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2018 (9) TMI 1671 – CESTAT CHENNAI – TMI – CENVAT Credit – common input services used in dutiable as well as exempted services – non-maintenance of separate records – Rule 6(2) of CENVAT Credit Rules, 2004 – whether the demand can sustain and when the appellant has not followed the requirement of intimating the department about availing the option as to Rule 6(3A) of CENVAT Credit Rules, 2004? – Held that:- The demand is made only because they did not intimate the department that they are availing the option. The said requirement is only a procedural requirement, the Tribunal in the case of Mercedes Benz [2015 (8) TMI 24 – CESTAT MUMBAI] has held that the demand cannot sustain for such procedural lapse – demand cannot sustain – appeal allo

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t maintained separate accounts as provided under Rule 6(2) of CENVAT Credit Rules, 2004. The appellant had later reversed the proportionate credit availed on exempted services. The department was of the view that the appellant had not intimated to the department that they are availing the option of reversing the proportionate credit as Rule 6(3A). Hence show cause notice was issued demanding the credit pertaining to the exempted services along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, interest and imposed penalties. Hence this appeal. 2. On behalf of the appellant, Id. Counsel Shri Joseph Prabhakar submitted that the appellant had reversed the credit attributable to

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ides. 5. The issue that arises for consideration is whether the demand can sustain and when the appellant has not followed the requirement of intimating the department about availing the option as to Rule 6(3A) of CENVAT Credit Rules, 2004. It is submitted that the appellants have reversed the credit attributable to the exempted services. The demand is made only because they did not intimate the department that they are availing the option. The said requirement is only a procedural requirement, the Tribunal in the case of Mercedes Benz (supra) has held that the demand cannot sustain for such procedural lapse. Following the same, we are of the considered opinion that the demand cannot sustain. The impugned order is set aside and appeal is al

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2018 (11) TMI 831 – CESTAT KOLKATA – TMI – CENVAT Credit – common input services for trading goods – case of appellant is that the trading of goods has come into the exempted category only since 31.03.2011 and therefore the explanation adding ‘trading’ in the exempted service category cannot be made retrospectively applicable – also appellant has reversed back the amount of common input service credit availed by them.
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Held that:- For the period upto 01.04.2011, 100% CENVAT credit is available for certain services as per Rule 6(5) of the CENVAT Credit Rules, 2004. Trading was not included in ‘Exempted Service’ upto 31-03-2011 and prior to that the same was not considered as exempted services for the purpose of Rule 6(3) of the CENVAT Credit Rules, 2004. Therefore, there was no need to demarcate between taxable as well as exempted services for the purpose of availment of CENVAT Credit.
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The Appellant have already reversed ₹ 4,93,236/- as portion of Common CENVAT Credit

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8 – .FO/76649-76650/2018 – Dated:- 29-8-2018 – Shri P.K.Choudhary, Member (Judicial) Shri Ravi Raghavan, Advocate & Shri Harsh Shukla, CA for the Appellant (s) Shri S.Mukhopahdyay, Suptd.(AR) for the Respondent (s) ORDER Per Shri P.K.Choudhary Briefly stated the facts of the case are that the appellants are engaged in the business of Authorized Dealer of Maruti Suzuki Four Wheeler and also providing services of authorized service station and is registered with the service tax under category of Authorized Service Station (Servicing of Motor Vehicles) and Business Auxiliary Service . Pursuance to the Department audit, an audit observation was issued demanding service tax on various issues such as service tax on DSE incentive, Registration Fee, Cancellation Charges and Legal Fee paid to advocate. Sl.No. Appeal No. Period 1. ST/76239/2018 (Order-in-Appeal No.19/ST/BBSR-GST/2018 dated 30.01.2018) 2008-09 2012-2013 2. ST/76238/2018 (Order-in-Appeal No.20/ST/BBSR-GST/2018 dated 30.01.2018

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ri.-Mum)]. Ld. Advocate also submits that they have reversed the credit amount in terms of Rule 6 of the Cenvat Credit Rules, 2004, however, this fact has not been accepted nor examined by the Department and the amount has been upheld without any verification. 5. Ld. DR reiterates the orders of the lower authorities. 6. Heard both sides and perused the appeal records. 7. I find that the appellant has not denied the fact that they have been availing cenvat credit on the service tax paid on the common input services for trading goods. However, it has been contended that the trading of goods has come into the exempted category only since 31.03.2011 and therefore the explanation adding trading in the exempted service category cannot be made retrospectively applicable. It is also observed that the appellant has reversed back the amount of common input service credit availed by them. 8. I find that the appellant has availed CENVAT credit amounting to ₹ 21,05,711/- (but Credit utilized

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Rules, 2004. 11. It is submitted that for the purpose of Rule 6, exempted service provided by the appellant shall be the trading of goods by virtue of Rule 2(e) of the CENVAT Credit Rules as read with explanation (I) (c) to the said Rule. It is further, submitted that prior to 01.04.2011, trading of goods was not covered under the definition of exempted services, it was first introduced w.e.f. 01.04.2011 and at the time the exempted services were defined as: Exempted Services means taxable services which are exempt from the whole of the service tax leviable thereon, and includes service on which no service tax is leviable under Section 66 of the Finance Act, 1994 and taxable services whose part of the value is exempted on the condition that no credit of inputs and input services, used for providing such taxable services, shall be taken; Explanation- For the removal of doubts, it is hereby clarified that exempted services includes trading 12. In support of his submissions, the ld. Advoc

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Rule 6(5) 151,158 154,885 192,963 499,007 Grand Total 2,19,082 1,90,121 3,59,565 7,68,768 13. I find from the details submitted, that based on the above computation, the Appellant have already reversed ₹ 4,93,236/- as portion of Common CENVAT Credit attributable to both taxable as well as for trading activity in view of provision of Rule 6 of the CENVAT Credit Rules, 2004. The amount arrived as above has been deposited along with interest and copy of challans have also been submitted. The Appellant has submitted that during the FY 2013-14, the total amount of CENVAT credit availed by the appellant is ₹ 14,77,261/- which includes CENVAT Credit of taxes paid on Capital Goods, Services exclusively used for taxable services and common input services. The detail break up of CENVAT Credit provided by the Appellant is briefly summarized as under: A Total amount of CENVAT availed which is disallowed by the Authority. 14,77,261 B CENVAT Credit availed on CG used for Taxable & Ex

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s of Rule 6(5) of Cenvat Credit Rules, 2004. It is undisputed that the service tax credit availed is on the services as mentioned in Rule 6(5), the credit of the entire whole amount of service tax has to the appellant. When the differential amount has been paid by appellants under Rule 6 of Cenvat Credit Rules, 2004 and discharged the service tax has pointed out by the department before issuance of the show cause notice. Under the provisions of 73(3) of the Finance Act, 1994, the proceedings should have been completed on payment of tax amount along with interest. The credit amount which has been reversed by the appellants has neither been accepted or examined by the department and the amount has been upheld without any verification. The demand for the extended period of limitation is set aside. The penalty as imposed under Section 78 of the Finance Act, 1994 is also set aside and for the limited purpose of verification and re-quantification of demand for the normal period, the matter i

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2018 (11) TMI 1216 – CESTAT CHENNAI – TMI – Reverse charge mechanism – Club or Association Services – expenditure incurred by the appellants in respect of the services provided by persons situated outside India and expenditure incurred for their branch office operations – Rule 3(1)(ii) of Taxation of Services (Provided from Outside India and Received in India) Rules 2006.
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Held that:- Rule 3(ii) specifies performance based category services, namely, specified taxable services performed in India; even part performance being sufficient for requiring discharge of service tax under reverse charge – From the facts on record, it is found that the impugned services provided outside India will fall within the ambit of Rule 3(ii).
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Even as per the show cause notice, it is alleged that the services provided in Thailand and other places are leviable to service tax since it is intended for members in India. Thus, department does not have a case that the impugned services are physically

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India and expenditure incurred for their branch office operations are in relation to providing services under the category of Club or Association Services ; that these services are intended for the members in India; hence the said services require to be considered as having been performed in India in terms of Rule 3(1)(ii) of Taxation of Services (Provided from Outside India and Received in India) Rules 2006. A show cause notice dated 27.3.2009 was issued proposing demand of service amounting to ₹ 1,48,25,547/- along with interest for the period 1.10.2003 to 31.3.2008 on the said services, on reverse charge basis. The show cause notice also proposed imposition of penalties under various provisions of law. In adjudication, vide the impugned order dated 21.6.2011, the Commissioner confirmed a reduced amount of ₹ 1,43,60,316/- with interest and also imposed penalties under Sections 76, 77 and 78 of the Finance Act. Hence this appeal. 2. Today, when the matter came up for hear

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e and that the correct amount is ₹ 42,56,951/-. 2.4 Services rendered by persons located outside India and received are taxable with effect only from 18.4.2006 on enactment of Section 66A of Finance Act, 1994 as settled conclusively by the judgment in Indian National Shipowners Association – 2009 (13) STR 235 (Bom.). 2.5 With regard to branch office expenses, the transaction therein represents transfer of funds towards expenses of branches located outside India to meet its normal business expenditure. Such fund transfer is in accordance with the business decision of the appellant to support the branches that render services outside India. There is provision of service by the branch to the head office which can be termed as taxable service rendered in India. 2.6 Ld. counsel relies upon the decision of the Tribunal in Tech Mahindra Ltd. Vs. Commissioner of Central Excise – 2016-VIL-625-CESTAT-MUM-ST and 3i Info Tech Ltd. Vs. Commissioner of Service, Mumbai – II – 2017-VIL-04-CESTAT

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y them and the benefit of all the services rendered have accrued only to them for development of business. Hence the impugned services rendered are required to be considered as having been performed in India. 4. Heard both sides. 5. Rule 3 of the Taxation of Service Rules, 2006 lays down the situations where taxable services provided from outside India and received in India will be treated as performed in India and value thereof will become exigible to service tax. Rule 3(i) specifies the list of services provided in relation to immovable property situated in India. Here the service tax on such services will have to be paid under reverse charge mechanism. Rule 3(ii) specifies performance based category services, namely, specified taxable services performed in India; even part performance being sufficient for requiring discharge of service tax under reverse charge. Rule 3(iii) specifies the residuary list of taxable services and those services as are received by a recipient located in I

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2018 (12) TMI 74 – CESTAT KOLKATA – TMI – Penalty u/s 77 and 78 of FA – invocation of Section 73(3) of the Finance Act, 1994 – appellant has paid service tax with interest on beiing pointed out – Held that:- Explanation of Section 73(3) is clarificatory in nature, hence can be made applicable both prospective and retrospective – The amendment vide Explanation to Section 73(3) is retrospective in nature as the said amendment has declared that no penalty shall be imposed in cases where the tax has been paid in full along with interest within before the issuance of the show cause notice.
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In the case of Tamil Nadu Small Inds. Corporation Limited v. Commissioner of Central Excise Chennai -[2008 (2) TMI 367 – MADRAS HIGH COURT], it was held that where an amendment has been introduced to clarify the intention of a notification, the said amendment shall be retrospective in nature.
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The appellant’s case deserves waiver of penalty imposed under Section 77 & 78 of the Finance Act, 19

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essee had accepted and deposited the service tax of ₹ 3,46,765/- under Section 73(3) of the Finance Act, 1994 along with interest of ₹ 3,05,044/-. Show Cause Notice dated 16.11.2015 was issued for imposition of penalty. Adjudicating Authority confirmed the demand of ₹ 3,46,765/- alongwith interest and appropriated the amount of ₹ 3,46,765/- paid by the appellant towards service tax duties and ₹ 3,05,044/- paid towards interest liability. He however imposed penalty of ₹ 3,46,765/- under Section 78 and ₹ 10,000/- under Section 77 of the Finance Act, 1994. On appeal the ld. Commissioner (Appeals) upheld the Order-in-Original and rejected the appeal filed by the appellant assessee. Hence, the present appeal before the Tribunal. 2. Ld. Advocate appearing on behalf of the appellant company reiterates the grounds of appeal and contended that the appellant had discharged service tax alongwith interest much before the issuance of the show cause notice b

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s clarificatory in nature, hence can be made applicable both prospective and retrospective. This issue is covered by the decision of the Hon ble Madras High Court in the case of Tamil Nadu Small Indus. Corpn. Ltd. v. CCE, Chennai [2009(234) ELT 413 (Mad.)]. I find that the provisions of Section 73(3) of the Finance Act, 1994 is applicable to the facts of the present case. The same is reproduced below: SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded.- (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of suc

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trospective in nature as the said amendment has declared that no penalty shall be imposed in cases where the tax has been paid in full along with interest within before the issuance of the show cause notice. On this issue the Hon ble Karnataka High Court in the case of CCE & ST., LTU Bangalore v. Adecco Flexione Workforce Solutions Ltd. – 2012 (26) S.T.R. 3 (Kar.) held as under: 2. The assessee has paid both the service tax and interest for delayed payments before issue of show cause notice under the Act.Sub-sec.(3) of Section 73 of the Finance Act, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under sub-sec.(1) in respect of the amount so paid. 7. In view of the above discussions it is my considered view that the appellant s case deserves waiver of penalty imposed under Section 77 & 78 of the Finance Act, 1994 in view of Section 73(3) of

