Author: admin_gst

M/s. Priya Constructions Versus Commissioner of GST & Central Excise Chennai South Commissionerate
Service Tax
2019 (2) TMI 89 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 22-11-2018
ST/Misc. /41492/2017 in ST/257/2011 – Final Order No. 43021/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri S. Venkatachalam, Advocate for the Appellant
Shri L. Nandakumar, AC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellants are rendering services under the category of Construction of Commercial Residential Complex. On intelligence it was found that the assessees are providing taxable service without obtaining service tax registration and without payment of service tax. The department took up investigation and on verification of records, it was noticed that the appellant took up a joint development agreement with M/s. ABU Estates Pvt. Ltd. In terms of the agreement, the land was

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ainable as the activity undertaken by the appellant falls under the category of works contract service involving execution of composite contracts. Therefore, the entire demand of service tax under the category of commercial or industrial construction service is unsustainable. He also submitted that the issue is covered by the decision of the Tribunal in the case of Real Value Promoters Ltd. Vs. CCE – 2018-TIOL-2867-CESTAT, Chennai.
3. The ld. AR Shri L. Nandakumar supported the findings in the impugned order.
4. After hearing both sides, it is brought to light that the period involved in the present case is from 10.9.2004 to 31.10.2008. The demand has been raised in the show cause notice under construction of complex services. The contracts entered between the appellant and the service recipient is a composite contract which involves both supply of materials as well as rendering of service. The Tribunal in the case of Real Value Promoters Ltd. (supra) had occasion to analyse the issu

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construction service, construction of complex service and in addition turnkey projects including EPC projects within the definition of Works Contract Service.
7.9 At this juncture, it is worthwhile to reproduce excerpts from the Union Finance Minister's budget speech in 2007:-
“State Governments levy a tax on the transfer of property in goods involved in the execution of a works contract. The value of services in a works contract should attract service tax. Hence, I propose to an optional composition scheme under which service tax will be levied at only 2 per cent of the total value of the words contract”.
7.10 The issue was analyzed by the Hon'ble Apex Court in Larsen & Toubro case (supra) and held that there can be no levy of service tax on composite contracts (involving both service and supply of goods) prior to 1.6.2007. This read together with the budget speech as above would lead to the strong conclusion that composite contracts were brought within the ambit of levy of ser

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gant' – 'general things do not derogate special things'. The counsel for appellants have submitted that as per Section 65A of the Act ibid, classification of service shall be based on the specific entries and the more specific description of service has to be preferred. He invited our attention to CBEC's Circular 128/10/2010 dated 24.8.2010 which is reproduced as under:-
“The matter has been examined. As regards the classification, with effect from 1-6-2007 when the new service 'Works Contract service' was made effective, classification of aforesaid services would undergo a change in case of long term contracts even though part of the service was classified under the respective taxable service prior to 1-6-2007. This is because 'works contract' describes the nature of the activity more specifically and, therefore, as per the provisions of Section 65A of the Finance Act, 1994, it would be the appropriate classification for the part of the service provided after that date.”
7.12 Thus

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ntion this in the first para itself. However, the proposal for tax demand was specifically made under Commercial or Industrial Construction Service under Section 65 (105) (zzq) of the Finance Act, 1994. In such situation, we note that it cannot be a case of simple mentioning of wrong provisions of law as submitted by the Revenue. Apparently, the tax liability of composite works contract is to be considered under works contract services only as per legal position settled by the Hon'ble Apex Court in M/s L&T Limited. Even in the appeal, the Revenue submitted that the respondent were engaged in construction services liable to tax under tax entry Section 65(105) (xxq). The grievance of the Revenue is with reference to commercial nature of the construction undertaken by the respondent and not on the correct classification of taxable activity.”
b. In the case of Skyway Infra Projects Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai – 2018-TIOL-360-CESTAT-MUM, in respect of identical i

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the facts that the contracts executed by the appellant are nothing but works contracts, for the period in question, entire case of the Revenue in the show-cause notice stands demolished by the Apex Court in the case of Larsen & Toubro Ltd. (supra). In the said judgment, their Lordships have very categorically laid down the law that the works contract cannot be vivisected for the confirmation of demand under various other services. On this ground itself, the entire demand confirmed by the adjudicating authority is liable to be set aside and we do so.”
c. In the case of URC Construction (P) Ltd. Vs. Commissioner of Central Excise, Salem – 2017 (50) STR 147, the Tribunal in paragraphs 9, 10 and 11 has held as under:-
“9. The Hon'ble Supreme Court in re Larsen & Toubro & Ors. has decided thus
'24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to com

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ntract the value of properly in goods transferred in the execution of a works contract.'
10. In view of this specific decision and the admitted claim of the appellant that they are not providers of 'commercial or industrial construction service' but of 'works contract service', no tax is liable on construction contracts executed prior to 1st June, 2007.
11. Insofar as demand for subsequent period till 30th September, 2008 is concerned, it is seen that neither of the two show cause notices adduce to leviability of tax for rendering 'works contract service'. On the contrary, the submission of the appellant that they had been providing 'works contract service' had been rejected by the adjudicating authority. Therefore, even as the services rendered by them are taxable for the period from 1st June, 2007 to 30th September, 2008 the narrow confines of the show cause notices do not permit confirmation of demand of tax on any service other than 'commercial or industrial construction servic

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not under Works Contract service. The demand confirmed in the impugned order under these categories namely under construction service for the period 10.09.2004 to 16.06.2005 under CICS for the period 16.06.2005 to 30.09.2008 cannot also sustain and are therefore set aside. So ordered
5.3 For the period 01.04.2008 to 30.09.2008, the demand confirmed is Rs. 26,88,611/-. We note that the appellant has not contested the liability under works contract for this period. The only argument brought forth by the Ld. Counsel is that they have discharged an amount of around Rs. 82 lakhs under this category after the visit of the departmental officers and therefore an amount of Rs. 36,88,611/- demanded in the impugned order should be considered as having been discharged. We find merit in his argument and hence the demand of Rs. 26,88,611/- under works contract service for the period 01.04.2008 to 30.09.2008 is required to be considered as having been paid, albeit subsequent to the visit of the off

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iter.
c. For activities of construction of new building or civil structure or new residential complex etc. involving indivisible composite contract, such services will require to be exigible to service tax liabilities under 'Works Contract Service' as defined under section 65(105)(zzzza) ibid.
d. The show cause notices in all these cases prior to 1.6.2007 and subsequent to that date for the periods in dispute, proposing service tax liability on the impugned services involving composite works contract, under 'Commercial or Industrial Construction Service' or 'Construction of Complex' Service, cannot therefore sustain. In respect of any contract which is a composite contract, service tax cannot be demanded under CICS / CCS for the periods also after 1.6.2007 for the periods in dispute in these appeals. For this very reason, the proceedings in all these appeals cannot sustain.”
5. Following the above decision, we are of the considered opinion that the demand of service tax under com

