Author: admin_gst

In Re: Indian Institute of Management, Calcutta
GST
2018 (11) TMI 336 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2018 (19) G. S. T. L. 104 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 2-11-2018
WBAAR 22 OF 2018, 21/WBAAR/2018-19
GST
VISHWANATH AND PARTHASARATHI DEY, MEMBER
Present for the Applicant Rakesh B Chatbar, Authorised Representative
1. The Applicant, stated to be an Educational Institution funded by the Government of India, engaged, inter alia, in the provision of Educational Services to the students, seeks a Ruling within the meaning of the CGST/WBGST Act, 2017 (hereinafter collectively referred to as “the GST Act”) on the following questions:
(i) After the introduction of the IIM Act wef 31/01/2018 (hereinafter referred to as “the IIM Act, 2017”), whether or not the Applicant should be considered an “Educational Institution”
(ii) If the Applicant is eligible for Eexemption under Entry No. 66(a) of the Notification No.

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s admissible under section 97(2) of the GST Act.
2. Apart from providing Educational Services, IIM Calcutta also imparts placement and recruitment services and renting out of immovable property. Prior to 31/12/2018, the Applicant was a “Society” under the Societies Registration Act, 1860. In terms of the Indian Institutes of Management Act, 2017 (hereinafter “the IIM Act”), the Applicant has become an 'Educational Institution' having the right to award honours degrees etc as provided under the IIM Act with effect from 31/01/2018.
The Applicant is stated to be eligible to grant degrees, diplomas and other academic distinctions or titles and to institute and award fellowships, scholarships, prizes and medals, honorary awards and other distinctions in terms of section 7(f) of the IIM Act. Therefore, the Applicant qualifies as an 'educational institution' as defined under clause 2(y) of the Notification No. 12/2017 Central Tax (Rate) dated 28/06/2017 and is eligible for exemption under e

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Excise -vs- Indian Petro Chemicals (1997) 92 ELT 13 (SC) = 1996 (12) TMI 66 – SUPREME COURT OF INDIA; HCL Ltd -vs- Collector of Customs (2001) 130 ELT 405 (SC) = 2001 (3) TMI 971 – SUPREME COURT OF INDIA; Commissioner of Central Excise and Service Tax -vs- Orient Bell Ltd (CEA – 65/2016 before the High Court of Karnataka) = 2018 (8) TMI 892 – KARNATAKA HIGH COURT; Winsome Yarns Ltd (Excise Appeal No. 55317-55318 of 2013 before CESTAT, Delhi) = 2015 (9) TMI 459 – CESTAT NEW DELHI]
Referring to these judgments in course of Personal Hearing the Applicant argues that as exemptions under both Entry Nos. 66(a) and 67 are now available, the Applicant should be allowed to claim exemption under Entry No. 66(a), being more beneficial having a broader ambit.
5. “Educational institution” is defined under clause 2(y) of the Exemption Notification as an institution providing services by way of-
(i) Pre-school education and education up to higher secondary school or equivalent;
(ii) Education as

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n 5 of the Schedule to the above Act. The Applicant is mentioned therein.
7. However, the IIM Act does not mention any specific degree/diploma/program that can be or shall be undertaken by the Applicant. In absence of such specification, reference should be made to the degrees/programmes recognized and approved by the University Grants Commission Act 1956 (hereinafter referred to as “the UGC Act”) and the All India Council for Technical Education Act, 1987 (hereinafter “the AICTE Act”) that can be lawfully awarded by any higher educational institution in the country. It can be seen that the AICTE Act and the UGC Act are very specific and detailed about the approved courses/programmes under it. Neither of the above-mentioned Act mentions courses like PGPEX-VLM and CES-MIM..
8. The question, therefore, is whether the Applicant should now continue to enjoy Eexemption under Entry no. 67, which has not been deleted even after the IIM Act came into being, or be considered for exemption und

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In Re: Premier Vigilance & Security Pvt. Ltd.
GST
2018 (11) TMI 337 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2018 (18) G. S. T. L. 878 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 2-11-2018
Case No. 23 of 2018, Order No. 20/WBAAR/2018-19
GST
VISHWANATH AND PARTHA SARATHI DEY MEMBER
Applicant's representative heard Ms. Shivani Shah, Advocate
1. The Applicant stated to be, a provider of security services to the Bank, seeks a Ruling on chargeability of GST on the Toll Taxes reimbursed by its clients or the ability to claim it as a deduction under Rule 33 from the value of supply, being expenditure incurred as a pure agent under the CGST/WBGST Acts, 2017 (hereinafter referred to as the “the said GST Act”).
Advance Ruling is admissible under Section 97(2)(e) & (g) of the said GST Act.
The Applicant submits that the question raised in the Application has neither been decided by nor is pending before any authority under any provisions

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yment made by the pure agent on behalf of the recipient of supply has been separately indicated in the invoice issued by the pure agent to the recipient of service; and
(iii) the supplies procured by the pure agent from the third party as a pure agent of the recipient of supply are in addition to the services he supplies on his own account.
4. Explanation to the Rule 33 defines –
For the purposes of this rule, the expression ―pure agent means a person who-
(a) enters into a contractual agreement with the recipient of supply to act as his pure agent to incur expenditure or costs in the course of supply of goods or services or both;
(b) neither intends to hold nor holds any title to the goods or services or both so procured or supplied as pure agent of the recipient of supply;
(c) does not use for his own interest such goods or services so procured; and
(d) receives only the actual amount incurred to procure such goods or services in addition to the amount received for suppl

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n that toll and parking charges will be paid on the actual amount. But the Banks do not specifically authorize the Applicant as a 'pure agent' or acknowledge payment of the toll charges as their own liability.
The Applicant admits in the Application about owning the vehicles. The toll is charged for providing the service by way of access to a road or bridge (SAC 9967). The Applicant, being the owner of the vehicles, is the recipient of the service provisioned on payment of toll. The Applicant admittedly is the beneficiary and liable to pay the toll, which is compulsorily levied on the vehicles. The expenses so incurred are, therefore, cost of the service provided to the Banks.
Reimbursement of such cost is no disbursement, but merely the recovery of a portion of the value of supply made to the Banks.
The Applicant is, therefore, not acting in the capacity of a 'pure agent' of the Bank while paying toll charges. Such charges are costs incurred, so that his vehicles can access roads/b