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Goods and Services Tax – Started By: – vasanth kumar – Dated:- 28-8-2018 Last Replied Date:- 29-8-2018 – whether gst is applicable on long term lease of immovable property where contract for lease was entered pre-gst amount received under pre-gst and term of lease continued under gst also – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = It is applicable. – Reply By vasanth kumar – The Reply = how to substantiate that it is applicable under gst, relevant provisions which supports under gst as well as service tax law? – Reply By Ganeshan Kalyani – The Reply = The time of supply of service is completion of service or date of invoice . Even though the contract was entered pre GST the completion of service for each period is in GST regime. He

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eply By Pavan Mahulkar – The Reply = Typographical error Please read Section 142 instead of Section 140 – Reply By vasanth kumar – The Reply = Dear sirin this situation how do we bifurcate as to how much value liable under service tax law and how much value attract gst as under long term lease lump sum payment was made under service tax law nothing was receivable under gst law – Reply By Pavan Mahulkar – The Reply = There's specific provision regarding Import under section 21 of IGST Act which could be helpful for understanding the provisions under section 142 of CGST Act 21. Import of services made on or after the appointed day shall be liable to tax under the provisions of this Act regardless of whether the transactions for such impor

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2018 (9) TMI 26 – MADHYA PRADESH HIGH COURT – TMI – Interpretation of Statute – Board's circular No.6/92 dated 29.5.1992 – SSI exemption – Clubbing of Turnover – no dummy units – maintainability of appeal – Held that:- The real issue in this appeal is regarding interpretation of Board's circular No.6/92 dated 29.5.1992 and the appeal against the impugned order passed by the Appellate Tribunal would lie before the Apex Court – appeal disposed off with liberty to challenge the same by filing an appeal under Section 35-L of Central Excise Act, 1944 before the Apex Court – present appeal not maintainable. – C. E. A. No. 57 of 2017 Dated:- 28-8-2018 – P. K. Jaiswal And S. K. Awasthi, JJ. Shri Prasanna Prasad, learned Counsel for the appellant Shri Alok Barthwal, learned Counsel for the respondent ORDER Heard. 2. This appeal under Section 35-G of the Central Excise Act, 1944 has been filed by the Revenue against the final order dated 18.1.2017 (Annexure – A) passed by the Appellate Tribuna

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1.2014 (Annexure-A) passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, by which the learned Appellate Tribunal allowed the appeal of the assessee filed against order dated 12.08.2005 (Annexure-C) passed in order-inoriginal No.66/Comm/CEX/IND/05 by the Commissioner, Customs & Central Excise, Indore, whereby Central Excise Duty amounting to ₹ 78,72,452/- imposed on the respondent / assessee has been confirmed along with interest and penalty of incidental amount. 2.Shri Alok Barthwal, learned counsel for the respondent / assessee has raised preliminary objection regarding maintainability of the appeal; and submitted that appeal shall lie against an order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi not being an order relating among other things, to the determination of any question having relation to the rate of duty or excise or to the value of the goods for the purpose of assessment. 3.He submitted that looking to th

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eported in 2008 (227) ELT 189 (P&H) and (5) Commissioner, Central Excise & Service Tax, Ahmedabad-III v. Pravinbhai Narshibhai Patel Partner reported in 2017-TIOL-158-HC-AHM-CX. He has also drawn our attention to a decision of the Apex Court in the case of Navin Chemicals Manufacturing and Trading Company Limited v. Collector of Customs reported in 1993 (68) ELT 3 (SC); and submitted that appeal shall lie under Section 35-L and not under Section 35-G of the Central Excise Act, 1944 to the High Court. 4.On due consideration of the facts and circumstances of the present case, so also the law laid down in the cases of Commissioner v. Kich Industries (supra), Commissioner of Central Excise, Chennai-II v. Vadapalani Press & others (supra), Commissioner of Central Excise, Panchkula v. Special Machine (supra), Commissioner of Customs & Central Excise, Goa v. Primella Sanitary Products (P) Limited (supra) Commissioner of Central Excise, Ludhiyana v. A.S.T. Paper Mills Limited (

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2018 (9) TMI 245 – CESTAT HYDERABAD – TMI – CENVAT Credit – reversal of credit on inputs which went into generation of exempted products – SCN alleges that they have not reversed the input service credit which has gone into production of several exempted products – Rule 6(3)(i) of CENVAT Credit Rules, 2004 – Held that:- Of these products, bagasse have already been held to be just waste and not an exempted product requiring reversal of CENVAT credit – There are also other products with respect to which the appellant claims that they have already reversed the CENVAT credit such as on electricity – There are products such as organic manure which the appellant claims to have cleared on payment of duty.
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Therefore, the proper course of action is to remand the matter back to the original authority to examine the claims of the appellant in respect to each product and re-determine the amount of duty, if any, to be recovered from them after following principles of natural justice – appea

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inputs which went into generation of exempted products like power, Bagasse etc. but they have not reversed proportionate credit taken on input services going into manufacture of dutiable and final products as required under Rule 6 of CENVAT Credit Rules, 2004. Therefore, show cause notices were issued to the appellant asking them as to why an amount of ₹ 11,36,953/- being the credit on input services which has gone into exempted products should not be recovered from them under Sec.11A of the Central Excise Act read with Rule 14 of CENVAT Credit Rules, 2004. They were also asked as to why interest should not be demanded from them and a penalty should not be imposed on them under Sec.11AC of the Central Excise Act read with Rule 15(2) of the CENVAT Credit Rules, 2004. The lower authority confirmed the demands with interest and imposed penalty as proposed. The appellant s appeals to the first appellate authority have been rejected and hence, these appeals are filed. As far as the a

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tillery division which distils the molasses produced in the sugar division into Ethyl alcohol. Part of the Ethyl alcohol is denatured and sold as denatured spirit on payment of Central Excise duty and part of the Ethyl alcohol is not denatured and is sold as such without payment of Central Excise duty (Ethyl alcohol which is not denatured is liable to State Excise duty). The Press Mud which is generated in the sugar unit is further processed by adding spent wash generated during the manufacture of Ethyl alcohol and is converted into organic manure which is sold on payment of duty. Another by-product of the rectified spirit is fusel oil which is also cleared on payment of Central Excise duty. Besides, they also have a trading division in which they trade fertilizers. It has been alleged in the show cause notice and upheld in the Order-in-Original and Order-in-Appeal that they failed to maintain separate accounts for availment of credit on input services in respect of dutiable and exempt

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e extended period of limitation is not invokable as there was no fraud, collusion, wilful misstatement or suppression of facts on their part and they have not contravened any provisions of Act or Rules made there under with intent to evade payment of duty. Therefore, the extended period of limitation does not apply at all and neither does the demand sustained. 5. Learned Counsel took the Bench through the annexures to the show cause notice and submits that the calculations made in the show cause notice are incorrect because some products have been treated as exempted products in the show cause notice but are dutiable. Bio-earth/organic manure, fusel oil are liable to payment of duty and are being cleared on payment of duty. Therefore, the question of reversal of credit on this amount does not arise. In respect of rectified spirit, he concedes that they are liable to reverse credit of input services to the extent the rectified spirit has been cleared as such without payment of duty but

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ed not be reversed on the inputs which have gone into the production of this press mud. They relied on their own case in Final Order No.A/30437/2017 in Appeal No. E/30716/2016, in which the demand of interest on delayed payment of duty on molasses, was set aside. The learned departmental representative reiterated the arguments made in the Order-in-Original and Order-in-Appeal and submits that the appellant is liable to reverse the credit on the input services which have gone into the exempted products. 6. I have carefully considered the arguments on both sides. The show cause notice alleges that they have not reversed the input service credit which has gone into production of several exempted products. Of these products, bagasse have already been held by the Supreme Court to be just waste and not an exempted product requiring reversal of CENVAT credit. There are also other products with respect to which the appellant claims that they have already reversed the CENVAT credit such as on e

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2018 (9) TMI 246 – CESTAT HYDERABAD – TMI – Rebate of Excise duty – export of goods – Jurisdiction – case of Revenue is that the goods were not cleared from the factory but from the warehouse in Raipur. The refund claim was filed with the Asst. Commissioner of Central Excise, Visakhapatnam, who neither has jurisdiction over the factory or the warehouse – Held that:- The issue involved relates to rebate of excise duty on goods exported out of India. CESTAT has no jurisdiction to decide appeals on orders passed by Commissioner (Appeals) on such matters as per the first proviso to Section 35B – appeal dismissed being not maintainable. – Application No. E/COD/30355/2018 and Appeal No.E/30618/2018 – Final Order No. A/31067/2018 – Dated:- 28-8-2018 – HON'BLE MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri N.V. Ramana Rao, Advocate for the Appellant Shri V.R. Pavan Kumar, Superintendent/AR for the Respondent ORDER [ Order Per : P. V. Subba Rao ] 1. The application is filed seeking cond

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ral Excise, Division- III, Visakhapatnam vide Order-in-Original No.61/2014-15-R.(AC), Dt. 24.12.2014. In this Order-in-Original, the lower authority has remarked that since, the goods were removed from Raipur, the documents have been sent to the jurisdictional authorities to confirm that the duty has been paid and thereafter he sanctioned the rebate. 3. Rebate of Central Excise duty is sanctioned under Rule 18 of Central Excise Rules, 2002 subject to the procedure prescribed under notification 19-2004-CE (NT), Dt. 06.09.2004. The revenue felt that the rebate was wrongly sanctioned as the condition in Para 3(b)(i) of notification requires the refund claim to be filed with the Asst. Commissioner of Central Excise or Dy. Commissioner of Central Excise, having jurisdiction over the factory of the manufacture or warehouse or, as the case may be, the Maritime Commissioner. In this case, the goods were not cleared from the factory but from the warehouse in Raipur. The refund claim was filed w

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also verified the Bank Realisation Certificate confirming the foreign exchange has been received for the exports. 4) As per CBEC Circular No. 18/92-CX-6, Dt. 18.12.1992, the Central Excise authorities having jurisdiction over the duty paid stocks outside the factory premises from where the goods have been exported have to sanction the rebate. Even if it is admitted that there is a procedural lapse, a substantive benefit of rebate cannot be denied to them on procedural grounds. 5. The learned counsel for the appellant argued that in terms of Para 3(b)(i) of the notification, the officer having jurisdiction over the factory or manufacturer or warehouse can sanction the rebate. The term warehouse under Rule 2(h) of the Central Excise Rules, 2002 includes any place registered under Rule 9. The appellant is registered under Rule 9 as a dealer and therefore, the premises of the appellant should be considered as a warehouse and the Asst. Commissioner, Central Excise, Division-III, Visakhapatn

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2018 (9) TMI 739 – CESTAT HYDERABAD – TMI – CENVAT credit – input service – renting of immovable property service (renting of godowns) – place of removal – denial of credit on the ground that these godown are beyond the place of removal – Held that:- These godowns are places of removal in terms of Sec. 4(3)(c) of the Central Excise Act. Nevertheless, the nexus with manufacture is also decided in identical cases in the case of DSCL Sugar [2012 (12) TMI 830 – CESTAT NEW DELHI] where it has been held that sugar factories are entitled to input service credit on rent paid on godowns in which they stored sugar after paying duty – appeal allowed – decided in favor of appellant. – Appeal Nos: E/31186/2017 & E/30055/2018 – A/31068-31069/2018 – Dated:- 28-8-2018 – Mr. P. Venkata Subba Rao, Member (Technical) Shri G. Prahlad, Advocate for the Appellant. Shri Bhanu Kiran, Asst. Commissioner/AR for the Respondent. ORDER [Order per: P.V. Subba Rao.] 1. These two appeals involve a similar issue and

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are filed by the appellant. The short point in question is whether the appellant is eligible for CENVAT credit on the input service on renting of immovable property for their godowns in which they have stored duty paid sugar which they sold subsequently. As per Rule 2(l) of CENVAT Credit Rules, 2004, input service means any service used by a provider of taxable services for providing the output service or to use by a manufacturer whether directly or indirectly in or in relation to the manufacture of final products and clearance of final products up to the place of removal . It is to be decided whether the godowns in question are to be treated as places after the point of removal or they are the places of removal. According to the show cause notice the godowns are not part of the place of removal and the removal had already taken place as the duty has been paid before the goods were stored in these godowns. The original authority held that the use of input service must be integrally con

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yment of duty; (iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory; 3. It is his argument that a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory are also covered in the definition of place of removal. In this case, they have paid duty and cleared the sugar from their factory and stored it in the depots from where the sugar was subsequently sold to the customers. Therefore, the godowns of their factory consequently fall under the definition of place of removal and hence, they are entitled to the credit of CENVAT credit on the service tax paid from renting of immovable property on these godowns. He relied on the following orders: 1) DSCL Sugar Vs CCE, Lucknow [ 2014-34-STR-58-Tri.-Delhi] in which it was held that the godowns of the appellant at Agra and Farrukhabad where th