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M/s. Yes & Yes Hi-Tech Promoters India P. Ltd. Versus Commissioner of GST & Central Excise Salem
Service Tax
2019 (2) TMI 90 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 22-11-2018
Appeal No. ST/127/2011 – Final Order No. 43017/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Ms. Kanthi Visalakshi, Advocate for the Appellant
Ms. T. Usha Devi, DC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellants are rendering services under the category of 'Commercial and Industrial Construction Service', Construction of Residential Complex Service', 'Works Contract Service and services under the category of Transport of Goods by Road. Show cause notice was issued to the appellant on the ground that they have not furnished the relevant records to the department for verification of the correctness of the service tax paid by them for the period September 2004 to September 2008. Short p

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Promoters Ltd. Vs. CCE – 2018-TIOL-2867-CESTAT, Chennai. She also submitted that the appellants are not contesting the demand under Goods Transport Agency Service.
4. The ld. AR Ms. T. Usha Devi supported the findings in the impugned order.
5. After hearing both sides, it is brought to light that the period involved in the present case is September 2004 to September 2008. The demand has been raised in the show cause notice under construction of complex services. The contracts entered between the appellant and the service recipient is a composite contract which involves both supply of materials as well as rendering of service. The Tribunal in the case of Real Value Promoters Ltd. (supra) had occasion to analyse the issue regarding demand of service tax under construction of residential complex services, commercial or industrial construction service and construction of complex service. The Tribunal has held that prior to 1.6.2007, levy of service tax can be under the above categories o

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in 2007:-
“State Governments levy a tax on the transfer of property in goods involved in the execution of a works contract. The value of services in a works contract should attract service tax. Hence, I propose to an optional composition scheme under which service tax will be levied at only 2 per cent of the total value of the words contract”.
7.10 The issue was analyzed by the Hon'ble Apex Court in Larsen & Toubro case (supra) and held that there can be no levy of service tax on composite contracts (involving both service and supply of goods) prior to 1.6.2007. This read together with the budget speech as above would lead to the strong conclusion that composite contracts were brought within the ambit of levy of service tax only with effect from 1.6.2007 by introduction of Section 65(105)(zzzza) i.e. Works Contract Services. As pointed out by the ld. counsels for appellants, there is no change in the definition of CICS/CCS/RCS after 1.6.2007. Therefore only those contracts which w

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He invited our attention to CBEC's Circular 128/10/2010 dated 24.8.2010 which is reproduced as under:-
“The matter has been examined. As regards the classification, with effect from 1-6-2007 when the new service 'Works Contract service' was made effective, classification of aforesaid services would undergo a change in case of long term contracts even though part of the service was classified under the respective taxable service prior to 1-6-2007. This is because 'works contract' describes the nature of the activity more specifically and, therefore, as per the provisions of Section 65A of the Finance Act, 1994, it would be the appropriate classification for the part of the service provided after that date.”
7.12 Thus, for example, while construction of a new residential complex as a service simpliciter would find a place under section 65(105)(30b) of the Act, the same activity as a composite works contract will require to be brought under section 65(105)(zzzza) Explanation (c). For

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oning of wrong provisions of law as submitted by the Revenue. Apparently, the tax liability of composite works contract is to be considered under works contract services only as per legal position settled by the Hon'ble Apex Court in M/s L&T Limited. Even in the appeal, the Revenue submitted that the respondent were engaged in construction services liable to tax under tax entry Section 65(105) (xxq). The grievance of the Revenue is with reference to commercial nature of the construction undertaken by the respondent and not on the correct classification of taxable activity.”
b. In the case of Skyway Infra Projects Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai – 2018-TIOL-360-CESTAT-MUM, in respect of identical issue for the period from 2005 to 2012, the Tribunal in para 7 has held as under:-
“7. On careful consideration of the submissions made by both the sides, we find that the issue falls for consideration is whether the services rendered by the appellant in respect of 52

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, their Lordships have very categorically laid down the law that the works contract cannot be vivisected for the confirmation of demand under various other services. On this ground itself, the entire demand confirmed by the adjudicating authority is liable to be set aside and we do so.”
c. In the case of URC Construction (P) Ltd. Vs. Commissioner of Central Excise, Salem – 2017 (50) STR 147, the Tribunal in paragraphs 9, 10 and 11 has held as under:-
“9. The Hon'ble Supreme Court in re Larsen & Toubro & Ors. has decided thus
'24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines “taxable service” as “any service provided”. All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as f

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service', no tax is liable on construction contracts executed prior to 1st June, 2007.
11. Insofar as demand for subsequent period till 30th September, 2008 is concerned, it is seen that neither of the two show cause notices adduce to leviability of tax for rendering 'works contract service'. On the contrary, the submission of the appellant that they had been providing 'works contract service' had been rejected by the adjudicating authority. Therefore, even as the services rendered by them are taxable for the period from 1st June, 2007 to 30th September, 2008 the narrow confines of the show cause notices do not permit confirmation of demand of tax on any service other than 'commercial or industrial construction service'. It is already established in the aforesaid judgment of the Hon'ble Supreme Court that the entry under Section 65(105)(zzd) is liable to be invoked only for construction simpliciter. Therefore, there is no scope for vivisection to isolate the service component of the

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de. So ordered
5.3 For the period 01.04.2008 to 30.09.2008, the demand confirmed is Rs. 26,88,611/-. We note that the appellant has not contested the liability under works contract for this period. The only argument brought forth by the Ld. Counsel is that they have discharged an amount of around Rs. 82 lakhs under this category after the visit of the departmental officers and therefore an amount of Rs. 36,88,611/- demanded in the impugned order should be considered as having been discharged. We find merit in his argument and hence the demand of Rs. 26,88,611/- under works contract service for the period 01.04.2008 to 30.09.2008 is required to be considered as having been paid, albeit subsequent to the visit of the officers. However, the interest liability if any that arise on this amount if not paid already will have to be discharged by the appellants. So ordered.”
8. In the light of the discussions, findings and conclusions above and in particular, relying on the ratios of the ca

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ction 65(105)(zzzza) ibid.
d. The show cause notices in all these cases prior to 1.6.2007 and subsequent to that date for the periods in dispute, proposing service tax liability on the impugned services involving composite works contract, under 'Commercial or Industrial Construction Service' or 'Construction of Complex' Service, cannot therefore sustain. In respect of any contract which is a composite contract, service tax cannot be demanded under CICS / CCS for the periods also after 1.6.2007 for the periods in dispute in these appeals. For this very reason, the proceedings in all these appeals cannot sustain.”
6. Following the above decision, we are of the considered opinion that the demand of service tax under commercial or industrial construction service (residential complex) cannot sustain after the period 1.6.2007. The levy of service tax prior to 1.6.2007 cannot also sustain by application of the decision of the Hon'ble Supreme Court in the case of Larsen & Toubro Ltd. – 201

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M/s. P.S. Vinod Versus Commissioner of GST & Central Excise Chennai
Service Tax
2019 (2) TMI 91 – CESTAT CHENNAI – 2019 (24) G. S. T. L. 50 (Tri. – Chennai)
CESTAT CHENNAI – AT
Dated:- 22-11-2018
Appeal No. ST/124/2011 – Final Order No. 43020/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri J. Shankarraman, Advocate for the Appellant
Ms. T. Usha Devi, DC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that during internal audit of the Audit Section, it was noticed that the appellant who is a proprietor of the concern has been rendering photography service as an individual professional photographer. As per Finance Act, 1994, the photography service was brought within the service tax net with effect from 16.7.2001 and the definition of the said services included any professional photographer or any person engaged in the business of rendering service relating to photography. The departme

