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GST – States – G.O. Ms. No. 77 – Dated:- 6-7-2018 – NOTIFICATIONS BY GOVERNMENT COMMERCIAL TAXES AND REGISTRATION DEPARTMENT AMENDMENTS TO THE TAMIL NADU GOODS AND SERVICES TAX RULES, 2017. [G.O. Ms. No. 77, Commercial Taxes and Registration (B1), 6th July 2018, Aani 22, Vilambi, Thiruvalluvar Aandu-2049.] No.SRO A-37(a)/2018. In exercise of the powers conferred by Section 164 of Tamil Nadu Goods and Services Tax Act, 2017 (Tamil Nadu Act 19 of 2017), the Governor of Tamil Nadu hereby makes the following rules further to amend the Tamil Nadu Goods and Services Tax Rules, 2017, namely:- (1) These rules may be called the Tamil Nadu Goods and Services Tax (Seventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with e

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2018 (8) TMI 618 – CESTAT MUMBAI – TMI – CENVAT Credit – input services – Outdoor Catering Services – Works Contract Service – Held that:- Though the services are in the nature of works contract, but were not related to construction of building or civil structure or laying of foundation etc. Since the nature of the activities provided by the service providers to the respondent as per the contract and as indicated in the invoices have not been properly scrutinized by the authorities below.
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The matter should go back to the original authority for proper verification of the invoices / contract to ascertain whether, the works contract services provided by the service provider to the respondent are confirming to exclusion category of service provided under the definition of input service – appeal allowed by way of remand. – Appeal No. ST/86605/2018 – A/86963/2018 – Dated:- 6-7-2018 – Mr. S.K. Mohanty, Member (Judicial) Shri M.K. Sarangi, Joint. Commr (AR) for appellant Ms. Puloma Dala

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e to state that the CENVAT benefit in respect of outdoor catering service should not be available in terms of exclusion clause provided in the definition of input service. 3. On the other hand, learned Consultant appearing for the respondent submits that the services received by the respondent from the service providers were in relation to works contract services and accordingly, the learned Commissioner (Appeals) has rightly allowed the Cenvat benefit of works contract service to the respondent. In respect of works contract service, her contention is that the services provided by the service providers are not in relation to construction or execution of works contract of the building or the civil structure or part thereof. In this context, learned Consultant has placed reliance on some of the invoices issued by the service providers viz M/s Hewlett Packard Enterprise India Pvt. Ltd, Power Control Services, ATA projects & Engineering Services etc. 4. Heard both sides and perused the

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cision of the Larger Bench of this Tribunal, I do not find any merits in the impugned order, so far as it allowed the Cenvat benefit of outdoor catering service in favour of the respondent. Therefore, the impugned order in allowing the Cenvat benefit on outdoor catering service is set aside and the appeal is allowed in favour of Revenue. 7. On perusal of some of the invoices submitted by the learned Consultant for assessee, I find that though the services are in the nature of works contract, but were not related to construction of building or civil structure or laying of foundation etc. Since the nature of the activities provided by the service providers to the respondent as per the contract and as indicated in the invoices have not been properly scrutinized by the authorities below, I am of the view that the matter should go back to the original authority for proper verification of the invoices / contract to ascertain whether, the works contract services provided by the service provid

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2018 (8) TMI 794 – GUJARAT HIGH COURT – TMI – Refund of unutilized Cenvat Credit – Credit was accumulated due to disproportionate rate of duty on inputs and final products availed at the time of surrender of Central Excise Registration.
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Revenue has fairly conceded that the issue involved in the present Appeal is squarely covered against the revenue in view of the decision of the Hon’ble Supreme Court in Union of India Vs. M/s Slovak India Trading Co. Pvt. Ltd [2007 (1) TMI 556 – SUPREME COURT] – In the aforesaid decision, it is specifically observed and held that the dealer shall be entitled to the refund of unutilized Cenvat Credit on closure of factory.
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No substantial question of law arises in the present Appeal – appeal dism