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ts factory on payment of duty cannot be treated as input service under Rule 2(l) and therefore no credit on service tax can be given on the same. 5. I have considered both arguments. The show cause notice only sought to deny credit on the ground that the godowns are not places of removal not on the ground of lack of nexus with manufacture based on which the demand was confirmed. I find these godowns are places of removal in terms of Sec. 4(3)(c) of the Central Excise Act. Nevertheless, the nexus with manufacture is also decided in identical cases in the case of DSCL Sugar (supra) and Thiru Arooran Sugar Ltd (supra) and it has been held that sugar factories are entitled to input service credit on rent paid on godowns in which they stored sugar after paying duty. Respectfully, I follow the ratio of these decisions. I, therefore, find the impugned orders needs to be set aside and I do so. 6. The appeals are allowed. (Pronounced in the open court on 28.08.2018) – Case laws – Decisions –

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2018 (9) TMI 1382 – CESTAT MUMBAI – TMI – Refund of unutilized CENVAT Credit – export of services – Input services – catering service – denial of refund on the ground of nexus of the service with the output service – Held that:- The fact is not on dispute that the appellant had availed the services of the caterer for providing the catering facility to its employees, working within its business premises. Since providing catering facilities to the employees within the business premises is as per the Human Resource Policy, adopted by the appellant, the service tax paid on such service, should be considered as input service for the purpose of availment of refund benefit.
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Refund allowed – appeal allowed – decided in favor of appellant. – Appeal No. ST/86469 & 86481/2018 – A/87224-87225/2018 – Dated:- 28-8-2018 – Mr. S.K. Mohanty, Member (Judicial) Shri Prasad Paranjape, Advocate with Ms. Shraddha Seth, C.A. for appellant Shri O.M. Shivdikar, Asst. Commr (AR) for respondent ORDER Per:

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idered the refund of service tax in respect of some of input services. Learned Commissioner (Appeals) has also considered certain input services for the purpose of refund benefit. However, the learned Commissioner (Appeals) has denied the service tax refund in respect of catering service and rent-a-cab service, on the ground that such service has been used by the appellant for personal consumption of its employees and thus, such service has no nexus with the output service provided by the appellant. 3. Learned Advocate appearing for the appellant submits that the appellant is not pressing for denial of refund benefit in respect of rent-a-cab service. However, he contended that catering service was availed and utilized by the appellant as per the H.R. Policy adopted by the appellant Company and such service has nexus with the output service exported by the appellant. He further submits that since the period of dispute is prior to April 2011, the appellant should be governed under the pr

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business premises. Since providing catering facilities to the employees within the business premises is as per the Human Resource Policy, adopted by the appellant, the service tax paid on such service, in my opinion, should be considered as input service for the purpose of availment of refund benefit. Further, I also find that the period of dispute in this case is governed under the unamended definition of input service (effective upto 31.03.2011) were under, activities relating to business were considered as input service. Since the said service was used / utilised for accomplishing its business activities, refund benefit of service tax on such service cannot be denied. Therefore, the impugned order, to the extent it denied the refund benefit on catering service, is set aside and the appeals are allowed. 7. The appeals are disposed of in the above terms. (Order dictated in Court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanageme

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2018 (9) TMI 1383 – CESTAT MUMBAI – TMI – Refund of Service tax paid – residential complex service – refund was denied placing reliance on some statements given to the divisional authorities – principles of natural justice – Held that:- It transpires from the available records that copy of the statement has never been supplied to the appellant before adjudication of the matter. Thus, the original order has been passed by the Asst. Commissioner (Refund) in gross violation of principles of natural justice.
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The learned Commissioner (Appeals) has not acceded to the specific request made by the appellant for verification of the statement submitted to the divisional authorities – ends of justice will be met, if the matter is remanded to th

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on of the contract. Thus, the appellant contended that the service tax amount paid on such advance receipt by the appellant should entitled for the refund benefit. However, the original authority concluded that as per verification report submitted by the Divisional Office, refund cannot be granted by the department. On appeal, learned Commissioner (Appeals) has upheld rejection of the refund benefit to the appellant. 2. Learned Advocate appearing for the appellant, at the outset, submits that the principles of natural justice have been violated inasmuch as reference to the report of the divisional authorities was not considered as a part of the show-cause notice and the appellant was never given any opportunity before adjudication of the ma

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cating the matter, the Asst. Commissioner (Refund) has denied the refund claim by placing reliance on some statements given to the divisional authorities. It transpires from the available records that copy of the statement has never been supplied to the appellant before adjudication of the matter. Thus, the original order has been passed by the Asst. Commissioner (Refund) in gross violation of principles of natural justice. I also find that the learned Commissioner (Appeals) has not acceded to the specific request made by the appellant for verification of the statement submitted to the divisional authorities. Therefore, in my considered view, ends of justice will be met, if the matter is remanded to the original authority for readjudication

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2018 (9) TMI 1526 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – 2018 (17) G. S. T. L. 677 (A. A. R. – GST) – Supply of goods – Rate of GST – Classification of goods – Composite/mixed supply – supply of solar inverter (8504), controller (8504), battery (8507) and panels (8541) under “Solar Power Generating System” (8543) as a whole & whether the such supply be called as ‘composite supply or mix supply’ – whether supply of solar inverter & solar panels together will fall under the definition of “Solar Power Generating System” or it will be a ‘mix supply’ and the applicability of GST rate on supply of solar inverter & solar panels together – applicability of advance ruling clarification – Whether manufacturer or trader will have any significance on the clarification?
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Whether the supply of solar inverter, controller, battery and panels are covered under “Solar Power Generating System” as a whole and can be called as ‘composite supply or mix supply’ & what will be the rate of GST on

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r of the principal supply therefore all the goods should be taxable @ 5% as “Solar Power Generating System”.
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Reliance placed in the CESTAT judgment Rajasthan Electronics & Instruments Ltd. Vs CCE [2004 (7) TMI 259 – CESTAT, NEW DELHI], where it was held that Solar Photovoltaic Module is a Solar Power Generating System. Other parts are only panel housing consisting of controllers and switches. Hence the whole system is a Solar Power Generating System and is entitled for the benefit of notification. Therefore, the denial of benefit of notification by the adjudicating authority is not sustainable.
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The items which are used in connection with generation of power from sunlight are covered under the definition of “Solar Power Generating System”. Accordingly solar inverter & solar panel used for specified purpose i.e. generation of power from sunlight, will be covered under serial no. 234 of Schedule-I of the Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017, the applica

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he aforesaid findings are applicable for both manufactures and traders engaged in said supply. – AAR No. 07/2018-19 In Application No. 05/2018-19 Dated:- 28-8-2018 – SHRI VIPIN CHANDRA AND SHRI AMIT GUPTA MEMBER Present for the Applicant: Shri Mohit Chaudhary Accountant Present for the Jurisdictional Officer: None Note : Under Section. 100(1) of the Uttarakhand Goods and Services Tax Act, 2017, an appeal against this ruling lies before the appellate authority for advance ruling constituted under section-99 of the Uttarakhand Goods and Services Tax Act, 2017, within a period of 30 days from the date of service of this order. RULING 1. This is an application under Sub-Section (1) of Section 97 of the CGST/SGST Act, 2017 (herein after referred to as Act) and the rules made thereunder filed by M/s. Eapro Global Ltd, Khasra No. 103 & 104, Salempur Rajputana Industrial Area, Roorkee seeking an advance ruling on following issues: (a) applicability of GST rate on supply of solar inverter

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ation of any goods or services or both (b) Applicability of a notification issued under the provisions of his Act, (c) Determination of time and value of supply of goods or services or both, (d) Admissibility of input tax credit of tax paid or deemed to have been paid (e) Determination of the liability to pay tax on any goods or services or both (f) Whether the applicant is required to be registered (g) Whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both within the meaning of that term 4. In the present case applicant has sought advance ruling on applicability of GST rate on supply of goods and their classification thereof. Thus, in terms of said Section 97(2)(a) & (e) of CGST/SGST Act, 2017, the present application is hereby admitted. 5. The Joint Commissioner, SGST, Roorkee vide his letter dated 30.07.2018 submitted the report in this regard as under: (i) If said items are

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have to first know about the Solar Power Generating System . We find that there are four main components to a solar power generating system as under: (i) Solar panels: The main part of a solar power generating system is the solar panel. Solar panels contain solar cells. Solar cells, sometimes called photovoltaic cells, convert the energy the sun into electricity. (ii) Inverters : The electricity produced in a solar panel is DC. Electricity we get from the grid supply is AC. So it is required to install an inverter to convert DC of solar system to AC of same level as grid supply. In off grid system the inverter is directly connected across the battery terminals so that DC coming from the batteries is first converted to AC then fed to the equipment. In grid tie system the solar panel is directly connected to inverter and this inverter then feeds the grid with same voltage and frequency power. (iii) Controller: This is not desirable to overcharge and under discharge a lead acid battery.

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n this regard we reproduce the relevant portion of the Act as under: (i) Section 2(30) of the Act ibid composite supply means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply; (ii) Section 2(74) of the Act ibid mixed supply means two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply. (iii) Section 2(90) of the Act ibid principal supply means the supply of goods or services which constitutes the predominant element of a composite supply and to which any other supply forming part of that composite supply is ancillary; (iv) Section 8 of the Act ibid: The tax liability on a composite or a mixe

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ugh exemption to said Solar Power Generating System was granted vide serial ho. 332 of Notification No. 12/12-CE dated 17.03.2012 but the same has also not been defined in the said regime. The relevant portion Notification No. 12/12-CE dated 17.03.2012 is reproduce as under: Sl. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate 1 2 3 4 332 Any Chapter Non-conventional energy devices or systems specified in List 8 Nil List-8: 1) Flat plate solar Collector (2) Black continuously plated solar selective coating sheets (in cut length or in coil) and fins and tubes (3) Concentrating and pipe type solar collector (4) Solar cooker (6) Solar air heating system (7) Solar low pressure steam system (8) Solar stills and desalination system (9) Solar pump based on solar thermal and solar photovoltaic conversion (10) Solar power generating system (11) Solar photovoltaic module and panel for water pumping and other applications (12) Solar cr

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80) ELT 0481 (Tri. – Del.)] = 2004 (7) TMI 259 – CESTAT, NEW DELHI 3. The contention of the appellant is that the Dusk Dawn System is an electronic system for street lights comprising of electronic controller and Solar Photovoltaic Module. The street lights are automatically switched off based on the ambient light level which is sensed by the sensors installed therein. The Dusk Dawn System comprises of the SPV module and the penal housing. The contention is that whole system works on the solar energy and it is an energy saving device used for automatic switching off the street lights making proper use of grid power and increasing the life of the lamps by operating the street light from sunset to sunrise. The contention of the appellant is that the Commissioner of Central Excise in the adjudication order admitted the fact that Solar Photovoltaic module is a solar power generating system. In spite of this finding the benefit of notification was denied. The contention is that as the whole

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hether the 'Solar Inverter Charger for solar lantern' is entitled for the benefit of exemption Notification 5/99-C.E., dated 28-2-99. The contention of the revenue is inverter charger should be classified under Heading No. 80.03 of the C.E. Tariff Act as a component of solar power generating system or solar lantern. The exemption Notification No 5/99 C.E., dated 28-2-99 as amended exempts "nor conventional energy systems" specified in list 4 of the Notification from payment of duty. Since the exemption notification exempts total system and not parts the system, the lower authority held that the inverter charger for solar lantern is not entitled for the benefit of the said notification. 3. We heard both sides. Learned Advocates contended that solar power generating system is also technically known as inverter charger card. Technical experts who headed the Technical Department of the appellants who are a major Public Sector Undertaking have certified that inverter charg

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llants actually manufactured SPV lantern. The above lantern required electricity for its It is possible to convert solar energy to electricity with the help of inverter charger manufactured by the appellants. The Dy. General Manager has certified that the inverter merger constitutes solar power generating system as it performs the function of generating the required high frequency AC power from in-light with, the help of SPV module and supplying it to the compact fluorescent lamp of a solar lantern. In view of the above, expert opinion, we hold that e impugned item can be considered as solar power generating system and is entitled for the benefit of the exemption Notification. Therefore, we allow the appeal with consequential relief. (vii) On going through the afore stated cases pronounced by the hon ble Tribunal we find that the said judgments arc on the lines of Notifications 06/2002-CE & 5/99-CE. Therefore, we have to go through the said notifications to find out whether the sam

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ing wind mill, wind aero-generator and battery charger (15) Bio-gas plant and bio-gas engine (16) Agricultural, forestry, agro-industrial, industrial, municipal and urban waste conversion device producing energy (17) Equipment for utilising ocean waves energy (18) Solar lantern (19) Ocean thermal energy conversion system (20) Solar photovoltaic cell (21) Parts consumed within the factory of production of such parts for the manufacture of goods specified at S.Nos. 1 to 20 above. Notifications 5/99-CE dated 28.02.99 Sl. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate 1 2 3 4 265 Any Chapter Non-conventional energy devices or systems specified in List 4 Nil List-4: (1) Flat plate solar collectors (2) Black continuously plated solar selective coating sheets (in cut lengths or in coils) and fins and tubes (3) Concentrating and pipe type solar collectors (4) Solar cookers (5) Solar water heaters and systems (6) Solar air heating