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MONDELEZ INDIA FOODS PRIVATE LIMITED C/O DEIEX CARGO IND. PVT. LTD. Versus THE ASST. STATE TAX OFFICER SQUAD NO. V, PALAKKAD
GST
2018 (11) TMI 483 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 2-11-2018
WP (C). No. 35903 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SMT.S. K. DEVI AND SRI.SANTHOSH P.ABRAHAM
For The Respondent : GP. SMT. M.M. JASMINE
JUDGMENT
The petitioner, a private limited company, sent goods to its six distributors in Palakkad District, as seen from Exts.P1 to P1(e) invoices and Exts.P2 to P2(e) e-way bills. The vehicle and the goods were detained because, by then, the e-way bills expired. Aggrieved, the petitioner filed this writ petition.
2. In the writ petitio

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Clarifications of issues under GST related to casual taxable person and recovery of excess Input Tax Credit distributed by an Input Service Distributor.
16/2018-GST (State) Dated:- 2-11-2018 Tripura SGST
GST – States
NO.F.1-11(8)-TAX/2015/10142-47
GOVERNMENT OF TRIPURA
OFFICE OF THE CHIEF COMMISSIONER OF STATE TAX
PANDIT NEHRU COMPLEX, GURKHABASTI
AGARTALA, TRIPURA WEST, PIN-799006.
Dated, Agartala, the 2nd November, 2018.
Circular No. 16/2018-GST (State)
To
The Additional Commissioner of State Tax /
Superintendent of State Tax (All) /
Inspector of State Tax (All)
Subject: Clarifications of issues under GST related to casual taxable person and recovery of excess Input Tax Credit distributed by an Input Service Distributo

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Processing of Applications for Cancellations of Registration submitted in FORM GST REG-16
14/2018-GST (State) Dated:- 2-11-2018 Tripura SGST
GST – States
NO.F.1-11(8)-TAX/2015/10130-35
GOVERNMENT OF TRIPURA
OFFICE OF THE CHIEF COMMISSIONER OF STATE TAX
PANDIT NEHRU COMPLEX, GURKHABASTI
AGARTALA, TRIPURA WEST, PIN-799006.
Dated, Agartala, the 2nd November, 2018.
Circular No. 14/2018-GST (State)
To
The Additional Commissioner of State Tax /
Superintendent of State Tax (All) /
In

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The West Bengal Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
1570-F.T.-60/2018-State Tax Dated:- 2-11-2018 West Bengal SGST
GST – States
West Bengal SGST
West Bengal SGST
GOVERNMENT OF WEST BENGAL
FINANCE DEPARTMENT
REVENUE
NOTIFICATION
No. 1570-F.T.
Howrah, the 2nd day of November, 2018.
No. 60/2018-State Tax
In exercise of the powers conferred by section 164 of the West Bengal Goods and Services Tax Act, 2017 (West Ben. Act XXVIII of 2017), the Governor is pleased hereby to make the following rules further to amend the West Bengal Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the West Bengal Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from the 30th October, 2018.
2. In the West Bengal Goods and Services Tax Rules, 2017,-
(i) after rule 83, the following rule shall be inserted, namely:-
"83A. Examination of Goods and Services Tax Pr

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shall be specified by NACIN on the official websites of the Board, NACIN and common portal.
(5) Examination centers.-The examination shall be held across India at the designated centers. The candidate shall be given an option to choose from the list of centers as provided by NACIN at the time of registration.
(6) Period for passing the examination and number of attempts allowed.- (i) A person enrolled as a goods and services tax practitioner in terms of sub-rule (2) of rule 83 is required to pass the examination within two years of enrolment:
Provided that if a person is enrolled as a goods and services tax practitioner before 1st of July 2018, he shall get one more year to pass the examination:
Provided further that for a goods and services tax practitioner to whom the provisions of clause (b) of sub-rule (1) of rule 83 apply, the period to pass the examination will be as specified in the second proviso of sub-rule (3) of said rule.
(ii) A person required to pass the examination

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red to secure fifty per cent. of the total marks.
(9) Guidelines for the candidates.-(i) NACIN shall issue examination guidelines covering issues such as procedure of registration, payment of fee, nature of identity documents, provision of admit card, manner of reporting at the examination center, prohibition on possession of certain items in the examination center, procedure of making representation and the manner of its disposal.
(ii) Any person who is or has been found to be indulging in unfair means or practices shall be dealt in accordance with the provisions of sub-rule (10). An illustrative list of use of unfair means or practices by a person is as under: –
(a) obtaining support for his candidature by any means;
(b) impersonating;
(c) submitting fabricated documents;
(d) resorting to any unfair means or practices in connection with the examination or in connection with the result of the examination;
(e) found in possession of any paper, book, note or any other materi

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icated to the applicants by e-mail and/or by post.
(12) Handling representations.-A person not satisfied with his result may represent in writing, clearly specifying the reasons therein to NACIN or the jurisdictional Commissioner as per the procedure established by NACIN on the official websites of the Board, NACIN and common portal.
(13) Power to relax.- Where the Board or State Tax Commissioner is of the opinion that it is necessary or expedient to do so, it may, on the recommendations of the Council, relax any of the provisions of this rule with respect to any class or category of persons.
Explanation :- For the purposes of this sub-rule, the expressions –
(a) "jurisdictional Commissioner" means the Commissioner having jurisdiction over the place declared as address in the application for enrolment as the GST Practitioner in FORM GST PCT-1. It shall refer to the Commissioner of Central Tax if the enrolling authority in FORM GST PCT-1 has been selected as Centre, or th

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id Acts and Rules.".
(ii) after rule 142, the following rule shall be inserted, namely:-
"142A. Procedure for recovery of dues under existing laws. – (1) A summary of order issued under any of the existing laws creating demand of tax, interest, penalty, fee or any other dues which becomes recoverable consequent to proceedings launched under the existing law before, on or after the appointed day shall, unless recovered under that law, be recovered under the Act and may be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01.
(2) Where the demand of an order uploaded under sub-rule (1) is rectified or modified or quashed in any proceedings, including in appeal, review or revision, or the recovery is made under the existing laws, a summary thereof shall be uploaded on the common portal in FORM GST DRC-08A and Part II of Electronic L

