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2018 (9) TMI 748 – BOMBAY HIGH COURT – TMI – Condonation of delay of 529 days in filing appeal – failure to remove office objections within the stipulated time i.e. 19.05.2016 – Held that:- If the State is suffering on account of negligence of its officers then it must bring on record action having been taken against such delinquent officers. Nothing has been shown to us that the State has taken action against the officer concerned – there is no reason to condone the delay for the purpose of setting aside the order dated 21.04.2016 passed by the Prothonotary and Senior Master.
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The Notice of Motion stands dismissed. – Notice of Motion No. 119 of 2018 in Central Excise Appeal (L) No. 54 of 2013 Dated:- 7-9-2018 – M. S. SANKLECHA AND RIYAZ IQBAL CHAGLA, JJ. Ms. P. S. Cardozo, Advocate for the Applicant / Appellant. Mr. Jas Sanghavi, Advocate I/by PDS Legal for the Respondent. P.C. 1 This Motion seeks condonation of 529 days delay in filing the present Notice of Motion that seeks t

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It gives no indication of the date, the panel of Advocates has changed. The affidavit further states that the appellant is a statutory government authority and it has very good chance to succeed in this appeal and, therefore, the order dated 21.04.2016 of the Prothonotary and Senior Master be set aside. 4. We find that the affidavit does not satisfactorily explains the delay. It does not indicate the exact date when the appellant department learnt about the rejection order dated 21.04.2016 passed by the Prothonotary and Senior Master. The only reason set out therein is that there is a change in the panel of Advocates and the appellant is a statutory government authority, responsible for collection of the revenue under the relevant statute. 5. The reasons set out in the said affidavit for the delay are not satisfactory and rather, it reflects casual attitude on the part of the officers of the revenue. It appears that after filing of the appeal and /or engaging a panel Advocate, the off

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in their functioning by accepting above cause as sufficient. The cause as set out and the explanation as forwarded today, on affidavit and belatedly, reflects total negligence and callousness of the Revenue officials. Their attitude shows that they are not at all vigilant and interested in pursuing the cases filed by the Department involving a tax effect of crores of rupees. They expect the Court to be lenient and liberal and pardon them every time. It is this approach of the Revenue officials which is not only strongly deprecated in the earlier order but this Court has refused to uphold it after it was noticed that this is the position in almost every matter. The aforesaid observations apply equally apply to the present facts. 6. When attention was drawn of the counsel for the Revenue with regard to the aforesaid observations of this Court, she responded by contending that the government is impersonal entity and depend upon its officers to perform their job. Therefore, when the office

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act that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are unde

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2018 (9) TMI 1134 – BOMBAY HIGH COURT – TMI – Condonation of delay in filing this motion – reason for delay is failure to remove office objections on or before 07.01.2016.
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Held that:- The transfers of the officers of the department does not absolve the Revenue from prosecuting its appeal with sincerity and vigilantly. The reasons given in the affidavit in support of the Motion do not inspire confidence and it evidences the casual manner in which the Revenue prosecutes its appeal before this court – there is no reason to condone the delay of 746 days for setting aside the order dated 10.12.2015 passed by the Prothonotary and Senior Master.
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The Notice of Motion is dismissed. – NOTICE OF MOTION NO. 247 OF 2018 IN CENTRAL EXCISE AP

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; Central Excise, Daman dated 16.02.2018. The only reason for the delay of 746 days, as set out in the affidavit is the frequent transfers of officers of the applicant department. In that view the follow up of this appeal after its filing, it states, is lost sight of and is, therefore, could not be pursued. It is stated that as new GST Act, 2017 came into force, the entire department concerned was reconstituted and no proper steps could be taken to get set aside the order dated 10.12.2015. Although the affidavit states that the department learnt about dismissal of the appeal some time in December, 2017 on the official website of this court, no particulars of how and in what circumstances the website of the court was visited and the reason w

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ding the cases by taking a periodical review of the proceedings or appeals lodged in this Court. They hand over the papers to Advocates and thereafter are not bothered about the outcome of these appeals. It is for the Revenue or the Department to take the necessary action but they do not feel obliged to do so. They expect this Court to condone serious lapses in their functioning by accepting above cause as sufficient. The cause as set out and the explanation as forwarded today, on affidavit and belatedly, reflects total negligence and callousness of the Revenue officials. Their attitude shows that they are not at all vigilant and interested in pursuing the cases filed by the Department involving a tax effect of crores of rupees. They expect

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2018 (9) TMI 1269 – MADRAS HIGH COURT – 2018 (362) E.L.T. 193 (Mad.) – Non-Compliance of Pre-deposit – time limitation – appeal dismissed on the reason that the required pre-deposit was made belatedly after a period of 7 months from the date of filing of the appeal – Section 35F of the Central Excise Act, 1944.
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Whether the appeal presented within time can be rejected on the ground that pre-deposit was made belatedly?
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Held that:- The issue has already been considered by the Division Bench of this Court in MR. RAMKI VERSUS THE ADDITIONAL COMMISSIONER OF CUSTOMS (PAU) , THE COMMISSIONER OF CUSTOMS (APPEALS I) [2017 (7) TMI 832 – MADRAS HIGH COURT], wherein the Division Bench after taking note of various decisions, including the Full Bench decision relied on by the respondents, held that The proviso to Section 128 (1) of the 1962 Act, empowers the second respondent to adjudicate upon an appeal filed beyond the period of 60 days, but, within a further period of 30 days, provide

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ed:- 7-9-2018 – Mr. K. Ravichandrabaabu J. For the Petitioner : Mr.Akhil Suresh For the Respondents : Mrs.Aparna Nandakumar, Senior Panel Counsel ORDER The petitioner is aggrieved against the order of the second respondent dated 17.01.2018 in dismissing the appeal on the reason that the required pre-deposit was made belatedly after a period of 7 months from the date of filing of the appeal. In other words, the second respondent dismissed the appeal for non-compliance of predeposit as per Section 35F of the Central Excise Act, 1944. 2. The petitioner is an Assessee and registered with the Service Tax Commissionerate for rendering service tax under the category of renting of immovable property. Pursuant to the issuance of show cause notice, an order in original dated 25.11.2016 was passed against the petitioner, wherein and whereby, the Adjudicating Authority confirmed the service tax demand and interest apart from imposing penalty. 3. Challenging the said order, the petitioner preferred

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f this Court made in W.A.Nos.342 to 347 of 2017 dated 07.06.2017. 5. On the other hand, the respondents filed a counter affidavit and relied on a Full Bench decision of this Court reported in [1996 (I) CTC 95] in the case of State of Tamil Nadu Vs E.P.Nawab Marakkadai. 6. Heard both sides. 7. There is no dispute to the fact that the petitioner has presented the appeal before the second respondent within time. It is also not in dispute that the appeal was not accompanied with the predeposit and on the other hand, such deposit was made only after a period of 7 months from the date of presentation of the appeal. The issue, thus, arises for consideration in this writ petition as to whether the appeal presented within time can be rejected on the ground that pre-deposit was made belatedly, has already been considered by the Division Bench of this Court in W.A.Nos.342 to 347 of 2017 dated 07.06.2017, wherein the Division Bench after taking note of various decisions, including the Full Bench d

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at our conclusions have to be based on the language used in the Act and not based on the likelihood of abuse of the provisions by the litigants. 25.2.Having said so, in our view, the Authorities below could follow the procedure, which has been adverted to, in the Circular dated 14.10.2014, as indicated in our interim order dated 07.04.2017. 26.The Circular sensu stricto applies only vis-a-vis appeals filed with the Tribunal. Therefore, according to the procedure prescribed in the said Circular, the appellants are required to be given, at least three opportunities for processing necessary evidence of having made the prescribed mandatory predeposit. 26.1.The Circular, further states that if after three opportunities, the necessary evidence is not filed, then, the appeal should be numbered and placed, for a decision before the concerned Presiding Officer. 27.In our view, the same procedure could be applied even vis-a-vis appeals preferred before the second respondent i.e., The Commissione

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d counsel for the respondent laid emphasis on the following words in the said judgment: ……….. We are of opinion that by the word 'entertain' here is meant the first occasion on which the court takes up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing of the appeal. But the very next sentence in the said judgment cuts at the very root of the respondent's contention. It is as follows: …………But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. 29.In our view, the said observations of the Full Bench have to be read in the context of the provision, which the Court was called upon to interpret in the said case. 29.1.In that case the Court was called upon to interpret the provisions of Section 31 (1) of the T

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d that the appellant had sufficient cause for not presenting the appeal within the first mentioned period: Provided further that in the case of an order under section 12, section 12-A, section 14, section 15 or sub-sections (1) and 92) of section 16, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be. 30.A perusal of the Section would show that the second proviso, on which, reliance was placed by Mr.Chopda is framed in a manner, which is perceptibly different from the language which obtains in Section 129 E of the 1962 Act. 30.1.The word 'entertain' is followed by the expression unless it is accompanied by satisfactory proof of payment of tax admitted . In other words, the second proviso to Section 31(1) of the TNGST Act, prohibited the concerned Authority from entertaining an appeal, unle

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appeal before the Deputy commissioner I, Commercial Taxes and at the time of presentation, a sum of ₹ 8,52,472 was required to be deposited as per the calculation made under Section 51 of the Tamil Nadu Value Added Tax Act, 2006 (for brevity the Act ) but as it was not done, the memorandum of appeal was returned to him. The learned Single Judge disposed of the writ petition directing the assessee to comply with all the requirements as intimated by the appellate authority in the return memo dated 3-1-2011 and on such compliance, the appellate authority was directed to register the appeal and dispose of the same in accordance with the law. 3.In the writ appeal, it was contended that the appellate authority could not have returned the memorandum of appeal on the ground that Section 51 uses the term entertain and second, the amount that was due to the appellant from the Department was to be adjusted for the purpose of deposit as envisaged under Section 51 of the Act. The Division Be

