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2018 (9) TMI 1143 – CESTAT CHENNAI – TMI – Levy of service tax – renting of immovable properties such as commercial complex, shops, lands etc. to various parties – Held that:- The Hon’ble Supreme Court has found it proper to defer decisions in these matters awaiting the judgment of the nine Judge Bench in Mineral Area Development Authority and Others [2011 (3) TMI 1554 – SUPREME COURT] – in the interests of justice, all these appeals should be kept in abeyance pending the decision of the Hon’ble Supreme Court in all the three cases referred to supra, namely UTV News Ltd. [2018 (5) TMI 1367 – SUPREME COURT OF INDIA], Home Solutions Retails India Ltd. [2011 (10) TMI 13 – SUPREME COURT OF INDIA] and Ritika Pvt. Ltd. [2011 (12) TMI 706 – SUPREME COURT], since the final outcome therein will have a translational impact and affect the decision in all such matters as covered in these appeals. – ST/40994/2015, ST/41008/2015, ST/41538/2015, ST/40254/2016 – Final Order Nos. 42125-42128/2018 – Da

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as whether levy of service tax under section 65(105)(zzzz) of the Finance Act is within the Legislative competence of Union Parliament. The Hon ble Supreme Court took note that the very issue of legislative competence is pending before a nine Judge Bench of the Hon ble Supreme Court on a reference made in Mineral Area Development Authority and Others Vs. Steel Authority of India Ltd. – (2011) 4 SCC 450; that in view thereof, the Hon ble Supreme Court has opined that the matter should await the decision of the said nine Judge Bench. He also points out that the judgment of the Hon ble Delhi High Court in Home Solutions Retails India Ltd. Vs. Union of India – 2011 (24) STR 129 (Del.) which had upheld the constitutional validity of levy of service tax of renting of immovable property has been appealed against and is pending before the Hon ble Supreme Court as reported in 2012 (26) STR J118 (SC). So also, another judgment of the Hon ble Delhi High Court in Ritika Pvt. Ltd. dated 23.9.2011 w

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Hon ble High Court of Delhi in Home Solutions Retails India Ltd. (supra) and Ritika Pvt. Ltd. (supra) has been consistently followed by this Bench in all our recent decisions. No doubt, appeals against these judgments have been admitted by the Hon ble Supreme Court on 14.10.2011 and 16.12.2011 respectively. However, as pointed out by ld. ARs, there is no stay on operation of these judgments. 5.2 Nonetheless, it cannot be ignored that in a subsequent development, vide their order dated 5.4.2018 in the matter relating to UTV News Ltd. and others (supra) relied by the ld. Counsel, the Hon ble Supreme Court has gone into the question whether levy of service tax under section 65(105)(zzzz) ibid is within the legislative competence of Parliament or otherwise. The relevant portion of the said order of the Hon ble Supreme Court is reproduced as under:- We have heard the Learned Counsels for the parties at some length. 2. The question arising is whether Service Tax under Section 65(105)(zzzz)

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nnection or relation would be of any relevance to decide the issue of legislative competence appears to be pending before a nine judges Bench of this Court on a reference made in an order in Mineral Area Development Authority and Others v. Steel Authority of India and Others – (2011) 4 SCC 450. The questions referred are extracted below: 1. Having heard the matter(s) for considerable length of time, we are of the view that the matter needs to be considered by a Bench of nine Judges. The questions of law to be decided by the larger Bench are as follows : 1. Whether royalty determined under Sections 9/15(3) of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957, as amended) is in the nature of tax? 2. Can the State Legislature while levying a tax on land under List II Entry 49 of the Seventh Schedule of the Constitution adopt a measure of tax based on the value of the produce of land? If yes, then would the constitutional position be any different insofar as the tax

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e of T.N. [(1990) 1 SCC 12]? 6. Whether taxes on lands and buildings in List II Entry 49 of the Seventh Schedule to the Constitution contemplate a tax levied directly on the land as a unit having definite relationship with the land? 7. What is the scope of the expression taxes on mineral rights in List II Entry 50 of the Seventh Schedule to the Constitution? 8. Whether the expression subject to any limitations imposed by Parliament by law relating to mineral development in List II Entry 50 refers to the subject-matter in List I Entry 54 of the Seventh Schedule to the Constitution? 9. Whether List II Entry 50 read with List I Entry 54 of the Seventh Schedule to the Constitution constitute an exception to the general scheme of entries relating to taxation being distinct from other entries in all the three Lists of the Seventh Schedule to the Constitution as enunciated in M.P.V. Sundararamier & Co. v. State of A.P. [AIR 1958 SC 468: 1958 SCR 1422] [AIR p. 494: SCR at p. 1481 (bottom)]

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laced for hearing before a Bench of larger coram than the Bench whose decision has come up for consideration (see Central Board of Dawoodi Bohra Community v. State of Maharashtra [(2005) 2 SCC 673: 2005 SCC (L&S) 246: 2005 SCC (Cri) 546]. However, in the present case, since prima facie there appears to be some conflict between the decision of this Court in State of W.B. v. Kesoram Industries Ltd. [(2004) 10 SCC 201] which decision has been delivered by a Bench of five Judges of this Court and the decision delivered by a seven-judge Bench of this Court in India Cement Ltd. v. State of T.N. [(1990) 1 SCC 12], reference to the Bench of nine Judges is requested. The office is directed to place the matter on the administrative side before the Chief Justice for appropriate orders. 4. In view of the above, we are of the opinion that these matters should await the decision of the nine judges Bench where after the hearing of these matters will be taken up once again in the course of which i

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iles in respect of all these appeals for the purpose of statistics. So ordered. We, however make it clear that the appeal number and year already assigned to these cases shall remain unchanged, that any interim / stay order passed earlier in these cases shall continue on record and that the matters are closed only for statistical purpose. In this regard, we also draw sustenance from Tribunal s Larger Bench decision vide Final Order No. A/10843/2018 dated 26.4.2018 in the case of Small Industries Development Bank of India Vs. CST, Ahmedabad. Both sides are at liberty to file application before the Tribunal to reopen the matter pursuant to the outcome of the aforesaid matter by the Hon ble Supreme Court or in case of any other change of circumstance. In the result, the appeals are disposed of as files closed for purpose of statistics. (Dictated and pronounced in open court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxma

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2018 (11) TMI 1505 – AUTHORITY FOR ADVANCE RULING – CHHATTISGARH – 2018 (18) G. S. T. L 760 (A. A. R. GST) – Rate of GST – work contract services involving the supply of goods and services to CSPDCL – CSPDCL is a Government authority /Government entity or not – work predominantly for use other than for commerce, industry or any other business of profession or not – whether taxable at 18% or 12%? – Held that:- Close scrutiny of the balance sheet of CSPDCL reveals that 100% equity of CSPDCL as held by CSPDHL (Chhattisgarh State Power Distribution Holding Company Limited) and 100% of equity of CSPDHL is being held by Government of Chhattisgarh as is evident from the balance sheet of CSPDHL as on 31st March, 2016 – there is no ambiguity as regards CSPDCL, being a Government entity in view of the definition of 'Government Authority' as stipulated under N/N. 31 /2017-Central Tax (Rate), dated 13-10-2017.
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Nature of activities being under taken by the applicant – whether the same can be

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der the Companies Act 1956, earlier known as Mahanadi Power Development Company Limited (Company Registration No. 1015822, dated 19-5-2003) and is a company limited by share. Further it is also in public domain that the main Objects of CSPDCL – on going through the main/ancillary objectives as enumerated in Memorandum of Association of CSPDCL, there hardly remains any doubt regarding the principal/primary and foremost aim of CSPDCL being predominantly commercial in nature
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The nature of activities of CSPDCL being principally and predominantly, being commercial in nature, as per their (CSPDCLs) Memorandum of Association itself, we come to the considered conclusion that the works contract services provided by the applicant M/s. A2Z Infra Engineering Ltd., Raipur to CSPDCL is liable for CGST and SGST @ 9% each.
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Ruling:- In the light of Notification No. 11/2017-State Tax (Rate), dated 28-6-2017 read with amendment Notification No. 24/2017-State Tax (Rate), dated 23-9-2017 and as

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2Z' or the company') is a fully integrated Electrical Business Group in India engaged in providing maintenance and engineering services. II. Government of India has launched Integrated Power Development Scheme (IPDS) for the urban/ semi-urban areas for a. Strengthening of sub-transmission and distribution networks in the urban areas; b. Metering of distribution transformers/feeders/consumers in the urban areas; c. Rooftop Solar Projects, Installation of solar panels and smart / net meters as a mandatory component under IPDS; d. Counting IT enablement of distribution sector and strengthening of distribution network. III. Chhattisgarh State Power Distribution Company Limited (hereinafter referred to as 'CSPDCL') have been entrusted to execute the Project i.e. Implementation of IPDS scheme for a. Strengthening and augmentation for sub-transmission & distribution infrastructure and b. Electrification Work in 15 Circles (through eight packages) in Chhattisgarh State on b

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ll be subjected to CGST @ 6% and SGST @ 6% and provided that where the services are supplied to a Government Entity, they should have been procured by the said entity in relation to a work entrusted to it by the Central Government, State Government, Union territory or local authority, as the case may be.  (ii) that, on the basis of Notification No. 11 / 2017, Notification No. 24/2017, dated 21-9-2017 and Notification No. 31 /2017, dated 13-10-2017 the services provided to the Central Government, State Government, Union Territory, a local authority, a Governmental Authority or a Government Entity by way of construction, erection, commissioning installation, completion, fitting out, repair, maintenance, renovation, or alteration of a civil structure or any other original works meant predominantly for use other than for commerce industry, or any other business or profession will be subjected to CGST @ 6% and SGST@ 6% provided that where the services are Supplied to a Government Entit

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emented in all the States of India. So to implement this policy in Chhattisgarh, the Government of Chhattisgarh has provided the work to CSPDCL. (v) that, the work contract services provided by the Applicant to CSPDCL is meant predominantly for use other than for commerce industry, or any other business or profession. The IPDS scheme has been formulated to keep pace with the increase demand of electricity as electricity is the most important factor in the economic growth of any country and the most critical segment of power sector chain including Generation, Transmission and Distribution, is the Distribution Sector. The funds for IPDS scheme are provided by Central Government to Chhattisgarh Government in the form Of subsidy and by Chhattisgarh Government by arranging loan from FIs/ Bank. Further, that even after completion of this project no recovery will be made from any consumer as this IPDS scheme is not for earning any profit or gain but for the benefit of India as a whole so that

