to as the Purchaser, which expression shall, unless the context otherwise requi
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regate price for the BPL business is ten billion, five hundred twenty million rupees (INR 10,520,000,000) (BPL Business Price)
3.2 The BPL business Price has been determined based on the value of the BPL business as a whole and shall be paid as a lump sum consideration for transfer of the BPI- business by the Seller to the Purchaser on a going concern basis. No values have been assigned to and of the individual assets or Assumed Liabilities comprised in the BPL business. The Parties agree that the determination of the value of any asset for the purpose of payment of stamp duty, registration fees, or other similar Taxes shall not be regarded as assignment of values to individual assets.
7. PAYMENTS ON CLOSING
7.1 Purchaser Payments At closing, the Purchaser shall pay to the Seller in accordance with clause 22.1 (Payments made by the Purchaser)
(a) the BPL business price; plus
(b) the Determined VAT to the extent it is due as at closing.
8. TERMINATION
8.1 Seller and Purchaser opt
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r action by any Party.
8.3 Effect of Termination. If this Agreement terminates or is terminated pursuant to this clause 8 (Termination), neither the Seller nor the Purchaser (nor any of their Affiliates) shall have the claim, obligation or liability of any nature against any other Party (or any of its Affiliates) under this Agreement or under any of the Surviving Provisions; provided, that nothing herein shall relieve a defaulting or breaching Party from any liability or damages out of its Wilful Breach.
11. INDEMNIFICATION
11.1 Purchaser Indemnification Obligations. The Purchaser hereby undertakes that with effect from Closing, the Purchaser will indemnify on demand and hold harmless the Seller and its current and former Directors, officers, employees, and agents against and in respect of any and all:
(a) Liabilities actually suffered or incurred by any of them to the extent arising out of or resulting from any Assumed Liabilities; and
(b) Losses actually suffered or incurred by
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he central pillar of these slump sale business transfer agreement would also be clear from the relevant paras of the consequent agreement to the first agreement referred above. The consequent agreement i.e '”Agreement for transfer of the BP and PM businesses” is also dated 21.06.2018.
We reproduce the relevant paras of the same which are as under:-
AGREEMENTFOR THE TRANSFER OF THE BP AND PM BUSINESSES dated 21 June 2018
PARTIES:
(1) MERCK LTD., a company incorporated under the provisions of the Companies Act, 1956, having its registered office at Godrej One, 8th floor, Pirojshanagar, Eastern Express Highway, Vikhroli (East), Mumbai-400079 and corporate identity number L99999MH1967PLC013726 (Seller);
(2) MERCK LIFE SCIENCE PVT. LTD., a company incorporated under the provisions of the Companies Act, 1956, having its registered office at Godrej One, 8th floor, Pirojshanagar, Eastern Express Highway, Vikhroli (East), Mumbai – 400079 with company identification number U33100MH198&ael
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or around the date hereof with the Seller (the Business transfer Agreement) under which Merck 1 will acquire the BPL Business from Seller.
WHEREAS under the Business Transfer Agreement, Merck 1 has the right to direct the Seller to transfer the BPL Business or part thereof to an affiliate of Merck 1.
WHEREAS the Parties have agreed that the BPI„ Business shall be transferred from Seller directly to Merck 2 upon the terms set out in this Agreement.
WHEREAS the Parties have agreed that the PM Business shall be transferred from Seller directly to Merck 3 upon the terms set out in this Agreement.
WHEREAS the LS Business will be transferred from Seller to Merck 1 pursuant to the terms of the Business Transfer Agreement.
IT IS AGREED
1. TRANSFER OF THE BP AND PM BUSINESSES
1.1 Subject to the terms and conditions set forth herein and in the Business Transfer Agreement and in consideration for the mutual covenants herein Merck 1 herby directs Seller, as permitted under the Busin
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paid by Merck 1, Merck 2 and Merck 3 as follows:-
(a) Merck 1 shall, pursuant to and in accordance with the Business Transfer Agreement, pay to the Seller the proportion Of the BPL Business Price (as defined in the Business Transfer Agreement) which relates to the LS Business, being two billion, nine hundred thirty million, one hundred thousand Rupees(INR 2,930,100,000) (the LS Business Price) together with the IS determined VAT to the extent it is due as at BTA Closing, it being understood that the LS Business Price has been determined based on the value of the LS Business as a whole and shall be paid to Seller as a lump sum consideration for transfer of the LS Business by Seller to Merck 1 on a going concern basis;
(b) Merck 2 shall pay to the Seller the proportion of the BPL Business Price (as defined in the Business Transfer Agreement) which relates to the BP Business, being six billion, seven hundred eighty one million, five hundred thousand rupees (INR 6,781,500,000) (the BP Bu
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may be terminated at any time prior to BTA Closing:
(a) by mutual written consent of Merck Parties;
(b) by ant Merck Party, if BTA Closing does not occur before the Long Stop Date;
(c) automatically in the event that the Business Transfer Agreement is terminated in accordance with its terms.
