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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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2018 (9) TMI 1059 – CESTAT CHENNAI – TMI – Valuation – inclusion of Bonus gained for performance in assessable value – Held that:- The bonus/penalty is a post-sale payment and therefore not includible in the assessable value – appeal allowed – decided in favor of appellant. – E/394 to 397/2012 – Final Order Nos. 42038-42041/2018 – Dated:- 18-7-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. S. Gayatri, Advocate for the Appellant Shri A. Cletus, Addl. Commissioner (AR) for the Respondent ORDER Per Bench Brief facts are that the appellants are engaged in the manufacture of refractory bricks. They raised bonus claim against the buyers to whom the refractory bricks were supplied and which

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ts. The department was of the view that these bonus payments received by the appellant has to be included in the assessable value. Four show cause notices were issued raising the above allegations for the periods as mentioned below. The original authority confirmed the demand, interest and imposed equal penalty. In appeal, the Commissioner (Appeals) upheld the demand and interest but set aside the penalty imposed under Rule 25 of Central Excise Rules. Hence these appeals. 2. On behalf of the appellant, learned counsel Ms. S.Gayatri explained the details of the adjudication order, period involved and the amount as given in the Table below:- Order-in-Original Period Total No. 10/2005 dated 26.12.2005 March 2004 to Jan. 2005 42,96,023/- No. 12

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2018 (9) TMI 1060 – RAJASTHAN HIGH COURT – TMI – Monetary limit involved in appeal – Clandestine removal – principles of Natural Justice – Whether the ld. CESTAT has grossly erred in law in ignoring the vital evidences in the form of voluntary statements of the Director and General Manager of the Company and the loose slips recovered by the Department during the search in setting aside the order of the ld. Adjudicating Authority? – Whether the ld. Adjudicating Authority grossly erred in law in ignoring the voluntary statements of the Director and General Manager of the Company while dropping the partial demand? – penalty on the Director and General Manager of the Company – sub section (3) & (5) respectively of Section 35G of the Central Excise Act, 1944.
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Held that:- The valuation of seven parchis which were found will come to less than 50 lacs and in view of the circular of the Department dated 11.7.2018, the appeal is not maintainable in view of monetary limits.
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No substa

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tial demand? 3. Whether the ld. CESTAT has grossly erred in law in setting aside the penalties on the Director and General Manager of the Company who were actively engaged in clandestine removal of the goods? 4. Any other question of law as the Hon ble High Court may formulate and decide the same in terms of sub section (3) & (5) respectively of Section 35G of the Central Excise Act, 1944. 3. However, taking into consideration, the observation made by the Tribunal which reads as under: 6. Revenue has challenged the dropping of demand to the extent of ₹ 30.85 lakhs. The demand of about ₹ 60 lakhs was proposed in the show cause notice on the basis of the quantification relying on 32 kachha parchis recovered during search proceedings. The assessee contended during the course of adjudication that out of 32 slips, 25 slips of various dates were of different despatches, which correlate and reconcile with the excise invoices issued to the respective parties. They have further

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goods covered by 25 kachha parchis have been cleared on payment of duty, we find no reason to take a different view. Consequently, we uphold the dropping of demand of ₹ 30,85,849/- and reject the Revenue s appeal. 7. The adjudicating authority has confirmed the demand amounting to about ₹ 30 lakhs on the basis of seven kachha parchis in respect of which the assessee was not in a position to submit proof for clearance of goods under invoices without payment of duty. He has further recorded that both Sh. J. D. Pant, General Manager as well as Sh. P.C. Jain, Director have given inculpatory statements under Section 14 of the Central Excise Act to the effect that goods covered by kachha parchis were clandestinely cleared without payment of duty. Further, the assessee has also paid the entire duty for the goods covered by 32 slips. These findings of the adjudicating authority have been challenged by the assessee in the present appeals. It is their submission that the goods covere

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rom the record that Revenue has not undertaken any verification either with the buyers or even with the transporters. No investigation appeared to have been carried out to prove that such goods were manufactured in the factory but not accounted for. 9. Clandestine clearance is a serious allegation and needs to be established on the basis of tangible evidence. It is well established fact that only on the basis of the inculpatory statement, the charges of clandestine clearance cannot be upheld. The inculpatory statements given by the General Manager and Director also do not specifically cover the seven parchis. In the absence of any corroborative evidence to indicate that the goods covered by seven parchis were cleared by the appellant, we are of the view that the charge of clandestine clearance and demand of duty cannot be sustained. The assessee has cited a large number of decisions to support the contention that clandestine clearance cannot be upheld without tangible evidence. 4. We a

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of the powers conferred by Section 35R of the Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of the Finance Act, 1944, the Central Board of Indirect Taxes and Customs fixes the following monetary limits below which appeal shall not be filed in the CESTAT, High and Supreme Court: S. No. Appellate Forum Monetary Limit 1. CESTAT ₹. 20,00,000/- 2. High Courts ₹. 50,00,000/- 3. Supreme Court ₹. 1,00,00,000/- 2. This instruction applies only to legacy issues i.e. matters relating to Central Excise and Service Tax, and will apply to pending cases as well. 3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the High Courts, CESTAT and Commissioner (Appeals). All other terms and conditions of concerned earlier instructions will continue to apply 4. It may be noted that issues involving substantial questions of law as

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as per instruction -11/07/2018) As on(Last working day)-/-/- Position of withdrawal in Departmental Cases raised monetary limits SC 25Lakhs -1 Crores) / HC 20 -50 Lakhs/ CESTAT 10-20 Lakhs S No I. Zones (in alphabetical order) II.Identified III. Filed IV. Withdrawn SC HC CESTAT TOTAL SC HC CESTAT TOTAL SC HC FILED WITHDRAWN (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) Table M -1 Cases remaining to be filed / withdrawn (as per instruction -11/07/2018) As on(Last working day)-/-/- Remaining to be Filed/Withdrawn S No I. Zones (in alphabetical order) I. Remaining to be filed* II. Remaining to be withdrawn** SC HC CESTAT Total SC HC CESTAT Total (a) (b) (c) (d) (a) (b) (c) (d) *identified minus filed in Table M **filed minus withdrawn in Table M 5. We are not inclined to interfere in the appeal. Moreso, counsel for the respondent has relied on the decision of this Court in D.B. Central/excise Appeal No. 26/2017, Commissioner of Central Excise V/s Mittal Pigment Pvt. Ltd, decided on 2.5.

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5.2009. The department confirmed the duty demand along with interest for the period of five years alleging suppression of clandestine removal of the final product and also imposed penalty mainly based on the production approximation and on the statement of Director of the unit, Shri Agarwal, who is one of the appellants in this case. 6.2 The department has not gone beyond the approximation and the statement of Shri Agarwal. Any prudent person would not so conclude on extra production by approximation and by a mere statement of the Director of the company. Unless there are further corroborations in the form of documentary evidences, which could be like despatch details for the production, receipt details of the said material, transactions of the sale money, transportation details of such goods, details of additional consumption of electricity for such suppressed production a prudent individual would not agree with the present conclusions of the Revenue. There is nothing on record from t

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the case of Continental Cement Company (supra) has inter alia observed as under: 13. ……to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department…. 14……… 15. ……When there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible……. 7. Considering above discussions and the case laws cited above, we conclude that the Revenue has failed to reasonably prove suppressed production and clandestine clearance on the part of the appellants. Consequently, the impugned order in respect of confirmation of duty for alleged suppressed production, and imposition of fine and penalty on the appellant No. 1 and imposition of personal penalty of ₹ 40 lakhs on Shri Agarwal who is appellant No. 2 are hereby set aside. The appellants will get the rel

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l for respondent contended that there is no substantial question of law. It is appreciation of fact and in view of decision by this Court reported in 2008 (221) E.L.T. 180 (Raj.), Union of India vs. Jain Plas Pack (P) Ltd., wherein it has been observed as under:- 2. In appeal is the order passes by the Customs Excise and Service Tax Appellate Tribunal dated 3.8.2005 allowing the appeal of the respondent No. 1 by setting aside the demand of ₹ 72,707/- as the duty adjudicated on alleged removal of the fabric from the factory and like amount of the penalty levied by the Adjudicating Officer. 4. The manufacturer s case from the beginning was that the register found during the visit of Excise Authorities in question was not a register maintained for recording production but was a document maintained for the purpose of keeping supervision over the factory workers and on their daily production was entered on estimate basis only. Before entries were made in RG-1 the product was actually

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o relied upon the decisions of Madras High Court in: 1. D.V.Kishore vs. Commr. Of Cus. (SeaportsImports), Chennai, 2017 (350) E.L.T. 527 (Mad.), wherein it has been observed:- 26. It is also the findings on the part of the Tribunal to state that there was no effective and reliable denial on the part played by the appellant either in the proceedings before the Commissioner or before the Tribunal. 27. In fact, the appellant had started retracting his statement of confession itself from the beginning and when that being so, such a finding as has been given by the Tribunal, would not stand in the legal scrutiny. The further reasons given by the Tribunal is that, even though the only defence apparently was that the statements had been retracted, the seizure of gold and the consensual deposition by other witnesses implicating the appellant and therefore, the same cannot be ignored. 2. S.M.A. Siddique vs. Government of India, 1989 (42) E.L.T. (Mad.), wherein it has been observed:- 2. Mr. K. R

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the charges. In D'Silva v. Regional Transport Authority 65 LW 73 , a bench of this Court observed as follows : "We have no hesitation in making it clear that a quasi-judicial Tribunal like the Regional Transport Authority or the Appellate Tribunal therefrom cannot ignore the findings and Orders of competent Criminal Courts in respect of an offence, when the Tribunal proceeds to take any action on the basis of the commission of that offence. Let us take the instance before us. The offence consist in smuggling foodgrains. For that same offence, the petitioner was criminal prosecuted. He has also been punished by his permit being suspended for a period of three months. If the criminal case against him ends in discharge of acquittal, it means that the petitioner, is not guilty of the offence and therefore did not merit any punishment. It would indeed be a strange predicament when in respect of the same offence, he should be punished, by one Tribunal on the footing that he was guil