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ntract involving supply of goods and services provided by A2Z. This clarification has been sought by the Applicant in the context of Notification No. 24/2017-State Tax (Rate), dated 23-9-2017 and Notification No. 31/2017-State Tax (Rate), dated 13-10-2017, which provides that the services provided to the Central Government, State Government, Union Territory, a local authority, a Governmental Authority or a Government Entity by way of construction, erection, commissioning installation, completion, fitting out, repair, maintenance, renovation, or alteration of a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession will be subjected to CGST @ 6% and SGST @ 6%, provided that where the services are supplied to a Government Entity, they should have been procured by the said entity in relation to a work entrusted to it by the Central Government, State Government, Union territory or local authority, as th

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ty /Government entity ? and, if so (b) whether, the works contract services provided by M/s. A2Z Infra Engineering Ltd. Raipur to CSPDCL qualifies being the work predominantly for use other than for commerce, industry or any other business of profession. 6.3 Close scrutiny of the balance sheet of CSPDCL reveals that 100% equity of CSPDCL as held by CSPDHL (Chhattisgarh State Power Distribution Holding Company Limited) and 100% of equity of CSPDHL is being held by Government of Chhattisgarh as is evident from the balance sheet of CSPDHL as on 31st March, 2016. This being the case, there is no ambiguity as regards CSPDCL, being a Government entity in view of the definition of 'Government Authority' as stipulated under Notification No. 31 /2017-Central Tax (Rate), dated 13-10-2017. 6.4 Now, moving on to the second aspect regarding the nature of activities being under taken by the applicant i.e. whether the same can be treated as the work predominantly for use other than for commer

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Tax (Rate) No. F-10-74/2017/CT/V(126). – In exercise of the powers conferred by sub-section (1) of Section 9, sub-section (1) of Section II, sub-section (5) of Section 15 and subsection (1) of Section 16 of the Chhattisgarh Goods and Services Tax Act, 2017 (7 of 2017), the State Government, on the recommendations of the Council, and on being satisfied that it is necessary in the public interest so to do, hereby makes the following amendments in the notification of the State Government, in the Commercial Tax Department, No. 11/2017-State Tax (Rate) Notification No. F-IO43/2017/CT/V(79), dated the 28th June, 2017 published in the Gazette (Extraordinary) of Chhattisgarh, No. 252, dated the 29th June, 2017, namely :- In the said notification, in the Table, against serial number 3, for item (vi) in column (3) and the entries relating thereto, in columns (3), (4) and (5), the following shall be substituted namely :- (3) 4 5 "(vi) Services provided to the Central Government; State Govern

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24/2017-Central Tax (Rate), dated 23rd September, 2017, which was further amended vide Notification No. 31/2017-Central Tax (Rate), dated 13th October, 2017. (iv) Thus for availing the benefit of exemption Notification No. 24/2017State Tax (Rate), dated 23-9-2017, the pre-condition is that the services being provided by the Applicant to CSPDCL by way of construction erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of a civil structure or any other original works must predominantly be for use other than for commerce, industry, or any other business or profession. This effectively means that for availing the aforesaid benefit of reduced tax rate, it is of paramount importance that the services under taken/work done by the Applicant for CSPDCL must necessarily for use which is non-commercial in nature. (v) Now to ascertain the constitution of CSPDCL i.e. whether it has been incorporated for commercial aim or otherwise, it is see

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on, generation, use, storage and measurement, distribution and supply of electric power. 3. Investigate and prepare project reports To study, investigate, collect information and data, review operations, plan, research, design, prepare feasibility reports, prepare project reports, diagnose operational difficulties and weaknesses, and advise on the remedial measures to improve and modernize existing stations and facilitate and to undertake for and on behalf of others the setting up of Electric power plants and generally work for the efficient and economics management of the resources available. 6. Purchase and sale of Electrical energy and co-ordinate with other companies – To carry on the business of purchasing, selling, importing, exporting, wheeling and trading of power including finalization of tariff, billing and collection thereof. – To execute Power Purchase Agreements with Transmission Companies, Generating Companies, Central and State generating stations. Regional Electricity B

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rwise to transfer and convey the same absolutely or in trust and to give the lenders powers as may seem expedient, and to purchase redeem or pay off such securities and borrowings. 23. To carry on convenient business Generally to do all such other things as may be deemed incidental or conductive to the attainment Of the above objects or any of them and to carry on any business which may be conveniently carried on in connection with any of the Company's objects or are directly or indirectly calculated to enhance the value of or render profitable any of the Company's property or rights. C. Others Objects 8. To carry on the business of electrical and electronic equipment's etc. To carry on the business of manufacturing, assembling, repairing, servicing, selling, purchasing importing, exporting, of electrical and electronics equipments like, transformers, motors, switch gears, pumps, threshers, starters, electric fans coolers, air conditioners, televisions, telephones, epabx, a

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imited to providing of capital funds obtained from Central Government for installation and erection of infrastructure under IPDS scheme, whereas the role of M/s. A2Z Infra Engineering Ltd., Raipur is completion of the work of installation and erection of infrastructure including supply of materials like substation, conductor, meters, other structure ete. to be used predominantly for commercial purpose, at concessional and reasonable rates as per the awarded contract. Thus the nature of activities of CSPDCL being principally and predominantly, being commercial in nature, as per their (CSPDCLs) Memorandum of Association itself, we come to the considered conclusion that the works contract services provided by the applicant M/s. A2Z Infra Engineering Ltd., Raipur to CSPDCL is liable for CGST and SGST @ 9% each. 7. In view of the deliberations and discussions as above, we pass the following order : ORDER 8. In view of the discussions held above, the ruling sought by the Applicant is answere

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Customs – PUBLIC NOTICE NO. 98/2018 – Dated:- 19-7-2018 – OFFICE OF COMMISSIONER OF CUSTOMS (Export) NEW CUSTOM HOUSE, BALLARD ESTATE, MUMBAI-400 001 F. No. S/26-Misc-05/2018 Date: 19.07.2018 PUBLIC NOTICE NO. 98/2018 Subject: reg. Attention of the Exporters, Custom Broker and Traders Is invited to Board's Circular No. 21/2018 – Customs issued vide F. No. 450/ 1 19/2017 – Cus IV dated 18.07.2018. Various representations have been received in the Board wherein micro small and medium enterprise exporters have informed that their IGST refunds are held up and that they are unable to approach Customs port of exports due to factors like distance, lack of information/ knowledge etc. As part of the ongoing Refund Fortnight, it has been decide

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eamICES@icegatc.gov.in. to enable access to the data. The officers deputed at Help Desks would use this data to inform the exporters about the documents required, if any, and guide them to resolve the errors. The exporters can provide details related to any port of export at the Help Desk near their location. The Help Desk shall act as an extended office of the Port of export and collect documents/ information on behalf of the port of export. The details provided by the exporters to the Help Desk shall be transmitted by ICEGATE e-mail to the nodal officers at the port of export. The ICEGATE. e-mail ID or the nodal officer or each port of export shall immediately be informed to TeamICES@icegatc.gov.in The Customs officers at the port of expo

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Customs – F.No. S23/210/2017-AP(IGSTR)Vol. II – Dated:- 19-7-2018 – OFFICE OF THE PRINCIPAL COMMISSIONER OF CUSTOMS CUSTOM HOUSE: PORT AREA: VISAKHAPATNAM – 530035 PHONE: (0891) 2564552 FAX: (0891) 2562613 F.No. S23/210/2017-AP(IGSTR)Vol. II Date: 19.07.2018 NOTE/URGENT Sub: Sanction of IGST refunds pending sanction due to error code SB005 and SB006 Attention of all the Exporters/ Customs Brokers is invited to the IGST Refund Drive being organized by this Custom House from 16-07-2018 to 31-07-2

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Customs – PUBLIC NOTICE NO. 27/2018 – Dated:- 19-7-2018 – GOVERNMENT OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE OFFICE THE PRINCIPAL COMMISSIONER OF CUSTOMS (AIR CARGO), CHENNAI-VII COMMISSIONERATE, NEW CUSTOM HOUSE, MEENAMBAKKAM, CHENNAI – 600027. F. No.: S.Misc.230/2018-EXP(Air) Dated: 19.07.2018 PUBLIC NOTICE NO. 27/2018 Sub: Refund of IGST on export of Goods on payment of Duty- clarification in case of SB003 errors and extension of date in SB005 & other cases using officer Interface for rectification of errors – reg. ******** It may be recalled that in Circular 15/2018 – Customs date 06.06.2018 CBIC has provided for resolution of SB003 error in certain cases through the utility developed by the Directorate of Systems in a

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in an alternative mechanism with an officer interface to resolve invoice mismatches (SB005 error) was provided for the shipping bills filed till 30.04.2018. Despite wide publicity and outreach programmes to make exporters aware about the need to have identical details in invoices given in shipping bills and GST returns, it has been observed that a few exporters continue to commit such errors. Therefore, in view of the ongoing Refund Fortnight (from 16th July 2018 to 31st July 2018) giving high priority to the interest of exporters, it has been decided by the Board to extend the rectification facility to Shipping Bills filed up to 30.06.2018. 4. Further, the facility of rectification through Officer Interface is also extended in case of othe

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Goods and Services Tax – GST – Dated:- 18-7-2018 – In order to sort out the problems being faced by the exporters for refund claims of GST two Special Drive Refund Fortnight were organized from 15.3.2018 to 29.3.2018 and from 31.5.2018 to 16.6.2018. As a result, most of the claims filed till 30.04.2018 have been sanctioned. IGST refunds amounting to ₹ 21,142 crore and RFD-01A refunds totalling ₹ 16,920 crore has been sanctioned by CBIC and State Governments as on 16.06.2018. Government has also taken other measures to expedite the refund of GST to exporters which include certain common errors hindering disbursal of Integrated Goods and Services Tax (IGST) refund and solutions thereof, permitting manual intervention for correcti

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Goods and Services Tax – GST – Dated:- 18-7-2018 – As per the decision of the GST Council, e-way bill system has been rolled-out in a staggered manner across the country. E-way bills are getting generated successfully and till 17th July, 2018, more than Thirteen Crore and Fifty Lakh e-way bills have been generated which includes Six Crore and Fifty Lakh E-way bills for Intra-State movement of goods. Grievance Redressal Officers have been appointed by both the Central and State Governments under

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Goods and Services Tax – Started By: – AKSHAY NAIK – Dated:- 18-7-2018 Last Replied Date:- 3-8-2018 – Dear Sirs,There is a Pre-GST Transporters (GTA) invoice which is required to be paid (late payment). The payment if made now will Service Tax be liable (RCM Basis) ? If Yes the, How the payment will have to be done of the tax?Thanks & Regards. – Reply By Rajagopalan Ranganathan – The Reply = Sir,Access ACES Portel. Pay the tax with late fee. – Reply By AKSHAY NAIK – The Reply = Yes sir Done

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Goods and Services Tax – Non-filing of part B of E-way bill – Inter and Intra State Supply of Goods or Services – Rule 138 and Section 68 of Central Goods and Service Tax Act, 2017 and M. P. Goods and