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photography service was expanded with effect from 1.5.2006 covering any person providing photography service. Prior to 1.5.2006 only professional photographer or a commercial concern providing such service is covered under the definition of photography studio or agency. The appellant being a person who has only the skill of taking photography cannot be described as a professional photographer or a commercial concern. He used to get orders from various companies and also make advertisement films for such work. He picturises the events for which he gets paid by way of cheque. Since the appellant has no studio and not being an agency, there is no liability to pay service tax. The ld. counsel also argued on the ground of penalty. He submitted that the appellant since was not having any studio and was doing the photography on his own, was under the impression that he is not liable to pay service tax and therefore had not discharged any service tax. It was his bonafide belief that he was no

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e. For better appreciation of the issue, relevant sections are reproduced as under:-
“Section 65(79) of the Finance Act, 1994
Photography Studio or Agency means any professional photographer or a commercial concern engaged in the business of rendering services relating to Photography.
Section 65(105)(zb)
The taxable service is a service provided or to be provided to a customer by a photography studio or agency in relation to photography in any manner
Section 65(78)
Photography includes still photography, motion picture photography, laser photography, aerial photography or fluorescent photograph”
6. As seen from the provisions of law extracted above, photography studio or agency means any professional photographer or a commercial concern engaged in the business of rendering service relating to photography. Undisputedly, the appellant is engaged in doing advertisement film and such other activities. He also renders service in the cinematographic field. A person who renders s

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erated with the department and has furnished all details. No unaccounted transactions were unearthed. On these facts, the penalty imposed under section 78 is unwarranted. Taking into consideration these facts and that the appellant had entertained a reasonable view as to whether he would fall within the definition of photography service as he was not having any studio for rendering taxable service and taking into consideration the bonafide belief of the appellant, we are of the considered view that the penalty imposed under section 78 is unwarranted and is set aside by invoking section 80 of the Finance Act, as it stood during the relevant period.
8. From the above discussions, the impugned order is modified to the extent of setting aside the penalty imposed under section 78 only without interfering with the rest of the order. The appeal is partly allowed in the above terms, with consequential relief, if any.
(Operative portion of the order was pronounced in open court)
Case laws

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M/s. Aviram Knitters Versus Commissioner of GST & Central Excise Coimbatore
Service Tax
2019 (2) TMI 92 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 22-11-2018
Appeal No. ST/126/2011 – Final Order No. 43021/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri M.N. Bharathi, Advocate for the Appellant
Ms. T. Usha Devi, DC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellant had engaged overseas commission agents for procuring orders for their products namely 'Hosiery Garments'. They were paying commission to such foreign agents. On investigation, it was found that they had not paid the service tax on the commission paid to f

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Tribunal in the case of Texyard International Vs. Commissioner of Central Excise, Trichy – 2015 (40) STR 332 has held that levy of service tax cannot sustain in view of the exemption as per the notification. He also relied upon the decision in the case of M/s. KPR Cotton Mills Pvt. Ltd. Vs. Commissioner of Central Excise – 2018-TIOL-433-CESTAT-MAD.
3. The ld. AR Ms. T. Usha Devi supported the findings in the impugned order.
4. Heard both sides.
5. The similar issue as to the demand of service tax for services of overseas commission agents for procurement of orders was analyzed by the Tribunal in the case of Texyard International (supra). The Tribunal in the said case observed that the assessee is eligible for exemption of the Notificati

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Commissioner of GST & Central Excise Puducherry Versus M/s. Magic Hour Films India Pvt. Ltd.
Service Tax
2019 (2) TMI 211 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 22-11-2018
Appeal No. ST/99/2012 – Final Order No. 43016/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri K. Veerabhadra Reddy, ADC (AR) for the Appellant
None for the Respondent
ORDER
Per Bench
Brief facts are that the respondents are engaged in providing taxable services like advertising agency service, photography service etc. and are registered with the department. Based on intelligence that the respondents have delayed in paying service tax, investigations were conducted.

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here was much delay in paying the service tax and therefore the Commissioner ought not have to waived the penalties.
3. None appeared for the respondent though repeated notices were issued to them.
4. After hearing the ld. AR for the department and after perusal of the records, the appeal is taken up for disposal.
5. It is seen that the respondent has paid up the entire service tax along with interest of Rs. 4,52,248/- under GAR challans dated 20.3.2011, 23.3.2011 and 28.3.2011. The show cause notice is issued much later that is on 21.6.2011. It is seen that the respondent has discharged the entire service tax liability along with interest before issuance of the show cause notice. As per sub-section (3) of Section 73, as it stood during

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In Re: Esprit India Private Limited, Gurugram
GST
2019 (2) TMI 1005 – APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA – 2019 (22) G. S. T. L. 144 (App. A. A. R. – GST)
APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA – AAAR
Dated:- 22-11-2018
HAAAR/2018-19/02
GST
AMIT KUMAR AGRAWAL AND MANORANJAN KAUR VIRK, MEMBER
Appellant Represented by: Sh. Nitin Agrawal, Power of Attorney Holder, M/s. Esprit India Pvt. Ltd.
Department Represented by: Sh. Amreshwar Gautam, Asstt. Commissioner Sh. S.K. Saini, Jt. Director(Legal)
Order under Section 101 of the Central Goods and Services Tax Act, 2017/the Haryana Goods and Services Tax Act, 2017.
The present appeal has been filed under Section 100 (1) of the Central Goods and Services Tax Act, 2017/the Haryana Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and HGST Act respectively”] by M/s. Esprit India Private Limited [hereinafter referred to as the “Appellant”] against the Advance Ruling No. HAR/

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s entered into an agreement dated 18.07.2016 with Esprit India Pvt. Ltd. in terms of which Esprit India Pvt. Ltd. has undertaken to provide various sourcing support services to EDCFE in relation to performance of the obligations under EDCFE's contract with Esprit Germany.
3. Under the agreement, Esprit India Pvt. Ltd. is appointed by EDCFE to provide services to EDCFE in relation to goods and merchandise including wearing apparel, shoes & accessories and fabric. A brief description of the functions/responsibilities of EDCFE and Esprit Germany and Esprit India Pvt. Ltd. is listed below:
Sr.No.
Functions/Activities
Role of EDCFE/Esprit Germany
Role of Esprit India
1.
Market research
No role
Esprit India conducts market research to understand market dynamics, gather pricing information from different suppliers and advise on the best available combination of price, quality and delivery of the goods for Esprit Germany.
2.
Purchase of goods and trademark protection
Esprit Germany