Thus from the details above, it is reiterated and clear that the role of the applicant is very crucial in respect of both the agreements as discussed above and without the directions of the applicant, the second agreement could not have materialized and further, in respect of all the terms of the second agreement as detailed above the applicant is an active party in the agreement as well and he and his directors have an active role in all aspects of the agreement, starting from terms relating to parties to agreement, transfer of the BP and PM business, Price and Termination which is very clear from these details of agreement reproduced above.
Thus we clearly find that this role of the applica
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sideration. In view of this in this case the value is to be determined in terms of Rule 28 of the CGST Rules, 2017.
Now we come to Question No. 3 as raised by the applicant which is as under:-
Question 3 :- If the answer to both the questions are ' affirmative' then as the recipients (B{SPL/MPMPL) are eligible to avail full input tax credit then the notional consideration (percentage Of the business transfer value) would be only academic and will the invoice value be considered as open market value?
In respect of this Question we find that the value is to be determined as per Rule 28 of the CGST Rules, 2017 and therefore there is no requirement on our part to answer this question.
05. In view of the extensive deliberations as held hereinabove, we pass an order as follows:
ORDER
(Under section 98 Of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
NO.GST-ARA- 62/2018-19/B-133
Mumbai, dt.30.10.2018
For reasons as discussed in th
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IGST Export Refunds – extension in SB005 alternate mechanism And revised processing in certain cases including disbursal of compensation Cess
PUBLIC NOTICE No. 37/2018 Dated:- 30-10-2018 Trade Notice
Customs
OFFICE OF COMMISSIONER OF CUSTOMS
NEW CUSTOM HOUSE, KANDLA-370 210
Phone No. 02860-271468/469, FAX NO. 02836-271467
F. No. S/20-72/PN/IGST Ref/AG/2017-18
Dated: 30/10/2018
PUBLIC NOTICE No. 37/2018
Subject: – reg.
Attention of all Importers, Exporters, Customs Brokers, Members of the Trade and Industry and other stakeholders is invited towards CBIC Circular No. Circular No. 40/2018-Custom dated 24.10.2018 issued through F. No: 450/119/2017-Cus-IV regarding IGST Export Refunds – extension in SB005 alternate mechanism and revised processing in certain cases including disbursal of compensation Cess.
2. Exporters are availing the refunds of IGST paid on exports regularly for more than a year now. It has been observed that exporters have committed many errors which ha
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tion/outreach programmes. However, giving high priority to the interests of exporters, it has been decided by the Board to extend the rectification facility to Shipping Bills filed up to 15.11.2018. However, it has been reiterated that the exporters shall have to take care to ensure the details of invoice, such as invoice number, IGST paid etc. under GSTR 1 and shipping bill match with each other since the same transaction is being reported under GST laws and Customs Act.
4. It may be noted that SBs which have not been scrolled due to the IGST paid amount erroneously declared as 'NA' are already being handled through officer interface as per Board's Circular 08/2018 – Customs dated 23.03.2018. However, no such provision was hitherto available in respect of those SBs which were successfully scrolled, albeit with a lesser than eligible amount.
5. CBIC has been receiving representations where the refund scroll has been generated for a much lesser IGST amount than what has actually b
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18. However, exporters need to be cautious while filing details in Shipping Bill as a similar facility may not be available in future for the same mistake for referred shipping bill. Also, Customs Officers while processing claims using officer interface should exercise due diligence so that mistakes are not repeated again.
7. In order to claim the differential amount, the exporter is required to submit a duly filled and signed Revised Refund Request (RRR) (annexed to the Public Notice) to the AC (IGST Refund). The AC (IGST Refund) will then proceed to sanction the revised amount after due verification through the option provided in ICES. Once the revised amount is approved by the AC (IGST Refund) in the system, a fresh scroll will be available for generation for the differential amount only.
8. It may be noted that only those SBs which have already been scrolled shall be available in this facility. Further, this facility can used only once for each eligible SB to sanction the revised
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Sikkim Goods and Services Tax (Thirteenth Amendment) Rules, 2018
60/2018 – State Tax Dated:- 30-10-2018 Sikkim SGST
GST – States
Sikkim SGST
Sikkim SGST
GOVERNMENT OF SIKKIM
FINANCE, REVENUE AND EXPENDITURE DEPARTMENT
COMMERCIAL TAXES DIVISION
GANGTOK
No. 60/2018 – State Tax
Dated 30th October, 2018
NOTIFICATION
In exercise of the powers conferred by section 164 of the Sikkim Goods and Services Tax Act, 2017 (9 of 2017), the State Government hereby makes the following rules further to amend the Sikkim Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Sikkim Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Sikkim Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules),after rule 83, the following rule shall be inserted, namely:-
“83A. Examination of Goods and Services Tax Practitioners.- (1.) Ever
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fficial websites of the Board, NACIN and common portal.
(5). Examination centers.- The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centres as provided by NACIN at the time of registration.
(6). Period for passing the examination and number of attempts allowed.- (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule.