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api [2017 (346) ELT 413 (Tri.Ahmd)], was not accepted by the department and an appeal has been filed before Hon ble High Court of Bombay bearing Appeal No.CEXA/29/2015, which is still pending decision? (b) Whether the CESTAT is right in law, in allowing refund of unutilized Cenvat Credit accumulated due to disproportionate rate of duty on inputs and final products availed at the time of surrender of Central Excise Registration? 2. Today, when the present Appeal is taken up for further hearing, Shri Nirzar Desai, learned advocate appearing on behalf of the revenue has fairly conceded that the issue involved in the present Appeal is squarely covered against the revenue in view of the decision of the Karnataka High Court in the case of Union o

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GST – States – F-10-35/2018/CT/V (52) – Dated:- 6-7-2018 – Government of Chhattisgarh Commercial Tax Department Mantralaya, Mahanadi Bhawan, Naya Raipur Notification No. 29/2018 – State Tax Naya Raipur, 06th July, 2018 No. F-10-35/2018/CT/V (52). – In exercise of the powers conferred by Section 164 of the Chhattisgarh Goods and Services Tax Act, 2017 (7 of 2017), the State Government hereby makes the following rules further to amend the Chhattisgarh Goods and Services Tax Rules, 2017, namely :- (1) These rules may be called the Chhattisgarh Goods and Services Tax (Seventh Amendment) Rules, 2018 (2) They shall be deemed to have come into force with effect from the 12th day of June, 2018. 2. In the Chhattisgarh Goods and Services Tax Rules,

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GST – States – 25/2018-State Tax – Dated:- 6-7-2018 – GOVERNMENT OF ARUNACHAL PRADESH DEPARTMENT OF TAX & EXCISE ITANAGAR Notification No. 25/2018-State Tax The 6th July, 2018 No. GST/23/2017/Vol-I.-In exercise of the powers conferred by section 164 of the Arunachal Pradesh Goods and Services Tax Act, 2017 (7 of 2017), the State Government hereby makes the following rules further to amend the Arunachal Pradesh Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Arunachal Pradesh Goods and Services Tax (Seventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 12th day of June, 2018. 2. In the Arunachal Pradesh Goods and Services Tax Rules, 2017, – (i) in rule 12

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2018 (9) TMI 826 – CESTAT CHENNAI – TMI – GTA Service – case of appellant is that the tax liability has indeed been discharged by the service providers and that they are in a position to submit all necessary evidence to establish their case – Held that:- The appellants should be given an opportunity to establish their averment that the service tax liability concerned has already been discharged by the service provider – matter remanded to the original adjudicating authority – appeal allowed by way of remand. – Appeal No.ST/40973/2018 – FINAL ORDER No. 41948/2018 – Dated:- 6-7-2018 – Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri M. Kannan, Advocate For the Appellant Shri S. Govindarajan, AC (AR) F

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came up for hearing, on behalf of the appellants, Ld. Counsel Shri M. Kannan draws our attention para-4 of the impugned order to point out that even before Commissioner (Appeals), appellants had requested for a remand for verification and submitted that service tax on GTA concerned has been paid up by the service providers and therefore no further liability can accrue on them as has been held in a number of Tribunal decisions relied upon by him and also had prayed for a remand of the matter to the original adjudicating authority. However the same was not considered by the Commissioner. Ld. Advocate reiterates the same request before us today relying upon case laws in CST Meerut Vs Geeta Industries P. Ltd. – 2011 (220) STR 293 (Tri.-Del.) a

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GST – States – 574/2018/4(120)/XXVII(8)/2018/CT-26 – Dated:- 6-7-2018 – Government of Uttarakhand Finance Section-8 No. 574/2018/4(120)/XXVII(8)/2018/CT-26 Dehradun :: Dated:: 06th 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. 01 Year 1904) (as applicable in the State of Uttarakhand), the Governor is pleased to make the following rules with a view to further amend the Uttarakhand Goods and Services Tax Rules, 2017, namely : The Uttarakhand Goods and Services Tax (Fifth Amendment) Rules, 2018 1. Short title and Commencement (1) These rules may be called the Uttarakhand Goods and Services Tax (Fifth Amendment) Rules, 2018. (2) Save as otherwise provided, they shall come into force from the 13th day of June, 2018. 2. Amendment in Rule 37 In rule 37 of the Uttarakhand Goods and Services Tax Rules, 2017 (hereinafter referr

