Author: admin_gst

SHAKTI HORMANN PVT. LTD. Versus CCT, CE&ST, MEDCHAL GST
Service Tax
2018 (12) TMI 426 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 4-12-2018
APPEAL No. E/30502/2018 – A/31495/2018
Service Tax
Mr. M.V. Ravindran, Member (Judicial)
Shri Karan Talwar, Advocate for the Appellant.
Shri Moin. Anwar, Asst. Commissioner/AR for the Respondent.
ORDER
Per: Mr. M.V. Ravindran
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-MD- AP2-0228-17-18-CE, dated 25.01.2018.
2. The relevant facts that arise for consideration are appellant herein is the manufacturer and sale of steel doors and also provides taxable services; is engaged in trading of hardware items. Appellant availed CENVAT credit of common input services as also input services and inputs; had not availed CENVAT credit of service tax paid on services utilised for exempted services and reversed the CENVAT credit attributable to trade activity based upon the turnover as provided under Rule

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ppellate authority also disposed of the appeal upholding the view of the adjudicating authority.
3. Ld. Counsel after drawing my attention to the facts of the case submits that the issue is covered by the decisions of the Tribunal in the case of Sify Technologies Ltd. vs. CST, Chennai [2016-TIOL-911- CESTAT], Sanjay Automobile Engineering Pvt. Ltd. vs. CCE, Pune-III [2016-TIOL-1314-CESTAT-MUM] and Trans Asian Shipping Services Pvt. Ltd. [2018(9) TMI 922-CESTAT-Bangalore]. It is his submission that the first appellate authority has tried to deviate/distinguish the judgment of the Tribunal in the case of Sify Technologies Ltd. only on the ground that the provisions of Rule 6(2) were worded differentially at that time and used differentially during the period in question in this appeal. He draws my attention to the provisions of Rule 6(2) which is to be interpreted in the case in hand. He would submit that they are covered by the provisions of Rule 6(2). Further, it is his submission tha

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ns made by both sides, I find that there is no dispute as to the fact that appellant is eligible to avail CENVAT credit of various input services; has maintained separate accounts for the services which are received exclusively for exempted services; that they are undertaking trading activity for which common services were received. Appellant during the period in question i.e. March 2012 to March 2015 had reversed the CENVAT credit, attributable to the trading activity (exempted services) on a mathematical formula which was followed by him which is the turnover of the trading activity of the total turnover multiplied by CENVAT credit availed on common input services, that every month they have been filing the returns with the authorities giving all the details of such reversals; that many audits have taken place in the factory premises and only in subsequent audit, had brought out this anomaly.
6. Relevant provisions of Rule 6 which is applicable for the period in question, needs to b

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dutiable final products or in providing output service and the quantity of input meant for use in the manufacture of exempted goods or services and take CENVAT credit only on that quantity of input or input service which is intended for use in the manufacture of dutiable goods or in providing output service on which service tax is payable.”
7. It is seen from the above reproduced provisions that the intention of the Legislature was that a manufacturer or a service provider should not avail the entire CENVAT credit of the service tax paid on common input services and should avail proportionate credit attributable to the taxable output service for which the CENVAT credit Rules provides for maintaining separate accounts. In my view, appellant herein has followed this rule by taking the credit of only an amount which is attributable to the taxable services provided by him and not availing the CENVAT credit of the input services which are attributable to the trading activity. By availing

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They have produced Chartered Accountant certificates before the learned Commissioner, however, out of above five appeals, only in one case the Commissioner has caused a factual enquiry and has stopped the proceedings. It is not understood as to why such an enquiry was not conducted in respect of other show-cause ST/1252/2010; ST/1721/2011; ST/1700-3466/2012; & ST/21676/2014 12 notices. Understandably, the appellants are a big entity spread over different countries and different places in India as there is no prescribed manner for maintenance of records under CENVAT Credit Rules, the records maintained by the appellants have to be accepted as records for the purpose of observing the conditions of CENVAT Credit Rules. Moreover, we find that the Chartered Accountant has given a categorical certificate that the appellants are maintaining separate records and have been making reversals of the balance amounts at the end of every month.”
In the case of Sify Technologies Limited, the issue i

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rows light that appellant has chosen a way of maintaining its record which enabled it to substantially allocate the cenvat credit of service tax suffered by the departments in Table-C and partly to the department in Table-B. It has complied to the provisions of sub-rule (2) of Rule 6. Once the conduct of the appellant in the manner indicated by the material facts stated above is very clear because of the proportionality of the credits allocated, due to its division of the department and maintenance of records, there cannot be any presumption by Revenue that the appellant's case falls under Rule 6 (3) of CCR 2004. It is also apparent from record that the order passed by the Authority below is unreasonable for the reason that as against credit of Rs. 6,66,423/- allocated to the department in Table- B which provided exempted service, disallowance of entire credit of Rs.1,11,07,075/- allocated to Departments in Table-A providing taxable service is contrary to the principal of proportio

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In Re: M/s. OPTA Cabs Private Limited
GST
2018 (12) TMI 711 – APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA – 2019 (20) G. S. T. L. 161 (App. A. A. R. – GST)
APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA – AAAR
Dated:- 4-12-2018
KAR/AAAR/04/2018-19
GST
SHRI. A.K. JYOTISHI, AND SHRI. M.S. SRIKAR, MEMBER
Represented by: Sri Chandrashekar Reddy, Managing Director
PROCEEDINGS
(Under Section 101 of the CGST Act, 2017 and the KGST Act, 2017)
At the outset we would like to make it clear that the provisions of both CGST, Act 2017 and SGST, Act 2017 are in pari material and have the same provisions in like matter and differ from each other only on a few specific provisions, Therefore unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the KGST Act.
The present appeal has been filed under section 100 of the Central Goods and Service Tax Act 2017 an

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elf directly from the customer on the completion of the trip either through cash or through e-payment.
3. The appellant filed an application for Advance Ruling under section 98 of the CGST Act, 2017, and KGST Act, 2017 on the question as to whether the money paid by the customer directly to the driver of the cab for the service of the trip is liable to GST and whether the applicant is liable to pay GST on this amount.
4. It was decided by the Karnataka Advance Ruling Authority vide Ruling No. KAR/ADRG 14 OF 2018 July 27, 2018 =  2018 (8) TMI 933 – AUTHORITY FOR ADVANCE RULINGS, KARNATAKA that GST is leviable on the amounts billed by the appellant on behalf of the taxi operators for the services provided in the nature of transportation of passengers through it.
5. Aggrieved by the said Ruling of the Authority (herein after referred to as 'impugned order'), the appellant has filed an appeal under section 100 of the CGST Act, 2017 and KGST Act, 2017 on the following grounds.
i. T

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ellant Viz. OPTA shall provide a receipt of the total ride fee payable by customer at the end.
v. Section 9(5) of Central Goods and Service Tax Act 2017 states that:
“(5) The Government may, on the recommendations of the Council, by notification, specify categories of services the tax on intra-State supplies of which shall be paid by the electronic commerce operator if such services are supplied through it, and all the provisions of this Act shall apply to such electronic commerce operator as if he is the supplier liable for paying the tax in relation to the supply of such services:
Provided that where an electronic commerce operator does not have a physical presence in the taxable territory, any person representing such electronic commerce operator for any purpose in the taxable territory shall be liable to pay tax:
Provided further that where an electronic commerce operator does not have a physical presence in the taxable territory and also he does not have a representative i

