Author: admin_gst

RSPL Ltd Versus Union of India
GST
2018 (10) TMI 1521 – GUJARAT HIGH COURT – 2018 (19) G. S. T. L. 430 (Guj.) , [2019] 61 G S.T.R. 20 (Guj)
GUJARAT HIGH COURT – HC
Dated:- 16-10-2018
R/Special Civil Application No. 22056 of 2017
GST
Mr. Justice Akil Kureshi And Mr. Justice B.N. Karia
For the Petitioner(s) : Mr Anand Nainawati(5970)
For the Respondent(s) : Mr Nirzar S Desai (2117), Mr Sudhir M Mehta (2058) And Notice Served(4)
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner has prayed for a declaration that the action of the respondents in not allowing the credit of excise duty paid on capital goods which were in transit as on 01.07.2017 is violative of Article 14 and 19(1)(g) of the Constitution of India. The petitioner's consequential prayer is that the respondents be directed to allow such credit to the petitioner.
2. This challenge of the petitioner arises in following background.
3. Petitioner is a company registered under the

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.07.2017, such facility enabling the manufacturers to take credit of the duties paid on inputs as well as capital goods continued with certain modifications. CGST Act also contains transitional provisions as per which, unutilized CENVAT credit could be brought over to the GST regime. Such facility of migration would be available both in relation to inputs as well as capital goods. The statute also makes provisions to enable the assessee to avail the credit of duty paid on inputs which were in transit as on 01.07.2017. However, when it comes to the question of taking credit of the duty paid on the capital goods in transit and received on or after 01.07.2017, no facility is provided to enable the assessee to claim credit of the excise duty paid on such capital goods. This is where the grievance of the petitioner arises.
5. Shri Nainawati appearing for the petitioner, drew our attention to the relevant statutory provisions. His main focus was on section 140 of the CGST Act and particular

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provision also enables the assessee to take credit of the excise duty paid on inputs in transit. An artificial distinction is made only with respect to the capital goods in transit which is discriminatory and arbitrary.
II. It was contended that the classification between capital goods and inputs was an artificial demarcation. In order to be reasonable, such classification must have rational relation with the objects sought to be achieved.
III. Reference was made to the decision in case of Shayara Bano v. Union of India and others (MINISTRY OF WOMEN AND CHILD DEVELOPMENT SECRETARY AND OTHERS) reported in (2017) 9 SCC 1, in which the Supreme Court propounded that a statute can also be struck down on the ground that the same is manifestly arbitrary.
IV. Decision of Supreme Court in case of D.S. Nakara and Others v. Union of India reported in (1983) 1 SCC 305 was cited to contend that if a provision is found to be discriminatory, it is not necessary that the Court must strike down

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ufacturer in his factory for payment of duty of excise leviable on its final product subject to conditions contained therein. Term capital goods defined in the definition below subrule (1). Subrule (2) of rule 57Q provided that notwithstanding anything contained in subrule (1), no credit of the specified duty paid on capital goods shall be allowed if such duty has been paid on such capital goods before first day of March 1994. Thus, this rule for the first time granted the facility of utilizing the specified duty paid on capital goods used by the manufacturer in the factory discharging its duty liability but restricted the application thereof to the duty which was paid on such capital goods after 01.03.1994.
8. CENVAT credit Rules, 2004, also granted similar benefits. Term “capital goods” was defined in rule 2A. Rule 3 of the CENVAT credit Rules, 2004, pertains to CENVAT credit. Subrule (1) of rule 3 provided that a manufacturer or producer of final products or a provider of output se

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s of the goods of output services.
9. Section 2(19) of the CGST Act defines the term “capital goods” as to mean the goods, the value of which is capitalized in the books of account of the person claiming the input tax credit and which are used or intended to be used in the course or furtherance of business. Term 'input' is defined in section 2(59) as to mean any goods other than capital goods used or intended to be used by a supplier in the course or furtherance of a business. Section 2(62) defines the term 'input tax' in relation to a registered person as to mean the Central tax, State tax, integrated tax or Union territory tax charged on any supply of goods or services or both made to him and would include several taxes specified in clauses (a) to (e) contained therein. Term 'input tax credit' is defined under section 2(63) as to mean the credit of input tax.
10. Section 16 of the CGST Act pertains to eligibility and conditions for taking input tax credit. S

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purposes, the amount of credit shall be restricted to so much of the input tax as is attributable to the purposes of his business.
Likewise, subsection (2) of section 17 provides that where the goods or services or both are used by the registered person partially for affecting taxable supplies including zero rated supplies and partially for exempt supplies, the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies including zero rated supplies.
12. Rule 43 of the Central Goods and Service Tax Rules, 2017 ('CGST Rules' for short) provides the manner of determination of input tax credit in respect of capital goods and reversal thereof in certain cases. This rule provides a formula restricting the input tax credit in respect of capital goods which attracts subsection (1) and subsection (2) of section 17 being partially used for the purpose of business and partially for other purposes or partially used for affecting taxab

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where the said amount of credit relates to goods manufactured and cleared under such exemption notifications as are notified by the Government.
(2) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, credit of the unavailed CENVAT credit in respect of capital goods, not carried forward in a return, furnished under the existing law by him, for the period ending with the day immediately preceding the appointed day in such manner as may be prescribed:
PROVIDED that the registered person shall not be allowed to take credit unless the said credit was admissible as CENVAT credit under the existing law and is also admissible as input tax credit under this Act.
Explanation: For the purposes of this subsection, the expression “unavailed CENVAT credit” means the amount that remains after subtracting the amount of CENVAT credit already availed in respect of capital goods by the taxable person under the exi

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tory provisions make a few things clear. Facility to avail credit on excise duty paid on capital goods used by the manufacturer in his factory for discharging duty liability on the finished products was made available under rule 57Q of the Central Excise Rules, 1945 with effect from 01.03.1994. This continued even under the CENVAT credit Rules, 2004, subject to conditions. As per clause, subrule (2) of rule 4 of the CENVAT credit Rules, 2004, would be restricted to a maximum of 50% of the duty paid on such capital goods in the financial year in which the capital goods were received in the factory of the manufacturer.
Remaining 50% could be availed in any financial year subsequent to such year.
15. In a different format in the GST regime also this facility is continued. As correctly pointed out by the counsel for the petitioner, the CGST Act does not make a distinction between duty paid on capital goods or inputs for the purpose of granting credits thereof. Subsection (1) of section 1

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f the CGST Rules makes detailed provision for working out such restriction on eligibility of input tax credit on capital goods to which subsections (1) or (2) of section 17 would apply.
16. However, when it comes to the transition from the central excise to GST regime, the legislature has made slightly different provisions for credit on inputs and capital goods. In this context, section 140 of the CGST Act assumes significance. Subsection (1) of section 140 enables a registered person other than a person who has opted for payment of tax on composition basis to carry forward CENVAT credit of eligible duties in relation to the period ending with the day immediately preceding the appointed day under the existing law in such manner as may be prescribed. Subsection (2) of section 140 provides that the registered person other than one opting to pay tax on composition basis shall be entitled to take in his electronic credit ledger credit of unavailed CENVAT credit in respect of capital goods

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urther period not exceeding thirty days on sufficient cause being shown.
17. Very clearly thus subsection (5) of section 140 allows a registered person, credit of eligible duties and tax in respect of inputs or input services which were received on or after the appointed day but on which the tax was paid earlier. In absence of any matching provisions pertaining to capital goods, in a situation where the duty had been paid on purchase of goods prior to the appointed day but the goods were received on or after the appointed day, there would be no possibility of availing credit on such tax under the GST regime.
18. It can thus be seen that to this limited extent, the CGST Act has made a distinction between the capital goods and inputs. The question is, is this demarcation unlawful? As noted, the fulcrum of the petitioner's argument was that this makes an artificial distinction between capital goods and inputs which has no rational relation to the purpose sought to be achieved. The s