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ing formula :- Maximum Refund Amount = {(Turnover of inverted rated supply of goods and services) x Net ITC÷ Adjusted Total Turnover}-tax payable on such inverted rated supply of goods and services. Explanation:-For the purposes of this sub-rule, the expressions- (a) "Net ITC" shall mean input tax credit availed on inputs during the relevant period other than the input tax credit availed for which refund is claimed under sub-rules (4A) or (4B) of both; and (b) "Adjusted Total turnover" shall have the same meaning as assigned to it in sub-rule (4). 89. (5) In the case of refund on account of inverted duty structure: refund of input tax credit shall be granted as per the following formula :- Maximum Refund Amount= {(Turnover of inverted rated supply of goods and Services)x Net ITC÷ Adjusted Total Turnover}-tax payable on such inverted rated supply of goods and services. Explanation:-For the purposes of this sub-rule, the expressions- (a) "Net ITC&qu

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o fifty per cent of the amount of cess determined under sub-section (5) of section 54 read with section 11 of the Goods and Services Tax (Compensation to States) Act, 2017 (15 of 2017), shall be deposited in the Fund. 7. Amendment in rule 133 In rule 133 of the "Principal Rules", for sub-rule (3) set out in column-1, the following sub-rule set out in column-2 shall be substituted, namely :-  Column-I Existing sub-rule Column-2 Hereby substituted sub-rule 133.(3) Where the Authority determines that a registered person has not passed on the benefit of reduction in rate of tax on the supply of goods or services or the benefit of input tax credit to the recipient by way of commensurate reduction in prices, the Authority may order- (a) reduction in prices; (b) return to the recipient, an amount equivalent to the amount not passed on by way of commensurate reduction in prices along with interest at the rate of eighteen per cent from the date of collection of higher amount till

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e may be; (c) the deposit of an amount equivalent to fifty per cent of the amount determined under the above clause in the Fund constituted under section 57 ot the Central Goods and Services Tax Act, 2017 and the remaining fifty per cent of the amount in the Fund constituted under section 57 of the Uttarakhand Goods and Services Tax Act, 2017, where the eligible person does not claim return of the amount or is not identifiable; (d) imposition of penalty as specified under the Act; and (e) cancellation of registration under the Act. 8. Amendment in Rule 138 In rule 138 of the "Principal Rules", in sub-rule (14), after clause (n), the following clause shall be inserted, namely .- (o) where empty cylinders for packing of liquefied petroleum gas are being moved for reasons other than supply"; 9. Amendment in FORM GSTR-4 In FORM GSTR-4 of the "Principal Rules", in the Instructions, for S.No. 10, the following shall be substituted, namely – 10. For the tax periods Ju

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ent shall be substituted, namely:- Statement 1A [see rule 89(2)(h)] Refund Type: ITC accumulated due to inverted tax structure [clause (ii) of first proviso to section 54(3)] Sl.No Details of invoices of inward supplies received Tax paid on inward supplies Details of invoices of outward supplies issued Tax paid on outward supplies GSTIN of the supplier No. Date Taxable Value Integrated Tax Central Tax State Tax No. Date Taxable Value Integrated Tax Central Tax State Tax 1 2 3 4 5 6 7 8 9 10 11 12 13 14 . (b) for Statement 5B, the following Statement shall be substituted, namely:- Statement 5B [see rule 89(2)(g)] Refund Type: On account of deemed exports (Amount in Rs) Sl.No. Details of invoices of outward supplies in case refund is claimed by supplier/Details of invoices of inward supplies in case refund is claimed by recipient Tax paid GSTIN of the supplier No. Date Taxable Value Integrated Tax Central Tax State Tax Cess 1 2 3 4 5 6 7 8 9 . 12. Amendment FORM GST RFD-01A In FORM GST R