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new entity is registered.
Before applying for cancellation, please file your tax return due for the tax period in which the effective date of surrender of registration falls or furnish an application to the effect that no taxable supplies have been made during the intervening period (i.e. from the date of registration to the date of application for cancellation of registration).".
(iv) in FORM GSTR-4, in the Instructions, for Sl. No. 10, the following shall be substituted, namely:-
"10. Information against the Serial 4A of Table 4 shall not be furnished.".
(v) for FORM GST PMT-01 relating to "Part II: Other than return related liabilities", the following form shall be substituted, namely:-
"Form GST PMT -01
[See rule 85(1)]
Electronic Liability Register of Registered Person
(Part-II: Other than return related liabilities)
(To be maintained at the Common Portal)
Reference No.-
GSTIN/Temporary Id –
Date-
Name (Legal) –
Trade name, if any –
S

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ger against the liabilities would be recorded accordingly.
3. Reduction or enhancement in the amount payable due to decision of appeal, rectification, revision, review etc. will be reflected here.
4. Negative balance can occur for a single Demand ID also if appeal is allowed/ partly allowed. Overall closing balance may still be positive.
5. Refund of pre-deposit can be claimed for a particular demand ID if appeal is allowed even though the overall balance may still be positive subject to the adjustment of the refund against any liability by the proper officer.
6. The closing balance in this part shall not have any effect on filing of return.
7. Reduction in amount of penalty would be automatic if payment is made within the time specified in the Act or the rules.
8. Payment made against the show cause notice or any other payment made voluntarily shall be shown in the register at the time of making payment through credit or cash. Debit and credit entry will be created simulta

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er no.
12.
Latest order date
13.
Date of service of the order (optional)
14.
Name of the officer who has passed the order (Optional)
15.
Designation of the officer who has passed the order
16.
Whether demand is stayed
17.
Date of stay order
Yes No
18
Period of stay
From – to –
Part B – Demand details
19.
Details of demand created
(Amount in Rs. in all Tables)
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State/UT Acts
CST Act
20.
Amount of demand paid under existing laws
Act
Tax
Interest
Penalty
Fee
Others
Total
1
2
3
4
5
6
7
Central Acts
State/UT Acts
CST Act
21.
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(19-20)
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Signature
Name
Designation
Jurisdiction
To
_______________ (GSTIN/ID)
Name
_______________ (Address)
Copy to –
Note –
1. In case of d

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n of summary of the order creating demand under existing laws
Reference no.
Date –
Part A – Basic details
Sr. No.
Description
Particulars
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5.
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State/UT Centre
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M/s Rathi Steel Power Limited Industrial Area South Of G.T. Road Ghaziabad Versus Union Of India And 2 Others
GST
2018 (11) TMI 557 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 2-11-2018
WRIT TAX No. – 1432 of 2018
GST
Pankaj Mithal And Ajit Kumar JJ.
For the Petitioner : Anil Prakash Mathur
For the Respondent : Krishna Agarawal
ORDER
Heard Sri A.P. Mathur, learned counsel for the petitioner and Sri Krishna Agarawal, learned counsel appearing for respondent nos. 2 and 3.
The petitioner by means of this writ petition has made prayer for quashing of the attachment order dated 10.10.2018, which has been filed as annexure 3 to the writ petition.
The movable properties of the petitioner have been att

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owed to it to wash out the liability of CGST.
In view of prayer made in the above writ petition, petitioner accepted the liability of the excise dues and the GST and was ready and willing to make payment thereof in installments and three months respectively.
The said writ petition was got dismissed as withdrawn on 12.10.2018 without liberty to file any fresh petition meaning thereby that the petitioner accepts the demand of dues.
The present attachment which is impugned in the writ petition is pursuant to the above demand notice and is of a consequential nature. The petitioner cannot be granted any relief unless the demand is successfully challenged which stage is already over.
The stage of show cause notice or opportunity of hearing be

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M/s Plus Creation Pvt. Ltd. Versus State Of U.P. And 2 Others
GST
2018 (11) TMI 605 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 407 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 2-11-2018
Writ Tax No. – 1417 of 2018
GST
Pankaj Mithal And Ajit Kumar JJ.
For the Petitioner : Mohit Behari Mathur
For the Respondent : C.S.C.
ORDER
The goods and the vehicle carrying the goods has been detained under Section 129 (1) of the U.P. Goods and Service Tax Act, 2017 (in short of the Act) and in pursuance of the notice issued under Section 129 (3) of the Act a penalty order has also been passed on 20.10.2017.
The petitioner has preferred this writ petition for a direction for release of the goods and the vehicle on the ground that

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Loka Ispat Pvt. Ltd. Versus State Of U.P. And 2 Others
GST
2018 (11) TMI 888 – ALLAHABAD HIGH COURT – 2019 (21) G. S. T. L. 306 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 2-11-2018
Writ Tax No. – 1430 of 2018
GST
Pankaj Mithal And Ajit Kumar JJ.
For the Petitioner : Shubham Agrawal
For the Respondent : C.S.C.
ORDER
Heard Sri Shubham Agrawal, learned counsel for the petitioner and Sri C.B. Tripathi, learned counsel for the respondents.
The goods of the petitioner moving from Chhattisgarh to Hamirpur have been detained for the reason that the petitioner has tried to hide the correct identity of the consignee.
The argument of learned counsel for the petitioner is that he is a dealer at Aligarh and he had purchased the

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s any contravention to the provisions of the Act or the Rules. The detention order fails to specify any provision of the Act or the Rules which has been violated.
Sri C.B. Tripathi, learned counsel appearing for respondents prays for and is granted three weeks' time to file counter affidavit. One week thereafter is allowed to the petitioner to file rejoinder affidavit.
List thereafter for admission/ final disposal.
In the meantime, the detained goods and the vehicle shall be released forthwith, on the petitioner furnishing security other than cash and bank guarantee and the indemnity bond of the amount of the proposed tax and the penalty, as the petitioner is the owner of the goods, as per notice under Section 129(3) read with Sectio

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M/s. Siva Sakthi Packaging Company Versus Commissioner of GST & Central Excise Chennai South
Central Excise
2018 (11) TMI 904 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 2-11-2018
Appeal No. E/41107/2018 – Final Order No. 42761/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial)
Shri S. Ramachandran, Consultant for the Appellant
Shri L. Nandakumar, AC (AR) for the Respondent
ORDER
Brief facts are that the appellant purchased the plant and machinery along with stock of raw materials from M/s. Indian Printing & Packaging Company with effect from 7.1.2015. The appellant availed the SSI exemption for clearing the goods. The department noticed that the earlier manufacturer was not availing the SSI exe