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0-9-2013 whereafter the appeal shall be heard and disposed of on merits. As far as the adjustment/refund is concerned, it is open to the appellant to initiate any independent proceeding. The conclusion of the Division Bench with regard to the factum that there has been proper adjustment by the Department in respect of the claim made by the assessee is set aside. However, we may proceed to clarify that we have not expressed any opinion with regard to the claim of the assessee. 32.Having regard to the aforesaid, we are inclined to hold that the second respondent could not have dismissed the appeals, on the ground that the prescribed mandatory predeposit was made, beyond the condonable period. 8. Since the Division Bench has also taken into consideration of the Full Bench decision relied on by the respondents and has come to the above conclusion that the Appellate Authority could not have dismissed the appeal on the ground that the prescribed mandatory appeal was made beyond the condonabl

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2018 (9) TMI 1647 – APPELLATE AUTHORITY FOR ADVANCE RULING, UTTARAKHAND – 2018 (18) G. S. T. L. 566 (App. A. A. R. – GST) – Levy of GST – Marg Sudharan Shulk – charged and collected by applicant for the maintenance of forest road, from non government, private and commercial vehicles engaged in mining work in lieu of use of forest road – Abhivahan Shulk – charged and collected by applicant in respect of forest produce carried out by a person – Challenge to Advance Ruling decision.
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Whether GST is leviable on the “Marg Sudharan Shulk” and “Abhivahan ShuIk” said to be charged by Forest Division Dehradun from the non government, private and commercial vehicles engaged in mining work in lieu of use of forest road?
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Held that:- A fee is charged in lieu of some service granted to a particular class of persons from whom it is being charged. Such fees are to offset the expenses (partly or fully) incurred in rendering the said service and co-relation between the two with exact mathema

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orest area without any forest produce. Thus, this fee is directly related to the quality and quantity of the forest produce.
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Abhivahan Shulk fulfills all the criteria, which are required to be established for a government levy, for it to be termed as ‘fee’. The very nature of it being a fee ensures that a quid pro quo has to be there and therefore rendering of some form of service comes in built, which is also established as discussed above. Thus, this shulk collected against the services rendered, is liable to be taxed under the provisions of Goods and Service Tax Acts, unless otherwise exempted – Sub-clause (2) is the exclusion clause and only goods or service falling under the Schedule III (clause a) or being included in any exception notification (clause b), will not be treated as supply of goods or supply of services. Everything and anything other than those covered by sub clause (2) (a) & (b) are to be treated as supply of goods or supply of services as covered by Schedule

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F FACTS OF THE CASE 1. In the instant case, an application under Sub-Section (1) of Section 97 of the CGST Act and the rules made thereunder, was filed by Regional Forest Officer (Forest Division, Dehradun) seeking an advance ruling on the question whether GST is leviable on the Marg Sudharan Shulk and Abhivahan ShuIk said to be charged by Forest Division Dehradun from the non government, private and commercial vehicles engaged in mining work in lieu of use of forest road. The said mining is being undertaken at Saung and Jakhan Rivers falling under the jurisdiction of Forest Division Dehradun under the supervision of Van Vikas Nigam after getting necessary approval from Environment Ministry, Government of India. 1.2. After having gone through the merits of the applicability of GST on Marg Sudharan Shulk , which was being charged and collected by applicant for the maintenance of forest road, from non government, private and commercial vehicles engaged in mining work in lieu of use of fo

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rmined according to quality and quantity. Therefore, said Abhivahan Shulk cannot be termed as toll tax and rather is a form of consideration received by the applicant in lieu of services provided to the person for carrying forest produce. Under Section 2(102) of GST Act, services means anything other than goods. …..and all services but for list of exempted services as provided under Chapter 99 of GST Tariff, 2017 are liable for GST. Since the services provided by the applicant did not find mention in the list of exempted services, therefore the applicant was liable to pay GST @ 18% on the said Abhivahan Shulk under Service Code 9997 and was to be treated as other services CASE FOR THE PARTY Aggrieved by the said order passed by the Authority for Advance Ruling vide Order No.01/2018-19 dated 20.04.2018 = 2018 (6) TMI 430 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND, the party vide the instant Appeal dated 25.05.2018 (admitted on 18.06.2018) have defended their stance of the non-leviab

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ch timber or other produce without a pass from an officer duly authorised to issue the same, or otherwise than in accordance with the conditions of such pass; further clause (c) prescribes that State Govt. may provide for the issue, production and return of such passes and for the payment of fees therefore 4. That THE UTTARAKHAND TRANSIT OF TIMBER AND OTHER FOREST PRODUCE RULES 2012, have been formulated to implement the provisions of Indian Forest Act 1927 and Chapter II of the said Rules deal with Transit of Timber and other Forest Produce by Land and Rule 3 which pertains to Regulation of Transit of Forest Produce by Means of Permit , provides that No forest produce shall be moved into, or from, or within the State of Uttarakhand except as hereinafter provided, without a transit pass in the form Schedule A to these rules…… .Further Rule 5 which deals with Fee Payable for Different classes of Passes prescribes the system of issuance of passes and fee payable for the same. 5. Thus

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this Act, the expression supply includes- (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; (b) import of services for a consideration whether or not in the course or furtherance of business; (c) the activities specified in Schedule I, made or agreed to be made without a consideration; and (d) the activities to be treated as supply of goods or supply or services as referred to in Schedule II. (2) Notwithstanding anything contained in sub-section (1)- (a) activities or transactions specified in Schedule Ill; or (b) such activities or transactions undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities, as may be notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of

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in the definition of service. 8. That in terms of the submissions made, the Abhivahan Shulk (Transit Fee) is not exigible to GST and in case such fee is held to be exigible to GST, in such a scenario all Govt. Fees and Levies charged under their specific statues shall become exigible to GST, which is not the intention of legislature, therefore it was prayed that Abhivahan Shulk (Transit Fee) may not be considered exigible to GST. That without prejudice to the submissions made hereinabove, it was further pleaded that if it was deemed that the Abhivahan Shulk (Transit Fee) charged by the appellant is for rendering service and is exigible to GST, the provisions of Notification No. 13/2017-CT(R) dated 28.06.2017 shall continue to apply and in terms of entry S.No. 5, GST, if any applicable, on the said Abhivahan Shulk (Transit Fee), shall be payable by the recipient of service under Reverse Charge and not appellant as held by the Authority for Advance Ruling by orders dated 20.04.2018, sinc

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ollection of the Abhivahan Shulk (Transit Fee). Ans 1. The said Abhivahan Shulk is collected under the authority granted in terms of THE UTTARAKHAND TRANSIT OF TIMBER AND OTHER FOREST PRODUCE RULES 2012, which have been formulated to implement the provisions of Indian Forest Act 1927. A copy of the same has already been submitted during the course of personal hearing. Q2. Since when this fee is collected and what is the point of collection? What is the machinery for collection? Ans 2. This fee is collected since 1978 in terms of earlier UP Transit of Timber and Other Forest Produce Rules 1978. The fee is collected at various check posts established by the appellant and the said fee is collected by the officers of the appellant. Q3. Is there any exemption from fee? If so, please provide the details and reason for exemption. Ans 3. That exemption from fee is granted in terms of Rule 3 of THE UTTARAKHAND TRANSIT OF TIMBER AND OTHER FOREST PRODUCE RULES 2012 in the following circumstances:

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ring. Q5. Under what accounting head is the fee deposited? Ans 5. The Fee is Deposited with State Govt. as Govt. Revenue under Code – 0406- 01- 800- 01- 03. A copy of sample challan is enclosed herewith as Annexure-I. Q6. What is the reason for imposition of this fee? How is the gross collection used and by which authority? Ans 6. The fee is charged in terms of the authorities granted under the Indian Forest Act 1927, which has been enacted to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce . Further to ensure that no unwarranted forest produce is taken out. The Gross Collection of Abhivahan Shulk is deposited with State Govt. as Govt. Revenue. A sample copy of challan is already enclosed as Annexure-I. Further the said collected sums are utilised by State Govt. the way Govt Revenue is utilised. Q7. Is any annual target fixed for collection of this fee? If yes, copy of latest correspondence may please be su

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case less than ₹ 10000/- or with both. Q10. Are the forest produce liable to seizure in case the Abhivahan Shulk is not paid? What is the fate of seized goods? Are they subsequently auctioned then is the Abhivahan Shulk recouped from the sales proceeds? Ans 10.Yes. That once the produce is detained, the case is placed before the Civil Court and once the orders are passed for seizure of the same, the said produce is auctioned for recovery of fine. Q11. Sample copy of receipt / challan for this fee. Ans 11. Sample Copy of receipts and Challan towards deposition of the same towards Govt. Revenue are Enclosed herewith as Annexure-2 Q 12. Where the fee is deposited whether with treasury or any department? Ans 12. The Gross Collection of Abhivahan Shulk is deposited with State Govt. as Govt. Revenue. A sample copy of challan is already enclosed as Annexure- I DISCUSSIONS & FINDINGS We have carefully gone through the order of the Authority on Advance Ruling dated 20.04.2018, appeal

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cation no. 12/2017 CT(R) dated 28.06.2017 Before going into the specific details of the issue, the nature of the levy needs to be understood. Hon ble Supreme Court, in the landmark judgement in the case of State of Rajasthan vs. Sajjan Lal, AIR 1975 (Supreme Court) page 706, (Para 40 and 41) = 1973 (12) TMI 93 – SUPREME COURT OF INDIA, laid down the law regarding the difference between a tax and fee. It was held (relevant part quoted herein) – Section 17(3) cannot be held to be invalid and ultra vires the power, of the State Legislature. The mere fact that the amount was paid into the consolidated fund is by itself not sufficient to hold that the levy under s. 17(3) of the Act is a tax. It was held in the Commissioner of H.R.E. Madras v. Sri Lakshmindra Tirtha Swamiar of Shri Shirur Mutt = 1954 (4) TMI 29 – SUPREME COURT that the essence of taxation is compulsion and imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax, tha