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registered person to claim credit of the duty paid prior to the appointed day on the inputs even though the inputs may be received after the appointed day. This section consciously does not provide any such facility in relation to the capital goods in transit. This demarcation itself would not be artificial, arbitrary or in any manner, discriminatory. The capital goods and inputs used in manufacturing process have always been treated differently and distinct treatment have been given under the earlier statutes. If the legislature therefore was of the opinion that in relation to capital goods in transit, duty paid before the appointed date cannot be claimed as a credit in the GST regime, we do not find that the distinction is in any manner artificial or arbitrary.
20. Article 14 as is wellknown, prohibits class legislation but not reasonable classification. To bring in the element of discrimination in terms of Article 14 of the Constitution, the onus would be on the petitioner to estab

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clined to keep the issues of migration of tax credits and pending claims open for indefinite period of time.
21. In case of R.K.Garg v. Union of India and others reported in (1981) 4 SCC 675 the constitution bench of the Supreme Court held that every legislation particularly in economic matters is essentially empiric and it is based on experimentation. It was further held and observed as under:
“7. Now while considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well established principles which have been evolved by the courts as rules of guidance in discharge of its constitutional function of judicial review. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that

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be measured by abstract symmetry” that exact wisdom and nice adoption of remedy are not always possible and that “judgment is largely a prophecy based on meagre and uninterpreted experience”. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There, may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Reig Refining Company 94 Lawyers Edition 381 be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate a

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20) of the Tamilnadu Value Added Tax Act, 2006, made following observations:
“12. It is a trite law that whenever concession is given by statute or notification, etc., the conditions thereof are to be strictly complied with in order to avail of such concession. Thus, it is not the right of the “dealers” to get the benefit of ITC but its a concession granted by virtue of section 19. As a fortiorari, conditions specified in section 10 must be fulfilled. In that hue, we find that section 10 makes original tax invoice relevant for the purpose of claiming tax. Therefore, under the scheme of the VAT Act, it is not permissible for the dealers to argue that the price as indicated in the tax invoice should not have been taken into consideration but the net purchase price after discount is to be the basis. If we were dealing with any other aspect de hors the issue of ITC as per section 19 of the VAT Act, possibly the arguments of Mr. Bagaria would have assumed some relevance. But, keeping in v

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ue Added Tax Act, 2006, the special provision provides that in case of any registered dealer fails to claim input tax credit in respect of any transaction of taxable purchase in any month, he shall make the claim before the end of the financial year or before 90 days from the date of purchase whichever is later. This provision thus provided time limit for a dealer to claim tax credit in respect of transaction of taxable purchase. This provision was attacked on the ground that it laid down restrictions on enjoyment of input tax credit which the main provision granting such facility does not envisage. It was also argued that in any case the time limit provision should be seen as directory and not mandatory. The Supreme Court repelled the challenge observing inter alia that the conditions under which the concessions and the benefits is given is always to be strictly construed. If it is accepted that there is no time period for claiming input tax credit as contained in section 19(11), the

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Mizoram Goods and Services Tax (Twelfth Amendment) Rules, 2018
54/2018 – State Tax Dated:- 16-10-2018 Mizoram SGST
GST – States
Mizoram SGST
Mizoram SGST
No.J.21011/2(ii)/2018-TAX/Part
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
NOTIFICATION No. 54/2018 – State Tax
Dated Aizawl the 16th Oct., 2018
In exercise of the powers conferred by section 164 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Governor of Mizoram hereby makes the following rules further to amend the Mizoram Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Mizoram Goods and Services Tax (Twelfth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gaze

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f notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299(E), dated the 13th October, 2017,
the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted.”.
3. In the said rules, in rule 96, for sub-rule (10), the foll

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led the benefit under notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme.”.
Sd/-VANLAL CHHUANGA
Commr. & Secretary to the Govt. of Mizoram,
Taxation Department.
Note:- The principal rules were published in the Government of Mizoram notification No. J.21011/1/2014-T

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Mizoram Goods and Services Tax (Eleventh Amendment) Rules, 2018
53/2018 – State Tax Dated:- 16-10-2018 Mizoram SGST
GST – States
Mizoram SGST
Mizoram SGST
No.J.21011/2(1)/2018-TAX/Part
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
NOTIFICATION No. 53/2018 – State Tax
Dated Aizawl the 16th Oct., 2018
In exercise of the powers conferred by section 164 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Governor of Mizoram hereby makes the following rules further to amend the Mizoram Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Mizoram Goods and Services Tax (Eleventh Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from the 23rd October,

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), vide number G.S.R 1321 (E), dated the 23rd October, 2017 or notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E) dated the 13th October, 2017.”.
Sd/-VANLAL CHHUANGA
Commr. & Secretary to the Govt. of Mizoram,
Taxation Department.
Note:- The principal rules were published in the Government of Mizoram notification No. J.21011/1/2014-TAX-Loose, dated the 29th June,2017, and last amended vide notification No.

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Modification to the Guidelines for Deductions and Deposits of TDS by the DDO under GST as clarified in Circular NoJ.21011/2(i)/2018-TAX/Pt dated 26.09.2018
J.21011/2/2018-TAX/Pt Dated:- 16-10-2018 Mizoram SGST
GST – States
No.J.21011/2/2018-TAX/Pt
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
Aizawl, the 16th Oct., 2018
Subject: reg
Circular No.J.21011/2(i)/2018-TAX/Pt dated 26.09.2018, vide which Guidelines for Deductions and Deposits of TDS by the DDO under GST had been issued by th

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The Rajasthan Goods and Services Tax (Twelfth Amendment) Rules, 2018.
F.12(46)FD/Tax/2017-Pt-V-123 Dated:- 16-10-2018 Rajasthan SGST
GST – States
Rajasthan SGST
Rajasthan SGST
GOVERNMENT OF RAJASTHAN
FINANCE DEPARTMENT
(TAX DIVISION)
NOTIFICATION
Jaipur, dated: October 16, 2018
In exercise of the powers conferred by section 164 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), the State Government hereby makes the following rules further to amend the Rajasthan Goods and Services Tax Rules, 2017, namely
1. Short title and commencement.- (1) These rules may be called the Rajasthan Goods and Services Tax (Twelfth Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from

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rdinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321(E), dated the 23rd October, 2017; or
(b) availed the benefit of notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299(E), dated the 13th October, 2017,
the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services t

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ication number 41/2017-Integrated Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321 (E), dated the 23rd October, 2017 has been availed; or
(b) availed the. benefit under notification number 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goods by

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The Rajasthan Goods and Services Tax (Eleventh Amendment) Rules, 2018.
F.12(46)FD/Tax/2017-Pt-V-122 Dated:- 16-10-2018 Rajasthan SGST
GST – States
Rajasthan SGST
Rajasthan SGST
GOVERNMENT OF RAJASTHAN
FINANCE DEPARTMENT
(TAX DIVISION)
NOTIFICATION
Jaipur, dated: October 16, 2018
In exercise of the powers conferred by section 164 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), the State Government hereby makes the following rules further to amend the Rajasthan Goods and Services Tax Rules, 2017, namely;-
1. Short title and commencement.- (1) These rules may be called the Rajasthan Goods and Services Tax (Eleventh Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect

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N.V.K. MOHAMMED SULTHAN RAWTHER AND SONS AND WILLSON Versus UNION OF INDIA THROUGH ITS SECRETARY (REVENUE), MINISRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI, THE COMMISSIONER, GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM, THE STATE TAX OFFICER CIRCLE II, COMMERCIAL TAX DEPARTMENT, DINDIGUL, ASSISTANT STATE TAX OFFICER SQUAD NO. 11, STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD
GST
2018 (11) TMI 1503 – KERALA HIGH COURT – [2019] 61 G S.T.R. 307 (Ker), 2019 (20) G. S. T. L. 708 (Ker.)
KERALA HIGH COURT – HC
Dated:- 16-10-2018
WP (C). No. 32324 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI. K. I. MAYANKUTTY MATHER KUM. NARAYANI HARIKRISHNAN AND SRI. R. JAIKRISHNA SREEKALA ASOKAN
For The Respondent : ADV. MR. R. PREMSANKAR, CGC BY DR. THUSHARA JAMES, GOVERNMENT PLEADER
JUDGMENT
The first petitioner is a manufacturer of “Ground Betel Nuts (Arecanuts)” with the brand name “Roja”. The second petitioner is a registered dealer o