(ii.)A person required to pass the examination may avail of any number of attemp
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f the total marks.
(9). Guidelines for the candidates.- ( i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii)Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: –
(a) obtaining support for his candidature by any means;
(b) impersonating;
(c) submitting fabricated documents;
(d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination;
(e) found in possession of any paper, book, note or any other material, the use of which is not permit
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ndling representations.- A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by the National Academy of Customs, Indirect Taxes and Narcotics on the official websites of the Board, National Academy of Customs, Indirect Taxes and Narcotics and Goods and Services Tax Network.
(13). Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation :- For the purposes of this sub-rule, the expressions –
(a) “GSTN” means the Goods and Services Tax Network, a company registered under the Companies Act, 2013;
(b) “jurisdictional Commissioner” means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GS
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A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register.
(2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, a summary thereof shall be uploaded on the common portal in FORM GST DRC-08A and Part II of Electronic Liability Register shall be updated accordingly.”.
5. In the said rules, in FORM GST REG-16,-
(a) against serial number 7, for the heading, the following heading shall be substituted, namely:-
“In case of transfer, merger of busines
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vening period (i.e. from the date of registration to the date of application for cancellation of registration).”.
6. In the said rules, for FORM GST PMT-01 relating to “Part II: Other than return related liabilities”, the following form shall be substituted, namely:-
“Form GST PMT -01
[See rule 85(1)]
Electronic Liability Register of Registered Person
(Part-II: Other than return related liabilities)
(To be maintained at the Common Portal)
Reference No.-
Date-
GSTIN/Temporary Id –
Name (Legal) –
Trade name, if any –
Stay status – Stayed/Un-stayed Period – From To (dd/mm/yyyy)
Act – Central Tax/State Tax/UT Tax/Integrated Tax/CESS /All
(Amount in Rs.)
Sr.No.
Date (dd/mm/yyyy)
Reference No.
Tax Period, if applicable
Ledger used for discharging liability
Description
Type of Transaction*
Amount debited/credited (Central Tax/State Tax/UT Tax/Integrated Tax/CESS/amount under existing law/Total)
From
To
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
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alance may still be positive subject to the adjustment of the refund against any liability by the proper officer.
6. The closing balance in this part shall not have any effect on filing of return.
7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules.
8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash.
Debit and credit entry will be created simultaneously.”.
7. In the said rules, in FORM GST APL-04, after serial number 9, and the Table relating thereto, the following shall be inserted, namely:-
“10. Details of IGST Demand
Place of Supply (Name of State/UT)
Demand
Tax
Interest
Penalty
Other
Total
1
2
3
4
5
6
7”.
Disputed Amount
Determined Amount
8. In the said rules, after FORM GST DRC-07, the following form shall be inserted, namely:-
“FORM GST DRC-07A
[See rule 142A(1)]
Summary
= = = = = = = =
Plain text (Extract) only
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2
3
4
5
6
7
Central Acts
State/ UT Acts
CST Act
20.
Amount of demand paid under existing laws
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State / UT Acts
CST Act
21.
(19-20)
Balance amount of demand proposed to be recovered under GST laws
<< Auto-populated >>
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State / UT Acts
CST Act
Signature
Name
Designation
Jurisdiction
To
_______________ (GSTIN/ID)
Name
_______________ (Address)
Copy to –
Note –
1. In case of demands relating to short payment of tax declared in return, acknowledgement / reference number of the return may be mentioned.
2. Only recoverable demands shall be posted for recovery under GST laws. Once, a demand has been created through FORM GST DRC-07A, and the status of the demand changes subsequently, the status may be amended through FORM GST DRC-08A.
3. Demand paid up to the date of uploading the summary of the ord
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Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
__State UT __ Centre
<< Auto >>
7.
Old Registration No.
<< Auto, editable >>
8.
Jurisdiction under earlier law
<< Auto, editable >>
9.
Act under which demand has been created
<< Auto, editable >>
10.
Tax period for which demand has been created
<< Auto, editable >>
11.
Order No. (original)
<< Auto, editable >>
12.
Order date (original)
<< Auto, editable >>
13.
Latest order no.
<< Auto, editable >>
14.
Latest order date
<< Auto, editable >>
15.
Date of service of the order
<< Auto, editable >>
16.
Name of the officer who has passed the order (optional)
<< Auto, editable >>
17.
Designation of the officer who has passed the order
<< Auto, editable >>
18.
Whether demand is stayed
__Yes __No
19.
Date of stay order
20.
Period of Stay
21.
Reason for updation
<< Text box >>
Part B – Demand details
22.
Details of demand posted originally through Table 21 of FORM GST DRC-07A
(Amount in Rs. in all tables)
<< Auto >>
Act
Tax
Interest
Penalty
F
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Plain text (Extract) only
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GST Council Achievements: 918 Decisions Made, 96% Implemented via 294 Notifications Over 30 Meetings.
News
GST
Goods and Services Tax Council – Journey so far – GST Council met 30 times, to
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