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down by this Court of the distinction between the tax and the fee and its demarcating line visa-vis the power of the legislation to make law for imposition of fee in that behalf. Suffice to reiterate the ratio laid in Sreenivasa General Traders and Ors. v. State of A.P. and Ors. 1983 (9) TMI 315 – SUPREME COURT, that the traditional view that there must be actual quid pro quo for a fee has undergone a sea change. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary purpose of regulation in public interest, if the element of revenue for general purpose of the State predominates the levy becomes a tax. In regard to fee, there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary

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in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual nor that each should obtain the benefit of the service. Further, in the case of P. Kannadsan etc. vs. State of Tamilnadu & other etc. J.T. 1996 (7) SC 16 = 1996 (7) TMI 554 – SUPREME COURT OF INDIA. It has been observed that : Even in the matter of fees, it is not necessary that element of quid pro quo should be established in each and every cases for it is well-settled that fees can be both regulatory and compensatory and that in the case of regulatory fees the element of quid pro quo is totally irrelevant. Thus, from the above pronouncements, it is crystal clear that a fee is charged in lieu of some service granted to a particular class of persons from whom it is being charged. Such fees are to offset the expenses (partly or fully) incurred in rendering the said service and co-relation between the two with exact mathematical precision is not i

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est produce. Thus, this fee is directly related to the quality and quantity of the forest produce. The Uttarakhand Forest Department is incurring expenses in maintaining the administrative machinery for collection of the Abhivahan Shulk and they are required, by the Uttarakhand Transit of Timber and Other Forest Produce Rules 2012, to construct and maintain depots. All these expenses appear to be met up from the collection in the form of Abhivahan Shulk and the fact that this fee is deposited in the consolidated general head does not in any way change its character of being a fee. In return for this fee, the forest department is providing the service of maintaining and regulating the forest produce and ensuring the continued availability of the forest produce and its safe transit through the jurisdiction of forest department. These services are restricted only to the persons who are carrying the forest produce and have paid the Abhivahan Shulk. Thus, only a particular class of people,

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ney or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged; . Thus, by using the word anything the legislation becomes all encompassing with the only exceptions contained in the definition itself. It is not possible to include everything in a definition. So, merely the fact that the term Govt. fee is not mentioned in the definition of services does not exclude it. The important factor is whether it falls under other than goods, money and securities and the answer has to be obviously in negative. So, government fees undoubtedly are covered by the definition of services. Further, the appellant have taken the plea that Abhivahan Shulk is not being charged for furtherance of business and hence it does not fall under the ambit of supply as defined in clause (a) or (b) of Section 7 sub-section (1) of the CGST Act 2017. However, we find that the remaining clauses and sub-s

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notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of services. (3) Subject to the provisions of sub-sections (1), and (2), the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as- (a) a supply of goods and not as a supply of services; or (b) a supply of services and not as a supply of goods. A plain reading of the above statute clearly shows that sub-clause (2) is the exclusion clause and only goods or service falling under the Schedule III (clause a) or being included in any exception notification (clause b), will not be treated as supply of goods or supply of services. Everything and anything other than those covered by sub clause (2) (a) & (b) are to be treated as supply of goods or supply of services as covered by Schedule I or Schedule II in terms of sub-clause (1)(c) and (1)(d) respectively. Government fees are not specified in Sc

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llip;…… (b)…….. (c)………(d) any service, other than services covered under entries (a) to (c) above, provided to business entities are to be taxed at NIL rates. Abhivahan Shulk does not fall under exclusion clauses (a) to (c) and hence they are to be treated as any service provided to a business entity, as per clause (d) and accordingly the fee does not fall under the category of NIL rate. The Heading number 9997 at entry serial no. 35 of Notification no. 11/2017-Central Tax (Rate) dated 28.06.2017 reads – Other services (washing, cleaning and dyeing services; beauty and physical well-being services: and other miscellaneous services including services nowhere else classified) with the CGST rate of 9% [The corresponding entry in notification no. 08/2017-lntegrated Tax (Rates) dated 28.06.2017 having IGST rate of 18%]. This entry serial is the residuary entry which covers all other services which are not elsewhere specified. As discussed above, t

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2018 (10) TMI 593 – CALCUTTA HIGH COURT – TMI – Adjustment of CENVAT credit granted to the petitioner – migration to GST regime – Held that:- Interest of justice would be sub-served by permitting the petitioner to apply before the Nodal Officer as identified in this order – petition disposed off. – W.P. No.16274(W) of 2018 Dated:- 7-9-2018 – Debangsu Basak, J. Mr. Sandip Choraria, Mr. Shovan Ghosh, Mr. Akshat Agarwal …. For the petitioner. Mr. Kaushik Chanda, Mr. Dibashis Basu, Mr. Tapan Bhanja … for Union of India. Mr. Abhratosh Majumder, ld. Addl. A. G., Mr. T. M. Siddique, Mr. Avra Mazumdar …. For the State. The petitioner seeks adjustment of CENVAT credit granted to the petitioner. It had made an application which

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t of justice would be sub-served by permitting the petitioner to apply before the Nodal Officer as identified in this order. Needless to say, such application must be in accordance with law. The Nodal Officer will not reject such an application of the petitioner made within 10 days from date, on the ground of delay. Needless to say that, the Nodal Officer will transmit such application along with relevant data and documents to the GSTN for consideration. It is expected that, GSTN will decide the claim of the petitioner, in accordance with law, within 12 weeks from the date of receipt of the application. WP No.16274(W) of 2018 is disposed of. No order as to costs. Urgent certified website copies of this order, if applied for, be made availab

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2018 (10) TMI 631 – CESTAT ALLAHABAD – TMI – Appropriation of refund sanctioned against the outstanding interest amounts – finalization of provisional assessment – whether the sanctioned refunds have to be made in cash or in RG 23A Part-II as credit? – Held that:- On being questioned learned Advocate fairly agrees that such duties were originally paid out of the credit account only and not in cash. He has further fairly agreed that the appellant is in a position to use the said credited amount for payment of duties in future. If that be so, I really fail to understand the appellant’s contention to receive refunded amounts in cash.
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The duties having been paid out of the credit amount has to be refunded to the credit account only and

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that the said sanctioned refund claim has to be allowed as a credit to the assessee in their RG-23A Part-II, whereas the interest has to be paid in cash. As such the adjustment of the refunded amount with the outstanding interest was not proper. The assessee also filed a Cross Objection against the said order of the Original Adjudicating Authority contending that the said appropriation was not proper inasmuch as there was Stay against the interest confirmation and there was no indication in the order of the Original Adjudicating Authority as to against which interest demand, adjustment has been shown by him. It was also pleaded that whatever interest demands are pending against the assessee, the same have been stayed by the Higher Appellat

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s. Commissioner of Central Excise, Bangalore-I reported at 2004 (171) ELT 487 (Tri.- Bang.). Hence the present appeal by assessee. 4. It is seen that the said decision of the Tribunal relied upon by Commissioner (Appeals) stand overruled by the Hon ble Karnataka High Court in the case of Southern Auto Products vs. Commissioner of C. Ex. Bangalore-I reported at 2009 (244) ELT 348 (Kar.). As such I agree with the learned Advocate that the Cross Objections were maintainable before the Commissioner (Appeals). 5. As regards merits of the case, it is seen that a common cause of grievance between Revenue and the appellant before Commissioner (Appeals) was that such sanctioned refund claim cannot be adjusted against the outstanding interest amounts

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GST – States – PA/ETC/2018/171 – Dated:- 7-9-2018 – DEPARTMENT OF EXCISE AND TAXATION Bhupindra Road, Patiala, Punjab NOTIFICATION The 7th September, 2018 No. PA/ETC/2018/171.-In pursuance of section 168 of the Punjab Goods and Services Tax Act, 2017 (Punjab Act No.5 of 2017) and clause (b) of sub-rule (1) of rule 40 of the Punjab Goods and Services Tax Rules, 2017, I, hereby extend the time limit for making the declaration in FORM GST ITC-01 of the said rules, by registered persons who have fi

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GST – States – Circular No 19/2018 – Dated:- 7-9-2018 – Office of the Principal Secretary & Commissioner State Goods and Services Tax Department Government of Kerala, Thiruvananthapuram No.CT/11804/2018-C2 Dtd 07/09/2018 Circular No 19/2018 Sub:- SGST Act – Benami CST Registration – measures to prevent evasion of tax- instructions issued- Reg. For the effective tax administration the first and foremost effort is to widen the tax net. Therefore, during GST regime transition, initial efforts were taken to ensure migration of VAT dealers to GST from 1st January 2017 onward and later the focus was brought to new registrations from July 2017. The registration procedure under Goods and Services Tax Act is simplified with the objective of ease of doing business. After online application, the applicant is deemed registered within 3 days. Therefore, since Oct 2017 in every Quarterly Performance Report, it has been specifically instructed to field officers to verify the new registrations in

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rder to curb such tax evasion practices and leakage of revenue. the following instructions are issued for strict compliance. 1. As the procedure for taking registration under Goods and Services Tax Act is liberalized, the assessing authorities as well as the enforcement wing shall closely monitor the activities of such suppliers. 2. The precautionary measures have to be taken in such cases from the stage of submission of registration application in common portal. In such cases, immediately on receipt of the registration application, the assessing authority shall conduct field visits. Unless timely action is taken in these cases, they might get 'Deemed Registration'. Once GSTIN is assigned, they can do the business. Once registration is obtained, immediately they are doing huge volume of business within a short span of time and disappearing from the scene after creating substantial tax liabilities. 3. In GST scenario, the existing taxpayers under VAT/Service Tax migrated to GST