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misdescribing the product.
4. Served with the Exhibit P11 detention notice, dated 26.09.2018, the petitioners' authorised representative met the ASTO and explained about the genuineness of the transport. He tried to impress upon the authority that there was neither misclassification nor evasion of tax. But the ASTO remained unconvinced. Aggrieved, the petitioners filed this Writ petition.
5. The petitioners seek the Court to (a) declare that the petitioners' “Arecanut Ground” with HSN 0802 attracts GST only at 5%, as in item falling under Serial No. 28 of Schedule I of G.O.(P) No. 62/2017/TAXES, as amended; (b) direct the authority not to detain the petitioners' commodity en route alleging that the rate of tax is 18% and not 5% as shown in the invoices; (c) direct the ASTO to release the lorry and goods (arecanut) covered by the Exts.P9 and P10, as carried in Lorry No. TN-37-BS-9384, forth with.
Submissions:
The Petitioners':
6. In the above factual backdrop, Sri Mayankutty Mat

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r Works v. Commissioner of Customs and Central Excise, Tirupati (2007) 4 SCC 155. He also contends that ASTO's detaining the consignment is arbitrary, unjust, and without jurisdiction, too.
9. To elaborate, Sri Mather submits that the detention power conferred on the officers, either under Section 68 or Section 129, must be exercised only under the circumstances and grounds set out in those provisions. He also submits that Section 122 of the GST Act defines the offences warranting imposition of penalty. Misclassification of goods in the invoice, according to him, is not an offence falling under either Section 122, 67, or 68 of the Act.
10. About the HSN Code, too, Sri Mather has extensively argued. But I reckon the adjudicatory scope of this writ petition confines itself to detention and release of goods. Classification-or rather misclassification-of a commodity is not within the scope of this writ; that issue goes beyond it.
11. In the end, Sri Mather underlines the difficulties th

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ailed. Referring to the Exts.P8 and P8(a) returns, Dr. James contends that returns are filed under the statutory mandate. Unless those returns are subjected to scrutiny and upheld, they remain, according to her, the assessee's mere self-declaration. She thus asserts that a return can only mean a true and correct return, accepted by the authorities on scrutiny and verification.
15. To elaborate on the tax regime and the statutory scheme, Dr. James has taken me through various provisions including Sections 31, 95, and 122, besides Rule 46 of the KSGST Rules. She repeatedly stressed that the petitioners have an efficacious alternative remedy and that they ought to have taken recourse to it. For her, the petitioners' effort before this Court is premature, and any adjudication at this stage will stultify the statutory authority's efforts at fair adjudication.
16. Heard Sri Mayankutty Mather, the petitioners' counsel, and Dr. Thushara James, the Government Pleader.
Discussion:
17. The f

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n on its classification. Is it simple betel nut ground to a particular size with certain additions for easy human consumption? Has the product lost its character as betel nut? On the other hand, is the petitioners' product supari, which is distinctively a different product, having betel nut as one of its ingredients?
20. Granted, Mr. Mather relied on the Supreme Court's Crane Betal Nut Powder Works. Further granted, the Supreme Court in that has held that “by crushing betel nuts and processing them with spices and oils, a new product could be said to have come into being which attracted duty separately under the Schedule to the Tariff Act.”
21. Then, the Court has held that the process of manufacture employed by the appellant company did not change the nature of the end product: “The betel nut remains a betel nut”. Sri Mather has also produced literature before the Court, besides the brochures of supari producers, to underline what supari is and how it differs from mere betel nut pow

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sm. Now, we focus on the release of the product, and it lies in narrow confines. Suffice it for me to examine this singular issue: Can the State Tax Officer invoke Section 129 of the Act and detain goods on the ground the tax paid on the product is less? Here, the documents are in order and the product description accords with what the first petitioner has already declared, say, in his returns before the assessing authority. Then, can the ASTO still hold up the consignment because the declaration already made does not suit his notion of what the product is?
25. True, a literal reading of Section 129 of the Act presents a different picture and, perhaps, lends support to the State's view. But purposive interpretation and the practical commercial considerations trump that view.
26. Chapter XVI of the Combined Acts deals with inspection, search, and seizure. Section 129 under Chapter XIX provides the mechanism for detention, seizure, and release of goods and conveyances in transit. It be

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first petitioner's purchase and supply invoices.
28. The Exts.P8 and P8(a) are important; they are the first petitioner's recent GST returns for June and August, 2018. In those returns, the first petitioner has assigned the same HSN Code, as he did reflect in the Ext.P9 invoice. He paid tax only at 5%. Thus the documents before the assessing authority and those that accompanied the consignment accord with one another.
29. In this context, we may examine J.K. Synthetics Limited v. Commercial Taxes Officer (1994) 4 SCC 276. On how to interpret Tax Statutes, the Supreme Court has held that charging provisions must be construed strictly, but not the machinery provisions, “which should be construed like any other statute”. It has also held that “the power to levy and collect interest is substantive law though part of machinery provision”.
30. In J.K. Synthetics Limited the issue was whether the appellant should pay interest on the additional sales tax. The Revenue, as it has done here,

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n. Of course, the tax so deposited is to be deemed to be provisional and subject to necessary adjustments under the final assessment.
31. To support its ratio, J.K. Synthetics Limited accepts the minority of view in Associated Cement Co. Ltd.. v. CTO (1981) 4 SCC 578. And it has finally held that if the assessee pays the tax, which according to him is due based on the information supplied in his return, there would be no default on his part to meet his statutory obligation. Therefore, it would be difficult to hold that the 'tax payable' by him 'is not paid' and that he is liable for consequences.
32. The correctness of the Exts.P8 and P8(a) accepted, as held in J. K. Synthetics Limited, we will examine what amounts to statutory violation or contravention under Section 129 of the Act. Apt is the case decided by this Court: Rams v. Sales Tax Officer. The petitioner in Rams contracted with the Government of India to print and supply a large number of telephone directorie

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ute whether there was any taxable sale at all. Rams, then, further observes:
“In such cases it is not for the check-post authority to act on mere suspicion and to find that there is any attempt at evasion of payment of tax, which alone vests him with the jurisdiction to act under S. 29A. At best, he can only alert the assessing authority in Ernakulam to initiate proceedings for assessment of any alleged sale, at which the petitioner will have all his opportunities to put forward his picas on law and on fact. The process of detention of the goods at the check post, cannot be resorted to in such cases when there is a bona fide dispute regarding the very existence of a sale and exigibility for tax. S. 29 A is not intended to subserve such an object.
35. I may examine the impugned Ext.P11 notice, or in other words the act of detention, in the light of the dicta in J.K. Synthetics Limited and Rams. In the former, the Supreme Court has emphatically held that if the dealer furnishes all p

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s, at best the inspecting authority can alert the assessing authority to initiate the proceedings “for assessment of any alleged sale, at which the petitioner will have all his opportunities to put forward his pleas on law and on fact.” Indeed, emphatic is the enunciation of law in Rams that the process of detention of the goods cannot be resorted to when the dispute is bona fide, especially, concerning the exigibility of tax and, more particularly, the rate of that tax.
Conclusion:
37. I reckon that the case before me falls within the adjudicatory ambit of both J.K. Synthetics Limited and Rams. I, accordingly, hold that the Ext.P11 is arbitrary and unsustainable, and is accordingly set aside. As a result, the Assistant State Tax Officer will release the goods forthwith.
38. I, however, clarify that this Court has not given any judicial imprimatur to the petitioners' classification of goods or the HSN Code they have applied. The Revenue is at liberty to initiate appropriate proc