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in respect of goods sourced from India
Esprit India only communicates the terms and conditions to the extent of instructions and requirements received from Esprit Germany (through EDCFE) but is not involved in negotiation.
5.
Inspection and quality control
Esprit Germany and EDCFE frame guidelines for quality control procedures to be adopted during manufacturing, stock keeping in warehouse and transportation.  
Esprit India based on the guidelines received from EDCFE conducts quality checks at various stages of production. It also checks whether the goods meet the specification, quality, delivery time, and other requirement of Esprit Germany.
6.
Logistics
Products are dispatched by the suppliers to Esprit Germany.
Esprit India makes logistics arrangement for the goods in accordance with the instructions of Esprit Germany received through EDCFE and assure that all documents related to shipment of the goods Esprit Germany are proper.
7.
Contract conclusion
No role
Espri

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different categories.
C. The Ld. AAR had arbitrarily and erroneously held that the questions asked by the Appellant were out of the scope of the Section 97(2) of Central Goods and Services Tax Act 2017 (CGST Act) /Haryana Goods and Services Tax Act 2017 (HGST Act) and the questions could not be taken up by the AAR due to lack of jurisdiction.
D. Services provided by the Appellant were not 'intermediary' services.
* The Appellant in no manner 'arranged' or 'facilitated' sale of Goods from vendors in India to Esprit Germany
* The Appellant does not qualify as an 'agent' or a 'broker' for EDCFE
E. The services performed by the Appellant are in nature of “support services”
F. Services in the present case are indeed exported. Services provided by the Appellant would qualify as 'exports' in terms of Section 2 (6) of Integrated Goods and Services Tax Act 2017 (the IGST Act).
G. The remuneration of the Appellant for support services to EDCFE is independent of purchase of goods by Esp

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ant pleaded that his services fall in the ambit of export services treating the same as zero rated supply of services.
In support of his arguments, Sh. Nitin Agrawal has referred to following judgments of the Hon'ble Courts and the decisions of the Authorities under the Goods and Services Tax Act:-
1. CST v. Ernst & Young Pvt. Ltd., 2014 (34) S.T.R. 3 (Del.) = 2014 (2) TMI 1133 – DELHI HIGH COURT on 25-February 2014.
2. Commissioner of Service Tax, New Delhi v. Menon Associates (2015 77 VST 168 Del.) = 2014 (11) TMI 970 – DELHI HIGH COURT
3. Commissioner of Service Tax, New Delhi v. Menon Associates (2015 77 VST 168 Del.) = 2014 (11) TMI 970 – DELHI HIGH COURT
4. Sunrise Intermediary services-case law.
5. ARA ruling Global Reach Education [2018-VIL-06-AAR] WB 2017-18-02 (West Bengal) = 2018 (4) TMI 808 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL
6. AAR ruling Gogte Infrastructure Development Corporation Ltd. (2018-VIL-30-AAR-02) Karnataka. = 2018 (5) TMI 759 – AUTHORITY FOR ADVA

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of time and value of supply of goods or services or both;
(d) admissibility of input 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 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.”
To controvert the cited authorities of other States, it is pleaded by the department that the same are not binding on the appellant and in support of this argument, the provisions of Section 103 have been refereed to, which read as under:-
“103. (1) The advance ruling pronounced by the Authority or the Appellate Authority under this Chapter shall be binding only-
(a) on the applicant who had sought it in respect of any matter referred to in sub-section (2) of section 97 for advance ruling.
(b) on the concerned

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ng questions :-
(i) Taxability of above stated services provided by Esprit India to its associate concern in Hong Kong EDCFE under GST regime.
(ii) Whether the above stated services provided by Esprit India are covered under Export of Services having Zero rated taxability.
(iii) Whether Esprit India is eligible for seeking refund of GST for the taxes paid on input services or goods or both.
The Id. AAR has answered all the Questions raised, in term of relevant provisions of the GST Act and by giving detailed reasons. The plea of the appellant, that the AAR has given SAC & description alongwith tax rate which was not asked for, does not hold water because AAR has clarified each and every aspect raised in the application for Advance Ruling by giving self-explanatory findings. Thus the arguments raised by the appellant are untenable.
The case laws cited by the appellant are distinguishable as the facts and circumstances of the present case are different. The appellant has himself adm

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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
1054/2018/10(120)/XXVII(8)/2018/CT-58 Dated:- 22-11-2018 Uttarakhand SGST
GST – States
Uttarakhand SGST
Uttarakhand SGST
Government of Uttarakhand
Finance Section-8
NOTIFICATION
November 22, 2018
No. 1054/2018/10(120)/XXVII(8)/2018/CT-58 – WHEREAS the State Government is satisfied that it is expedient so to

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Catering Services Under B2B and B2C Models Classified Under Clause (i) of Notification No. 11/2017, As Amended.
Case-Laws
GST
Classification of services – catering services provided by the Ap

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Profiteering Allegations Dismissed: Price Reductions on 'Bathing Bar' and 'Instant Drink Powder' Exceed ITC Benefits.
Case-Laws
GST
Profiteering – 'Bathing Bar' and 'Instant Drink Powder 50 G

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Detailed analysis of the ambit and scope of clause (d) of sub-section (5) of section 17 of the Central Goods and Services Tax Act, 2017 [CGST Act]
By: – RameshKumar Patodia
Goods and Services Tax – GST
Dated:- 21-11-2018

Goods and Services Tax, commonly known as “GST”, is a multi-stage consumption-based value added tax levied on the supply of goods and services and most acclaimed tax reforms of the century which was brought into effect from the 1st day of July '2017 upon enactment of various State and Central GST legislation for which the roadmap was laid by the Constitution (101st) Amendment Act, 2016.
The GST replaced the existing multiple cascading taxes levied both by the Centre and the State and all powerful GST Council was assigned the task of Implementation of the law. The Council prescribed five tax slabs for collection of tax viz. 0%, 5%, 12%, 18% and 28% including various rules and regulations.
The rationale behind introduction of GST is laid down in the Raj

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nd the GST council with the avowed objective of effective implementation has had multiple meetings and in each of these meetings various issues arising upon the implementation has been addressed though multiple issues still remain.
While no doubt it would take years for the GST law to become perfect in view of the diverse nature of the Country with several prominent sectors, Real Estate Sector is one of the sectors of the country which is gripping with multiple issues of falling sales, rising cost of inputs, labour issues, income-tax issues etc. One prominent issue which is hotly debated across the country as far as real estate sector is concerned, is the Issue of allowability of input credit towards inputs and input Services used in the construction of a Shopping complex, Mall and/or office complex. The general consensus amongst the various stakeholders seems to be that such input credit is not allowable in view of the express provisions as contained in Section 17(5)(d) of the CGST A

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rimarily, it is to be noted that Section 16 of the CGST Act, 2017 (hereafter referred to as Act) deals with the 'Eligibility and Conditions for taking Input Tax Credit' wherein sub section (1) states that “every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner as specified in section 49, be entitled to take credit of input tax charged on supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person”.
On reading of the above stated provision, it is clear that subject to certain conditions, every registered person is eligible to take credit of input taxes charged on the supply of goods or services or both to him provided the goods or services –
i) are used; or
ii) Intended to be used in the course or furtherance of his business
Provisions of Section 17(5)(d) of the CGST Act
Howe