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able in case services are not supplied through it. Hon'ble authority failed to make a distinction between such services being “supplied” through it as against such services being “booked” through it. In case of the words “supplied”, there has to be a “continuous link” of provision of service from start to end and there should be complete responsibility of the deemed supplier.
vii. OPTA model services of taxi are not supplied through it, due to following reasons:
* There is no privy of contract on account of payment between OPTA and customer. Customers pay directly to taxi drivers; and
* OPTA does not charge any trip commission from taxi drivers. Thereby there is no flow of consideration on account of any particular trip undertaken by the said taxi driver. OPTA charges monthly rentals to taxi driver for usage of IT platform. The responsibility of OPTA is limited to providing a stable and fully functional IT platform to taxi drivers, and provision of taxi driver services is the so

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service provided by OPTA is limited to IT platform service and is not required to be taxed under section 9(5) of the CGST Act, 2017 and prayed to set aside / modify the impugned advance ruling passed by the authority for advance ruling.
DISCUSSIONS AND FINDINGS
9. We have gone through the records of the case and taken into account the submissions made by the Appellant in their written submissions as well as at the time of personal hearing. Briefly stated the facts are that the Appellant is in the business of operating taxi aggregation service wherein the Appellant provides an IT platform whereby services of information technology is provided to both the customers and the taxi operators for the usage of service. The business model of the Appellant is that a potential customer would book the taxi by using the IT platform provided by the Appellant and the taxi operator would be intimated about the potential customer through the same IT platform. On completion of the journey, the Appel

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including digital products over digital or electronic network.
As per Section 2(45) of the CGST Act, 2017, electronic Commerce operator means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce.
In the instant case the transportation of passenger service is provided by the taxi drivers by using a software application. Transportation of passengers is a taxable service liable to GST. The provision of this service by the taxi driver to the passenger is a 'supply' within the scope of supply given in Section 7 of the CGST Act since the service is provided for a consideration. The Appellant on the other hand has developed a digital platform which aggregates the taxi drivers on one common platform. The service of transportation of passengers is supplied by the taxi drivers using the digital application developed by the Appellant. The Appellant manages the digital application which facilitates the supply of the service of transportatio

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otification, specify categories of services the tax on intra-State supplies of which shall be paid by the electronic commerce operator if such services are supplied through it, and all the provisions of this Act shall apply to such electronic commerce operator as if he is the supplier liable for paying the tax in relation to the supply of such services.”
13. Under the provisions of sub-section (5) of section 9 of the CGST Act and Notification No. 17/2017 – Central Tax (Rate) dated 28th Junes 2017 was issued whereby, the services by way of transportation of passengers by a radio-taxi, motorcab, maxicab and motor cycle was notified as the category of services, the tax on intra-State supplies of which shall be paid by the electronic commerce operator.
14. Section 9(5) of the CGST Act shifts the liability to pay the tax from the actual supplier of the notified services to the e-commerce operator. The provisions of Section 9(5) Of the CGST Act do not in any way imply that the Supplier of

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In this case, booking for a taxi ride on the digital application is a part of the activity of the supply of the service of transportation of passengers. Without the booking no service can be supplied. Every supply begins with a request for the supply. The request can be in the form of a written request like a purchase order, a verbal request or a request made on the digital application which is in the nature of 'booking'. Honouring such requests by the supplier of the goods or services, in return for a consideration, is the taxable event of 'supply'. Therefore, booking for a service is also an integral part of the supply chain and hence there is no merit in the argument of the Appellant that the service has merely been 'booked' on their platform and not 'supplied through it'. We reiterate here that the supply of the service of transportation of passengers has been provided 'through' the digital platform and by virtue of the provisions of Section 9(5) of the CGST Act, the e-commerce op

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M/s. Indian Oil Corporation Ltd. Versus Commissioner of GST & Central Excise Chennai
Service Tax
2018 (12) TMI 790 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 4-12-2018
Appeal No. ST/47/2011 – Final Order No. 43025/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri M.N. Bharathi, Advocate for the Appellant
Shri K. Veerabhadra Reddy, ADC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellant is a public sector undertaking under the Ministry of Petroleum and Natural Gas, Govt. of India. They were providing the facility of storage to IBP Co. Ltd. and received consideration for the services provided under 'Storage and Warehousing services'. They discharged service tax for such services. Later, the Ministry of Company Affairs accorded sanction to the scheme of amalgamation of M/s. IBP Co. Ltd. with the appellant's organization (M/s. IOC) vide order dated 30.4.2007. In view

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e providing storage services to M/s. IBP Co. Ltd. Both these entities were amalgamated by an order passed by Ministry of Company Affairs dated 30.4.2007. In such order, it is specifically stated that the amalgamation is to take effect from 1.4.2004. The amalgamation having taken effect from 1.4.2004, both these entities have become a single entity with effect from 1.4.2004. Therefore, the services provided by the appellant to M/s. IBP Co. Ltd. during the relevant period from April 2004 to August 2007 will be services, if any, provided to one self and therefore not subject to levy of service tax. The appellant has therefore filed the refund claim on 14.3.2008. The refund claim has been filed within one year as prescribed under section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1994. The authorities below have rejected the refund claim alleging that the service tax having been paid in 2004, the refund claim filed on 14.3.2008 is barred by limitation. He adve

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aim on14.3.2008 which is well within the time. Therefore, the rejection of refund claim on the ground of time-bar is erroneous. He relied upon the decisions in the following cases:-
a. Indian Oil Corporation Ltd. Vs. Commissioner of Service Tax, Mumbai – 2015 937) STR 575 (Tri. Mumbai)
b. Commissioner of Central Excise, Trichy Vs. IOC Ltd. – 2011 (23) STR 625 (Tri. Chennai)
c. Commissioner of Service Tax, Delhi Vs. ITC Hotels Ltd. – 2012 (27) STR 145 (Tri. Del.)
2.1 With regard to the issue of unjust enrichment, he submitted that there is no service provided at all as both the entities have been merged into one and therefore no question of unjust enrichment would arise. To support his argument, he relied upon the decision of the Tribunal in the case of Usha International Ltd. Vs. CST – 2016 (43) STR 552 (Tri. Del.)
3. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. He submitted that the relevant date for computing the limitation as prescribed

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r it is specifically stated that the amalgamation is to take effect from1.4.2004. The relevant paragraph of the amalgamation scheme is reproduced as under:-
“1. Para 27 of the above specifies the following:-
“Now, therefore, the sanction of the Central Government is hereby accorded to the Scheme (being Annexure A1 to the petition) of IBP (Transferor Company) with IOC (Transferee Company) under section 391(2) read with section 394 of the Act. The scheme shall be binding on the shareholders and creditors of the Transferor Company and Transferee Company and all concerned with effect from 1.4.2004 being the appointed date under the said scheme.
2. Part II of the Scheme of Amalgamation between IBP and IOC for which sanction has been accorded vide the Order of Central Govt. stated above specifies that the Amalgamation is with effect from the Appointed Date i.e.. 1.4.2004.”
From the above, it can be seen that the appointed date for the amalgamation to take effect is 1.4.2004. The order

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efund claim is not hit by time bar.
5.1 The issue of unjust enrichment in the case of amalgamation has been analyzed by the Tribunal in the case of Usha International Ltd. (supra). The Tribunal in the said case has referred to the decision in ITC Hotels Ltd. (supra). In the said case, the facts reveal that the service tax pertaining to refund was paid by the assessee for the period from 1.3.2007 to 31.8.2008. As a consequence of merger with effect from 1.4.2007, refund claims were filed. These were rejected by the authorities below on the ground that the assessee had not established that the incidence of duty was not passed on to another. Though the order of merger was passed High Court on 26.5.2008, the merger was to take effect from 1.4.2007. The Tribunal after analyzing the issue held that the assessee is eligible for refund as the service was rendered to self and the burden cannot be passed on to one self. Further, in the case of M/s. Sescot Sheet Metal Works Ltd. Vs. Commissioner