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various stages of processing i.e., bleaching, dyeing, printing, finishing, packed in HDPE bags on comparison with recorded stock, a shortage of 175178 L. mtrs. of processed MMF valued at ₹ 31,53,204/- involving Central excise duty of ₹ 3,15,329/- was detected. Accordingly, a panchnama came to be drawn recording the said facts. Statement of a Director of the Company, Shri Rajnikant Omkarmal Agarwal also came to be recorded, under Section 14 of the Act, wherein apart from several other admissions, he admitted the contents of the panchnama. Statements of other employees of the Respondent were also recorded under Section 14 of the Act. Subsequently, a show cause notice came to be issued to the Respondent calling upon it to show cause as to why Central excise duty amounting to ₹ 4,30,275/- should not be demanded under Section 11A of the Act, as well as, as to why mandatory penalty and penal interest should not be imposed. 5. As can be seen from the order made by the adjud

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urrently found that except for the statement of the Director of the Assessee Company, Shri Rajnikant Agarwal recorded on 10-7-2003, there was no other evidence in support of the charge of clandestine removal of goods. The statement recorded on 10-7-2003 had subsequently been retracted by Shri Rajnikant Agarwal. Thus, it is apparent that the only evidence in respect of clandestine removal against the Assessee was in the nature of the statement recorded under Section 14 of the Act, which had been subsequently retracted. Before the adjudicating authority, the Respondent Assessee had led evidence to establish that the charge of clandestine removal is not made out and that there was no shortage of material as recorded in the panchnama which was accepted by the adjudicating authority. The findings of the adjudicating authority stand confirmed by both the appellate authorities. Learned Counsel for the Appellant is not in a position to point out any evidence to the contrary, in support of the

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, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects: (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions. 13. Thus, to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department. 14. In the instant cas

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bolts and it was impossible for the Department to come to a conclusive factual finding that there was shortage of 14,25,900 pieces of particular size and if they were all mixed together. The onus would lie upon the Department to undertake the said exercise which was not possible in such a short period due to the large number of inventory which was there at the site. Nothing was brought on record, in any manner, to show that to manufacture such a large amount of 14,25,900 pieces, there was material which had been consumed since neither any relevant record had been shown to show that electricity had been consumed or labour had been utilized to manufacture the said quantity. Neither the fact of purchase of raw material from the vendors or the sale to the consumers was brought on record. In the absence of any corroborative evidence, the levy of such a huge demand was, thus, totally arbitrary and has been rightly set aside. 9. It is apparent that the demand was raised and a sum of 14 lacs

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2018 (9) TMI 1122 – CESTAT CHENNAI – TMI – CENVAT Credit – input services – courier services for sending the samples of their products to buyers in foreign countries – Department was of the view that these are export of goods as the courier services is akin to outward transportation of finished goods from factory gate to the customer’s premises and therefore is not eligible for credit.
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Held that:- The samples have been sent free of cost to the prospective buyers. It cannot be said to be removal of finished goods, which involves sale of excisable goods. It is more akin to sales promotion or marketing or advertisement of the product which has been sent to the prospective foreign buyer. The same would fall within the inclusive part of t

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ds as the courier services is akin to outward transportation of finished goods from factory gate to the customer s premises and therefore is not eligible for credit. 2. Show Cause Notice was issued proposing to disallow the credit for the periods from January 2012 to December 2014, January 2015 to March 2015 and April 2015 to March 2016. After due process of law, the original authority confirmed the demand, interest and imposed penalties. In Appeal, the Commissioner (Appeals) upheld the same. Hence these appeals. 3. On behalf of the appellant, the Ld.Counsel, Sh.V.Ravindran submitted that the appellant had sent the products to their foreign buyers as sample and this was done only to obtain purchase orders from the prospective foreign buyers

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. Heard both sides. 6. The counsel for appellant has submitted that the free samples were sent to the prospective foreign buyers as sales promotion / marketing / advertisement for trading and not in any way of transportation of finished goods. I do find the force in the said argument. The samples have been sent free of cost to the prospective buyers. It cannot be said to be removal of finished goods, which involves sale of excisable goods. It is more akin to sales promotion or marketing or advertisement of the product which has been sent to the prospective foreign buyer. The same would fall within the inclusive part of the definition. Thus I find that the disallowance of credit alleging that these are outward transportation services involvi

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2018 (9) TMI 1123 – CESTAT CHENNAI – TMI – Recovery of the duty paid from the CENVAT account with interest – Penalties – Held that:- The period involved is prior to 31.3.2005 on which date the non-obstante clause was introduced in Rule 8, wherein there has been a restriction imposed for paying duty liability using the CENVAT account when there is a delay in payment of duty – appeal dismissed – decided against Revenue. – Appeal No. E/380/2009 – Final Order No. 42036/2018 – Dated:- 18-7-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Govindarajan, AC (AR) for the Appellant Shri M. Kannan, Advocate for the Respondent ORDER Per Bench The above appeal is filed by the department against

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posed penalty of ₹ 25,000/- under Rule 25 of Central Excise Rules, 2002. In appeal, Commissioner (Appeals) set aside the same. Hence department is now before the Tribunal. 3. On behalf of Revenue, ld. AR Shri S. Govindarajan reiterated the grounds of appeal. 4. On behalf of the respondent, ld. counsel Shri M. Kannan submitted that under Rule 8(4) of Central Excise Rules, 2002, as it stood then, the assessee is required to pay excise duty for each consignment by debit to the current account and hence the assessee can pay the differential through CENVAT account. The respondents had the facility of payment of differential duty and paid the same through their CENVAT account for which the show cause notice was issued. He submitted that dur

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. The period involved in the present appeal is prior to 31.3.2005 on which date the non-obstante clause was introduced in Rule 8 of Central Excise Rules, 2002. 5. Heard both sides. 6. The period involved is prior to 31.3.2005 on which date the non-obstante clause was introduced in Rule 8, wherein there has been a restriction imposed for paying duty liability using the CENVAT account when there is a delay in payment of duty. The issue being settled by the decisions relied by the ld. counsel for respondent, we find no ground to interfere with the order passed by the Commissioner (Appeals), who has relied the decision of the Larger Bench. The appeal filed by Revenue is devoid of merit and the same is dismissed. (Operative portion of the order

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GST – States – 579/2018/10(120)/XXVII(8)/2018/CT-29 – Dated:- 18-7-2018 – Government of Uttarakhand Finance Section-8 No. 579/2018/10(120)/XXVII(8)/2018/CT-29 Dehradun :: Dated:: 18th July, 2018 Notification In exercise of the powers conferred by section 164 of the Uttarakhand Goods and Services Tax Act, 2017 (06 of 2017) read with section 21 of the Uttar Pradesh General Clause Act, 1904 (Act No. 1 of 1904) (as applicable in the State of Uttarakhand), the Governor is pleased to make the following rules to further amend the Uttarakhand Goods and Services Tax Rules, 2017, namely:- The Uttarakhand Goods and Services Tax (Seventh Amendment) Rules, 2018 1. Short Title and Commencement (1) These rules may be called the Uttarakhand Goods and Serv

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2018 (10) TMI 1314 – AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – 2018 (18) G. S. T. L. 683 (A. A. R. – GST) – Classification of Supply – import of goods/spares, which are supplied on ships and these equipment form an essential part of the ship, and makes the ship “sea worthy.” – whether classified under CTH 8479 or otherwise?
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Whether the said parts/spares/equipments which are used on a ship are forming parts of the ship and therefore chargeable to reduced tax @ 5% under Sr.No.252 of Notification No.1/2017 Central Tax (Rate) dated 28.06.2017?
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Held that:- Items like Anchor, Bow, Bowsprit, Fore and Aft, Hull, Keel, Mast, Rigging, Rudder, Sails, Shrouds, Engines, gearbox, Propeller, Bridge, etc. are the very essential parts of a ship or vessel and are quite clearly parts of a vessel/ship and a ship cannot be imagined to be in existence without these parts – in addition to the above there are some additional equipments that are required to be made available on a ship as a meas

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goods are put to.
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The items mentioned at Sr. Nos A, B, C, D, E, G, H, I, J, K, M and S are essential parts of a ship/vessel without which the ship would not be complete and would not exist. These are very integral for the functioning of the ship. Hence out of the 504 goods mentioned in [Annexure I-A of this ARA application and reproduced by them mentioning their uses in page nos 24 to 39 of their compilation A made before this authority as an additional submission] we are of the opinion that out of the 504 items mentioned by them, only goods used in the equipments mentioned at Sr. Nos. A, B, C, D, E, G, H, I, J, K, M and S of the above table can be considered as parts of a ship and therefore would be eligible to concessional rate of GST as contended by the applicant.
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Parts which are used in equipments mentioned in Sr. Nos F, L, N, O, P, Q, R, T, U, V will not be eligible for concessional rate of duty since the said equipments cannot be considered as essential parts of a sh

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on'ble Authority to decide as to whether the supply of goods [as listed in Annexure I-A of this ARA application] is classifiable as "Parts of goods of headings 8901, 8902, 8904, 8905, 8906, 897" under entry 252 of Schedule 1 of GST Notification No. 01/2017-Central tax (rate) dated 28th June, 2017 as amended and liable to GST @ 5% (CGST-2.5% and SGST-2.5%) or IGST @ 5% or not. At the outset, we would like to make it clear that the provisions of both the CGST Act and the GST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act / MGST Act would be mentioned as being under the "GST Act". 02. FACTS AND CONTENTION – AS PER THE APPLICANT The submission (Brief facts o

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GST. The detailed list of HSN codes of such imported goods along with the applicable tax rates is attached herewith at Annexure I-A. The sample copies of illustrative Bill Of Entry for such imports are enclosed at Annexure I-B, I-C, I-D, I-E, I-F & I-G. 4. Applicant levies GST on parts/equipment supplied by it on the ship by classifying it under the same tariff head under which the goods are imported. The applicant discharges GST liability on supply based on rates applicable to such tariff entry. For instance, a "Standard Solas Model" is classified under tariff head of "8479" captioned as "Ship Spares" and is therefore taxed at the rate of 18%. 5. Applicant has been receiving the purchase orders for such parts/spares/equipment from reputed customers wherein orders are placed on specific terms that applicable GST rate on items ordered is 5% as all such parts and equipment ordered are forming part of ship. The customers strongly contend that the relevant