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M/s Varun Motors Versus Commissioner of Customs & Central Excise, Visakhapatnam – GST
Service Tax
2018 (11) TMI 1523 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 16-10-2018
Appeal No. ST/22099/2014 – A/31388/2018
Service Tax
Mr. M. V. RAVINDRAN., MEMBER (JUDICIAL)
Shri V. Ravindranath, Advocate for the Appellant.
Shri AVLN Chary, Superintendent (AR) for the Respondent.
ORDER
Per: M. V. Ravindran.
This appeal is directed against Order-in-Appeal No. 20/2014 (V-I) ST dated 21.03.2014.
2. Heard both sides and perused the records.
3. On perusal of records, it transpires that the issue is regarding demand of service tax from the appellant of a service tax an amount of Rs. 20,116/- interest thereof. On t

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e. 28.05.2012. He submits that the First Appellate Authority has not considered the payment of service tax and not set aside the penalty involved. As regards the CENVAT credit availed on various input services, he draws my attention to the chart prepared by them. The CENVAT credit of service tax paid on various input services like Telephone charges, Mobile Charges, Advertisement, Vehicle Servicing and Polishing, Travels, Insurances, Cleaning, Courier and Security Services. He draws my attention to the specimen invoices enclosed and produced before the Bench and submits that the lower authority has taken a view in respect of Telephone charges, Telephone charges are not in the name of appellant. He would submit that the documents which were p

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2012 specifically mandates from the penalty if the amount of service tax liability and the interest in respect of Renting of immovable property services is discharge within six months from 28.05.2012. In view of this, I find that having discharge of service tax liability within time there was no reason to visit the appellant on any penalty. The penalty imposed on appellant is set aside.
7. As regards the confirmation of the demand of ineligible CENVAT credit, I find both the lower authorities have not recorded any findings as to the submissions made by the Learned Counsel before them on the eligible to avail the CENVAT credit of service tax paid on various services like telephone, Mobile charges etc. On causal perusal of the documents enc

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Arihant Solvex Pvt Ltd Versus CGST, C.C. & C.E., Jodhpur 1
Central Excise
2019 (1) TMI 235 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 16-10-2018
Excise Appeal No. E/52742/2018 [DB] – A/53337/2018-EX[DB]
Central Excise
MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Rahul Tangri, Advocate
Present for the Respondent: Mr. R.K. Mishra, DR
ORDER
PER: RACHNA GUPTA
The appellant has challenged the Order of Commissioner (Appeals) bearing No. 148-149 dated 01.06.2018. The facts in brief relevant for the impugned adjudication are that the appellants are engaged in manufacture of refined edible oil falling under Chapter No. 15 of the Schedule to the Central Excise Tariff Act, 1985. Appellants are also engaged in oil refining and manufacturing of gad, sludge, acid oil and spent earth falling under Tariff Item No. 15211090 and 38231900 respectively of the first Schedule of the said Tariff. Departmen

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and for the normal period of limitation only and the penalty was reduced to Rs. 5 lakhs instead of penalty of Rs. 46,18,619/- + Rs. 3 lakhs. Still being aggrieved, the appellant is here before this Tribunal.
2. We have heard Mr. Rahul Tangre, Ld CA for the appellant and Mr. R.K. Mishra, Ld. DR for the Department.
3. It is submitted on behalf of the appellant that both the Show Cause Notices were duly replied by the appellant vide their letters dated 12.03.2014 and 09.02.2015 respectively duly contesting the allegations in both the Show Cause Notices. It was specifically submitted that the goods in question were waste and since the final goods i.e. refined oil was exempted vide Notification No. 3/2006-CE, the goods in question were eligible for exemption under Notification No. 89/95-CE and as such no duty was payable on clearance even of the disputed goods. It is submitted that though the Commissioner(Appeals) has reduced the demand to the normal period and has also reduced the penalt

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processing of crude oil and in course of refining of said crude vegetable oils, gad, sludge, acid oil and spent earth, etc. emerge as unavoidable by-products. During the period of dispute, the refined vegetable oil, the final manufactured products of the appellant was exempted from duty under the exemption Notification No. 3/2006-CE and as such was to be treated as exempted goods. Accordingly, the only point of dispute is: “whether for the purpose of exemption Notification No. 89/95-CE dated 18.05.1995 which exempt wastage parings and scrap arising in course of manufacture of exempted goods falling within the Schedule to Central Excise Tariff Act from the whole of the duty of excise leviable thereon, the impugned by-products are to be treated as waste or not.”
6. This issue has been dealt with by this Tribunal in Ricela Health Foods Ltd. Vs. CCE, Chandigarh & Allahabad 2016 (331) ELT 313 (Tri. – Del.) wherein vide the interim Order No. 8-11/2018 dated 30.01.2018 it was held that the r

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ted materials resulting in products like gums, waxes and fatty acid with odour cannot be called as a process of manufacture of these gums, waxes and fatty acid with odour. The process of manufacture is for refined rice bran oil. As such, we note that these incidental products are nothing but waste arising during course of refining of rice bran oil and applying the ratio of Apex court, as discussed above, these cannot be considered as manufactured excisable goods. Noting that the reference is to decide whether these are to be treated as waste for the purpose of exemption Notification 89/95-CE we note though the excisability of the product itself is seriously in dispute as per the opinion expressed by us, as above, these cannot be considered as anything other than waste and as such will be covered by the exemption Notification No. 89/95-CE.”
In a prior decision in the case of CCE, Hyderabad Vs. Priyanka Refineries Ltd. 2010 (249) ELT 70 (Tri. – Bang.) has also held that the goods like

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uct and is therefore, eligible for the benefit of Notification No. 89/95.”
The goods in dispute herein i.e. gad (gum), sludge (soap stock), acid oil and spent earth merely emerge during the manufacture of refined oil and are completely unintentional by products. Hence, they do not classify the definition of manufactured excisable goods. Since refined oil was exempted good during the relevant period, these by-products are entitled to be treated as exempted by virtue of Notification No. 89/95-CE. The moot controversy therefore stands decided in affirmative.
Further, we observe that Ld. Commissioner has already dropped the demand for the extended period. However, while confirming the demand for the normal period, he has relied upon M/s AG Fats and Ors. 2012 (277) ELT 96 (Tri. – Del.) but the said matter received a contradictory opinion in Maheshwari Solvent Extraction Ltd. Case 2014 (299) ELT 116 (Tri. – Mum.). It is thereafter that the Larger Bench of this Tribunal in Ricela Health Fo

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Deductor Registration procedure under GST Law- In five Steps
By: – Sandeep Rawat
Goods and Services Tax – GST
Dated:- 15-10-2018

TDS stands for Tax Deduction at Source (TDS).It facilitates sharing of responsibility of tax collection between the deductor and the tax administration. It also ensures regular inflow of cash resources to the Government. It acts as a powerful instrument to prevent tax evasion and expands the tax net, as it provides for the creation of an audit trail.
I have prepared all working steps with necessary explanation to get registration by deductor under provision of the GST law.
Persons liable to deduct tax under GST Law:
As per the Section 51 of the CGST Act, the following persons are mandatorily required to deduct TDS :-
*
a department or establishment of the Central/ State Government; or
*
local authority; or
*
Governmental agencies; or
*
such persons or category of persons as may be notified by the Government on the recomm

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he is separately registered as a supplier.
* A deductor has to get himself registered through the portal www.gst.gov.in by using their PAN/TAN. The entire process is online.
The process of registration of TDS Deductors in GST have been prepared in only five steps :
STEP – I : Entering User credentials for Registration Application
*
Go to the GST Portal at www.gst.gov.in
*
Click on the “Services” Tab →Click on “Registration” →Select “New Registration”.
Find the box “I am a” which will capture your status as an applicant. Select “Tax Deductor” from the drop-down menu.
Look below for the options: I have a (a) PAN (b) TAN. Please select the option “TAN”.
Enter the TAN in the box below.
Now find the box “State” and select your State (e.g. West Bengal) from the drop-down Menu.
Select the applicable district (e.g. Howrah) from the drop- down Menu in the “District” box.
Find the box “Legal name of the Tax deductor”. Enter the name as mentioned in TAN. Please don't