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GST – States – 577/2018/10(120)/XXVII(8)/2018/CT-28 – Dated:- 6-7-2018 – Government of Uttarakhand Finance Section-8 No. 577/2018/10(120)/XXVII(8)/2018/CT-28 Dehradun :: Dated:: 06th 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. 01 Year 1904) (as applicable in Uttarakhand State), 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 (Sixth Amendment) Rules, 2018 1. Short title and Commencement (1) These rules may be called the Uttarakhand Goods and Services T

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icated to the said transporter; Provided that where the said transporter has obtained a unique common enrolment number, he shall not be eligible to use any of the Goods and Services Tax Identification Numbers for the purposes of the said Chapter XVI. 3. Amendment in Rule 138C In rule 138C of the "Principal Rules", after sub-rule (1), the following proviso shall be inserted, namely:- Provided that where the circumstances so warrant, the Commissioner or any other officer authorised by him, may, on sufficient cause being shown, extend the time for recording of the final report in Part B of FORM EWB-03, for a further period not exceeding three days. Explanation-The period of twenty four hours or as the case may be three days shall be

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GST – States – 29/2018 – State Tax – Dated:- 6-7-2018 – GOVERNMENT OF SIKKIM FINANCE, REVENUE AND EXPENDITURE DEPARTMENT COMMERCIAL TAXES DIVISION GANGTOK No. 29/2018 – State Tax Date: 6th July, 2018 NOTIFICATION In exercise of the powers conferred by section 164 of the Sikkim Goods and Services Tax Act, 2017 (9 of 2017), the State Government hereby makes the following rules further to amend the Sikkim Goods and Services Tax Rules, 2017, namely:- (1) These rules may be called the Sikkim Goods and Services Tax (Seventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 12th day of June, 2018. In the Sikkim Goods and Services Tax Rules, 2017, – in rule 125, for the words Directorate General of Safeg

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2018 (12) TMI 1083 – ALLAHABAD HIGH COURT – [2018] 59 G S.T.R. 181 (All) – Extension of time period for filing GST Tran-1 – input tax credit – Held that:- The respondents are directed to reopen the portal within two weeks from today. In the event they do not do so, they will entertain the application of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner – petition disposed off. – Writ Tax No. – 936 of 2018 Dated:- 6-7-2018 – Bharati Sapru And Ajay Bhanot JJ. For the Petitioner : Shubham Agrawal For the Respondent : A.S.G.I.,C.S.C.,Parv Agarwal ORDER Heard Sri Shubham Agrawal, learned counsel for the petitioner and Shri Parv Agrawal, learned counsel for the respondents no.5. The

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s ago and they have instructions to state that some new committee is likely to be formed, which will take care of the individual cases probably within next two weeks but are unable to give any exact date. Learned counsel for the respondents prays for and is allowed one month's time to file a counter affidavit. List this matter on 08.08.2018. In the meantime, the respondents are directed to reopen the portal within two weeks from today. In the event they do not do so, they will entertain the application of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner. They will also ensure that the petitioner is allowed to pay its taxes on the regular electronic system also which is bein

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 5-7-2018 – Advance rulings are important in any tax law as it provides a forum for clarification and possible interpretation of statutory provisions. Moreover, it conveys the legislative intention from the revenue s view point. Provisions of advance ruling are contained in section 95 to 106 of CGST Act, 2017 and State / UT GST enactment. Rules 103 to 107 of also provide for forms, manner, certification etc. The Authority for Advance Rulings (AAR) have been set up in all the states and we have now over 50 advance rulings on different issues already pronounced by various State Authorities. However, appellate mechanism for filing appeals against AAR rulings is not yet in place and one is faced with this challenge. Another major issue presently being faced is about multiple authorities (equal to number of States), each pronouncing a ruling of its own even if the matter is covered by some other State AAR s rulings. There wou

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as well as services. Thus, depending upon nature of supply, intra state or inter-state, rate of tax would be governed by Entry No. 3(ii) of the Notification No. 8/2017 – Integrated Tax (Rate under the Integrated Goods and Services Tax Act, 2017(IGST Act) or the Notification No. 11/2017 – Central Tax/State Tax (Rate) under the CGST Act and MGST Acts. The rate of tax would be 18 per cent under the IGST Act and 9 per cent each under the CGST Act and the MGST Act. [Fermi Solar Farms (P.) Ltd., In Re. (2018) 5 TMI 963 (AAR-Maharashtra); ]. Advance Ruling on job work or manufacture (electricity generation is supply of goods) Where applicant-power company i.e. JEL generates power from coal supplied by JSL, a steel company, and JEL supplies power to JSL, activity undertaken by JEL amounts to manufacture of electricity from coal as supplied by JSL and is squarely covered in definition of 'manufacture' under GST Act and is a transaction of supply of goods. Such activity is therefore, no