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g vessels, factory' ships, other vessels, etc. Heading 8904 is for tugs and pusher crafts. Heading 8905 covers Light vessels, fire floats, dredgers and other vessels. Heading 8906 and 8907 is for other vessels and floating structures. Applicant reiterates that goods supplied by it, are of critical nature, without which the ship would not be permitted to sail and therefore such equipment or parts thereof should be classified as "Parts of goods of headings 8901, 8902, 8904, 8905, 8906, 8907" and should be taxed at the rate of 5%, as such individual goods are supplied as a part of the ship or vessel, to ensure that the ship is sea worthy. Such goods cannot be classified as spares separately in their own right. 7. Applicant is becoming non-competitive in the market if it does not classify the spares/equipment/parts under entry no. 252 of Notification No.1/2017 Central Tax which specifically covers Parts of goods of various types of the ships and vessels covered under headings

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e questions/ issues before Your Honor for determination is whether supply of goods (as listed in Annexure I-A) is classifiable as "Parts of goods of headings 8901, 8902, 8904, 8905, 8906, 8907" under entry 252 of Schedule 1 of CGST Notification No. 01/2017-Central Tax (Rate) dated 28lh June, 2017 (Amended from time to time) and liable to GST @ 5% (CGST-2.5% and SGST- 2.5%) or IGST-5% as specified in entry 252 of schedule 1 of Notification No. 01/2017-Integrated Tax (Rate),dated 28-06-2017. 1.2. The questions / issues placed for determination before Your Honor have to be appreciated in light of the following position of law and its applicability to the proposed activity undertaken by the Applicant, discussed hereunder. 2. SUBMISSIONS OF THE APPLICANT SUBMISSION 1 2.1. Applicant submits that they are selling equipment and parts/spares of critical nature and are mandated by IMO (International Maritime Organization), which are essential to establish the sea worthiness of a ship a

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establish the ship as sea worthy, and not spares per se. The meaning of the term "spares" referred above, incorporates a wide ambit of products and therefore would lesd to a generic classification of goods. 2.6. On the other hand the classification of the same; as parts of the ship, would be more specific and could be attributed as the products relevant to a particular industry; namely the shipping industry and would therefore provide clarity in identifying the same. SUBMISSION 3 2.7. The appellant strongly relies on the decision of the Honorable Supreme Court in its own case i.e. Commissioner of Customs, Mumbai Appellant(s) VERSUS M/s. A.S. Moloobhoy & Sons & Ors. Respondent(s) WITH CIVIL APPEAL NOS. 3115-3117 OF 2015, where the Honorable Court declined to interfere with the order passed by the Tribunal, wherein it was held that these imports of equipment and spares should be treated as one for "the purpose of ship repair." The copy of the relevant Tribuna

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SAS), Navigation and Communication (NAVCOM) Equipment related to the Marine Industry, as detailed in Annexure-1-A, are covered under Sr.No.252 of Schedule 1 of Notn. No. 1/2017-Central Tax (Rate) and Notn.No.1/2017-lntegrated Tax (Rate) both dated 28.06.2017 and chargeable to GST @ 5%. 3.0 The facts, succinctly, stated are as under: 3.1 The Applicants are registered with Directorate General of Shipping (DGS), Govt of India as "Ship Repairing Unit (SRU)" vide Registration No. DGS/ENGG/REG-0000174 dated 25.04.2014. 3.2 The Applicants are engaged in repairs of ships. The goods under consideration consist of components of Global Maritime Distress and Safety Systems (GMDSS) and of emergency position indicating radio beacon (EPIRB). 3.3 Since Govt, of India is a signatory to the International Convention for the Safety of Life at sea, Govt, has framed the Merchant Shipping (Distress and Safety Radio Communication) Rules, 1995, in exercise of its powers under Section 290 of the Merch

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e safety information by the INMARSAT, enhanced group calling (EGC) system of HF Direct printing telegraphy, etc 3.4 For undertaking the repair of the ship, over and above rendering of repair service, the Applicants also are required to supply various parts of various equipment in ship viz. Navigation equipment and spares, communication equipment and spares, lifesaving/firefighting equipment and spares, etc. which are listed in their application as Annexure 1-A (504 Items). For brevity, the said items under consideration are referred to as ''Navigation/communication/ lifesaving/firefighting equipment and their associates spares". 3.5 The Applicants import the said Navigation equipment, communication equipment, lifesaving equipment, firefighting equipment and their associates spares on payment of applicable import duties and the same are supplied on ship. 3.6 The said equipment are integral part of a ship without which ship cannot sail or be considered seaworthy as per the I

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x (Rate). 4.0 Grounds before Appellate Authority: 4.1 Equipment form an essential part of the ship: 4.2 The Applicants imports goods under consideration which are supplied on ships and these equipment form an essential part of the ship and makes the ship "sea worthy". 4.3 The said equipment are integral part of a ship without which ship cannot sail or be considered seaworthy as per the IMO/SOLAS/ guidelines. 4.4 Every ship being built at any shipyard must include the goods under consideration to construct a sea worthy vessel. 4.5 The Applicants submit that they are selling equipment and parts/spares of critical nature and are mandated by International Maritime Organization (IMO), which are essential to establish the sea worthiness of a ship. 4.6 As stated above, the goods being imported are necessarily parts of the ship, in view of their compulsory requirement as per IMO, to establish the ship as sea worthy. 4.7 The Applicants further submit that Ship Repairing Unit (SRU) Reg

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were not used for repair because the ships were fully functional and would not be part of repair. 5.3 By Order-in-Original No. CAO/68/20027CAC/CC/ASS dated 18.02.2002, Ld. Commissioner of Customs, Mumbai denied exemption under Notification 23/98-Cus (Sr. No.227). 5.4 Since aggrieved an appeal was filed before Hon'ble CESTAT. 5.5 Hon'ble Tribunal vide its order dated 1.7.2003 [2003 (162) ELT 196 (T)] held that the said satellite emergency indicating radio beacons and enhance group calling systems of high frequency printing telegraphy fitted to ship to meet requirement of Merchant Shipping (Distress and Safety Radio Communication) Rules, 1995. Fitting of these equipment to ship to make them sea worthy amounted to its repair and were covered under entry 227 of Notn.No.23/98-Cus. 5.6 Dept, appeal against the said Tribunal order has been dismissed by Hon'ble Supreme Court vide its judgment dated 26.3.2015 reported in 2015 (319) ELT 576 (SC). 5.7 The ratio of the said judgment o

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or benefit of Notification No. 21/2002-Cus (Sr. No.351). 6.0 Squarely covered by Sr.No.252 of list 1 of Notn.No. 1/2017-Central Tax (Rate) dated 28.06.2017: 6.1 The Entry No. 252 of list 1 of Notn.No. 1/2017-Central Tax (Rate) dated 28.06.2017 is as reproduced below: "S. No Chapter/Heading/Sub- heading/Tariff ltem Description of Goods (1) (2) (3) XXX XXXX xxxxxx 52. Any chapter Parts of goods of headings 8901, 8902,8904, 8905, 8906, 8907 XXX XXX XXXXXX" 6.2 From the above it is clear that parts of ships, vessels, tugs, floating structure, etc. mentioned in headings of chapter 89, except heading 8903, irrespective of their classification, would be eligible for concessional rate of GST of 5%. The Notification, like statute, has to be interpreted in terms of its language adopted and when language is plain and clear effect thereof has to be given. It is also settled position of law that plain terms of Exemption have to be given effect without calling in aid of any supposed intent

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(b2) -do- Upheld by Supreme Court – 1997 (94) ELT A-52 (SC) (c) Set Telecommunication – 2003 (161) ELT 1105 (T) 8.0 Issue no more res-integra – order of AAR Kerala: 8.1 M/s. Saraswati Metal Industries had approached Authority for Advance Ruling, Kerala praying for ruling for similar goods under the very same notification under consideration in the present case, Hon'ble AAR Kerala, vide its order No. CT/5496/18-C3 dated 29.05.2018 [2018-TIOL-46-AARGST), had held that commodities such as marine propellers, rudder set, stern tube set, propeller shaft and M.S.Shaft for couplings are mainly used as a part of fishing/floating vessels and the same would be covered under Entry 252 of Schedule 1 of Notn.Non. 1/2017-CT(R) and taxable @ 5% [CGST + SGST] 9.0 Goods under consideration are Integral parts of ships – Chartered Engineers Certificate: 9.1 Shri Ravi Krishnamurthy, Chartered Engineer, vide his certificate dated 10.06.2018, has certified that Navigation equipment and their associated s

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humbly prayed for holding that the disputed equipment would be covered under Entry No. 252 of Notn.No.l/2017Central Tax (Rate) and are entitled for concessional rate of tax. 03. CONTENTION – AS PER THE CONCERNED OFFICER The submission, as reproduced verbatim, could be seen thus- The notice under Advance ruling provision was issued to the this office as the dealer, M/s. A.S. MOLOOBHAY GSIN:- 27AAMCA4160E1ZT, Who is assigned to this office under case allocation, has applied for advance ruling under section 97 of CGST/MGST Act, 2017. The dealer has mentioned its nature of activity as factory/ manufacturing & in brief it says "Sale and distribution of marine Distress Signals, EPIRB and SART, SSAS, Marine Chemicals, Navigation and communication (NAVCOM) equipment and also providing lifesaving services such as life raft, lifeboat and firefighting services, including Pyrotechnic Disposal, Electronic services and training services related to the marine industry. Dealer has requested I

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notification of Central Excise if any availed. 5) (a) Classification of Service/Services as applicable. (b) Rate/Rates of Service/Services as provided. (c) Details of benefits of Notification of Service Tax if any availed 6) Copies of Advance Ruling Applicable /orders if any obtained by applicant under the provision of Central Excise, Service Tax and Sales Tax and their present status in case of your company/related company or sister concern. 7) Copy of Show Cause Notices/ Adjudication orders in respect of Central Excise or Service Tax if any issued during Last Five years, in case of Your Company I Related Company or sister concern. 8) Case of violation of Central Excise/Service Tax if any booked during Last Five years. Whether any proceeding is pending before any authority on said subject matter or otherwise. As asked in notice please find information given below:- 1) Applicant was only registered under service tax No. AAMCA4160E dt. 04/03/2014. 2) Registered address of dealer for se

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excise or service tax. 7) As per applicant there is no any case of violation of central excise or service tax has been booked against the applicant in last five years. Applicant is dealing in import of various goods which are supplied on ships. Goods are imported by applicant on payment of IGST. As per the Bill of Entry submitted by applicant it is observed that wile importing he has paid the IGST @ rate of 18 and 28%. In GST there is separate entry of goods imported an, supplied by registered person but dealer is requesting to classify these goods as part of ship. When there is specific entry for any commodity the said commodity cannot be classified in another way. Therefore the dealers request cannot be accepted. The List of HSN codes of such imported goods is as below. Table-2 Sr. NO. HSN code Description of goods Rate of tax 8529 Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528 48% 9014 Direction finding compasses; other navigational instrume

