Author: admin_gst

Commissioner of Central Goods and Service Tax Versus Mangalam Cement Limited
Central Excise
2019 (2) TMI 81 – RAJASTHAN HIGH COURT – 2019 (24) G. S. T. L. 545 (Raj.)
RAJASTHAN HIGH COURT – HC
Dated:- 19-9-2018
D.B. Central Excise Appeal No. 79/2018
Central Excise
Mr. Justice Mohammad Rafiq And Mr. Justice Goverdhan Bardhar
For the Appellant(s) : Mr. Siddharth Ranka.
For the Respondent(s) : Mr. P.K. Kasliwal.
JUDGMENT
(PER HON'BLE MR. JUSTICE MOHAMMAD RAFIQ)
This appeal has been filed by the appellant-Revenue assailing judgment dated 10.10.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (for short 'the Tribunal') with the prayer to set aside the aforesaid judgment and that order dated 28.09.2015 passed by the Commissioner, Central Excise Commissionerate, Udaipur (for short 'the Adjudicating Authority') be restored.
This appeal was admitted by this Court vide order dated 06.07.2018 on the following substantial

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se services were not covered under the definition of 'input service' under the provisions of Rule 2(l) of the CENVAT Credit Rules, 2004 (for short 'the Rules of 2004'). Therefore, a show cause notice dated 02.11.2012 was issued to the respondentassessee proposing recovery of the CENVAT Credit wrongly availed along with interest under Rule 14 of the Rules of 2004 read with Section 11 AA of the Central Excise Act, 1944 (for short 'the Act') and penalty under Rule 15 of the Rules of 2004. The Adjudicating Authority vide order dated 19.09.2013 passed demand order, disallowing claim of CENVAT Credit of Rs. 53,66,338/- on the aforesaid three issues and charged interest and penalty thereon.
The respondent-assessee, being aggrieved by the said order, preferred appeal before the Tribunal, which vide judgment dated 17.11.2014 allowed the appeal and remanded back the matter to the Adjudicating Authority to re-determine the question as to what is the place of removal. In pursuance of remand order

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as there in respect of (a) GTA Services; (b) Auction Services and (c) Rent-a-Cab Services upto the place of removal, the same has already been removed by the Government and therefore, the aforesaid services taken upto the place of removal can only be covered under the definition of 'input service'. The Tribunal has failed to notice this change in the definition while deciding the appeal of the assessee, while judgment has been given in the context of the earlier definition of “input service”.
Reference to definition of “place of removal” in Section 4(3)(c) of the Act of 1944 was also given. Since the present matter was covered by the aforesaid notification, the Tribunal was wholly unjustified in allowing the appeal filed by the assessee. Learned counsel argued that since the question raised in the present case is squarely covered by the judgment of the Supreme Court in the case of Commissioner of Central Excise Service Tax Vs. Ultra Tech Cement Ltd. (Civil Appeal No. 11261 of 2016 dec

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s assessment year wherein the main demand was set aside, the question of penalty would therefore not arise for consideration.
Learned counsel argued that as per the law that was prevalent at the time when the Tribunal passed the impugned judgment, the respondent-assessee was not required to satisfy the demand and acted throughout under that impression, therefore, there was no question of any penalty to be paid on that.
Mr. Siddharth Ranka, learned counsel for the appellant rejoined and submitted that the penalty is consequential as the issue raised in this matter is squarely covered by the judgment of the Supreme Court. In case the judgment of the Tribunal is set aside and demand is revived, the penalty imposed by the Adjudicating Authority is also liable to be restored. Learned counsel submitted that submission of the respondent that the Supreme Court in Ultra Tech Cement Ltd. (supra) has not considered this aspect and the matter requires reconsideration, has to be rejected in view

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Supply to SEZ unit in USD
Query (Issue) Started By: – Yatin Bhopi Dated:- 18-9-2018 Last Reply Date:- 20-9-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Dear expert
We are manufacturer and supplying goods to SEZ unit under LUT. One of our SEZ customer requested to supply goods in USD. Please let me know
1. Is this allowed
2. Are we need to raised GST invoice in USD.
If this is allowed please share circular \ Act \ Rules references
Reply By PAWAN KUMAR:
The Reply:
Dear sir,
No such provision in GST Rules as per my understanding. You may issue gst tax invoice supported with other commercial invoice which currency of USD can be written.
Reply By Yash Jain:
The Reply:
Sir,
For point no. 1: Yes, invoice can be rais

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GST FORM TRAN-1 Submission Deadline Extended for Specific Cases u/r 117(1A), Central GST Rules 2017.
Circulars
GST
Extension of time limit for submitting the declaration in FORM GST TRAN-1 un

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Examination for Confirmation of Enrollment of GST Practitioners
GST
Dated:- 18-9-2018

The National Academy of Customs, Indirect Taxes and Narcotics (NACIN) has been authorized to conduct an examination for confirmation of enrollment of Goods and Services Tax Practitioners (GSTPs) in terms of the sub-rule (3) of rule 83 of the Central Goods and Services Tax Rules, 2017, vide Notification No. 24/2018-Central Tax dated 28.5.2018.
The GSTPs enrolled on the GST Network under sub-rule (2) of Rule 83 and covered by clause (b) of sub-rule (1) of Rule 83, i.e. those meeting the eligibility criteria of having enrolled as sales tax practitioners or tax return preparer under the existing law for a period not less than five years, are req

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payment of examination fee of Rs. 500/- at the time of registration for this exam.
Pattern and Syllabus of the Examination
PAPER: GST Law & Procedures:
Time allowed: 2 hours and 30 minutes
Number of Multiple Choice Questions: 100
Language of Questions: English and Hindi
Maximum marks: 200
Qualifying marks: 100
No negative marking
Syllabus:
* Central Goods and Services Tax Act, 2017
* Integrated Goods and Services Tax Act, 2017
* State Goods and Services Tax Acts, 2017
* Union Territory Goods and Services Tax Act, 2017
* Goods and Services Tax (Compensation to States) Act, 2017
* Central Goods and Services Tax Rules, 2017
* Integrated Goods and Services Tax Rules, 2017
* All State Goods and Services Tax Rules, 2017

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Restaurant Services Subject to 5% GST Rate Without Input Tax Credit Eligibility, Not 18% with Input Credit.
Case-Laws
GST
Input tax credit (ITC) – rate of tax – restaurant services – The Appl

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University-Affiliated Educational Services Exempt from GST Due to Qualification as Educational Services Under GST Rules.
Case-Laws
GST
Exemption from GST – Educational services – The services

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IIM's Executive Post Graduate Programme Not Eligible for GST Exemption, Says Notification Language.
Case-Laws
GST
Exemption from GST – Executive Post Graduate Programme in Management (EPGP) conducted by IIM – there is no iota of ambiguity in the language of the impugned notification – The Executive Post Graduate Programme will not be eligible for exemption from GST as the same has been categorically excluded from exemption.
TMI Updates – Highlights, quick notes, marquee, annotation,

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NHAI Sub-Letting: Toll Charges Collected in Fiduciary Role, GST Applies to Applicant's Operations, Not Ultimate Recipient.
Case-Laws
GST
Levy of GST – sub-let of Toll Collection work of certain road by NHAI – The Toll Charges collected by the applicant are not “Toll Charges” per se in the hands of the applicant, but held in fiduciary capacity by the applicant, for onward remittance to Highway Infrastructure (P) Limited.
TMI Updates – Highlights, quick notes, marquee, annotation,

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Government Landscaping Services May Be GST-Exempt If Classified as Pure Services, Not Works Contracts.
Case-Laws
GST
Levy of GST – landscaping and gardening work for government departments –

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Diesel Engine Fuel Injection Pump Parts Classified Under Tariff Heading 8413 91 90, Subject to 18% GST Tax Rate.
Case-Laws
GST
Classification of goods – Parts of Fuel Injection Pumps – The â€

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GST Annual Return- A Surgical Strike by Government
By: – NikhilMohan Jhanwar
Goods and Services Tax – GST
Dated:- 18-9-2018

If you think GST is a 'Good and Simple Tax', you are mistaken. GST is all about technical glitches, daily amendments, and confusions. More the Government tries to put to rest the confusions, the poorer its implementation becomes.
If you think Annual Return is just another return seeking consolidation of data filed in GSTR-3B & GSTR-1 in Financial Year 2017-18, you are again mistaken. Imagine you studied the whole year and all of sudden, during exam time, the syllabus is changed. That's what the Annual Return format is. The Government is liberal enough to seek as much as details they could in 5-page Annual Return Format coupled with 5-page instructions notified on 4th September 2018.
If you think you have time till 31st December 2018 to file Annual Return that would be your third mistake, Sir. Because, if I state that you have time till 20th Octob

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would be fetched from GSTR-3B and other from GSTR-1. Similarly, the way details have been sought, it would be very difficult for the ERP systems to fetch data in the same fashion as demanded in the Annual Return. For example, Exports made with payment of IGST and without payment of IGST is filed in Table 6A of GSTR-1. However, Annual Return Format seeks details in Separate Tables. It would have been easier for taxpayers if most of the details could be auto-populated by GSTN from GSTR-3B and GSTR-1 filed in sequential or appropriate manner. This will surely slog various hours of extra nights for taxpayers and for professionals as well.
In the instructions for filing Annual Returns, reference of Table No's of GSTR-1 & GSTR-3B has been mentioned at most of the places. If all details are to be taken from 1 & 3B, would not be it prudent to auto-populate the data from returns directly. In other words, the Annual Return should have been formulated in a way which facilitates auto-population o

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hen from where this part of the world, Annual Return is asking for these details. The Instructions also states to obtain these figures from Table 9B of GSTR-1. If you refer to Table 9B, it comprises of details only in respect of B2B taxable supplies and Exempt, Nil rated & Non-GST Supply.
Details of Input tax credit- Real Mess
Input tax credit is like a spoiled brat of rich Dad which has all the luxury in-house as it is not less than a hard cash. But when this brat is excessively exploited, he gives you dangerous results. That's what happened with Part III seeking details of ITC in Annual Return. This Part is so confusing that even lawmakers appear to be clueless about their purpose and intention about kind of disclosure required.
Table No. 6: Bifurcate details of Input, Capital goods & Input services
Table seeks separate bifurcation for inputs, capital goods & input services in respect of Input tax credit. This is beyond my imagination as these details were never part of GSTR-1 or

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uld have been paid by him as one of the conditions to avail ITC. GSTR-2A is created from GSTR-1 filed by the Supplier. But does it ensure payment of tax by the Supplier? There may be a situation where Supplier has filed GSTR-1 but has not filed GSTR-3B for corresponding supply and thus, not paid tax. Ideally, GSTR-2A is required to be verified whether a tax on these supplies have been paid or not to enable complete compliance of the conditions of availment of input tax credit.
Lapse of ITC- Innovative thought
This is an interesting thing. The Annual return calculates for you the input credit lapsed in last financial year i.e. 2017-18. It comprises of 3 things:
* The difference in ITC available as GSTR-2A and ITC actually availed in GSTR-3B filed for the period July 2017 to September 2018 which is further classified into :
* ITC available but not availed
* ITC available but ineligible
The difference in ITC available on the import of goods and ITC actually availed in GSTR-3B
N

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rnment do not let businesses and professional to have an easy life. The task of digging HSN wise details of Inward supply is like repeating the same Semester not because we failed in exams but because syllabus has changes. This will only add to compliances woes of taxpayers.
Before parting………
It would not be out of context if this Annual Return format is terms a Surgical Strike by the Government.
Two quick recommendation for GST Council:
* To introduce an online facility wherein details of GSTR-3B and GSTR-1 filed for July, 2018 to March, 2018 is made available on consolidated basis.
To mandate filing of Annual return first year only for Taxpayers having Aggregate Turnover of more than 1.5 crs. This would ease compliance burden and increasing costs of small taxpayers
About Author:
CA. Nikhil M. Jhanwar is practicing Chartered Accountant and Faculty Member of GST by ICAI in Delhi/NCR specializing in GST, UAE VAT, end-to-end start-up formation, compliances

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LEVY OF LATE FEE UNDER ‘GST’
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 18-9-2018

Late fee
Section 47 of the Central Goods and Services Tax Act, 2017 ('Act' for short) provides for the levy of late fee in case of belated filing of returns that are required to be filed under the Act. Section 47(1) provides that any registered person who fails to furnish the details of outward or inward supplies required under section 37 or section 38 or returns required under section 39 or section 45 by the due date shall pay a late fee of one hundred rupees for every day during which such failure continues subject to a maximum amount of five thousand rupees.
Section 47(2) provides that any registered person who fails to furnish the return required under section 44 by the due date shall be liable to pay a late fee of one hundred rupees for every day during which such failure continues subject to a maximum of an amount calculated at a quarter per cent of hi

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ds or services or both on which the tax is payable on reverse charge basis under this Act and inward supplies of goods or services or both taxable under the Integrated Goods and Services Tax Act or on which integrated goods and services tax is payable under section 3 of the Customs Tariff Act, 1975 (51 of 1975) , and credit or debit notes received in respect of such supplies during a tax period after the tenth day but on or before the fifteenth day of the month succeeding the tax period in Form GSTR – 2.
Return – Form GSTR – 3B
Rule 61(5) provides for filing form GSTR – 3B every month since the time limit for furnishing of details in Form GSTR-1 under section 37 and in Form GSTR-2 under section 38 has been extended within 20th of the following month.
Return under section 39
Section 39 provides that the following registered person shall file returns in the required form periodically within the due dates as mentioned below-
Quarterly return
* The service providers who opted to pa

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vices or both, input tax credit availed, tax payable, tax paid and such other particulars as may be prescribed on or before 20th of the following month.
Final Return under section 45
Section 45 provides that every registered person who is required to furnish a return under section 39(1) and whose registration has been cancelled shall furnish a final return within three months of the date of cancellation or date of order of cancellation, whichever is later, in Form GSTR – 10.
Annual Return under section 44
Section 44(1) provides that every registered person, other than an Input Service Distributor, a person paying tax under section 51 or section 52, a casual taxable person and a non-resident taxable person, shall furnish an annual return for every financial year electronically in Form GSTR – 9 on or before the thirty-first day of December following the end of such financial year.
Section 44(2) provides that every registered person who is required to get his accounts audited in acco

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ent gave the details of the month(s) for which waival is granted.
Vide Notification No.28 /2017 – Central Tax, dated 01st September, 2017, the Central Government, on the recommendations of the Council, waived the late fee payable, for all registered persons who failed to furnish the return in FORM GSTR-3B for the month of July, 2017 by the due date.
Vide Notification No. 50/2017 – Central Tax, dated 24th October, 2017, the Central Government, on the recommendations of the Council, waived the late fee payable for all registered persons who failed to furnish the return in FORM GSTR-3B for the months of August and September, 2017 by the due date.
Vide Notification No. 22 /2018 – Central Tax, dated 14.05.2018, the Central Government, on the recommendations of the Council, waived the late fee payable for failure to furnish the return in FORM GSTR-3B by the due date for each of the months from October, 2017 to April, 2018, for the class of registered persons whose declaration in FORM GS

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aived to the extent which is in excess of an amount of ten rupees for every day during which such failure continues.
Vide Notification No. 73/2017 – Central Tax, dated 29th December, 2017, the Central Government, on the recommendations of the Council, waived the amount of late fee payable, by any registered person for failure to furnish the return in FORM GSTR-4 by the due date, which is in excess of an amount of twenty five rupees for every day during which such failure continues. Where the total amount payable in lieu of central tax in the said return is nil, the amount of late fee payable, by any registered person for failure to furnish the said return by the due date shall stand waived to the extent which is in excess of an amount of ten rupees for every day during which such failure continues.
Vide Notification No. 4/2018 – Central Tax 23rd January, 2018, the Central Government, on the recommendations of the Council, waived the amount of late fee payable by any registered perso