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ot eligible for being taken as credit.
Meaning of the phrase “on his own account”
Now a question arises is – what is the meaning of the phrase “on his own account”. The CGST Act nowhere defines the said phrase and therefore ordinary meaning of the said expression has to be taken. The plain and simple meaning of the said term would be “for his own purposes”. The phrase “on his own account” cannot be taken to refer to a situation where any taxable person who is engaged in any business or profession and uses the goods or services or both on his own account. This is because immediately after the phrase “on his own account”, the words “including when such goods or services or both are used in the course or furtherance of business” is written. Apparently if the meaning of the phrase “on his own account” is deemed to be wide enough to cover every situation of business or commerce including the situation where a real estate company is intending to utilise the Immovable property for the purpo

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when utilised by any person 'on his own account' unless the input tax credit is used or intended to be used in the course or furtherance of business. Therefore, what is not allowed by section 16(1) cannot be said to have been restricted via Section 17(5).
Rationale behind introduction of the provisions as contained in Section 17 of the CGST Act
Now it is to be seen as to what is the rationale behind introduction of the provisions as contained in Section 17 of the CGST Act which starts with the heading ” Apportionment of credit and blocked credit. The first four sub-sections of section 17 viz. sub-section (1) to (4) deals with the situation where the credit is apportioned between eligible and ineligible credit depending upon the utilisation of the goods and services for the purpose of any business and the other purposes and it is Section 17(5) which deals with the cases relating to the blocked credit where the input tax credit is blocked in certain situations as contained in the said

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Act
The general rule of interpretation is that there should not be additional inclusion of words while interpreting the provisions of a statute. The provisions must be construed strictly on the basis of plain language used by the legislature.
It is also well-settled principle of law that at first one has to apply "literal interpretation" and only in cases of absurd results, one has to apply "purposive interpretation”. It is well settled law that while interpreting a statute the basic principle of literal rule of interpretation has to be followed (See B. Premanand and Ors. v. Mohan Koikal and Ors. reported in 2011 (3) TMI 1590 – SUPREME COURT .
The relevant portion of the said decision is as follows:
"9. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretatio

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ty “which is intended for re-sale” or seeks to block input credit in respect of an immovable property “which is intended for the purposes of leasing out”. The said interpretation will be patently against the decisions of the Apex Court cited hereinabove and will result in an absurd situation where a company which is engaged in the construction as well as rendition of Real Estate services will be denied the input tax credit in all cases since primarily a real estate company is expected to be engaged in the selling of the properties or renting of the properties and the property in such a situation may be constructed by it on its own account as it is not expected that a real estate company will know in advance the purpose for which the construction is being done i.e., for the purpose of sale or for the purpose of renting out and till such time, the decision is made whether the company will sell or rent out, the construction will always be on own account and therefore if the interpretation

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under construction property and the constructed property. Though the GST Council did not deal specifically with the issue at hand but what is to be seen is that there are disputes in the manner of taxation of real estate sector while implementing the GST Law.
In the light of the discussion hereinabove, it can be safely concluded that the phrase “own account” by any stretch of imagination cannot be interpreted to mean that it covers a situation where the property is intended to be leased out. It is not permissible to assume or intend when the intention of the law makers is very clear. Even if the purposive interpretation is applied, from a simple reading of the provisions as contained in Section 17 , it is apparent that in a situation where a movable asset after purchase is rented out then there are express provisions in Section 17 to allow the Input tax credit on purchase of the movable asset against the output taxable supply of the renting of the movable asset and thus it cannot be

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hat the literal construction of a situate must be adhered to unless the context renders it plain that such a construction cannot be put on the words in question- this is what is stated in Webster's third new International Dictionary:
“Land, buildings, machinery, apparatus and fixtures employed in carrying on trade or other industrial business”
The said decision of the Apex Court was considered by Hon'ble Allahabad High Court in the case of CIT Lucknow-II Vs Kanodia Warehousing Corporation reported in 1979 (11) TMI 97 – ALLAHABAD HIGH COURT and the Hon'ble Court observed as follows:-
In order to find out if a building or a structure or part thereof constitutes “plant” the functional test must be applied. It must be seen whether the subject matter involved, that is, the building or structure or part thereof, constitutes an apparatus or a tool of the tax payer or whether it is merely a space where the tax payer carried on his business. If the building or structure or part thereof is so

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t and machinery” and “plant or machinery” cannot be taken to mean the same thing and the definition of the phrase “plant and machinery” as given in the explanation in our opinion can be applied in Chapter V and VI only where the phrase “plant and machinery” has been used and not where “plant or machinery” has been used. In this regard, it may be noted that the word “or” is normally disjunctive and “and” is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context. One does sometimes reads “or” as “and” in a statute but one does not do it unless you are obliged because “or” generally does not mean “and” and “and” does not generally mean “or”. Where provision is clear and unambiguous, the word “or” cannot be read as “and” by applying the principles of reading down (See Principles of Statutory Interpretation 13th edition 2012 Page No 485-486).
In the instant case, while section 17(5)(c) of the A

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e) dated 28-06-2017 prescribes the rate of Central Tax in respect of different kinds of supply of services wherein the rate in respect of supply of renting of immovable property service has been prescribed under heading No. 9972 (Real Estate Services) as 18% (CGST and SGST).
Also, the said notification contains a table wherein in Column No. 5 restrictions in respect of utilisation of input tax credit have been prescribed in respect of certain kinds of supply of service but no such restrictions have been prescribed therein in respect of renting of immovable property service taxed under the heading Real Estate Services.
In this regard it is pertinent to note that while prescribing different bands of tax rate in respect of GST, five bands of tax rate has been prescribed viz. 0%, 5%, 12%, 18% and 28%. These bands of tax rate has been prescribed on the basis of principle that 0%, 5% and 12% is in respect of essential and needy area and also where there are certain restrictions on the allo

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lation to construction of immovable property against the output services of Renting in the erstwhile service tax legislation were specifically brought in indirectly by amending the Cenvat Credit Rules, 2004, only after catena of judgements held that the input tax paid on inputs used and construction services utilised for the construction of property used for the provision of renting services shall be allowed as cenvat credit on the pretext that renting service could not have been rendered without construction of property.
However, unlike the amended provision under the service-tax as stated herein above, there is no such express provision under the GST law.
GST law itself was introduced in order to allow seamless input credit of tax paid on input and input services used for the provision of output taxable supply and if the interpretation as being sought to be done is allowed to be done; it will be patently against the legislation itself without there being reasonable justification fo

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no need to insert the phrase at all and it was sufficient to restrict the provision to “own account”. Therefore the interpretation that the taxable supply by way of renting of the property is covered within the meaning of “own account” is ruled out, unless it is read in conjunction with the phrase including when such goods or services or both are used in the course or furtherance of business.
Now the question arises whether when one is using the goods or services or both for the purpose of construction of an immovable property, can it be said that such goods or services or both are used in the course or furtherance of business. It is not so. The goods and services when used for the construction of an immovable property directly, they cannot simply by such usage be said to have been used in the course or furtherance of business. If the intention of the law makers was to restrict the credit in case the immovable property was used in the course or furtherance of business, then the law ma