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. Nafeesa Moloobhoy, M.D., along with Sh. Rajkumar Sarawagi, C.A, G.M. appeared and requested for admission of application as per their submissions with ARA. The Jurisdictional officer Deepak Gadhave, Dy. Commissioner of S.T.(MUM-VAT-F,-827), Nodal – 4, Mumbai appeared and stated that he does not have any objection to admission of application and would making submissions in due course. The application was admitted and final hearing was held on 17.07.2018 , Ms. Nafeesa Maloobhoy, M.D., along with Sh. Rajkumar Sarawagi, C.A,, G.M. appeared and made oral and written submissions in addition to the details as per their application. The Jurisdictional officer Deepak Gadhave, Dy. Commissioner of S.T.(MUM-VAT-E-827), Nodal – 4, Mumbai appeared and made written submissions. 05. OBSERVATIONS We have perused the records on file and gone through the facts of the case and the submissions made by the applicant and the department. 10. We find that the applicant has submitted that they are engaged in

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arts" has not been defined in GST nor was it defined in Central Excise earlier. In view of this first we are required to understand the general meaning of the word 'Part/Parts' which is of relevance to us in the present case. We find that as per Cambridge English Dictionary: Part as a noun – a separate piece of something or a piece that combines with other pieces to form the whole of something One of the pieces that together form a machine or some type of equipment. It has other meanings also in other context which are not of relevance in present context like: a single broadcast of a series of television or radio programme or Division of a story. one if two or more equal or almost equal measures of something etc. Further, we also find the definition of 'Spare Part' as per Wikipedia A spare part, spare, service part, repair part or replacement part is an interchangeable part that is kept in an inventory and used for the repair or replacement of failed units. Spa

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der various marine acts such as Merchant Shipping Act or Additional Safety measures such as Walkie-talkie, Binoculars, Life Jackets, Lifeboats, etc. Though these are also to be compulsorily made available on a vessel and ship but cannot be taken to be parts of a ship as per general understanding but are rather additional equipments on a ship.. In addition to the above there are other essential items like furniture, fans, air-conditioners, television, etc which are very essential for comfort of officers and crew of the ship but do not come under essential parts or equipments of a vessel/ship. We find that the items that are discussed as essential parts of a ship/vessel are such essential components of a vessel/ship without which the ship would not be complete and would not exist. These are very integral for the functioning of the ship and can also be separated from the ship for repair/replacement. When we refer to the definition of the word 'part' as discussed in detail above, w

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se is as the component part of another article. There cannot possibly be any serious dispute that in common parlance, components are items or parts which are used in the manufacture of the final product and without which, final product cannot be conceived of. 13. The meaning of the expression 'component' in common parlance is that 'component part of an article is an integral part necessary to the constitution of the whole article and without it, the article will not be complete'. 14. This Court, in Star Paper Mills (supra) has made a settled distinction while considering whether paper cores are components' in the manufacture of paper rolls and manufacture of paper sheets. It is stated that 'paper cores' are component parts in so far as manufacture of roll is concerned, but it is not 'component part' in the manufacture of sheets. It is useful to quote the observations made by this Court: Paper core would also be constituent part of paper and would thu

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referred the appeal before the larger bench on the following questions: (i) Whether the phrase "component parts" occurring in Notification 77/90 would cover "spare parts" for the purpose of granting of benefit thereunder? The larger Bench of the Tribunal having regards to dictionary meaning of "part", and "Component' observed that in common parlance meaning of the expression "component" is also the same, that is, one of the parts or elements of which anything is made up or into which it may be resolved or a Constituent. The meaning in common parlance has to be looked into since the notification itself does not contain any definition of the expression. In the State of Uttar Pradesh vs M/S. Kores (India) Ltd on 18 October, 1976, Equivalent citations: 1977 AIR 132,1977 SCR (1) 837. In this case the appellant contended before the Hon SC that carbon paper does not lose its character as paper in spite of being subjected to chemical processes,

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d Notification. Regarding ribbon also to which the above mentioned rule construction equally applies, we have no manner of doubt that it an accessory and not a part of the typewriter (unlike spool) though it may not be possible to use the latter without the former, just as aviation petrol is not a part of the aero- plane nor diesel is a part of a bus in the same way, ribbon is not a part of the typewriter though it may not be possible to type out any matter without it. The very same question with which we are here confronted came up for decision before the High Court of Mysore in [State of Mysore v. Kores (lndia)Ltd(26STC 87). (1) where it was held: "Whether a typewriter ribbon is a part of a typewriter is to be considered in the light of what is meant by a typewriter in the commercial sense. Typewriters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essential part of a typewriter so as to attract tax as per entry 18 of the Se

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ion and therefore would be parts of a ship as per above discussions B ECHO SOUNDER Echo Sounder Used to find depth under the sea Is an essential part of ship and without it the ship would not be performing its essential function and therefore would be parts of a ship as per above discussions C RADAR Radio Detecting and Ranging Used to detect objects at sea Is an essential part of ship and without it the ship would not be performing its essential function and therefore would be parts of a ship as per above discussions D ECDIS Electronic Charts Display & Information System Used to show locations for navigation Is an essential part of ship and without it the ship would not be performing its essential function and therefore would be parts of a ship as per above discussions E GYRO Gyroscope Used for navigation Is an essential part of ship and without it the ship would not be performing its essential function and therefore would be parts of a ship as per above discussions F AIS Automatic

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essential part of ship and without it the ship would not be performing its essential function and therefore would be parts of a ship as per above discussions K SSAS Ship Security Alert System Used for transmitting distress signal to land station Is an essential part of ship and without it the ship would not Ire performing its essential function and therefore would be parts of a ship as per above discussions L NAVTEX Navigational Telex Used for receiving navigational weather and other warnings Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions M EPIRB Emergency Positioning Indicating radio Beacon Used to alert search and rescue services in case of distress/ emergencies Is an essential part of ship and without it the ship would not be performing its essential function and therefore would be parts of a ship as per above discussions N VDR Voyage Data Recorder Used for recording and analysing data of the ship Woul

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Watch Alarm System The bridge is manned at sea during voyage, else alarm is issued by the unit for safety of ship Is an essential part of ship and without it the ship would not be performing its essential function and therefore would be parts of a ship as per above discussions T SART Search and Rescue Transponder Used to assist Coast Guard in search and rescue operations Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions U ANEMO METER Anemometer Used to calculate speed and direction of wind Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions V 2 WAY RT Walkie talkie Used for internal communication by the ship's staff Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions The classification of goods under Sr. No. 252 depends solely on the nature of use to wh

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ed as essential parts of a ship in view of our discussions above. 06. In view of the extensive deliberations as held hereinabove, we pass an order as follows : ORDER (under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) NO. GST-ARA-14/2018-19/B-71 Mumbai dt. 18/07/2018 For reasons as discussed in the body of the order, the questions are answered thus Question :-Whether the supply of goods [as listed in Annexure I-A of this ARA application] is classifiable as "Parts of goods of headings 8901, 8902, 8904, 8905, 8906, 897" under entry 252 of Schedule 1 of CST Notification No. 01/2017-Central tax (rate) dated 28th June, 2017 as amended and liable to GST @ 5% (CGST-2.5% and SGST-2.5%) or IGST @ 5% or not. Answer:- In view of the discussions in the 'Observations' section out of the goods listed in Annexure I-A, only those goods that are used in equipments mentioned at Sr. Nos A, B, C, D, E, G, H, I, K, M and

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Customs – 22/2018/CCP/JMR – Dated:- 18-7-2018 – OFFICE OF THE COMMISSIONER, CUSTOMS (PREV.), JAMNAGAR 'SARDA HOUSE', OPP. PANCHAVATI SOCIETY, BEDI BUNDER ROAD, JAMNAGAR – 361008 PHONE NO.: 0288 2757509/10 – FAX NO. : 0288 2757538/39 WEBSITE : www.jamnagarcustoms.gov.in E-Mail: custechjmr@gmail.com F.No.VIII/48-168/Cus-T/2017 Date : 18-07-2018 PUBLIC NOTICE NO. 22/2018/CCP/JMR Subject: Refund Disposal Fortnight to handhold trade & industry in clearing pending GST refund claims from 16th July to 31st July,2018 -regarding. Attention of all the Importers/exporters, Customs Brokers, members of the Trade and all other concerned is invited to the above mentioned subject. Special Drive Fortnights were launched during 15th March to 31st

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. SB002/SB003/SB005/SB006 and error. codes clubbed with each other 3. Accordingly, a Refund Cell which is created at Customs House – Pipavav to deal with the pending cases of export related refund claims, in addition to special camp at Office of the Commissioner of Customs, Customs(Prev.) Commissionerate, 'Sarda House', Bedi Bunder Road, Jamnagar for disposing off the IGST refund on export stuck up on account of above error codes. 4. In case of any difficulties faced during this Special Drive, the exporters / stake holders may contact the below mentioned Nodal Officer: Name and designation of the Nodal Officer Email Id Shri P.K. Rameshwaram, Joint Commissioner prabhat.rameshwaram@icegate.gov.in 5. The exporters and other stake holde

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2018 (11) TMI 883 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (19) G. S. T. L. 369 (A. A. R. – GST) – Levy of GST – education and training programmes conducted through its 13 co-operative training centres and 33 district co-operative boards by charging fees to participants – non-profit making body – services provided by them are not in respect of their own students, faculty and staff – Sr. No. 66(a) of Notification No. 12/2017-CT (Rate) and No. 9/2017-IT (Rate) both dated 28-6-2017.
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Held that:- Section 24A is applicable to members of societies so that they can effectively understand participate in the management of the society. The said section also says that every society shall contribute annually towards the education and training fund of such State federal societies State Apex Training Institutes, notified under subsection (1), at such rates as may be prescribed, and different rates may be prescribed for different societies or classes of societies. Hence it is clearly