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person for failure to furnish the said return by the due date shall stand waived to the extent which is in excess of an amount of ten rupees for every day during which such failure continues.
Vide Notification No. 6/2018 – Central Tax, dated 23rd January, 2018, the Central Government, on the recommendations of the Council, waived the amount of late fee payable by any registered person for failure to furnish the return in FORM GSTR 5A by the due date which is in excess of an amount of twenty-five rupees for every day during which such failure continues. Where the total amount of integrated tax payable in the said return is nil, the amount of late fee payable by such registered person for failure to furnish the said return by the due date shall stand waived to the extent which is in excess of an amount of ten rupees for every day during which such failure continues.
Vide Notification No. 7/2018 – Central Tax, dated 23.01.2018, the Central Government, on the recommendations of the Counc

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rns including such as malfunctioning of the official portal which often times, prevent uploading of the returns were cited.
The High Court held that this is not a case where the petitioners are espousing the cause of a weaker section of the society who, on account of hardships and handicaps inherently faced by them, is unable to knock the door of justice. The public interest jurisdiction of the High Court and the Supreme Court, over a period of time, has been considerably expanded to take within its sweep range of issues not confined to the assertion of rights of weaker sections of the society or the marginalized groups. The petitioners who are themselves active tax consultants and tax practitioners indirectly concerned with the same. There is no reason why such an issue should be examined in a public interest petition when, as noted above, the group of persons whom the statute affects does not suffer from any handicap preventing them from taking up the litigation themselves and purs

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Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 117(1A) of the Tripura State Goods and Services Tax Rules, 2017 in certain cases
F.1-11(100)-TAX/GST/2017/8475-80 Dated:- 18-9-2018 Tripura SGST
GST – States
NO.F.1-11(100)-TAX/GST/2017/8475-80
GOVERNMENT OF TRIPURA
OFFICE OF THE CHIEF COMMISSIONER OF STATE TAX
P.N. COMPLEX, GURKHABASTI, AGARTALA
Dated, Agartala, the 18th September, 2018.
ORDER
Subject: Extension of time limit for submitting the d

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Modification of the procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances, as clarified in Central Circular No. 41/15/2018-GST dated 13.04.2018 corresponding State Circular No. 06/2018-GST (State) dated 19.04.2018 and Central Circular No. 49/23/2018-GST dated 21.06.2018 corresponding State Circular No. 11/2018-GST (State) dated 17.09.2018 – regarding.
12/2018 Dated:- 18-9-2018 Tripura SGST
GST – States
NO.F.1-11(8)-TAX/2015/8460-66
GOVERNMENT OF TRIPURA
OFFICE OF THE CHIEF COMMISSIONER OF STATE TAX
PANDIT NEHRU COMPLEX, GURKHABASTI
AGARTALA, TRIPURA WEST, PIN-799006.
Dated, Agartala, the 18th September, 2018.
Circular No.12/2018 – GST (State)
To
The Additional Commissioner of State Tax /
Superintendent of State Tax (All)/
Inspectors of State Tax (All)
Subject: Modification of the procedure for interception of conveyances for inspection of goods in movement, and detention

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ces Tax Act, 2017 (Tripura Act No. 9 of 2017) for the purpose of uniformity in the implementation of the Act it is instructed to follow the clarifications issued vide Circular No. 64/38/2018-GST dated 14th September, 2018 by the Department of Revenue, GST Policy Wing.
Enclo.: Circular No. 64/38/2018-GST.
(Nagesh Kumar B, IAS)
Chief Commissioner of State Tax
Government of Tripura
Circular No. 64/38/2018-GST
CBEC/20/16/03/2017-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
New Delhi, Dated the 14th September, 2018
To,
The Principal Chief Commissioners / Chief Commissioners / Principal Commissioners / Commissioners of Central Tax (All) / The Principal Directors General / Directors General (All)
Madam/Sir,
Subject: Modification of the procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances, as clarified

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s the said issue hereunder.
3. Section 68 of the CGST Act read with rule 138A of the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as 'the CGST Rules') requires that the person in charge of a conveyance carrying any consignment of goods of value exceeding ₹ 50,000/- should carry a copy of documents viz., invoice/bill of supply/delivery challan/bill of entry and a valid e-way bill in physical or electronic form for verification. In case such person does not carry the mentioned documents, there is no doubt that a contravention of the provisions of the law takes place and the provisions of section 129 and section 130 of the CGST Act are invocable. Further, it may be noted that the non-furnishing of information in Part B of FORM GST EWB-01 amounts to the e-way bill becoming not a valid document for the movement of goods by road as per Explanation (2) to rule 138(3) of the CGST Rules, except in the case where the goods are transported for a distance of upto fift

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ay not be initiated, inter alia, in the following situations:
a) Spelling mistakes in the name of the consignor or the consignee but the GSTIN, wherever applicable, is correct;
b) Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill;
c) Error in the address of the consignee to the extent that the locality and other details of the consignee are correct;
d) Error in one or two digits of the document number mentioned in the e-way bill;
e) Error in 4 or 6 digit level of HSN where the first 2 digits of HSN are correct and the rate of tax mentioned is correct;
f) Error in one or two digits/characters of the vehicle number.
6. In case of the above situations, penalty to the tune of ₹ 500/- each under section 125 of the CGST Act and the respective State GST Act should be imposed (Rs.1000/- under the IGST Ac

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Modifications to the procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances, as clarified in Central Circular No. 41/15/2018-GST dated 13.04.2018 corresponding State Circular No. 06/2018-GST (State) dated 19.04.2018 – reg.
11/2018 Dated:- 18-9-2018 Tripura SGST
GST – States
NO.F.1-11(8)-TAX/2015/8454-59
GOVERNMENT OF TRIPURA
OFFICE OF THE CHIEF COMMISSIONER OF STATE TAX
PANDIT NEHRU COMPLEX, GURKHABASTI
AGARTALA, TRIPURA WEST, PIN-799006.
Dated, Agartala, the 18th September, 2018.
Circular No.11/2018 – GST (State)
To
The Additional Commissioner of State Tax /
Superintendent of State Tax (All)/
Inspectors of State Tax (All)
Subject: Modifications to the procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances, as clarified in Central Circular No. 41/15/2018-GST dated 13.04.2018 corr

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49/23/2018-GST
F. No. CBEC/20/16/03/2017-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
****
New Delhi, Dated the 21st June, 2018
To,
The Principal Chief Commissioners / Chief Commissioners / Principal Commissioners /Commissioners of Central Tax (All) / The Principal Directors General / Directors General (All)
Madam/Sir,
Subject: Modifications to the procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances, as clarified in Circular No. 41/15/2018-GST dated 13.04.2018 -reg.
Circular No. 41/15/2018-GST dated 13.04.2018 was issued to clarify the procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances.
2. In order to clarify certain issues regarding the specified procedure in this regard and in order to ensure unifor

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mation relating to evasion of tax is made available subsequently. Since the requisite FORMS are not available on the common portal currently, any action initiated by the State tax officers is not being intimated to the central tax officers and vice-versa, doubts have been raised as to the procedure to be followed in such situations.
3.1 In this regard, it is clarified that the hard copies of the notices/orders issued in the specified FORMS by a tax authority may be shown as proof of initiation of action by a tax authority by the transporter/registered person to another tax authority as and when required.
3.2 Further, it is clarified that only such goods and/or conveyances should be detained/confiscated in respect of which there is a violation of the provisions of the GST Acts or the rules made thereunder.
Illustration: Where a conveyance carrying twenty-five consignments is intercepted and the person-in-charge of such conveyance produces valid e-way bills and/or other relevant docum

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In Re. Pyramid Infratech Pvt. Ltd.,
GST
2018 (9) TMI 1107 – NATIONAL ANTI-PROFITEERING AUTHORITY – TMI
NATIONAL ANTI-PROFITEERING AUTHORITY – NAPA
Dated:- 18-9-2018
7/2018
GST
SH. B. N. SHARMA, CHAIRMAN, SH. J. C. CHAUHAN, TECHNICAL MEMBER, MS. R. BHAGYADEVI, TECHNICAL MEMBER
Present:-
S/Shri S. K. Jain, Shri Bharat Bhushan and 12 others on behalf of Applicant No. 1.
S/Sh. Akshat Aggarwal Assistant Commissioner and Sh. Bhupender Goyal Assistant Director (Costs) for the Applicant No. 2.
Shri Dinesh Sharma Managing Director and Shri J. P. Gaur Chief Finance Officer on behalf of the Respondent.
ORDER
1. The brief facts of the this case are that Under Rule 128 of the Central Goods and
Service Tax (CGST) Rules, 2017, 36 applications were filed before the Haryana State Screening Committee alleging that the benefit of Input Tax Credit (ITC) had not been passed on to the Applicants in respect of the construction service supplied by the Respondent. The Applicants ar

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urav Kumar Aggarwal*
lavi22oct@gmail.com
23
Ravi Verma
ravics136@gmail.com
24
Sanjeev Chadha*
sanjeev_chadha35@yahoo.co.in
25
Sangam Shukla
er.sangam@gmail.com
26
Udayan Kishore Mishra*
udayankishoremishra@gmail.com
27
Manoj Jangraa
mj.jangraa@gmail.com
28
Ravi Yadav
dear.raviyadav@gmail.com
29
Zeeshan Ali Quazi*
er.zeeshan99@gmail.com
30
Sunil Kumar Jha*
lakshya.skjha@yahoo.com
31
Vikash Gupta*
vikash.gupta7878@gmail.com
32
Anoop Kumar
anoop_0406@yahoo.com
33
Rajesh Kumar*
rajeshkumar.cs06@gmail.com
34
Vikash Garg*
sperry.it@gmail.com
35
Jofin Mathew
jofinmathew@gmail.com
36
Bharat Bhushan Badesra*
bbbadesra@gmail.com
*Applicants who have filed more than one application:-
2. The above Applicants had booked flats with the Respondent under the Haryana Affordable Housing Policy 2013 (here-in-after referred to as the Policy), notified by the State of Haryana vide Notification No. PF-27/48921 dated 19.08.2013. They had alleged that before coming

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ccordingly they had filed several applications with the Haryana Screening Committee for appropriate redressal of their grievance. These applications were examined by the Screening Committee in its meeting held on 30.10.2017 and it was decided to forward these applications to the Standing Committee on Anti-profiteering for further necessary action. The Standing Committee in its meeting held on 07.11.2017 after confirming that prima facie there was evidence of non-compliance of the provisions of Section 171, had forwarded these applications to the Director General of safeguards (DGSG) now redesignated as Director General of Antiprofiteering(DGAP) for detailed investigation. 102 additional applications against the Respondent were also received by the Standing Committee which were also forwarded to the DGAP for investigation. The following are the names of the additional Applicants who had filed applications with the Standing Committee:-
S.No.
S/Sh.
E-mail ID
1
Rohit Yadav
rohit.yada

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ail.com
24
Praveen Kumar Sharma
praveensha77@gmail.com
25
Abhishek Yadav
abhishekyadav.nnl@gmail.com
26
Ashish Gupta
mnit.ashish2006@gmail.com
27
Rahul Rajoriya
rahul.rajoriya08@gmail.com
28
Gagan Batra
gaganbatra85@gmail.com
29
Manisha Jain
jain5175@gmail.com
30
Parvesh Chopra
parveshchopraa@gmail.com
31
Rakesh Yadav
rakeshdagar83@gmail.com
32
Sunil Saini
sainisunil92@yahoo.com
33
Raj Kumar*
rajkumar032002@yahoo.com
34
Ankur Chawla
aim.ankur@yahoo.co.in
35
Shailendra kumar
skumar_025@yahoo.co.in
36
Shalini Bisht
shaliniissarbisht@gmail.com
37
Santosh Kumar Agarwal
santoshkumar.engg@gmail.com
38
Suresh Kumar
kumarsuresh151979@gmail.com
39
Ashish srivastava
ashishdra@gmail.com
40
Pradip sarin
pradipsarin@yahoo.com
41
Rahul Yadav
rahulrao1206@gmail.com
42
Richa Jha/Priyanka Jha
richaignou95@gmail.com
43
Prem Prakash
prm185@gmail.com
44
Diwakar Singh
diwakar_chahar@yahoo.com
45
Samreen Raza
samreenraza2000@yahoo.com
46
Ra

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om
67
Pankaj Kumar
pankaj@nsk.com
68
Sandeep Sharma
sandeep.121.sharma@gmail.com
69
Kiran Mishra 
kiranmishra.2007@gmail.com
70
Saurabh Jain
saurabhs20@yahoo.com
71
Nitesh Rohilla*
nitesh.rohilla001@gmail.com
72
Rajdeep Yadav
yadav_raj7@rediffmail.com
73
Sachin Batheja
sachin.batheja@yahoo.com
74
Souvik Ghosh
souvik.ghosh@hotmail.co.in
75
Rajendra Singh Chahar/
Anuraj Singh
anuraj2110@gmail.com
76
Rajesh Kumar Jain
rajeshkjain.99@gmail.com
77
Vikas Gupta*
vikas.gupta7878@gmail.com
78
Rahul Kapoor*
rkapoor_87@rediffmail.com
79
Anil Dwivedi*
anilcs250@gmail.com
80
Amit Kumar Thakur
amitthakurlic@yahoo.in
81
Deepak Gupta
deepacgupta@gmail.com
82
Bansi Lal Mahlawat
a_Bansi.Mahlawat@airtel.com
83
Dharam Narayan Tiwari/
Shashi Vir Singh
shashivir@yahoo.com
84
Alok Kumar Singh*
alokmechboy@gmail.com
85
Mridul Verma
mridul_varma@yahoo.co.in
86
Prateek Sharma*
prateek.psharma@gmail.com
87
Paramjeet Singh
param194@gmail.com
8

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the DGAP mentions 109 Applicants out of the 138 Applicants out of which in as much as 26 have filed duplicate applications and 2 have submitted triplicate applications.
4. The DGAP in his report has stated that a notice was issued to the Respondent under Rule 129 of the CGST Rules, 2017 to submit his reply regarding the allegations that the benefit of ITC had not been passed on to the above Applicants on the purchase of the flats and also to suo moto declare the amount of profiteering. Since the Respondent failed to submit all the documents within the prescribed time extension was sought by the DGAP for completing the investigation. The Standing Committee vide it's minutes of the meeting dated 28.02.2018 had granted extension of 3 months in terms of Rule 129 (6) of the CGST Rules 2017. The DGAP has also reported that after issue of a number of summons the Respondent vide his letters dated 11.01.2018 & 19.02.18 had submitted various documents such as:-
1. Independent Auditor's Repor

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ent had also submitted the following data as has been depicted in the Table below to show that the ITC on Excise Duty, Countervailing Duty (CVD) and capital goods which was not available earlier was now available:-
S. No.
Nature of pre-GST Tax
Total Amount (In Rs.)
1
Excise Duty/CVD included in cost, now available as ITC
46,91,507/-
2
Credit on Capital Goods capitalized not available earlier but now available
2,05,50,719/-
3
Central Sales Tax (CST) 
For material 12,04,661/- for capital goods 24,47,563/-  Total Rs. 36,52,224/-
4
Total ITC (1+2+3)
2,88,94,450/-
5
ITC part of Cost
46,91,507/-  + 12,04,661/-=58,96,168/-
6
Cost of Sale (before interest)
50,44,57,118/-
7
Interest
44,83,288/-
8
Cost of Sale after interest (6+7)
50,89,40,406/-
9
Net Sales Realization 
1,21,79,69,823/-
10
Profit (9-8)
70,90,29,416/-
11
Percentage of ITC to Sales Realization (4 as % of 9)
2.37%
6. The report also submits that the Respondent had claimed tha