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RAI PREXIM INDIA PRIVATE LIMITED Versus STATE OF KERALA REPRESENTED BY ITS SECRETARY (TAXES), THIRUVANANTHAPURAM, THE COMMISSIONER OF STATE GST KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM, ASSISTANT STATE TAX OFFICER SQUAD NO. VII, KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD, AMITY ROCK PRODUCTS PVT. LTD., THE UNION OF INDIA REPRESENTED BY THE SECRETARY (REVENUE), NEW DELHI, GOODS AND SERVICE TAX COUNCIL THROUGH ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NEW DELHI, GOODS AND SERVICE TAX NETWORK THROUGH ITS CHAIRMAN, EAST WING, NEW DELHI, AND CHIEF COMMISSIONER OF CENTRAL TAXES CENTRAL GST OFFICE, KERALAD
GST
2018 (12) TMI 1004 – KERALA HIGH COURT – 2019 (23) G. S. T. L. 454 (Ker.)
KERALA HIGH COURT –

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d another e-Way bill produced as Ext.P5. In Ext.P5, the place of delivery was correctly shown as 'Pathanamthitta'. However, the value of the goods was mentioned as Rs. 388220/- instead of Rs. 3882200. Taking exception to this e-Way bill, goods have been detained.
2. If a human error which can be seen on naked eye is detected, such human error cannot be capitalised for penalisation. Normally, this Court could not have persuaded to accept the contention on prima facie value as it is a matter for decision by competent authority and this Court can only order release of the vehicle and goods as against Bank guarantee. But I am persuaded to adopt a different course for the simple reason that if the petitioner had paid the IGST in accorda

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Khanduja Coal Transport Co. Versus CGST C.C & C. E-Jabalpur
Service Tax
2019 (1) TMI 322 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 4-12-2018
Appeal No. ST/50294/2016-CUS (DB) – ST/A/53422/2018-CU[DB]
Service Tax
Mr. Anil Choudhary, Member (Judicial) And Mr. C.L. Mahar, Member (Technical)
Shri H. Bansal, Advocate for the appellant
Shri G.R. Singh, DR for the respondent
ORDER
Per: C.L. Mahar
1. The brief facts of the matter are that the appellant is engaged in Goods Transporter Agency Service and for which they are duly registered with Service Tax Department. As per the various agreements entered by the appellant with M/s Western Coal Field Ltd. the appellant has been provided work contract for transportation of coal from mining area either to washery or to the railway siding by employing tippers and trucks for this purposes. The scope of work included loading of the coal from mining area to the washery or to the railway siding, transportation t

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hed Commissioner (Appeal) who has detoed the order of Joint Commissioner vide his order dated 30st November 2015 and now the appellant is before us against the above mention Order-in-Appeal.
2. The basic issue before us for adjudication is that whether the department is correct in holding a view that the service provided by the above mentioned appellants falls under the category of cargo handling services as defined under section 65 (105) (zr) read with section 105 (23) of the Finance Act, 1994 or whether the service tax has correctly been paid by recipient of the service under Goods Transportation Agency service on reverse charge basis. In this regard, it will be appropriate to have a look at the sample contracts which the appellant has entered with the service recipient, namely, M/s W.C.F. Ltd.
LOA No. WCL/KAN/SO(M)/P 175/2012-985 dated 6.01.2013
Description of work
Qty
Rate/Unit
Amount(Rs)
JOB No.1)
Transportation of coal form Bunker of Tandsi, mines to Nandan Washery by hir

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Coal from Takia Nallah OC Stock yard to Hiragarh Siding, Kanhan Area.
Minimum Daily rate of transportation 1000 Tonnes. Distance: 12.7 KMs.
0.80 Lakh Tonnes
Rs.62.40
Rs.4999200.00
(Rupee Forty Nine Lakhs Ninety Nine Thousand Two Hundred only)
3. It can be seen from the above mentioned terms of the contract that rates which have been provided to the appellant is based on the distance for which transportation of the coal is to be undertaken by the service provider i.e. the appellant in these cases. The relevant prices as mentioned above is also subject to escalation of the transportation rates as per changes in the fuel price for the relevant period. This basically signifies that the rates are pre-dominantly for transportation of cargo rather than for handing of cargo. However, before proceeding further the relevant section 65 A of Finance Act, 1994 need to be looked into in detail for classification of the service rendered by the appellant. The provisions of section 65A provides

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s 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 be seen from the above contract that the essential character of the service for which contract has been entered by the service provider is that the service received are for transportation of coal for mining area to the railway siding and the activity of loading/ unloading mechanically or otherwise is in our view, is only incidental to the activity of transportation of the cargo in these cases.
5. In view of the above, we hold that the service provided by the appellants have rightly been classified in the Goods Transportation Agency service.
6. We also feel that this issue has already been examined by the Hon'ble Supreme Court in their decision in the case of CCE & ST Raipur Vs Singh Transporters [(2017 (4) GSTL 3 (S

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Namtel Technologies Pvt. Ltd. Versus CGST, CE & CC. Bhopal
Service Tax
2019 (1) TMI 373 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 4-12-2018
Service Tax Appeal No. ST/53071/2018-ST [SM] – FINAL ORDER NO. 53415/2018
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Pradeep Mutreja, CA
Present for the Respondent: Ms. Tamanna Alam, D.R.
ORDER
PER: RACHNA GUPTA
The appellant herein is engaged in providing taxable services as that of errection, commissioning and installation services and the works contract service. During the scrutiny of ST-3 Return of the appellants for the period July, 2012 to March, 2014, the Department observed a short payment of tax on the total value as declared by the appellant. Resultantly, vide show cause notice bearing No.7769 dated 25.09.2014, service tax amounting to Rs. 19,90,256/- allegedly short paid for the above mentioned period was proposed to be recovered alongwith the cenvat credit a

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t-coming occurred due to the error committed on account of the failure of the software but was not at all intentional on part of the appellant. It is submitted that the ST-3 Returns were timely been filed (half yearly returns) reflecting all the details as that of showing the details of opening balance, taxable value, tax paid and the availment and utilization of credit. In addition, at the time of personal hearing, the calculation chart alongwith those returns were provided to the Department. However, the Adjudicating authority below have not considered the same It is finally impressed upon that while undoing the software issue at their own level, the appellant noticed a short payment of Rs. 56,070/- which was also paid by him vide challan dated 5th October, 2013. The order under challenge is therefore prayed to be set aside.
4. While rebutting these arguments, ld. A.R. has submitted that no document was provided by the appellant before the adjudicating authorities below, despite tha

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pparent denial of rebutting the failure in the software of the appellant as is mentioned by them.
6. The perusal of order under challenge reflects that the demand as proposed in show cause notice has been confirmed only for want of the documents/ documentary proof and on the presumption that had there been error in filing ST 3 returns as per the plea of the appellant, the same would have been reflected online itself. However, the perusal of record even the order under challenge shows that the documents not only in the form of ST 3 returns but the calculation chart as well were produced before the adjudicating authorities below. These returns include the half yearly returns for the financial years under question. Perusal of these returns shows that the opening balance for the first half yearly return is same as that of second half yearly return. This perusal is sufficient to hold that the software has not appropriately picked up the value of opening balance. This perusal also makes it