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ne of the reasons given by putting this sector in the normal tax bracket of 18% by saying that the sector is now eligible for the input credit in respect of the supply of materials like cement, steel etc.
The business of a Real Estate player can be that of construction for sale, renting, leasing, time share and others. All these businesses are inextricably linked and it is difficult to carve out one from another and the analysis of the provisions has to be therefore done in the light of this.
The plain and simple interpretation of the said phrase can be to say that the said phrase seeks to disallow the input tax credit when the goods or services or both are used in the course of any business i.e., where the immovable property is used as a space for the purpose of running the business.
Recently, one writ petition has been filed in Karnataka High Court on this issue and is awaiting the judgement.
Conclusion:
Across the globe, in similar situations VAT on construction cost is eligibl

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ITC ON FACTORY BUILDING GOODS AND LABOUR CHARGES
Query (Issue) Started By: – SAFETAB LIFESCIENCE Dated:- 21-11-2018 Last Reply Date:- 21-11-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Dear Experts,
Please advise us whether we can take ITC on the following different cases
1. Investment on Factory Building on purchase of Building construction materials and booked in Fixed Assets
2. Investment on Admin Building on purchase of Building construction materials and booked in Fixed Assets A/c.
3. Investment on Factory Building on payment of Labour charges and booked in Fixed Assets A/c.
4. Investment on Admin Building on payment of Labour charges and booked in Fixed Assets A/c.
5. Expenses on Factory Building repairs o

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By YAGAY andSUN:
The Reply:
ITC on Civil Structure is not allowed. For details, please refer Section 17(5) of the CGST Act.
Reply By Ramaswamy S:
The Reply:
ITC not eligible as per Section 17(5) of CGST Act. Further there is a recent Advance Ruling by Telangana on the matter.
Regards
S.Ramaswamy
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
I endorse the views of both experts Shri Yagay and Ramasamy.
Reply By Ganeshan Kalyani:
The Reply:
Reproducing extract of exclusion clause.
Sec 17(5)(c) works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service;
(d) goods or services or both received by a ta

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Warranty Charges received from supplier outside India
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 21-11-2018 Last Reply Date:- 6-1-2019 Goods and Services Tax – GST
Got 2 Replies
GST
XYZ(India) importing goods from PQR (Japan) which is a parent company. During warranty period, if any defect is found in these goods, PQR is paying the warranty charges to XYZ. Is XYZ liable to pay GST on it? If yes under which provisions?
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
In

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The Commissioner of CGST & Central Excise, Nashik Versus Mahindra & Mahindra Ltd.,
Central Excise
2018 (11) TMI 1287 – BOMBAY HIGH COURT – TMI
BOMBAY HIGH COURT – HC
Dated:- 21-11-2018
CENTRAL EXCISE APPEAL NO. 28 OF 2018
Central Excise
AKIL KURESHI & M.S. SANKLECHA, JJ.
Mr. Pradeep S. Jetly with Mr. J. B. Mishra, for the Appellant.
Ms. Padmavati Patil with Mr. Anil Wani i/b. ANS Law Associates, for the Respondent
P.C:
This Appeal under Section 35G of the Central Excise Act, 1944 (the Act), challenges the order dated 18th May, 2017 passed by the Custom, Excise and Service Tax Appellate Tribunal (the Tribunal).
2. Revenue urges the following questions of law, for our consideration:
“(a) Whether in the facts and in

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assifiable under Chapter 8702.00 while it the Revenue's contention that its is appropriately classifiable under head 8703.00 of the Tariff Act.
4. The questions as proposed by the Revenue arises out of an order of the Tribunal which essentially deal with an issue of appropriate classification. Therefore, an Appeal under Section 35G of the Act from an order on classification, is not maintainable before this Court.
5. In fact, Apex Court in Navin Chemicals Mfg. & Trading Co. Ltd., v/s. Collector of Customs 2002 TIOL 460 has held that a dispute as to classification of goods directly relates to the rate of duty for purposes of assessment. Further, this Court in APM Terminals (I) Pvt. Ltd., v/s. Commissioner of Central Excise 2018 TIOL 189

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The Commissioner of Central GST Mumbai – West Versus Motilal Oswal Securities Ltd.,
Service Tax
2018 (11) TMI 1395 – BOMBAY HIGH COURT – TMI
BOMBAY HIGH COURT – HC
Dated:- 21-11-2018
CENTRAL EXCISE APPEAL NO. 20 OF 2018
Service Tax
AKIL KURESHI & M.S. SANKLECHA, JJ.
Mr. Sham Walve, for the Appellant.
Mr. Bharat Raichandani with Ms. Pragya i/b. UBR Lergal, for the Respondent.
P.C:
This Appeal under Section 35G of the Central Excise Appeal Act, 1944 (the Act), challenges the order dated 16th November, 2016 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal).
2. The Revenue urges the only the following question of law for our consideration:
“Whether on the facts and circumstances of the

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T.M. ABOOBUKKAR AND KHALEEL RAHIMAN Versus ASSISTANT STATE TAX OFFICER SQUAD NO. VII, STATE GST DEPARTMENT, KERALA, THIRUVANANTHAPURAM, JOINT COMMISSIONER OF STATE TAX-1, THIRUVANANTHAPURAM, THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, SECRETARY, TAXES DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM AND UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF REVENUE, NEW DELHI
GST
2018 (12) TMI 136 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 21-11-2018
WP(C). No. 28414 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioners : ADVS. SRI. K. M. FIROZ AND SMT. M. SHAJNA
For The Respondents : ADVS GOVERNMENT PLEADER DR. THUSHARA JAMES ASSISTANT SOLICITO

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the goods detained by issuing a writ of mandamus or any other appropriate writ order or direction.
(iii) To declare that Sections 129 and 130 of Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 and related provisions the Rules made relating to that are unreasonable, arbitrary, illegal and unconstitutional being violative of Articles 14 and 265 of the Constitution of India.
(iv) To declare that Rule 138 of Kerala Goods and Service Tax Rules, 2017 and Central Goods and Service Tax Rules, 2017 are ultra vires Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 and unconstitutional.
(v) To declare that Section 126(6) of the KSGST Act as well as CGST Act insofar as it ove

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sue a direction to the respondents not to implement or not to insist on Rule 140 of the Kerala Goods and Service Tax Rules, 2017 and Central Goods and Service Tax Rules, 2017 and Form GST INS-04 prescribed there under and to keep in abeyance of the same by issuing a writ of mandamus or any other appropriate writ, direction or order.”
3. The learned Division Bench of this Court in Renji Lal Damodaran Vs. State Tax Officer1 has dealt with an identical issue.
4. Applying the ratio of that judgment, I direct the respondent authorities to release the petitioners' goods and vehicle on their “furnishing Bank Guarantee for tax and penalty found due and a bond for the value of goods in the form as prescribed under Rule 140(1) of the CGST Rule