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matter for re-adjudication by AC / DC. The appellant is now before the Tribunal against such order.
2. The ld. consultant Shri S. Ramachandran appeared and argued on behalf of the appellant. He submitted that the Superintendent who had adjudicated the matter had dropped the proceedings and the department had not preferred appeal on merits before the Commissioner (Appeals) and they had confined their appeal on the issue of jurisdiction. Since there was no appeal filed by the department on merits, the order in original dated 16.2.2017 passed by the Superintendent would apply and therefore the demand cannot sustain. It is also argued by him that the appellant having purchased the factory only 7.1.2015, the appellant has to be considered as an

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e matter to AC / DC for reconsideration of the issue and that the impugned order requires no interference.
4. Heard both sides.
5. On perusal of records, it is seen that the order in original dated 16.2.2017 was passed by the Superintendent of the concerned division. As per circular No. 1049/37/2016-CX dated 29.9.2016, the Superintendent is also given jurisdiction to adjudicate matters which are not exceeding Rs. 10 lakhs. It is specifically stated in para 2 clause (i) of the said circular that the Superintendent will not be having jurisdiction to adjudicate case involving taxability, classification, valuation etc. Therefore, I find that the Commissioner (Appeals) has rightly set aside the Order in Original passed by the Superintendent da

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The Commissioner of CGST & Central Excise, Belapur, Navi Mumbai Versus Hindustan Petroleum Corporation Ltd.
Central Excise
2018 (11) TMI 1082 – BOMBAY HIGH COURT – 2019 (369) E.L.T. 579 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 2-11-2018
Central Excise Appeal No. 60 of 2018
Central Excise
M.S. SANKLECHA & RIYAZ I. CHAGLA, J.J.
Mr. Pradeep S. Jetly for the appellant
Ms. Mansi Patil for the respondent
P.C.
1. This appeal under Section 35G of the Central Excise Act,1944 (the Act) challenges the order dated 31st October, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (Tribunal).
2. The Revenue has urged the following reframed question of law for our consideration :
“Whether on the facts and circumstances of the case and in law, the Tribunal was correct in setting aside the demand of limitation after having held in favour of the Revenue on merits?”
3. The impugned order of the Tribunal dated 31st October, 2017 dismissed the respondents assesse

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ngs, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.”
(emphasis supplied)
5. Ms. Patil, learned Counsel appearing for the respondents on instructions states that the respondents have accepted the order of the Tribunal in respect of the valuation. Thus, there is no challenge to the impugned order in respect of valuation before the Hon'ble Supreme Court.
6. Therefore, both the learned Counsel appearing for the appellant and the respondent submits that the appeal under Section 35G of the Act as filed would be maintainable. This as the issue of valuation for the purposes of assessment of duty, is a concluded issue between the parties as it has been accepted. The only issue which is being urged in this appeal is on account of limitation. Therefore, this Court would have jurisdiction to entertain the appeal.

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2018, TIOL 1891, had already taken a view on this. This Court had while construing the ambit of Section 35G(1) of the Act for the purposes of entertaining the appeals from the order of the Tribunal has inter alia observed as under :
“10. It was also urged on behalf of the appellant that the question whether this Court has jurisdiction to entertain an appeal would have to be decided on the basis of the questions of law proposed by the appellant before it. In the above context, it was submitted that the questions as proposed would not make it a classification issue. This submission cannot be accepted in view of the clear language of Section 35G(1) of the Act which says an appeal shall lie to the High Court from every order passed in appeal by the Tribunal on or after the 1st day of July, 2003 except when the order of the Tribunal relates to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. Thus, the

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se or value of goods for the purposes of assessment.
We are in respectful agreement with the view of the Punjab and Haryana High Court in Raja Dyeing (supra) on the above issue. Thus, we do not accept the above submission that the jurisdiction to entertain an appeal is determined by the question proposed by the Appellant. It is only determined by the nature of the order passed by the Tribunal and if not within the exclusion clause of Section 35G(1) of the Act, an appeal to this Court will be entertained.”
8. It must be pointed out that the decisions of this Court in Facor Steel Ltd. (supra) and Mahindra Ugine Steel Co. Ltd. (supra) were not pointed out to us wherein maintainability of the appeal was decided by us in APMM Terminals Pvt. Ltd. (supra). In the above view, we asked the Counsel if the two decisions i.e. Facor Steel Ltd. (supra) and APMM Terminals India Pvt. Ltd. (supra) could be reconciled. They replied in the negative.
9. Our attention is also drawn to the decision of th

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Act bars an appeal being filed in this Court from the order of the Tribunal relating to the determination of any question having a relation to the rate of duty or value of goods for purposes of assessment. The issue of the assessment of goods to duty on either of rate of duty or valuation issue being time barred, would also be an assessment to duty and, therefore barred. Moreover, the word “assessment” as defined under the Central Excise Rules, 2002 is with regard to assessment to duty. No reason is shown to us which would require a different meaning be given to the word “assessment” used in Section 35G(1) of the Act. However, imposition of a penalty by the Tribunal is not related to assessment of goods for the purposes of dutability arising out of rate of duty and / or valuation issue. The words “rate of duty of excise or value of goods for assessment” has to be read as relating to determination of duty on the goods. The issue of penalty is an exercise done subsequent to assessment of

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y challenge to the confirmation of the demand on issue of valuation and / or rate of duty issue is an empty formality. This submission of the Counsel ignores the fact that the merit of the appeal itself will not determine the issue of maintainability under Section 35G of the Act, which is a threshold issue.
12. In any case, it is agreed position between the parties that the apparent conflict of views of this Court in APMM Terminals India Pvt. Ltd. (supra) and Facor Steel Ltd. (supra) are not reconsiliable. Therefore, this difference can only be resolved by a larger bench of this Court so as to lay down the law for the State.
13. This more particularly as the issue raised herein may have wide impact, as it may affect the appeals under the Act, Finance Act, 1994 and the Customs Act, 1962 in this Court.  
14. Therefore, the difference of view is best referred to the Hon'ble the Chief Justice to constitute a larger bench of this Court, if he so deem fit to resolve the apparent

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M/s Birla Corporation Ltd. Versus CGST CC & CE-Jabalpur
Central Excise
2018 (12) TMI 13 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 2-11-2018
E/ROM/50844/2018, Appeal No. E/50308/2018-EX [DB] – MO/50840/2018-EX[DB]
Central Excise
Shri Anil Choudhary, Member (Judicial) And Shri C.L. Mahar, Member (Technical)
Shri Himashu Bansal, Advocate for the Appellant
Shri R.K. Mishra, DR for the Respondent
ORDER
Per Anil Choudhary:
1. Heard on ROM, arising from Final