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GST – Shifting of location of Mettupalayam Range Office to Karamadai
TRADE NOTICE: 05/2018 Dated:- 4-12-2018 Trade Notice
Customs
OFFICE OF THE PRINCIPAL COMMISSIONER OF GST & CENTRAL EXCISE
6/7, ATD STREET, RACE COURSE ROAD, COIMBATORE – 641 018.
[Issued in FiIe C. No. IV/16/02/2017-GST. Pol.]
Date:04.12.2018
TRADE NOTICE: 05/2018
Sub: Reg.
The trade & industry are hereby informed that the CGST Mettupalavam Range falling under the jurisdiction of Coonoor Division, functioning in

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Interest on late payment of GST
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 3-12-2018 Last Reply Date:- 6-12-2018 Goods and Services Tax – GST
Got 4 Replies
GST
XYZ making late payment of monthly GST and therefore liable to pay Interest. E.g. if he is paying GST today and total GST payable is ₹ 100/- while today he has got balance of unutilized input tax credit of ₹ 80/-, therefore he will be paying ₹ 20/- in cash. As far as interest is concerned, he ha

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Providing Buses with Driver and Fuel to Municipality is a Service Supply, Subject to GST.
Case-Laws
GST
Classification of services – Supply of Services or not – Services to NMC by providing t

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No GST on goods sold to Indian customers if goods remain outside India and aren't brought in.
Case-Laws
GST
Levy of GST – The applicant is not liable to pay GST on the supply of goods located

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Mono Calcium Phosphate in Poultry Feed Not Exempt from GST Under HSN Codes 2301, 2302, 2308, 2309.
Case-Laws
GST
Classification of goods – various poultry feed products – whether covered unde

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E-way Bill Incomplete: Goods Detained; Interim Release Requires Compliance with Section 129.
Case-Laws
GST
Detention of goods with vehicle – goods detained on the ground Part B of the accompa

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Respondent Accused of Profiteering by Not Passing Increased Input Tax Credit Benefits to Customers in Transactions.
Case-Laws
GST
Profiteering – Respondent did not pass on the benefit arising out of the increased ITC in the case of the subject transaction – the possibility of the Respondent having profiteered and thus unfairly benefited in the similar manner, in case of the other supplies affected by him to other customers, cannot be ruled out.
TMI Updates – Highlights, quick notes,

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GST on Insurance claim received
Query (Issue) Started By: – Sharmila P Dated:- 3-12-2018 Last Reply Date:- 4-12-2018 Goods and Services Tax – GST
Got 2 Replies
GST
I am a registered person under GST. My goods were lost by fire. With regard to this, I received an insurance claim from the insurer. Should i charge GST on the claim received by me from the insurer? what are input tax credit implications if i have availed ITC on the premium paid?
Reply By CASusheel Gupta:
The Reply:
1)

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Savitri Leasing & Finance Ltd. Versus C.C.E. & CGST
Service Tax
2018 (12) TMI 263 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 3-12-2018
Service Tax Appeal No. ST/52834/2018 [SM] – FINAL ORDER NO. 53345/2018
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Rahul Lekhwani, Advocate
Present for the Respondent: Mr. K. Poddar & Mr. S. Nunthuk, DRs
ORDER
PER: RACHNA GUPTA
The appellant herein are engaged in providing renting of immovable property services and have got themselves registered on 26.02.2007. The appellant under Voluntary Compliance Encouragement Scheme dated 30.12.2013 had filed VCES-I declaring the tax dues of Rs. 4,50,756/- against renting of immovable property services for the period w.e.f. 01.10.2008 to 31.03.2010 vide challan No. 50518 dated 28.12.13. On examination of the said VCES-I, the Department observed that the tax dues declared by the appellant were for the subsequent period on the same issue fo

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by the Department relying upon second proviso to Section 106(1) of Finance Act, 2013 on the ground that it involved the same issue for the subsequent period as of that involved in Show Cause Notice dated 04.01.2011, consequent to audit conducted in case of the assesse. It is submitted that the issue for the Show Cause Notice dated 04.01.2011 and for the present Show Cause Notice dated 25.02.2014 is absolutely different except that both the Show Cause Notices are about the liability of renting of immovable property services by the appellant. It is impressed upon that the same category of service cannot be considered as the same issue which has been wrongly interpreted by the Department. It is further submitted that the Show Cause Notice is otherwise beyond the normal period of one year of the limitation and there was no intention of the appellant to evade the duty, extended period could not be invoked. Show Cause Notice is therefore barred by time and thus is liable to be set aside on

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nder Section 70 of the Chapter and disclosed his true liability, but has not paid the disclosed amount of Service tax or any part thereof, shall not be eligible to make declaration for the period covered by the said return:
Provided further that where a notice or any order of determination has been issued to a person in respect of any period on any issue, no declaration shall be made of his tax dues on the same issue for any subsequent period.”
Section 106 is an enabling provision which deals in a situation where a particular class of assesse is liable to take advantage of the VCES Scheme and submit a declaration. Under this Section, any person may declare his tax dues in respect of which no notice or an Order of determination under Sections as mentioned above has been issued or made before first day of March 2013. It further provides that where a notice or Order of determination has been issued to any person that person is debarred to avail the benefit of Scheme. Ld. Counsel for t

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1.03.2010. Vide the impugned VCES-I, the appellant has declared his tax dues of Rs. 4,50,756 against the renting of immovable property services for the period w.e.f. 01.10.2008 to 31.03.2010. This perusal makes it clear that it is not merely that the category of service rendered is same but the allegation of not discharging the tax liability for rendering the said service and that the period for the alleged default is also same. Thus it becomes clear that a notice has already been issued to the appellant in respect of the same issue for the same period for which the appellant made the declaration under VCES-I. In view thereof I am of the firm opinion that the said declaration is prohibited under proviso 2 to Section 106(1) of VCES 2013. The Adjudicating Authority below are held to have committed no error while rejecting the said VCES Scheme. Order is held to have no infirmity. Appeal is accordingly dismissed.
5. The argument of the appellant for Show Cause Notice to be barred by time

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M/s Sarvottam Rolling Mills Pvt. Ltd. Versus State Of U.P. And 2 Others
GST
2018 (12) TMI 348 – ALLAHABAD HIGH COURT – 2019 (22) G. S. T. L. 24 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 3-12-2018
Writ Tax No. – 1530 of 2018
GST
Pankaj Mithal And Pankaj Bhatia JJ.
For the Petitioner : Shubham Agrawal
For the Respondent : C.S.C.
ORDER
Heard Sri Shubham Agrawal, learned counsel for the petitioner and Sri C.B. Tripathi, Special Counsel appearing for the respondents.
The goo

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M/s Diabetes Thyroid Hormone Research Institute Pvt. Ltd. Versus Commissioner Of Central Goods And Service Tax Excise And Customs
Service Tax
2018 (12) TMI 387 – MADHYA PRADESH HIGH COURT – 2019 (24) G. S. T. L. J168 (M. P.)
MADHYA PRADESH HIGH COURT – HC
Dated:- 3-12-2018
CEA 87/2018
Service Tax
S.C. SHARMA AND VIRENDER SINGH JJ.
Shri Sumit Nema, learned Senior counsel with Shri Gagan Tiwari, learned counsel for the appellant.
Shri Amol Shrivastava, learned counsel on behalf of Central Goods and Service Tax Excise and Customs.
1. The appellant before this court has filed this appeal being aggrieved by order dated 05.07.2018 passed in ST/A/52429/2018-CU[DB] by Custom, Excise and Service Tax Appellate Tribunal.
2. L