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 18-7-2018 – Goods and Services Tax (GST), introduced from July 1, 2017 is more than one year old now but has resulted in operational and implementation disruptions affecting all stakeholders. GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council his however, making regular changes to fix the anomalies and hardships faced by taxpayers. Taxpayers have already challenged various provisions of GST laws and rules framed thereunder with about 200 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. Recently, CBIC has issued directions to be officers to defend the writs. Further, we have now rulings from Authority for Advance Ruling and Anti-profiteering Authority also. Even the orders from Appella

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e of accounts and other records. Chapter IX refers to returns. The very purpose of these provisions is to ensure a complete assessment, as required under Chapter XII. The powers conferred upon the officials under Chapter XIV for inspection, search, seizure and arrest is to detect and prevent evasion of tax under the Kerala State CST Act. The Rules insisted to be complied will have to be interpreted keeping in mind the purpose for which it were formulated. Chapter VII of Kerala State CST Rules refers to maintenance of accounts by registered persons. Rules as above are framed under Chapter VII under the head Accounts and Records . The Rules refers to the maintenance of records by a registered person. Thus, it can be seen that rules are framed for a fair and complete assessment of the goods or services provided by the assessee. In regard to Rule 56(19) of the Kerala State CST Rules, in the writ petition itself, the petitioners expressed their willingness to comply the rules in a manner re

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-compliance of maintaining records as referred in sub-rule 19(9) & (i) of Rule 56 of the Kerala State CST Rules can be subject matter of enquiry in assessment proceedings or in other proceedings and cannot be a reason to prevent the petitioners from engaging sale of lotteries in the State. The petitioners also cannot be prevented from engaging in the sale of lottery for not furnishing details regarding unsold ticket particulars within 48 hours. Explanation of the petitioners in each of such occasions, have to be considered by the officials. Similarly, the petitioners also cannot directed to file information in return to Annexure in regard to the percentage commission they receive. The petitioners are having every right to withhold such information. No action can be initiated for non-furnishing of such details regarding percentage of commission received. Percentage of commission has no nexus to the levy of tax to be collected from the petitioners. In Padmavati Enterprises v. Union o

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n their cash ledger by the CSTN within a period of one week from the date the payment is made. The ASG was advised to appraise the Commissioners of these grievances and, thereafter, ensure that they are followed up either with the Council or with the appropriate Authority in the Ministry. The court further observed that it expected the competent authority in the Ministry, particularly at the State and the Central level, to coordinate and resolve the issues which are raised in this petition on or before 24th April, 2018. In Anguvilas M.V. Muthaiah Pillai Firm v. CCE, Trichy 2018 (2) TMI 1659 (Cestat, Chennai), where an appeal of 2006 was pending in Cestat, Chennai and there was a stay in operation granted by the Madras High Court to the effect that appeal not to be proceeded with till disposal of writ petition. Ahead of the transition of indirect taxes to GST, Tribunal was given mandate by Ministry of Finance to dispose of all old cases at least prior to 2007. Cestat therefore, consider

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Goods and Services Tax – GST – By: – Pooja Sheth – Dated:- 18-7-2018 Last Replied Date:- 28-12-2018 – Introduction: Exports has always been considered as apple of GST s eye. It has always been considered the area of focus whenever any government policy has to be framed. Hence, person exporting should not be burdened by domestic taxes. Section 16 of IGST Act, 2017 deals with the concept of Zero rated supply. According to this provision zero rated supply means export of goods or services or both or supplying goods or services or both to a Special Economic Zone unit. The concept of export of services has been broadly borrowed from the provisions of the erstwhile Service Tax Law. Under the GST regime, export of service will be treated as zero-rated supplies . Section 2(6) of IGST Act, 2017 defines the term export of services as under: – Export of services means the supply of any service when, – The supplier of service is located in India; The recipient of service is located outside India;

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egrated Goods and Services Tax Act, 2017 (13 of 2017), refund of input tax credit shall be granted as per the following formula- Refund amount = Turnover of Zero rated supply of Services x Net ITC Adjusted Total Turnover Refund amount means the maximum refund that is admissible; Net ITC means the input tax credit availed on inputs and input services during the relevant period other than the input tax credit availed for which refund is claimed under sub rule (4A) or (4B) or both; Turnover of Zero rated supply of services means value of Payment received during the period for the invoices raised in earlier period or invoices raised in current period Add: Invoices raised in current period for advances received in earlier period Less: Advances received in current period whose supply is not completed in the current period Adjusted Total Turnover means the turnover in a state or a union territory, as defined under clause (112) of section 2, excluding – The value of exempt supplies other than

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pply of Services (d) Adjusted Total turnover (e) = a + b Net ITC (CGST+ SGST+ IGST) (f) Eligible Refund Amount (g)=d*f/e July 200 700 700 700 900 180 140 Aug 300 800 1000 800 1100 220 160 Sept 250 750 600 750 1000 200 150 Oct 200 700 1200 700 900 180 140 Nov 250 750 – 550 1000 200 110 Dec 100 800 1000 1000 900 180* 200 Total 1400 4500 4500 1160 900 *Refer eligible refund amount note below Clarification of above working: – Turnover of Zero Rated Supply of Services July: All the payments have been received against the invoices raised in the month of July itself and hence payment received during the month will be considered as turnover of Zero rated supply of services. August: We have received ₹ 1000 lakhs against which invoices raised are only for ₹ 800 lakhs. Invoices amounting to ₹ 200 lakhs has not been raised in the current period. Hence applying the above formula turnover of zero rated supply will be 1000+0-200=800 lakhs Rs September: We have received ₹ 600

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ero rated supply will be 1000+0-0=1000 lakhs Rs. Adjusted Total Turnover Adjusted total turnover in GST has to be considered as defined under clause (112) of section 2 which is sum total of domestic as well as zero rated supplies and excludes taxes and exempt supplies. Zero rated supply here has to be considered as defined under clause (112) of section 2 which is invoice raised. Here it slightly differs from erstwhile service Tax law. Net Input Tax Credit As per Definition of Input Tax which is defined under clause (62) of section 2 of CGST Act, 2017 includes all the three taxes that is integrated tax, central tax and state tax hence calculation has to be done on aggregate basis and not on individual basis. Eligible Refund Amount *In the month of December, zero rated turnover exceeds adjusted total turnover. Hence, on the GST portal one will not be able to enter zero rated turnover greater than adjusted turnover. Hence entire amount of Net ITC will be eligible amount of refund. One can

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where refund is to be credited. After completing the above steps form GST RFD – 01A is to be filed on common portal by attaching DSC On successful submission Acknowledgement will be generated. Documents required for filing Refund Application List of documents required for submission of manual refund application: Copy of Form GST RFD – 01A filed on common portal and acknowledgement generated. Electronic credit ledger copy with the amount of refund debited Copy of filed GSTR 3B Copy of filed GSTR 1 Copy of Export Invoices Copy of Statement 3 of FORM RFD-01A. Invoices w.r.t. input and input services. BRC or FIRC for export of services. Undertaking in FORM RFD-01A. Cancelled Cheque Various forms under Refund: – Time Limit GST RFD 01 Application for Refund 2 years from the relevant date GST RFD 01A Application for Refund (Manual) 2 years from the relevant date GST RFD 02 Within 15 days from filing application GST RFD 03 Deficiency memo Within 15 days from filing of GST RFD-01A, if any GST

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Goods and Services Tax – GST – By: – Bimal jain – Dated:- 18-7-2018 – To iron out the practical hindrances and issues being faced by the Industry Inc since the implementation of GST, the GST Council on July 9, 2018 had unveiled the draft of 46 proposed changes in GST law as a major step towards facilitating trade and ease of doing business. After detailed analysis of various amendments, following suggestions were compiled by Mr. Bimal Jain, Chairman, Indirect Tax Committee, PHD Chamber of Commerce which have been submitted to the Government for their kind consideration: I Definition of supply The term supply is proposed to be amended to exclude activities/ transactions listed in Schedule II to ensure that the activities/ transactions as per Schedule II is to decide only whether the same is supply of goods or services. Hence, activities/ transactions listed in Schedule II (as supply of service or supply of goods) shall be taxed only when they constitute supply in accordance with provis

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f car issue, it was clarified that where a supply involves supply of both goods and services, values of which are shown separately, the goods and services would be liable to tax at their respective rates. Hence, it is suggested that the concept of composite and mixed supply should be dealt and clarified as legislator intended while framing the section 8 of the CGST Act and should be more emphasized and explained by way of an example in the respective section of the CGST Ac and dominant/ principal supply concept would be determining factor for arriving at the composite supply irrespective of the fact of portion of material & services involved in the contract. Clarifying the meaning of term immovable property under Para 6(a) of Schedule II – Meaning of term immovable property must be clarified to avoid disputes whether particular activity is works contract or not. II Schedule III The scope of Schedule III is proposed to be expanded to include merchant trading, supply of goods in the

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dit scrips in Schedule III – Duty credit scrips viz. MEIS/ SEIS, issued on export of goods/ services are presently treated as exempted goods and therefore are subject to reversal of credit provisions of Section 42/Section 43 of the CGST Act on inputs/input services/Capital goods. As an encouragement to exporters, this Duty credit scrips should be included here as neither as supply of goods nor services. III Reverse Charge under Section 9(4) of the CGST Act GST Council has proposed to omit existing Section 9(4) of the CGST Act and instead, granting an enabling power for the Govt. to notify a class of registered persons who would be liable to pay tax on reverse charge basis in case of receipt of taxable goods or services from an unregistered supplier. The details of such specified persons are to be notified in future. Suggestion(s): Similar changes are also required in Section 5(4) of the IGST Act, 2017. ( the IGST Act ). Operation of Section 9(4) in its present form, if notified for a p

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or clause (c) may supply services of value not exceeding ten percent of turnover in the preceding financial year in a State or Union territory or five lakh rupees, whichever is higher Clause (b) mentions about composite rate of tax on restaurant service providers. There seems no essence to include this clause while allowing supply of services upto specified amount to manufacturers and traders. Else, it may be clarified that that for clause (b), this limit shall apply for services supplied other than restaurant service providers. Restricting value of ₹ 5 Lakh to only taxable supply – It should be clarified that this amount of ₹ 5 Lakhs should only be the taxable value of services – Order no. 01/2017 dated 13.10.2017 already clarifies that person supplying exempt services along with goods or restaurant services are not ineligible for composition levy. Clarification is required on nature of supply of services – Whether only Intra-state supply of services or Inter-state supply

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ITC is reversed for non-payment of invoice amount after 6 months from date of invoice Suggestion(s): Retrospective effect – This provision should be made applicable retrospectively from 01.07.2017 and payment of interest already made in intervening period should be refunded/ reinstated. VI Input Tax Credit – Blocked credit It is proposed to prune down blocked credit list in Section 17(5) of the CGST Act. ITC shall be available in case of motor vehicles having approved capacity of not more than 13 persons (including the driver) only in case it is used for specified purposes. It is also proposed that ITC in respect of food and beverages, health services, renting or hiring of motor vehicles, vessels and aircraft, travel benefits to employees etc., can be availed where the provision of such goods or services is obligatory for an employer to provide to its employees under any law for time being in force. Suggestion(s): ITC on construction services – Section 17(5) of the CGST Act must be pru