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ification. Further, it was found that the education service provided in the instant case is taxable at the rate of 9 percent under CGST Act, 2017 and 9 percent under SGST Act, 2017, i.e. @ 18% in aggregate. [Simple Rajendra Shukla, In Re 2018 (5) TMI 648 – AUTHORITY FOR ADVANCE RULING – MAHARASHTRA ]. Advance Ruling on nature of supply Where advance ruling was sought on nature of supply i.e., mixed or composite supply for supply of UPS along with battery. Applicant s contention was that it amounts to composite supply, it was ruled that the supply of UPS and battery is to be considered as mixed supply because they are two different and independent items which are supplied under a single contract at a combined single price, i.e., not being naturally bundled. [Switching Auto Electro Power Ltd., In Re. (2018) 4 TMI 810 (AAR-West Bengal); ]. Advance Ruling of applicability of GST on reinstatement charges Where applicant was engaged in business of generation, transmission and distribution of

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ant was not registered under any of the repealed Acts and desired to have a ruling on whether it is required to be registered under the CGST Act, 2017 / WBGST Act, 2017. In the instant case, where an applicant was engaged exclusively in supplying goods and services that are wholly exempt from tax, it was ruled that he will not be not liable to be registered in accordance with provisions under section 23(1) of GST Act, subject to condition that applicant is not otherwise liable to pay tax under Reverse Charge mechanism under section 9(3) of GST Act or section 5(3) of IGST Act. [Joint Plant Committee, In Re (2018) 4 TMI 809 (AAR-West Bengal);]. Advance Ruling on taxability of Canteen services by employer Where the assessee preferred an application for Advance Ruling for taxability of recovery of food expenses from employees for the canteen services provided by it. It submitted that they were providing canteen services exclusively for their employees. All the canteen expenses were recover

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Goods and Services Tax – Levy of GST – Tripartite agreement – taxability of services – scope of supply – Alternate accommodation to be paid to the tenant of the old building by the developer/owner – c

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2018 (7) TMI 275 – CESTAT NEW DELHI – TMI – Technical testing and analysis services – clinical trial to new drugs for various manufacturing companies (sponsors) – Benefit of N/N. 11/2007 ST dated 01.03.2007 and a subsequent N/N. 25/2012 ST dated 20.06.2012 – Department formed an opinion that respondent are participating in various drug trials in the capacity of trial site, in as such, their activity is not exempted vide the said Notification – Held that:- Perusal of both these Notifications makes it a mandate that the exemption is for such technical testing and analysis service as are provided or to be provided by a Clinical Research Organisation approved to clinical trials by the Drug Controller General of India. Thus, it becomes clear that the claimant of exemption of this Notification should be a Clinical Research Organisation.
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The Commissioner has held the respondent as a CRO despite the apparent fact that as per the mandatory contracts for the purpose to be entered into by

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trix is that M/s Diabetes Thyroid Hormone Research Institute Pvt. Ltd. (DTHR) is performing clinical trial to new drugs for various manufacturing companies (sponsors). The said activity was opined to be covered under the category of technical testing and analysis services as defined under Section 65(106) of the Finance Act, 1994. However, vide Notification No. 11/2007 ST dated 01.03.2007 and a subsequent Notification No. 25/2012 ST dated 20.06.2012, such services are exempted from Service Tax on the services provided or to be provided by the technical research organization approved to conduct clinical trials by the Drug Controller General of India. On the basis of various contracts of the respondent herein, the Department formed an opinion that respondent are participating in various drug trials in the capacity of trial site, in as such, their activity is not exempted vide the said Notification. Resultantly, Show Cause Notice dated 04.10.2013 was served upon the respondents which was a