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lizing the ITC was being paid in cash, therefore, the ITC being allowed was not an additional benefit and the GST liability was not entirely covered by the ITC available to the Respondent. The Respondent had also claimed that he was required to pay GST on the sub-contracted work which was an additional cost to him whereas Service Tax was exempted in the past. He had further claimed that there had been tremendous increase in the prices of inputs including Steel due to which no profiteering could be alleged against him.
7. The DGAP's report also states that two of the Applicants viz. S/Sh. Sukhbir Singh and Ashutosh Fotedar vide their joint letter dated 07.05.2018 had submitted that the Respondent could charge maximum allotment rate of Rs. 4,000/- per sq. ft. carpet area which was inclusive of all costs as was prescribed under the Policy. The DGAP has also informed that one of the Applicants viz. Shri Bharat Bhushan Badesara vide his e-mail dated 12.03.2018 had submitted a copy of the '

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the two projects viz. (1) Urban Homes, Sector 70A, Gurugram and (2) Urban Homes, Sector-86, Gurugram which are being executed by the Respondent under the above Policy. He has further informed that after perusal of the application filed by the Respondent before the Haryana Real Estate Regulatory Authority (RERA) and as per para 5 (i) of the Policy, it was clear that the maximum sale price per sq. feet carpet area had been fixed at Rs. 4,000/- and no minimum rate had been prescribed and hence, the Respondent could not claim that there was restriction on reducing the price. The DGAP has also submitted that the Respondent's claim that Section 171(1) of the CGST Act, 2017 relating to benefit of ITC was not attracted, as there was no reduction in the GST rate was also not acceptable because the conditions of passing on the benefit of reduced tax rate and benefit of ITC were two independent conditions and Section 171 of the CGST Act, 2017 was attracted if both or either of these two condition

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-, the DGAP has estimated the VAT liability of the Respondent as 9% of the net taxable value (abated value) and 5.098% of the gross amount of Rs. 2,92,49,55,429/- received from the Applicants.
11. The DGAP has also reported that on examination of the GSTR-3B Returns filed by the Respondent it was revealed that the ratio between the taxable turnover and the ITC availed by him in the post-GST era w.e.f. July 2017 to February 2018 was 7.20%.
12. The DGAP has also mentioned that the Central Government had imposed 18% GST with effective rate of 12% in view of 1/3rd abatement on value on the Construction Service vide Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 and the GST rate on the above Service in respect of the Affordable Housing Schemes was reduced to 8% vide Notification No. 1/2018-Central Tax (Rate) dated 25.01.2018. The DGAP has also analyzed the issue of profiteering for the pre-GST period from April 2016 to June 2017 when VAT was payable @ 5.25% and the post-GST

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12%(GST)
8%(GST)
 
13. Based on above data the DGAP has concluded that the ITC available to the Respondent during the pre-GST period from April 2016 to June 2017 was 1.10% of the taxable turnover and during the post-GST period from July 2017 to February 2018, the ITC available to the Respondent was 7.20% of the taxable turnover and thus there was additional benefit of ITC to the tune of 6.10% (7.20%-1.10%) in the post-GST era, covering the period from July 2017 to February 2018 to the Respondent. The DGAP has also stated that for the period w.e.f. 01.07.2017 to 24.01.2018 while the additional ITC available was 6.10% of the taxable turnover, the tax rate had increased by 6.75 % (12%-5.25%), leaving no benefit of ITC to be passed on to the Applicants. On the other hand, during the period between 25.01.2018 to February, 2018, the additional ITC of 6.10% of the taxable turnover was more than the increase in the tax rate by 2.75% (8%5.25%), requiring the Respondent to pass on the

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s meeting held on 5.07.2018 had decided to hear the Applicants and the Respondent on 23.07.2018. Accordingly notices were issued to all the interested parties. On behalf of the Applicants Sh. Rajesh Kumar Jain, Bharat Bhushan and 6 other Applicants appeared and the DGAP was represented by Sh. Akshat Aggarwal Assistant Commissioner and Sh. Bhupender Goyal, Assistant Director (Costs). On the request of the parties another hearing was held on 01.08.2018 wherein S/Sh. Bharat Bhushan and R. K. Jain along with 12 other Applicants had appeared.
During both the hearings the Respondent was represented by Sh. Dinesh Sharma, Managing Director along with Sh. J. P. Gaur, Chief Finance Officer, who submitted their written submissions, on 1st August, 2018.
15. In his written submissions, the Respondent has claimed that the amounts of Rs. 50,44,57,118/- and Rs. 50,89,40,406/- mentioned in the report of the DGAP were the costs incurred on construction and not the costs of sales during the period and

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and hence the initial payments on application, allotment and few periodical installments were meant for funding the above mentioned costs which on an average amounted to 40-45% of the total revenue from the Applicants. The Respondent has also claimed that the percentage of expenditure on construction was far more than the percentage of collections made from the Applicants. He has also argued that besides construction cost there were other expenses as had been mentioned above which needed to be considered before arriving at the profit margin.
16. The Respondent has further submitted that though the benefit of ITC was made available, the basic cost of the raw material had increased abnormally which had resulted in setting off of the benefit of ITC. the Respondent has also claimed that in the post-GST period basic cost of Steel was higher than the cost of Steel during the pre-GST period which had resulted in extra expenditure of Rs. 4,34,80,082/- while the ITC amounted to only Rs. 3,97,1

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amount spent on construction during this period was only 25% of the total cost and hence he would receive 37.50% of total payment due during the post-GST period when he would have to spend 75% of the total cost on construction. The Respondent has also claimed that the initial consideration paid by the Applicants was towards the cost incurred/ to be incurred by him against the cost of land, licenses, approvals, administrative and financial expenses which amounted to 40-45% of the total revenue from the Applicants. He has also submitted that while calculating the ITC against the taxable value during the pre-GST period, the taxable value should be accordingly adjusted by giving effect to the above issues during the pre-GST and post-GST period and percentage of ITC should be accordingly recalculated.
19. Finally the Respondent has prayed that the following points needed to be considered by the Authority before concluding that profiteering has been done by him.
a). The taxable value shou

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They also claimed that the Respondent had recovered VAT @ 5.25% from the Applicants but had paid the Government @ 5.09%. They also requested for imposition of penalty and for early disposal of the case so that the benefit if any was provided to them before the last installment was paid to the Respondent.
22. They also claimed that the increase or decrease in cost on account of the factors other than tax rate and ITC was not to be considered for the purpose of profiteering. They further claimed that the maximum rate of Rs. 4,000/- per sq. ft. carpet area was fixed and any escalation in the cost had already been taken into account at the time of fixing of the above rate. They also submitted that any increase or decrease in the raw material prices was a market phenomenon which was not related to the GST and therefore, the cost escalation factor was not required to be considered by the Authority.
23. The Applicants have also argued that the extra liability claimed by the Respondent on a

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er, 2017 to February, 2018. This ITC was approximately Rs. 8.70 Crores and was utilized to the extent of Rs. 5.40 Crores for payment of GST by him. They also pleaded that the Respondent was fully aware that the ITC should have been passed on to the buyers after re-calibrating the price, which had not been done deliberately by him which attracted penal provisions under the anti-profiteering law.
25. The Applicants have also attached copies of the e-mail dated 14.07.2018 and reminders dated 21.07.2018 & 26.07.2018 sent by their Association to the Respondent requesting him to extend the benefit of ITC which the Respondent had failed to respond to.
26. Finally the applicants have alleged that during the period between 01.07.2017 to 24.01.2018 the benefit which had accrued to the Respondent was 6.1% as per the calculations given below:-
Re-calibrated rate – Rs. 4,207 (Rs.3,756 + 12% GST)
Already billed and collected rate – Rs. 4,480 (including 12% GST) Effective rate to be returned to t

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ing the hearing held on 23rd July, 2018, the DGAP in his reply dated 1st August, 2018 has submitted that for the period before 01.07.2017 the output rate of VAT on the Respondent was 5.25% with an ITC of 1.1% and during the period between 01.07.2017 to 24.01.2018, the output rate of GST was 12% but an additional ITC of 6.1% (7.2%-1.1%) was available to the Respondent, which should have been passed on to the Applicants and 12% GST should have been charged on such reduced amount and therefore, the effective output rate of tax for the Respondent would be 12% of 93.9 (100-6.1) =11.27%. He has also submitted that similarly, for the period after 25.01.2018, the output rate of GST was 8% but additional ITC of 6.1% (7.2%-1.1%) was available to the Respondent which should have been passed on to the Applicants and 8% GST should have been charged on such reduced amount and hence the effective output rate of GST for the Respondent would be 8% of 93.9 (100-6.1) =7.51%. The DGAP has admitted that th

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of = 6.1% (4480-4207/4480 x 100). He has further stated that during the period between 25.01.2018 to 31.03.2018, the installment including GST should be Rs. 3756 + 8% GST= Rs. 4056/- per sq. ft., however, the Applicants had been charged Rs. 4000 + 8% GST i.e. Rs. 4320/- which came to profiteering of = 6.1% (4320-4056/4320 x 100) and hence 6.1% of the amount paid by the Applicants during the entire period from 01.07.2017 to 28.02.2018 was the profiteered amount.
29. We have carefully examined the DGAP's Report, the written and oral submissions of both the Applicants and the Respondent placed on record. The issues to be decided by the Authority are as under:-
(a.) Whether there was any violation of the provisions of Section 171 of the CGST Act, 2017 in this case?
(b.) If yes then what was the quantum of profiteering?
30. Perusal of Section 171 of the CGST Act shows that it provides as under:-
171. (1) Any reduction in rate of tax on any supply of goods or services or the benefit of

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been extended to all the goods and services which were utilized by any builder which was not available in the pre-GST era. This fact has not been denied by the Respondent. Since Section 171 not only deals with passing on the benefit of reduction in the rate of tax but also deals with passing on the benefit of ITC therefore the contention made by the Respondent is legally not correct to the extent that there had been increase in the rate of tax from 5.25% to 12% and then 8% and no benefit could be passed on by him to the Applicants as the Respondent had become entitled to claim ITC the benefit of which was required to be passed on by him to the Applicants as per the provisions of Section 171. The Respondent has also admitted that he had become eligible to claim ITC after coming in to force of the GST and hence he was liable to pass on the benefit to the Applicants.
31. It is also revealed from the submissions made by the Respondent that he was building flats and selling them to the App

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maximum sale price for each flat would be Rs. 4000/- per sq. ft. carpet area. Therefore, the claim of the Respondent that the price was fixed at Rs. 4000/- by the Haryana Government is incorrect as he had himself made offer of selling the flats at the above rate. It is also clear from the perusal of the above para that the above price was the maximum price and there was no restriction on the Respondent to charge less price. The Respondent had chosen to collect the maximum rate fixed by the Policy and therefore his plea that the rate reduction was not possible was not correct. Moreover the rate offered by the Respondent did not include taxes and it is a fact that the Applicants had paid 5.25% VAT in the pre-GST era and GST @ 12% and 8% for the period between 01.7.2017 onwards. The Buyer's Agreement vide paras 4.1, 5.3 and 5.5 clearly indicates that the Applicants were liable to pay all the taxes as applicable. Para 5.3 of the agreement states that, “the sale consideration does not incl

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ability was 9% of the net taxable value and his liability was 5.098% of the unabated gross value of Rs. 2,92,49,55,429/-. During the year 2017-18 for the first quarter the taxable turnover was Rs. 7,69,35,214/- while the output tax liability was Rs. 39,21,893/-. Thus the total taxable turnover of these two periods was Rs. 30,01,89,06,44/- while the output tax liability was Rs. 15,30,26,066/- and the ratio of ITC to the taxable turnover was 1.10%. Similarly the taxable value for the period from July 2017 to February 2018 was Rs. 1,20,78,06,878/- while the tax liability was Rs. 12,56,42,894/- and the ITC ratio to taxable turnover was 7.20%. These facts have also not been disputed by the Respondent but what was disputed was that the above ratio should be calculated taking into account the cost of construction rather than the taxable turnover. This argument does not hold good because the Policy makes it mandatory on him that he could not charge more than Rs. 4000/- per sq. ft., the price w

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ent has not placed any concrete facts or reasons on record to dispute the same.
33. The Respondent has pleaded that since the cost of Steel one of the major raw materials had increased this increase should have been accounted for before alleging profiteering. This argument of the Respondent is not tenable since he had himself offered the maximum price of Rs. 4000/- and there was no provision of revision of this price on the basis of escalation in the price of the raw material in the Policy. The Applicants have also rightly objected to this pleading stating that the price fluctuations were considered at the time of fixing of the rate of Rs. 4000/- per sq. ft. From the details given by the Respondent no conclusion can be arrived at without considering the cost of all the inputs and their cost since for most of the building material there had been rate rationalization and all the raw material was available without CST across the country. Since he has claimed that 75% construction had bee

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pondent, which had not been taken into consideration while fixing the cost of the flats. Therefore the contention of the Respondent that the cost factor should be taken into account is not valid and justifiable as there is no escalation clause in the Agreement and the Respondent has also availed benefit of interest on the amount paid by the Applicants.
34. One of the arguments advanced by the Respondent is that in the pre-GST regime there was no tax liability on the sub-contractors and in the post-GST era the tax levied on the sub-contractors was to be borne by the Respondent. This argument is also not tenable because the entire amount is eligible for ITC to the Respondent which has been admitted by him in his written submissions. Moreover the sub-contractors are also eligible for ITC which was not available to them earlier and on account of rationalization of tax rates many of the inputs were now available at the reduced rates.
35. From the above narration of facts it is absolutely

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lculations and submitted that the actual benefit that the Respondent has to pass on to all of them was to the extent of 6.1% for both the periods when the tax was levied @ 12% as well as when the tax was levied at @ 8%. In his subsequent report called for by the Authority from the DGAP, he has submitted the revised calculations which are reproduced below. The total amount of profiteering as calculated by the DGAP is also mentioned in the subsequent table:-
Particulars
 
Amount (in Rs.)
 Basic Sale Price Collected for both the projects (Rs.) 
 