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ness i.e. it is a promotional or advertising activity. The company itself understand the same and such advertising cost is generally taken into account while finalizing pricing of other items manufactured. Hence, denial of credit on goods supplied as free samples is not justified. Clarification that term gift shall not include promotional items – It may be clarified that supply of promotional items along with supply of goods as a combo supply (undertaken as a part of business promotional activity), shall not be covered under the ambit of gift for reversal of ITC. Allow ITC on gifts when tax is paid on outward supply – In terms of Para 2 of Schedule I, supply of goods and services between related persons, shall be treated as supply even if made without consideration. However, gifts not exceeding INR 50,000/- in value in a financial year by an employer to an employee shall not be treated as supply of goods or services. Thus, even though such gifts exceeding INR 50,000/- in value in a fin

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ter VI (Registration) provides that the Plant and Machinery means apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes – land, building or any other civil structures; telecommunication towers; and pipelines laid outside the factory premises It is therefore suggested that the words other civil structures be removed from the said Explanation. Inclusion of the term Other civil structures may lead to numerous disputes on the eligibility of credit on various plant and machineries as various plant and machineries require civil works to support their operation. Pipe line used outside the factory should be covered under the definition of Plant and Machinery – Pipeline which are established outside business premises which is serving the purpose of providing Water/Gas, etc. used in manufacturing of the product taxable under GST s

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ng taken as non-GST supply? Clarity in this regard is required. Clarification on meaning of non-taxable supply – A concrete list of activities constituting non-taxable supplies in GST be provided to avoid any confusion as to its inclusion in aggregate turnover and reversal of common credit. VIII Registration It is proposed to insert the provisions of separate registration for multiple units in an SEZ. Suggestion: Word shall be replaced with may – It should not be made mandatory for the existing SEZ units which is having a single registration if located in the same SEZ. This will create confusion and additional work for the existing units. This should be an optional facility only. Further, the proposed amendment in Section 25(2) of the CGST Act allows multiple places of business of the taxpayers to be registered separately in addition to the different business verticals within the state. Suggestion: Suitable mechanism be provided for transfer of credit between different registrations he

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t been furnished and tax has not been paid. It is advisable that the supplier shall be made primarily responsible to pay taxes and the recipient shall not be made liable to reverse ITC availed against such taxes already paid by the recipient to the supplier. Only on failure of recovery of taxes from supplier under exceptional circumstances, as affirmed by the GST Council in their 27th GST Council meeting, the recipient could be approached for discharge of liability or reversal of ITC, as the case may be. In this regard, strict safeguards must be ensured so that GST authorities cannot deny ITC if the supplier has not paid the taxes as a first recourse. Further, appropriate provisions must be inserted/ amended in the GST ITC provisions also under Chapter V of the CGST Act. X Debit and Credit Notes The amendment seeks to permit a registered person to issue consolidated credit / debit notes as prescribed under Section 34 of the CGST Act in respect of multiple invoices issued in a Financial

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ar in which such supply was made Issuance of DN/CN without GST may also be allowed as an option to deal with financial adjustments wherein no adjustment of the tax liability is required in the hands of the supplier and corresponding reversal of ITC in the hands of recipient. XI GST Refund Amendments are proposed under Section 54(3) of the CGST Act to file refund claim for the unutilized ITC on Inputs & Input Services by due date for furnishing of returns under Section 39 for the period for which the claim for refund of ITC arises, which is presently the end of the financial year. Suggestion(s): Facility on GSTN portal should be enabled to allow monthly and/ or quarterly refund – As of now Form RFD – 01A allows only monthly claim of refunds. Thus, proper GSTN functionality must be ensured for proper execution of proposed change. Removing anomaly of no refund on unutilized ITC on capital goods as against Rebate Mechanism of export made on payment of IGST – The CGST Rules do not allow

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and Service tax, pre-deposit @ 7.5% of tax in dispute at first level and 2.5% at second level was applicable subject to maximum of ₹ 10 Crores. Keeping such high pre-deposit amount of 10%/20% with maximum ceiling as high as ₹ 25 crores/ 50 crores will cause undue hardship on innocent assesses having genuine case and not easing business for SME/ MSME Sectors. It is suggested that, pre-deposit amount under GST also should be 7.5% at first level of appeal and 2.5% at second level, totalling together 10% of disputed tax amount subject to maximum of ₹ 10 Crores. XIII Recovery of Tax It is proposed to provide that recovery may be made from distinct persons present in different States / UTs in order to ensure speedy recovery from other establishments of the registered person. Suggestion(s): Adverse impact on Industry – The proposed amendment is anti-industry and will be retrograde in nature. Operation of units in other states should not be affected if there are disputes in o

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s or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply. Suggestion(s): Clarification as to separate consideration – It is suggested that suitable clarification be provided that if separate considerations are charged for various goods and services supplied in conjunction with each other in ordinary course of business, the same shall also amount to composite supply. Suitable clarification be issued to provide certainty for determining whether a bundle of supply is a composite supply and also to determine principal supply therein. II Time of supply Section 14 of the CGST Act indicates the provisions for determining the time of supply in case where there is a change in the rate of tax in respect of supply of goods or services. Suggestion(s): Clarification in case of change in rate of tax w.r.t continuous supply of services – In order to avoid possible litigation, i

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taxable person may pay tax on the transaction value of such goods determined under section 15. Suggestion(s): Words plant and machinery be deleted – The use of word plant and machinery is not required as they are already covered under the meaning of capital goods. Clarification on no reversal of ITC in case of renting of capital goods – Section 18(6) uses the term supply which includes even renting of those capital goods or plant and machinery, on which ITC has been taken i.e. to say in case such capital goods/ plant or machinery are rented out, Section 18(6) triggers and there would be reversal of ITC which is not the intention. Suitable proviso be inserted accordingly. Transaction value concept be applicable for all capital goods supplied as scrap – Like Rule 3(5A)(b) of the Cenvat Credit Rules, 2004, if the capital goods are cleared as waste and scrap, payment of tax on the transaction value be allowed. It is suggested to make the proviso general rather than restricting to only spec

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Goods and Services Tax – Started By: – Ashish Gupta – Dated:- 18-7-2018 Last Replied Date:- 3-8-2018 – For July 2017 Invoices of 1 supplier are not appearing in GSTR 2A. The supplier had filed his GSTR1 late somewhere in November. We had already shown his invoices in GSTR 2 under missing invoices before then. I think it is a systems related issue. I have logged into his online GST account and have seen that he has uploaded the invoices in his GSTR1. What documents or confirmations do I need to take or correspondence to be done to show to GST audit in future? I already have his confirmation and GST tax paid challans. – Reply By Alkesh Jani – The Reply = Sir, There are four major conditions to avail ITC You should be in possession of Invoice

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Customs – 21/2018 – Dated:- 18-7-2018 – Circular 21/2018-Customs F. No: 450/119/2017-CusIV Government of India Ministry of Finance Department of Revenue (Central Board of Indirect Taxes and Customs) ***** Room No. 227B, North Block, New Delhi dated 18th July, 2018 To, All Principal Chief Commissioner/Chief Commissioner of Customs/ Customs & Central Tax / Customs (Preventive) All Principal Commissioner/Commissioner of Customs/ Customs& Central Tax / Customs (Preventive) All Director Generals under CBIC. Subject: Refund of IGST on export of Goods on payment of duty-Setting up of Help Desks -reg. Sir/ Madam, Various representations have been received in the Board wherein micro, small and medium enterprise exporters have informed that

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ll provide the status of each pending IGST refund claim with specific error due to which it is being held up, on Antarang. The icegate email ID of the officer(s) deputed at the Help Desk may immediately be informed to Team.ICES@icegate.gov.in to enable access to the data. The officers deputed at Help Desks would use this data to inform the exporters about the documents required, if any, and guide them to resolve the errors. The exporters can provide details related to any port of export at the Help Desk near their location. The Help Desk shall act as an extended office of the Port of export and collect documents/ information on behalf of the port of export. The details provided by the exporters to the Help Desk shall be transmitted by ICEGA

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Customs – 22/2018 – Dated:- 18-7-2018 – Circular No. 22/2018-Customs F. No: 450/119/2017-CusIV Government of India Ministry of Finance Department of Revenue (Central Board of Indirect Taxes and Customs) ***** Room No.227-B, North Block, New Delhi dated 18th July, 2018 To, All Principal Chief Commissioner/Chief Commissioner of Customs/ Customs& Central Tax / Customs (Preventive) All Principal Commissioner/Commissioner of Customs/ Customs & Central Tax / Customs (Preventive) All Director Generals under CBIC. Subject: Refund of IGST on export of goods on payment of duty-Clarification in case of SB003 errors and extension of date in SB005 & other cases using officer Interface for rectification of errors-reg. Sir/ Madam, It may be r

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f the said circular shall apply mutatis mutandis. 3. CBIC has issued circulars 05/2018-Customs dated 23.02.2018, 08/2018-Customs dated 23.03.2018 and 15/2018-Customs dated 06.06.2018 wherein an alternative mechanism with an officer interface to resolve invoice mismatches (SB005 error) was provided for the shipping bills filed till 30.04.2018. Despite wide publicity and outreach programmes to make exporters aware about the need to have identical details in invoices given in shipping Bills and GST returns, it has been observed that a few exporters continue to commit such errors. Therefore, in view of the ongoing Refund Fortnight, giving high priority to the interests of exporters, it has been decided by the Board to extend the rectification f

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2018 (7) TMI 1219 – CESTAT CHENNAI – TMI – Penalty u/s 78 of the Finance Act, 1994 – case of appellant is that non-payment was due to the financial crisis and for the delay in payment of service tax there was no willful intention to evade tax – Held that:- The facts put forward as well as the records would show that other than delay in payment of service tax, there is no evidence to show that appellant has suppressed facts with intention to evade payment of tax – The figures required for quantification of the demand of service tax has been taken from the accounts maintained by the appellant and there is nothing unearthed by the department to show that there was any positive act of suppression on the part of the assessee.
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This is a fit case for invoking Section 80 of the Finance Act, 1994 as the appellant has put forward reasonable cause for non-payment of service tax during the disputed period – penalty set aside, without disturbing the demand confirmed as well as the interest