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IN RE : UMAX PACKAGING (A unit of UMA Polymers Ltd.)
GST
2018 (12) TMI 1089 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – 2019 (20) G. S. T. L. 677 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, RAJASTHAN – AAR
Dated:- 2-11-2018
AAR No. RAJ/AAR/2018-19/23
GST
NITIN WAPA AND HEMANT JAIN MEMBER
Present for the applicant Shri Pradeep Jain, CA (Authorised representative)
Note: Under Section 100 of the CGST/RGST Act 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act 2017, within a period of 30 days from the date of service of this order.
The Issue raised by M/s. Uma Polymers Ltd. {hereinafter the applicant} is fit to pronounce advance ruling as it falls under the ambit of Section 97 (2) (d).
d. Admissibility of input tax credit of tax paid or deemed to have been paid;
Further, the applicant being a registered person, (GSTIN is 08AAACU0748E1ZJ, as per the declaration given by him i

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ether the input tax credit of IGST availed by them can be recovered subsequently, if it is concluded by the revenue authorities that M/s. Uma Polymers Ltd., Guwahati was liable to charge CGST & SGST Guwahati instead of IGST?
2. QUESTIONS ON WHICH THE ADVANCE RULING IS SOUGHT
Whether ITC of IGST paid on bill to ship to' model admissible to the applicant?
3. PERSONAL HEARING (PH)
In the matter personal hearing was given to the applicant, Shri Pradeep Jain, CA, (Authorised representative) of applicant appeared for personal hearing on 22.10.2018. During the PH they reiterated the submissions already made in the application for advance ruling and requested that the case may be decided at the earliest.
4. FINDINGS, ANALYSIS & CONCLUSION:
We find that the present application has been filed to seek advance ruling on the issue of admissibility of input tax credit of IGST charged by M/s. Uma Polymers Ltd., Guwahati from the applicant.
a. The applicant proposes to purchase goods from M

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ip to' M/S Pratap Snacks Ltd., Guwahati.
d. As per Section 16 of the CGST Act, 2017
16. (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person.
(2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless,-
(a) he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed;
(b) he has received the goods or services or both.
Explanation.-For the purposes of this clause, it shall be deemed that the registered

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In Re: M/s. Sanjog Steels Pvt. Ltd.,
GST
2018 (12) TMI 1156 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – 2019 (21) G. S. T. L. 258 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, RAJASTHAN – AAR
Dated:- 2-11-2018
AAR No. RAJ/AAR/2018-19/25
GST
NITIN WAPA AND HEMANT JAIN MEMBER
Present for the applicant: Shri Pankaj Ghiya, Advocate (Authorised representative)
Note: Under Section 100 of the CGST/RGST Act 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act 2017, within a period of 30 days from the date of service of this order.
The Issue raised by M/s. Sanjog Steels Pvt. Ltd. {hereinafter the applicant} is fit to pronounce advance ruling as it falls under ambit of the Section 97 (2) (b), (e) it is given as under:
c. Determination of time and value of supply of goods or services or both;
Further, the applicant being a registered person, GSTIN is 08AAJCS7778K1ZF, as per the declarat

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hura Road, New Delhi- 110044 (hereinafter referred as “M/s. RSE”) and M/S. Rathi Powertech Global Pvt. Ltd., Block A, 24/ 1, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044 (hereinafter referred as “M/s. RPG”) for use of their Trademark. The Applicant will brand the TMT Steel bars manufactured by it as Rathi Powertech as per the use of Trademark Agreements entered by it with M/s. RSE and M/s. RPG. It is stated that all are registered persons under the relevant GST laws and will be paying the applicable GST on Royalty, Commission etc. as per provisions of law.
c. The business conditions require that the sale of the said manufactured products by the Applicant would be in the following manner-
The Applicant would be selling the manufactured goods under the Brand name Rathi Powertech to M/s. RSE. M/s. RSE would be selling the said goods after adding its margin of about Rs. 50 per metric tonne to M/S. Goyal Alloys Pvt. Ltd., E- 231, Phase-II, Bagru Industrial Area, Bag

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of the IGST Act, 2017 the use of E-way bill in the aforesaid facts in the column of “ship to” of ultimate customer M/s. X is permissible ?
3. Whether in the aforesaid facts the provisions of Section 15 of the CGST Act, 2017 read with Rule 28 of CGST Rules, 2017 and in particular the second proviso to Rule 28 would apply for the value of supply for the transactions between M/s. SSPL and M/s. RSE and thereafter M/s. RSE and M/s. Goyal as all are registered persons and the transactions are business to business transactions with availability of full Input Tax Credit?
4. Whether the transactions between M/S. Goyal and the ultimate customer M/S. X would be covered by the provisions of Section 15 for the value of taxable supply as they are not related persons?
3. PERSONAL HEARING (PH):-
In the matter personal hearing was given to the applicant, Shri Pankaj Ghiya, Advocate, (Authorised representative) of applicant appeared for personal hearing on 10.09.2018. During the PH they reiterated t

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he column of “ship to” of ultimate customer M/s. X is permissible ?
Answer:
Yes, E way bill to be generated by M/s. SSPL showing “X” as shipped to and M/s. RSE as “Bill to”.
3. Whether in the aforesaid facts the provisions of Section 15 of the CGST Act, 2017 read with Rule 28 of CGST Rules, 2017 and in particular the second proviso to Rule 28 would apply for the value of supply for the transactions between M/s.. SSPL and M/S. RSE and thereafter M/s.. RSE and M/S. Goyal as all are registered persons and the transactions are business to business transactions with availability of full Input Tax Credit?
Answer:
Yes, Provision as contained in Section 15 of CGST Act, 2017 read with Rule 28 of CGST Rules, 2017 will apply in the stated facts of the case.
4. Whether the transactions between M/s. Goyal and the ultimate customer M/s. X would be covered by the provisions of Section 15 for the value of taxable supply as they are not related persons?
Answer:
Transactions between M/s. Goyal a