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There appears to be no funding by the Government whether direct or indirect. The Societies Act referred above, vide Section 24A has laid down that every society shall organise co-operative education and training, for its members, officers and employees from the applicant or other notified institutes and every society shall contribute annually towards the education and training fund of the State federal societies or State Apex Training Institutes. Hence it is very clear that there is no funding by the Government in this case.
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Services provided by them are not in respect of their own students, faculty and staff – Held that:- Services supplied /provided by an educational institution to its students, faculty and staff is exempt from GST – Sr. No. 66(a) of Notification No. 12/2017-CT (Rate) and No. 9/2017-IT (Rate) both dated 28-6-2017. They are in fact supplying services to other cooperative societies and their members and not to their own faculty, etc. Hence there is no way tha

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MBER PROCEEDINGS (under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and MGST Act ] by THE MAHARASHTRA RAJYA SAHAKRI SANG MARYADIT, the applicant, seeking an advance ruling in respect of the following question. The Maharashtra Rajya Sahakari Sangh Ltd. conducts education and training programmers through its 13 co-operative training centres and 33 district co-operative boards by charging fees to participants. Maharashtra Rajya Sahakari Sangh Ltd., is not profit making body and doing this activity as statutory requirement of Maharashtra Co-operative Societies Act, 1960. Therefore, it is requested to exempt GST to Maharashtra Rajya Sahakari Sangh Ltd. At the outset, we would like to make it clear that the provisions of both the

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eties. As per section 24 A of of M.C.S Act. 1960 and rules thereunder, every society has to give education & training through state apex training institute. Accordingly The Maharashtra Rajya Sahakari Sangh Ltd.is notified by the Government of Maharashtra on the 10 sep. 2014 for this purpose. Earlier, The Maharashtra Rajya Sahakari Sangh Ltd. was exempted by even income tax department. Income Tax tribunal order is enclosed for ready reference. As Maharashtra Rajya Sahakari Sangh Ltd.is doing work purely of education and training, it needs to be exempted from CST. This institute is not profit making organization and giving education and training by charging fees only. Anyway, Maharashtra Rajya Sahakari Sangh Ltd. is not doing commercial activity but catering needs of education and training as required u/s 24 A and rules thereunder i.e. rule 20B and 30A. Additional submissions on 05.07.2018 As Per our personal hearing dated 12.06.2018, we would like to pay attention to the following p

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ples of co. Operations. (Its State Level Apex cooperative institution). b. Educational institution existing solely for educational purposes and not for purposes of profit. C. Assessee has over 100 years of establishment and had the memorable association with the honourable Mohandas Karamchand Gandhi, father of our nation. d. Incorporation of the assessee has everything to do with the then ongoing cooperative movement during the period of the father of the nation and therefore, the main object of the assessee is to educate the people of India on the cooperative movement. Regarding finances to the trust, the assessee has by virtue of section 68 of the Maharashtra Co-op. Societies Act, every other member-society should mandatorily contribute annually towards the education fund of assessee as per the sums prescribed in the notification issued by the State Government. Such contributions to the education fund of the assessee are the sources of finance for the assessee-Sangh. Admittedly, the

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re relating to co-operation and to act as nodal agency in this respect h. The Government provided the finance to the assessee by way of making of a legislation, which cast statutory responsibility on the member societies by way of compulsory contributions to the education fund of the assessee. i. In the background of the above, the relevant provisions reads as follows, any university or other educational institution existing solely for educational purposes and not for purposes of profit, and which is wholly or substantially financed by the Government; or As seen from the above, the legislature has not used the words such as direct or indirectly anywhere in the said clause meaning thereby the indirect financing by the Government is also a possibility not ruled out by the legislature. j. As per directive principles of the State policy mentioned in article 41 of the Constitution, it is the duty of the Government not only to establish educational institutions but also to effectives secure

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available by the Government Such requirement was met in instant case. After setting-up infrastructure, the institute started imparting education and charged fees as prescribed by the Government. l. The finances received by the assessee in the form of training receipts from the member cooperative societies by way of compulsory subscriptions in accordance with a State legislation tantamount to financed by the Government . m. The instant assessee earlier has also got the requisite finance out of the exclusive Education Fund of the State Federal Society created by way of law in the name of Maharashtra Co-operative Societies; 1960, which is a legislative enactment of the State Government of Maharashtra. Thus, there exists legislative nod this legislative participation constitutes an essential ingredient of any financing by the Government. n. It is also relevant to mention that there is need for understanding the ingredients of the cooperative movement and the need for autonomy both in matte

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olved in order to promote participation of the members and respect the financial independency of the movement in general and institution in particular. In any case, the provisions of the clause do not expressly bar the claim of tax exemptions to the cases of indirect financing by the Government in such cases of indirect financing to the educational institutions of the cooperative movement in India, the aspects of consolidated Fund of India to be the source of finance for claim of exemption become irrelevant for the reasons of minimum control of the Government on cooperative societies. Considering the peculiarities of the cooperative movement characterized by the members/people's participation financially and administratively, the role of audit becomes minimal as the contributing people/ members of the notified education fund/ societies provide necessary audit/check. In any case, there is always internal audit mechanism to such institutions to play the role of a watchdog. In any cas

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ng the case of the society engaged in the running the educational institution for promoting the cooperative movement in India, liberal interpretation of the statute is the need of the time. The cases of this kind, where the Government legislates law to provide for compulsory contributions by the member societies to an Education fund which is set apart to be the source of finance for an educational institution Of this kind engaged in the cooperative movement in India, which constitutes indirect financing by the Government. Statement containing the applicant's interpretation of law and/or facts, as the case may be, in respect of the questions(s) on which advance ruling is required On the similar lines of exemption granted to educational institutions registered under Trust Act , Maharashtra Rajya Sahakari Sangh Ltd. should be treated as educational institute and GST should not be levied. 03. CONTENTION – AS PER THE CONCERNED OFFICER The submission, as reproduced verbatim, could be see

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their claim, viz., Order dated 30.04.2010 by the Income Tax Appellate Tribunal, Pune Bench, it is seen that the taxpayer has been given the benefit of exemption only in respect of the funds received by the institution under section of the Act but were not granted exemption and denied registration under section 12AA (I)(ii) of the Income Tax Act, 1961 as a charitable trust. 4. Section 10 of the Income Tax Act, 1961 provides for income which shall not be included in the total income. Section provides that income of any university or other educational institution existing solely for educational purposes and not for purposes of profit, and which is wholly or substantially financed by the Government does not include in total income. However the Appellate Authority in its Order dated 30.04.2010 has extended the exemption benefit stating that in cases where Government legislates law to provide for compulsory contribution by the member societies to an ' education fund engaged in cooperati

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ished by or under any Central Act, State Act or Provincial Act or a Government company is defined in clause (45) of section 2 of the Companies Act, 2013 (18 Of 2013)1; (h) any body corporate incorporated by or under the laws of a country outside India; (i) a co-operative society registered under any law relating to co-operative societies; (j) a local authority; (k) Central Government or a State Government; (l) society as defined under the Societies Registration Act, 1860 (21 of 1860); (m) trust; and (n) every artificial juridical person, not falling within any of the above; 5.2 Under CGST Act, 2017, Section 7 (1), the definition of Supply includes- (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; (b) import of services for a consideration whether or not in the course or furtherance of business; (c) the activ

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goods including capital goods and services in connection with commencement or closure of business; (e) provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members; (f) admission, for a consideration, of persons to any premises; (g) services supplied by a person as the holder of an office which has been accepted by him in the course or furtherance of his trade, profession or vocation; (h) services provided by a race club by way of totalisator or a licence to book maker in such Club; and (i) any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities; 5.4 Under CGST Act, 2017, Section 2 (31), consideration in relation to supply of goods or services or both includes – (a) any payment made or to be made, whether in money or otherwise, in respect of, in response to, or for the inducement of, the supply of

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mparted. 7. Thus it appears that the said training is against a consideration, i.e., a payment made in money (fee collected from the members) for supply of services and thus the cooperative society also gets covered under the ambit of GST and is leviable to GST under Section 9(1) of the CGST Act, 2017. 8. This service provided by the taxpayer falls under the Service Accounting Code 999293 – Commercial Training and Coaching. In terms of Notification no. 11/2017-Central Tax (Rate) dated 28.06.2017, Commercial Training and Coaching is subject to GST @ 18% (CGST 9% and SGST 9%) or IGST 18%. There has been no exemption granted / recommended to this service by the GST Council. 04. HEARING The case was taken up for preliminary hearing on dt. 12.06.2018, with respect to admission or rejection of the application when Sh. Dnynesh Shinde, C.A. along with Sh. Sadashiv Bodke, Chief Officer and Sh. Pranit Pansare Asstt. To Sh. Shinde appeared and requested for admission of application as per ARA. Th

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ir 13 training centres, to the members of co-operative societies in the state of Maharashtra and the same is not a commercial activity. They have submitted that they do not receive any funds or grants from the Government directly and their funding is indirectly by way of mandatory contributions by the member co-operative societies under the provisions of Section 68 of the Maharashtra Co-op. Societies Act and they are not a profit making organization but only an educational institution and therefore on the similar lines of exemption granted to educational institutions registered under Trust Act', they should be treated as educational institute and CST should not be levied. The department has observed on perusal of the order dated 30.04.2010 by the Income Tax Appellate Tribunal, Pune Bench, submitted by the applicant in their favour, that they were not granted exemption and were denied registration under section 12AA of the Income Tax Act, 1961 as a charitable trust. For reasons ment

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ated 28-6-2017. We now reproduce Section 24 A of the Maharashtra Cooperative Societies Act is relevant in the present case as under:- 24A. Cooperative Education and training to members, etc. – (1) Every society shall organisc co-operative education and training, for its members, officers and employees through such State federal societies or the State Apex Training Institutes, as the State Government may, by notification in the Official Gazette, specify. Such education and training shall.- (i) en-sure the effective and active participation of the members in the management of the society; (ii) groom talented employees for leadership position; (iii) develop professional skills through co-operative education and training. (2) Every member of the committee, whether elected or co-opted, Shall undergo such co-operative education and training for such period and at such intervals as may be prescribed. (3) Every society shall contribute annually towards the education and training fund of the St

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g such education/coaching/ training. We find from the submissions made by the applicant that they are neither providing any services to the Central Government, State Government, Union territory administration under any training programme nor is the expenditure borne by the Central Government, State Government, Union territory administration. In their case they are funded by the fees received from the societies for the training of their members. It is also seen from their submissions that they cannot be considered as an educational institution providing services to its students, faculty and staff and therefore the supply of services by them to the members of the cooperative societies do not get exemption given under Sr. No. 66(a) of Notification No. 12/2017-CT (Rate) and No. 9/2017-11 (Rate) both dated 28-6-2017. We find from the applicant's submissions that there is no contention whether their activity of providing training, etc to the members of the cooperative societies constitut