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5/99-CE (supra), we find that there is no change in the description of goods viz Non-conventional energy devices or systems specified in List in the said notifications and Solar power generating systems in the list appended to said notifications however their entry against serial no. & list nos. appended to said notifications keeps on changing during the relevant period except that there is no material change in the said notifications. Thus we observe that said notifications are similar in character & have the same soul to extend the benefit under Central Excise Law to solar power generating system and are identical to the Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 in as much as the same benefit continued in GST regime also by way of concessional rate. Therefore case laws discussed above have a great impact on the case in hand and we observe that the same are applicable to the instant case. Accordingly we are in respectful agreement with the hon ble CESTAT jud

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Goods Unit GST Rates Central CGST State/UT/SGST/UTGST Inter-State IGST Compensation Cess (1) (2) (3) (4) (5) (6) (7) [84, 85 or 94] Following renewable energy devices & parts for their manufacture (a) Bio-gas plant (b) Solar power based devices (c) Solar power generating system (d) Wind mills, wind Operated Electricity Generator (WOEG) (e) Waste to energy plants / devices (f) Solar lantern / solar lamp (g) Ocean waves/tidal waves energy devices/plants (h) Photo voltaic cells, whether or not assembled in modules or made up into panels u 2.5% 2.5% 5% Nil (ix) As regard to the HSN code of Solar Power Generating System , we observed that Solar Power Generating System is a composite supply and the same has not been defined in GST law, therefore HSN code has to be followed in terms of Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017. (B) Supply of solar inverter & solar panels together will fall under the definition of Solar Power Generating System or it will be a mix su

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2018 (9) TMI 1646 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – 2018 (17) G. S. T. L. 649 (A. A. R. – GST) – Input Tax Credit (ITC) – goods and services used for erection of infrastructure to which fibre cables are connected – fibre cables leased to Telecommunication Operators – whether Cenvat credit of goods and services used for erection of infrastructure to which fibre cables are connected for leasing to Telecommunication Operators, is available to them?
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Held that:- The telecommunication towers are used for hoisting e antennae to predetermined and technically viable heights for optimum coverage of the cellular network. The towers are typically erected at the site and also comprise poles for mounting the antennae, sheIters and housing for electrical and telecom equipment. Telecommunication Towers are in the nature of immovable property and are consists of A pre-fabricated shelter made of insulating PUF material made of fibres, Electronic Panel, Base Transceiver Station (BTS)

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dismantled or re-erected at a later place, it will be movable property. But if erected permanently with out being shifted from place to place, then it would be treated as permanently attached to the earth and the same will be treated as immovable property – thus, “telecommunication tower” does not come within the purview of goods in as much as the same being a immovable property and the ITC on “telecommunication tower” is not admissible as per explanation to Section 17(6) of the CGST/SGST Act, 2017.
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The infrastructure provided by the applicant is different from “Telecommunication Tower” in as much as the in infrastructure provided by the applicant does not contain in a. pre-fabricated shelter made of insulating PUF material made of fibres; b. electronic Panel; c. Base Transceiver Station (BTS) and other radio transmission and reception equipment ; d. diesel generator set; the infrastructure is not a immovable property as it can be easily be moved to another place for use without

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for advance ruling constituted under section- 99 of the Uttarakhand Goods and Services Tax Act, 2017, within a period of 30 days from the date of service of this order. RULING 1. This is an application under Sub-Section (1) of Section 97 of the CGST Act and the rules made thereunder filed by M/s. Vindhya Telelinks Ltd. Ground Floor, Wing-B, Commercial Plaza, Hotel Radisson, NH 8, Mahipalpur, New Delhi seeking an advance ruling on the question whether Cenvat credit of goods and services used for erection of infrastructure to which fibre cables are connected for leasing to Telecommunication Operators, is available to them. 2. Advance Ruling under GST means a decision provided by the authority or the appellate authority to an applicant on matters or on questions specified in sub section (2) of section 97 or sub section (1) of section 100 in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. 3. As per Section 97(2)(d) of CGST

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her personal hearing was fixed on 28.08.2018 and Shri Sanjay Gupta, Vice President of the applicant attended the hearing on the designated date. 5. In the present application, applicant has requested for advance ruling on admissibility of cenvat credit of goods and services used for erection of infrastructure which is discussed as under : 6.1 Admissibility of ITC of goods & services used for erection of infrastructure for Telecommunication Operators: From the documents submitted by the applicant we find that applicant is registered in Uttarakhand with GSTIN bearing no. 05AAACV7757J1ZY and engaged in providing services including trenching, laying, jointing and installation of cables to companies operating in the telecommunication and power sector. The applicant has obtained Registration for Infrastructure Provider category-1 (IP-1) from Department of Telecommunication, Government of India wherein the scope of activities are limited to establish and maintain assets such as Dark Fibre

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of radio channels of defined frequencies. Elements of the active infrastructure are the base transceiver station (BTS), the base station controller (BSC), the mobile switching centre (MSC) and microwave and GSM antennae. The antenna enable both the transmission and receipt of radio signals, enabling the cellular telephony to proceed uninterrupted as the subscriber is mobile. In contrast, the passive infrastructure comprises the elements which enable the active infrastructure to operate as described above. 6.4 A telecommunication/cell tower houses the electronic communications equipment along with an antenna to support cellular communication in a network. A cell tower is usually an elevated structure with the antenna, transmitters and receivers located at the top. A cell tower also known as cellular tower or cell site. The primary function of a telecommunication/cell tower is to ensure proper elevation to antennas that receive and transmit radio-frequency signals from cell phones and ot

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rt the tower. 6.5 As per applicant, they are engaged in leasing of 'Telecommunication Fibre'. In hilly areas, the telecommunication fibres are kept to be elevated unlike in plain areas where the fibres are put underground. It is only because of this reason the fibres cannot be put underground in the hilly area, they are placed on the poles. The infrastructure so erected by them to elevate the fibre so that Telecommunication Operators can connect the fibre to their Telecommunication Towers . The picture of the said infrastructure is as under: 6.6 The of creation of aerial network done by the applicant is as under: a. The creation of aerial network begin with erection of pole which involves excavation of pit with particular specification, placing of earthing coil in the pit to protect the pole & fibre from damage in the event of lightening. Thereafter muff is installed in the pit, inside which pole is erected. b. After installation of muff, the pole is place inside the muff w

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eptional cases it is 9m. d. The pole along with muff installation can be removed using civil work without any damage to the entire infrastructure. After removal of the said infrastructure, it can be used easily at another location without any damage to the fibre connected to the structure or the structure as a whole. 6.8 To appreciate the law position in this regard, first we have to go through the provisions of Input Tax Credit of CGST/SGST Act, 2017 and the relevant portion of the same are reproduce below: 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. 17 (5) Notwithstanding anything contained in sub-section (1) of section

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he Government notifies the services which are obligatory for an employer to provide to its employees under any law for the time being in force; or (B) 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; and (iv) travel benefits extended to employees on vacation such as leave or home travel concession; (c) works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service; (d) goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business. Explanation.-For the purposes of clauses (c) and (d), the e

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structural supports but excludes- (i) land, building or any other civil structures; (ii) telecommunication towers; and (iii) pipelines laid outside the factory premises. 6.9 The explanation (supra) put restrictions on availment of cenvat credit in respect of apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both in respect of (i) land, building or any other civil structures; (ii) telecommunication towers; and (iii) pipelines laid outside the factory premises. 6.10 The applicant in their submission has claimed that the infrastructure (supra) provided by them is different from Telecommunication Tower . Thus we are not deciding any wider question but restricting our conclusion to the facts and circumstances which was filed for our consideration in the application. So we have to know about the chrematistics and use of Telecommunication Tower . The details of the same are as under: a. Teleco

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ve, we observe that: a. The poles erected by the applicant are used for stringing of fibres b. Height of the poles varies from 7m to 9m. c. The poles do not contain antennas electronic communications equipment. d. There is no cell site where antennae and electronic communications equipment are placed. e. The infrastructure was affixed to the earth in such a way that without any damage to the entire infrastructure it can be moved to another place for use 6.12 Telecommunication Tower is not defined in CGST/ SGST Act, 2017. So to know what is Telecommunication Tower , we have gone through the Hon ble Gujarat High Court judgment dated 24/25.04.2013 in the case of GTL Infrastructure Ltd. Vs State of Gujarat (Through Secretary). = 2013 (4) TMI 904 – GUJARAT HIGH COURT. The relevant portion of the same is reproduce below: 5. The petitioner is a company registered under the Companies Act. The petitioner is engaged in providing infrastructure for Mobile Telecommunication Services. The petitione

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Telecommunications Ministry of Communications & IT, Government of India and titled as Mobile Communication Radio Waves & Safety, in which it is stated as under : Cellular Phone tower & waves Mobile phone base stations are radio transmitter with antennas mounted on either transmission towers or roof tops on buildings. The antennas need to be located at optimum locations and heights so they can adequately cover the area. Antenna position usually range in height from 50-200 feet. When a person makes a cell phone call, a signal is sent from the mobile phone s antenna to the nearest base station antenna. The base station responds to this signal by assigning it an available radio frequency channel. RF waves transfer the information to the base station. The voice/data signals are then sent to a switching center, which transfers the call to its destination. The voice signals are then relayed back and forth during the call. In India mobile phones operate in the frequency range of :

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is reduced to ¼ when the distance from the antenna double and to 1/9 when the distance is three times. 6.13 The hon ble Supreme Court of India in civil appeal nos.5360 -5363 of 2013 in the case of Ahmadabad Municipal Corporation versus GTL Infrastructure Ltd. & ors. = 2016 (12) TMI 1092 – SUPREME COURT also confirm the fact of hon'ble Gujarat High Court (supra). The relevant portion of the same is reproduce below: 22. We may now see what a Mobile Tower is and consists of. In technical terms a Mobile Tower is called a Base Transceiver Station. It involves the making of structure consisting of the following: a. A pre-fabricated shelter made of insulating PUF material made of fibres. b. Electronic Panel. c. Base Transceiver Station (BTS) and other radio transmission and reception equipment. d. A diesel generator set. e. Six poles of 6 to 9 meters length each made of hollow steel galvanized pipes. 6.14 In light of above we observe that the telecommunication towers are used f

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mposition of the antenna themselves and could not be construed as components or parts thereof. We further observed that only telecom equipments like BTS transmitters which are used in providing telecom services alone would be liable to input credit. The towers and PFB are in the nature of immovable goods hence, ITC not admissible on the same. 6.16 We find that immovable property has not been defined in CGST/SGST Act, 2017. So we have. to go through the Section 3 of General Clauses Act, 1897, the relevant portion of the same is reproduce below: (26) immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth; (36) movable property shall mean property of every description, except immovable property; 6.17 We also find that the hon'ble High Court of Bombay in Central Excise Appeal no. 73 & 119 of 2012 in the case of Bharti Airtel = 2014 (9) TMI 38 – BOMBAY HIGH COURT, decided the c

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e earth and the same will be treated as immovable property. 6.20 Thus we observe that telecommunication tower does not come within the purview of goods in as much as the same being a immovable property and the ITC on telecommunication tower is not admissible as per explanation to Section 17(6) of the CGST/SGST Act, 2017. 6.21 In view of the above discussion we observe that the infrastructure provided by the applicant is different from Telecommunication Tower in as much as (i) the in infrastructure provided by the applicant does not contain in a. pre-fabricated shelter made of insulating PUF material made of fibres; b. electronic Panel; c. Base Transceiver Station (BTS) and other radio transmission and reception equipment ; d. diesel generator set; (ii) the infrastructure is not a immovable property as it can be easily be moved to another place for use without any damage to the entire infrastructure. Therefore the infrastructure provided by the applicant is to be construed as movable pr

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2018 (10) TMI 457 – CESTAT NEW DELHI – TMI – Dutiability/marketibility – intermediate products in manufacture for the exempted goods – suppression of facts – Held that:- It is the fact that the plastic jars which are manufactured by them is branded with Suruchi brand and cannot have independent marketability of itself – in various case laws also it is clearly held that it intermediate product do not have the marketability then the same case be subjected to excise duty.
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As per the case records there does not appear to be a deliberate intention by appellant to suppress any material facts from the Department. They were under the bona fide belief that they do not come under the purview of Central Excise as their turnover is less than the exemption limit as specified under the Notification 8/2003.
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On account of the marketability, limitation and the limit of small exemption Notification No.8/2003, the appellant is entitled for the benefit as claimed by them, and therefore, the i

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nufactured in their own plant with their own brand Suruchi used to be utilized for packing of the final product. It is the contention of the Revenue that since the plastic bottles have been manufactured by them, which is dutiable, and accordingly the duty should be discharged by the appellant on such products manufactured and used for packing of the final product. 3. Against this background, we have heard ld. Advocate, who has submitted as under: (1)During the course of visit by the Preventive Officer of Central Excise Division Chhindwara, it was noticed that the appellant had manufactured Plastic Bottles on automatic machine in their factory/premises situated at Plot No. 41,42,46 & 47, Food Parte, Borgoan, Sausar, District-Chhindwara(MP). It was also noticed that the notice were manufacturing various types of Pickles and species separately in their plant on automatic machines. Such pickles and spices manufactured by them were then packed in different quantity in various sizes of p