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h Services dated 27.02.2014 appointing Dr. Sunil Jain as an Investigator and his contention is that the learned Commissioner of Central Excise and Customs after taking into account the notification has arrived at a conclusion that no service tax can be imposed upon the petitioner organization. He has stated that thereafter department went an appeal and the Appellate Tribunal has reversed the findings arrived at by the learned Commissioner. He has stated that the present appellant has been singled out and no action has been taken in respect of 21 others investigators who have been appointed by Director General of Health Services. He has further argued before this Court that no service charge can be charged on the petitioner and as the petiti

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Senior Counsel does not arise.
4. This Court after taking into account the material available on record, is of the opinion that the present appeal certainly deserves to be admitted on the following substantial questions of law:-
(ii) Whether the CESTAT was correct in fact and in law in arriving at the finding that the Appellant is only a trial site and principal investigator and not Clinical Research Organization without consideration of Agreement entered into between the Sponsors of Clinical Trial and the Appellant?
(iv) Whether the CESTAT was correct in arriving at the finding that Appellant is not Clinical Research Organization (CRO) without appreciating the fact that (CRO) is basically a collective definition given to various units

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In Re: M/s. Bindu Ventures
GST
2018 (12) TMI 536 – AUTHORITY FOR ADVANCE RULINGS, KARNATAKA – 2019 (20) G. S. T. L. 616 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, KARNATAKA – AAR
Dated:- 3-12-2018
AAR No. KAR ADRG 32/2018
GST
SRI. HARISH DHARNIA, AND DR. RAVI PRASAD M.P. MEMBER
Represented by: Sri Jayesh Zaverchand Shah, Partner
ORDER UNDER SUB-SECTION (4) OF SECTION 98 OF CENTRAL GOODS AND SERVICES TAX ACT, 2017 AND UNDER SUB-SECTION (4) OF SECTION 98 OF KARNATAKA GOODS AND SERVICES TAX ACT, 2017
1. M/s. Bindu Ventures, (called as the 'Applicant' hereinafter), No.2, Bindu Galaxy, 1st Main, West of Chord Road, Rajajinagar Industrial Estate, Bengaluru – 560044, having GSTIN number 29AAPFB6663D1Z5, has filed an application for Advance Ruling under Section 97 of CGST Act,2017, KGST Act, 2017 read with Rule 104 of CGST Rules 2017 & KGST Rules 2017, in form GST ARA-01 discharging the fee of Rs. 5,000-00 each under the CGST Act and the KGST Act.
2. The Applica

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furnishes some facts relevant to the stated activity:
a. The applicant states that he is engaged in the business of real estate in the form of a partnership firm. As a part of his business, he undertakes construction of commercial complexes which are subsequently sold or given on rent.
b. The applicant states that they had undertaken one such project by the name “Bindu Galaxy” which is a commercial complex situated at No.2, 1st Main, Industrial Town, West of Chord Road, Rajajinagar, Bengaluru 560044 and they had started the construction on this project in the month of February 2016 on land owned by them. The construction of the commercial complex “Bindu Galaxy” was completed in all aspects by the end of the month of November 2017.
c. The applicant states that he entered into agreement to sell with the prospective buyers and receive advances towards booking of commercial offices. He also states that they have discharged VAT and service tax on advances received on or before 30.06.2

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ate. However, the law provides for issuance of occupancy certificate on completion of construction of immovable property. He states that he is unable to obtain this occupancy certificate from the BBMP. However, he states that he has obtained a completion certificate from a chartered engineer stating that the construction of the building was complete in all respects by 01.12.2017.
4. The applicant has filed a statement containing his interpretation of facts and law in respect of the aforesaid questions and the same is as under:
4.1 Schedule II of the Central Goods and Services Tax Act, 2017/Karnataka Goods and Services Tax Act, 2017 in entry 5 states as under:
5. Supply of services
The following shall be treated as supply of services, namely:-
(a) renting of immovable property;
(b) construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration has been

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r is considered as supply of service
b. However, when the entire consideration, towards sale of immovable property, is received after the issuance of completion certificate, the same shall not be regarded as supply of service and hence would not be liable to GST.
4.3 Therefore, the applicant states that, if part of the amount of consideration, towards the sale of immovable property, is received prior to issuance of completion certificate, then, the entire amount, including the amount of consideration received after the issuance of complete certificate, shall be liable to GST.
4.4 The completion certificate may be obtained from the Government or any other prescribed governmental authority. However, in case where there is no requirement to obtain such certificate from the local government, then the same may be obtained from
a. An architect registered with the Council of Architecture constituted under the Architects Act, 1972; or
b. A Chartered Engineer registered with the Institut

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by a certificate in Schedule VIII certified by a Registered Architect/Engineer/ Supervisor and shall apply for permission to occupy the building….”
The 'certificate in Schedule VIII' as mentioned above is a certificate from registered architect / engineer / supervisor stating that the building is complete in all respects. The applicant encloses a copy of the certificate obtained from Chartered Engineer certifying that the building is completed in all respects including all essential amenities such as BESCOM Power Connection, BWSSB Water Supply, Sanitation Connection” by 1st of December 2017 and is ready for occupation”.
Thus, the Bangalore Mahanagara Palike Building Byelaws, 2003 provides a clear distinction between a completion certificate and an occupancy certificate and that it cannot be deemed to be a completion certificate as contemplated under the GST Law.
5.1 The applicant states that the GST Law also defines the word “competent authority: as an explanation to clause 5 in

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e completion certificate. Therefore, according to the applicant the completion certificate issued to him by the Chartered Engineer could be considered as the completion certificate as contemplated under the GST Law.
5.2 The applicant also states that the law provides for exception from applicability Of GST in case the whole consideration is received after the first occupancy. Hence, it would be of utmost importance to understand the meaning of the phrase “first occupation” used in the provision. While the GST Law at present does not provide the meaning of this phrase, supportmay be drawn from its ordinary meaning:
Meaning of the word “first”, as per Cambridge English Dictionary, Merriam-Webster Dictionary & Oxford English Dictionary respectively is as under:
* Coming before all others in time or order
* (a person or thing) coming before all others in order, time, amount, quality, or importance.
* Preceding all others in time, order, or importance.
Meaning of the word “occupati

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it can be concluded that “first occupation” as contemplated in the GST law is with reference to occupation of any unit of a building/ complex only.
5.4 The applicant claims that occupation in “Bindu Galaxy” had started as early as September 2017 and furnishes copies of affidavits from respective owners, stating the month of occupation, along with their respective sale deeds for purchase of respective property. They also furnishes a copy of Electricity Bill of the complex dated 01.12.2017, for the period 04.08.2017 to 30.11.2017, wherein the reading of the sub-meters installed for each is worked out, in support of their claim towards evidence of occupation of the building during the aforesaid period. The applicant requests to accede to their submissions.
PERSONAL HEARING:/PROCEEDINGS HELD ON 03.04.2018.
6. Sri. Jayesh Z Shah, Partner, M/s. Bindu Ventures appeared on behalf of the applicant before the Authority for Advance Ruling on 21.03.2018 and submitted that the Applicant is into

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first question is about relevant date of completion of construction of the property. In this regard we draw the attention to entry No.5 of Schedule II of CGST Act'2017, as mentioned at para 4.1 supra, which stipulates that any construction of a complex or building or a civil structure or a part thereof would be treated as a supply of service and the constructions where the entire consideration has been received after the issuance of completion certificate, where required, by the competent authority or after its first occupation, whichever is earlier, are exempt.
7.4 The stress here is on the words “entire consideration”; “after the issuance of completion certificate by the competent authority, where required” and “first occupation”
The competent authority is defined in clause (29) of section 2 of the Central Goods and Service Tax Act, 2017 and the same reads as under:
(29) “competent authority” means such authority as may be notified by the Government;
Clause (80) of section 2 of