 
Jul-17
A
–
Aug-17
B
72,49,48,683
Sep.17
C
1,59,171
Oct,17
D
–
Nov.17
E
2,58,475
Dec.17
F
2,54,237
Jan.18
G
–
 Total Basic Sale Price Collected for both the projects during July, 2017 to January, 2018 (Rs.) 
H= Total of A to G
72,56,20,566
GST @ 12% Collected 
I=H*12%
8,70,74,468
 Actual Amount Collected 
J=H+I
81,26,95,034
 Benefit of 6.10% of Basic Sale

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e followed by the DGAP i.e. 6.1% of profiteering and accordingly the amount of profiteering has been calculated for each type of flat to arrive at the profiteering amount for each and every buyer depending upon the type of flat he has purchased. In view of the above the Authority determines the amount of profiteering as Rs. 8,22,80,998/- for all the 2476 flats.
38. The DGAP has calculated the profiteering @ 6.1% on the base price of Rs. 4000/- per sq. ft. and accordingly calculated tax amount on the reduced payment. The calculations made by the DGAP are placed below which are correct and the Authority is in full agreement with the same:-
Head
Row
Profiteering Calculation
 
X
Calculation
GST @12%
GST @8%
Rate (Per Sq. Ft.)
A
 
4000
4000
Profiteering @6.1%
B
 
244
244
New Rate (Per Sq. Ft.)
C
A-B
3756
3756
GST @X%
D
X% of C
450.72
300.48
Total Amount to Be Charged
E
C+D
4206.72
4056.48
Amount Already Charged
F
A + X% of A
4480
4320
P

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ting the last installment along with the interest @ 18% per annum to be calculated from the date of the receipt of the excess amount from each buyer, within a period of 3 months from the date of receipt of this order.
41. It is evident from the above that the Respondent has denied benefit of ITC to the buyers of the flats being constructed by him under the above Policy in contravention of the provisions of Section 171(1) of the CGST Act, 2017 and has thus realized more price from them than he was entitled to collect and has also compelled them to pay more GST than that they were required to pay by issuing incorrect tax invoices and hence he has committed an offence under section 122 (1) (i) of the CGST Act, 2017 and therefore, he is liable for imposition of penalty. Accordingly, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under Section 122 of the above Act read with rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
42.

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Real Value Promoters Pvt. Ltd., Ceebros Property Development, Prime Developers Versus Commissioner of GST & Central Excise, Chennai
Service Tax
2018 (9) TMI 1149 – CESTAT CHENNAI – [2018 – TlOL – 2867 – CESTAT]
CESTAT CHENNAI – AT
Dated:- 18-9-2018
ST/723/2010, ST/350/2010, ST/528/2010 – 42436-42438/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
For the Appellant : Shri G. Natarajan, Advocate, Shri Raghavan Ramabhadran for Appellant And Shri Ramachandra Rao, Consultant
For the Respondent : Shri A. Cletus, Addl. Commissioner (AR)
ORDER
PER BENCH
The issue involved in all these appeals being similar, they were heard together and are disposed by this common order.
2. The appellant M/s. Real Value Promoters (P) Ltd. are involved in activity of constructing commercial projects PRGT and residential projects. The appellants were issued show cause notices alleging short-payment of service tax under Commerc

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Name of the Project
Allegation
Tax liability
Commercial PRGT
Non-payment of service tax on the services provided to buyers
Rs.34,38,337/-
Residential The Lords Sananda Brindavan Sujeet Surya Skanda
Non-payment of service tax on the services provided to buyers
Rs.1,07,33,392/-
Commercial PRGT Amarasri
Non-payment of service tax on the services provided to land owners
48,98,579/-
Residential Sai Brindavan
Non-payment of service tax on the services provided to land owners
Rs.15,49,944/-
 
Total
Rs.2,06,20,252/-
2.1 Another Show Cause Notice No. 570/2009 dated 20.10.2009 was also issued in respect of amount received towards construction of residential apartments and commercial complexes for the period from 1.4.2008 to 31.3.2008. It appeared to department from the nature of the services provided, that appellants are liable to pay service tax under construction of complex services or under commercial construction service in terms of section 65(105)(zzzh) and section 6

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re sold by appellant to ultimate buyers under separate agreements. Show cause notice dated 10.8.2009 was issued for the period January 2005 to August 2008 proposing to demand service tax under the category of Construction of Complex Service (CICS). After adjudication, the original authority confirmed an amount of Rs. 1,16,42,448/- holding that for the period prior to 1.6.2007, the appellant has to pay service tax under CICS and not under Works Contract Service (WCS) as the project was launched prior to 1.6.2007 and consideration was also received prior to 1.6.2007. For the period after 1.6.2007, the adjudicating authority held that Commercial or Industrial Construction Services / Construction of Residential Complex Services (RCS) were taxable even after 1.6.2007 and that appellant would have to pay under either RCS or WCS.
2.4 M/s. Ceebros Property Development is the appellant in ST/350/2010. The demand is for the period from 1.7.2007 to 28.2.2008. It was put forward by the ld. consul

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of introduction of service tax on various construction services and also made various contentions, submissions in respect of the matter under appeal. The submissions and contentions of the ld. counsel can be broadly summarized as under:-
3.1 Service Tax was introduced on the following taxable services from the dates mentioned against each:
S.No
Name of the service
Section of the Finance Act, 1994
Introduced with effect from
1
Commercial or industrial construction service (CICS)
65 (105) (zzq)
01.07.2003
2
Construction of Complex Service (CCS)
65 (105) (zzzh)
16.06.2005
3
Works Contract Service (WCS)
65 (105) (zzzza)
01.06.2007
3.2 Section 65A of the Act deals with the principles of classification of services. As each of the taxable services are made taxable from different dates and the scope of abatement from value, exemption entitlements, valuation, rate of tax are based on appropriate classification of service, correct classification of service is very important.
3

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Section 94 (2) of the Act. An alternative in the form of Works Contract (Composition scheme for payment of Service Tax) Rules, 2007 has also been introduced to pay service tax at a lesser rate on the gross amount (including the value of transfer of property in goods).
3.5 The issue as to whether a composite contract involving provision of service as well as transfer of property in goods could be covered under CICS and CCS from the date of introduction of service tax levy on such services was, being litigated upon which was finally settled by the Hon'ble Supreme Court in the case of CCE Vs. Larsen & Toubro Ltd. 2015 (39) STR 913 SC. The Apex Court has observed that in as much as section 67 of the Act, dealing with valuation of taxable services, refers to the gross amount charged for service, the services of CICS and CCS would cover only pure service activities, as any contrary view would imply that the Union Government can levy service tax on the gross amount, including the value o

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er a different category of taxable service as the assesse was not at all put on notice on the new category of taxable service.
These decisions were based on various decisions of higher appellate forums, where it has been held that the show cause notice is the foundation of allegations and the adjudication should be limited to the allegations. Further, as per Section 65 A of the Act, classification of service shall be based on the specific entries and the more specific description has to be preferred. In this connection, he invited attention to CBEC's Circular 128/10/2010 Dt. 24.08.2010.
3.8 If show cause notices are issued demanding service tax under CICS / CCS, on composite contracts, involving transfer of property in goods, for the period post 01.06.2007, the said demands of service tax cannot be sustained, as these services would cover only pure service activities, as held by the Hon'ble Supreme Court in Larsen & Toubro (supra). At the stage of adjudication or appeal proce

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CS for the period post 01.06.2007 have been set aside.
a) URC Constructions Vs CCE – 2017 (50) STR 147 Tri-Chennai
b) Mantri Developers VS CCE – 2014 (36) STR 944 Tri-Bang.
c) Skyway Infra Projects VS CST – 2018-TIOL-360-CESTAT-MUM
d) Srishti Constructions VS CCE – 2018-TIOL-337-CESTAT-CHD
e) CST VS Swadeshi Construction Company – 2018-TIOL-1096-CESTAT-DEL
f) Logos Construction Pvt. Ltd. VS CST 2018 (6) TMI 1361 – CESTAT CHENNAI
3.11 In the subject appeal, all the demands confirmed are in respect of composite contracts (commercial buildings, residential buildings, service provided to buyers and service provided to landowners). If the plea that such demands under CICS and CCS for the period both prior to and post 01.06.2007 is not sustainable is upheld, there is no need to advance any further arguments specific to the projects in question.
4. The above arguments advanced by the ld. counsel Shri Natarajan was adopted by ld. counsel Shri Raghavan Ramabhadran and ld. consulta

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mponent of composite contracts such as Works Contract only with effect from 1.6.2007. The definition of Commercial Constructions Service (CICS / CCS) have not undergone any change after introduction of service tax on works contracts. While pure construction services (not composite involving supply of goods) which are not in the nature of works contract would be liable to service tax, prior to 1.6.2007, those in the nature of works contract (composite involving supply of goods) would be subject to levy only with effect from 1.6.2007. Let us proceed to examine the same.
7.1 Commercial or industrial construction was made exigible to service tax by insertion of Section 65(25b) of the Finance Act with effect from 1.7.2003.
The definition when introduced read as under:-
The said definition was amended with effect from 1.7.2010 vide Notification No. 24/2010-ST dated 22.6.2010 as under:-
'25(b) commercial or industrial construction'] means –
(a) construction of a new building or a civil

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ing the period of dispute as under:-
'construction of complex' means –
(a) construction of a new residential complex or a part thereof; or
(b) completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or
(c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex;'
7.3 “Residential Complex” was defined in section 65(91a) ibid during the disputed period as under:-
'residential complex' means any complex comprising of –
(i) a building or buildings, having more than twelve residential units;
(ii) a common area; and
(iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system,
locat

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ion to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams.
Explanation. – For the purposes of this sub-clause, 'works contract' means a contract wherein, –
(i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and
(ii) such contract is for the purposes of carrying out, –
(a) erection, commissioning or installation of plant, machinery, equipment or structures, whether prefabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or
(b) construction of a new building or a civil structure or a part thereof, or of

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tion 65(105)(zzh) ibid; 'construction services' under section 65(105)(zzq); construction of complex services under section 65(105)(zzzh) would refer only to service contracts simpliciter and not to composite works contracts; that these five taxable services only would qualify without any other element. The Hon'ble Supreme Court also observed that with introduction of works contract service as a separate taxable service, statutory mechanism to exclude the value of transfer of property of goods has been prescribed. The Apex Court held that since the Finance Act had not laid down any charge or machinery to levy and assess service tax on indivisible works contract prior to 1.6.2007, the levy on such composite works contract prior to that date has no constitutional validity.
7.6 The Larsen & Toubro (supra) judgment has been followed by this Tribunal in many numbers of cases to set aside the demand of service tax on services like commercial or industrial construction service, co

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ex Court judgment in Larsen & Toubro, such composite works contract then will not be liable to service tax levy prior to 1.6.2007. On the same ratio, such composite contracts even for the period after 1.6.2007 disputed in these appeals will still have to be held as composite works contract only and not pure service simpliciter contracts that could be classified under commercial or industrial construction service, or construction of complex service. To put in another way, to merit being classified as CICS or CCS, the service provider concerned will be rendering only service simpliciter without any other element in them namely without any material or goods supply involved.
That is definitely not the case in the facts of these appeals. The activities of the appellants will therefore continue to be in the nature of composite works contract services and hence even after 1.6.2007 for the periods disputed in these appeals they cannot be brought within the fold of commercial or industrial con

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ch service tax will be levied at only 2 per cent of the total value of the words contract'.
7.10 The issue was analyzed by the Hon'ble Apex Court in Larsen & Toubro case (supra) and held that there can be no levy of service tax on composite contracts (involving both service and supply of goods) prior to 1.6.2007. This read together with the budget speech as above would lead to the strong conclusion that composite contracts were brought within the ambit of levy of service tax only with effect from 1.6.2007 by introduction of Section 65(105)(zzzza) i.e. Works Contract Services. As pointed out by the ld. counsels for appellants, there is no change in the definition of CICS/CCS/RCS after 1.6.2007. Therefore only those contracts which were service simpliciter (not involving supply of goods) would be subject to levy of service tax under CICS / CCS / RCS prior to 1.6.2007 and after. Our view is supported by the fact that the method / scheme for discharging service tax on the service port

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service' was made effective, classification of aforesaid services would undergo a change in case of long term contracts even though part of the service was classified under the respective taxable service prior to 1-6-2007. This is because 'works contract' describes the nature of the activity more specifically and, therefore, as per the provisions of Section 65A of the Finance Act, 1994, it would be the appropriate classification for the part of the service provided after that date.'
7.12 Thus, for example, while construction of a new residential complex as a service simpliciter would find a place under section 65(105)(30b) of the Act, the same activity as a composite works contract will require to be brought under section 65(105)(zzzza) Explanation (c). For both these categories for the definition of residential complex, the definition given in section 65(105)(91a) will have to be adopted as discussed above will have to be taken into account.
7.13 We find sustenance in a

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;ble Apex Court in M/s L&T Limited. Even in the appeal, the Revenue submitted that the respondent were engaged in construction services liable to tax under tax entry Section 65(105) (xxq). The grievance of the Revenue is with reference to commercial nature of the construction undertaken by the respondent and not on the correct classification of taxable activity.'
b. In the case of Skyway Infra Projects Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai – 2018-TIOL-360-CESTAT-MUM, in respect of identical issue for the period from 2005 to 2012, the Tribunal in para 7 has held as under:-
'7. On careful consideration of the submissions made by both the sides, we find that the issue falls for consideration is whether the services rendered by the appellant in respect of 52 contracts entered with various Govt. authorities need to be taxed under MMRC/CICS/ECIS or otherwise. It is on record and undisputed that the adjudicating authority has specifically held that all the 52 contracts which h

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y the adjudicating authority is liable to be set aside and we do so.'
c. In the case of URC Construction (P) Ltd. Vs. Commissioner of Central Excise, Salem – 2017 (50) STR 147, the Tribunal in paragraphs 9, 10 and 11 has held as under:-
'9. The Hon'ble Supreme Court in re Larsen & Toubro & Ors. has decided thus
'24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines 'taxable service' as 'any service provided'. All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract.
Further, under Section 67, as has been pointed out above, the value of a taxable ser

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neither of the two show cause notices adduce to leviability of tax for rendering 'works contract service' On the contrary, the submission of the appellant that they had been providing 'works contract service' had been rejected by the adjudicating authority. Therefore, even as the services rendered by them are taxable for the period from 1st June, 2007 to 30th September, 2008 the narrow confines of the show cause notices do not permit confirmation of demand of tax on any service other than 'commercial or industrial construction service'. It is already established in the aforesaid judgment of the Hon'ble Supreme Court that the entry under Section 65(105)(zzd) is liable to be invoked only for construction simpliciter. Therefore, there is no scope for vivisection to isolate the service component of the contract.'
d. In the case of Logos Construction Pvt. Ltd. Vs. Commissioner of Central Excise as reported in 2018 (6) TMI 1361, the Tribunal has held as under:-

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nder works contract for this period. The only argument brought forth by the Ld. Counsel is that they have discharged an amount of around Rs. 82 lakhs under this category after the visit of the departmental officers and therefore an amount of Rs. 36,88,611/- demanded in the impugned order should be considered as having been discharged. We find merit in his argument and hence the demand of Rs. 26,88,611/- under works contract service for the period 01.04.2008 to 30.09.2008 is required to be considered as having been paid, albeit subsequent to the visit of the officers. However, the interest liability if any that arise on this amount if not paid already will have to be discharged by the appellants. So ordered.'
8. In the light of the discussions, findings and conclusions above and in particular, relying on the ratios of the case laws cited supra, we hold as under:-
a. The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 bei

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ods in dispute, proposing service tax liability on the impugned services involving composite works contract, under 'Commercial or Industrial Construction Service' or 'Construction of Complex' Service, cannot therefore sustain. In respect of any contract which is a composite contract, service tax cannot be demanded under CICS / CCS for the periods also after 1.6.2007 for the periods in dispute in these appeals. For this very reason, the proceedings in all these appeals cannot sustain.
9. The next issue that arises for consideration is with regard to the demand raised for the reason that appellants did not intimate the department about their intention to opt for payment of service tax under composition scheme under Works Contract Service. The Tribunal vide Final Order No. 50871/2018 dated 6.3.2018 in the case of Vaishno Associates Vs. Commissioner of Central Excise had occasion to consider this issue and held for sole reason of not filing the intimation opting to pay ser