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owing manner-
The Applicant would be selling the manufactured goods under the Brand name Rathi Powertech to M/s. RSE. M/S RSE would be selling the said goods after adding its margin of about Rs. 50 per metric tonne to M/S Goyal. M/S Goyal will be selling the said products to various customers (hereinafter referred to as “M/s. X”) as per the demand of market. The manufactured goods would be directly dispatched from the Applicant to M/s. X and the E-Way Bill would be prepared on a “Bill to Ship to” model as per the provisions of Section 10(1)(b) of the IGST Act, 2017. It is stated that the Applicant is an associate company of M/s. Goyal. It is further submitted that the transactions are with value addition and the last transaction is with unrelated party and complying with the provisions of Section 15(1) of the CGST Act, 2017.
c. The applicant wishes to despatch the goods directly to the customer. The issue is with regard to invoicing, where it is inquired whether “Bill to – Ship to” m

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2017 does nowhere limit the transaction to only three parties/ persons. The said section only contemplates about role of 'third party' and declaration of 'principal place of business'. Therefore, the supply from M/s. SSPL to M/S. X on a “Bill to Ship to” mode as per provisions of Section 10(1) (b) of IGST Act, 2017 is permissible.
2. The Press Note of ministry of Finance on “Issues regarding Bill to Ship to for e-way bill under CGST rules 2017” dated 23.04.2018 clearly emphasise that only a single e-way bill is to be issued either from the supplier of goods or by third party.
In the instant case, the applicant can issue an e-way bill in which the 'bill to' will be mentioned in the name of M/S RSE/RPG whereas 'ship to' would be in the name of final customer i.e. M/S X.
3. The applicant has asked whether in the aforesaid facts the provisions of Section 15 of the CGST Act, 2017 read with Rule 28 of CGST Rules, 2017 and in particular the second proviso to Rule 28 would apply for the va

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ion to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both;
(c) incidental expenses, including commission and packing, charged by the supplier to the recipient of a supply and any amount charged for anything done by the supplier in respect of the supply of goods or services or both at the time of, or before delivery of goods or supply of services;
(d) interest or late fee or penalty for delayed payment of any consideration for any supply; and
(e) subsidies directly linked to the price excluding subsidies provided by the Central Government and State Governments.
Explanation.-For the purposes of this sub-section, the amount of subsidy shall be included in the value of supply of the supplier who receives the subsidy.
(3) The value of the supply shall not include any discount which is given-
(a) before or at the time of the supply if such discount has been duly record

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i) such persons are employer and employee;
(iv) any person directly or indirectly owns, controls or holds twenty-five per cent. or more of the outstanding voting stock or shares of both of them;
(v) one of them directly or indirectly controls the other;
(vi) both of them are directly or indirectly controlled by a third person;
(vii) together they directly or indirectly control a third person; or
(viii) they are members of the same family;
(b) the term “person” also includes legal persons;
(c) persons who are associated in the business of one another in that one is the sole agent or sole distributor or sole concessionaire, howsoever described, of the other, shall be deemed to be related.
Further, the Rule 28 of CGST Rules, 2017 is as follows:-
28. Value of supply of goods or services or both between distinct or related persons, other than through an agent.-The value of the supply of goods or services or both between distinct persons as specified in sub-section (4)

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plicant is similar in quality of what is made by M/s. RSE/RPG, (trademark contract is emphasising on it) and therefore, the value of supply of goods can be ascertained or established in accordance with Section 15 of CGST Act read with second proviso of Rule 28 of CGST Rules, 2017 with eligibility to full Input Tax Credit..
4. We agree with the submissions made by the applicant that relationship between M/s Goyal and M/s X is not Related party relationship in accordance with sub-section (4) and (5) of section 25 of CGST Act, 2017. Thus, the transactions between M/s. Goyal and the ultimate customer i.e. M/S. X would be covered by the provisions of Section 15 of CGST Act, 2017.
6. In view of the foregoing, we rule as under:-
RULING
1. The supply from M/s. SSPL to M/s. X on a “Bill to Ship to” mode as per provisions of Section 10(1) (b) of IGST Act, 2017 is permissible.
2. The applicant can issue an e-way bill in which the 'bill to' will be mentioned in the name of M/s. RSE/RPG wherea

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In Re: M/s. Pawanputra Travels,
GST
2018 (12) TMI 1157 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – 2019 (21) G. S. T. L. 328 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, RAJASTHAN – AAR
Dated:- 2-11-2018
AAR No. RAJ/AAR/2018-19/24
GST
NITIN WAPA AND HEMANT JAIN MEMBER
Present for the applicant Shri Pradeep Jain, CA (Authorised representative)
Note: Under Section 100 of the CGST/RGST Act 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act 2017, within a period of 30 days from the date of service of this order.
The Issue raised by M/s. Pawanputra Travels {hereinafter the applicant} is fit to pronounce advance ruling as it falls under ambit of the Section 97 (2) (b), (e) it is given as under:
b. Applicability of a notification issued under the provisions of this Act;
e. Determination of the liability to pay tax on any goods or services or both;
Further, the applicant being a

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e applicant has also submitted a letter dated 31.05.2018 regarding return of invoices wherein GST has been charged by the applicant on non-air conditioned vehicles.
2. OUESTIONS ON WHICH THE ADVANCE RULING IS SOUGHT
The applicable GST rate on supply of non-air conditioned vehicles on hire to Indian Army.
3. APPLICANT'S INTREPRETATION:-
a. The applicant submits that there is exemption with respect to transportation of services by a non-air conditioned contract carriage vide serial no. 15 of the exemption notification no. 12/2017 Central Tax (Rate) dated 28.06.2017 which reads as follows:-
S.No.
Chapter, Section, Heading, Group or Service Code (Tariff)
Description of Services
Rate %
Condition
15
Heading 9964
Transport of passengers, with without accompanied belongings, by –
(b) non-airconditioned contract carnage other than radio taxi, for transportation passengers, excluding tourism, conducted tour, charter or hire or
Nil
Nil
It is to mention that the meaning of 'contrac

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nor specified in clause (b) and accordingly, in their view, they cannot be considered as 'non-air conditioned contract carriage' eligible for exemption under the serial no. 15 of the exemption notification no. 12/2017 Central Tax (Rate) dated 28.06.2017. However, the service receiver in their case is contending that they are covered by the exemption notification and no GST is payable to the government. Therefore, the applicant request you to kindly examine whether they are eligible for claiming the benefit of exemption contained at serial no. 15 of the exemption notification no. 12/2017 Central Tax (Rate) dated 28.06.2017 or not.
b. The applicant further submits that they have already paid GST on the supply of non-air conditioned motor vehicles supplied by them on hire to Indian Army but the service receiver is not reimbursing them the amount of GST on the grounds that the supply is covered by absolute exemption under serial no. 15 of the exemption notification no. 12/2017 Central Ta