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the button “Proceed” to leave this page.
This TRN will be valid for 15 days. So you can always come back to the system for filling up the rest of the details at any time within such 15 days. In case this TRN expires beyond 15 days, you will have to follow the steps as detailed in STEP I and STEP II all afresh.
STEP – III : Filling up the registration Form : Entering TRN
* Go to the GST Portal at www.gst.gov.in
* Click on the “Services” Tab →Click on “Registration” →Select”TRN”.
* Enter the TRN as you have noted down previously.
* Enter the Captcha Code as displayed on screen.
* Click on the button “Proceed”.
* You will be guided to the next page.
STEP – IV : Filling up the registration Form : OTP Verification
*
This time only 1 OTP will be sent to your e-mail id & the Mobile number.
*
Enter the OTP in the respective box.
*
In case, you have not received the OTPs due to any reason, you may click on the link “Click here to resend the OTP”.
*
Clic

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Ignore the box “Trade Name”.
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Select your Office type e.g. Govt. Dept./ Local Authority etc.
from the drop down menu of the box “Constitution of Business”.
Select “Type of Government” as State or Central (as applicable) if you have entered your constitution as Govt. Dept.
Date of liability will be auto-populated. You need not worry even it shows as the current date because you will be liable to deduct TDS only from the day, Section 51 of the CGST/SGST Acts, 2017 is notified i.e. with effect from 01.10.2018. If you apply for registration after this date, you will be liable from the date of application for registration.
Enter the State Jurisdiction details by selecting the applicable
“District” and “Sector/Circle/Charge/Unit” from the drop-down menu.
Enter the Center Jurisdiction accordingly. To know the Central Jurisdiction, you may click on the designated link given therein and find the appropriate data.
Click on “Save and Continue” to proceed to the next tab.
Once al

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hat the Tab: DDO
Details will be displayed with a tick (√) mark.
Tab 3 : Authorised Signatory Details
*
As you have already selected the button “Also authorized signatory”
as Yes in the previous page, the data from DDO details will be auto- populated.
*
Click on “Save and Continue” to proceed to the next tab.
*
Once all the required data is filled up, you will find that the Tab:
Authorised Signatory Details will be displayed with a tick (√) mark.
Tab 4 : Office Address Details
*
Enter the DDO's Office Address details in the first part of this page.
*
Enter the Office Contact details in the second part of this page.
*
Select the nature of possession of premises from drop-down menu.
*
Now, select from the drop-down menu, a type of document you want to upload as an address proof.
*
Now upload such document accordingly either in PDF or JPEG format (file size max. 2mb)
*
Click on “Save and Continue” to proceed to the next tab.
*
On

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GST Audit – Financials
Query (Issue) Started By: – Ethirajan Parthasarathy Dated:- 15-10-2018 Last Reply Date:- 20-10-2018 Goods and Services Tax – GST
Got 3 Replies
GST
For GST audit covered cases, is it necessary to prepare audited financials for the period July'17 to Mar'18, in additions to audited financials for the whole year.
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
GST Audit and financial audits are separate.
Reply By Yash Jain:
The Reply:
Dear Sir,
No.

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School Project Setup: Composite Supply of Goods & Services Not Naturally Bundled, Subject to GST Despite Government Funding.
Case-Laws
GST
Classification of supply – setting up a project in the school – Recipient of the service OKCL is a body corporate which cannot be regarded as Government – The supply undertaken by the applicant is in the nature of composite supply. It includes supply of goods and services which are not naturally bundled – Liable to GST even though funded by the Govt.

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GST vs. VAT: Interim Relief Granted for Pre-July 2017 Work Contracts with Invoices Raised Under GST Regime.
Case-Laws
GST
Levy of GST or VAT – Work Contracts executed up to 30.06.2017 – since

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Mountain Valley Springs India Private Limited Versus Union of India and others
GST
2018 (10) TMI 1138 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 15-10-2018
CWP-26531-2018 (O&M)
GST
MR RAJESH BINDAL AND MR MAHABIR SINGH SINDHU, JJ.
For The Petitioner : Mr.Udit Mehndiratta, Advocate And Mr.Raj K.Narang, Advocate
For The Respondent : Mr.Saurabh Goel, AdvocateMr.Ankur Mittal, Addl.AG, Haryana And Mr. Manoj Dhankhar, AAG, Haryana
ORDER
RAJESH BINDAL, J.
The petitioner has filed the present petition with a prayer that the period for filing GST TRAN-1 forms be extended as on account of technical problems, the same could not be uploaded on the portal within the time granted.
Learne

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Haryana Goods and Services Tax (Thirteenth Amendment) Rules, 2018
91/GST-2 Dated:- 15-10-2018 Haryana SGST
GST – States
Haryana SGST
Haryana SGST
HARYANA GOVERNMENT
EXCISE AND TAXATION DEPARTMENT
Notification
The 15th October, 2018
No. 91/GST-2.- In exercise of the powers conferred by Section 164 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), the Governor of Haryana, hereby makes the following rules further to amend the Haryana Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Haryana Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from the 23rd October, 2017.
2. In the Haryana Goods and Services Tax

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Haryana Goods and Services Tax (Fourteenth Amendment) Rules, 2018
92/GST-2 Dated:- 15-10-2018 Haryana SGST
GST – States
Haryana SGST
Haryana SGST
HARYANA GOVERNMENT
EXCISE AND TAXATION DEPARTMENT
Notification
The 15th October, 2018
No. 92/GST-2.- In exercise of the powers conferred by Section 164 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), the Governor of Haryana, hereby makes the following rules further to amend the Haryana Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Haryana Goods and Services Tax (Fourteenth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Haryana Goods and Services Tax R

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13th October, 2017, published in the Gazette of India, Extraordinary, Part II, section 3, sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or Notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, section 3, sub-section (i), vide number G.S.R 1299(E), dated the 13th October, 2017,
the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted.”.
3. In the said rules, in rule 96, for sub-rule (10), the following sub-rule shall be substituted, namely:-

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Hindustan Petroleum Corpn. Ltd. Versus The Commissioner of CGST & Central Excise, Navi Mumbai Commissionerate
Central Excise
2018 (10) TMI 1371 – BOMBAY HIGH COURT – 2019 (365) E.L.T. 319 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 15-10-2018
Central Excise Appeal No. 68 of 2018
Central Excise
M. S. Sanklecha And Riyaz I. Chagla, JJ.
For the Appellant : Ms. Mansi Patil
For the Respondent : Mr.Vijay Kantharia with Mr.J.B.Mishra
ORDER
P.C.:
This appeal under section 35G of the Central Excise Act, 1944 challenges the order dated September 28, 2017 passed by the Custom, Excise and Service Tax Appellate Tribunal, Mumbai (the Customs, Excise and Service Tax Appellate Tribunal (for short “the Tribunal”)).
2. Ms.Manasi Patil,

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itted on the above two substantial questions of law.
4. At the request of the parties, the appeal is taken up for final disposal as the dispute is within a narrow compass. Regarding question (a)
5. The impugned order dated September 29, 2017 of the Tribunal confirms the demand of interest for the period commencing with the Cenvat Credit taken by the appellant till it is voluntarily reversed. This was after rejecting the evidence in the form of Chartered Accountant's certificate which shows month- wise balance of credit available. This would establish that the appellant had total credit available in excess of that utilised during the months for which demand has been made. Thus, it follows that the wrongly taken credit was not utilised

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M/s Innovative Medicare Technologies (P) Ltd. Versus Union Territory, Chandigarh and others
GST
2018 (10) TMI 1520 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 15-10-2018
CWP-21563-2018 (O&M)
GST
MR RAJESH BINDAL AND MR MAHABIR SINGH SINDHU, JJ.
For The Petitioner : Ms.Dixit Garg, Advocate And Ms.Anjali Bansal, Advocate
For The respondent : Mr.Arun Sharma, Advocate, Mr.Tajender Joshi, Advocate, Mr.APS Madan And Mr.Ajay Jagga, Advocate
ORDER
RAJESH BINDAL, J.
The petitioner has filed the present petition with a prayer that the period for filing GST TRAN-1 form be extended as on account of technical problems, the same could not be uploaded on the portal within the time granted.