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M/s Godrej And Boyce Manufacturing Co. Ltd., L.G. Electronics India Pvt. Ltd., Bharti Airtel Limited, M/s Guala Closures (India) Pvt. Ltd., M/s. Ras Polytex Pvt. Limited, Rimjhim Ispat Limited, Rimjhim Ispat Limited, M/s. Gaurang Products Pvt. Ltd., M/s. Aditya Birla Fashion And Retail Ltd., M/s. Navyug Airconditioning And M/s. Proactive Plast Pvt. Ltd. Versus State Of U.P. And 02 Others And State Of U.P. And 3 Others
GST
2018 (9) TMI 1261 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 193 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 18-9-2018
Writ Tax No. – 587 of 2018, 454 of 2018, 455 of 2018, 462 of 2018, 458 of 2018, 559 of 2018, 560 of 2018, 478 of 2018, 464 of 2018, 551 of 2018, 87 of 2018
GST
Sudhir Agarwal And Ifaqat Ali Khan, JJ.
For the Petitioner : Praveen Kumar, Atul Gupta,Utkarsh Malviya, Nishant Mishra, Bipin Kumar Pandey,Aditya Pandey, Ritvik Upadhya,Vinod Kumar Upadhya, Nishant Mishra,Vipin Kumar Kushwaha, Praveen Kumar, Nishant Mishra,Tanmay Sadh
F

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226 of Constitution of India has been filed challenging order dated 21st March 2018 passed by Assistant Commissioner, State Commercial Tax, Mobile Squad, Unit-I, Shamli in purported exercise of powers under Section 129 (1) of UPGST Act, 2017 on the allegation that in respect of goods transported by Vehicle No. DL-1LW-5527, aforesaid authority has reason to believe that for evasion of State Goods and Service Tax (hereinafter referred to as “SGST”) goods have been transported by said vehicle. Estimated value of goods constituting machines and parts, mentioned in the order is Rs. 9,85,000/-. Petitioner M/s. Godrej and Boyce Manufacturing Company Limited has transported six loading/unloading machines from its manufacturing unit situated at Thane, (State of Maharashtra) through two tax invoices dated 16.03.2018, to its Ghaziabad office, for the purpose of being used at Warehouse of M/s. Alstom Manufacturing India Pvt. Limited, Saharanpur as inter unit stock. Aforesaid goods were transporte

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ssistant Commissioner, requiring petitioner to show cause up to 28.03.2018 as to why tax and penalty of Rs. 1,87,300/- may not be imposed upon the petitioner. The aforesaid order of seizure has been challenged on the ground that mistake was unintentional, Assistant Commissioner has no jurisdiction to pass order of seizure as there is no requirement of carrying any other E-Way Bill under U.P.G.S.T Act, 2017 and Rules framed thereunder.
(II) Writ Tax No. 454 of 2018
3. This writ petition has been filed by M/s. LG Electronics India Limited assailing interception memo dated 15.03.2018, seizure order dated 16.03.2018 and show cause notice dated 16.03.2018 issued by Assistant Commissioner, State Commercial Tax Division Mobile Squad III, Sonbhadra. This writ petition has also challenged Notification dated 21.07.2017 issued by State of U.P. making carrying on E-Way Bill-01 for import of goods worth Rs. 50,000/- from out side the State in State of U.P. mandatory, and also letters dated 06.02.

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HR3SV0769 against G.R. No. 3001-3002 dated 14.03.2018 issued by Transporter to petitioner. Tax invoices issued in respect to aforesaid goods were numbered as STNAKW2018647, STNAKW2018648 and STNAKW2018649 dated 13.03.2018. All the requisite details of transportation of said goods were mentioned in receipts issued by Transporter. Requisite documents were with driver of vehicle. The vehicle was intercepted by Mobile Squad Team of Uttar Pradesh Commercial Tax Division, (hereinafter referred to as “UPCTD”) and detained at Raparganj, District Sonbhadra by Assistant Commissioner Mobile Squad III. Interception memo dated 15.03.2018 at 10:30 A.M was issued and handed over to driver of vehicle. Memo of interception was issued on the ground that driver of vehicle was not carrying E-Way Bill 01, though in possession of original tax invoices issued by Consignor and LR receipts issued by Transporter. Thereafter physical verification was made by Assistant Commissioner who submitted report dated 16.0

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It is duly registered under U.P.G.S.T Act 2017 having GSTIN No. 09AAACB2894GIZP.
Petitioner transferred stock by two consignments of eight boxes each, of telecom goods from its New Delhi office to Varanasi. It generated two separate E-Way Bill-01 giving details of both the transactions including details of goods and vehicle number. These two E-Way Bills numbered as 1803W177918800367522 and 1803W177918800369265 dated 12.03.2018. The goods were transported through GIR Movers Pvt. Limited by vehicle no. UP32F/N6684. Petitioner also issued invoices-Cum-Challan no. DLG25723 and DLG25727 dated 12.03.2018 for two transactions after charging Integrated Goods and Service Tax (hereinafter referred to as “I.G.S.T Act”) at the rate of 18%.
When goods were in transit from Delhi to Varanasi, the vehicle in which they were being transported i.e. UP32F/N6684, broke down.
Hence goods were transferred to another vehicle no. DL1GC/3360 at Hathras. Aforesaid vehicle DL1GC/3360 while crossing Commercia

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thereunder.
The mechanism of E-Way Bill under Central Goods and Service Tax Rules 2017 (hereinafter referred to as “CGST Rules 2017”) have not been implemented by Central Government. Hence, E-Way Bill alongwith goods were not carried by Transporter and that cannot be a ground for seizure or imposition of penalty. Hence, there is no violation of any provisions of IGST Act 2017/CGST Act 2017 or the Rules framed thereunder. Therefore, provisions of section 129 (1) of UPGST Act cannot be invoked against petitioner. UPGST Act 2017 cannot transgress upon field occupied by IGST Act 2017 and Notification issued under Rule 129 is beyond the power conferred by UPGST Act 2017.
(IV) Writ Tax No. 46 2 of 2018
5. This writ petition has been filed under Article 226 of Constitution of India by M/s. Guala Closures (India) Pvt., Ltd., having its Registered Office D-1, Sesa Ghor, Patto, P.O. Box No. 101, Panjim, Goa, challenging order of seizure dated 05.03.2018 and show cause notice of same date. Pe

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ound that State E-Way Bill- 01, was not being carried by transporter. Thereafter a seizure order was issued on 05.03.2018 alleging that without E-Way Bill- 01 goods were being transported in State of U.P. from outside U.P. A show cause notice under section 129 (3) of U.P.G.S.T. 2017 was also issued on 05.03.2018. It is also challenged on the ground that respondents have no authority to intercept goods, detain, and pass order of seizure as there was no requirement of carrying E-Way Bill- 01 and provisions of provincial Statute cannot override provisions of Central Statute.
(V) Writ Tax No. 458 of 2018
6. This writ petition has been filed by M/s. RAS Polytex Pvt. Ltd having its manufacturing unit E-II, Ramnagar, Industrial Area, Chandauli (State of U.P.). It has assailed seizure order dated 09.03.2018 passed by Deputy Commissioner/Assistant Commissioner, Unit Chandauli and notice dated 09.03.2018 passed under section 129 (3) of U.P.G.S.T. Act 2017. It has also sought a writ of certiora

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Way Bill-01.
Seizure order was passed under section 129 (1) on 09.03.2018 and it is also mentioned that U.P. E-Way Bill was not accompanied and Central E-Way Bill dated 07.03.2018 was generated on trial basis, therefore, it was not legally acceptable. Respondent 4 also issued notice under section 129 (3) proposing imposition of tax of Rs. 1,07,460/- and penalty of same amount i.e. Rs. 1,07,460/-.
(VI) Writ Tax No. 559 of 2018 & Writ Tax No. 560 of 2018
7. Both these writ petitions have been filed by same petitioner M/s. Rimjhim Ispat Limited, having its manufacturing unit at Industrial Area, Sumerput, District Hamirpur (U.P.) and registered office at 123/360, Fazalganj, Kanpur. In Writ Petition No. 559 of 2018 seizure order dated 11.03.2018 and show cause notice issued under section 129 (3) dated 17.03.2018 have been challenged, which have been passed by Assistant Commissioner GST/State Tax, Mobile Squad, 7th Unit Kanpur. Here petitioner sold Stainless Steel Bright Bars to M/s. M.R.

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ies Limited Unit-II, B-3, Site II, Loni Road Industrial, Mohan Nagar District Ghaziabad were being transported through Transporter M/s. Buland Road Transport Company by Truck no. UP78BT2199. Petitioner has generated tax invoice no. 08440 dated 28.02.2018 for goods worth Rs. 21,31,051/- which includes IGST. E-Way Bill-02 dated 28.02.2018 was also generated by petitioner giving all details. Same were intercepted and detained by Assistant Commissioner Mobile Squad, Kannauj on the ground that E-Way Bills had already expired. Consequently seizure order was passed on 07.03.2018 and a show cause notice under section 129 (3) were issued on the same date, proposing tax of Rs. 3,27,420/- and penalty of same amount.
(VII) Writ Tax No. 478 of 2018
9. This writ petition has been filed by M/s. Gaurang Products Pvt. Ltd., having its Unit at Industrial Area, Ghaziabad challenging, seizure order dated 19.03.2018 and show cause notice of the same date issued by Assistant Commissioner, State/Commercial

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posing to impose tax of Rs. 1,23,764/- and equivalent amount of penalty.
(VIII) Writ Tax No. 464 of 2018
10. This writ petition has been filed by M/s. Aditya Birla Fashion and Retail Ltd., Rave Multiplex Complex, V.I.P. Road, Kanpur.
Petitioner placed an order for supply of certain goods (advertising material) to M/s. J.K. Advertising, J-10, Jahangeerpuri, New Delhi in respect of said goods. 7 invoices were prepared on 11/12.03.2018 and goods were transported through Transporter M/s. Maa Chamunda Devi Transport Service, Tilak Nagar, New Delhi, through truck no. HR55AA-0252. Transporter issued four separate GRs on 12.03.2018 and also downloaded a consolidated E-Way Bill for the aforesaid transaction from the website of Central Government on 12.03.2018.
While in transit, goods were intercepted by Assistant Commissioner Mobile Squad Unit, Etah, in the morning on 13.03.2018 and same were detained on the ground that E-Way Bill-01 of U.P. Government was not available alongwith goods. Aft

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for delivery at Ghaziabad. The goods were intercepted by Assistant Commissioner Mobile Squad, Unit-V, Noida on 24.03.2018 and detained on the ground that goods did not accompany E-Way Bill-01 prescribed under UPGST Rules 2017. A seizure order was passed on 25.03.2018 and notice under section 129 (3) was also issued on the same date proposing levy of tax of Rs. 1,54,699/- and penalty of the same amount.
(X) Writ Tax No. 87 of 2018
12. This writ petition has been filed by M/s. Proactive Plast Pvt. Ltd., Plots No. 274, 275, 280, 281, Ecotech-1 Extension, Kasna, Greater Noida, District Gautam Budh Nagar. He has filed this writ petition challenging seizure order dated 20.01.2018 and notice issued on same date under section 129 (1) and (3) of UPGST Act 2017.
Petitioner company is engaged in manufacture of packing material and registered under UPGST Act 2017, having GST TIN No. 09AADCP5536C1ZJ. Petitioner placed purchase order of raw material i.e. 2,500 Kg of NUCREAL AE Resin and 7,500 Kg

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under section 129 (1) and notice under section 129 (3) was also issued on the same date proposing tax of Rs. 31,17,500/- and penalty of same amount.
13. In order to give a consolidated bird eye view of details of invoices, seizure orders, show-cause notices and the amount of tax/penalty proposed, a chart is being given as under:
S. N.
Writ Petition No.
Name of petitioner
Date of invoice
Date of interception/seizure order
Date of show cause notice
Amount of tax/penalty proposed
Date of Final order
1.
587/2018
M/s Godrej and Boyce Manufacturing co. Ltd. Hapur.
16.3.18
21.3.18
21.3.18
374600/-

2.
454/2018
LG Electronics India Pvt. Ltd.
13.3.18
15.3.18/16.3.18
16.3.18
2326944/-

3.
455/2018
Bharti Airtel Limited
12.3.18
14.3.18
14.3.18
2552310/-

4.
462/2018
Mrs. Guala Closures (India) Pvt. Ltd.
23.2.18
5.3.18
5.3.
18 269378/-

5.
458/2018
M/s RAS Polytex Pvt. Ltd.
7.3.18
9.3.18
9.3.18
209520/-

6.
559/2018
Rimjhim Ispat Ltd.
8.3.18
11

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ion.
(ii) Provisions of U.P.G.S.T Act 2017 will have to sub-serve to the provision of I.G.S.T Act 2017 when goods are transported in an Inter-State transaction, which is governed by I.G.S.T Act 2017.
(iii) Fault in any case is unintentional and therefore, there could have been no seizure or imposition of penalty in the exercise of powers under Section 129.
(iv) Tax having already been paid and shown in tax invoices, there is no occasion to levy tax again on aforesaid goods and it is wholly without jurisdiction and illegal.
(v) Demand of penalty is illegal since applicable tax had already been paid prior to transportation of goods in the matters where the allegation is that e-way-bill has expired.
(vi) The fact is that vehicle transporting the goods broke down hence, goods were transferred to another vehicle or after repair transportation resumed therefore delay was neither intentional nor deliberate and hence penalty is not attracted.
(vii) Notification no. 1014 dated 21.07.2017

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ll-02 shall remain valid and this prescription by Commissioner is ultra-vires and beyond the power conferred upon him as it is not contemplated either under the Act or the Rules or even Notification dated 21 July, 2017 issued by State Government.
Prescription of time period of validity of e-way-bill-02 could have been done only by the State Government and not the Commissioner and this power exercised by Commissioner vide circular dated 09th August, 2017 is wholly ultra-vires.
(ix) Rule 138 confers no power upon State Government to subdelegate power to Commissioner.
(x) Commissioner in its circular dated 09th August 2017 has prescribed time period of validity for e-way-bill-01 for Inter- State movement and also for e-way-bill-02 for Intra-State movement. However, for the same distance, time period for eway- bill-02 is only 48 hours while for e-way-bill-01 it is ten days. This distinction/different period of time is clearly discriminatory and arbitrary having no rationale and nexus wi

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ions on Intra-State transactions and seizure orders and notices issued are wholly without jurisdiction.
15. Per-Contra learned Standing Counsel argued that a valid Notification was issued under Section 129 and petitioners having flouted the provisions thereof, in order to give opportunity, show cause notices have been issued after passing seizure orders and the same warrant no interference.
16. We have heard Sri V.K. Upadhyay, learned Senior Advocate assisted by Sri Praveen Kumar, Sri Nishant Mishra, Sri Ritvik Upadhyay, Sri Tanmay Sadh and Sri Atul Gupta, learned counsel for Petitioners and Sri Manish Goyal, Additional Advocate General assisted by Sri C.B. Tripathi, learned counsel for the respondents. We have also perused record of all writ petitions and relevant statutes in depth.
17. Concept of Goods and Services Tax (hereinafter referred to as “G.S.T.”) has been brought by Parliament through One Hundred and First Constitution Amendment vide “Constitution (One Hundred and First

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goods and services tax,-(1) Notwithstanding anything contained in Articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.
(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of Inter-state trade or commerce.
Explanation.- The provisions of this article, shall, in respect of goods and services tax referred to in clause (5) of Article- 279-A take effect from the date recommended by the Goods and Services Tax Council.”
“269-A. Levy and collection of goods and services tax in course of inter-State trade or commerce.-(1) Goods and services tax on supplies in the course of Inter-State trade or commerce shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as