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med the demand of ₹ 11,88,182/- along with interest and imposed equal penalty under Section 78 with an option to pay reduced penalty of 25%. The amount already paid by the appellants to the tune of ₹ 11,88,182/- as well as the interest amount was appropriated. Appellant filed appeal before the Commissioner (Appeals) who upheld the same. Hence this appeal. 2. On behalf of the appellant, Ld. Counsel Shri M. Karthikeyan submitted that non-payment of service tax was only due to financial hardship and there was no intention to evade payment of tax. It is stated in the grounds of appeal that during the impugned period, there was global recession and the business all over the world was getting into a slump. Appellant s business also suffered serious loss. Few payments received by them were barely enough to pay staff / workers and their salaries. Despite this financial crunch, appellant had taken all efforts to realize the payments but could not succeed. When the payments were rece

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. Ld. A.R Shri A. Cletus supported the findings in the impugned order. He submitted that appellants had collected the service tax but had not paid the same. The non-payment of service tax would not have come to light but for the interference by the department. The suppression of facts is thus very much evident and the penalties imposed are legal and proper. 4. Heard both sides. The Ld. counsel for the appellants has submitted that they are contesting only the penalty imposed under Section 78 of the Finance Act, 1994. It is vigorously argued by the appellant that non-payment was due to the financial crisis and for the delay in payment of service tax there was no willful intention to evade tax. Ld. counsel relied upon the decision in Vista Infotech Vs CST Bangalore – 2010 (17) STR 343 (Tri.-Bang.) and argued that penalty is unwarranted when there is mere delay in payment of service tax. The facts put forward before us as well as the records would show that other than delay in payment of

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2018 (7) TMI 1220 – CESTAT CHENNAI – TMI – Business Auxiliary Service – respondents had tie up with various financial institutions like GE Countrywide, TVS Finance etc. for purchase of consumer durables from the show rooms; that in respect of customers who avail the loan facility from such financial institutions, the respondents receive incentives depending on the quantum of business provided through them – whether the service would fall under the category of Business Auxiliary Services or not?
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Held that:- To determine whether a particular activity would constitute “Business Auxiliary Service’, the Larger Bench in the case of M/S PAGARIYA AUTO CENTER VERSUS CCE, AURANGABAD [2014 (2) TMI 98 – CESTAT NEW DELHI (LB)], has held that “transactional documents and other evidence on record” should indicate that the substantial activity is falling within the contours of BAS – In the case before us, these tests have not been applied – Interests of justice require that the matter should b

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uant to investigations carried out by the Directorate General of Central Excise Intelligence (DGCEI), it appeared that respondents had tie up with various financial institutions like GE Countrywide, TVS Finance etc. for purchase of consumer durables from the show rooms; that in respect of customers who avail the loan facility from such financial institutions, the respondents receive incentives depending on the quantum of business provided through them. It appeared that department took the view that by providing the services, the respondents were operating an agent of financial institutions to promote the business of the latter for which activity they receive commission. Hence the said services are appropriately covered under Business Auxiliary Service as defined under Section 65 (19) of the Finance Act, 1994. Accordingly, a show cause notice dt. 26.03.2009 was issued to appellant, inter alia proposing demand of service tax liability of ₹ 35,23,936/- with interest thereon, for the

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The customers of respondents were directed to approach only such banks / financial institutions who have tie up with them and not to others. iii) The representative of income by financial institutions had not been brought to the notice of the department. iv) From the statement of Shri S. Jeyaraj, Accounts Manager of respondents, it had been clearly brought out that as representatives of financial institutions with whom respondent had tie up were available in the show rooms. If the customers wish to avail loan, the respondent directs them to approach such representatives. Shri S. Jeyaraj has admitted the fact that for promoting the business of these financial institutions the respondent had received volume based incentives. The statement of Shri Jeyaraj has not been retracted nor disputed by the respondent. 3. On the other hand, on behalf of the respondent, Ld. Counsel Shri K.A.Parthasarathy made oral and written submissions which can be broadly summarized as under : i) The Larger Bench

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hey had given reply on 10.10.2007 along with copies of General Ledger for the years 2003-04, 2004-05 and 2005-06. Further in response to summons dt. 15.11.2007 they had submitted a letter dt. 26.11.2007confirming that they had furnished necessary details including Balance Sheet, Profit and Loss Account etc. and also pointed out that they were not rendering any activities which are liable for service tax. However, SCN has been issued only on 26.03.2009 for the period 1.10.2003 to 30.09.2008 and as such the same is clearly barred by limitation. v) As alternative plea, Ld. Advocate submits that even in case the tax liability is confirmed against the respondents there cannot be any penalty that can be imposed. The decisions of the Tribunal following Larger Bench decision in Pagariya Auto Center Vs CCE Aurangabad – 2014 (33) STR 506 (Tri.-LB), for example Ved Automotives Vs CCE Kanpur – 2016 (44) STR 140 (Tri.-All) ; Addis Marketing Vs CCE Mumbai – 2017 (50) STR 56 (Tri.-Mumbai) etc. have a

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I) and also to worksheets containing details of payments received towards commission by respondents (Annexure-III). All the same, both the lower authorities have not done any analysis of these communications. Further, even though in the reply to SCN dt. 30.04.2009 the respondents had inter alia, submitted a chronology of communications between DGCEI and, in particular, the fact of their having given all details called for and had contended that the demand is therefore barred by limitation of time, both the lower authorities have not gone into depth on these aspects. 6. Be that as it may, following the principle of stare decisis, this forum will fully rely on the ratio laid down by the Larger Bench of the Tribunal in Pagariya Auto Center Vs CCE Aurangabad (supra). The relevant portions of the Tribunal s Larger Bench decision are as under : 20. On a consideration of the apparent conflict of opinion in the decisions mentioned in the order of reference and the other decisions which were ci

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a substantial activity falling within the contours of any of the integers of the definition of BAS, spelt out in Section 65(19), then it would be legitimate to conclude that BAS is provided. 7. The takeaway from the ratio laid down by the aforesaid Larger Bench decision is that each and every case has to be analyzed in its entirety to determine whether there is a relationship / transaction which would fall within the fold of Business Auxiliary Service as defined in Section 65 (19) ibid. The Larger Bench has also held that if only mere space is provided along with furniture for facilitating accommodation of representatives of financial institutions within the premises of automobile dealer and consideration is received for that singular activity, such restricted relationship / transaction may not amount to Business Auxiliary Service. To determine whether a particular activity would constitute Business Auxiliary Service , the Larger Bench has held that transactional documents and other ev

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rvices for commission received from the financial institution, while the tax demand on amount received as target incentive is set aside. Interest liability on the tax confirmed is upheld while penalties are set aside. Appeal disposed of. In Ved Automotives Vs CCE Kanpur – 2016 (44) STR 140 (Tri.-All), the Tribunal in fact not only held that penalty is not imposable but also that extended period is not invocable. Relevant portion of this order is as under : 11. Thus, we find that there was interpretational issue, as to liability to service tax in the matter, as is evident by the nature of activity and clarification by the Larger Bench of this Tribunal. Accordingly, we hold- (i) Service tax is payable under the category of BAS under Section 65(19), by the appellant for the normal period; (ii) Extended period is not invocable; (iii) Penalties imposed are set aside. So also, in Addis Marketing Vs CCE Mumbai – 2017 (50) STR 56 (Tri.-Mumbai), the Tribunal similarly set aside penalties on the

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– relates to Business Auxiliary Service (Commission on sale of car) require to be re-considered applying the Notification No. 14/2004-S.T. by the Adjudicating Authority. (d) Penalties imposed under Sections 76, 77 and 78 are set aside. Following the above ratio, we hold that there cannot be any imposition of penalties in this case and therefore the penalties are set aside. 9. To sum up – (i) The matter is remanded for de novo consideration by the original authority to apply the tests laid down by the Larger Bench in Pagariya Auto Center (supra). (ii) In such de novo proceedings, the adjudicating authority shall also look into the contention of the respondents that the proceedings per se are hit by limitation. Needless to say, the respondents should be given suitable opportunity for presenting the case including the submissions of additional documents, if any, (iii) Penalties imposed under Sections 77 and 78 of the Finance Act, 1994 are set aside. 10. Appeal is allowed by way of remand

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2018 (7) TMI 1279 – CESTAT NEW DELHI – TMI – CENVAT Credit – duty paying documents – Supplementary Invoices – Rule 9 (1) (b) of the Cenvat Credit Rules 2004 – Held that:- In an identical set of facts in the case of Birla Corporation Ltd. V/s Commissioner [2018 (7) TMI 1264 – CESTAT NEW DELHI], Tribunal allowed the Cenvat Credit holding that there cannot be suppression of fact when the issue of liability of payment of Excise duty at the end of the coal companies was a debatable issue which is pending adjudication in the Apex Court – appeal allowed. – Appeal No. E/50633/2018-SMC, Appeal No. E/51064/2018-SMC – Final Order No. 52540-52541/2018 – Dated:- 18-7-2018 – Hon ble Mr. V. Padmanabhan, Member (Technical) Sh. Hemant Bajaj, Advocate for the appellant Sh. P. Juneja, H.C. Saini & K. Poddar, DR for the respondent ORDER Per: V. Padmanabhan 1. The present appeals have been filed against the Order-in-Appeal No. 494/2017-18 dated 29/11/2017 (for appeal E/50633/2018) and Order-in-Appeal

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1) (b) of the Cenvat Credit Rules 2004 which provides that the supplementary invoice is not a valid duty paying document where the additional amount of duty became recoverable from the manufacturer on account of willful misstatement, suppression of facts etc. Accordingly, the lower Authorities passed orders against the appellants denying the Cenvat Credit availed on the basis of supplementary invoices issued by Coalfields. Aggrieved by the decisions the present two appeals have been field. 3. In the above background we heard Shri Hemant Bajaj, Ld. Counsel for the Appellants as well as Shri P. Juneja & Shri H.C. Saini, Ld. DRs for the Revenue. 4. The arguments advanced on behalf of the appellants by Ld. Advocate are summarized below:- i. He contended that the case of the Department is that the differential duty paid by the Coal Companies was on account of fraud, suppression etc alleged against them and hence the prohibition contained in Rule 9(1)(b)) applies to the appellants. In th

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nt appeals may also be allowed. 5. The Ld. DR justified the impugned order. It is submitted on behalf of the Revenue that the provisions of Rule 9(1) (b) specifically provide that supplementary invoices are not allowed duty paying documents for availing credit wherever the additional amounts of duty became recoverable from the manufacturer on account of willful misstatement, suppression of facts etc. Proceedings against the coal companies have been initiated by the Revenue by alleging suppression and hence the supplementary invoices cannot be the basis for availing credit as has been held by the lower authorities. Hence it is prayed that the appeal may be dismissed. 6. Further he submitted that the case law in the case of Birla Corporation may not be applicable to the present case but the fact whether there is suppression on the part of the present appellant is required to be considered by Tribunal. 7. After hearing both sides and perusal of record I note that the issue involved in the