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he nativity of the dealer is outside the District, an immediate enquiry should be conducted through Intelligence wing. Assistant Commissioner (Intelligence) shall conduct an enquiry in such cases and furnish an enquiry report on the next working day itse f. If any suspicious activities are noticed, then a show cause notice may be issued to the dealer. In such cases, the mode of procuring capital investment details needs to be recorded. In case the financial assistance is provided by an individual other than any Financial Institutions, then a copy of the PAN of such person may be obtained during field visit. 6. Plywood and veneer being an industrial output, it can't be procured from unregistered fellows. If such purchases are disclosed in return, Intelligence wing shall conduct enquiries to locate such unregistered persons and take necessary steps to bring such dealers under the tax net. 7. The enforcement wing shall ensure approval of e-way bill in all such consignments. They shall

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2018 (11) TMI 896 – CESTAT NEW DELHI – TMI – CENVAT Credit – capital goods – MH Sheet Metal Components (Rail) – Held that:- The demand of cenvat credit of ₹ 42,580/- on the goods used for repair of capital goods is already dropped – demand withheld.
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Penalty – CENVAT Credit on vehicle insurance premium and health insurance premium already dropped – Held that:- Law is settled that the allegations as that of suppression with a malafide mensrea of tax evasion are of grave nature and cannot be confirmed unless and until there is a cogent evidence to that respect. For imposition of penalty, it has to be proved by the Department that the assesse acted deliberately in defiance of law and was guilty of conduct concumacious or dishonest or acted in conscious disregard of its obligation – penal proceedings dropped.
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CENVAT Credit – input service – Works Contract Service – Held that:- The demand of Credit of service tax paid on Work Contract Service has already been dropped – dem

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be included in the normal value of the goods – demand withheld.
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Demand of Interest – Held that:- Though the appellant has taken the plea that the interest amount has been paid and has not been reversed. The said fact for want of any evidence on record required verification from the Adjudicating Authority below. For this limited purpose, matter is hereby remanded back.
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Appeal allowed in part and part matter on remand. – Excise Appeal No. E/50036/2018 [DB] – A/53092/2018-EX[DB] – Dated:- 7-9-2018 – MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Ms. Rinki Arora, Advocate Present for the Respondent: Ms. Tamanna Alam, DR ORDER PER: RACHNA GUPTA The appellants herein are engaged in manufacture of railway sleeper of cement concrete and are availing cenvat facility of duty / service tax paid on the inputs and input services under Cenvat Credit Rules, 2004 (CCR 2004). During an audit for the year 2013-14, the Department obser

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t of moulds and other capital goods is also excluded under excluding clause [A(b)] from the definition of input service as defined under Rule2(1) of Cenvat Rules, 2004. (iv) there was short payment of central excise duty of ₹ 9,26,377/- on price escalation bills raised for ₹ 74,94,955/- on final products manufactured and cleared by them. Resultantly, a Show Cause Notice No. 4879 dated 03.08.2015 was served upon them proposing a Central Excise duty amounting to ₹ 9,26,377/- alongwith the interest at appropriate rate on the said amount and the proportionate penalties. The said Show Cause Notice was adjudicated vide the Order-in-Original No. 12300 dated 23.12.2016 vide which the wrongly availed cenvat credit of ₹ 3,92,559/- alongwith the penalty of ₹ 1,96,280/- was confirmed. An amount of ₹ 2,70,821/- as was already paid by the appellant was directed to be appropriated against the said demand confirmed. Aggrieved of the said order, the Appeal was filed

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pugned Show Cause Notice. The question of imposition of any penalty upon the respective amount does not at all arise. It is submitted that though the interest has not been reversed but the penalty still cannot be imposed with respect to the duty of clearance of railway sleepers. It is mentioned that the additional duty was required to be paid due to price escalation clause existing in the relevant contracts. Hence, the same could not be paid unless and until railway authorities finalised the relevant price escalation. Thus, the question of imposition of penalty (for an amount of ₹ 7,68,906/-) as has been upheld by the order under challenge is liable to be set aside. Also, for the reason that the total duty of ₹ 7,93,136/- on finalisation of escalation bills for ₹ 55,22,821/- by the railway authorities alongwith the interest of ₹ 1,57,830/- is more than credit availed, the penalty is therefore neither justifiable nor sustainable and thus is liable to be set aside

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ce premium and health insurance premium has admittedly been reversed. It is also an admission that the same was reversed by the appellant on his own that too prior the impugned Show Cause Notice. It is the case of the appellant that the same was claimed under bonafide inadvertent mistake. In the given circumstances, invoking of provisions of Section 11A/Section 11AC for imposing penalty are opined not applicable. Those provisions can be invoked only when there is the suppression of facts that too with an intent to evade tax. Law is settled that the allegations as that of suppression with a malafide mensrea of tax evasion are of grave nature and cannot be confirmed unless and until there is a cogent evidence to that respect. For imposition of penalty, it has to be proved by the Department that the assesse acted deliberately in defiance of law and was guilty of conduct concumacious or dishonest or acted in conscious disregard of its obligation. The Hon ble Apex Court in the case Hindusta

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the said reason itself, the penalty even for the short payment of Central Excise duty is hereby set aside. 8. Now, coming to the issue of short payment of Central Excise duty on the price escalation bills raised for ₹ 74,94,955/-. From the 13 escalation bills, it stands clear that there is a calculation error in arriving to the said amount and in fact out of said bills, the amount of Central Excise duty of price escalation bill is ₹ 62,20,925/-. Since the duty is payable on price escalation and the appellant could not have produced any document proving that the railway authorities had finalised the amount of those 13 bills at an amount of ₹ 55,22,821/-, it is held that the order under challenge has rightly confirmed the said demand. Apparently, the appellant has failed to prove that the Bills on which amount has been calculated were merely the proposal amount. As there are no two set of bills on record, it is held that demand has rightly been confirmed under this Hea

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2018 (11) TMI 1223 – CESTAT CHENNAI – TMI – CENVAT Credit – common input services which were consumed for carrying out the activity of manufacturing dutiable goods and also for trading activity – non-maintenance of separate records – Held that:- he appellant seems to have confused with regard to traded goods and trading activity. The traded goods cannot be considered as an exempted goods whereas the trading activity as per Rule 2(e) of CENVAT Credit Rules, 2004 is an exempted service. The appellants do not have a case that they have maintained separate accounts with regard to the common input service used for trading and manufacturing activity – the demand raised is legal and proper and requires no interference.
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Penalty – Held that:- However, the appellant has been maintaining register with regard to the traded goods on the bonafide belief that they are maintaining separate accounts as provided under Rule 6(2) of CENVAT Credit Rules, 2004 and has not availed credit on such goods

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ng to demand an amount of ₹ 5,66,811/- being the amount equivalent to 6% / 7% of the value of exempted service for the period January 2012 to March 2016 along with interest and also proposing to impose penalties was issued. After due process of law, the original authority confirmed the demand, interest and imposed equal penalty. In appeal, Commissioner (Appeals) upheld the demand, however, reduced the penalty to ₹ 3,35,403/-. Aggrieved, the appellants are in appeal before this Tribunal. 2. On behalf of the appellant, ld. consultant Shri Gopal Kanakaraj appeared and argued the matter. He submitted that the trading activity of the appellant was very little and they were buying and selling raw materials namely Furan Resins, Curing Agents, Strip Cote etc. which were imported. They were maintaining separate accounts of the traded goods and therefore the demand cannot sustain. The ld. consultant also argued that the adjudicating authority has no jurisdiction to adjudicate the sho

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e do not find that the adjudication made by the Assistant Commissioner is without jurisdiction. 5.1 The major part of the argument put forward by the ld. consultant is with regard to the import of the goods; that they have maintained separate accounts with regard to the traded goods and therefore they have not been given concessional / allowance with regard to the CVD paid on the goods that were imported. The demand is raised for the reason that trading is an exempted service and that the appellants have used common input services for manufacturing activity and trading activity. The appellant seems to have confused with regard to traded goods and trading activity. The traded goods cannot be considered as an exempted goods whereas the trading activity as per Rule 2(e) of CENVAT Credit Rules, 2004 is an exempted service. The appellants do not have a case that they have maintained separate accounts with regard to the common input service used for trading and manufacturing activity. For th

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2019 (2) TMI 63 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – TMI – Input tax credit – GST paid for hotel stay in case of rent free hotel accommodation provided to General Manager and Managing Director of the Applicant – invoice for quality claim raised by the Applicant on POSCO Daewoo Corporation located in Korea – export of service – recovery of Parents Health Insurance expenses from employee – supply of service or not.
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Whether Input Tax Credit is admissible in respect of GST paid for hotel stay in case of rent free hotel accommodation provided to General Manager and Managing Director of the company? – Held that:- As per Section 16 (1) of the CHST Act, ITC is available on the tax charged on any supply of goods or services or, both to the applicant which are used or intended to be used in the course of furtherance of their business – the Hotel Accommodation is being used by the applicant as a residential premises of their MD/ GM which is for the personal comfort of both and the

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upply – input tax credit of GST charged by the insurance company – Held that:- Appellant are not rendering any services of health insurance to their employees and hence there is no supply of services in the instant case. Since there is no supply, we do not find the need to answer the second part of this question – the Applicant cannot claim input tax credit of GST charged by the insurance company. – GST-ARA-36/2018-19/B-110 Dated:- 7-9-2018 – SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR MEMBER PROCEEDINGS (Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and MGST Act ] by POSCO INDIA PUNE PROCESSING CENTER PRIVATE LIMITED, the applicant, seeking an advance ruling in respect of the following ISSUE.. 1) Whether Input Tax Credit