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services, or both takes place in the course of inter-State trade or commerce.”
18. There are corresponding amendments in Articles 248, 249, 250, 268, 269, 270, 271, 286, 366, 368 and in Sixth and Seventh Schedules of the Constitution. Article 268-A has been omitted by the aforesaid Amendment. Provision of Constitution of Goods and Services Tax Council has been made by insertion of article 279-A.
19. Definitions of “Goods and Service Tax” and “Services” had been provided by insertion of clauses 12-A and 26-A in Article 366 and the aforesaid two clauses read as under:
“(12-A) “goods and services tax” means any tax on supply of goods, or services or both except taxes on the supply of the alcoholic liquor for human consumption;',
(26-A) “Services” means anything other than goods;”
20. Section 1 (2) of One Hundred and First Amendment Act 2016 provides that the aforesaid amendment of Constitution shall come into force on such date as Central Government may, by Notification in the Of

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person; to provide for conduct of audit of registered persons in order to verify compliance with the provisions of Act; to provide for recovery of arrears of tax using various modes including detaining and sale of goods, movable and immovable property of defaulting taxable person; to provide for powers of inspection search, seizure and arrest to the officers; to establish G.S.T Appellate Tribunal by Central Government; to make provision for penalties for contravention of the credit; to provide for an anti-profiteering clause in order to ensure that business passes on the benefit of reduced tax incidence on goods and services or both to the consumers and to provide for elaborate for transitional provisions.
23. IGST Act 2017 to some extent has replaced Central Sales Tax Act 1956. Article 269 of Constitution empowered Parliament to make laws on the taxes to be levied on the sale or purchase taking place in the course of Inter-State Trade or Commerce. Consequently Central Sales Tax 1956

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ervices on reverse charge basis; empower Central Government to grant exemptions; determination of nature of supply as to whether it is an Inter-State or an Intra-State supply; to provide elaborate provisions for determining place of supply in relation to goods or services or both; payment of tax by a supplier of online information and data-base access or retrieval services; refund of tax paid on supply of goods to tourist leaving India; apportionment of tax and settlement of funds and for transfer of input tax credit between Central Government, State Government and Union Territory; application of certain provisions of C.G.S.T Act 2017; and transitional transactions in relation to import of services made on or after appointed day.
24. Sections 1, 2, 3, 14, 20 and 22 of IGST Act 2017 were enforced w.e.f 22.06.2017. Sections 4 to 13, 16 to 19, 21, and 23 to 25 were enforced w.e.f 01.07.2017. For the purpose of execution of provisions of CGST Act 2017, Sections 3 to 5 make provisions for

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ral Tax or Assistant Directors of Central Tax, and
(i) any other class of officers as it may deem fit: PROVIDED that the officers appointed under the Central Excise Act, 1944 (1 of 1944) shall be deemed to be the officers appointed under the provisions of this Act.
4. Appointment of officers.- (1) The Board may, in addition to the officers as may be notified by the Government under Section 3, appoint such persons as it may think fit to be the officers under this Act.
(2) Without prejudice to the provisions of sub-section (1), the Board may, by order, authorise any officer referred to in clauses (a) to (h) of Section 3 to appoint officers of central tax below the rank of Assistant Commissioner of central tax for the administration of this Act.
5. Powers of officers.- (1) Subject to such conditions and limitations as the Board may impose, an officer of central tax may exercise the powers and discharge the duties conferred or imposed on him under this Act.
(2) An officer of central

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ubject to the conditions specified in the Notification issued under sub-section (1),
(a) where any proper officer issues an order under this Act, he shall also issue an order under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as authorised by the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, under intimation to the jurisdictional officer of State tax or Union territory tax;
(b) where a proper officer under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act has initiated any proceedings on a subject matter, no proceedings shall be initiated by the proper officer under this Act on the same subject matter.
(3) Any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under this Act shall not lie before an officer appointed under the State Goods and Services Tax Act or the Union Territory

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therein, in relation to Integrated Tax in the same manner as CGST Act 2017 applies in relation to Section 20 of IGST Act 2017 which reads as under:-
“20. Application of provisions of Central Goods and Services Tax Act.- Subject to the provisions of this Act and the rules made thereunder, the provisions of Central Goods and Services Tax Act relating to,-
(i) scope of supply;
(ii) composite supply and mixed supply;
(iii) time and value of supply;
(iv) input tax credit;
(v) registration;
(vi) tax invoice, credit and debit notes;
(vii) accounts and records;
(viii) returns, other than late fee;
(ix) payment of tax;
(x) tax deduction at source;
(xi) collection of tax at source;
(xii) assessment;
(xiii) refunds;
(xiv) audit;
(xv) inspection, search, seizure and arrest;
(xvi) demands and recovery;
(xvii) liability to pay in certain cases;
(xviii) advance ruling;
(xix) appeals and revision;
(xx) presumption as to documents;
(xxi) offences and penaltie

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ion to States) Act, if charged separately by the supplier:
PROVIDED ALSO that in cases where the penalty is leviable under the Central Goods and Services Tax Act and the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, the penalty leviable under this Act shall be the sum total of the said penalties.”
28. As we have already said section 3 of IGST Act 2017 was made effective from by 22.06.2017 and section 4 was made effective from 01.07.2017. Section 164 of CGST Act 2017 confers Rule framing power upon Central Government and pursuant thereto CGST Rules 2017 were made and enforced w.e.f 22nd June 2017. Similarly section 22 of IGST Act 2017 confers power upon Central Government to makes Rules and pursuant thereto Integrated Goods and Service Rules 2017 (hereinafter referred to as “IGST Rules 2017”) were framed and came into force w.e.f 22.06.2017. It is a small set of Rules containing only two Rules. Rule 1 relates to short title and commencement Rule

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ct 2017
UPGST Act 2017
129. Detention, seizure and release of goods and conveyances in transit.-
(1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released,-
(a) on payment of the applicable tax and penalty equal to one hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty;
(b) on payment of the applicable tax and penalty equal to the fifty per cent of the value of the goods reduc

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under subsection (3) without giving the person concerned an opportunity of being heard.
(5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded.
(6)Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within seven days of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of Section 130:
PROVIDED that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer.
129. Detention, seizure and release of goods and conveyances in transit.-
(1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of thi

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on furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed:
Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods.
(2) The provisions of sub-section (6) of Section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances.
(3) The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c).
(4) No tax, interest or penalty shall be determined under subsection (3) without giving the person concerned an opportunity of being heard.
(5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub- section (3) shall be deemed to be concluded.
(6) Where the person transporting any

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ay be specified to carry with him such documents and such devices as may be prescribed.
(2) The details of documents required to be carried under subsection (1) shall be validated in such manner as may be prescribed.
(3) Where any conveyance referred to in sub-section (1) is intercepted by the proper officer at any place, he may require the person in charge of the said conveyance to produce the documents prescribed under the said sub-section and devices for verification, and the said person shall be liable to produce the documents and devices and also allow the inspection of goods.
68. Inspection of goods in movement.-
(1) The Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed.
(2) The details of documents required to be carried under subsection (1) shall be validated in such manner as may be prescribed.
(3) Where an

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uch time as an E-way-Bill system is developed and approved by the Council, the Government may, by Notification, specify the documents that the person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage.
33. U.P. Government in purported exercise of powers under Rule 138 of UPGST Rules 2017, issued a Notification no. KA.NI-1014/XI- 9(52)/17-UPGST-Rules-2017-Order-(31)-2017-Lucknow dated 21st July 2017 specifying documents required be carried by a person in charge of conveyance carrying any consignment of goods while in movement or in transit, storage in U.P. and it reads as under:-
“Uttar Pradesh Shashan
Sansthagat Vitta, Kar Evam Nibandhan Anubhag -2
Notification
No.-K.A.NI.-1014/XI-9(52)/17-U.P.GST Rules-2017-
Order-(31)-2017
Lucknow : 21 July 2017
In exercise of the powers under Rule 138 of the Uttar Pradesh Goods and Services Tax Rules, 2017 framed under the Uttar Pradesh Goods and Services Tax Act, 201

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the goods during the transportation or transit storage of the goods:
a) Mentha Oil, Menthol and D.M.O.,
b) Supari,
c) Iron and Steel,
d) All types of edible oils and Vanaspathi ghee.
(3) In case of transportation of taxable goods by ecommerce operators or their authorized transporters, courier agents or agents for delivery to a person within Uttar Pradesh, the enclosed form e-way bill-03 shall be carried with such goods during the transportation of goods or transit storage within State.
(4) In case of transportation of taxable goods valuing Rs. 5,000 or more from a place outside Uttar Pradesh to a place outside the State, the form TDF-01 shall be carried with such goods during the transportation of goods or their transit storage within the State and on the exit of goods from the State, the information shall be provided in Form TDF-02.
(5) The forms mentioned in clauses (1), (2), (3) and (4) above shall be downloaded by the procedure prescribed by the Commissioner State Tax/

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7 was issued amending procedure for downloading relevant forms and it was also declared that Government Notification dated 21.07.2017 shall be effective from 16.08.2017.
35. Further in exercise of powers under Section 164 of UPGST Act 2017, U.P. Goods and Services Tax (Fourth Amendment) Rules 2017 (hereinafter referred to as 'UPGST (Fourth Amendment) Rules 2017') were published vide Notification no. KA.NI-2-1359/XI-9(42)/17- UPGST-Rules-2017-Order-(45)-2017-Lucknow dated 20th September 2017 and Rule 138 was substituted by following Sub Rule 1 to 14:-
“138. Information to be furnished prior to commencement of movement of goods and generation of e-way bill.-
(1) Every registered person who causes movement of goods of consignment value exceeding fifty thousand rupees-
(i) in relation to a supply; or
(ii) for reason other than supply; or
(iii) due to inward supply from an unregistered person.
shall, before commencement of such movement, furnish information relating to the

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rate and carry the e-way bill even if the value of the consignment is less than fifty thousand rupees:
Provided further that where the movement is caused by an unregistered person either in his own conveyance or a hired one or through a transporter, he or the transporter may, at their option, generate the e-way bill in FORM GST EWB-01 on the common portal in the manner specified in this rule
Provided also that where the goods are transported for a distance of less than ten kilometers within the State or Union territory from the place of business of the consignor to the place of business of the transporter for further transportation, the supplier or the transporter may not furnish the details of conveyance in Part B of FORM GST EWB-01.
Explanation I. For the purposes of this sub-rule, where the goods are supplied by an unregistered supplier to a recipient who is registered, the movement shall be said to be caused by such recipient if the recipient is known at the time of commencement

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accordance with the provisions of sub-rule (1), where multiple consignments are intended to be transported in one conveyance, the transporter may indicate the serial number of e-way bills generated in respect of each such consignment electronically on the common portal and a consolidated e-way bill in FORM GST EWB-02 may be generated by him on the said common portal prior to the movement of goods.
(7) Where the consignor or the consignee has not generated FORM GST EWB-01 in accordance with the provisions of subrule
(1) and the value of goods carried in the conveyance is more than fifty thousand rupees, the transporter shall generate FORM GSTEWB-01 on the basis of invoice or bill of supply or delivery challan, as the case may be, and may also generate a consolidated e-way bill in FORM GST EWB-02 on the common portal prior to the movement of goods.
(8) The information furnished in Part A of FORM GST EWB-01 shall be made available to the registered supplier on the common portal who ma

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able
Sr. no.
Distance
Validity period
(1)
(2)
(3)
1.
Upto 100 km
One day
2.
For every 100 km or part thereof thereafter
One additional day
 
Provided that the Commissioner may, by Notification, extend the validity period of e-way bill for certain categories of goods as may be specified therein: Provided further that where, under circumstances of an exceptional nature, the goods cannot be transported within the validity period of e-way bill, the transporter may generate another e-way bill after updating the details in Part B of FORM GST EWB-01
Explanation.-For the purposes of this rule, the “relevant date” shall mean the date on which the e-way bill has been generated and the period of validity shall be counted from the time at which the e-way bill has been generated and each day shall be counted as twenty-four hours.
(11) The details of e-way bill generated under sub-rule (1) shall be made available to the recipient, if registered, on the common portal, who

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d within such areas in the State and for values exceeding such amount as the Commissioner of State Tax in consultation with the Chief Commissioner of Central Tax may notify.
Explanation- The facility of generation and cancellation of eway bill may also be made available through SMS.”
36. Rules 1 (2) of UPGST (4th Amendment) Rules 2017 provides that amendment in the Rules notified on 20th September 2017 shall come into force on such date as State Government may by Notification in official gazette appoint, By the aforesaid Amendment it also inserted Rules 138-A, Rule 138-B, Rule 138-C and Rule 138-D.
37. In furtherance of Rule 1 (2) of UPGST (4th Amendment) Rules 2017 read with section 164 of UPGST Act 2017 and 21 of U.P. General Clauses Act, Governor by Notification No. KA.NI-2-138/XI-9(42)/17- U.P. Act-1-2017-Order-(101)-2018 dated 30.01.2018 appointed 1st February 2018 enforcing the amendment made in the provisions at serial no. 10 and 11 of notification no. KA.NI-2-1359/XI-9(42)/1

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-U.P. GST Rules-2017-Order-(45)-2017 dated 20-10-2017, shall come into force.”
38. Perhaps this mistake was noticed by Government subsequently and, therefore, it issued another Notification no. KA.NI-177/XI-9- (42)/17-UP Act-1-2017-Order-(109)-2018-Lucknow- dated 6th February 2018, whereby Notification no. KA.NI-2-138/XI-9(42)/17-UP-Act-1- 2017-Order-(101)-2018-Lucknow dated 30th January 2018 was rescinded. Notification dated 6th February 2018 reads as under:
“Notification
KA.NI.177/XI-9(42)/17-U.P. ACT-1-2017-ORDER (109)-2018,
DATED 6-2-2018
In exercise of the powers conferred by section 164 of the Uttar Pradesh Goods and Services tax Act, 2017 (U.P. Act no 1 of 2017) read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act no. 1 of 1904), the Governor hereby rescinds, except as respects things done or omitted to be done before such rescission, the Notification no. KA.NI.-2-138/XI- 9(42)/17-U.P.Act-l-2017-Order-(101)-2018 dated 30-1-2018.”
39. Before 06.02.2

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e common portal along with such other information as may be required at the common portal and a unique number will be generated on the said portal:
Provided that where goods are sent by a principal located in one State to a job worker located in any other State, the e-way bill shall be generated by tie principal irrespective of the value of the consignment:
Provided further that where handicraft goods are transported from one State in another by a person who has been exempted from the requirement of obtaining registration under clauses (i) and (ii) of section 24, the e-way bill shall be generated by the said person irrespective of the value of the consignment,
Explanation 1.-For the purposes of this rule, the expression “handicraft goods” has the meaning as assigned to it in Notification No. KA.NI.-2-1414/XI-9(15)/17-U.P. Act-1-2017- Order-(48)-2017 dated 27-09-2017 as amended from time to time.
Explanation 2.-For the purposes of this rule, the consignment value of goods shall be t