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d sold by them. 4. Ld. AR on the other hand, states that since they had manufactured the goods which are exempt, and therefore, they should discharged the duty on the intermediate goods which is emerging out of which is dutiable under the Central Excise Tariff Act. It was also impressed upon that it is the department, who after inquiry found that such a process being taken by the appellant without informing the Department, and therefore, it is the mala fide on their part. Therefore, they have deliberately with full intention, suppressed the material fact from the Department. 5. We have heard the rival contention and pursued the appeal records. The issue involved in this case is regarding the dutiability of intermediate products in manufacture for the exempted goods. It is the fact that the plastic jars which are manufactured by them is branded with Suruchi brand and cannot have independent marketability of itself. We have also perused various case laws wherein it is clearly held that i

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2018 (11) TMI 1074 – DELHI HIGH COURT – TMI – Summon issued to answer the queries of the Director General of Goods and Services Tax (GST) Intelligence – the scope of investigation which was confined to allegations of evasion of service tax liability is sought to be expanded – Held that:- In view of the statement made, the GAIL Gas Ltd. shall intimate in advance – within two weeks, the officer/officers concerned who are familiar with the records in connection with the inquiry pertaining to the contracts with M/s Avinash EM Projects Pvt. Ltd. as according to its previous replies, no transactions had been entered into with the other concerns. Upon receipt of information with respect to such officers, the Directorate General of GST Intelligenc

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HAT AND MR. A. K. CHAWLA JJ. Petitioner Through: Mr. N.L. Ganapathi, Adv. Respondents Through: Mr. Satish Aggarwala, Sr. Standing Counsel, Indirect Taxes, Deptt. of Revenue. O R D E R The petitioner s grievance is two-fold: first that very senior officers of the petitioner such as the Chief Operating Officer and the Deputy General Manager, have been summoned to answer the queries of the Director General of Goods and Services Tax (GST) Intelligence. Secondly, that the scope of investigation which was confined to allegations of evasion of service tax liability by M/s Avinash EM Projects Pvt. Ltd.; AEPL Infrastructure Pvt. Ltd.; Bhartiya Infra and M/s TJAPL, for the period 2012-13 onwards, is now sought to be expanded inasmuch as by the summon

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GST Intelligence. In view of the statement made, the GAIL Gas Ltd. shall intimate in advance – within two weeks, the officer/officers concerned who are familiar with the records in connection with the inquiry pertaining to the contracts with M/s Avinash EM Projects Pvt. Ltd. as according to its previous replies, no transactions had been entered into with the other concerns. Upon receipt of information with respect to such officers, the Directorate General of GST Intelligence shall fix a convenient date, time and venue for the presence of such officers, who may be best to reply to the queries, in connection with the investigation being carried out. As regards the other grievance, the summons issued on 26.04.2018 do indicate that now the sco

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2018 (11) TMI 1079 – CESTAT CHENNAI – TMI – CENVAT Credit – certain goods purchased which were not used in the manufacture of their final products – Held that:- From perusal of the Show Cause Notice, it is found that there is no allegation of suppression or fraud or misstatement. In fact, the only strongest allegation against the appellant is that the fact of availing ineligible credit came to the knowledge of the Department only after the verification conducted by the internal audit wing of the Department on 03.01.2013 and 04.01.2013, which had been duly reciprocated in good faith by the appellant by accepting and filing its December 2012 ER-1 return which remains undisputed.
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Extended period of limitation – Held that:- The appellant had reversed the unutilized CENVAT Credit since it is nowhere disputed, either in the Show Cause Notice or in the Order-in-Original or in the impugned Order as to the availability of excess CENVAT Credit – invocation of extended period not justified

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t appellant had included quantity of readymade shirts which were already cleared prior to the imposition of duty (with effect from 01.03.2011) on the same to their various sales points lying in stock; that on being pointed out about the irregular availment, the assessee had debited ₹ 16,02,965/- along with Education Cess and SHE Cess on 30.01.2013 which was duly reflected in their December 2012 ER-1 return; that interest was not paid on the excess credit availed and that for the above reasons it appeared to the Department that provisions of Rule 3 of CENVAT Credit Rules (CCR), 2004 was violated, etc. 3. The above Show Cause Notice culminated in the Order-in-Original dt. 21.12.2016 wherein the adjudicating authority has demanded and appropriated the duty in addition to which he has also demanded interest under Section 11AA of the Central Excise Act and penalty under Section 11AC ibid. Having not met with success in its first appeal before the first appellate authority, the appella

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d of limitation was bad and further relies on the jurisdictional High Court decisions in the case of : Commissioner of C. Ex., Puducherry-I Vs. CESTAT, Chennai [2017 (346) E.L.T. 80 (Mad.)]; and Commissioner of C. Ex., Madurai Vs. Strategic Engineering (P) Ltd. [2014 (310) E.L.T. 509 (Mad.)] to point out that when the excess CENVAT Credit was availed erroneously, which was subsequently reversed, having not utilized the same, no interest or penalty is leviable. 6. Per contra, the Ld. DR contends that there is no finding with regard to the excess CENVAT Credit having not been utilized by the assessee and therefore, submits that the interest as well as the penalty which are mandatory, are required to be sustained. 7. I have considered the rival contentions and also gone through the various decisions placed on record. I find from perusal of the Show Cause Notice that there is no allegation of suppression or fraud or misstatement. In fact, the only strongest allegation against the appellant

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to be time barred in the six appeals referred to above, we do not find any error in the order of the Tribunal and its conclusions in arriving at the said conclusion. The normal period of limitation for issuing a show cause notice under Section 28 is one year from the due date and unless there is suppression of facts or misstatement, the extended period of limitation will not be attracted. In the present case, the show cause notice, dated 18-3-2003 in respect of the earlier consignments, admittedly, is beyond one year. Such notice beyond the normal period of limitation could have been issued only if there have been suppression of facts. If, from the show cause notice, dated 16-4-2002 and the report of the EPTRI and NMDC in respect of the samples from the consignments dated 24-12-2001 and 24-1-2002, the Revenue was already in the know of the relevant facts, it is difficult to understand as to how the Revenue could have the benefit of anything but the normal‛ period of limitation to

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2018 (11) TMI 1461 – CESTAT MUMBAI – TMI – 100% EOU – refund of accumulated CENVAT Credit – rejection on the ground that the credit particulars in respect of the input services were reflected in the ST-3 Returns for the period March 2012, which is after the date of export – Held that:- In the Cenvat regime, there is no specific requirement regarding maintenance of statutory records in the prescribed registers, which were hitherto provided under erstwhile Central Excise Rules, 1944 and the MODVAT statute. Since the appellant contended that the disputed credit was availed during the period April to June 2011 for export of service effected during such quarter, the benefit of refund in terms of Rule 5 cannot be denied on mere non-reflection of the credit particulars in the ST-3 Returns for such relevant period.
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redit in respect of various input services used / utilized for providing such output service. Since the appellant exports its entire output service, there was no scope for utilization of CENVAT Credit for payment of service tax on the output service. Therefore, during the disputed period, the appellant had filed refund application under Rule 5 of the Cenvat Credit Rules, 2004, claiming refund of accumulated CENVAT Credit in respect of input services. Refund benefit claimed for the period April 2011 to June 2011 was denied by the authorities below, on the ground that the credit particulars in respect of the input services were reflected in the ST-3 Returns for the period March 2012, which is after the date of export. 2. Learned Advocate appearing for the appellant submits that the Cenvat particulars on the input services reflected in ST-3 Returns for the month of March 2012, were in fact relatable to the period prior to June 2011. However, he submits that due to inadvertent, instead of

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learned Commissioner (Appeals) has upheld the adjudication order on the ground that the input credit has not been reflected in the relevant ST-3 Returns filed for the period April to June 2011. However, the appellant contended that due to inadvertence, the credit particulars were not reflected during such relevant period but the same were duly entered in the accounting records maintained by the appellant. In the Cenvat regime, there is no specific requirement regarding maintenance of statutory records in the prescribed registers, which were hitherto provided under erstwhile Central Excise Rules, 1944 and the MODVAT statute. Since the appellant contended that the disputed credit was availed during the period April to June 2011 for export of service effected during such quarter, the benefit of refund in terms of Rule 5 cannot be denied on mere non-reflection of the credit particulars in the ST-3 Returns for such relevant period. Further, I find that the appellant had not produced any rec

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2018 (12) TMI 590 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – TMI – Requirement of registration – applicability of the GST Act – receipt of fees from members by the Lions Club of Poona, Kothrud – supply of goods/services or not – Held that:- This subscription is for the facilities or benefits that would be provided. The definition requires that the club, association, society, or any such body has to provide facilities or benefits to its members. And these facilities or benefits are to be provided for a subscription or any other consideration – In the facts of the instant case, the amounts collected as ‘fees’ from the members are not for the purposes of making any ‘supply’. All are aware that the definition of ‘supply’ under the provisions of the GST Act is an inclusive one. However, it is one for ‘supply’ and the ‘supply’ is of goods or services.
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In the present case, the club is not formed to provide any facilities or benefits to its members. The fees collected are used for s

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rmed to build and empower or impart skills in leadership such that people would get themselves enrolled for acquiring the skills. By no means could it be said that the members pay fees to acquire services of training in leadership development.
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Ruling:- No registration is required. – GST-ARA-33/2018-19/B-100 Dated:- 28-8-2018 – SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER PROCEEDINGS RULING (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 LIONS CLUB OF POONA KOTHRUD, the applicant, seeking an advance ruling in respect of the following ISSUE. Since the amount collected by individual Lions clubs and Lions District is for convenience of Lion members and pooled together only for paying Meeting expe

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s in 210 countries engaged in humanitarian and charitable services. 2) These services are executed through various districts comprising of many Clubs. 3) In order to facilitate the meetings and administration fees are collected from members. 4) These amounts are then used for administration and meetings. 5) In some cases the amount so collected is likely to exceed ₹ 20 lacs, being the threshold for registration under GST Act, 2017. Clarification as regards to Nature of are three administrative layers: 1. Clubs in Lions 2.District of Lions:-Comprises Of many Clubs, normally 100 & above where district policies for the clubs are formulated. 3.Cabinet of District:- Comprises Of various member from Lion fraternity, who are head of various committee that conduct social activities. Receipts of Lions Club cab be broadly divided into following categories- 1) Club receiving Fees from its members. These can be purely said to be collected to defray its expenditure on meetings and communi

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nition of persons is provided u/s 2(84) of the CGST Act 2017. As per said definition, there is no deeming fiction to treat association and members as different persons. Hence the key condition to tax a transaction u/s that supplier and recipient must be different, is not satisfied. Hence the transaction of providing services by an association to its members should not be taxed u/s 7(1)(a). Earlier in Service Tax regime Court in several cases held that in absence of deeming fiction, treating club/association & its members as distinct person, service tax shall not be payable. Thereafter to nullify the above decision w. e. f. clause (a) to Explanation 3 to Sec. 65B provided that an unincorporated association or body of persons, as the case may be and a member thereof shall be treated as distinct persons. Such deeming fiction is not provided under the current GST regime. WRITTEN SUBMISSION MADE BY applicant at the time of hearing on 08/08/2018 ISSUE UNDER CONSIDERATION:- Lion Clubs ar

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during sudden disasters such as the recent Malin, rune, landslide, helping over 50,000 people see again or taking over the education of abandoned families, Lions have created a huge impact on Indian society. The Lions Clubs International Foundation has provided US$ 901 million in grants globally of which India is the recipient of USS 84 million for 1535 projects. Through programs like Sight-First, Lions Quest and Opening Eyes, the Foundation provides essential grant funding to Lions Clubs so they can carry out ambitious projects. Currently the three major projects running in India are Measles & Rubella, Diabetes and Sight First. India is the home to the most diverse of cultures, but each one of them has one thing in common- acceptability. Naturally, Lions India has been successful in building symbiotic growth systems among Lions across the country. As a result, strenuous activities such as raising awareness, organising camps, fundraising etc. have become simpler. • Membership

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stitution & By-Laws, it Clearly indicates that the administration and working of the Association and implementation of policies are established and are implemented on the concept of mutuality. Each member is equally represented with individual identity and status thereby, establishing the fact of complete transparency i.e. the identity between the contributors and the participators of the Association and Foundation. Facts and Background – 1. The International Association of Lions Clubs also known as Lions Clubs International (LCI) is a non-profit making organization registered in Ilions, United States of America (USA) and has many members all over the globe. 2. Lions Club International Foundation (LCIF), charitable grant making arm of LCI is also a non-profit making charity organization registered in the State of Ilinois USA. 3. LCI pursues its charitable objective through LCIF in multifarious ways by building / running hospitals, clinics, schools, playgrounds, etc. other health ca