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DINDA ANTES Versus THE COMMISSIONER OF COMMERCIAL TAXES KERALA STATE GST DEPARTMENT, THIRUVANANTHAPURAM, THE DEPUTY COMMISSIONERKERALA STATE GST DEPARTMENT, TRICHUR, THE STATE TAX OFFICER, TRICHUR, THE GOODS AND SERVICES TAX NETWORK PVT. LTD AND GOODS AND SERVICE TAX COUNCIL, NEW DELHI
GST
2018 (12) TMI 137 – KERALA HIGH COURT – [2019] 61 G S.T.R. 398 (Ker)
KERALA HIGH COURT – HC
Dated:- 21-11-2018
WP(C). No. 36026 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI. SOJAN JAMES AND SHRI. SIVANKUTTY S.
For The Respondents : ADV. SRI. P. R. SREEJITH, SC, GOODS AND SERVICES TAX NETWORK AND THUSHARA JAMES, GP
JUDGMENT
The petitioner, a registered dealer under the Kerala Value Added Tax Act, has now

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ar outlines the procedure the Nodal Officers is to follow. It reads:
5. Nodal officers and identification of issues
5.1 GSTN, Central and State government would appoint nodal officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the Common Portal. This would be publicized adequately.
5.2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the Common Portal in relation to an identified issue, due to which the due process as envisaged in law could not be completed on the Common Portal.
5.3 Such an application shall enclose evidences as may be needed for an identified issue to establish bona fide attempt on the part of the

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Officer for the issue resolution.
5. So, in this case also, the petitioner may apply to the additional sixth respondent Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner's uploading FORM GST TRAN-1, without reference to the time-frame. Ordered so.
6. I may also observe that if the petitioner applies within two weeks after receiving this judgment, the Nodal Officer will consider it and take steps within a week thereafter. If the uploading of FORM GST TRAN-1 is not possible for reasons not attributable to the petitioner, the authority will also enable it to take credit of the input tax available at the time of its migration.
With these directions, I dispose of the Writ Petitio

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CHELLAPERUMAL VAIKUNDASEKAR PROPRIETOR, AYYA VAIKUNDA TRADERS Versus ASSISTANT STATE TAX OFFICER SQUAD NO. III, STATE GST DEPARTMENT, THIRUVANANTHAPURAM, JOINT COMMISSIONER OF STATE TAX-1, THIRUVANANTHAPURAM, THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PRINCIPAL SECRETARY AND ADDITIONAL COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM AND UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF REVENUE MINISTRY OF FINANCE, NEW DELHI
GST
2019 (1) TMI 140 – KERALA HIGH COURT – [2019] 63 G S.T.R. 204 (Ker)
KERALA HIGH COURT – HC
Dated:- 21-11-2018
WP (C). No. 31227 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI. K. M. FIROZ, AH

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f mandamus or any other appropriate writ order or direction.
(iii) To declare that re-processed plastic mats (RP Mats or RP Plastic Mats for short) comes under HSN code No.4601 of Customs Tarriff Act, 1975.
(iv) To declare that Sections 129 and 130 of Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 and related provisions the Rules made relating to that are unreasonable, arbitrary, illegal and unconstitutional being violative of Articles 14 and 265 of the Constitution of India.
(v) To declare that Rule 138 of Kerala Goods and Service Tax Rules, 2017 and Central Goods and Service Tax Rules, 2017 are ultra vires Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 and un

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s and Service Tax Act, 2017 after the lapse of the Kerala Goods and Service Tax Ordinance, 2017.
(ix) To issue a direction to the respondents not to implement or not to insist on Rule 140 of the Kerala Goods and Service Tax Rules, 2017 and Central Goods and Service Tax Rules, 2017 and Form GST INS-04 prescribed there under and to keep in abeyance of the same by issuing a writ of mandamus or any other appropriate writ, direction or order.”
3. The learned Division Bench of this Court in Renji Lal Damodaran Vs. State Tax Officer Judgment dated 6.8.18 in W.A.No.1640/2018 has dealt with an identical issue.
4. Applying the ratio of that judgment, I direct the respondent authorities to release the petitioner's goods and vehicle on his “f

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“Business Support Service” with Back Office and Accounting is not Zero Rated u/s 16 IGST Act 2017.
Case-Laws
GST
Supply of Services – supply of “Business Support Service' comprising of 'Back

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Credit Note u/s 34
Query (Issue) Started By: – sunil jain Dated:- 20-11-2018 Last Reply Date:- 2-12-2018 Goods and Services Tax – GST
Got 6 Replies
GST
As per section 34(2) of CGST Act, any registered person who issues Credit Note(CN), shall declare the details of such CN in the return for the month during which CN has been issued but not later than September following the end of the FY in which supply was made.
Say if supply of good was made in March 2018, and goods are returned back in October, does it mean CN can not be issued in Oct or so?
Pl clarify.
Thanks,
CA. R.K. Aggarwal
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
As per the provisions of law it is yes. But some clarifications have to be issued in this regard

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then vat was not allowed to be reversed. In some state it was one year. Since GST is consolidaicon of erstwhile law then I doubt that GST Council will allow to take benefit on the sales return after September month of subsequent financial year.
Reply By KASTURI SETHI:
The Reply:
There is legal force in the views Sh.Ganeshan Kalyani Ji. What I want to say voice should be raised before GST Council on the ground that there must be no restriction of time factor for sales return. Supplied goods should be allowed to return directly or indirectly at any time.
Reply By CASusheel Gupta:
The Reply:
You can ask your customer to send the goods on Tax Invoice instead of on delivery challan and issue of credit note.
Discussion Forum – Knowledge

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GST on Rental Income
Query (Issue) Started By: – Ethirajan Parthasarathy Dated:- 20-11-2018 Last Reply Date:- 28-11-2018 Goods and Services Tax – GST
Got 7 Replies
GST
Due to litigation between landlord of commercial property & tenant, the rents were not received. Civil suit for eviction is likely to be filed.
Is landlord liable to pay GST under the above circumstances.
One view could be that the landlord has to pay GST atleast to the extent of rental deposit already received. Is this view correct. What will be the situation after fully setting off the rental deposit.
Reply By KASTURI SETHI:
The Reply:
This is an extract of FAQ dated 31.3.17
Q4. What are the necessary elements that constitute supply under CGST/SGST Ac

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rate what will be the position after rental deposit is fully adjusted & tenant has neither vacated nor paying rent
Reply By KASTURI SETHI:
The Reply:
There is not an iota of doubt about leviability of GST on rental deposit. It is an advance. Dr.Govindarajan Sir has rightly opined.
Reply By YAGAY andSUN:
The Reply:
It will be treated as payments made in advance (i.e.deposits) and adjust accordingly. Hence liable for charging of GST.
Reply By Ganeshan Kalyani:
The Reply:
When the deposit was received it was not taxable as it was not for the service rendered or to be rendered. But when it is adjusted against the rent to be receivable but not received then it looses its identity as a deposit and it takes the name of rent. Hence, when th

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E-way bill for goods send for at exhibition not for sale
Query (Issue) Started By: – Pramod Jadhav Dated:- 20-11-2018 Last Reply Date:- 21-11-2018 Goods and Services Tax – GST
Got 3 Replies
GST
I am holding Gst Registeration in maharashtra state as composition taxable person, i have to send goods for at exhibition held in another state i.e. Calcutta so how can i send goods through transport is E-way bill compulsary or i can send through delivery challan. and if i can send through de