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ence to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act / MGST Act would be mentioned as being under the GST ACT' , 02. FACTS AND CONTENTION – AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus- Statement of relevant facts having a bearing on the question(s) raised QUESTION 1: Whether Input Tax Credit is admissible in respect of GST paid for hotel stay in case of rent free hotel accommodation provided to General Manager and Managing Director of the company? FACTS OF THE CASE 1. We, M/s. POSCO-India Pune Processing Center Pvt. Ltd, (hereinafter referred to as the Applicant ) are South Korea based company. The Applicant is situated at Talegaon, MIDC, Taluka Maval, village Navlakh Umbhre. District Pune. The Applicant is primarily engaged in distribution of steel coils. In certain cases, the Applicant also performs low value-added p

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of Hostel accommodation invoice is enclosed and marked as Annexure – A ) 5. The rent-free accommodation provided to the MD and the GM are a part of cost to the Applicant (i.e. CTC) and is included as perquisites in the salary as per the provisions of Income Tax Act, 1961. 6. The Applicant would like to know whether it can claim input tax credit in respect of the GST charged by hotel on the stay expenses of the MD and the GM as per the provisions of the Central Goods and Service Tax Act, 2017 (CGST Act 2017) and Rules made thereunder. QUESTION – 2 Whether invoice for quality claim raised by the Applicant on POSCO Daewoo Corporation located in Korea will be treated as export of service ? FACTS OF THE CASE 1. The Applicant had imported goods from POSCO Daewoo Corporation, Korea. Upon receipt of the said goods, the Applicant availed input tax credit of IGST. Subsequent to the import of goods, the Applicant sold the said goods to the customer under the cover of Tax Invoice on payment of ap

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issue will be treated as export of service in terms Of Section 2(6) Of the Integrated Goods and Services Tax Act, 2017. QUESTION – 3 1. Whether recovery of Parents Health Insurance expenses from employee in respect of the insurance provided by the Applicant amounts to supply of services under Sec. 7 of the Central Goods & Service Tax Act, 2017(CGST Act,2017) ? 2. If the said recovery amounts to supply , what will be the time of supply and value of the said supply? 3. Whether the Applicant can claim input tax credit of GST charged by the insurance company? FACTS OF THE CASE 1. It is the practice of the Applicant to provide mediclaim cover to the employees as well as to their parents. 2. In case of Parent Insurance facility, the Applicant initially pays the entire premium along with taxes and then 50% of the premium is recovered from the respective employees on a monthly basis. (Copy of the Company Policy is enclosed and marked as Annexure – D ) 3. The Applicant would like to know w

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it becomes important to understand the meaning of the terms in the course of business . The word 'business' has been defined in the GST law. Broadly it means any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity whether or not it is for pecuniary benefits. Any activity ancillary or incidental to these activities are also covered as business. It has also been provided that any activity or transaction falling in above categories would be business whether or not there is volume, frequency, continuity or regularity in transactions. However, the terms in the course of business' has not been defined under the GST Law and therefore, the Applicant has to rely on the dictionary meaning. As per Oxford Dictionary, in the course means during and as a part of the specified activity, Accordingly, any expenses incurred during and as a part of carrying out the business activity will be considered as incurred in the course of business . In t

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t would become a stressful activity for the MD and the GM would definitely have a bearing on the business activities for which they have been deputed to India. Accordingly, considering the cost of the hotel accommodation vis-a-vis the benefit that would arise if the MD and the GM concentrate on only business activities, the Applicant has itself arranged one-bedroom apartment in the hotel and all the cost and related compliances with respect to the same are taken care by the Applicant so that the MD and the GM can concentrate mainly on business activities. 4. Providing rent-free accommodation to the expatriate employees is generally accepted business practice across most of the businesses in India. 5. The said expenditure is included as a part of salary of the MD and the GM as per the Income Tax Act, 1961. It is worth important to submit here that the Income Tax Department has also allowed the said salary expenditure as a business expenditure while computing the profit Of the Applicant

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/' locality is useful since, they can have group discussions for managing business smoothly without having to spend their productive time on travelling. Considering this aspect, it is worth important to submit here that deputed key personnel of other POSCO group companies in India stay in the same hotel. Separately, since the hotel is also used by executives of other business enterprises as well, it aids in developing new business connections and thereby contributes to the growth of the business. Considering the above submissions, the Applicant is of the view that the primary objective of providing hotel accommodation is purely business growth. Therefore, GST paid on Such hotel expenses should be allowed as input tax credit under Section 16(1) of the CGST Act, 2017. APPLICANT'S SUBMISSION FOR QUESTION – 2 In respect of the transaction mentioned above, the Applicant incurred losses where the goods imported from POSCO Daewoo Corporation, Korea did not meet the customer expectatio

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to be deficient, the registered person, who has supplied such goods or services or both, may issue to the recipient a credit note containing such particulars as may be prescribed. The term registered person is defined u/s 2 (94) of the CGST Act, 2017. AS defined, registered person means a person who is registered under section 25 but does not include a person having a Unique Identity Number. In the present case, the foreign supplier had supplied the goods to the Applicant and therefore, legally and technically speaking, such foreign supplier cannot be considered as a registered person for the purpose of GST law and therefore, provisions of Section 34 (1) of the CGST Act, 2017 cannot be applicable. Further, as per the contract, the Applicant was required to recover the loss by raising Tax Invoice. Accordingly, the Applicant raised a Tax Invoice and has also received payment in foreign currency against the said Tax Invoice. Further, in the present case, it is very clear that there is no

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term export services . Definition is reproduced below for your ready reference: Export of services means the supply of any service when,- (i) the supplier of service is located in India; (ii) the recipient of service is located outside India; (iii) the place of supply of service is outside India; (iv) the payment for such service has been received by the supplier of service in convertible foreign exchange; and (v) the supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in section 8; The Applicant is of the view that the above service classified under agreeing to the obligation to tolerate an act or a situation will qualify as export of service since, i) The Supplier of service i.e. the Applicant is located in India; ii) The recipient of service i.e. POSCO Daewoo Corpn/POSCO Asia Company Ltd is located in Korea i.e. outside India; iii) As per the provisions of Section 13 of the IGST Act, 2017, this service

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le-III of the CGST Act, 2017, services by an employee to employer in the course of or in relation to his employment are not treated as a supply of service. However, if employer provides any services, we are of the view that the same will be considered as supply of service by employer. Since the Applicant recovers certain amount from its employees against the insurance premium, doubt is raised whether the same will result in supply of service under Section 7 of the CGST Act, 2017 and GST will be required to be paid on the same. Further, since the Applicant is recovering the insurance premium amount from its employees on the monthly basis, the Applicant is of the view that GST, if payable, should be paid on the same amount monthly in terms of Section of the CGST Act, 2017. Since the Applicant is of the view that GST will be payable on the said recovery, the value on which GST is to be paid needs to be determined in terms of Section 15 of the CGST Act, read with Central Goods and Services

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ent of the price charged for the supply of goods of like kind and quality by the recipient to his customer not being a related person Provided further that where the recipient is eligible for full input tax credit, the value declared in the invoice shall be deemed to be the open market value of the goods or services. Based on the above Rule, the Applicant is of the view that GST should be levied on the entire amount of premium paid by the Applicant and not just on the premium amount recovered from its employees. Further, as per Section of the CGST Act, 2017, input tax credit is allowed in respect of health insurance only when such inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the Same category of goods or services or both or as part of a taxable composite or mixed supply. Since, the Applicant may be liable to pay GST on the recovery from its employees, the Applicant is of the view that the insu

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estion No. 1: Whether Input Tax Credit is admissible in respect of GST paid for hotel stay in case of rent free accommodation provided to General Manger (GM) and Managing Director (MD) of the company? Question No. 2: Whether invoice for quality claim raised by the applicant on POSCO Daewoo Corporation located in Korea will be treated as export of service ? Question No. 3: Whether recovery of Parents health Insurance expenses from employees in respect of the insurance provided by the applicant amounts to supply of service under Section 7 of the Central Goods and Services Act, 2017? If the said recovery amounts to supply , what will be the time of supply and value of the said supply? Whether the applicant can claim input tax credit of GST charged by the insurance company? The question wise comments are submitted as under: Question No. 1 : Whether Input Tax Credit is admissible in respect of GST paid for hotel stay in case of rent free accommodation provided to General Manager (GM) and Ma

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filled, the supply of service would be treated as export of service Question No. 3: Whether recovery of Parents health Insurance expenses from employees in respect of the insurance provided by the applicant amounts to supply of service under Section 7 of the Central Goods and Services Act, 2017? If the said recovery amounts to supply , what will be the time of supply and value of the said supply? Whether the applicant can claim input tax credit of GST charged by the insurance company? Comments on Question No. 3: (i) As per Section 2(102) of the Central Goods and Services Act, 2017, services means anything other than goods. Accordingly, the applicant's act of recovery of 50% of insurance premium from its employees would be treated as consideration against supply of service. As such, GST is applicable on the amount recovered from the employees on accounts of recovery of 50% insurance premium. (ii) For time of supply, as per the Section 13(2) of Central Goods and Services Tax Act, 201

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mption , 04. HEARING The case was taken up for Preliminary hearing on dt. 18.07.2018 when Sh. Manoj Joshi and Sh. Kedar Joshi, consultants along with Sh. Suraj Maske, A.G.M., appeared and requested for admission of application as per contentions in their ARA and made written submissions. Jurisdictional Officer, Sh. Rishi Prakash, Inspector, Pune -I Commissionerate appeared and made written submissions. The application was admitted and called for final hearing on 21.08.2018, Sh. Manoj Joshi, consultants along with Sh. Suraj Maske, A.G.M., appeared and made oral and written submissions. Jurisdictional Officer, Sh. V. V. Sonar, Supdt., Pune-I Commissionerate appeared and stated that they have already made written submissions. 05. OBSERVATIONS We have gone through the facts of the case, documents on record and submissions made by both, the applicant and the department. The applicant has raised four question in the subject application. We shall deal with each question as under:- 1) Whether