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d date of the Railway Receipt or the Air Consignment Note or Bill of lading, as the case may be.
(3) Where the e-way bill is not generated under sub-rule (2) and the goods are handed over to a transporter for transportation by road, the registered person shall furnish the information relating to the transporter on the common portal and the e-way bill shall be generated by the transporter on the said portal on the basis of the information furnished by the registered person in Part A of FORM GST EWB-01:
Provided that the registered person or, the transporter, as the case may be may, at his option, generate and carry the e-way bill even if the value of the consignment is less than fifty thousand rupees:
Provided further that where the movement is caused by an unregistered person either in his own conveyance or a hired one or through a transporter, he or the transporter may, at their option, generate the e-way bill in FORM GST EWB-01 on the common portal in the manner specified in this

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a unique e-way bill number (EBN) shall be made available to the supplier, the recipient and the transporter on the common portal. (5) Where the goods are transferred from one conveyance to another, the consigner or the recipient, who has provided information in Part- A of the FORM GST EWB-01, or the transporter shall, before such transfer and further movement of goods, update the details of conveyance in the e-way bill on the common portal in FORM GST EWB-01:
Provided that where the goods are transported for a distance of less than ten kilometers within the State or Union Territory from the place of business of the transporter finally to the place of business of the consignee, the details of conveyance may not be updated in the e-way bill.
(5A) The consignor or the recipient, who has furnished the information in Part-A of FORM GST EWB-01, or the transporter, may assign the e-way bill number to another registered or enrolled transporter for updating the information in Part-B of FORM G

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upees, the transporter shall generate FORM GST EWB-01 on the basis of invoice or bill of supply or delivery challan, as the case maybe, and may also generate a consolidated e-way bill in FORM GST EWB-02 on the common portal prior to the movement of goods:
Provided that where the goods to be transported are supplied through an e-commerce operator, the information in Part A of FORM GST EWB-01 may be furnished by such ecommerce operator.
(8) The information furnished in Part A of FORM GST EWB-01 shall be made available to the registered supplier on the common portal who may utilize the same for furnishing details in FORM GSTR-1:
Provided that when the information has been furnished by an unregistered supplier or an unregistered recipient in FORM GST EWB-01, he shall be informed electronically, if the mobile number or the e-mail is available.
(9) Where an e-way bill has been generated under this rule, but goods are either not transported or are not transported as per the details furnis

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ecified therein:
Provided further that where, under circumstances of an exceptional nature, the goods cannot be transported within the validity period of the e-way bill, the transporter may generate another e-way bill after updating the details in Part B of FORM GST EWB-01.
Explanation.-For the purposes of this rule, the “relevant date” shall mean the date on which the e-way bill has been generated and the period of validity shall be counted from the time at which the e-way bill has been generated and each day shall be counted as twenty-four hours.
(11) The details of e-way bill generated under sub-rule (1) shall be made available to the –
(a) supplier, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the recipient or the transporter; or
(b) recipient, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the supplier or the transporter,
on the common portal, and the supplier or the recipient, as the case

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ustoms;
(d) in respect of movement of such goods and within such areas in the State as the Commissioner of state tax, in consultation with the Principal Chief Commissioner/Chief Commissioner of central tax, may notify;
(e) where the goods, other than de-oiled cake, being transported are specified in the Schedule appended to Notification No.KA.NI-2-837/XI-9(47)/17-UP Act-1-2017- Order-(07)-2017 dated 30.6.2017 as amended from time to time;
(f) where the goods being transported are alcoholic liquor for human consumption, petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas or aviation turbine fuel; and
(g) where the goods being transported are treated as no supply under Schedule III of the Act.
Explanation- The facility of generation and cancellation of eway bill may also be made available through SMS.”
41. To complete the chain of the events, we may mention that UPGST (Fourteenth Amendment) Rules 2018 (hereinafter referred to as “(Fourteenth

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GST EWB-01, electronically, on the common portal along with such other information as may be required on the common portal and a unique number will be generated on the said portal:
Provided further that where the goods to be transported are supplied through an e-commerce operator or a courier agency, on an authorization received from the consignor, the information in Part A of FORM GST EWB-01 may be furnished by such e-commerce operator or courier agency and a unique number will be generated on the said portal:
Provided also that where goods are sent by a principal located in one State or Union territory to a job worker located in any other State or Union territory, the e-way bill shall be generated either by the principal or the job worker, if registered, irrespective of the value of the consignment:
Provided also that where handicraft goods are transported from one State or Union territory to another State or Union territory by a person who has been exempted from the requirement o

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tered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or a public conveyance, by road, the said person shall generate the e-way bill in FORM GST EWB-01 electronically on the common portal after furnishing information in Part B of FORM GST EWB-01.
(2A) Where the goods are transported by railways or by air or vessel, the e-way bill shall be generated by the registered person, being the supplier or the recipient, who shall, either before or after the commencement of movement, furnish, on the common portal, the information in Part B of FORM GST EWB-01:
Provided that where the goods are transported by railways, the railways shall not deliver the goods unless the eway bill required under these rules is produced at the time of delivery,
(3) Where the e-way bill is not generated under sub-rule (2) and the goods are handed over to a transporter for transportation by road, the registered person shall furnish the information relat

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nsporter may not furnish the details of conveyance in Part B of FORM GST EWB-01.
Explanation 1- For the purposes of this sub-rule, where the goods are supplied by an unregistered supplier to a recipient who is registered, the movement shall be said to be caused by such recipient if the recipient is known at the time of commencement of the movement of goods.
Explanation 2.-The e-way bill shall not be valid for movement of goods by road unless the information in Part-B of FORM GST EWB-01 has been furnished except in the case of movements covered under the third proviso to sub-rule (3) and the proviso to sub-rule (5).
(4) Upon generation of the e-way bill on the common portal, a unique e-way bill number (EBN) shall be made available to the supplier, the recipient and the transporter on the common portal.
(5) Where the goods are transferred from one conveyance to another, the consignor or the recipient, who has provided information in Part A of the FORM GST EWB-01, or the transporter s

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assign the e-way bill number to another transporter.
(6) After e-way bill has been generated in accordance with the provisions of sub-rule (1), where multiple consignments are intended to be transported in one conveyance, the transporter may indicate the serial number of e-way bills generated in respect of each such consignment electronically on the common portal and a consolidated e-way bill in FORM GST EWB-02 may be generated by him on the said common portal prior to the movement of goods.
(7) Where the consignor or the consignee has not generated the e-way bill in FORM GST EWB-01 and the aggregate of the consignment value of goods carried in the conveyance is more than fifty thousand rupees, the transporter, except in case of transportation of goods by railways, air and vessel, shall, in respect of inter-State supply, generate the e-way bill in FORM GST EWB-01 on the basis of invoice or bill of supply or delivery challan, as the case may be, and may also generate a consolidated e

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f the e-way bill:
Provided that an e-way bill cannot be cancelled if it has been verified in transit in accordance with the provisions of rule 138B:
Provided further that the unique number generated under sub-rule (1) shall be valid for a period of fifteen days for updation of Part B of FORM GST EWB-01.
(10) An e-way bill or a consolidated e-way bill generated under this rule shall be valid for the period as mentioned in column (3) of the Table below from the relevant date, for the distance, within the country, the goods have to be transported, as mentioned in column (2) of the said Table:-
Sr. No.
Distance
Validity period
(1)
(2)
(3)
1.
Upto 100 km.
One day in cases other than Over Dimensional Cargo
2.
For every 100 km. or part thereof thereafter
One additional day other than Over Dimensional Cargo
3.
Upto 20 km.
One day in case of Over Dimensional Cargo
4.
For every 20 km. or part thereof thereafter
One additional day in case of Over Dimensional Cargo:

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unit and which exceeds the dimensional limits prescribed in rule 93 of the Central Motor Vehicle Rules, 1989, made under the Motor Vehicles Act, 1988 (59 of 1988).
(11) The details of the e-way bill generated under this rule shall be made available to the-
(a) supplier, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the recipient or the transporter; or
(b) recipient, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the supplier or the transporter,
on the common portal, and the supplier or the recipient, as the case may be, shall communicate his acceptance or rejection of the consignment covered by the e-way bill.
(12) Where the person to whom the information specified in subrule
(11) has been made available does not communicate his acceptance or rejection within seventy two hours of the details being made available to him on the common portal, or the time of delivery of goods whichever is earlier,

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goods, other than de-oiled cake, being transported, are specified in the Schedule appended to Notification No. KA.NI.-2-837/XI-9{47)/17-U.P.Act-l- 2017-Order-(07)-2017 dated 30-06-2017 as amended from time to time;
(f) where the goods being transported are alcoholic liquor for human consumption, petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas or aviation turbine fuel;
(g) where the supply of goods being transported is treated as no supply under Schedule III of the Act;
(h) where the goods are being transported-
(i) under customs bond from an inland container depot or a container freight station to a customs port, airport, air cargo complex and land customs station, or from one customs station or customs port to another customs station or customs port, or
(ii) under customs supervision or under customs seal;
(i) where the goods being transported are transit cargo from or to Nepal or Bhutan;
(j) where the goods being transported are

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updation and assignment of e-way bill shall be made available through SMS to the supplier, recipient and the transporter, as the case may be.”
42. Rule 1 (2) of 14th Amendment Rules, 2018 provides that the provisions in said Notification shall come into force on such date as State Government may by Notification in the gazette, appoint. In furtherance thereof, State Government has issued Notification no. KA.NI-2-498/XI-9(42)/17-UP-Act-1-2017-Order-(121)-2018-Lucknow dated 27.03.2018 appointing 01.04.2018 for giving effect to Rule 3 [other than sub-rule(7)] and rules 4, 5, 6, 7 and 8 on (Fourteenth Amendments) Rules 2018. The said Notification reads as under:-
“Notification
KA.NI.-2-498/XI-9(42)/17-U.P. ACT-1-2017-ORDER-(121)-
2018, Lucknow Dated March 27, 2018
In exercise of the powers under sub-rule (2) of rule 1 of the Uttar Pradesh Goods and Services Tax (Fourteenth Amendment) Rules, 2018 published with Notification No. KA.NI.-2-487/XI- 9(42)/17-U.P. GST Rules-2017, Order-(120)

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hat till such time e-way bill system is developed and approved by GSTC, the Government may, by Notification, specify the documents that a person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage. This rule 138 in U.P. GST Rules, 2017 came into force on 29.06.2017. In furtherance of Rule 138 of U.P. GST Rules, 2017, first Notification was issued by Governor on 21.07.2017 but this Notification also declares that Notification itself shall be effective from such date as Commissioner, State Tax/Commercial Tax may mention in the circular prescribing procedure of downloading the forms mentioned in the said Notification. Thus in furtherance of Rule 138 of U.P. GST Rules, 2017, which came into force on 29.06.2017, first Notification though issued on 21.07.2017 but it was not made effective from that date and, on the contrary, it was to be declared by Commissioner State Tax/Commercial Tax. In furtherance of State Governm

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16.08.2017.
45. Then comes amendment by substitution of Rule 138 by Notification dated 20.09.2017. However, it was not made effective and operative since for the said purpose, Rule-1(2) of U.P. GST (Fourth Amendment) Rules 2017 requires another Notification by State Government, appointing date of enforcement of substituted Rule 138.
This substituted Rule 138 as notified on 20.9.2017 was sought to be enforced with effect from 01.02.2018 by Notification dated 30.01.2018 but a glaring error was committed and instead of giving effect to Notification dated “20.09.2017”, it mentioned the date as “20.10.2017”.
Thus Notification dated 20.09.2017 did not come into effect and Rule 138 as sought to be substituted by Notification dated 20.09.2017 remained unenforced and inoperative. On 31.01.2018 UPGST (Thirteenth Amendment) Rules 2018, were published which came into force w.e.f. 23.1.2018, except otherwise provided in the Notification dated 31.01.2018. Substituted Rule 138 made by Notificatio

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.2.2018), were different than what was alleged to be non-possessed or obtained by Petitioners or Transporters, carrying goods in dispute by making reference to Government's Notification dated 21.07.2017 and Commissioner's Circular dated 09.08.2017. Even the authorities concerned, it is evident, were not clear as to what are the correct Forms in these cases.
47. Further, it is not the case of respondents that the Forms consistent with Rule 138 made effective from 01.02.2018 were made available on the portal.
48. We also find that under Rule 138 (10) period of validity of e-way bill was clearly different than what was mentioned in Commissioner's Circulars dated 09.08.2017. Thus, Rule 138 as was brought in by Notification dated 31.01.2018 w.e.f. 01.02.2018 was operative during the period of transactions with which we are concerned in the present set of writ petitions, except writ petition no. 87 of 2018 which is governed by Rule 138, as initially enacted read with Government

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and, hence, adhered to compliance of provisions which stood already substituted by new provisions and earlier ones had become otiose. Insistence upon petitioners, at the time of issue of seizure memos and show cause notices to have downloaded E-way-bill 01 and/or 02 and its non compliance by referring to Government's Notification dated 21.07.2017 read with Commissioner's Circulars dated 22.07.2017 and 09.08.2017 and also Rule 138 as substituted vide Government Notification dated 20.09.2017, though it was never imposed and made operative, was/is clearly erroneous and illegal.
Notification dated 31.01.2018 whereby Rule 138 was completely changed by substitution and made effective from 01.02.2018, it appears, escaped attention of authorities concerned, though it is this provision which had to be complied by petitioners. Unfortunately, authorities concerned have completely failed to observe the same. It appears that for the field authorities there was a gross chaos on account of q

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matter of fact, never became operative. The first amendment by substitution of Rule 138 is by way of U.P. GST (Thirteenth Amendment) Rules 2018 vide Notification dated 31.01.2018 which came into force on 01.02.2018 and it continued upto 31.03.2018. Thereafter, it stands substituted by another Rule 138 vide U.P. GST (Fourteenth Amendment) Rules 2018, Notification dated 26.03.2018, made effective from 01.04.2018. Probably, the above pace of change derailed respondent authorities also in their understanding as to which provision has to be followed and implemented and what has to be observed/applied/obeyed by Petitioners and their Transporters. That is how impugned orders have been passed under a clear misconception of non-downloading of e-way bill 01 or 02, as the case may be, though under Rule 138, which had come into force on 01.02.2018, the Form(s) required to be downloaded by Dealers or Transporters are different.
53. In these peculiar facts and circumstances of the case, in our vie

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te, provisions could not have been made by State Government of U.P. GST Act, 2017, hence Rule 138 of U.P. GST Rules, 2017 read with Notification dated 21.07.2017 and Commissioner's Circulars dated 22.07.2017 and 09.08.2017 are ultra vires.
55. We have already discussed relevant provisions of various Statutes and it is evident that the provisions are pari materia. Officers of State are also competent for search, seizure and imposition of penalty in respect of violation of Central Enactments. Moreover, provisions relating to search and seizure are not for the purpose of imposition of a new liability but to regulate fiscal statutory provisions in order to avoid evasion of tax. Nothing has been placed on record to show that similar requirement of relevant documents was not provided by Central Government also in respect of inter-state transactions. There is also a principle that mere mention of a wrong provision will not make an order bad, if otherwise, power exists in the Statute. In

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Governor of Haryana appoints the 1st day of October, 2018, as the date on which the provisions of section 52 of the Haryana Goods and Services Tax Act, 2017 shall come into force
87/GST-2 Dated:- 18-9-2018 Haryana SGST
GST – States
Haryana SGST
Haryana SGST
HARYANA GOVERNMENT
EXCISE AND TAXATION DEPARTMENT
Notification
The 18th September, 2018
No.87/GST-2.- In exercise of the powers conferred by sub-section (3) of section 1 of the Haryana Goods and Services Tax Act, 2017 (19 o