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t on principle of mutuality:- The three conditions stipulated by the Judicial Committee in the case of English and Scottish Joint Co-operative Wholesale Society Ltd. v. Commr. Of Agrl. I.T. (1948) 16 ITR 270 (PC) = 1948 (4) TMI 2 – PRIVY COUNCIL; existence of which establishes the doctrine of mutuality. They are as follows (page 559): (1) the identity of the contributors to the fund and the recipients from the fund, (2) the treatment of the company, though incorporated, as a mere entity for the convenience of the members and policyholders, in other words as an instrument obedient to their mandate, and (3) the impossibility that contributors should derive profits from contributions made by themselves to a fund which could only be expended or returned to themselves. In the case of CIT vs. Bankimpur Club Ltd. 226 ITR 97 = 1997 (5) TMI 392 – SUPREME COURT also the Hon ble Court discussed the principles of mutuality and at page 103 held as follows: It should be noticed that in the case of a

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the contributors to the common fund should willy-nilly distribute the surplus amongst themselves : it is enough if they have a right of disposal over the surplus, and in exercise of that right they may agree that on winding up the surplus will be transferred to a similar association or used for some charitable objects. SUPPLY:- As per Sec. 9 of the Central Goods & Services Tax ( CGST ) Act, 2017, levy of tax is on an event called supply , Scope of supply is stated u/s 7. Relevant portion of said provision is reproduced below for ready reference: Sec. 7. (1) For the purposes of this Act, the expression supply includes- (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; (c) the activities specified in Schedule I, made or agreed to be made without a consideration To tax the transaction between an association

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ties or benefits to its members; From the above definition it is Clear that for getting satisfied under the term business , there must be facilities or benefits to its members. In case of Lions Clubs, as we have discussed above, the members of the club come together only for social cause and there is neither furtherance of any business benefits or facilities to the members. From the above it can be interpreted that, to satisfy the definition of Business , there must be some benefit / facility to its members. In our case there is no benefit facility to the members of the lions club. Further it can be seen whether the supply of services between club and its members is for a consideration. CONSIDERATION:- It is worthwhile to refer to the definition of supplier as provided u/s 2(105) & recipient as provided u/s 2(93). Both the definitions are reproduced below: Sec. 2(105) supplier in relation to any goods or services or both, shall mean the person supplying the said goods or services o

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cipient is the person who pays the consideration to the supplier . Hence two different persons have been envisaged in the law to tax a transaction as a supply made for a consideration. Now the question remains that whether the club and its members can be treated as different persons? Recent Circular:- GST is levied on intra-State and inter-State supply of goods and services. According to section 7 of CGST Act, 2017, the expression supply includes 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, and includes activities specified in Schedule II to the CGST Act, 2017, definition of business in section 2(17) of CGST Act states that business includes provision by a club, association, society, or any such body (for a subscription or any other consideration) oi the facilities or benefits to its members. The term person

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sociation or body of persons to a member thereof for cash, deferred payment or other valuable consideration. Following observations may be noted in reference to the above circular: a. Above circular has not considered the definition of supplier as well as recipient before taxing a transaction u/s 7(1)(a). There must be two different persons to tax a transaction under said provision. Merely because an association of person has been included as person u/s 2(84) does not imply that members of such association are different persons. b. Circular has invoked the concept of deemed sale as provided under Article 366(29A) of the Constitution. It must be noted that clause (e) of said Article only enables to tax supply of goods by an association to its members as deemed sale. It does not enable to tax supply of service as a deemed service. Even para 7 of Schedule II only covers supply of goods by any unincorporated association. It does not cover supply of services. Unless provision similar to tha

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er an association and its members are related person. Explanation u/s 15 of CGST Act, 2017 defines related person. Said explanation is also reproduced below for ready reference: Explanation.- For the purposes of this Act,- (a) persons shall be deemed to be related persons if- (i) such persons are officers or directors of one another s businesses; (ii) such persons are legally recognised partners in business; (iii) 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 o

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u/s 2(84) of the CGST Act, 2017. As per said definition, there is no deeming fiction to treat association and members as different persons. Hence the key condition to tax a transaction u/s. 7(1)(a), that supplier and recipient must be different, is not satisfied. Hence the transaction of providing services by an association to its members should not be taxed u/s 7(1) (a). Earlier in Service Tax regime Court in several cases held that in absence of deeming fiction, treating club/association & its members as distinct person, service tax shall not be payable. Thereafter to nullify the above decision w. e. f. 01.06.2012 clause (a) to Explanation 3 to Sec. 65B provided that an unincorporated association or body of persons, as the cast may be and a member thereof shall be treated as distinct persons. Such deeming fiction is not provided under the current GST regime. Further, the said transaction between the club and its members also does not fits into the definition of Supply owing to th

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ing Meeting expenses & communication expenses & the same is deposited in a Single bank account. As there is no furtherance of business in this activity and neither any services are rendered nor any goods are being traded. Whether registration is required? Legal position upto from 01-07-12 to 30-06-17: There seems to be a fact that the club and members are not distinct persons, levy of service tax on such clubs/ associations may not be warranted. Principally, there should be existence of two sides/entities for having transaction as against consideration. in u members club, were is no question of two sides – Members and club, both are same entity. With effect from 1-7-2012, the word service has also been defined under Section 65B (44) of the Finance Act, 1994. Explanation 3a) to said Section states that for the purposes of this Chapter, an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons. Therefore, dee

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hange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business. Therefore, there is no force in the submission of the Applicant that there is no furtherance of business in the activity and neither any services are rendered nor any goods are being traded. Consequentially, a prayer that there is no registration is required, has no leverage and legal backing. Para No. 16 Statement containing the applicant s interpretation of law and or facts, as the case may be, in respect of the aforesaid questions. As the activity is more appropriately covered, as explained above, under scope of supply , Applicant s plea is not acceptable as the same is not supported by the statutory provision. Also the term person is defined in section 2(84) of the CGST Act, 2017 to include an association of persons or a body of individuals, whether incorporated or not, in India or outside India. This definition also is sufficient enough to c

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ision, mission, procedure for membership, their mode various activities etc. Hence no comments are offered. Para No. 4: The said set of document was perused by this office. The Applicant has relied upon the Circular No. 35/9/2018-GST dated 05-03-2018, The circular is applicable to Joint Venture- taxable services provided by the members of the Joint Venture (JV) to the JV and vice versa and inter se between the members of the JV . The relevant portion of the circular is reproduced below: GST is levied on intra-State and inter-State supply of goods and services. According to section 7 of CGST Act, 2017, the expression supply includes 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, and includes activities specified in Schedule II to the CGST Act, 2017. The definition of business in section 2(17) of CGST Act states

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is irrelevant and inapplicable in the present situation. Hence the instructions in the said circular claimed to be applicable to them by applicant, is incorrect. Para No. 5 – It is also submitted that the Applicant have nowhere expressly submitted and committed that they are not engaged in the activities which may amount to (facilities or benefits to its members. This is very much essential to decide whether the Applicant falls in/out of purview of the definition under business , as envisaged under section 2(17) of CGST Act, 2017. On the contrary, the written submission States that the Seminars and Institutes for Leadership Development and other forums only for Lion members and non lions are not allowed to take part. Thus, funds received from members are utilized for mutual benefit of members / last para of page no. 2 refers). Para No. 6 – Therefore, there is no force in the submission of the Applicant that there is no furtherance of business in the activity and neither any services a

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e District Governor of the club, duly authorized appeared and stated that they are not providing any facilities to their members and made written submissions. Jurisdictional Officer, Sh. P.C. Gotkhinde, Asstt. Commr, Cental Tax, (DIV -IV) Pune-II CGST COMMM RATE, Pune appeared and made written submissions. 05. OBSERVATIONS We have gone through the facts of the case. The issue before us is the requirement of registration and the applicability of the GST Act quo the receipt of fees from members by the Lions Club of Poona, Kothrud the applicant. We reproduce herein the purpose and activities as seen in their Constitution and by laws as below: Article II- Purposes: The purpose of this club shall be: a) To create and foster a spirit of understanding among the peoples of the world. b) To promote the principles of good government and good citizenship. c) To take an active interest in the civic, cultural, social and moral welfare of the community. d) To unite the members in the bonds of friend

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s. As per the Standard District constitution of the clubs, the fallowing purposes are, Article II – Purposes, The purposes of this district shall be: a) To provide an administrative structure with which to advance the Purposes of Lions Clubs International in this district. b) To create and foster a spirit of understanding among the people of the world. c) To promote the principles of good government and good citizenship. d) To take an active interest in the civic, cultural, social and moral welfare of the community. e) To unite the members in the bonds of friendship, good fellowship and mutual understanding. f) To provide a forum for the open discussion of all matters of public interest; provided, however, that partisan politics and sectarian religion shall not be debated by club members. g) To encourage service-minded people to serve their community without personal financial reward, and to encourage efficiency and promote high ethical standards in commerce, industry, professions, pub

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om the first day of the second month following the date of its organization, as the case may be. This tax shall be collected from the clubs by, and be remitted to, the cabinet secretary or cabinet treasurer (or secretary-treasurer), who shall deposit the monies so collected in a special account in a bank or other depository chosen by the district governor. The fund so collected shall be used exclusively for defraying expenses of district conventions and shall be expended only by district checks drawn and signed by the cabinet treasurer and countersigned by the district governor. Section 2. REMAINING FUNDS. In any fiscal year, any balance remaining in the convention fund after payment of all convention administrative expenses in that year shall remain in said convention fund and become available for future convention expenses and be treated as income in any fiscal year in which expended or otherwise budgeted for payment of such expenses. Section 3, FEE COLLECTION. Such fee as the distri

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the first days of July and January, respectively. Said tax shall be paid to the cabinet secretary or cabinet treasurer (or secretary-treasurer), by each club in the district, except newly chartered and reorganized clubs, which shall collect and pay said tax on a pro-rata basis from the first day of the second month following the date of their organization or reorganization, as the case may be. Said tax shall be disbursed only for administrative expenses of the district and only upon approval by the district governor s cabinet. Disbursement therefrom shall be by checks drawn and signed by the cabinet treasurer and countersigned by the district governor. Section 2. REMAINING FUNDS. In any fiscal year, any balance remaining in the district administrative fund after payment of all district administrative expenses in that year shall remain in said district administrative fund and become available for future district administrative expenses and be treated as income in any fiscal year in whic

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ese purpose of receipt of subscription fees and the utilization thereof has to be interpreted in terms of the provisions of the GST Act. Does the applicant club engage in any form of supply of goods or services to its members? Whether the collection of fees from the members is for any supply by the Club to the members? We have seen the earlier submission where the applicant has extensively argued against the applicability of the provisions of the GST Act. A look at the above along with the earlier submission makes us observe that the question put forth for our consideration would have to be answered in the negative. We proceed to record our reasons. We restrict our discussion herein below to the activities of the applicant in relation to its members qua the receipt of fees from them. We are not called upon to discuss the activities of the applicant in general. The definition of business for the purposes of the GST Act reads thus- Section 2 -Definitions (17) business includes- (a) &hell

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ch club; and ; [this clause is substituted for the earlier clause by the Central Goods and Services Tax (Amendment) Act, 2018 (No. 31 of 2018] (i) any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities; We see that clause (e) speaks about subscription. But this subscription is for the facilities or benefits that would be provided. The definition requires that the club, association, society, or any such body has to provide facilities or benefits to its members. And these facilities or benefits are to be provided for a subscription or any other consideration. In the facts of the instant case, the amounts collected as fees from the members are not for the purposes of making any supply . All are aware that the definition of supply under the provisions of the GST Act is an inclusive one. However, it is one for supply and the supply is of goods or services. The definition of supplier under se

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we are not on the activities of the applicant club in general but there should be no dispute that applicant club does not supply any facilities or benefits in terms of goods or services to its members. At the cost of repetition, we reproduce herein the clauses relating to the use of funds- i) Meeting Expenses ii) Printing of Circulars iii) Stationery iv) Postage v) Greetings vi) Fees payable to International office vii) Fees payable to Multiple office. As can be seen, the club is not formed to provide any supply of goods or services to its members qua the fees received from them. There being no supply qua the fees received, there arises no occasion for us to visit the definition of Supply under the GST Act. The applicant club as per the facts put up before us does not render any Supply for the purposes of the CST Act. Having observed so, we refrain from any further discussion. We find that the Departmental officer holds a different opinion. We would want to deal with one aspect discus

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Goods and Services Tax – Started By: – viraf deboo – Dated:- 27-8-2018 Last Replied Date:- 29-8-2018 – We are manufacturer exporter registered under GST. We are exporting our goods to various countries. We want to know that, whether Application for Refund of ITC on Export of Goods & Services without payment of ITC under LUT as per Section 54(3) (i) and Rule 89(4) of CGST Act 2017 is compulsory / mandatory?? We have blocked / carry forward proportionate ITC in Electronic Credit Ledger as per formula given in Rule 89(4) of CGST Rules & to be applied for ITC refund in GST RFD-01A form on common portal. Kindly advice whether it is mandatory or optional ?? – Reply By Ramaswamy S – The Reply = Export can be made either with payment of IG