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In Re: SST Sustainable Transport Solution India Private Limited
GST
2018 (12) TMI 145 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2019 (20) G. S. T. L. 317 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 15-10-2018
GST-ARA- 68/2018-19/B-129
GST
SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER
PROCEEDINGS
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by SST SUSTAINABLE TRANSPORT SOLUTIONS INDIA PRIVATE LIMITED, the applicant, seeking an advance ruling in respect of the following ISSUE..
Under which Chapter Heading / Service Code our activity will classify?
At the outset, we would like to make it clear that the provisions of both the CGST Act and the M

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Green City Buses for Transport of General Public and for the same NMC is paying us the Service Charges calculated as per agreement on the Total Run effective kilometers and NMC collects the fare from the passengers.
We are providing following services relating to the transportation of passengers
1. Providing Bus with Driver.
2. Providing Fuel for the Buses
3. Repair & maintenance of the buses,
4. We have established own workshop and service station for maintenance of the buses
5. The NMC is paying us the Service Charges on the basis of per Effective Run kilometres.
6. The rout of the Buses & the applicable fare is decided and collected by the NMC.
AS per the above it is clear that we are providing Services to NMC by providing the Busses along with Driver, Fuel & Maintenance for use of General Public at Large.
We have to start billing for the services and as per the discussions with the Accounts Officer of NMC, the GST applicable for the Green Bus Operations is Nil.
We wa

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ation of law facts, as the Case may be, in respect of the aforesaid question(s) (i.e. applicant's view point and Submissions on issues on which the advance ruling is sought).
BRIEF HISTORY OF THE CASE
M/s. SST Sustainable Transport Solutions India Private Limited (service provider) is a private Limited Company having registered place of business at plot no. C-49, Hingna Road, MIDC, Nagpur- 440028.
The Nagpur Municipal Corporation has been entrusted the task of implementing the AC Green Buses and for this purpose it sought service provider for Purchase, Supply, Operation, Maintenance etc of AC Green Buses. The company had entered into an Agreement with Nagpur Municipal Corporation (NMC) for Operation and maintenance of AC Green Buses Run on Bio Ethanol Fuel for Nagpur Urban Region. The agreement was executed on18th Aug.2017.
(A) Relevant clauses of the Agreement:
a) Relevant obligations of service provider:
1. Providing Bus with Driver, (clause 2.5.2 a & clause 4.1.w)
2. Pro

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) Joint responsibilities:
Clause 3.3.1 provides for joint responsibility to pay taxes and statutory charges related to Bus Services would be divided between the NMC and the service provider however the clause is Silent about payment of SGST-CGST/IGST. Thus as per the provisions of Goods and Services Tax statute the legitimate taxes would be collected by the service provider from NMC and will pay the same.
(B) NATURE OF TANSACTION:
1. Whether transfer of right to use any goods for any purpose
Your applicant is engage in supplying 'AC Green Buses' to Nagpur Municipal Corporation, on the basis of operation, repairs & maintenance, providing drivers, etc in accordance with the basic requirements of the Scope of work, and requirements for operation schedules on trips/routs in area as prescribed/ directed by NMC. Prima-facie it seems that the transaction would be of the nature of transfer of right to use any goods for any purpose.
Such interpretation could be derived on the lines of

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court has discussed catena of decisions to elaborate the deem sale transfer of right to use goods, one of the case cited by the court is of K.C. Behera v State of Orissa (83 STC 325) = 1990 (11) TMI 354 – ORISSA HIGH COURT where the court has observed ” Buses- bus hired out to State Transport Corporation the contract disentitled from using the vehicle covered by the agreement in any route. The Bus was to be run for Corporation as per the agreement and directions of an officer. The transaction is a “sale” within the extended meaning of the word. Providing of driver by the owner notwithstanding there was a transfer of the right to use bus for consideration, and effective control and possession of the bus vested in the Corporation.” The case is identical to the facts of the present issue. The High Court in the case of G.S. Lamba, supra, has lead down the parameters of transactions for transfer of right to use goods, the relevant essential requirements are reproduced here “(iv) the effect

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ring, operation and comprehensive maintenance of buses. To operate and maintain buses supplied as per the route plan and schedule of trips as per the directions of the Corporation. Make arrangements for fuel, drivers and skilled staff for operation and maintenance etc. Claim hiring charges from NMC. Thus the charges for the operation as a whole would be 'Hiring charges' claim on kilometer basis.
(C) Cause of Advance ruling:
Nagpur Municipal Corporation through its communication letter no. Transport/885/2017 dated 30/12/2017 [copy of the letter is annexed hereto and marked as Exhibit-I] had informed the service provider that the corporation had obtained clarification from the Joint Commissioner of Central Excise, Customs and Service Tax, Nagpur bearing No. IV/ (16)30-6/GST/2017 dated 23/08/2017 [copy of the letter is annexed hereto and marked as Exhibit -II]. The relevant part of the communication made by the Joint Commissioner of Central Excise, Customs and Service Tax, Nagpur dated

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ned Bus and the entry for tax rate is specifically for 'other than air conditioned stage carriage'. Secondly the entry is for supply transaction for 'Transport of passengers' not for leasing or hiring transaction. The nature of transaction between the service provider and the Corporation is of the nature of leasing/renting supply and not of charging fair to the passengers. The “Green Bus Contract Agreement” dated 18th August 2017 (hereinafter called as 'the Agreement') [the copy of the Agreement is annexed hereto and marked as Exhibit -V] provides NMC to collect fare from the commuters as per clause 7.1.h. Thus the entry referred by the Corporation does not cover the transaction between the service provider and the Corporation.
It was informed to the Corporation that the transaction would cover under sr. No 8 (vii) of the Notification No.11/2017-State Tax (Rate) dated 29th June, 2017 [the copy of Notification is annexed hereto and marked as Exhibit -VI] which read as “Passenger transp

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ustoms and Service Tax, Nagpur through letter no, IV/ (16)30-6/GST/ 2017 dated 23/08/2017 Stating that the transaction would attract 'Nil' GST as per Sr. No.15 of the Notification No.12 of 2017- Central Tax (Rate), dated 28.06.2017, stage carriage other than air-conditioned stage carriage is not applicable to the transaction between the applicant and the NMC. NMC cannot give reference of the communication of the Joint Commissioner as it is not relevant in the present issue.
The reliance on the communication of the Joint Commissioner is unwarranted and misleading. For the reasons that, the 'Green Bus' provided to the Corporation is Air Conditioned Bus and the entry 15 of the notification for tax rate is specifically for 'other than air conditioned stage carriage'. Secondly the entry is for supply transaction where 'Transport of passengers' is the recipient of services and not for leasing or hiring transaction. The nature of transaction between the service provider and the Corporation

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t to use any goods for any purpose( whether or not for a specified period) for cash, deferred payment or other valuable consideration.” If the transaction is of the nature of transfer of the right to use any goods for any purpose, your applicant desires advance ruling whether it is classifiable under Sl. No. 15(ii) of the Notification No. 11/2017-State Tax (Rate) dated 29th June 2017.
(5) Your applicant desires advance ruling whether the transaction would be classifiable under Sl. No. 22 (a) of the notification No. 12/2017- State Tax (Rate) dated 29th June, 2017. Which reads as Service by way of giving on hire- (a) to a state transport undertaking, a motor vehicle meant to carry more than twelve passengers; or” liable to tax at Nil rate.
(6) NOTE ON INTERPRETATION ON NOTIFICATION ENTRIES FOR RATE OF TAX in respect of the contract between SST Sustainable Transport Solutions and NMC
NOTIFICATION NO 11/2017 DATED 29/06/2017
No 8 (ii) “transport of passengers with or without accomp