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T – Sr. No. 66(a) of Notification No. 12/2017-CT (Rate) and No. 9/2017-IT (Rate) both dated 28-6-2017. They are in fact supplying services to other cooperative societies and their members and not to their own faculty, etc. Hence there is no way that their remuneration recovered from the societies can be treated as non-taxable. From the submissions we find that the applicant are providing services of coaching and training to the members of cooperative societies for which they receive remuneration in the form of annual fees. These fees received by them from the societies can in no way be considered as an indirect funding from the Government. As per Section 7 of the CGST Act, 2017 the expression supply includes all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business. As per Section 2(17)(e) of the Act, the applicant, who a

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who pay annual fees and not to those societies who do not pay the applicant such fees. The applicant has submitted that The Maharashtra Societies Act, vide Section 24 provides for guidelines, which are mandatory for each and every Co-Operative Society in Maharashtra. The Applicant provides training to members of such cooperative societies which is in consonance with Section 24 of the said act, but this supply of service is provided only to those member cooperatives and not to non-members. We find that they have submitted that the guidelines are for the benefit of members of cooperative societies. The obligation to see that such training is provided to its members are on the cooperative societies and the Applicant provides training only as per the societies act and only to those societies who pay an annual fee to them. It is mentioned here that all the cooperative societies are obliged to follow the guidelines issued under the Maharashtra Societies Act and the applicant are providing tr

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education and training they charge annual fees/contribution from their members as provided under the provisions of the Maharashtra Co-op. Societies Act. Thus in view of the above discussions it is seen that the applicant is a person (as defined under Section 2(84) of the GST Act, Who is supplying services (as defined under Section 7(1) of the GST Act) in the nature of educational, coaching and training to its members only (and not non members), for a consideration (as defined under Section 2(31)). The applicant is not funded in any way by the Government. 06. In view of the extensive deliberations as held hereinabove, we pass an order as follows : ORDER (under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) NO.GST-ARA- 11/2018-19/B-70 Mumbai, dt. 18/07/2018 For reasons as discussed in the body of the order, the questions are answered thus – Question :- The Maharashtra Rajya Sahakari Sangh Ltd. conducts education and traini

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Customs – PUBLIC NOTICE NO. 22/2018/CCP/JMR – Dated:- 18-7-2018 – OFFICE OF THE COMMISSIONER, CUSTOMS (PREV.), JAMNAGAR SARDA HOUSE , OPP.PANCHAVATI SOCIETY, BEDI BUNDER ROAD, JAMNAGAR – 361008 PHONE NO.: 0288 2757509/10, FAX NO. : 0288 2757538/39 E-Mail: custechjmr@gmail.com F.No.VIII/48-168/Cus-T/2017 Date: 18.07.2018 PUBLIC NOTICE NO. 22/2018/CCP/JMR Subject: Refund Disposal Fortnight to handhold trade & industry in clearing pending GST refund claims from 16th July to 31st July, 2018 -regarding. Attention of all the Importers/exporters, Customs Brokers, members of the Trade and all other concerned is invited to the above mentioned subject. Special Drive Fortnights were launched during 15th March to 31st March, 2018 and 31st May to 1

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rror codes clubbed with each other 3. Accordingly, a Refund Cell which is created at Customs House – Pipavav to deal with the pending cases of export related refund claims, in addition to special camp at Office of the Commissioner of Customs, Customs(Prev.) Commissionerate, 'Sarda House', Bedi Bunder Road, Jamnagar for disposing off the IGST refund on export stuck up on account of above error codes. 4. In case of any difficulties faced during this Special Drive, the exporters / stake holders may contact the below mentioned Nodal Officer: Name and designation of the Nodal Officer Email Id Shri P.K. Rameshwaram, Joint Commissioner prabhat.rameshwaram@icegate.gov.in 5. The exporters and other stake holders are requested to avail the ad

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Goods and Services Tax – Started By: – Bijay Bharat – Dated:- 17-7-2018 Last Replied Date:- 24-7-2018 – Dear Sir/Madam,Our company has went into a works contract agreement with state govt which mentions specifically that all taxes are included except service tax which will be reimbursed as per actual but now after GST coming into force when we had claimed the Cgst part as exemption or to be borne by client I.e state govt their is ambiguity and confusion kindly help out in this regard is their any law or way to claim the part to service tax which was rembursable .Thank you – Reply By Alkesh Jani – The Reply = Sir, In this regards, my point of view is that, In terms of Section 2(84) of CGST Act, 2017, even Central Government or State Governm

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at Government is liable to GST and should pay GST. Alternately, you can raise the Invoice including GST , supply to un-registered person and pay tax. Any other view is appreciated. Thanks – Reply By YAGAY and SUN – The Reply = In our view Government cannot deny to pay you the statutory dues/levies. – Reply By ANITA BHADRA – The Reply = SirThere are two important points in your query :-Time of Supply and GST payable by State Government . What is time of supply ? GST will not applied, in case invoice raised or supply made ( whichever is earlier ) pre GST period . In that condition , service tax is reimbursable by State Government as per your work contract agreement . In case supply made and invoice raised post GST , GST is payable by State Go

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Goods and Services Tax – Started By: – Alkesh Jani – Dated:- 17-7-2018 Last Replied Date:- 21-7-2018 – Sir, In terms of Section 50 (3) of CGST Act, If ITC is wrongly taken or utilized, on reversal interest @ 24% is to be paid. However, if refund is delayed for more than 60 days, interest rate @6% will be paid in terms of Section 54(12) of CGST Act, 2017. Moreover, in terms of Section 2(84) of CGST Act, 2017, person includes Central Government or State Government. The query is :- Section 54(12) of the Act, can be held to be ultra vires to Article 14 of Constitution of India. Thanks – Reply By YAGAY and SUN – The Reply = In our view it is not ultra vires to Article 14 as higher rate of interest as charged by Government works as deterance and

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he nature of contravention. Govt. is a 'Ruler' and an assessee is a 'Ruled' as per Constitution of India. Nicely explained/ replied by both experts. I agree with the views of both experts. If Central Govt. or State Govt. is a taxable person, that Govt. will also get interest @ 6% on the delayed refund. If we peruse decisions of various Courts, penal interest is also imposed on Central Govt. and State Govt., if contravened any provision of Act.Hence question of 'ultra vires' of Article 14 of the Constitution does not arise. All persons are equal in the eyes of law. – Reply By Alkesh Jani – The Reply = Sir,I appreciate the views expressed by our experts, as stated by M/s. Yagay and Sun, that it is to force the assessee

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is like imposing penalty. Even money lenders are abid by the rate of 18%, then why 24% for taxpayers.We are in Independent India, these kind of rate of interest and taxes were levied during British Rule. If Govt. is for the people, why not to keep 24 % instead of 6% for delayed refund.I also acknowledge the views expressed by Sh. Rajagopalan Ranganathan Sir, with request that 24% is 4 times higher than delayed refund rate of 6%, without any doubt, it is undue hardship to any taxpayers or any citizen. Here, we are to keep in our mind the business man having turnover of just more than 20 or 10 lakhs, as the case may be. Please re-offer your comments.Thanks – Reply By KASTURI SETHI – The Reply = Sh.Alkesh Jani Ji,We can raise voice only in the

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Goods and Services Tax – GST – Dated:- 17-7-2018 – Refunds of GST have been a concern for the Government and Trade for the past several months. In this regard, the CBIC has observed two special drives cum refund fortnights in the Month of March, 2018 (15th to 31st March, 2018) and June, 2018 (31st May to 16th June, 2018) respectively. These refund fortnights have provided a lot of relief to the trade. In the 1st refund fortnight, ₹ 4265 Crore IGST refunds and ₹ 1136 Crore ITC refunds were sanctioned by field formations of CBIC. Similarly, during the 2nd refund fortnight, ₹ 6087 Crore IGST refunds and ₹ 1548 Crore ITC refunds were sanctioned by CBIC. In case of IGST refunds for goods exported out of India, the percen

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 17-7-2018 – In March, 2018, Authority for Advance Ruling (AAR), Maharashtra had pronounced a ruling on job work vis-à-vis manufacture in relation to supply of goods (electricity). The advance ruling under reference is in the matter of In Re JSW Energy Ltd. [(2018) 13 GSTL 92; (2018) 5 TMI 763; ] with reference to scope of supply under section 7 of the GST law. Advance Ruling Accordingly, it was ruled that where applicant-power company i.e. JSW Energy Ltd. (JEL) generates power from coal supplied by JSL, a steel company, and JEL supplies power to Jindal Steel Ltd. (JSL), activity under taken by JEL amounts to manufacture of electricity from coal as supplied by JSL and

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aracter and use than the inputs i.e., coal . Thus, when the Legislature had provided for the definition of 'job work' as well as 'manufacture', the meaning as understood by the definition of 'manufacture' cannot be read into the words 'treatment or process' as found in the definition of 'job work'. 'Treatment', Process' and 'Manufacture' are three different activities recognized by the Legislature. The intent of the Legislature was to restrict the scope of 'job work' to 'treatment' or 'process' and not to extend the same to 'manufacture'. It was therefore, held that the activity undertaken by JEL amounted to manufacture of electricity from the coal a

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electricity, the Authority decided the same as supply of goods and not as job work. The main ground for decision of the Authority lies in the fact that definition of job work covers process and treatment on goods, whereas in the instant case the operations carried out by JEL are beyond the process and treatment, and thus not covered under the definition of job work. The Appellate Authority discussed in detail the interpretation on meaning of job work and manufacture and whether activity involved was supply of goods and/or job work or not. The Appellate Authority concluded that the activity undertaken by JEL to convert coal, to be supplied by JSL, in electricity is not covered under the definition of job work in terms of the CGST Act. Since

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2018 (7) TMI 1280 – DELHI HIGH COURT – 2018 (17) G. S. T. L. 582 (Del.) – Validity of Remand of matter to Commissioner – appellant’s grievance is that the final order of CESTAT remanding the matter for fresh adjudication by the Commissioner is erroneous, inasmuch as, the Tribunal failed to discharge its obligations to consider the record – Held that:- It is evident from the consideration of the record that the Commissioner rendered elaborate findings on both the genuineness of the document (agreement dated 30.06.2006) as well as on its interpretation. Given these facts, if the Tribunal was in doubt as to whether the document was genuine, the least that it could have done was to limit the findings on remand while retaining Revenue’s appeal on the file. This Court notices that CESTAT has been repeatedly passing remand orders virtually abdicating its responsibility as an Appellate Court. This trend is unhealthy given that it is the final Court of fact and is required to adjudicate both o