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t may, on the recommendations of the Council, by special order in each case, under circumstances of an exceptional nature to be stated in such order, exempt from payment of tax any goods or services or both on which tax is leviable.
(3) The Government may, if it considers necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2), insert an explanation in such notification or order, as the case may be, by notification at any time within one year of issue of the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be.
Explanation.-For the purposes of this section, where an exemption in respect of any goods or services or both from the whole or part of the tax leviable thereon has been granted absolutely, the registered pe

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de in the application for advance ruling and requested that the case may be decided at the earliest.
5. FINDINGS, ANALYSIS AND CONCLUSION:
a. The present application for advance ruling has been filed to seek decision on the applicability of GST on the service of providing non-air conditioned motor vehicles on hire to Indian Army on contract basis for a period of one year.
b. The serial no. 15 of the exemption notification no. 12/2017 Central Tax (Rate) dated 28.06.2017 which reads as follows:-
S.No.
Chapter, Section, Heading, Group or Service Code (Tariff)
Description of Services
Rate (%)  
Condition
15
Heading 9964
Transport of passengers, with without accompanied belongings, by –
(b) non-airconditioned contract carriage other than radio taxi, transportation passengers, excluding tourism, conducted tour, charter or hire; or
Nil
Nil
It is pertinent to mention that it is provided that the meaning of 'contract carriage' will have the same meaning as assigned to it

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any other passenger to board or alight from the carriage at will.
A 'contract carriage' carries passengers as a group and cannot pick up passengers en-route.
c. Since the rent-a-cab has not been defined under GST Act, we need to analyse the same word taking the help of Motor Vehicle Act, 1988.
Dictionary meaning of Rent a cab is “Taxi” “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding thirty-five cubic centimeters;
“Radio taxi” means a taxi including a radio cab, by whatever name called, which is in two-way radio communication with a

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e (b) of clause (7) of section 2 of the Motor Vehicles Act, 1988 and accordingly, they cannot be considered as 'non-air conditioned contract carriage' and are hence not eligible for exemption under the serial no. 15 of the exemption notification no. 12/2017 Central Tax (Rate) dated 28.06.2017.
Thus, the essential ingredient of a contract carnage is that it plies under a contract for a fixed set of passengers, and does not allow any other passenger to board or alight from the carnage at will.
A 'contract carnage' carries passengers as a group and cannot pick up passengers en-route.
e. Even if the contract is assumed as 'non-airconditioned contract carriage', even then, serial no. 15 of the exemption notification no. 12/2017 Central Tax (Rate) dated 28.06.2017 does not exempt it from GST, as the “hired” non-airconditioned contract carriage are 'excluded' from exemption as specifically mentioned in the said notification.
f. It is hence concluded that the service provided by the applic

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Examination for Confirmation of Enrollment of GST Practitioners to be conducted on 7th December, 2018 at designated Examination Centres across India
GST
Dated:- 1-11-2018

The National Academy of Customs, Indirect Taxes and Narcotics (NACIN) has been authorized to conduct an examination for confirmation of enrollment of Goods and Services Tax Practitioners (GSTPs) in terms of the sub-rule (3) of Rule 83 of the Central Goods and Services Tax Rules, 2017, vide Notification No. 24/2018-Central Tax dated 28.5.2018.
The GSTPs enrolled on the GST Network under sub-rule (2) of Rule 83 and covered by clause (b) of sub-rule (1) of Rule 83, i.e. those meeting the eligibility criteria of having enrolled as sales tax practitioners or tax

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dates a help desk will also be set up, details of which will be made available on the registration portal. The applicants are required to make online payment of examination fee of ₹ 500/- at the time of registration for this exam.
Pattern and Syllabus of the Examination
PAPER: GST Law & Procedures:
Time allowed: 2 hours and 30 minutes
Number of Multiple Choice Questions: 100
Language of Questions: English and Hindi
Maximum marks: 200
Qualifying marks: 100
No negative marking
Syllabus:
1. Central Goods and Services Tax Act, 2017
2. Integrated Goods and Services Tax Act, 2017
3. State Goods and Services Tax Acts, 2017
4. Union Territory Goods and Services Tax Act, 2017
5. Goods and Services Tax (Compensation to State

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October 2018 GST Collections Surpass Rs. 1 Lakh Crore, Achieving Major Milestone in Tax Revenue.
News
GST
GST Revenue collections for the month of October 2018 crosses Rupees One Lac Crore

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GST Rate of 18% Applies to Construction of 599 Residential Quarters for MPPGCL Under Works Contract Service.
Case-Laws
GST
Rate of GST – works contract service of construction of 599 resident

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Government Entity Ineligible for 12% Concessional GST on Work Contract Services for Supply and Erection Projects.
Case-Laws
GST
Levy of GST – Work contract services received from vendors for

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E-way Bill: Minor Vehicle Number Errors Not Grounds for Proceedings Under Act.
Case-Laws
GST
E-way bill – in case of minor discrepancies in the details mentioned in the E-way bill, specially

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GST Revenue collections for the month of October 2018 crosses Rupees One Lac Crore
GST
Dated:- 1-11-2018

The total gross GST revenue collected in the month of October, 2018 is ₹ 100,710 crore of which CGST is ₹ 16,464 crore, SGST is ₹ 22,826 crore, IGST is ₹ 53,419 crore (including ₹ 26,908 crore collected on imports) and Cess is ₹ 8,000 crore(including ₹ 955 crore collected on imports).
The total number of GSTR 3B Returns filed for the mo

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notifies the registration under the said Act has been cancelled by the proper officer furnish FORM GSTR-10 of the 31st December, 2018.
38/1/2017-Fin(R&C)(79) Dated:- 1-11-2018 Goa SGST
GST – States
Goa SGST
Goa SGST
GOVERNMENT OF GOA
Revenue & Control Division
–
Notification
38/1/2017-Fin(R&C)(79)
In exercise of the powers conferred by section 148 of the Goa Goods and Services Tax Act, 2017 (Goa Act 4 of 2017) (hereafter in this notification referred to as the 'said Act'), re