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a building for which the licence was obtained and within one month after the completion of the erection of a building shall send intimation to the Commissioner in writing of such completion accompanied by a certificate in Schedule VIII certified by a Registered Architect / Engineer / Supervisor and shall apply for permission to occupy the building. The Authority shall decide after due physical inspection of the building (including whether the owner had obtained commencement certificate as per section 300 of the Karnataka Municipal Corporations Act, 1976 and compliance regarding production of all required documents including clearance from the Fire Service Department in the case of high rise buildings at the time of submitting application) and intimate the applicant within thirty days of receipt of the intimation whether the application for occupancy certificate is accepted or rejected. In case, the application is accepted, the occupancy certificate shall be issued in the form given in

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e building to be complete. It is incumbent upon the competent authority to inspect the building and their certification alone can assign the building the character of a structure complete in all respects. The law provides the submission of the certificate from the registered architect / engineer as a supportive document in the nature of a pre-inspection by a qualified entity. The final authority, however, rests with the BBMP. Therefore the certificate is only of the nature of a supportive document and the law does not recognize it as the document which is enough as the competent authority is mandated to necessarily inspect and then certify whether the building is fit for occupation.
b. Clause (b) of Bye-law 5.6 provides a further insight into why the Bye-law 5.6 mandates an inspection and it also brings out the character of the certificate that is finally issued. Clause (b) provides that during inspection of the building, the authority will examine in detail the compliance of all the

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has taken place. Therefore, we are of the opinion that an occupancy certificate is in the nature of completion certificate because unless the construction is complete it can not be occupied.
c. The contention of the applicant, in para 8, Annexure 2 of the application that the law does not provide issuance of any completion certificate is thus ill founded and not correct. Therefore the Authority is of the opinion that the Occupancy Certificate is akin to Completion Certificate and is a must,
7.7 The Applicant has submitted affidavits from two buyers to the effect that they had occupied the building in September 2017 itself and the Occupancy Certificate is yet to be obtained. In this regard we find that bye-law 5.7 is relavent. The said bye-law is reproduced below:
5.7 Occupancy or letting of the new buildings – No person shall occupy or allow any other person to occupy any new building or part of a new building for any purpose whatsoever until occupancy certificate to such building

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refore the chartered engineer's certificate can't be a substitute for Completion Certificate / Occupation Certificate, required by the CGST Act 2017. Hence the Chartered Engineer's certificate has no relevance to the question.
In view of the above, the date of Occupancy Certificate issued by the Bruhat Bengaluru Mahanagara Palike, competent authority in the instant ease, shall be considered as the date of completion of the property and if the entire amount Of consideration has been received after such date of completion, then that would not be treated as a taxable service, If any part of the consideration is received before such date, then the transaction would be treated as a supply of service as per clause 5 of schedule II to the GST Act and attracts the levy of GST.
7.9 The next issue before us to decide is what constitutes “first occupation”. The word “first occupation” is not defined anywhere in the Act. The Bengaluru Mahanagara Palike Building Bye-Laws 2003, under clause 5.7, s

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f non requirement of the said certificate by the competent authority then any of the following certificates need to be considered.
(i) an architect registered with the Council of Architecture constituted under the Architects Act, 1972; or
(ii) a chartered engineer registered with the Institution of Engineers (India); or
(iii) a licensed surveyor of the respective local body of the city or town or village or development or planning authority;
In the instant case the competent authority i.e. B.B.M.P., Bengaluru issues the completion certificate in the name of “Occupancy Certificate” and hence the date of occupancy certificate need to be considered.
In view of the above, the date of first occupation is irrelevant to the instant case & hence can h be considered at all as the completion certificate (“Occupancy Certificate”), is required to be obtained mandatorily by the applicant from the competent authority i.e BBMP, Bengaluru, Karnataka.
9. In view of the foregoing, we rule as follo

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In Re: East Hooghly Polyplast Pvt. Ltd.
GST
2018 (12) TMI 710 – APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL – TMI
APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAAR
Dated:- 3-12-2018
07/WBAAAR/Appeal/2018
GST
MR. RAKESH KUMAR SHARMA, AND MS. SMARAKI MAHAPATRA, MEMBER
Present for the Appellant: Sri Pankaj Kumar Patwari, Advocate
Present for the Respondent: Sri Santanu De, Assistant Commissioner of State Tax, Serampore Charge, Hooghly
This Appeal has been filed by M/s. East Hooghly Polyplast Pvt. Ltd. (hereinafter referred to as “the Appellant”) on 04.09.2018 against the Advance Ruling No. 12/WBAAR/2018-19 dated 20.07.2018 = 2018 (8) TMI 874 – AUTHORITY FOR ADVANCE RULINGS WEST BENGAL pronounced by the West Bengal Authority for Advance Ruling (hereinafter referred to as “AAR”).
2. M/s. East Hooghly Polyplast Pvt Ltd, holding GSTIN No. 19AACCE2946G1ZM, stated to be a manufacturer of Tarpaulins made from High Density Polyethylene (hereinafter refe

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AR order on the ground that Tarpaulin made from EIDPE woven fabrics is covered under clause 1 (g) of Section XI of the Tariff Act, that is made up of monofilaments. According to Appellant's view, the Tarpaulin, as specified vide IS 7903:2017, is manufactured by the Appellant from mono-axially oriented HDPE tapes classifiable under Chapter of textiles by the Bureau of Indian Standards (BIS).
(B) The Appellant differed from the observation of the AAR that they had not disclosed, at the time of hearing, the width of the tape, used for weaving. They claimed that they manufactured the said product in terms of IS 7903:2017 standard. The said BIS standard provides that the tapes used should be as per specifications under BIS 6192:994.
(C) The Appellant stated that the tapes used for weaving were produced from organic monomers and hence the final product, that is, tarpaulins made from HDPE woven fabric did not fall under the definition of plastics provided in Chapter 39.
(D) The Appella

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their Grounds in Appeal.
6. The grounds taken in appeal by the Appellant are being considered sequentially in respect of relevant section Notes of the Tariff Act:
i) The main contention of the Appellant for classification of Tarpaulin under Chapter 63 is that Tarpaulin made from IIDPE woven fabrics is covered under clause 1(g) of Section XI of the Tariff Act, that is made up of monofilaments and hence the final product, that is tarpaulins made from HDPE woven fabric did not fall under the definition of plastics provided in Chapter 39.
ii) The Advance Ruling Authority vide their ruling observed that:
“Note 1(g) to Section XI of the Tariff Act states that the Section of Textile and Textile Articles covering Chapters 50 to 63 does not include, “Monofilament of which any cross-sectional dimension exceeds 1 mm or strip or the like (for example, artificial straw) of an apparent width exceeding 5mm, of plastics (Chapter .39), or plaits or fabrics or other basket-ware or wickerwork of s

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rial and for disaster management.
b) the intermediate output HDPE tapes is obtained from granules conforming to IS 6192:1994 i.e., “Textiles-monoaxially oriented high density polyethylene tapes” which then passed through power looms wherein the HDPE tapes are sent for circular weaving and are converted into laminated HDPE fabrics as per specification contained in IS 6899 “Textiles-high density polyethylene woven fabrics”.
c) the Appellant carries out the manufacture of tarpaulins made from HDPE through a process wherein weaving of the synthetic tapes are done followed by carrying out the procedure of lamination which gives an intermediate product, HDPE Laminated Fabrics.
d) the final product is conforming to IS 7903:2017. It is observed from IS 7903:2017 specification that Tarpaulins made from HDPE woven fabrics shall be laminated on both sides with the LDPE or suitable combination of LDPE and linear low density LLDPE melt of extrusion coating grade which shall be validated by