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Sr. Standing Counsel for the respondent accepts notice. 4. The appellant s grievance in the present proceedings under Section 35G of the Central Excise Act, 1944 is that the final order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) remanding the matter for fresh adjudication by the Commissioner is erroneous, inasmuch as, the Tribunal failed to discharge its obligations to consider the record. 5. The appellant was issued with a show cause notice which alleged that it was receiving services from M/s Jefferies International Limited (JIL) and that for the period 2006-07 it was liable to pay service tax to the tune of 1,37,64,000/- and other amounts and penalties under the Finance Act, 1994. The show cause notice (dated 14.10.2011) was replied to and the allegations made by the Revenue were refuted. Apart from various submissions, the appellant contended that it had entered into an agreement dated 30.06.2006 with JIL and that the allegation with respect to its liability

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to the balance sheet for the year 2006-07 the noticee had raised foreign currency convertible bonds of US dollars 50 millions and had incurred a foreign currency expenditure of ₹ 11.47 crorres for raising such bonds. Further the noticee had also entered into a memorandum of understanding on 20-04-2006 with M/s Jefferies London which is not a formal agreement but simply a letter of engagement singyfying intention of both the parties. As per said MOU letter dt : 20-04-2006, Jefferies were to be engaged to act as legal manager and sole placement agent for the noticee in connection with the proposed structuring, issuance and sale of equity linked securities of the noticee company. However the said MOU Letter states in the opening para itself that the final terms and conditions governing the transactions shall be mutually agreed by the company and M/s Jefferies. 34. The letter signed by and exchanged between the noticee and Jefferies, inter alia contains the following clauses – The co

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(b) Issue of the bonds (Clause 3) The issuer undertakes to the manager (subject to the terms and in accordance with provisions of this agreement) to issue the firm bonds to the manager or as a manager may direct on the closing date. (c) The option (Clause 4) The issuer hereby grants to the manager an option to subscribe or procure subscription for all or any of the optional bank. This option shall be exercise during the option period in whole or in part, on one or more occasions, solely at the discretion of the manager by service on the issuer of option notice s on or before the expiry of the option period, such option notice s shall be irrevocable and shall set forth the aggregate principal amount of optional bonds as to which the option is being exercised. 46 to 47 xxx xxx xxx 48. Further M/s Jefferies have not issued any invoice for the underwriting services and the noticee has also not made the remittance from India. The payments has been made to M/s Jefferies by way of their appro

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eement shall give rise to any obligation on the part of the company to issue or sell the securities or to enter into any agreement in relation thereto. 50. Further, clause 21 of the agreement dt : 30-062006 states that this agreement and the offering circular, constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this agreement. 51. Accordingly reading of both the letter dt : 20-042006 and agreement dt : 30-06-2006 indicates that the agreement dt : 30-06-2006 is the only legal document following the letter dt : 20-04-2006. Both are genuine documents but the later one is legally binding and the one which has superseded the earlier one, i.e. dt : 20-04-2006. 7. After considering these materials and on the basis of other reasons, the show cause notice was discharged. The appeal, which the Revenue preferred to the CESTAT, disputed the findings. The Revenue s arguments in its grounds of ap

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e adjudicating authority further failed to consider the essence and substance of the said further agreement dated 30.06.2006 that the essential purpose remained the same, i.e. to issue US $ 40 Millions 3.5% convertible bonds due 2011. Also, it is pertinent to take note of the fact that even in terms of the agreement dated 30.06.2006, the foreign service provider remained the manager to the issue of FCCB for raising FCCB of US$ 50 Millions. The notice granted only as option to the manager, i.e. the foreign service provider, to subscribe to the bonds and, moreover, this option was at the discretion of the said service provider. Thus, the Adjudicating Authority failed to appreciate that even in terms of the later agreement dated 30.06.2006 the relationship between the notice and the foreign service provider remained as that of an issuer of the FCCB and manager to the issue of the FCCB , respectively. Thus, the underwriting was only optional and only an optional accessory or auxiliary serv

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et aside the impugned order and remand the matter to the original authority to verify the genuineness of the agreement and decided the issue denovo but by providing an opportunity of hearing to the respondent. Fresh evidence, if need be, may be admitted as per law. 9. Before this Court, the appellant contended that given the nature of findings by the Commissioner and the limited nature of the appeal by the Revenue – which did not appear to indicate any dispute vis-à-vis the genuineness of the agreement of 30.06.2006, the open remand on all aspects, was not justified. 10. Learned counsel for the Revenue on the other hand submitted that the appellant had disclosed the existence of the agreement for the first time in the reply to the show cause notice and appears to have thereafter produced it and as a result it could not be verified. It was submitted that in view of these peculiar features, the remand order of the Tribunal was in order. It is evident from the consideration of the

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RATHEESH PROPRIETOR, M/s. KBM AGENCIES Versus SECRETARY TAXES, GOODS & SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM, UNION OF INDIA REPRESENTED BY THE UNION SECRETARY, NEW DELHI, THE AGRICULTURAL INCOME TAX & STATE TAX OFFICER CIVIL STATION, ALAPPUZHA, THEMATIC NODAL OFFICER, THE DEPUTY COMMISSIONER, VAZHUCHERRY, THEMATIC NODAL OFFICER AND THE ASSISTANT COMMISSIONER (APPEALS) , VAZHUCHERRY – 2018 (7) TMI 1489 – KERALA HIGH COURT – TMI – Failure to upload FORM GST TRAN-1 within the stipulated time – case of petitioner is that though he attempted to upload it within the time, he failed because of some system error – input tax credit – migration to GST – Circular No.39/13/2018-GST, dated 03.04.2018 – Held that:- Not only the petitioner but also

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ded Tax Act, now migrated to the Goods and Services Tax regime. The petitioner failed to upload the returns. He asserts that though he attempted to upload it within the time, he failed because of some system error. The petitioner, therefore, seeks directions to enable him to upload the returns. 2. Heard the learned counsel for the petitioner, the learned Government Pleader, as well as the learned Standing Counsel, besides perusing the record. 3. The Government of India has issued Circular No.39/13/2018-GST, dated 03.04.2018, for setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal. Paragraph 5 of the circular outlines the procedure the Nodal Officers is to follow. It r

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ll be collated by the nodal officer and forwarded to GSTN who would on receipt of application examine the same. GSTN shall after verifying its electronic records and the applications received, identify the issue involved where a large section of tax payers are affected. GSTN shall forward the same to the IT Grievance Redressal Committee with suggested solutions for resolution of the problem. (italics supplied) 4. Not only the petitioner but also many other people faced this technical glitch and approached this Court. Both the learned counsel submit that this Court on earlier occasions permitted the petitioners to apply to the Nodal Officer for the issue resolution. 5. So, in this case also, the petitioner may apply to the Nodal Officer. The

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2018 (7) TMI 1825 – MADRAS HIGH COURT – 2018 (16) G. S. T. L. 179 (Mad.) – Input tax credit – inability to upload Form GST TRAN-1 within the time stipulated on account of some error – Held that:- It is 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. – W.P.Nos.11878 & 11879 of 2018 Dated:- 17-7-2018 – T. S. Sivagnanam, J. For the Petitioners : Mr.Adithya Reddy For the Respondents : Mr.A.P.Srinivas, SPC, Mrs.G.Dhana Madhri, GA, Mr.V.Sundareswaran ORDER Heard both. 2. The sum and substance of the prayer of the petitioners is that they are unable to upload Form GST TRAN-1 to take credit of the input tax/ service tax/central excise duty availed by them at the time of migration within the time stipulated. 3. The petitioners would state that they were unable to upload Form GST TRAN-1 within the time stipulated on

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filing representation along with all necessary documents for redressal of his grievance and in turn, the said authority would consider and dispose of the same following the procedure laid down in para 8 of the circular dated 3.4.2018 and would take decision accordingly keeping in view that this writ petition remained pending since 26.3.2018. 8.With the aforesaid direction, the writ petition stand finally disposed of. 5. So far as the High Court of Delhi is concerned, the Delhi High Court, in W.P(C) No.1300 of 2018 etc. batch by order dated 09.4.2018, directed the petitioners therein to approach the concerned Nodal Officer with brief representations outlining their grievances and the Nodal Officer or the Redressal Committee was directed to appropriately deal with representations in accordance with the circular dated 03.4.2018. 6. So far as the Kerala 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 f

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brought to the notice of the Central Board of Indirect Taxes (CBIC) and Customs about the difficulties faced by a section of tax payers owing to technical glitches on the GST and representations were given by the petitioners. Therefore, the CBIC is setting up a Grievance Redressal Mechanism vide Circular No.39/13/2018-GST dated 03.4.2018. Paragraph 8 of the said circular would be relevant for the purpose of the cases on hand, which reads as under : 8. Resolution of stuck TRAN-1s and filing of GSTR-3B 8.1 A large number of taxpayers could not complete the process of TRAN-1 filing either at the stage of original or revised filing as they could not digitally authenticate the TRAN-1s due to IT related glitches. As a result, a large number of such TRAN-1s are stuck in the system. GSTN shall identify such taxpayers who could not file TRAN-1 on the basis of electronic audit trail. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1 procedure (original

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ril 2018 and the process of completing filing of GSTR 3B which could not be filed for such TRAN 1 shall be completed by 31st May 2018. 9. Further, paragraph 5.1 of the said circular would state that GSTN, Central and State Government would appoint Nodal Officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the common portal. This would be publicized adequately. 10. An argument was advanced by the learned counsel for the assessees that paragraph 5 of the said circular dated 03.4.2018 is confined to non-TRAN-1 issues. However, this Court finds that there is no such specific distinction brought about in paragraph 5 of the said circular. Therefore, it can be safely held that the procedure of appointment of Nodal Officers and identification of issues are to be done in the manner provided in paragraph 5 of the said circular. Unless the Nodal Officers are appointed, the Jurisdictional officer of the Assessee, namely Assessing Officer would not be in