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M/s. Elcomponics Sales Pvt. Ltd. Versus Commissioner of GST & Central Excise Chennai Outer
Central Excise
2018 (11) TMI 160 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 1-11-2018
Appeal No. E/41886/2018 – Final Order No. 42749/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial)
Shri G. Thangaraj, Consultant for the Appellant
Shri L. Nandakumar, AC (AR) for the Respondent
ORDER
Brief facts are that on verification of accounts of the appellant, it was noticed that in the balance sheet of the year 2014 – 15, the appellant had made provisions for write off of old inputs but had not reversed the credit in respect of such inputs. On being pointed out, the appellant reversed the credit. However, show cau

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n in the case of Strategic Engineering P. Ltd. – 2014 (310) ELT 509 (Mad.) and Tata Business Support Services Ltd. Vs. Commissioner of Service Tax – 2017 (52) STR 346.
3. The ld. AR Shri L. Nandakumar supported the findings in the impugned order.
4. After hearing both sides, it is seen that the appellant has reversed the credit even before issuance of the show cause notice. It is also not the case of the department that they have utilized the credit. Following the decision of the Hon'ble High Court of Madras in the case of Strategic Engineering P. Ltd. (supra) as well as the decision of the Tribunal in Tata Business Support Services Ltd. (supra), I am of the view that the demand of interest and penalty cannot sustain. The same is set asid

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M/s. Brakes India Pvt. Ltd. Versus Commissioner of GST & Central Excise Chennai Outer
Central Excise
2018 (11) TMI 161 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 1-11-2018
Appeal No. E/41904/2018 – Final Order No. 42751/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial)
Shri M. Kannan, Advocate for the Appellant
Shri L. Nandakumar, AC (AR) for the Respondent
ORDER
Brief facts are that the appellants are engaged in manufacture of brakes, servo brakes etc. They were availing the facility of CENVAT credit on inputs, capital goods and input services. During the disputed period, which is from July 2014 to March 2016, the appellants had two units which are EOU and DTA units. They were availing the in

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g penalties. After due process of law, the original authority confirmed the demand, interest and imposed equal penalty. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal.
2. On behalf of the appellant, ld. counsel Shri M. Kannan submitted that the EOU was continuously availing the credit for both the units prior to July 2014 and by bonafide mistake even after the amendment, continued to do the same. In fact, the whole situation is a revenue neutral one since both the units are of the same assessee. At the time of issuance of show cause notice, both the units had merged into one which is also noted in the show cause notice. So even if there is a demand confirmed, the same would be paid to the same assessee and there is no

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that the situation is a revenue neutral one and the EOU and DTA units being of the same assessee, even if the service tax as paid is confirmed, the other DTA would be eligible for the credit. As seen from the show cause notice, later both the units have merged to one unit, pursuant to debonding of the EOU. Taking note of these facts, it is very much clear that the situation is a revenue neutral one, even if the demand is confirmed, both the units which has been now merged into one unit of the same assessee, shall be availing the credit.
6. From the above discussions, I am of the view that the demand requires to be set aside, which I hereby do. The appeal is allowed with consequential relief, if any.
(Dictated and pronounced in open court

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M/s Medisray Laboratories P. Ltd. Versus CCGST, Kolhapur
Service Tax
2018 (11) TMI 230 – CESTAT MUMBAI – 2019 (369) E.L.T. 717 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 1-11-2018
APPEAL NO. E/85429/2018 – A/87803/2018
Service Tax
DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL)
Shri Rajesh Ostwal, Advocate for Appellant
Shri Sanjay Hasija, Superintendent (AR) for Respondent
ORDER
None payment of duty @ 6%/7% of the trading value for non-maintenance of separate dutiable and exempted accounts to avail CENVAT credit is the subject matter of this appeal.
2. Briefly stated, the appellant's case is that it is engaged in the manufacturing of dutiable goods namely “PP Medicines” and during the Audit it is also observed that it has carried out sale of raw materials by selling the same to M/s Cipla Ltd., Mumbai, on whose behalf it also undertakes manufacturing process on job work basis. As per Rule 6 of CENVAT Credit Rules, 2004, if separate account for manufacturing on su

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buying and selling of raw-material in relation to manufacture of excisable goods is not tantamount to trading and appellant is a manufacturer who is not engaged in any activity that can be treated as trader, but, the impugned order passed by the Commissioner (Appeals) had disregarded the judicial ruling prevalent on the point. It has also challenged invocation of extended period of limitation on the ground that the said act of appellant was well within the knowledge of the Department before whom appellant had submitted annual report and credit availed by them. It was under the bona fide belief that credit was admissible besides the fact that proportionate reversal of input credit was done to establish sufficient compliance of provision contained in Rule 6 of CENVAT Credit Rules, 2004. Further Learned Counsel for the appellant contented that the imposition of penalty is not in conformity to the law and procedure prevailing during the disputed period which should never had extended the

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its raw-material which is fully exempted product, duty liability including interest and penalty on the appellant was not in conformity to the Indirect Tax Rule and therefore, interference by the Tribunal is uncalled for.
5. Heard at length from both sides and perused the case records and provisions of law including definition of trade and the purpose of Audit.
5.1 Dispute relating to taxability on sale and levy of duty by the excise authority is not new in its origin and on many scores, matter had reached the apex court level that necessitated passing of the Constitution (Forty Sixth Amendment) Act, 1982 and going by its Statement of Objects and Reasons, it can be ascertained that in conformity to the judgment of Hon'ble Supreme Court passed in Ganon Dunkerley's case (AIR) 1958 SC 560 whereby the sale of goods as used in entry of the 7th schedule to the constitution was treated to have carried the same meaning as in the Sale of Goods Act, 1930, coupled with subsequent decisions

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atory in nature since definition of service as contained in 65B(44) and exempted service in 66D are to be read conjointly and not in exclusion of each other. This being the statutory definition, sale of goods-be it made in the high sea or within the territorial boundary of India in which Finance Act, 1994 has its force, cannot be called a service to impose tax liability or deny the credit under Rule 6 of Cenvat Credit Rules.
7. Now coming to the statutory audit procedure, the purpose of audit, as available in the Manual published by the Institute of Chartered Accountants of India in respect of EA audit and CERA audit under Chapter 17 is that the idea behind such conduct of verification is to reasonably ensure that no amount, which under the central excise law is chargeable as duty, escapes taxation and the process of verification is always carried out in the presence of assessee and in the process, the auditor is required to discuss the matter with the assessee and advice him to follo

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