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E woven fabric can be used as tarpaulin only when such fabric is laminated. Thus the Appellant's contention that the issue was related to Tarpaulin, simpliciter, and not of laminated HDPE fabrics, is not the correct representation of facts. The process of lamination can neither be ignored nor treated in seclusion, as it is an integral and vital process for HDPE fabrics being put to use as tarpaulin.
9. Therefore, in view of the Note 1(h) to Section XI of the GST Tariff Act mentioned above, the tarpaulins of IIDPE woven fabrics, laminated as per specification of IS 7903:2017, being expressly excluded, do not merit classification under Chapter 63.
10. The Ruling pronounced by the Advance Ruling Authority, is thus correct and justified.
11. The appeal filed by M/s. East Hooghly Polyplast Pvt. Ltd. thus fails and the ruling of the West Bengal Authority for Advance Ruling pronounced, vide Order no. 12/WBAAR/2018-19 dated 20.07.2018 = 2018 (8) TMI 874 – AUTHORITY FOR ADVANCE RULINGS W

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DIEBOLD SYSTEMS PVT LTD. Versus INTELLIGENCE OFFICER (IB) OFFICE OF THE DEPUTY COMMISSIONER (INT), DEPARTMENT OF COMMERCIAL TAXES, KOCHI AND THE ASISTANT COMMISSIONER, SPECIAL CIRCLE -II, STATE GOODS AND SERVICE TAX DEPARTMENT, ERNAKULAM
VAT and Sales Tax
2018 (12) TMI 1012 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 3-12-2018
WA. No. 2288 of 2018
CST, VAT & Sales Tax
MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ.
For The Appellant : ADVS. SRI. JOSEPH PRABAKAR AND SRI. RAJESH NAIR
For The Respondent : SRI MOHAMMED RAFIQ SR GP
JUDGMENT
Vinod Chandran, J
The short question that arises for consideration in the above appeal is whether the refusal to exercise discretion by the learned Single Judge as against penalty proceedings was proper or not, especially considering the fact that the penalty proceeding taken was under Section 67 of the Kerala Value Added Tax Act, 2003 by the Intelligence Officer when there was a provision under Section 25(3) for th

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aled on the filing of the audited statement. We do not look at the specific discrepancies noticed, lest we preempt a consideration on the factual aspects by the appellate authorities, if we so relegate the matter. In the present appeal against the judgment in a petition under Article 226, the only question is whether the order of penalty can be interfered with as has been declared in State of H.P v. Gujarat Ambuja Cement Ltd. [2005) 6 SCC 499]. The specific grounds as available therein, are proceedings taken under provisions which are ultra vires, violation of principles of natural justice, assumption of jurisdiction when there is none, infringement of fundamental rights and clear abuse of process of law. It was also held that even if grounds on which the jurisdiction can be invoked are available, it should be used sparingly and only when there is in the case, something which goes to the root of the matter visiting the petitioner with palpable injustice if relegated to the alternate fo

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s submitted, the mere fact that the revised return was not filed cannot be a reason to impute malafides or willful non-disclosure on the assessee. Reliance is placed on a judgment of this Court in [2018 (3) KLT 468] CTO v. C.R. Varghese wherein, in various instances, this Court had directed revision of returns to be accepted despite the same being beyond the time prescribed. Reliance is also placed on the judgment of this Court reported in 2018 (4) KHC 513 State of Kerala Vs. Joemon Rajan to contend that the Intelligence Officer ought not to have carried out the proceedings and should have merely informed the fact to the Assessing Officer so as to take appropriate proceedings under Section 25. It is the compelling argument of the learned Counsel for the assessee/appellant that Section 67 does not mandate a contumacious conduct and in such circumstances the assessee is prejudiced insofar as the proceedings initiated under Section 67. Under Section 25(3)there should be satisfaction recor

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Alukkas [2018(3) KLT 360] found substantial difference in the earlier regimes and the value added tax regime. It has been held by this Court that the provision for self assessment as found in Section 21 of the KVAT Act, creates an obligation on the assessee to file a correct return, more onerous than a regime which mandates a regular assessment carried out by the department. With respect to the submission that the proceedings ought to have been taken by the Assessing Officer under Section 25(3) the learned Senior Government Pleader relies on Intelligence Officer v. Hotel Ambassador 1980 (45 STC 425(Ker).
6. Joemon Rajan by the Division Bench of this Court and Chakkiath Brothers and Canmec Office Technologies dealt with two different issues. In Joemon Rajan, the question was as to whether the Intelligence Officer had the power to make estimation which power as per the statute has been conferred only on the Assessing Officer. This Court followed U.K Monu Timbers v. State of Kerala [20

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a correct return, the failure of which would attract Section 67. We extract herein paragraph 10 of Alukka s Jewelr y:
“The provision for self assessment creates an obligation on the assessee to file a correct return; more onerous than in a regime which mandates a regular assessment. The submission of the learned Government Pleader that the filing of an untrue or incorrect return as available under sub-clause (d) of S.67(1) assumes more rigour in the teeth of the onerous obligation, resulting in imposition of penalty without reference to whether there has been disclosure made in the books of accounts, has to be accepted.”
8. With the above legal proposition in the background we look at the penalty order passed as per Ext.P5. We also garner support from Hotel Ambassador to hold that Section 67 is not regulated by Section 25(3). Hotel Ambassador looked at analogous provisions, Sections 19 & 45A of the Kerala General Sales Tax Act, 1963, which were respectively the provisions enabling

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a revised return. Whatever be the reason for not availing the opportunity, it has to be observed that there was a possibility of the Assessing Officer, not noticing the discrepancies in the return filed, especially when the VAT regime contemplates a self assessment. It is not mandatory that the Assessing Officer verify and carry out re-assessment under Section 25 of the KVAT Act. We cannot also ignore the immense work load of the individual officers designated as Assessing Officers on the basis of territorial jurisdiction or on other parameters of income, nature of business and so on and so forth. It will not be humanly possible to verify each and every return and carry out reassessment wherever required. It is hence, the assessee has been given a specific opportunity to cure the defects in the return which is detected on audit, by filing a revised return and paying tax in accordance with that revised return. The assessee having not availed of such remedy we can only find that there w

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ment in March 2014. In September 2015 the assessee sought to revise the returns and the Assessing Officer declined such permission on the ground that if it is allowed there would be a claim of input tax credit raised. In the third case the assessee filed the audit report under Section 42 along with a re-conciliation statement, wherein the discrepancy noticed on return were sought to be incorporated in the returns by way of revision. The application having been slept over, the assessee was before this Court seeking consideration of the same. In the last case, the Division Bench itself noted more complicated facts insofar as the assessment and penalty were continued without reference to each other.
11. We do not think the facts in the present case commend a permission to file a revised return at this late stage. We also notice Paragraph 15 of the aforesaid decision which is as follows:
“15. The enabling provision mandates that on a revision of return being attempted to as provided the

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e assessee has a contention that Ext.P3 communication seeking revised reruns was issued on 27.03.2018, a day before the proceedings had commenced. However, it is to be emphasised that the audited statement was filed long back on 16.05.2017, when the assessee definitely had the knowledge of the shortfall in the returns. There was no cause for the assessee to have, not sought for a revised return immediately thereafter. It is also to be noticed that the communication at Ext.P3 seeking permission to file revised return was received by the Assessing Officer only on 23.04.2018 by which time, the Intelligence Officer had initiated proceedings under Ext.P2 dated 28.03.2017. On the aforesaid facts we are convinced that there could be no permission granted at this distance of time to file revised returns. The assessee also waited for the proceedings under Section 67 to be concluded, to invoke the extraordinary remedy under Article 226. We hence uphold the judgment of the learned Single Judge wh