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ge carriage” means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stage of the journey”
“contract carriage” means a motor vehicle which carries a passenger or passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf on a fixed or an agreed rate or sum
a. on a time basis, whether or not with reference to any route or distance; or
b. from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes-
i. a maxicab; and
ii. a motor cab notwithstanding that separ

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rements for operation schedules on trips/ routs in area as prescribed/ directed by NMC. Prima facie it seems that the transaction would be of the nature of transfer of right to use any goods for any purpose.
Such interpretation could be derived on the lines of judgement in case Tripura Syndicate Bus 122 STC 175 = 2001 (1) TMI 946 – GAUHATI HIGH COURT, and in the case of Godavari Finance co (2008) SCC 0107 S.C.= 2008 (4) TMI 766 – SUPREME COURT it is observed that though the drivers were the employee of the owner of the vehicle they have to follow the directions and instructions of the transferee and thus the vehicles under the effective control of the hirer. In the case of Rajasthan State Road Transport Corporation, 1997 (007) SCC 481 = 1997 (9) TMI 634 – SUPREME COURT OF INDIA, while deciding the case of compensation, Supreme Court has observed that notwithstanding the fact that the driver would continue to be on the pay roll of the owner, he has to act under the instructions, contro

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03-(184)CTR-0527-BOM, 2004-(265)-ITR-0114-BOM =2003 (4) TMI 29 – BOMBAY HIGH COURT the Hon'ble Bombay high Court has held that:
“There is a basic difference between “lease” and “hire”. This difference is borne out by the basic difference in the meaning of the expression “property” and the expression “possession”. A transaction of hire is essentially a contract of Bailment of a vehicle. In the case of a hire, only a license is given to the Hirer to use the vehicle for a temporary period the vehicle so hired – Melluish (Inspector of Taxes) v. BMI (No. 9) Ltd. (1996) 218 ITR 547 (HL) = 1995 (10) TMI 228 – HOUSE OF LORDS. In the case of hire, the hirer has an option to buy the equipment which is one of the main distinguishing feature between the words “hire” and “lease”. However, it is argued on behalf of the assessee that for the purposes of the above Entry, the word “hire” and the word “lease” should be read as equivalent. We do not find any merit in this argument.”
From the conjoint r

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nce of AC Green Buses run on Bio Ethanol Fuel for Nagpur Urban Region” and are providing services relating to transport of passengers in following aspect.
1. Providing Bus with Driver
2. Providing fuel for buses
3. Repair and Maintenance of Buses
4. This operator has set up Workshop and Service station for maintenance of buses
5. The NMC pays to M/s. SST Sustainable Solutions India Pvt Ltd rate as per effective run kilometres.
6. The route and the fare is decided and collected by NMC.
Further the appellant claims that the Service should be classifiable under Chapter Heading 9966-Services by was of giving on hire to a State Transport undertaking, a Motor Vehicle meant to carry more than 12 passengers, does not appears to be correct as the vehicles are rented to NMC which is not a state transport undertaking. The contention of appellant does not appear to be correct as the vehicles are rented to NMC which is a body constituted under Govt. of Maharashtra and not a State Trans

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Sh. Manish Agarwal, C.A. appeared and made oral and written submissions. Jurisdictional Officer, Sh. Paras Chaure, Supt., Principal Commissioner of GST, Nagpur appeared and made written submissions.
05. OBSERVATIONS
We have gone through the facts of the case, documents on record and the submissions made by both, the applicant as well as the department.
From the submissions made by the applicant we find that the issue is pertaining to buses which are hired by the NMC from the applicant. The facts are that the applicant has entered into an agreement with NMC and as per the agreement, they are providing the Services of Running AC Green City Buses for Transport of General Public, for which NMC is paying them Service Charges calculated on the Total Run effective kilometers and the fare from the passengers is collected by NMC. The applicant has submitted that they are providing the Buses along with Driver, Fuel & Maintenance for use of General Public at Large which can be seen from the

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us Routes are decided by NMC as also the Bus Fares, which are collected from the passengers. Hence it is crystal clear that in the subject case the transaction would be of the nature of transfer of right to use any goods and the amounts received by them on kilometer basis would be considered as hiring charges.
It has been rightly pointed out by the applicant that the nature of transaction between the applicant and NMC is of the nature of leasing/renting supply and not of charging fare to the passengers. Since the NMC has received a clarification from the department that the services provided by them i.e. transportation of passengers, are not taxable under the GST laws they are refusing to pay GST to the applicant on hiring charges paid. Thus the applicant has raised the question as follows:-
“Under which Chapter Heading / Service Code our activity will classify?”
We now take up the issue/ question raised by the applicant as under:-
As per sub-clause (0 of clause 5 of Schedule II ap

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of invoice shall verify the same and make payments.
iii. NMC has given a guarantee that the Buses so provided to them would travel a number of kilometers not less than 68,000 kilometers per Bus per year.
iv. There is an annual assured payment to be made by NMC to the applicant if the minimum number of kilometers are not travelled.
v. There is also a clause for payment for excess kilometers travelled by the said Buses and finally
vi. There is also a clause for revision of kilometer charges.
In view of the terms of the agreement it is very clear that in the subject case there is transfer of the right to use any goods (Buses) for any purpose i.e for transportation purpose and for a specified period of 15 years for cash. Thus as per sub-clause (f) of clause 5 of Schedule II appended to both, the CGST Act, 2017 and the MGST Act, 2017 the subject activity of the applicant would be considered as Supply of Services.
Now we shall arrive at the rate of tax that the applicant would hav

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uarely falls under Sr. No. 10, Heading No. 9966 sub- clause (ii) as rental Service of transport vehicles, in this case with operators and therefore attracts CGST and SGST @ 9% each on remuneration received for such services rendered by the applicant.
Here we may also add that the correspondence dated 23.08.2017 made by the department to confirm that as per Sl No. 15(c) of Notification No. 12 of 2017-Central tax (Rate) dated 28.06.2017, stage carriage Other than air-conditioned stage carriage attract '”NIL” rate of GST is applicable to NMC on their further services provided to passenger by way of transportation. The service rendered by the applicant to NMC by way of renting of AC Buses are covered under Sr. No. 10, Heading No 9966 sub-clause (ii) as mentioned and discussed above and are therefore taxable.
05. In view of the extensive deliberations as held hereinabove, we pass an order as follows :
ORDER
(Under section 98 of the Central Goods and Services Tax Act, 2017 and the Mahara

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Taneja Mines Pvt Ltd Versus Commissioner, Central Tax, GST Delhi -Delhi 2
Central Excise
2019 (1) TMI 234 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 15-10-2018
Excise Appeal No. E/52128/2015, E/53164/2015, E/50094/2016, E/52286/2016 [DB] – IO/E/91/2018-EX[DB]
Central Excise
MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Amit Jain, Advocate
Present for the Respondent: Mr. R.K. Mishra, DR
ORDER
PER: RACHNA GUPTA
Present Order deals with the 4 (four) Appeals with the following details:
Appeals No.
E/52286/2016
E/50094/2016
E/52128/2015
E/53164/2015
Impugned O-I-O No.
22/2015-16 dated 18.03.16
12/2015-16 dated 26.10.15
24-25/2014-15 dated 25.02.15
29-33/2014-15 dated 25.03.15
SCNs dated
04.02.04
30.12.14
23.12.05 & 29.11.06
03.07.07, 28.01.08, 24.09.08, 23.03.09 & 14.12.09
Period of dispute
April 1998 to December 2003
January 2004 to November 2004
December 2004 to Se