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l be granted as per the following formula – Refund Amount = (Turnover of zero-rated supply of goods + Turnover of zero-rated supply of services) x Net ITC ÷Adjusted Total Turnover Sir kindly advice that, whether it is compulsory / mandatory that we have to block / carry forward ITC in Electronic Credit Ledger as per above formula against zero rated goods & the same ITC will be applied for refund in GST RFD-01A FORM on common portal ?? – Reply By Ramaswamy S – The Reply = This is similar to rule 5 of erstwhile Cenvat Credit Rules. The refund of tax paid on inputs for exports without payment of IGST under LUT or bond is allowed as per the formula. The formula is the same as that of Notification 27/2012 CE(NT) issued under rule 5 of

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aneshan Kalyani – The Reply = Yes, indeed. – Reply By Yash Jain – The Reply = Sir, When we apply for refund U/s 54(3), the refund amount is automatically reversed in electronic credit ledger , which again depends on balance available as on date(I.e the balance on date when refund is filed)and not the date on which export is done/gaye 3b is filed. Sir, now from your question I interpretate that you will export zero rated and claim ITC refund, by keeping in ecl the amount of refund (as per formula). In this case I would request you to please evaluate the option of paying igst (by input tax reversal) and claim refund, as this is least time consuming option as compared to refund of Unutilized ITC. Regards – Reply By Ramaswamy S – The Reply = Se

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 27-8-2018 Last Replied Date:- 27-8-2018 – Advance rulings are important in any tax law as it provides a forum for clarification and possible interpretation of statutory provisions. Moreover, it conveys the legislative intention from the revenue s view point. Provisions of advance ruling are contained in section 95 to 106 of CGST Act, 2017 and State / UT GST enactment. Rules 103 to 107 of also provide for forms, manner, certification etc. The Authority for Advance Rulings (AAR) have been set up in all the states and we have now over 100 advance rulings on different issues already pronounced by various State Authorities. The appellate mechanism for filing appeals against AAR rulings is also in place and we have about ten such appellate orders already pronounced. One major issue presently being faced is about multiple authorities (equal to number of States), each pronouncing a ruling of its own even if the matter is covere

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act involved only a minor fraction of earth work and therefore, such composite supply of works contract service for maintaining railway tracks would be taxable at the rate of 18% GST. Further, such service could be classifiable under Heading No. 995429 under GST. [In Re Sreepati Ranjan Gope & Sons (2018) 5 TMI 370 (AAR-West Bengal); ] Advance Ruling on liquidated damages In the instant case, based on agreement entered into by applicant, Maharashtra State Power Generation Company Ltd. with BHEL for purpose of erection, testing and commissioning of main plant package, there were no such clauses in agreement as would tantamount to reducing contract price or contract value of supplies of goods or services or both as made by Contractor on account of delay in delivery of manufactured goods. In fact, levy of liquidated damages had been specifically identified as an independent levy. The contract price variation clause in impugned agreement did not provide for variation on account of liqui

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ght bills. Applicant argued that it is not a goods transport agency (GTA) for applicability of Notification No. 9/2017 – IT (Rate) dated 28/06/2017, which, granted exemption on transportation services provided by an entity other than GTA. As applicant is not a GTA, supply of transportation services is exempt from GST vide the exemption notification. It has been ruled that the applicant supplies works contract service, of which freight and transportation is merely a component of overall services and not a separate and independent activity and GST is to be paid @ 18% on the entire value of the composite supply, including supply of materials, freight and transportation, erection, commissioning etc. It was also held that reference to a notification under the IGST Act should be contract specific, where an inter-state supply is taking place. In this application general nature of a supply is being dealt with rather than the place of any particular supply. Moreover, West Bengal Authority for A

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2018 (9) TMI 431 – PUNJAB AND HARYANA HIGH COURT – 2018 (16) G. S. T. L. 530 (P&H.) – Levy of GST/Service Tax – fee paid for award of license for sale of liquor – respondent submitted that he has received instructions to the State that in 26th meeting of GST Council held on 10.03.2018 it has been decided that no GST/Service Tax is leviable on the fee paid for grant of license sale of liquor for human consumption – Held that:- Keeping in view the statement made by learned counsel for respondents No.1 to 3, prayer made in the present petition has been rendered infructuous and the same is disposed of accordingly. – CWP No.12390 of 2017 (O&M) Dated:- 27-8-2018 – MR. RAJESH BINDAL AND MR. AMIT RAWAL, JJ. For The Petitioners : Mr. Deepak Gupta,

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2018 (9) TMI 1570 – CESTAT CHENNAI – TMI – Valuation – inclusion of Inspection Charges, Service charges and Freight Charges in assessable value – appellant have collected separately these charges from their buyers through debit notes – whether pre-delivery inspection charges are includible in the assessable value? – Held that:- The said issue was settled by the Hon’ble Supreme Court in TVS Motors Co. Ltd. [2015 (12) TMI 874 – SUPREME COURT], where it was held that PDI charges and free ASS charges would not be included in the assessable value under Section 4 of the Act for the purposes of paying excise duty – demand set aside.
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Whether the service charges related to transport arrangement through rail is includible in assessable value? – Held that:- Since the said charges are collected after the place of removal which is the factory gate. On the very basis, it can be definitely held that the service charges collected for cargo handling on the instruction of the contractor cannot be

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with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, interest and also imposed penalties. In appeal, Commissioner (Appeals) set aside the demand in respect of freight charges but however confirmed the demand in respect of service charges as well as pre-inspection delivery charges. Hence this appeal. 2. On behalf of the appellant, ld. counsel Shri Akhil Suresh submitted that the issue whether pre-delivery inspection charges are to be included to arrive at the assessable value is settled by the decision of the Hon ble Supreme Court in the case of Commissioner of Central Excise, Mysore Vs. TVS Motors Co. Ltd. – 2016 (331) ELT 3 (SC). 2.1 With regard to the service charges, he submitted that these services are related to arrangement of railway transport and hence they are not includible in the assessable value. For the same reason, the Commissioner (Appeals) has excluded the railway freight. These are service charges which ar

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is includible in the assessable value. He referred to Section 4(3)(d) of Central Excise Act, 1944 and submitted that transaction value means the price actually paid or payable for the goods and it would include such amounts which are in connection with the same. The charges recovered by the assessee towards handling of the cargo and thereafter transportation in the rail has enhanced the price of the goods and therefore this amount has been rightly included in the assessable value. 4. Heard both sides. 5. The foremost issue which arises for consideration is whether pre-delivery inspection charges are includible in the assessable value. The said issue was settled by the Hon ble Supreme Court in TVS Motors Co. Ltd. (supra). Following the same, we are of the view that the demand is not sustainable and set aside the same. 5.1 The second issue that arises for consideration is whether the service charges related to transport arrangement through rail. These charges have been paid to M/s. ARR

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2018 (9) TMI 1644 – AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH – 2018 (17) G. S. T. L. 690 (A. A. R. – GST), [2019] 60 G S.T.R. 31 (AAR) – Supply of goods/services – rate of GST – food, soft drinks, and snacks sold in the Snack Bar & Food Court – N/N. 46/2017- Central Tax (Rate) – Input tax credit – credit on GST paid on Movie Distributor revenue share bill, Projector Rental Bill, Advertising Bill, Security Agency Bill, and House Keeping Bill – Credit on GST paid on goods purchased for the purpose of maintenance such as Vitrified Tiles, Marble, Granite ACP Sheets, Steel Plates, TMT TOR, Bricks, Cement, Paint, Chemicals, Sanitary items like wash basin, urinal pots, and toilet accessories – Credit on GST paid on Works Contract service received from registered & unregistered Contractor for maintenance contract of building.
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Whether GST @5% can be charged on food, soft drinks, and snacks sold in the Snack Bar & Food Court in terms of Notification no.46/2017? – Held that:- The Notif

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ill the conditions laid down under Notification 46/2017-Central Tax (Rate) and corresponding notifications issued under MPGST ACT, 2017.
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Whether ITC of GST paid on Movie Distributor revenue share bill, Projector Rental Bill, Advertising Bill, Security Agency Bill, and House Keeping Bill can be claimed in full? – Held that:- The Applicant are running a business of operating a Mall with Multiplex and the services mentioned in this particular question definitely classify as input services for providing the declared services by the Applicant. Thus the said input services are attributable towards providing declared output services by the Applicant for furtherance of their business in terms of Section 16 of the GST Act, 2017 – ITC on such services shall be admissible to the Applicant subject to condition that in case any part of such input services are utilized for providing exempted outward supplies, the apportioned ITC to the extent utilized in providing exempted supplies shall be su

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med in full? – Held that:- As far as availability of ITC on Works Contract Services is concerned the law is very categorical and unambiguous. ITC on works contract services are allowable only in case when such works contract service is used as an input service for providing further output service of Works Contract – Works Contract Service which the Applicant intends to engage is for the civil work etc. for repair/renovation/maintenance of Mall building. Such service is fully consumed at the end of Applicant and it is not an input service for further provision of output service as Works Contract – ITC in respect of Works Contract Service utilised by the Applicant for repair/renovation/maintenance of Mall building shall not be available to them.
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Ruling:- The items supplied in Snack Bar and Food Court shall be chargeable to GST in terms of Notification No.11/2017-Central Tax (Rate) as amended by Notification No.46/2017-Central Tax (Rate) and corresponding notification under MPGST AC

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d on Works Contract Service received by the Applicant for maintenance contract of building shall not be available to them in terms of clause (d) of Section 17(5) of the GST Act 2017. – Order No. 12/2018 Dated:- 27-8-2018 – SHRI RAJIV AGRAWAL AND SHRI MANOJ KUMAR CHOUBEY MEMBER Present on behalf of applicant: Shree Nikhilesh Mlshra , DGM and Shree Vishal Shreevastav Tax, Consultant PROCEEDINGS (Under section 98 of the Central Goods and Services Tax Act, 2017 and Madhya Pradesh Goods and Services Tax Act, 2017) 1. The present application has been filed u/s 97 of the Central Goods & Services Tax Act, 2017 and MP Goods & Services Tax Act, 2017 (hereinafter also referred to CGST Act and MPSGT Act respectively) by M/S. JABALPUR ENTERTAINMENT COMPLEXES P. Ltd., (hereinafter also referred to as applicant), registered under the Goods & Services Tax. 2. The provisions of the CGST Act and MPGST Act are identical, except for certain provisions. Therefore, unless a specific mention of

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he Mall, which is an air-conditioned area with self-serve (dine-in) and take away arrangements; iv. SAM Retail – Operates a franchise apparel retail store within the Mall. 3.2 The Applicant is charging GST on outward supply of Goods & Services as under: i. Sale of Movie tickets – @28% (on tickets exceeding ₹ 100/-) or @18% (on tickets below ₹ 100/-); ii. Renting of Shops – @18% iii. Common Area Maintenance Charges – @18% iv. Sale of Food & Drinks – @5% (Without claiming ITC on food items and beverages purchased) 3.3 Further, the Applicant is claiming ITC of GST paid on following inward supplies of goods & services: i. Movie Distributor Share Bill – Movie Distributor is raising a bill against revenue share of sale of movie tickets of every movie; ii. Projector Rental Bills – The Applicant has taken a projector on rent for screening of movies; iii. Advertising Bill – Relating to advertisements of movies published in local Newspapers; iv. Security Agency & Hous

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eferred payment or other valuable consideration, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied, other than those located in the premises of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes having declared tariff of any unit of accommodation of Seven Thousand Five Hundred Rupees and above per unit per day or equivalent ' The Applicant is not providing residential or lodging accommodation services therefore rate of GST on food & drinks served by the Applicant is covered under the clause mentioned above. Therefore the Applicant is charging GST @5% on supply of food, drinks and & snacks from Food Court and Snack bar of Multiplex. ii. As per Section 16(1) of the CGST Act, Every registered person, shall, subject to such conditions and restrictions as may be prescribed

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ch goods or services or both are used in the course of furtherance of business. Explanation: For the purpose of clause (c) and (d), the expression construction includes re-construction renovation, additions or alterations or repairs, to the extent of capitalization, to the said immovable property; The inward supply of goods and services as mentioned in the questions 2 and 3, is for the purpose of maintenance & renovation of building and it is not capitalized in the books of accounts. These expenses are revenue in nature and hence full ITC can be claimed. 4 QUESTIONS RAISED BEFORE THE AUTHORITY: The following questions have been posed before the Authority, with reference to the activity undertaken by the Applicant: 4.1 Whether GST @5% can be charged on food, soft drinks, and snacks sold in the Snack Bar & Food Court in terms of Notification no.46/2017; 4.2 Whether ITC of GST paid on Movie Distributor revenue share bill, Projector Rental Bill, Advertising Bill, Security Agency Bi

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nt that in terms of relevant entry in the notification no.46/2017, the supply of food, drinks & snacks etc. Served by the Applicant at their own Mall, without providing lodging and accommodation services, shall attract GST @5% and no Input Tax Credit shall be available to the Applicant. 5.2 Whether ITC of GST paid on Movie Distributor Revenue Share Bill, Projector Rental Bill, Advertisement Bill, Security Agency Bill and Housekeeping Bill can be claimed in full? It has been opined that in view of the facts and circumstances about the output services being provided by the Applicant through their four Divisions, Viz. Multiplex Division, Renting Division, Maintenance Division and Food Court, it appears that ITC on aforementioned Input Services would be admissible to the Applicant because the said input supply of services appear attributable towards their outward supply of services for furtherance of their business as provided under section 16 of the CGST Act 2017. However, in case of