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rival contentions of both the sides, we take notice that this Tribunal in connected matter of South Eastern Coalfields Ltd. in Appeal No.52023-52026/2014-DB dated 3.4.2017 vide Final Order No.52723-52726/2017 dated 3.4.2017, taking notice of pendency of similar matter before the Hon ble Supreme Court in the case of South Eastern Coal Fields Ltd. and ors. and also other cases, referred to in the above case, disposed of the appeal of the South Eastern Coal Fields Ltd., granting liberty to them to come again after having final verdict from the Hon ble Supreme Court. Moreover, we are satisfied that there is 4 Excise Appeal No.50308/2018 no element of fraud and suppression on the part of the appellant. The issue herein is recurring in nature. Accordingly, we allow this appeal and hold that the appellant is entitled to take cenvat credit on the supplementary invoices in question. Thus, the appeal is allowed with consequential relief to the appellant. 10. By following the decision (Supra), I

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2018 (7) TMI 1366 – CESTAT NEW DELHI – 2018 (362) E.L.T. 904 (Tri. – Del.) – 100% EOU – Refund of unutilized CENVAT Credit – rejection of refund on the ground that certain inputs were procured by the appellant on payment of duty, when the same goods were covered under N/N. 22/2003 dated 31.03.2003 and have been procured without payment of any duty – Whether the appellant is entitled to CENVAT credit of duty paid on inputs procured by them for use in the manufacture of final product in the EOU?
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Held that:- Section 5A(1A) is applicable to those cases where the exemption is granted absolutely – Circular dated 26.11.2010 has referred to the Notification No. 29/2004 dated 09.07.2004 which has granted exemption to various textile articles. It has been explained that the manufacturer cannot opt to pay duty under the above notification and he cannot avail cenvat credit of duty paid on inputs.
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The appellant, being EOU was entitled to procure inputs without payment of duty under N/N

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Nos.32-33 (SJ)/CE/JPR/2018 dated 02.02.2018 passed by the Commissioner (Appeals), Central GST and Central Excise, Jaipur. The period of dispute is April to September, 2014. 2. The appellant is a 100% EOU. For manufacture of goods in the EOU, the appellant procured various inputs on payment of duty and availed cenvat credit of duty paid on such goods. The dispute pertains to the refund claims made by the appellant under Rule 5 of the Cenvat Credit Rules, 2004. Part of the refund claims were allowed and rest rejected. The rejection was on the ground that certain inputs were procured by the appellant on payment of duty, when the same goods were covered under Notification No. 22/2003 dated 31.03.2003 and have been procured without payment of any duty. The Department cited the provision of Section 5A(1A) of the Central Excise Act, 1944 and took the view that the duty paid on goods which were entitled to exemption in terms of Notification No. 22/2003 dated 31.03.2003, will not be entitled t

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itted that the provision of Section 5A(1) cannot be held against the appellant. (ii) In this connection, he relied on the decision of the Karnataka High Court in the case of CCE, Bangalore-II vs. Federal Mogul TPR India Ltd. -2016 (334) ELT 476 (Kar.). In the above decision, he argued that the Hon ble High Court has taken the view that Section 5A(1A) cannot be cited in the case of job work exemption under Notification No. 8/2005-ST. 4. Ld. AR appearing for the Revenue justified the impugned order. He brought to my notice the observation of the Commissioner (Appeals) in paras 3 and 5.3 of the Order-in-Appeal No. 32/2018 in which she observed that the appellant has challenged the order before her only on the ground that the refund was rejected on altogether different ground than those mentioned in the show cause notice. He further submitted that the Commissioner (Appeals) has not examined the issue on merit and hence appellant is not entitled to argue the merits of the case in the presen

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ty in terms of Notification No. 22/2003 dated 31.03.2003. The concurrent finding of both the authorities below is that the cenvat credits are irregular and hence the refund of such credits under Rule 5 of the Cenvat Credit Rule will not be admissible. 7. The provision of Section 5A (1A) of the Central Excise Act is reproduced below: where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods Revenue is of the view that the above provision would mean that the duty paid on inputs cannot be allowed as cenvat credit, in view of Notification No. 22/2003. 8. Section 5A(1A) is applicable to those cases where the exemption is granted absolutely. The CBEC has explained the above provisions by issue of Circular dated 26.11.2010. The circular has referred to the Notification No. 29/2004 dated 09.07.2004 which has

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ision of Section 5A(1A) as well as the Circular dated 26.11.2010 are not applicable for procurement of goods under Notification No. 22/2003. Consequently, there is no infirmity in the availment of credit by the appellant on duty paid. Further, the appellant will also be entitled to refund under Rule 5 of the Cenvat Credit Rules subject to satisfaction of conditions for claim of such refund. 10. Ld. AR has raised the ground that the impugned order has been passed deciding the appeal only on the ground that rejection of refund was altogether on a different ground from that raised in the show cause notice. It has further been submitted that the appellant may not be entitled to argue the merits before this Tribunal. A perusal of the impugned orders reveal that the lower authority has also sdiscussed the merits of the case and has referred to the provisions of Section 5A as well as the CBEC Circular dated 26.11.2010. This is sufficient to conclude that the lower authority has also touched u

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2018 (7) TMI 1490 – NATIONAL ANTI-PROFITEERING AUTHORITY – 2018 (17) G. S. T. L. 623 (N. A. P. A.) – Profiteering – refund of excess amount of GST paid – contravention of the provisions of Section 171 of the CGST Act, 2017.
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Held that:- It is apparent that the base price of the Supplier was ₹ 11,993.75/- and on the cum tax price a discount of ₹ 500/- was offered. It is also revealed that the Almirah was supplied to the Applicant by the Supplier vide invoice dated 29.11.2017 in which the base price was again shown as ₹ 11,993.87/- and GST of ₹ 2158/- was charged @ 18%, as the same had been reduced by the Govt, of India on 14.11.2017 from 28% to 18%. Therefore, it is clear that the Supplier had charged correct rates of GST which were prevalent at the time of placing of the order and the supply of the Almirah through the above two invoices, therefore, no illegality had been done by the Supplier while executing the order placed by the Applicant.
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e and therefore, also the Supplier cannot be held guilty under Section 171 of the Act.
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The allegation of profiteering made by the Applicant against the Respondent as well as the Supplier is not established – the application is not maintainable and is dismissed. – Case No. 5/2018 Dated:- 18-7-2018 – MR. B. N. SHARMA, CHAIRMAN, MR. J. C. CHAUHAN, TECHNICAL MEMBER AND MR. R. BHAGYADEVI, TECHNICAL MEMBER ORDER 1. The brief facts of the case are that an application dated 11.01.2018 was filed by the above Applicant before the Standing Committee, constituted under Rule 123 (1) of the Central Goods & Services Tax (CGST) Rules, 2017 stating that he had ordered a Godrej Interio Slimline Metal Almirah through the Respondent vide his order No. OD 110666745976477000 on 04.11.2017 and a tax invoice dated 07.11.2017 was issued to him for an amount of ₹ 14,852/- by M/s Godrej & Boyce Mfg. Co. Ltd., Mumbai (here-in-after referred to as the Supplier). At the time of delivery, anothe

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o ₹ 11,993.75/- as base price and ₹ 3358.25/- as GST @ 28% and on the gross amount, a discount of ₹ 500/- was given to the applicant by the Supplier. He had also found that the discounted price of ₹ 14,852/- could be further broken into ₹ 11,603.13/- as the base price and ₹ 3248.87/- as the GST@ 28%. Therefore the DGAP had stated that the base price of the supplier was ₹ 11,993.75/- with discount of ₹ 500/-. He had also stated that in the case of the invoice dated 29.11.2017 it was apparent that the Supplier had charged GST at the reduced rate of 18% on the base price of ₹ 11,993.87/- and hence the price charged to the Applicant was ₹ 14,151.87/-. The DGAP had therefore concluded that the Supplier had charged GST at the prescribed rate of 18% on the base price of ₹ 11,993.87/- and thus he had not increased the earlier base price after coming in to force of the GST. He had also concluded that the discount of ₹ 500/-

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nt of tax collected by him. The DGAP vide his letter dated 11.05.2018 had informed that as per the letter dated 27.4.2018 received from the Respondent the excess amount of ₹ 700/-collected from the Applicant had been refunded to him on 18.01.2018. The Respondent had also stated that he was only offering a market place which enabled the sellers to offer their products for direct sale to the customers for which it was charging commission and the sellers were entirely responsible for the supply of goods and services and for the payment of taxes. The Respondent had also informed that there were 7254 cases in which the rate of GST at the time of booking of the orders on his platform was higher than the rate of GST prevalent at the time of delivery and the Respondent had initiated the process of refund of the differential amount as per the instructions of the sellers. 5. It was decided to hear the Applicant as well as the Respondent on 29.05.2018 during which Sh. Gopi Krishna Obulam, D

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it margin by the Supplier and hence it could not be treated as an act of profiteering. He had also informed that the Respondent was not a Supplier and hence the refund of excess tax was distinct from profiteering and hence it did not fall under the ambit of Section 171 of the Act. 7. We have carefully heard the Respondent and have also perused the material placed on the record and it is revealed that the Applicant had placed an order for supply of a Godrej Interio Slimline Metal Almirah on the Supplier through the Respondent on 4.11.2017 for which a tax invoice was issued by the Supplier on 7.11.2017. The gross amount of ₹ 15,352/- shown in the invoice could be broken up into ₹ 11,993.75/- as base price and ₹ 3358.25/- as GST @ 28%. It is also revealed that on this gross amount a discount of ₹ 500/- was offered and the discounted price of ₹ 14,852/- was further broken up into ₹ 11,603.13/- as base price and ₹ 3248.87/- as GST @ 28%. Therefore i

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increasing his base price or appropriated the excess amount of tax charged from the Applicant and hence the allegation of violation of the provisions of Section 171 of the above Act is not established. 8. It is also apparent that the Respondent was not the Supplier/manufacturer of the Almirah and was only an agent who had offered his platform to the Supplier to sell the Almirah by charging commission, and was also not responsible for collection or refund of GST and hence he cannot be held accountable for contravention of Section 171 of the CGST Act, 2017. It has also been found that the Supplier has refunded an amount of ₹ 700/- through the Respondent which was charged as tax in excess from the Applicant at the time of the placing of the order. It has also come to the notice from the perusal of the letter dated 27.4.2018 that the Respondent had charged 28% GST in the case of 7254 orders which were placed on his platform by the various buyers before 15.11.2017 and in which the su

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2018 (7) TMI 1596 – MADRAS HIGH COURT – 2018 (363) E.L.T. 120 (Mad.) – Principles of Natural Justice – Opportunity of personal hearing not provided – Availability of alternative remedy – Rebate Claim – Circular No.1053/2/2017- CX, dated 10.03.2017 – Held that:- In the instant case, after giving show cause notice granting 30 days time, the authority, without waiting for any reply, on the 32nd day, passed an order – The impugned order passed within two days from the date of lapse of the time granted in the show cause notice is certainly in violation of principles of natural justice and, therefore, it is liable to be set aside.
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While adjudicating the issues, it is incumbent on the adjudicating authority to provide opportunity of personal hearing, not one, at least three, with sufficient interval of time, so that,the noticeee may avail the opportunity of being heard. The very object of the Master Circular issued by the Central Board of Excise and Customs mandates that the provision