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e engaged in manufacture and in clandestine removal of the aforementioned goods which were excisable. A search was conducted by the officers of anti evasion of Central Excise Commissionerate in the premises of the appellant on 10.10.2003. It is thereafter that the Show Cause Notices as mentioned above were served upon the appellant for the respective period and the respective demand. Those demands have partly been confirmed. The major part of the said demand has been dropped vide the respective order as already mentioned above. Being aggrieved of the demand confirmed, the Appeals in hand have been filed.
3. We have heard Mr. Amit Jain, Ld. Advocate for the appellant and Mr. R.K. Mishra, Ld. DR for the Department.
4. It is submitted on behalf of the appellant that the appellant is importing gold plated nickel plates with the requisite/customized prints. The appellant is purchasing the frames of different materials and the only activity performed is of affixing the said plates within t

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.C.) to impress upon that when the appeal of the party is admitted by the Hon'ble Apex Court. Petition need to be adjourned sine die till decision of the Apex Court.
5. In addition, ld. Counsel also objected the impugned SCN as being barred by time for want of any evidence for alleged intent of tax evasion.
6. Ld. DR though has conceded for the admissibility of the Appeal before the Hon'ble Apex Court and that no outcome as yet. But has impressed upon that the impugned goods are otherwise excisable and the activity of the appellant amounts to manufacture. It is also impressed upon that two out of four of these appeals are the subject matter of appeal before Hon'ble Apex Court, hence are no more maintainable.
7. After hearing both the parties, we are of the opinion that the controversy in all these Appeals is common as to whether the impugned activity of the appellant amounts to manufacture and as to whether the products so processed fall under Chapter 4901 where the duty is nil or f

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ore this Tribunal was filed. Department also filed appeal against dropping. Both these appeals were decided vide F.O. No. 611-614/2010 dated 13.08.2010 reported as 2010 (257..) ELT 471 (Del.) as has also been conceded by the parties. Vide the said FO appeal of assessee was rejected and that of department was partly allowed, confirming the activity as manufacture (except for 'other articles') and classifying framed pictures under Chapter 8306 and Desktop clocks under Chapter 9102. Being aggrieved of confirmation of entire demand, Civil Appeal No.9478-9479/2010 was preferred before Hon'ble Supreme Court (as conceded by both the parties).
10. It is also observed that the appeals which were decided by O-I-O dated 28.04.2005 and went to Hon'ble Supreme Court are Appeal Nos. E/52286/2016 and E/50094/2016. However, in compliance, with the directions of the CESTAT Order dated 13.08.2010, the appellant provided requisite data for the period 1998 to December, 2003 to the Department vide their l

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Advance Ruling
Query (Issue) Started By: – Adarsh Gupta Dated:- 14-10-2018 Last Reply Date:- 20-10-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Hello,
In a AAR, an applicant asks two questions. One is answered in positive and one in negative for the applicant. Applicant decides to go in for appeal for question answered in negative only asks the appellate Authority to set aside/modify this question only. Can the appellate Authority go beyond the prayer and answer second question in negative as well?
Thanks.
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
If you go for appeal for the question decided negative, the Appellate Authority may confirm the negative order or set aside or modify the negative order. But he cannot

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Deemed supply and Input credit availabilty of same
Query (Issue) Started By: – Vinod Maheswari Dated:- 14-10-2018 Last Reply Date:- 2-11-2018 Goods and Services Tax – GST
Got 1 Reply
GST
Dear Sir
1) What is deemed supply. Please provided example for that. .
2) if I am providing railway wagon loading services to my customer who pay railway freight himself. I am getting consideration for Loading only. Now if loading is not done as per railway parameter than they charges additional freight called under loading / Over Loading charges and recovered the same from my customer..
Now customer instead of taking credit note from me he himself issue Tax Invoice for recovery of under loading/ Over loading charges paid to railways . This

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Indian Laws – Started By: – ADS Infoworld – Dated:- 13-10-2018 Last Replied Date:- 14-10-2018 – ADS InfoWorld Pvt Ltd. provides one-stop software solution provider for all businesses for any Company. It is the Customize Software Development Company in Delhi with the dynamic team of technical and business professionals. It has offered several web-based ERP and CRM software solutions for small business, manufacturing industries, CA Software, GST Billing Software, and Real Estate industry and many

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RECENT ADVANCE RULINGS IN GST (PART-7)
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 13-10-2018

Advance rulings are important in any tax law as it provides a forum for clarification and possible interpretation of statutory provisions. Moreover, it conveys the legislative intention from the revenue's view point. Provisions of advance ruling are contained in section 95 to 106 of CGST Act, 2017 and State / UT GST enactment. Rules 103 to 107 of also provide for forms, manner, certification etc.
The Authority for Advance Rulings (AAR) have been set up in all the states and we have now over 200 advance rulings on different issues already pronounced by various State Authorities. The appellate mechanism for filing appeals against AAR rulings is also in place and we have about two dozen of such appellate orders already pronounced. One major issue presently being faced is about multiple authorities (equal to number of States), each pronouncing a ruling of its ow

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is recipient of service and not service provider and also the services are not under reverse charge mechanism. The Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017 is applicable to provider of service and not recipient of service. It was observed that the instant applicant being recipient of service and not service provider is not the proper person to make the instant advance ruling application.
In view of above facts, the applicant's application was held to be liable for rejection as per proviso to section 98(2) and, therefore, could not be entertained by the Authority and is accordingly, rejected as not maintainable.[ IN RE: M/S. VISVESVRAYA NATIONAL INSTITUTE OF TECHNOLOGY, NAGPUR – 2018 (8) TMI 976 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA ].
Advance Ruling on jurisdiction of AAR
Where the applicant was an importer of coal and was also a dealer in trading of coal. The applicant sought advance ruling on as to “whether Input Tax Credit (ITC) is available on clean

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ded', prior to 1.7.2017.
* If the said eligible unit availing of the exemption is physically shifted to a new location within the area specified in the said area based exemption notifications.
* If there is any addition or modification in the plant or machinery or on the production of new products after taking over an eligible unit during residual period of exemption.
AAR ruled that application seeking advance ruling on notifications and circulars not issued under CGST Act do not fall under section 97(2) (a to g) of CGST Act, 2017 and under purview of Authority of Advance Ruling constituted under the CGST/SGST Acts. [ M/S KANJ PRODUCTS PRIVATE LIMITED – 2018 (6) TMI 429 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND ].
Advance ruling for procedure on receipt of application
* Where the applicant was engaged in the manufacture of textile yarn and it approached AAR to specify the complete procedure for supplies by DTA to Advance Authorization Holder and specify the applicability

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posed in the instant Application.
The second issue was held to be beyond the ambit of section 97(2), as it related to applicability of Foreign Trade Policy 2015-2020 mid-term review and the related procedure. The applicant had sought a ruling for applicability of Foreign Trade Policy which was clearly beyond the ambit of Authority for Advance Ruling. Thus, the application was held to be not worthy of admission.
Thus, the application filed by the applicants, being beyond the scope of section 97(2), merit rejection at the stage of admission itself and was rejected. [ IN RE : SPENTEX INDUSTRIES LTD. (2018) 8 TMI 285 (AAR- Madhya Pradesh);]
* Where the applicant had filed an application in Form GST ARA-01, dated 26.01.2018, for seeking advance ruling on 'clarification of rate of tax', for grain based Extra Neutral Alcohol (ENA) as they are engaged in manufacturing of grain based extra neutral alcohol. The question on which the advance ruling was sought on what tax rate appli

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Input Tax Credit Denied for Guest House Maintenance and Furnishing; Not a Perquisite or Statutory Obligation.
Case-Laws
GST
Input tax credit – Establishing, maintaining and furnishing guest houses including landscaping by way of gardening or otherwise is neither a perquisite nor a statutory obligation. It is purely for providing accommodation service to guests including employees on tour – Credit of such input services are as such blocked, not allowed.
TMI Updates – Highlights, quic

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