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any supply of goods or services or, both to him which are used or intended to be used in the course of furtherance of his business and…….. . Hence it is clear as per this Section that ITC is available on the tax charged on any supply of goods or services or, both to the applicant which are used or intended to be used in the course of furtherance of their business. Now we discuss the provisions of Section 17 of the said Act, which deals with Apportionment of credit and blocked Credits and which will be applicable in the present case. Accordingly, the said Section 17 of the Act is reproduced as under:- Section 17 Apportionment of credit and blocked Credits (1) Where the goods or services or both are used by the registered person partly for the purpose of any business and partly for other purposes, the amount of credit shall be restricted to so much of the input tax as is attributable to the purposes of his business. (2) ………………&hell

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sections 74, 129 and 130. (6) ………………….. It is seen from a reading of the provisions of Section 17 (5) (g) as mentioned above that, cenvat credit cannot be availed when goods or services or both used for personal consumption. In the present case it is the submission of the applicant that the Hotel is used as a residential accommodation by the MD/GM which implies that the same is used for the personal consumption of the MD/GM. We find that providing residential accommodation in a Hotel is not in furtherance of their business. The MD/GM could have been provided with any other residential accommodation and still would have performed their duties for the applicant. In the case of a residential accommodation, as per the provision of the GST laws, GST is not liable to be paid on the rent received. It is the intention of the Govt. not to tax the rent paid by any person, when the rent is paid for any place of residence. In this case if the MD/GM

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ter they sold the said goods to their customer under the cover of Tax Invoice on payment of applicable GST. Subsequently it was found that the said goods were defective, did not meet the customer requirements and therefore, the Applicant raised a Credit Note on the customer and subsequently, the customer also raised Debit Note on the applicant. To make good the loss, as per the terms of the contract with POSCO Daewoo Corporation, Korea, the Applicant was required to charge back the loss incurred in the above said transaction by raising Tax Invoice and the said payment was received in foreign currency. The applicant has made detailed representation in the additional submissions dated 10.072018 and stated that in the present case, there is no supply of goods by the Applicant to the foreign supplier and therefore, in terms of Section 2 (102) of the CGST Act, 2017, any amount recovered for anything other than for goods is to be treated as service . They have submitted that they had tolerat

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ame was returned back to the applicant or not. The goods were imported by the applicant from POSCO, Korea, and at the time of receipt of goods no defect seems to have been noticed by the applicant and therefore there is no reason for them tolerating any act. Further the defect has been noticed by their customer and therefore it is their customer who is tolerating their act of having sent defective goods. It is also seen that the applicant has availed credit of IGST paid on such imported goods. They have not stated what is the status of such credit availed. It has also been submitted by them in Annexure -I to their application that they are primarily engaged in distribution of steel coils. In certain cases, they also perform low value-added processing function in respect of some of the traded goods based on customer's requirements. In the present case in respect of the so called defective goods they have not stated whether the goods were sold as such to their clients or whether the

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mployees on a monthly basis and their query is whether GST is payable on recovery of 50% of the insurance premium from the salary of the employees. According to their submissions if employer provides any services to their employee, the same will be considered as supply of service by employer. The Applicant has further submitted that on such recovery made by them they appear to be liable to pay GST and the value on which GST is to be paid needs to be determined in terms of Section 15 of the CGST Act, read with Central Goods and Services Tax Rules, 2017 (CGST Rules 2017) and based on the same they are Of the view that GST should be levied on the entire amount of premium paid by them and not just on the premium amount recovered from its employees. They have stated that as per Section 17(5)(b)(iii) of the CGST Act, 2017, input tax credit is allowed in respect of health insurance only when such inward supply of goods or services or both of a particular category is used by a registered perso

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mium amounts by the applicant from their employees cannot be supply of services under the GST laws. In fact what is happening in this case is that since the applicant is recovering 50% of the premium paid on mediclaim from their employees, they want to treat the same as rendering of insurance output service to their employees and therefore they are contending that they are entitled to 100% input tax credit on the insurance premium paid to the insurance company in terms of Section 17(5)(b)(iii) of the CGST Act, 2017, mentioned above. They have already submitted that they are primarily engaged in distribution of steel coils and also perform low value-added processing function in respect of some of the traded goods based on customer's requirements. The applicant has brought nothing on records to show that they are an Insurance Company and registered with such authorities. Hence it appears that the applicant is creating this fiction of providing health insurance to their employees only

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:-Answered in the negative. Q.2. Whether invoice for quality claim raised by the Applicant on POSCO Daewoo Corporation located in Korea will be treated as export of service ? Answer:- We refrain from answering this question for incomplete details. Q.3. Whether recovery of Parents Health Insurance expenses from employee in respect of the insurance provided by the Applicant amounts to supply of service under Section 7 of the Central Goods and Service Tax Act, 2017(CGST Act, 2017)? Answer:- The recovery of Parents Health Insurance expenses from employee does not amount to supply of service under the GST Laws. Since there is no supply of services there is no question of time and value of the supply. The applicant cannot claim ITC of GST charged by the insurance company. Q.4. If the said recovery amounts to supply , what will be the time of supply and value of the said supply? Answer:- Answered in the negative. Q.5. Whether the Applicant can claim input tax credit of GST charged by the insu

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Goods and Services Tax – Started By: – priyesh agrawal – Dated:- 6-9-2018 Last Replied Date:- 6-9-2018 – sir, what if assessee failed to file ITC-01 in 30 days? what are the remedies available to him? can he make an application to commissioner for extending the time? ITC-01 is filled u/s 18(1)(c) – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = The assessee may approach the Commissioner for extension. Rule 40(1)(b) provides that the registered person shall within a period of thirty days from

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Goods and Services Tax – GST – Dated:- 6-9-2018 – Schemes which may look like populist may in fact be popular as well and the scheme which may have commenced as a populist scheme has over a period of time may have generated multiplier effect said N. K. Singh, the Chairman of the visiting Finance Commission at a press conference in Chennai today. On what constitutes populist or not, commission is hearing different viewpoints, it will need to consider this in totality taking everything into account, he added. North versus South debate is misleading, he mentioned, as many states from other parts of the country are also expressing similar apprehensions as made by southern states like the issue of population date of 2011 etc. It will be the endeavour of commission not to penalise the states doing well on demographic front as well as economic front while carefully balancing the equity and efficiency. Acknowledging that there are issues with GST like rates and the compensation which may take

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tional average and poverty significantly below, noted the Chairman. There have been excellent record of fiscal management and debt management well within the limits, however, inter district disparities are a worrisome feature and need priority attention. Tamil Nadu has been traditionally welcoming the private and foreign investment which makes TN an imp engine of Indian growth. Commission also noted the policy imperatives by the state govt for enhancing Ease of Doing Business which has also helped in creating jobs. Other issues which were discussed during meeting to take growth momentum of TN further while reducing disparities 1. Floods management system 2. Improving productivity of agriculture 3. Imp flood erosion works and paucity of resources for management of water resources Commission has taken serious note of all the submissions made in the memorandum submitted and discussed and assured TN govt that to ensure that gains that tn has achieved is further strengthened so that tn cont

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urged the Commission to reverse this trend so that development efforts of the state do not stifle. State govt officials in their presentation gave some innovative suggestions on vertical and horizontal devolutions. They demanded to include the population control and contribution to central taxes as criteria. They also suggested using Environmental Performance Index which is a more holistic approach. They made some state specific suggestions related to Conservation of heritage buildings and Maintenance and strengthening of tourist circuits. State govt also highlighted the issues related to Centrally Sponsored Schemes. They urged that Debt to GSDP norms should be customized to the rate of interest and rate of growth and not fixed rigidly in a doctrinaire fashion. The Chief Minister submitted a detailed Memorandum to the Commission. The Chairman complemented the Govt. of Tamil Nadu for making an analytical presentation and stated that the issues raised would receive appropriate considerat

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Goods and Services Tax – Started By: – Radhashyam Dash – Dated:- 6-9-2018 Last Replied Date:- 7-9-2018 – Hello Sir,There is an overseas company e.g. xyz, Inc having office in India with name xyz india pvt.ltd.I also have entity abc, Inc with office in India with name abc india pvt ltd.Question 1: If I supply some goods, labour & some other services to xyz, inc ( within India ) from abc india pvt ltd, then can I charge GST to the customer ? Question 2: If I supply some goods, labour & some other services to xyz, inc ( within India ) from abc, Inc, then can I charge GST to the customer ? Question 3: If I supply some goods, labour & some other services to xyz, inc ( outside India ) from abc, Inc, then can I charge GST to the custo

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Goods and Services Tax – Started By: – BHAVYA PETHRU – Dated:- 6-9-2018 Last Replied Date:- 7-9-2018 – Dear Experts,We have been paying the Tax under RCM @5% for GTA service , whether we are eligible to take the Input tax credit of the same.awaited for your resposethanks & regards,Bhavya.P – Reply By Rajagopalan Ranganathan – The Reply = Sir,Since you are paying 5% tax on GTA service under RCM as receiver of the service you can take the credit. – Reply By DR.MARIAPPAN GOVINDARAJAN – The Rep

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 6-9-2018 – It is a general trade practice that a battery is also supplied when one buys an unit of Uninterrupted Power Supply (UPS). A question arose as to whether the supply of UPS along with a battery would amount to a composite contract of supply or it will be a case of mixed supply in terms of section 2(30), 2(74) and section 8 of the CGST Act, 2017. It may to noted that in case of a single supply, the rate of GST as applicable to principal supply is levied whereas in case of a mixed supply of two or more items, the higher of the rates applicable would be levied to the entire mixed bundled of supply as it is not a case of naturally bundled supply. Advance Ruling In Re Switching Avo Elector Power Ltd. (2018) 4 TMI 810 (AAR-West Bengal); the applicant was a supplier of power solution including UPS, servo stabilizer, batteries etc and wanted a clarity on the classification of supply of UPS along with battery. The appli