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uch circumstances, the Writ Petition is maintainable.
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The matter is remanded back to the first respondent for consideration afresh – petition allowed. – W.P.(MD)No.12060 of 2018 Dated:- 18-7-2018 – M. Govindaraj, J. For the Petitioner : Mr.A.P.Ravi For the Respondents : Mr.R.Nandakumar ORDER This Writ Petition is directed against the order of the first respondent passed in the Order in Original No.MAD-CEX-000-ASC-196-16, dated 29.07.2016, for violation of principles of natural justice. 2. The petitioner submitted a rebate application along with the required documents to the first respondent on 02.05.2016. Pursuant to the application, a show cause notice was issued by the first respondent on 24.06.2016 proposing to reject the rebate claim of ₹ 12,40,360/- and it was received by the petitioner on 27.06.2016. Since he has failed to file his objections within 30 days, the impugned order was issued on 29.07.2016 i.e., on the thirty second day. 3. The learned counsel for the pet

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elf or through an authorised representative. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communications should be made to the noticee for each opportunity of personal hearing. In fact separate letter for each hearing/extension should be issued at sufficient interval. The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding adjourn the hearing for reasons to be recorded in writing. However, no such adjournment shall be granted more than three times to a noticee." 5. The learned counsel would also contend that the show cause notice mandated the petitioner to show cause against the notice within 30 days. As per Paragraph No.15 of the show cause notice, if no cause is shown against the action proposed to be taken within 30 days of receipt of the notice, or if they do not appear before the adjudicating authority, when the case is poste

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r or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during the proceeding." 7. According to the learned Standing Counsel appearing for the respondents, a show cause notice was issued and the petitioner failed to respond to the show cause notice and has not expressed his wish to be heard in person. In the absence of any request for personal hearing, the statutory provision does not mandate the adjudicating authority to provide personal hearing. In support of his contention, the learned Standing Counsel would rely on the judgments in 2010 (253) E.L.T. 722 (Mad) [Optigrab Internationa

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309) ELT A50 (Cal)]; (9) Kantilal B.Mohite vs UOI 2014(306) ELT 51 (Bom)]; (10) Baboo Ram Hari Chand vs. UOI [2014(304) ELT 371 (Guj)]; (11) Logic Transware India Pvt Ltd vs. CC. [2014(302) ELT 228(Del)]; (12) Adhunik Power Transmission Ltd. vs. UOI [2015(325) ELT 865 (Jhar)]; (13) CC, Bangalore vs. Fly Jac Logistics Pvt Ltd [2015(323 ELT 730 (Kar)]; (14) Shrushthi Plastics Pvt Ltd vs. CCE, Puducherry [2015(323) ELT 515(Mad)]; (15) Confidence Petroleum India Ltd. vs. ADDL.C.C., C.E. & S.T., Coimbatore [2015(322) ELT 237 (Mad)]; (16) General Mills India Pvt Ltd. vs. UOI [2015(322) ELT 95(Bom)]; (17) Deputy Commissioner of Central Excise, Chennai vs. Dorcas Market Makers Pvt. Ltd., [2015(321) ELT 45(Mad.)]; (18) JSL Lifestyle Ltd. vs. Union of India [2015(326) ELT 265(P&H)]; (19) Panoli Intermediate (India) Pvt. Ltd. vs. Union of India [2015(326) ELT 532(Guj)]; (20) Data Field India Ltd., vs. Dy Commissioner of Customs (EOU), Chennai [2016(331) ELT 557 (Mad)]; and (21) Electronic

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t the assessee to appear before him for a personal hearing by himself or through his authorized representatives. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communication should be made to the noticee for each opportunity of personal hearing. From this, it can be inferred that while adjudicating the issues, it is incumbent on the adjudicating authority to provide opportunity of personal hearing, not one, at least three, with sufficient interval of time, so that,the noticeee may avail the opportunity of being heard. The very object of the Master Circular issued by the Central Board of Excise and Customs mandates that the provision of personal hearing is very essential before deciding any issue by a quasi judicial authority. 12. Section 33-A of the Act reads that the adjudicating authority shall give an opportunity of hearing, if the party so desires. The word "sh

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t asked for it. 13. The very issuance of the show cause notice, as specified at Paragraph No.2.1 of the Master Circular, is that the object of following the principles of natural justice is no one should be condemned unheard. In this context, we see that the Circular issued by the Central Board makes personal hearing mandatory and is binding on all the quasi judicial authorities. They cannot disobey or ignore the circular, as it has the binding force on them. 14. Coming again to the provision under Chapter VI of the Central Excise Act, 1944, with regard to adjudication of confiscation and penalties, Section 33-A reads that the opportunity of being heard to a party in a proceeding, if the party so desires, shall be given. Sub-Section (2) of Section 33-A mandates that if sufficient cause is shown, at any stage of proceeding, that time shall be granted for reasons to be recorded in writing. Further, it provides for three adjournments to a party, which means that adjudicating authority sha

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llant therein and decided the issue. In such an appeal proceeding, it is observed that if personal hearing is not given, it could not be said that there was violation of principles of natural justice. More so, the subject matter of controversies/disputes between the parties only impinge upon the interpretation of various Sections of the Customs Act on legal plane and, therefore, no prejudice was caused to the party in not providing opportunity of hearing to its authorised representative. Whereas, in the instant case, a show cause notice was issued by the adjudicating authority to the petitioner and it requires explanation directly by him and in cases of clarification, requires his presence in person to explain the factual issues. The issue decided by this Court in the above said case is with regard to the appeal proceeding and that cannot be equated with the original proceedings, where the presence of the noticee is very much essential. 17. Likewise, the judgment relied on by the learn

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waiting for any reply, on the 32nd day, passed an order. Therefore, the judgment of the Karnataka High Court cannot be applied to the case on hand. 19. Again, the learned Standing Counsel for the respondents relied on the judgment of Calcutta High Court reported in 2005(185) E.L.T. 227 (Cal.) [Nellimarla Jute Mills Co. Ltd. vs. Zonal Dir.Gen. of Foreign Trade], wherein the adjudicating authority, after lapse of time granted to the petitioner therein, has extended further time of seven days and served notice on the petitioner therein and thereafter, proceeded with the adjudication. In such circumstances, it cannot be said that the order was passed hastily. Another opportunity was given in compliance with the principles of natural justice. Therefore also, the said judgment is of no avail in favour of the respondents. 20. The Hon'ble Supreme Court in Swami Devi Dayal Hospital and Dental College Vs. The Union of India and others [2013 (10) Scale 608] at Paragraph Nos.21 and 23, has obs

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l justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusion. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the emplo

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nknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusion, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it." 21. Further, in the judgment reported in General Mills India Pvt Ltd. vs. UOI [2015(322) ELT 95(Bom)]; a Division Bench of Bombay High Court at Paragraph No.4 has held as follows: "4……………. We do not see how the approach of the officer in this case can be countenanced even in the present matter. When he is aware of the requirement of giving a personal hearing before a adverse order is passed, then, the impugned order sho

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ot;Denial of Personal hearing: 10.The respondent denied the appellant opportunity of hearing only on the ground that objection was not given to the pre-assessment notices. Even if objection was not given, still the assessing authority was expected to post the matter for hearing by issuing notice to the assessee. In case the assessee fail to appear, it is open to the assessment authority to pass orders on merits. We make the position clear that the failure to submit objection to the pre-assessment notice would not give a right to the Assessment Officer to deny opportunity of personal hearing to the assessee. 23. Insofar as the issue of approaching this Court without exhausting the alternative remedy is concerned, a Full Bench of Hyderabad High Court in Electronics Corporation of India Ltd. vs. UOI [2018-TIOL-484-HC-AP-CX-LB], at Paragraph No.23, has observed as under: "23. In the result, the reference is answered holding that the decisions in M/s.Resolute Electronics Pvt. Ltd. and

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ted 29.07.2016 is concerned, it is passed without affording any opportunity of personal hearing, in contravention of the statutory provision, circular issued by the department as well as contrary to Paragraph No.15 of the show cause notice. The impugned order passed within two days from the date of lapse of the time granted in the show cause notice is certainly in violation of principles of natural justice and, therefore, it is liable to be set aside. 26. In the result, the Writ Petition is allowed and the impugned order in original dated 29.07.2016 passed by the first respondent is set aside and the matter is remanded back to the first respondent for consideration afresh. The petitioner shall file all his objections, within a period of one month from the date of receipt of a copy of this order. On receipt of objections from the petitioner, the first respondent shall afford an opportunity of personal hearing at least three times, as mandated in the Master Circular with sufficient inter

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2018 (8) TMI 172 – CESTAT NEW DELHI – TMI – Refund of accumulated Cenvat credit – Export of output services – Rule 5 of the CCR read with the relevant N/N. 27/2012-CE(NT) dated 18.6.2012 – denial of refund on the ground that the documentary evidence for export of services has not been satisfactorily submitted – Held that:- Identical issue decided in the case of MOBILE IRON INDIA SOFTWARE PVT. LTD, HYDERABAD VERSUS THE COMMISSIONER CCE & ST, HYDERABAD-IV [2017 (4) TMI 228 – CESTAT HYDERABAD], where the grounds for rejection of refund was non-production of Softex returns from STPI authorities. The Tribunal has concluded that the insistence to furnish Softex returns from STP authorities is not as per the law laid down in the relevant field.
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In the present case also, the appellant has claimed to have exported Information Technology Software Service. The fact of export of such software and the receipt of the foreign exchange therefor is sufficiently evidenced from the invoices, the F

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credit in terms of Rule 5 of the Cenvat Credit Rules, 2004 read with the relevant Notification No. 27/2012-CE(NT) dated 18.6.2012. The appellant claimed that they have exported their output service. The claim was supported by the necessary documents, as required under the relevant notification. The claim for refund was rejected by the original authority and the same was also upheld by the impugned order. The main reason for rejection of such refund claim is that the appellant failed to submit documentary evidence for export of services in the form of Softex Forms . The lower authorities have recorded that the submission of Softex Forms duly certified by the Software Technology Park (India) (STPI) Authorities is a requirement in the case of off shore export of services through data communication link, as per the RBI guidelines. Aggrieved by the rejection of their refund claims under Rule 5 of CCR, 2004, the present appeal has been filed. 3. With the above background, heard Shri S. Thiru