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lip;……… (c) works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service; (d) goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business. Explanation.-For the purposes of clauses (c) and (d), the expression construction includes re-construction, renovation, additions or alterations or repairs, to the extent of capitalisation, to the said immovable property; Thus, it is clear from clause (d) above, that no ITC shall be admissible to the Applicant in respect of goods or services or both received by a taxable person for construction/maintenance of an immovable property. In the instant case, the applicant has declared that they had used the aforementioned c

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t works contract service, therefore it appears that the applicant is not entitled to avail ITC and any ITC so availed needs to be reversed by the Applicant. 6 RECORD OF PERSONAL HEARING: Shri Shree Nikhilesh Mlshra, DGM and Shree Vishal Shreevastav, Tax Consultant, appeared on behalf of the applicant and reiterated the submissions already made in the application. Subsequent to PH, the Applicant also submitted additional write-up on 09.07.2018 giving further details in furtherance of their extant application. The same are briefed as under: A. Process description of Restaurant services: The Applicant submitted that they mainly selling popcorn, cold drinks, sandwiches, tea & coffee etc. in the Snack Bar for which they have the facility of electric fryers, grillers, warmers, dispensing machine etc. These items are served in disposable plates/glasses etc. B. For movie show exhibition they have an agreement with V N Exhibitors who charge their revenue on revenue sharing of net ticket sal

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.3 The first question reads, Whether GST @5% can be charged on food, soft drinks, and snacks sold in the Snack Bar & Food Court in terms of Notification no.46/2017- Central Tax (Rate)?'. On a careful consideration of the legal position under the GST law, we find that the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 further amended by Notification No.46/2017-Central Tax (Rate) vide entry at Serial Number 7 and corresponding notifications issued under MPGST ACT ,2017, squarely covers the services provided by the Applicant at item no.(i) which reads: 'Supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or drink, where such supply or service is for cash, deferred payment or other valuable consideration, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumpt

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39; was defined under Section 65(76)(a) of the erstwhile Finance Act 1994 as Outdoor caterer means a caterer engaged in providing service in connection with catering at place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such service . On considering the common parlance meaning of 'Outdoor Catering' and its above definition for Service Tax, we come to the conclusion that the supply of food, soft drinks and snacks sold in the Food Court or Snack Bar of the Applicant cannot by any stretch of imagination, be treated as a part of outdoor catering. In view of the facts and circumstances, we are of the view that the services provided by the Applicant in Snack Bar would be classifiable under SAC 9963 and chargeable to GST @ 5% (CGST @2.5% + SGST @2.5%), provided they fulfill the conditions laid down under Notification 46/2017-Central Tax (Rate) and corresponding notifications issued under MPGST ACT, 2017. 7.4 Now coming to the

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rsal in terms of Section 17(1) of the GST Act, 2017. To illustrate, Security Services and Housekeeping in particular shall be utilized for Snacks Bar and Food Court also and hence ITC on such services would be available partially in terms of provisions of Section 17(1) of the GST Act, 2017. 7.5 Now moving on to the third question posed before the Authority, we observe that the question is; 'Whether ITC on GST paid on goods purchased for the purpose of maintenance such as Vitrified Tiles, Marble, Granite ACP Sheets, Steel Plates, TMT TOR, Bricks, Cement, Paint, Chemicals, Sanitary items like wash basin, urinal pots, and toilet accessories can be claimed in full?'. The Applicant has been purchasing the materials under question for the purpose of utilising the same in maintenance/renovation of the Mall building. Broadly speaking, the extant law i.e. the GST Act 2017 prohibits such ITC in terms of clause (d) of Section 17(5) which reads as under: (5) Notwithstanding anything contai

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which is no doubt an immovable property. Explanation to the sub-section (5) has defined the term 'Construction' to encompass all the activities …….to the extent of capitalization to the said immovable property.' Going by the said definition it has been argued that ITC of materials used for maintenance can be claimed in full if the cost of maintenance is not capitalized. We find that capitalization of expenditure depends on the nature of expenditure and the period of benefit from such expenditure. However, the Application falls pretty short in elucidating the nature of expenditure i.e. capital or revenue. Thus we are constrained to reach any definitive conclusion on this argument. Mere statement that expenditure is not capitalized cannot come to the rescue of Applicant. Be that as it may, the eligibility of ITC does not depend on the treatment given to the expenditure. If the expenditure is revenue in nature but subsequently capitalized in the books of account

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withstanding anything contained in sub-section (1) of Section 16 and sub-section (1) of Section 18, Input tax credit shall not be available in respect of the following, namely: (a)……………. (b)……………. (c) works contract service when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service, Thus we do not find anything for us to discuss and deliberate on this issue. It is admittedly clear that Works Contract Service which the Applicant intends to engage is for the civil work etc. for repair/renovation/maintenance of Mall building. Such service is fully consumed at the end of Applicant and it is not an input service for further provision of output service as Works Contract. That being the case, we have no hitch in concluding that ITC in respect of Works Contract Service utilised by the Applicant for repair/renovation

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2018 (9) TMI 1645 – AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH – 2018 (17) G. S. T. L. 700 (A. A. R. – GST) – Works Contract – rate of tax – Applicability of clause(vi)(a) of Sr. No. 3 of table of Notification No. 11/2017-Central Tax (Rate) dated the 28th June, 2017 – liability to pay tax – whether clause(vi)(a) of Sr. No. 3 of table of Notification No. 11/2017-Central Tax (Rate) dated the 28th June, 2017 is applicable on the works contract undertaken by it? – Government entity or not?
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Whether the Applicant is a government entity or not? – Held that:- The Government of Madhya Pradesh is having full control over the applicant M/S M.P. Paschim Kshetra Vidyut Vitran Co. Ltd. and the applicant is covered under the definition of Government Entity.
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Nature of work undertaken by the applicant – Held that:- As per the Memorandum of Association of the Company, Main objects to be pursued by the Company on its incorporation is to carry on the business of purchasing, selling, importi

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completion, fitting out, repair, maintenance, renovation, or alteration, which are carried out in respect of projects under DDUGY, IPDS, ADB, SSTD, Saubhagya Yojna, FSP and all other schemes of governments as the same is undertaken for the business purpose – The composite supply of works contract as defined at Section 2 of CGST Act '2017 and MPGST Act, 2017 is treated as supply of service in terms of serial no.6, Schedule II of CGST Act '2017 and MPGST Act, 2017.
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In the instant case, the applicant had awarded work to the successful bidder tor Supply of Materials and Erection respectively. Therefore, the contract entered by the applicant is squarely falls under the works contract and falls under entry no. (ii) of S. No. 3 of the table of notification no. 11/2017 – Central Tax (Rate), Dated – 28th June 2017 as amended from time to time and corresponding notifications under and MPGST Act, 2017, the applicable rate of tax is 18% (9% under Central tax and 9% State tax).
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Ruling:-

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applicant), registered under the Goods & Services Tax. 2. The provisions of the CGST Act and MPGST Act are identical, except for certain provisions. Therefore, unless a specific mention of the dissimilar provision is made, a reference to the CGST Act would also mean a reference to the same provision under the MPGST Act. Further, henceforth, for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST or MP GST Act would be mentioned as being under the GST Act. 3. BRIEF FACTS OF THE CASE – 3.1. M/s. Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Limited (hereinafter referred to as the Applicant) is engaged in power distribution and registered with GSTN with GSTIN 23AADCM7397N1ZU. 3.2. The Applicant for the above purpose also carries supply and erection work. 3.3. The Applicant cites Applicability of clause(vi)(a) of Sr. No. 3 of table of Notification No. 11/2017-Central Tax (Rate) dated the 28th June, 2017 for applicability of rate of tax o

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holding Company M.P. Power Management Co. Ltd. is wholly owned by the Government of Madhya Pradesh. 6.3 Thus, the Government of Madhya Pradesh is having full control over MPPKVVCL and covers under the definition of Government Entity. 6.4 Further, the Government of Madhya Pradesh has entrusted the Company to carry out function of distribution of Electricity in the area of Indore and Ujjain Commissionerate vide order no. 5555/RS/4/13/2001, Bhopal, Dated – 01/07/2002 6.5 The Government of India, vide notification no. 11/2017 Central Tax (Rate), Dated 28th June 2017 notify the rate of GST applicable on supply of services. Under this notification for heading 9954 the applicable rate of GST is 9%. 6.6 The said notification has been amended time to time and till date 5 notifications is issued by the Government of India to amend for this purpose. The said amendment Notification is as follows- 1) Notification No. – 20/2017 – Central Tax (Rate), Dated – 22/08/2017. 2) Notification No. – 24/2017

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predominantly meant for self-use or the use of their employees or other persons specified in paragraph 3 of the Schedule III of the Central Goods and Services Tax Act, 2017. 6.8 Further, vide Notification No. 31/2017 – Central Tax (Rate), Dated 13/10/2017, Government of India substitute the word Central Government, State Government, Union Territory, a local authority, a Governmental Authority or a Government Entity in place of Central Government, State Government, Union Territory, a local authority or a Governmental Authority Also, vide said notification the definition of Government entity is provided, which is reproduced as under – Government Entity means an authority or a board or any other body including a society, trust, corporation, i) set up by an Act of Parliament or State Legislature; or ii) established by any Government, with 90per cent. or more participation by way of equity or control, to carry out a function entrusted by the Central Government. State Government, Union Terr

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2. The Company Madhya Pradesh Paschim Kshetra Company Ltd. (MPPKVVCL) is wholly owned subsidiary of M.P. Power Management Co. Ltd., carried out function of distribution of Electricity in the area of Indore and Ujjain Commissionerate as entrusted by the Government of Madhya Pradesh vide order no. 5555/RS/4/13/2001, Bhopal, Dated – 01/07/2002.Further, the holding Company M.P. Power Management Co. Ltd. is wholly owned by the Government of Madhya Pradesh. 7.3. The applicant had submitted the copy of Audited Annual Accounts of M/s. M.P. Power Management Co. Ltd. for F.Y. 2015-16, during the proceedings. It is evident from the schedule of Equity Share Capital of the Annual Statement that 100% share capital of M/S M.P. Power Management Co. Ltd. is hold by Secretary (Energy), GOMP, Bhopal. 7.5. Thus. based on the above facts, it is concluded that the Government of Madhya Pradesh is having full control over the applicant M/S M.P. Paschim Kshetra Vidyut Vitran Co. Ltd. and the applicant is cover

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cts to be pursued by the Company on its incorporation is to carry on the business of purchasing, selling, importing, exporting, selling, trading of electrical energy, including formulation of tariff, billing and collection thereof; to execute Power Purchase Agreements with the Bulk supplies, generating companies, Central and State generating stations, regional Electricity Board/neighboring States/utilities and other entities; to execute agreements for sale of power to other distribution companies and other persons and to coordinate, aid and advise on the activities of other companies and concerns. including subsidiaries, associates and affiliates, engaged in generation, transmission, distribution, supply and wheeling of electrical energy. 7.9. Thus, the projects under DDUGY, IPDS, ADB, SSTD, Saubhagya Yojna, FSP and all other schemes of governments are carried out for business purpose and the benefit of Concessional Rate of 12% (6% under Central tax and 6% State tax) as per notificatio

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9;2017 and MPGST Act, 2017. In the instant case, the applicant had awarded work to the successful bidder tor Supply of Materials and Erection respectively. Therefore, the contract entered by the applicant is squarely falls under the works contract and falls under entry no. (ii) of S. No. 3 of the table of notification no. 11/2017 – Central Tax (Rate), Dated – 28th June 2017 as amended from time to time and corresponding notifications under and MPGST Act, 2017, the applicable rate of tax is 18% (90/0 under Central tax and 9% State tax). 8. RULING (Under section 98 of Central Goods and Services Tax Act, 2017 and the Madhya Pradesh Goods and Services Tax Act, 2017) 8.1 The Applicant is not entitled for the benefit of concessional rate of GST @12% (6% under Central tax and 6% State tax) for the said projects in terms of Notification No.24/2017-CentraI Tax (Rate) dated 21.09.2017 read with Notification No.31/2017-CentraI Tax (Rate) dated 13.10.2017. 8.2 The applicable rate of tax is 18% (9%

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GST – States – 4207/CSTUK/GST-Vidhi Section/2018-19/CT-35 – Dated:- 27-8-2018 – Commissioner, State Tax, Uttarakhand State Tax Department NOTIFICATION August 27, 2018 No. 4207/CSTUK/GST-Vidhi Section/2018-19/CT-35-In exercise of the powers conferred by section 168 of the Uttarakhand Goods and Services Tax Act, 2017 (06 of 2017) read with sub-rule (5) of rule 61 of the Uttarakhand Goods and Services Tax Rules, 2017, I, the commissioner, on the recommendation of the Council, hereby makes the foll

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