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Examination for Confirmation of Enrollment of GST Practitioners Postponed to 17.12.2018
GST
Dated:- 20-11-2018

Reference is invited to Press Release dated 1.11.2018 regarding exam for GS

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High Court Orders Revenue Authorities to Correct Mistaken SGST Remittance to IGST, Easing Fund Transfer Process.
Case-Laws
GST
Remittance of amount under the head 'SGST', instead of 'IGST' –

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PRISM CEMENT LTD Versus CGST C.C & C. E-JABALPUR CGST C.E & C. C-BHOPAL
Central Excise
2018 (11) TMI 1035 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 20-11-2018
E/50161, 50421/2018-EX(DB) – Final Order No: 53303-53304/2018
Central Excise
Mr. Bijay Kumar, Member (Technical) and Mr. Ajay sharma, Member (Judicial)
Smt. Sukriti Das, Adv for the appellant
Shri M.R.Sharma,(DR) for the respondent
ORDER
Per: Bijay Kumar
1. Both the appeals are being disposed of by the common order as the issue involved in both the appeals are identical in nature
2. The appellant is in appeal against the impugned order where the Cenvat Credit has been denied to them towards outward transportation charge under GTA service for the period in January, 2005 to December, 2011 and July, 2013 to February, 2016.
3. The brief facts of the case are that the appellant is engaged in the manufacture of cement and clinker falling under chapter heading 25 of the First Schedule to the Cent

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up to period March, 2008, the definition of input service contained the phrase “from the place of removal”. The Cenvat credit availability “From place of removal” has been settled in their favour in view of Hon'ble Supreme Court order dated 17/1/2018 and 5/2/2018 in case of CCE vs. Vasavaddatta Cement Ltd., 2018(11) GSTL3 (SC) and in the case of CC, CE & ST, Guntur vs. The Andhra Sugar Ltd., 2018-TIOL-45-SC-CX.
The definition of the input service during the relevant period is reproduced as under;
(1) ” input service” means any service-
(i) used by a provider of taxable service for providing an input service, or
(ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal,
and includes services used in relation to setting up, modernization, renovation or repair of a factory, premises of provider of output service or an office relating to such factory or premises, adver

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definition of „input service‟ as existed on that date i.e. it related to unamended definition. Relevant portion of the said circular is as under :
“ISSUE : Up to what stage a manufacturer/consignor can take credit on the service tax paid on goods transport by road?
COMMENTS: This issue has been examined in great detail by the CESTAT in the case of M/s. Gujarat Ambuja Cements Ltd. vs. CCE, Ludhiana [2007 (6) S.T.R. 249 (Tri-D)]. In this case, CESTAT has made the following observations :-
“the post sale transport of manufactured goods is not an input for the manufacturer/consignor. The two clauses in the definition of „input services‟ take care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transpor

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transport of goods up to the place of removal and not beyond that.
In this connection, the phrase „place of 8.2 removal‟ needs determination taking into account the facts of an individual case and the applicable provisions. The phrase „place of removal‟ has not been defined in CENVAT Credit Rules. In terms of sub-rule (t) of Rule 2 of the said rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT Credit Rules as assigned to them in those Acts. The phrase „place of removal‟ is defined under Section 4 of the Central Excise Act, 1944. It states that, –
 “place of removal” means –
(i) a factory or any other place or premises of production or manufacture of the excisable goods;
(ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to

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e goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the Service Tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under Section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place.”
11. As can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd., 2007 (6) S.T.R. 249 (Tribunal) and M/s. Ultratech Cement Ltd., 2007 (6) S.T.R. 364 (Tri.- Ahd.). Those judgments, obviously, dealt with unamended Rule

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upshot of the aforesaid discussion would be to hold that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer‟s premises was not admissible to the respondent. Accordingly, this appeal is allowed, judgment of the High Court is set aside and the Order-in-Original dated August 22, 2011 of the Assessing Officer is restored.
7. It was further contended while Ld. Advocate that the demand is not sustainable for period beyond normal period of limitation (one year) on the ground that there was wide spread confusion about the availability of Cenvat Credit on this score.
They have acted in accordance with the provision of the law as prevalent during the relevant time. The issue was contentious issue and which has resulted into the various conflicting judgements from the various judicial fora including High Courts and Supreme Court such as;
10 September 2004
The Cenvat Credit Rules, 2004 were brought into force vide Notification N

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upra)
18 May 2009
ABB Ltd. vs. CCE, 2009 (15) S.T.R. 23(Tri-LB)
The Larger Bench held that transportation of final product must be considered in light of the requirement of the business.
15 June 2009
The Department accepted the order of the Hon'ble Punjab and Haryana High Court and decided not to file an SLP.
23 March 2011
CCE v. ABB Ltd., 2011(23) S.T.R.97(Kar.)
The Hon'ble High Court affirmed the decision of the larger bench in ABB (supra).
6 April 2011
CCE v. Parth Poly Woven Pvt. Ltd. 2012(25) S.T.R 4(Guj)
The Hon'ble Gujarat High Court held that transportation of finished goods is inextricably linked with the manufactured process.
3 October 2012
Commissioner vs Grey Gold Cement Ltd., 2014(34) S.T.R. 809(A.P)
The Hon'ble Andhra Pradesh High Court affirmed the order of the larger bench in ABB ltd.
18 November 2012
Ultratech Cement Ltd. v. CCE, 2014(35) S.T.R. 752(Tri-Del.)
The Hon'ble Tribunal held that the Assessee would be entitled to credit if the sales

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ment Ltd., 2016(44) S.T.R. 227(Kar)
The Hon'ble High Court held that credit on FOR destination sales is admissible Appealed before SC (Civil Appeal No. 11261 of 2016)
17 January 2018
CCE, Belgaumn vs. Vasavadatta Cement Ltd., 2018(11)GSTL 3(SC)
The Hon'ble Supreme Court held that the credit would be admissible for the period prior to the amendment in 2008
-01 February 2018
CCE & ST vs. Ultratech Cement Ltd. 2018(9) GSTL 337(SC)
The Hon'ble Supreme Court held that credit is inadmissible for the period after the amendment in 2008
05 February 2018
 
Commissioner vs. The Andhra Sugar Ltd., 2018 TIOL 45 SC CX
The Hon'ble Supreme Court held that the credit would be admissible for the period prior to the amendment in 2008
8. Ld. Ld. Advocate further submitted that the various decisions of High Courts and Tribunal, were also in the favour of appellant, and therefore, in such a circumstances it cannot be held that the appellant had any malafide intention to avail the Cenva

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Corrigendum regarding TSGST (13th Amendment) Rules, 2018
F.1-11(91)-TAX/GST/2018(Part-II) Dated:- 20-11-2018 Tripura SGST
GST – States
Tripura SGST
Tripura SGST
GOVERNMENT OF TRIPURA
FINANCE DEPARTMENT
(TAXES & EXCISE)
NO.F.1-11(91)-TAX/GST/2018(Part-II) Dated, Agartala, the 20th November, 2018
CORRIGENDUM
In the notification of the Government of Tripura, in the Finance Department, No.F.1-11(91)-TAX/GST/2018(Part-II), dated the 3rd November, 2018, published in the Tripura Gaz

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