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Under section 1(3) to bring Section 51 of the HGST Act (provisions related to TDS) into force with effect from 01.10.2018 under HGST Act, 2017
86/GST-2 Dated:- 18-9-2018 Haryana SGST
GST – States
Haryana SGST
Haryana SGST
HARYANA GOVERNMENT
EXCISE AND TAXATION DEPARTMENT
Notification
The 18th September, 2018
No.86/GST-2.- In exercise of the powers conferred by sub-section (3) of section 1 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017) and in supersession of the Haryana Government, Excise and Taxation Department, Notification no. 84/ST-2, dated the 22nd September, 2017 except as respects things done or omitted to be done before such supersession, the Governor of Haryana hereby appoints the 1st day of October,

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Under section 148 to extend the due date for filling of FORM GSTR-1 for taxpayer having aggregate turnover up to 1.5 crores under HGST Act, 2017
84/GST-2 Dated:- 18-9-2018 Haryana SGST
GST – States
Haryana SGST
Haryana SGST
HARYANA GOVERNMENT
EXCISE AND TAXATION DEPARTMENT
Notification
The 18th September, 2018
No.84/GST-2.- In exercise of the powers conferred by section 148 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), (hereafter in this notification referred to as the said Act), and in supersession of –
(i) the Haryana Government, Excise and Taxation Department, Notification No. 129/ST-2, dated the 22nd November, 2017;
(ii) the Haryana Government, Excise and Taxation Department, Notification No. 47/ST-2

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Services Tax Rules, 2017, effected during the quarter as specified in column (2) of the Table below till the time period as specified in the corresponding entry in column (3) of the said Table, namely:-
Table
Serial No.
Quarter for which details in FORM GSTR-1 are furnished
Time period for furnishing details in FORM GSTR-1
(1)
(2)
(3)
1
July – September, 2017
31st October, 2018
2
October – December, 2017
31st October, 2018
3
January – March, 2018
31st October, 2018
4
April – June, 2018
31st October, 2018
5
July – September, 2018
31st October, 2018
6
October – December, 2018
31st January, 2019
7
January – March, 2019
30th April, 2019:
Provided that the details of outward supply of goods or services or both in FO

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Seeks to bring section 52 of the MGST Act (provisions related to TCS) into force w.e.f 01.10.2018.
51/2018-State Tax Dated:- 18-9-2018 Maharashtra SGST
GST – States
Maharashtra SGST
Maharashtra SGST
FINANCE DEPARTMENT
Madam Cama Marg, Hutatma Rajguru Chowk, Mantralaya
Mumbai 400 032, dated 18th September 2018
NOTIFICATION
Notification No. 51/2018-State Tax
MAHARASHTRA GOODS AND SERVICES TAX ACT, 2017.
No. GST.1018/C.R.93/Taxation-1. In exercise of the powers conferred by sub

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Extending time to submit declaration in form GST TRAN-1
12894/CT.,/Pol-41/1/2017-Policy Dated:- 18-9-2018 Orissa SGST
GST – States
Orissa SGST
Orissa SGST
Commissionerate of CT and GST, Odisha (At Cuttack)
(Finance Department, Government of Odisha)
No. 12894/CT.,/Pol-41/1/2017-Policy
Dated 18.09.2018
NOTIFICATION
In exercise of the powers conferred by sub-rule (1A) of rule 117 of the Odisha Goods and Services Tax Rules, 2017 read with section 168 of the Odisha Goods and Serv

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The Maharashtra Goods and Services Tax (Tenth Amendment) Rules, 2018.
49/2018-State Tax Dated:- 18-9-2018 Maharashtra SGST
GST – States
Maharashtra SGST
Maharashtra SGST
FINANCE DEPARTMENT
Madam Cama Marg, Hutatma Rajguru Chowk, Mantralaya
Mumbai 400 032, dated the 18th September, 2018
NOTIFICATION
Notification No. 49/2018-State Tax
MAHARASHTRA GOODS AND SERVICES TAX ACT, 2017.
No. GIST.1018/C.R.91/Taxation-1.- In exercise of the powers conferred by section 164 of the Maharashtra Goods and Services Tax Act, 2017 (Mah. XLIII of 2017), the Maharashtra Government hereby makes the following rules further to amend the Maharashtra Goods and Services Tax Rules, 2017, namely :-
1. (1) These rules may be called the Maharashtra Goods and Services Tax (Tenth Amendment) Rules, 2018.
(2) They shall come into force with effect from 13th September, 2018.
2. In the FORMS to the Maharashtra Goods and Services Tax Rules, 2017, after FORM GSTR-9A, the following shall be inserted,

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not permissible under GST
(+)
G
Turnover from April 2017 to June 2017
(-)
H
Unbilled revenue at the end of Financial Year
(-)
I
Unadjusted Advances at the beginning of the Financial Year
(-)
J
Credit notes accounted for in the audited Annual Financial Statement but are not permissible under GST
(-)
K
Adjustments on account of supply of goods by SEZ units to DTA Units
(-)
L
Turnover for the period under composition scheme
(-)
M
Adjustments in turnover under section 15 and rules thereunder
(+/-)
N
Adjustments in turnover due to foreign exchange fluctuations
(+/-)
O
Adjustments in turnover due to reasons not listed above
(+/-)
P
Annual turnover after adjustments as above

Q
Turnover as declared in Annual Return (GSTR9)
R
Un-Reconciled turnover (Q – P)
AT1
6
Reasons for Un – Reconciled difference in Annual Gross Turnover
A
B
C
Reason 1
<>
Reason 2
<>
Reason 3
<>
7
Reconciliation of Taxable Turnover
A
Annual

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as per tables above




Total amount paid as declared in Annual Return (GSTR 9)
Un-reconciled payment of amount
PT 1
10
Reasons for un-reconciled payment of amount
A
B
C
Reason 1
<>
Reason 2
<>
Reason 3
<>
11
Additional amount payable but not paid (due to reasons specified under Tables 6,8 and 10 above)
To be paid through Cash
Description
Taxable Value
Central tax
State tax / UT tax
Integrated tax
Cess, if applicable
1
2
3
4
5
6
5%
12%
18%
28%
3%
0.25%
0.10%
Interest
Late Fee
Penalty
Others (please specify)
Pt. IV
Reconciliation of Input Tax Credit (ITC)
12
Reconciliation of Net Input Tax Credit (ITC)
A
ITC availed as per audited Annual Financial Statement for the State/ UT (For multi-GSTIN units under same PAN this should be derived from books of accounts)
B
ITC booked in earlier Financial Years claimed in current Financial Year
(+)
C
ITC booked in current Financial Year to be

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enance
Other Miscellaneous expenses
Capital goods
Any other expense 1
Any other expense 2
R
Total amount of eligible ITC availed
<>
S
ITC claimed in Annual Return (GSTR9)
T
Un-reconciled ITC
ITC 2
15
Reasons for un – reconciled difference in ITC
A
B
C
Reason 1
<>
Reason 2
<>
Reason 3
<>
16
Tax payable on un-reconciled difference in ITC (due to reasons specified in 13 and 15 above)
Description
Amount Payable
Central Tax
State/UT Tax
IntegratedTax
Cess
Interest
Penalty
Pt.V
Auditor's recommendation on additional Liability due to non-reconciliation
To be paid through Cash
Description
Value
Central tax
State tax/UT tax
Integrated tax
Cess, if applicable
1
2
3
4
5
6
5%
12%
18%
28%
3%
0.25%
0.10%
Input Tax Credit
Interest
Late Fee
Penalty
Any other amount paid for supplies not included in Annual Return (GSTR 9)
Erroneous refund to be paid back
Outstanding demands to be settled
Other (Pl. spec

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filed for.
4. Part II consists of reconciliation of the annual turnover declared in the audited Annual Financial Statement with the turnover as declared in the Annual Return furnished in FORM GSTR-9 for this GSTIN. The instructions to fill this part are as follows :-
Table No.
Instructions
5A
The turnover as per the audited Annual Financial Statement shall be declared here. There may be cases where multiple GSTINs (State-wise) registrations exist on the same PAN. This is common for persons/entities with presence over multiple States. Such persons / entities, will have to internally derive their GSTIN wise turnover and declare the same here. This shall include export turnover (if any). It may be noted that reference to audited Annual Financial Statement includes reference to books of accounts in case of persons/entities having presence over multiple States.
5B
Unbilled revenue which was recorded in the books of accounts on the basis of accrual system of accounting in the last fi

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ccounted in the current financial year but such credit notes were reflected in the annual return (GSTR-9) shall be declared here.
5F
Trade discounts which are accounted for in the audited Annual Financial Statement but on which GST was leviable(being not permissible) shall be declared here.
5G
Turnover included in the audited Annual Financial Statement for April 2017 to June 2017 shall be declared here.
5H
Unbilled revenue which was recorded in the books of accounts on the basis of accrual system of accounting during the current financial year but GST was not payable on such revenue in the same financial year shall be declared here.
5I
Value of all advances for which GST has not been paid but the same has been recognized as revenue in the audited Annual Financial Statement shall be declared here.
5J
Aggregate value of credit notes which have been accounted for in the audited Annual Financial Statement but were not admissible under Section 34 of the MGST Act shall be declar

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rted in the audited Annual Financial Statement due to foreign exchange fluctuations shall be declared here.
5O
Any difference between the turnover reported in the Annual Return (GSTR9) and turnover reported in the audited Annual Financial Statement due to reasons not listed above shall be declared here.
5Q
Annual turnover as declared in the Annual Return (GSTR 9) shall be declared here. This turnover may be derived from Sr. No. 5N, 10 and 11 of Annual Return (GSTR 9).
6
Reasons for non-reconciliation between the annual turnover declared in the audited Annual Financial Statement and turnover as declared in the Annual Return (GSTR 9) shall be specified here.
7
The table provides for reconciliation of taxable turnover from the audited annual turnover after adjustments with the taxable turnover declared in annual return (GSTR-9).
7A
Annual turnover as derived in Table 5P above would be auto-populated here.
7B
Value of exempted, nil rated, non-GST and no-supply turnover shall

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consists of reconciliation of the tax payable as per declaration in the reconciliation statement and the actual tax paid as declared in Annual Return (GSTR9). The instructions to fill this part are as follows :-
Table No.
Instructions
9
The table provides for reconciliation of tax paid as per reconciliation statement and amount of tax paid as declared in Annual Return (GSTR 9). Under the head labelled “RC”, supplies where tax was paid on reverse charge basis by the recipient (i.e. the person for whom reconciliation statement has been prepared) shall be declared.
9P
The total amount to be paid as per liability declared in Table 9A to 9O is auto populated here.
9Q
The amount payable as declared in Table 9 of the Annual Return (GSTR9) shall be declared here. It should also contain any differential tax paid on Table 10 or 11 of the Annual Return (GSTR9).
10
Reasons for non-reconciliation between payable / liability declared in Table 9P above and the amount payable in Table 9Q

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r which the reconciliation statement is being filed for shall be declared here. This shall include transitional credit which was booked in earlier years but availed during Financial Year 2017-18.
12C
Any ITC which has been booked in the audited Annual Financial Statement of the current financial year but the same has not been credited to the ITC ledger for the said financial year shall be declared here.
12D
ITC availed as per audited Annual Financial Statement or books of accounts as derived from values declared in Table 12A, 12B and 12C above will be auto-populated here.
12E
Net ITC available for utilization as declared in Table 7J of Annual Return (GSTR-9) shall be declared here.
13
Reasons for non-reconciliation of ITC as per audited Annual Financial Statement or books of account (Table 12D) and the net ITC (Table12E) availed in the Annual Return (GSTR-9) shall be specified here.
14
This table is for reconciliation of ITC declared in the Annual Return (GSTR-9) against the

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t V consists of the auditor's recommendation on the additional liability to be discharged by the taxpayer due to non-reconciliation of turnover or non-reconciliation of input tax credit. The auditor shall also recommend if there is any other amount to be paid for supplies not included in the Annual Return. Any refund which has been erroneously taken and shall be paid back to the Government shall also be declared in this table. Lastly, any other outstanding demands which is recommended to be settled by the auditor shall be declared in this Table.
8. Towards, the end of the reconciliation statement taxpayers shall be given an option to pay their taxes as recommended by the auditor.
PART – B-CERTIFICATION
I. Certification in cases where the reconciliation statement (FORM GSTR-9C) is drawn up by the person who had conducted the audit :
* I/we have examined the-
(a) balance sheet as on ………
(b) the *profit and loss account/income and expenditure account for the per

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hellip;…………………….
…………………………………….
3. (b) *I/we further report that,-
(A) *I/we have obtained all the information and explanations which, to the best of *my/our knowledge and belief, were necessary for the purpose of the audit/information and explanations which, to the best of *my/our knowledge and belief, were necessary for the purpose of the audit were not provided/partially provided to us.
(B) In *my/our opinion, proper books of account *have/have not been kept by the registered person so far as appears from*my/our examination of the books.
(C) I/we certify that the balance sheet, the *profit and loss/income and expenditure account and the cash flow Statement are *in agreement/not in agreement with the books of account maintained at the Principal place of business at …………………&helli

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lip;……………………………
(c) ……………………………………………………………………………………
………………………………………
………………………………………
**(Signature and stamp/Seal of the Auditor)
Place: ……………
Name of the signatory …………………
Membership No. ……………
Date: ……………
Full address ………………………
II. Certification in cases where t

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and loss account/income and expenditure account for the period beginning from ………..…to ending on …….,
(c) the cash flow statement for the period beginning from ……..…to ending on ………, and
(d) documents declared by the said Act to be part of, or annexed to, the *profit and loss account/income and expenditure account and balance sheet.
2. I/we report that the said registered person-
*has maintained the books of accounts, records and documents as required by the IGST/CGST/MGST Act, 2017 and the rules/notifications made/issued thereunder
*has not maintained the following accounts/records/documents as required by the IGST/CGST/MGST Act, 2017 and the rules/notifications made/issued thereunder:
1.
2.
3.
3. The documents required to be furnished under section 35 (5) of the MGST Act and Reconciliation Statement required to be furnished under section 44(2) of the MGST Act is annexed herewith in Form No.G

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p;….………………………
………………………………………
**(Signature and stamp/Seal of the Auditor)
Place: ……………
Name of the signatory …………………
Membership No. ………………
Date: ……………
Full address ………………………”.
By order and in the name of the Governor of Maharashtra,
J. V. DIPTE,
Deputy Secretary to Government.
Note.-The principal rules were published in the Maharashtra Government Gazette, Extraordinary No. 170, Part IV-B, dated 22nd June 2017, vide notification No. MGST-1017/C.R. 90/Taxation-1, dated 22nd June 2017 and were last amended vide Finance Department Notification No. GST-1018/C.R.87/Taxation-1, dated 18th S

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Seeks to bring section 51 of the CGST Act (provisions related to TDS) into force w.e.f 01.10.2018.
50/2018-State Tax Dated:- 18-9-2018 Maharashtra SGST
GST – States
Maharashtra SGST
Maharashtra SGST
FINANCE DEPARTMENT
Madam Cama Marg, Hutatma Rajguru Chowk, Mantralaya,
Mumbai 400 032, dated the 18th September 2018.
NOTIFICATION
Notification No. 50/2018-State Tax
MAHARASHTRA GOODS AND SERVICES TAX ACT, 2017.
No. GST.1018/C.R.90 /Taxation-1. – In exercise of the powers conferred by sub-section (3) of section 1 of the Maharashtra Goods and Services Tax Act, 2017 (Mah. XLIII of 2017) (hereinafter referred to as the “said Act”), and in supersession of the Notification of the Government of Maharashtra, Notification No. MGST.1

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