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tatic Convertors (UPS) III 376A 8506 Primary cells and primary batteries Inserted w.e.f 15/11/17 vide Notification No. 41/2017-Central (Rate) dated 14/11/17 What is UPS and relevance of Battery An UPS is an electrical apparatus that provides emergency power to a load when the input power source or mains power fails. A UPS differs from an auxiliary or emergency power system or standby generator in that it provides immediate protection from input power interruptions by supplying energy stored in batteries, super-capacitors or flywheels. The on-battery runtime of most UPS is relatively short but sufficient to start a standby power source or properly shut down the protected equipment. A UPS is typically used to protect hardware such as computers, data centres, telecommunication equipment or other electrical equipment where an unexpected power disruption could cause injuries or data loss. The UPS serves no purpose if the battery is not supplied or removed. It cannot function as a UPS unless

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ract within the meaning of section 2 (119) of the GST Act is a composite supply. Steel, cement and other goods and services supplied are inseparable in a contract for civil construction. The recipient has not contracted for the supply of steel, cement or architectural service, but for the service of constructing the civil structure, where all these supplies are inseparable and, therefore, naturally bundled. The contract for the supply of a combination of UPS and battery, if not built as a composite machine, is not indivisible. The recipient can split it up into separate supply contracts if he chooses. The goods supplied in terms of such contracts are, therefore, no longer naturally bundled and cannot be treated as a composite supply. Further, mixed supply is defined under section 2(74) of the GST Act as one where two or more individual supplies of goods/services or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does

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N RE: M/S. SWITCHING AVO ELECTRO POWER LIMITED – 2018 (8) TMI 1071 – APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL confirmed the original advance ruling. As implied, the core issue involved in the appeal was whether UPS supplied with external storage battery was naturally bundled and hence a composite supply under the GST Act, or a mixed supply, as held by the West Bengal Authority for Advance Ruling. It was again reiterated by the applicant that when UPS comprising of static converter and an external battery is supplied it falls under Tariff Head 8504 and is taxable @ 18% under item No. 375 of Schedule III of the GST Act. UPS cannot function without battery as such it is an integral part of UPS and hence it is naturally bundled and supplied in conjunction with each other and hence the supply of static converter along with external battery should be construed as a composite supply and not a mixed supply. Before appellate AAR, the appellant relied upon relevant case laws on classi

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pply thereof attracts tax under GST Act as per rate applicable to goods enumerated under Schedule III of Tax-Rate Notification(s), vide serial No. 375, but the situation changes when storage battery or electric accumulator is supplied separately irrespective of whether under a single contract or a separate contract. AAAR endorsed in full force the ruling AAR- West Bengal, viz, The UPS serves no purpose if the battery is not supplied or removed. It cannot function as a UPS unless the battery is attached. However, what needs to be considered is whether or not these two items are naturally bundled . The stated Illustration to Section 2(30) of the GST Act refers to a supply where the ancillary supplies are inseparable from the principal supply and form an integral part of the composite supply. Note 3 also refers to a composite machine as the one consisting of two or more machines fitted together to form a whole. When a UPS is supplied with built-in batteries so that supply of the battery i

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2018 (9) TMI 688 – ALLAHABAD HIGH COURT – 2018 (17) G. S. T. L. 381 (All.) – Bail Application – Section 132(1)(b) of Central Goods and Services Tax Act, 2017 – fraudulent availment of ITC – fake purchase bills – Held that:- This Court is of the opinion, that learned counsel for the applicant could not point out any good ground for grant of bail to the applicant – the bail application filed on behalf of the applicant is hereby rejected – decided against applicant. – Criminal misc. Bail application No. – 21843 of 2018 Dated:- 6-9-2018 – Vivek Kumar Singh, J. For the Applicant : Satya Dheer Singh Jadaun For the Opposite Party : B.K.Singh Raghuvanshi ORDER Hon'ble Vivek Kumar Singh,J. Supplementary counter affidavit filed by the learned c

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of ITC has gone up to ₹ 30 crores in the investigation made so far on the basis of false declaration in GSTR-3B and passed on credit more than ₹ 30 crores whereas the applicant has produced fake purchases Bills having input tax credit of ₹ 3 crore only. It further stated in paragraph no.4 that after follow up searches conducted so far at the premises of the buyers resulted into detection of fraudulent availment of input tax credit on the basis of fake invoices issued from the firm created, controlled and managed by applicant namely Ranjeet to the extent more than ₹ 16.57 crore. The prosecution version as narrated in the first information report is that on the basis of an information of possible evasion of service an

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rupees, the offence is non-cognizaable and bailable. It is further submitted that no previous sanction was ever taken by from the Commissioner, therefore, entire prosecution is bad in eyes of law in view of Section 132(6) of the Act. On the other hand learned counsel for the opposite party No.2 as well as learned A.G.A. states that during the search several voter identity cards of different persons, ₹ 34,98,500/- in cash, Bill Books containing different signatures, dongles, writing pad, stamps of several companies were recovered and the investigation is still in progress and the amount of tax evasion may exceed several crores. After hearing the learned counsel for the complainant and learned A.G.A., and after perusing the averments ma

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GST – States – 35/2018 –State Tax – Dated:- 6-9-2018 – GOVERNMENT OF NCT OF DELHI DEPARTMENT OF TRADE AND TAXES (GST – POLICY BRANCH) VYAPAR BHAWAN, I.P. ESTATE, NEW DELHI- 110002 NOTIFICATION No. 35/2018 -State Tax Delhi, the 06th September, 2018 No. F.2(93)/Policy-GST/2018/559-68 – In exercise of the powers conferred by section 168 of the Delhi Goods and Services Tax Act, 2017 (03 of 2017) read with sub-rule (5) of rule 61 of the Delhi Goods and Services Tax Rules, 2017, the Commissioner, on

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GST – States – KA.NI.-2-1760/XI-9(42)/17 – Dated:- 6-9-2018 – Uttar Pradesh Shasan Sansthagat Vitta, Kar Evam Nibandhan Anubhag-2 NOTIFICATION NO. KA.NI.-2-1760/XI-9(42)/17-U.P. GST RULES-2017-ORDER- (132)-2018, Lucknow : Dated : September 06,2018 In exercise of the powers conferred by section 148 of the Uttar Pradesh Goods and Services Tax Act, 2017 (U.P. Act No. 1 of 2017) (hereinafter in this notification referred to as the said Act), on the recommendations of the Council, hereby notifies the registered persons having aggregate turnover of up to 1.5 crore rupees in the preceding financial year or the current financial year, as the class of registered persons who shall follow the special procedure as mentioned below for furnishing the de

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GST – States – KA.NI.-2-1761/XI-9(42)/17 – Dated:- 6-9-2018 – Uttar Pradesh Shasan Sansthagat Vitta, Kar Evam Nibandhan Anubhag-2 NOTIFICATION NO. KA.NI.-2-1761/XI-9(42)/17-U.P. GST RULES-2017-ORDER- (133)-2018, Lucknow : Dated : September 06,2018 In exercise of the powers conferred by section 164 of the Uttar Pradesh Goods and Services Tax Act, 2017 (U.P. Act no.1 of 2017) read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act no.1 of 1904), the Governor is pleased to make the fallowing rules with a view to amending the Uttar Pradesh Goods and Services Tax Rules, 2017:- 1. Short title and commencement (1) These rules may be called the Uttar

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ituted; 4. Amendment in rule 131 In the said rules, in rule 131, for the words "Director General of Safeguards", the words "Director General of Anti-profiteering" shall be substituted; 5. Amendment in rule 132 In the said rules, in rule 132, in sub-rule (1), for the words "Director General of Safeguards", the words "Director General of Anti-profiteering" shall be substituted; 6. Amendment in rule 133 In the said rules, in rule 133, for the words "Director General of Safeguards", wherever they occur, the words "Director General of Anti-profiteering" shall be substituted; By Order (Alok Sinha)

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2018 (10) TMI 1519 – KERALA HIGH COURT – TMI – Release of detained goods – furnishing of bank guarantee for the tax and penalty imposed – Held that:- The appellate authority has already been constituted under Section 107(1) of the CGST/SGST Act; the petitioner may file the statutory appeal in time – the authorities are restrained from invoking the bank guarantee till the petitioner exhausts the statutory remedy or till the appeal gets barred by limitation – petition disposed off. – WP (C). No. 29390 of 2018 Dated:- 6-9-2018 – MR DAMA SESHADRI NAIDU, J. For The Petitioner : Aji V. Dev For The Respondent : GP. Dr. Thushara James JUDGMENT The petitioner, a partnership firm, transported certain goods ostensibly from Bombay to Perumbavoor. But

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2018 (11) TMI 68 – CESTAT HYDERABAD – TMI – CENVAT Credit – input services rendered by the service providers while setting up of their plant – labour charges which were for fixing and erection of equipments, buffing work, fixation and erection of equipment work, insulation work etc. for the activity undertaken by the service providers in the factory premises.
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Held that:- The services which were rendered by the service providers were in respect of capital goods and not for laying of foundation or making structures for support of capital goods. Further, it has to be recorded in the findings of the first appellate authority that these services were not used coextensively for manufacture of final products, also seems to be not correct from the factual position as the appellant herein being the manufacturer of bulk drugs, requires installation of various plant and machinery which would contribute towards manufacture of final products.
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In the case in hand, it cannot be said that