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In Re: M/s. Sharda Timber
GST
2019 (2) TMI 190 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – 2019 (21) G. S. T. L. 347 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – AAR
Dated:- 3-12-2018
AAR Ruling No. 12/2018-19 In Application No. 10/2018-19
GST
SHRI VIPIN CHANDRA AND SHRI AMIT GUPTA MEMBER
Present for the Applicant: Shri Rajendra Jaiswal
Concerned Officer: Mrs. Preeti Manral, DC-SGST
Note : Under Section. 100(1) of the Uttarakhand Goods and Services Tax Act, 2017, an appeal against this ruling lies before the appellate authority for advance ruling constituted under section- 99 of the Uttarakhand Goods and Services Tax Act, 2017, within a period of 30 days from the date of service of this order.
1. This is an application under Sub-Section (1) of Section 97 of the CGST /SGST Act, 2017 (herein after to be referred as “Act”) and the rules made thereunder filed by M/s. Sharda Timber, Khasra No. 115, Min Wake Moja, Tirmal Patti, Jaspur, U.S. Nag

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t tax credit of tax paid or deemed to have been paid
(e) Determination of the liability to pay tax on any goods or services or both
(f) Whether the applicant is required to be registered
(g) Whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both within the meaning of that term
In the present case, applicant has sought advance ruling in respect of leviability of GST, if any, on the
(a) Classification of Eucalyptus / Poplar Wood Waste in Logs having length of 30 cm to 200 cm and Girth of approx. 10 cm to 60 cm being covered under HSN 4401.
(b) Whether the commodity of Eucalyptus /PopIar Wood Waste in Logs having length of 30 cm to 200 cm and Girth of approx. 10 cm to 60 cm is chargeable to tax under Uttarakhand State GST @2.5% and CGST @ 2.5%.
Therefore, with the instant application seeking classification of goods and determination of the liability to pay tax on such goods

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2.5%.
6. Before going into the details of the instant question on which the ruling has been sought by the applicant, it is important to understand the GST Tariff, for which the relevant portion going under the heading of “Adoption of Customs Tariff for classification of goods [R.K. Jain's GST Tariff Manual 4th Edition 2018-191″ is quoted as under :
” ….. …to avoid classification disputes, notifications issued by Government indicate that Customs Tariff has been adopted for descriptive classification of goods under GST. The Section Notes, Chapter Notes and Rules of interpretation of Customs Tariff have also been adopted………….”
6.1. Thus, from the above, it evolves that to decide upon the issue of classifying Eucalyptus / Poplar Wood Waste in Logs (having length of 30 cm to 200 cm and Girth Of approx. 10 cm to 60 cm) under HSN 4401, and thus upon the tax rate of 5%, it is important to go through Chapter 4401 of the Customs Tariff.
6.2. The relevant portion of the Customs T

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……………………..
mt
 
–
Wood in chips or particles :
 
44012100

Coniferous………………………………………………………………………………
mt
44012200

Non -coniferous………………………………………………………………………………
mt
 
–
Sawdust and wood waste and scrap, agglomerated in logs briquettes, pellets or similar forms:
 
44013100

Wood pellets………………………………………………………………………………
mt
44014000
 
Sawdust and wood waste and scrap, not agglomerated…………………………………………
mt
6.3. Further, for the sake or better understanding of the issue in hand, the relevant portion from the Chapter 44 (Wood and articles of wood; wood charcoal or the GST Tariff Manual, is reproduced as under :
Chapter/Heading/Sub-heading/Tariff Item
Description of goods
GST Rates
Central CGST
State/UT/SGST/ UTGST

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Revocation of cancelled gst
Query (Issue) Started By: – Shrivats Pandey Dated:- 2-12-2018 Last Reply Date:- 2-12-2018 Goods and Services Tax – GST
Got 1 Reply
GST
sir After filing of complaint to the technical team
For non opening of gst revocation the complaint has been not solved despite of being order recived for annul of cancellation gstn by proper officer the help desk says the problem is sent to the high level authority my complain was on 16/11/2018 and status is said to open

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SUPPLY OF FOOD TO THE EMPLOYEES OF THE UNIT IN ‘SEZ’ IS NOT ZERO RATED SUPPLY
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 1-12-2018

Zero rated supply
The expression 'zero rated supply' is defined under section 16(1) of Integrated Goods and Services Tax Act, 2017 as any of the following supplies of goods or services or both, namely:-
* export of goods or services or both; or
* supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit.
Issue
The issue to be considered in this article whether supplying of food to the employees of the Unit situated in a Special Economic Zone' amounts to supply under the definition of 'zero rated supply' with reference to decided case law before the Appellate Authority for Advance Rulings in 'Merit Hospitality Services Private Limited' – 2018 (11) TMI 335 – APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA – order No. MAH/AAAR/SS-RJ/12/2018-19, dated 01.11.20

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t company forms a 'Employees Co-Operative Society which is running a canteen for the employees.The appellant entered contract with the Co-operative society for supply of food and not with the company.
In the fourth case the appellant entered a contract with a company which has units in SEZ.The food is supplied to the employees of the Unit and the payment is received by the appellant from the employees.
The appellant filed an application before the Authority for Advance Ruling raising the following questions-
Whether the activity in the first case amounts to canteen services and GST @ 5% is applicable?
Whether the supply of food and distribution of food to the employees amount to canteen service and GST rate @ 5% is applicable?
Whether the supply of appellants amount to running a canteen?
In respect of supply to the unit in a SEZ the following are the questions-
* Since the food is directly supplied by the appellant whether GST is not applicable?
* Whether the supply by t

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proceeding the Authority erred in not deciding the rate of GST for the supply made by the appellants.
* The order of the Authority did not indicate which documents and furnished were not furnished by the appellants as directed by the Authority.
* The Authority erred in quoting, relying and concluding his opinion based to his observations on the transactions in the domestic market with zero rated supply.
* Section 16(3) of the Integrated Goods and Services Tax Act, 2017 allows a registered person to make 'zero rated supplies' without payment of tax subject to conditions, safeguards and procedures as laid out under Rule 96A of the CGST Rule.
Ruling of the Appellate Authority
The appellant only requested the ruling from the Appellate Authority for the supplies made to the unit in a SEZ and not for others. Personal hearing was afforded to the appellant by the Appellate Authority for Advance Rulings.
The Appellate Authority for Advance Rulings analyzed the provisions of section16

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GST HSN code
Query (Issue) Started By: – ANKIT KUMAR Dated:- 1-12-2018 Last Reply Date:- 8-12-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Dear Experts
Please suggest the HSN code and GST rate for shell of almonds ( baadam ka chilka).
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
It will fall under heading 0802 and is exempted from gst vide Sl. No. 49 of Notification No. 2/2017-Central Tax (Rate) dated 28.6.2017 as amended.
Reply By KASTURI SETHI:
The Reply:
Dear Qu

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GST Revenue collection for the month of November 2018 crosses Ninety-Seven Thousand Crore Rupees
GST
Dated:- 1-12-2018

The total gross GST revenue collected in the month of November, 2018 is ₹ 97,637 crore of which CGST is ₹ 16,812 crore, SGST is ₹ 23,070 crore, IGST is ₹ 49,726 crore (including ₹ 24,133 crore collected on imports) and Cess is ₹ 8,031 crore (including ₹ 842crore collected on imports). The total number of GSTR 3B Returns fil

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