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2018 (8) TMI 64 – BOMBAY HIGH COURT – 2018 (15) G. S. T. L. 643 (Bom.) – Release of detained goods – Section 129 of the Goods & Service Tax Act, 2017 – Held that:- The petitioner is aware of the consequences which would follow post such detention and seizure and if it still desires to approach the concerned official with a proper request and express its readiness and willingness to comply with all the conditions permissible in law, we have no doubt in our mind that the release would be granted – petition dismissed. – Writ Petition No. 7390 of 2018 Dated:- 17-7-2018 – S.C. DHARMADHIKARI & SMT. BHARATI H. DANGRE, JJ. Mr. Dhopatkar i/b Santosh Vhatkar & Associates for the Petitioner. P.C. : 1. The petitioner has approached this Court complaining that the consignment, which was loaded on a vehicle, was intercepted during the course of its transport from the petitioner's office and factory to the State of Gujarat. The petitioner claims that they are manufacturers of copper and

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o generate the documents at its end and cleared the goods for delivery to the customer. That is how the petitioners complain that the consignment was intercepted and because the vehicle is detained and the goods are seized that they are unable to comply with their obligations during the course of the business and their assurances to the ultimate user. The material be, therefore, released, otherwise the consignees export will be hampered and they will suffer huge losses. An alternate request is made that the vehicle can be detained, but at least the goods be released. 2. Mr. Dhopatkar appearing for the petitioners does not dispute that the power to detain and seize and release goods and conveyances in transit is conferred by section 129 of the Goods & Service Tax Act, 2017. That sub-section (1) of section 129 confers an overriding power and the authorities can proceed to detain or seize and equally after detention or seizure, release the goods. However, there is a complete procedure

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he officers are obliged to release the goods. It is very clear that insofar as these proceedings are concerned, the sub-sections of section 129 is a complete remedy. The remedy can be availed of and the release obtained provided there is readiness and willingness to comply with the conditions imposed while obtaining the release of the goods. The conduct of the petitioner shows that it is not ready and willing to comply with these conditions, but desires that this Court should interfere and direct unconditional release of goods. We are not inclined to agree with Mr. Dhopatkar given that there are disputed about questions of fact. 4 In the circumstances, the petitioner is aware of the consequences which would follow post such detention and seizure and if it still desires to approach the concerned official with a proper request and express its readiness and willingness to comply with all the conditions permissible in law, we have no doubt in our mind that the release would be granted. 5 I

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2018 (8) TMI 65 – MADRAS HIGH COURT – 2018 (18) G. S. T. L. 577 (Mad.) – Unable to upload Form GST TRAN-1 to take credit of the input tax/ service tax/central excise duty – Held that:- The respective Commissioner of GST and Central excise are directed to appoint Nodal Officer/Officers for the State of Tamil Nadu, if not already appointed, within a period of 2 weeks from the date of receipt of a copy of this order – The petitioners/assessees are directed to submit their applications in accordance with paragraph 8 of the said circular dated 03.4.2018 within a period of two weeks from the date of receipt of a copy of this order to their respective Assessing Officers/Jurisdictional Officers/GST Officers. The Assessing Officers are directed to forward the applications to the Nodal Officers within a period of one week.
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Petitions disposed off. – WP.Nos.17836 to 17838 of 2018 Dated:- 17-7-2018 – MR. T.S. SIVAGNANAM J. For Petitioners: Mr. S. Sathiyanarayanan For Respondent-1: Mr. V. Su

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ition, particularly of non-uploading of FORM TRAN-1 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 directed to approach the Nodal Officer of Dhamtari i.e., Assistant Commissioner, State GST, Raipur Circle – 7 within four days from today by filing representation along with all necessary documents for redressal of his grievance and in turn, the said authority would consider and dispose of the same following the procedure laid down in para 8 of the circular dated 3.4.2018 and would take decision accordingly keeping in view that this writ petition remained pending since 26.3.2018. 8.With the aforesaid direction, the writ petition stand finally disposed of. 5. So far as the High Court of Delhi is concerned, the Delhi High Court, in W.P(C) No.1300 of 2018 etc. batch by order dated 09.4.2018, direct

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espondent 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 learned counsel appearing for the petitioners would submit that identical directions may be issued in this batch of cases as well. 8. It was brought to the notice of the Central Board of Indirect Taxes (CBIC) and Customs about the difficulties faced by a section of tax payers owing to technical glitches on the GST and representations were given by the petitioners. Therefore, the CBIC is setting up a Grievance Redressal Mechanism vide Circular No.39/13/2018-GST dated 03.4.2018. Paragraph 8 of the said circular would be relevant for the purpose of the cases on hand, which reads as under : 8. Resolution of stuck TRAN-1s and filing of GSTR-3B 8.1 A large number of taxpayers could not complete the p

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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 through this process. 8.4. The taxpayers shall complete the process of filing of TRAN 1 stuck due to IT glitches, as discussed above, by 30th April 2018 and the process of completing filing of GSTR 3B which could not be filed for such TRAN 1 shall be completed by 31st May 2018. 9. Further, paragraph 5.1 of the said circular would state that GSTN, Central and State Government would appoint Nodal Officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the common portal. This would be publicized adequately. 10. An argument was advanced by the learned counsel for the assessees that paragraph 5 of the said circular dated 03.4.2018 is confined to non-TRAN-1 issue

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ng 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 and Central excise are directed to appoint Nodal Officer/Officers for the State of Tamil Nadu, if not already appointed, within a period of 2 weeks from the date of receipt of a copy of this order and (ii) The petitioners/assessees are directed to submit their applications in accordance with paragraph 8 of the said circular dated 03.4.2018 within a period of two weeks from the date of receipt of a copy of this order to their respective Assessing Officers/Jurisdictional Officers/GST Officers. The Assessing Officers are directed to forward the applications to the Nodal Officers within a period of one week. The Nodal Officer nominated will, in consultation with the GSTN, shall take note of the

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Customs – 109 /2018 – Dated:- 17-7-2018 – OFFICE OF THE COMMISSIONER OF CUSTOMS (NS-II) JAWAHARLAL NEHRU CUSTOM HOUSE, NHAVA SHEVA, TAL. URAN, DIST-RAIGAD, MAHARASHTRA – 400 707 F. No. S/12-Misc-Gen/790/017-18 DBK JNCH Date: 17.07.2018 PUBLIC NOTICE NO. 109 /2018 Subject: Third IGST Refund Fortnight to clear pending refunds-reg. Attention of all the exporters, their authorized representatives and all export promotion councils is invited to Public Notice No. 29/2018 dated 26.02.2018, 39/2018 dat

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2018 (8) TMI 691 – CESTAT NEW DELHI – TMI – CENVAT Credit – common input services used in trading activity – Department is of the view that the appellant have wrongly utilised Cenvat Credit of input services pertaining to services used in trading of automobile cars – Rule 6 (3a) of Cenvat Credit Rules, 2004.
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Held that:- It is a matter of record that the appellant has been engaged in trading of automobile cars along with servicing of the cars and other automobile from the same premises and they have availed Cenvat Credit of various common input services which has been utilised towards both taxable services as well as for trading activity – trading activity abinitio cannot be considered as a “service” because the trading in the cars only involves transfer of property on financial consideration from the appellant dealer to various buyers of automobile cars. The Cenvat Credit facility of input services is only available to the output services rendered by any assessee and thus the Ce

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services, and other financial services etc under the provisions of Cenvat Credit Rules, 2004 on the trading activity. The Department is of the view that the appellant have wrongly utilised Cenvat Credit of input services pertaining to services used in trading of automobile cars. Since the trading activity only covers the transfer of goods to the purchaser on payment of cash or any other valuable consideration and therefore such activity is only purely a sale activity and therefore cannot be considered as a service and thus same is beyond the scope of Finance Act, 1994 as well as the provisions of Cenvat Credit Rules, 2004. The Department in the show cause notice has also mentioned that since the respondent i.e. the appellant-assessee did not maintain separate accounts for input services used towards the trading activity (exempted activity) and that towards servicing of cars, therefore, the appellant are required to pay an amount of Cenvat Credits in terms of Rule 6 (3a) of Cenvat Credi

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f property on financial consideration from the appellant dealer to various buyers of automobile cars. The Cenvat Credit facility of input services is only available to the output services rendered by any assessee and thus the Cenvat Credit of input services used in Trading activity is not allowable as per Cenvat Credit Rules, 2004. 5. We have heard both sides. The matter is no longer res-integra and we rely upon the judgment in case of Hon ble Madras High Court in the case of Ruchika Global Interlinks V/s CESTAT, Chennai reported in 2017 (5) GSTL 225 (Mad.). The Hon ble High Court in the judgment cited (supra) has clearly been provided that:- 10.2 Clearly, both before and after amendment, exempted services meant those taxable services, which were exempt from whole of Service Tax and, included those services on which Service Tax was not leviable, under Section 66 of the Finance Act. The inclusion in Explanation to Rule 2(e) trading was, without doubt, only clarificatory. As accepted by

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GST – States – Trade Notice No. 10/2018-19 – Dated:- 17-7-2018 – OFFICE OF THE COMMISSIONER, GOODS & SERVICES TAX HQRS. GST BHAWAN, NAPIER TOWN, JABALPUR (M.P.) 482001 C.No. IV(16)02/Trade Notice/HQ/MP/Tech/2018-19/ Trade Notice No. 10/2018-19 Dated 17.07.2018 Sub: Refund Disposal Fortnight to handhold trade & Industry in clearing pending GST refund claims from 16th July 2018 to 31st July 2018-reg. After the successful completion of ITC/ IGST Refund fortnights in the month of March 2018 (15th to 31st March 2018) & June 2018 (31st May to 16th June 2018) & Special ITC/IGST refund week held by the Department from 09.07.2018 to 14.07.2018 the department is pleased to invite attention of the Trade & Industry to yet another I

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r processing of the pending ITC/IGST refund claims. The asseessees are encouraged to report any difficulties and obstacles in processing of their refund claims, The Department is committed to resolve all the issues at the earliest. 4. The exclusive camps/refund cell has been set up at all divisions of this Commissionerate to deal with the cases of pending ITC related refunds claims from 16th July 2018 to 31st July 2018. All the Taxpayers are advised to contact the following Nodal Officers of the concerned divisions of their jurisdiction to resolve their issues related to refund claims: S.No. Divisions Name of the Nodal Officer E-mail Id and Phone Number 1. Jabalpur-I Shri Tikendra Kumar Kripal, Assistant Commissioner cgstdivljabalpur@email.

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