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pellant had availed ineligible CENVAT credit in respect of services rendered by the service providers while setting up of their plant. Show cause notice was issued for demand and reversal of such CENVAT credit. Appellant contested the show cause notice on merits as well as on limitation. Adjudicating authority, after following due process of law, dropped the proceedings in respect of the demand raised for the recovery of ₹ 1,09,932/- while confirming demand of ₹ 9,61,652/-as ineligible CENVAT credit, interest thereof and imposed penalty of ₹ 4,80,826/-. An appeal was filed against such an order was rejected by the first appellate authority. Hence this appeal. 4. Ld. Counsel after drawing the attention of the Bench to the facts of the case submits that the services which were rendered by the service providers as per Annexure-B to the show cause notice were labour charges for fixing and erection of equipment, labour charges for provision to HDPE pipe line work, installa

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ority in paras 11 to 13 of the Order-in-Appeal. It is his submission that the first appellate authority has recorded that these services which are received by the appellant are not coextensively used to the manufacture of final products and the Hon ble High Court of Andhra Pradesh in the case of Rayalaseema Hi-Strength Hype Limited [2012(278)E.L.T 167 (AP)] has specifically recorded that unless the gods are used in the manufacture of capital goods, CENVAT credit cannot be claimed even on the repair and maintenance as for manufacture and the repair and maintenance of the plant can not be constituents in the process of manufacture of final products. 6. I have considered the submissions made at length and perused the records. As correctly pointed out by both sides, the issue is regarding availability of CENVAT credit of the service tax on labour charges which were for fixing and erection of equipments, buffing work, fixation and erection of equipment work, insulation work etc. for the act

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bition, legal services, inward transportation of inputs or capital goods and outward transportation up to the place of removal; but excludes,- (A) service portion in the execution of a works contract and construction services including service listed under clause (b) of section 66E of the Finance Act (hereinafter referred as specified services) in so far as they are used for – (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of one or more of the specified services; or (B) Services provided by way of renting of a motor vehicle, in so far as they relate to a motor vehicle which is not a capital goods; or (BA) Service of general insurance business, servicing, repair and maintenance, in so far as they relate to a motor vehicle which is not a capital goods, except when used by (a) a manufacturer of a motor vehicle in respect of a mo

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of foundation or making structures for support of capital goods. Further, it has to be recorded in the findings of the first appellate authority that these services were not used coextensively for manufacture of final products, also seems to be not correct from the factual position as the appellant herein being the manufacturer of bulk drugs, requires installation of various plant and machinery which would contribute towards manufacture of final products. It has also to be seen that the definition of input service (as reproduced herein above) clearly mandates for availing CENVAT credit of the service tax paid on services which were used by manufacturers directly or indirectly, in or in relation for the manufacture and clearance of final products. In the case in hand, it cannot be said that the services rendered by service providers on various activities as enumerated in Annexure-B to the show cause notice were in respect of equipments which are not used for manufacturing of final prod

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2018 (11) TMI 98 – CESTAT HYDERABAD – TMI – Import of restricted item – used multi functional photocopier machines without any licence – confiscation – redemption fine – penalty – Held that:- There is no dispute that the said photocopier machines are imported violating the provisions of Import Export Policy and not producing the licence for import of old used photocopier machines. To that extent, the orders of the lower authorities are upheld that the photocopier machines are liable for confiscation.
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Redemption Fine – Held that:- Hon’ble High Court of Punjab & Haryana in the case of Bhagwan Elector Photocopiers [2014 (11) TMI 996 – PUNJAB & HARYANA HIGH COURT] has felt that redemption fine against confiscation for the regular violato

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. Heard both sides and perused the records. 3. The appellant herein had imported used multi functional photocopier machines without any licence. The said photocopier machines were seized and appellants were directed to file a reply as to why the value declared by them of the said goods be not rejected and the same may be confiscated for violation of non production of licence, as required for import of old and used multi functional photocopier machines. Appellant explained and sought for revaluation of the machines from Custom approved Chartered Engineers and the valuation in both the cases was enhanced from approximately ₹ 12.00 lakhs to ₹ 21.96 lakhs and ₹ 23.42 lakhs. Appellant accepted the valuation and paid appropriate

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y should be fixed at 10% and 5% respectively on the enhanced value in various cases which applies in the case in hand. 5. Ld. DR on the other hand submits that the ratio of the orders of other Benches can not be applied in the case in hand as imported photocopier machines were violating the provisions of Foreign Trade Policy and this is the fourth time such imports are made, and earlier also the appellant was penalised as per the orders of the Tribunal. Therefore, redemption fine imposed and penalty was correct. 6. On careful consideration, I find that there is no dispute that the said photocopier machines are imported violating the provisions of Import Export Policy and not producing the licence for import of old used photocopier machines.

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2018 (11) TMI 1201 – CESTAT NEW DELHI – TMI – Clearance of goods by Appellant (sub-contractor) to NTPC (for Mega Power Project) – benefit of N/N. 6/2006-CE dated 01.03.2006, read with N/N. 21/2002-Cus dated 01.03.2002 – Held that:- The respondent have complied with both the conditions as required under the exemption under N/N. 6/2006-CE and accordingly entitled to exemption from excise duty – In similar issue this Tribunal in the case of Paramount Communication Ltd. V/s CCE, Jaipur-I, [2016 (7) TMI 863 – CESTAT NEW DELHI] held in favour of the assessee under similar facts and circumstances – appeal dismissed – decided against Revenue. – E/COD/50750/2018, Appeal No. E/52198/2018-DB, E/51800/2018-DB – FINAL ORDER NO. 53013-53014/2018 – Dated:- 6-9-2018 – Shri Anil Choudhary, Member (Judicial) And Shri V. Padmanabhan, Member (Technical) Shri H.C. Saini, DR for the Appellant Ms. Sukriti Das, Advocate for the Respondent ORDER Per Anil Choudhary: 1. The delay of 5 days is condoned as suffic

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t (sub-contractor) to NTPC (for Mega Power Project) on the basis of proper documents which included letter of the Joint Secretary to Government of India dated 29.06.2006 addressed to General Manager, NTPC, New Delhi. iii. However, the demand was confirmed raised under the Show Cause notice dated 21.09.2007. iv. On appeal the Commissioner (Appeal) set aside the Order-in-Original and allowed the appeal of the respondent under the reasoning that power cables falling under tariff item 8544 of the Excise Tariff and supplied to Mega Power project are eligible for exemption under Sl. No. 91 of the Notification No. 6/2006-CE dated 01.03.2006 and the requirements under the Project Import Regulations, 1986 are not required to be satisfied. The Respondent had submitted the requisite certificate issued by the Jt. Secretary in terms of condition 86. 4. The brief facts of the case in respect of the Appeal No. E/51800/2018 are as under:- i. The respondent is manufacturing and clearing gates and gate

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Ld. DR for the Appellant as well as Ms. Sukriti Das, Ld. Advocate for the Respondent. 6. Having heard the rival contentions we are satisfied that the appellant have complied with the conditions of the exemption under Notification No. 06/2006-CE read with Customs Notification No.21/2002-CUS. We find that the respondent have complied with both the conditions as required under the exemption under Notification No. 6/2006-CE and accordingly entitled to exemption from excise duty. We also find that in similar issue this Tribunal in the case of Paramount Communication Ltd. V/s CCE, Jaipur-I, 2016 (344) ELT 1091 (Tri.-Del.) held in favour of the assessee under similar facts and circumstances. The said ruling of this Tribunal in Paramount Communication Ltd.(Supra) was confirmed by Hon ble Rajasthan High Court in the case of CCE v. Paramount Communication Ld., 2018 (360) ELT A324 (Raj.) 7. Accordingly, both the appeals of the Revenue are dismissed. (Dictated and pronounced in the open court) –

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2018 (11) TMI 1222 – CESTAT CHENNAI – TMI – Validity of SCN – grounds raised in SCN not clear – Liability of service tax – Appellants were receiving and providing IUC services from Sri Lanka Telecom, a service provider situated outside India – reverse charge mechanism – Held that:- The show cause notice has not specified the category of service falling under any of the sub-clause to Section 105 of the Finance Act, 1994 under which the demand of service tax has been proposed. It is well settled that lack of such clarity in the show cause notice and omission to indicate the specific category of service under which the tax is proposed to be demanded will vitiate the proceedings ab initio.
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The circulars dated 15.7.2011 and 19.12.2011 are very much applicable pari materia to IUC charges paid by the appellant to Sri Lanka Telecom, where it has been reiterated that when the service provider is located abroad, he is not covered under the definition under Section 65(105). Hence, the serv

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such services to provide their output service. Department took the view that the appellants were required to pay service tax on the charges collected for the IUC services received from Sri Lanka Telecom. Accordingly, a show cause notice was issued inter alia proposing to demand service tax liability of ₹ 2,03,90,782/- along with interest as also for imposition of penalty under various provisions of law. In adjudication, the Commissioner vide impugned order dated 18.10.2011, confirmed the proposed demand along with interest and also imposed equal penalty under section 78 of the Finance Act, 1994. Hence this appeal. 2. Today, when the matter came up for hearing, on behalf of the appellant, ld. counsel Ms. G. Vardhini Karthik made a number of submissions which can be summarized as under:- 2.1 The show cause notice while proposing the demand of service tax has not indicated as to the category of service provided or received by the appellant and which become liable to discharge servi

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Leased Circuits charges, where it has been reiterated that when the service provider is located abroad, he is not covered under the definition under Section 65(105). Hence, the service provided by foreign vendors cannot be taxed under Telecommunication Service. 3. On the other hand, ld. AR Shri S. Govindarajan supports the impugned order. 3.1 He also draws our attention to Circular 91/2/2007-ST dated 12.3.2007 wherein it has been indicated that ICU charges have been incorporated into the definition of telecommunication service vide the amendment proposed in the Finance Bill, 2007. 4. Heard both sides. 5. In the first place, we find that the ld. counsel is correct in her assertion that the show cause notice has not specified the category of service falling under any of the sub-clause to Section 105 of the Finance Act, 1994 under which the demand of service tax has been proposed. It is well settled that lack of such clarity in the show cause notice and omission to indicate the specific

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