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rescribed in the Notification No. 27/2012 as well as Rule 6A of the Service Tax Rules, 1994 and is entitled to such refund and the same may be ordered to be paid. 5. The ld. DR justified the impugned order and pointed out that the departmental authorities need to be satisfied with the fact that the services have been exported and the foreign exchange received is towards such exports. Only subject to such satisfaction, the refund under Rule 5 of the CCR, 2004 can be sanctioned. He argued that the original authority has recorded that the appellant has failed to submit documentary evidence for export. For non-fulfilment of Condition (g) of the relevant notification, the refunds have been rightly rejected. The requirement of submission of Softex Forms has been confirmed by the Additional Director STP vide his letter dated 28.12.2016 and hence the lower authorities have rightly rejected the refund claims. 6. Heard both sides at length and perused the record. 7. The refund under Rule 5 of th

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h forms but through this appeal have claimed that the Softex Form is not a requirement for export of services through internet. It has been submitted that the Softex Forms are requirement only in the case of software export in media form. To this effect they have relied on the decision of the Tribunal in the case of Mobile Iron India Software Pvt. Ltd. (supra). 9. I have carefully considered the decision of the Tribunal in the case cited by the appellant. In the said case also one of the grounds for rejection of refund was non-production of Softex returns from STPI authorities. The Tribunal has analysed the issue and has observed as follows: 8. The second ground for rejection of the refund is that the appellant has not produced SOFTEX returns from STPI authorities. Again, the said document as per Foreign Exchange Management (Export of Goods & Services) Regulations, 2015, shows that it relates with export of goods and software and not with regard to export of services. The relevant

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fter certifying all three copies of the SOFTEX form, the said designated official shall forward the original directly to the nearest office of the Reserve Bank and return the duplicate to the exporter. The triplicate shall be retained by the designated official for record. 9. The above regulations shows that the insistence to furnish SOFTEX returns from STPI authorities is not as per law laid in the relevant field. 10. The Tribunal has concluded as above that the insistence to furnish Softex returns from STP authorities is not as per the law laid down in the relevant field. In the present case also, the appellant has claimed to have exported Information Technology Software Service. The fact of export of such software and the receipt of the foreign exchange therefor is sufficiently evidenced from the invoices, the FIRCs and the Chartered Accountant s certificate certifying the total turnover. 11. In view of the above, I am of the view that the appellant is entitled to refund in terms of

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2018 (8) TMI 250 – CESTAT NEW DELHI – TMI – CENVAT Credit – rent paid for the period, prior to registration – Held that:- The main reason why the Cenvat credit has been disputed by Revenue is that the premises for which rent was paid along with service tax was not part of the centralised registration till it was granted to the respondent with effect from 28.1.2015. It is further seen that the application for such centralised registration was submitted as early as on 9.1.2013, but the same was granted only in 2015.
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Similar issue decided by Tribunal in the case of CCE & ST Vs. Samsung India Electronics Pvt. Ltd. [2015 (11) TMI 1570 – CESTAT ALLAHABAD], where it was held that a service provider can avail Cenvat credit of Service Tax paid on various input services, as long as the said services are used for providing output-taxable services.
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Credit remains allowed – appeal dismissed – decided against Revenue. – Appeal No. ST/51495/2018-SM – A/52608/2018-SM[BR] – Dated:- 18-7-20

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s issued proposing to deny such Cenvat credit. During the course of adjudication of the dispute, the authorities below came to the concurrent conclusion that the Cenvat credit cannot be denied to the appellant even though the premises taken on rent was only subsequently included in the centralised registration. Aggrieved by the findings of the impugned order, Revenue has filed the present appeal. 3. Heard Shri H.C. Saini on behalf of Revenue, he reiterated the grounds of appeal and submitted that the Cenvat credit of service tax paid on renting of immovable property may not be allowable to the appellant since the premises was not part of the registration. The lower authorities have allowed the benefit on the basis of the decision of the Tribunal in the case of CCE & ST Vs. Samsung India Electronics Pvt. Ltd. – 2017 (52) STR 497 (Tri.-All.). Since Revenue has challenged such decision further, he submitted that the appeal may be allowed. 4. The case of the respondent was argued by Sh

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The first issue is with respect to availability of credit on input services received by assessee at its unregistered Premises – Stellar Park. The ld. AR for Revenue urges that credit have been taken for the service under Renting of Immovable Property for rent paid for the Stellar Park Premises, being unregistered with the department. The premises are not covered in the listed premises in their Centralised R.C. Thus, this premises cannot be said to be used for providing output service. Ld. Counsel for respondent assessee states that the Stellar Park Premises at Noida were taken on rent only in April, 2012. Thereafter they had applied for inclusion of Stellar Park address in their centralised R.C. on 24-4-2013, and the same was approved and granted on 19-7-2013. Further it has been certified by the C.A. that invoices for output service rendered from Stellar Park, was raised from the Registered Office at Noida. That as per Rule 3 of CCR, 2004, there was no condition precedent, that input

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2018 (8) TMI 359 – CESTAT ALLAHABAD – TMI – Maintainability of appeal – Works contract services – whether the construction of residential flats under Manyawar Shri Kanshi Ramji Shehari Garib Awas Yojna would be liable to service tax under the category of “Works Contract Services” or not? – Held that:- Revenue has not been able to give any details of the appeal filed before the Hon’ble High Court. Even, the fact as to whether the same stands admitted by the High Court or not, has not been placed.
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Also, the issue involved is the taxability of the services and applicability of exemption notification and as such the appeal was, in any case required to be filed before the Hon’ble Supreme Court and not before the Hon’ble High Court.
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o whether the construction of residential flats under Manyawar Shri Kanshi Ramji Shehari Garib Awas Yojna would be liable to service tax under the category of Works Contract Services or not. While extending the benefit to the respondents, Commissioner (Appeals) has relied upon various decisions including the decision of the Tribunal in the case of Commissioner of Customs, C. EX. & S.T., Allahabad vs. Ganesh Yadav reported at 2017 (6) G.S.T.L. 428 (Tri.-All.). For proper appreciation para 4.6 of Commissioner (Appeals) order is reproduced below:- Thus, I hold that construction of residential flats under Manyawar Shri Kanshi Ramji Shehari Garib Awas Yojna, was not taxable under Works Contract Service , during the impugned period and as suc

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rther, in the case of M/s Ganesh Yadav, Varanasi, the Department had filed Appeal in the Hon ble CESTAT, Allahabad and the Hon ble CESTAT, vide Final Order No. ST/A/70343/2017-CU[DB] dated 07.03.2017, dismissed the appeal of the Department. 3. Revenue s only objection in the Appeal Memo is that the Tribunal decision in the case of Ganesh Yadav has not been accepted by the Revenue and an appeal there against has been filed before the Hon ble Allahabad High Court. 4. However, we find that apart from the contending as above, Revenue has not been able to give any details of the appeal filed before the Hon ble High Court. Even, the fact as to whether the same stands admitted by the High Court or not, has not been placed before us. There is no or

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2018 (9) TMI 685 – MADRAS HIGH COURT – TMI – Unable to upload Form GST TRAN-1 – input tax credit – migration to GST regime – Held that:- It was brought to the notice of the Central Board of Indirect Taxes (CBIC) and Customs that about difficulties faced by section of tax payers owing to technical glitches on the GST and representations were given by the petitioners. Therefore, CBIC is setting up a Grievance Redressal Mechanism vide Circular No.39/13/2018- GST dated 03.04.2018.
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The procedure of appointment of Nodal Officers and identification of issues is to be done in the manner provided in Paragraph 5 of the Circular. Unless the Nodal Officers are appointed, jurisdictional officer of the Assessee, namely Assessing Officer would not be in a position to forward the representations/applications filed by the Assessee pointing out the glitches they are facing while availing the credit during the transition process.
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The respective Commissioner of GST and Central excise are dire

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thin the time stipulated. 3. The petitioners would state that they were unable to upload Form GST TRAN-1 within the time stipulated on account of some error. Therefore, the petitioners seek for appropriate direction in this regard. 4. Similar prayers were made before the High Courts of Chhattisgarh, Delhi and Kerala. The High Court of Chhattisgarh, in W.P(T) No.68 of 2018 by order dated 14.5.2018, issued appropriate directions. The operative portion of the said order reads as follows: 7. After going through the aforesaid circular and the scheme of the circular, I am convinced that complete procedure has been prescribed for redressal of grievance which the petitioner has raised in this writ petition, particularly of nonuploading of FORM TRAN-I due to technical glitches. Apart from this State Government – Commissioner, Central Excise/GST has issued order dated 5.4.2018 in which Nodal Officers have already been appointed by the State Government. In view of the above, the petitioner is dir

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High Court is concerned, in W.P.No.17348 of 2018 by order dated 14.6.2018, the following direction has been issued: Having regard to the facts and circumstances of this case as also the orders passed in similar matters, I deem it appropriate to dispose of the writ petition permitting the petitioner to prefer an application before the additional sixth respondent, the Nodal Officer appointed to resolve issues in the nature of one raised by the petitioner. Ordered accordingly. Needless to say that if the petitioner prefers an application within two weeks from the date of receipt of a copy of this judgment, same shall be considered and appropriate decision shall be taken by the additional sixth respondent within a week thereafter. Needless also to say that if it is found that the petitioner could not upload FORM GST TRAN-1 for reasons not attributable to him, appropriate action shall be taken to enable him to take credit of the input tax available to him at the time of migration. 7. The le

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f electronic audit trail. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1 procedure (original or revised of filing them on or before 27.12.2017 due to IT glitch, shall be provided the facility to complete TRAN-1 filing. It is clarified that the last date for filing of TRAN-1 is not being extended in general and only these identified taxpayers shall be allowed to complete the process of filing TRAN-1. 8.2. The Taxpayers shall not be allowed to amend the amount of credit in TRAN-1 during this process vis-a-vis the amount of credit which was recorded by the taxpayer in the TRAN-1, which could not be filed. If needed, GSTN May request field formations for Centre and State to collect additional document/data etc., or verify the same to identify taxpayers who should be allowed this procedure. 8.3. GSTN shall communicate directly with the taxpayers in this regard and submit a final report to GIC about the number of TRAN-1s filed and submitted throug

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d circular. Unless the Nodal Officers are appointed, the Jurisdictional officer of the Assessee, namely Assessing Officer would not be in a position to forward the representations/applications filed by the assessees pointing out the glitches they are facing while availing the credit during the transition process. 11. The learned Government Advocate submits that the Principal Secretary and Commissioner of Commercial Taxes, Government of Tamil Nadu vide, proceedings dated 18.5.2018, nominated Mr.S.Ramasamy, Joint Commissioner (CS) as the State Level Nodal Officer to address the problems faced by the tax payers due to IT glitches, if any, in the GST portal. The Senior Standing Council appearing for GSTN and Commissioner of GST and Center Excise (Outer) has also informed that already a Nodal officer had been appointed by GSTN and Commissioner of GST and Central excise (Outer). 12.Thus, writ petitions stand disposed of with the following directions: (i) The respective Commissioner of GST an

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