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to be strictly followed and according to those guidelines, any person, company or an organization who want to get any new drug molecule clinically examined and tested is the sponsor who has to apply in prescribed format with the Drug Controller General of India in a prescribed format, giving detail of the site, i.e., place / hospital / organization, where the trial will be conducted on the patient along with the name of the investigator and the principal investigator and the guidelines permit the existence of such organizations who manage the whole or some of the process of drug trial for a sponsor to be known as Clinical Research Organization (CRO). 3. It is impressed upon that from the respondent s own documents respondents are mentioned to be the trial site and director thereof is mentioned as the investigator or the principal investigator. Thus, their own documents falsify them to be a CRO. The same has miserably been ignored by the adjudicating authority. The order, therefore, suf

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rties and perused the records. Our considered opinion is as follows: (i) Since it is an admitted fact that the respondents are conducting clinical analysis as can be categorised as technical testing and analysis under Section 65(106) of the Act which is liable to Service Tax under Sub-clause ZZH of Section 65(105) of the Act, the moot question for consideration is as to whether the respondent are entitled for the benefit of Exemption Notification of 01.03.2007 and 20.06.2012. Perusal of both these Notifications makes it a mandate that the exemption is for such technical testing and analysis service as are provided or to be provided by a Clinical Research Organisation approved to clinical trials by the Drug Controller General of India. Thus, it becomes clear that the claimant of exemption of this Notification should be a Clinical Research Organisation. (ii) The CRO is defined in Clinical Practice Guidelines, as an organization to which the sponsor may transfer or delegate one or all of

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ch. It has also been emphasized by the adjudicating authority itself that it is only in its collective form that the Clinical Research Organisation comes into existence. Thus, findings in the order under challenge itself are very much differentiating a CRO than from a trial site. Still, the Commissioner has held the respondent as a CRO despite the apparent fact that as per the mandatory contracts for the purpose to be entered into by the sponsor, the respondents are mentioned as trial sites. Not only this, in addition thereto, the CRO is also named in the contract itself, i.e., J.S. Icon Clinical Research India Ltd. Once two different entities are apparent from the contract itself, distinguishing the respondent to be called as mere trial site with someone else as the CRO and the exemption of the impugned Notifications is available only to the CRO, the Commissioner (Appeals) has wrongly allowed the respondents to avail the said exemption. The order under challenge is, therefore, opined

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2018 (7) TMI 390 – AUTHORITY FOR ADVANCE RULINGS, WEST BENGAL – 2018 (15) G. S. T. L. 94 (A. A. R. – GST) – Classification of “Rakhi” – whether exemption under N/N. 2/2017-Central Tax (Rate) dated 28/06/2017 (1126-FT dated 28/06/2017 of State Tax), is applicable for such manufacture, and if not, the taxability of the same?
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Held that:- “Rakhi” is not an essential part of any Puja or Religious Ceremony to pay obeisance to any deity. Mere inclusion of “Rakhi” in a Puja Thali at the discretion of either the Customer or the Supplier does not make it an integral and essential part of Puja Samagri. Serial number 148 of the Exemption Notification lists the items to be considered as Puja Samagri and “Rakhi” is not listed therein.
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“Rakhi”, therefore, cannot attract NIL rate of duty under Serial No 9(1) of FAQ dated 03.08.2017 (later, Serial No 92(1) of F. No 332/2/2017-TRU issued by the Tax Research Unit, Govt of India, Ministry of Finance, Department of Revenue) – The “Rakhi”s the

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the same as much for its for its designer/decorative/fancy part, as for its symbolic characteristic of a bond of protection.
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Ruling:- The Applicant has to classify the goods “Rakhi” as per its constituent materials in accordance with Rule 3(c) of Rules for Interpretation of the Customs Tariff Act, 1975, as laid down in Explanatory Notes (iv) of Notification No 1/2017-CT(Rate) dated 28.06.2017.
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Rakhi will attract GST in accordance to its classification as stated above.
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Exemption under Notification No. 2/2017-Central Tax (Rate) dated 28/06/2017 is not applicable for “Rakhi”. – ARN No. 11 of 2018 and 08/WBAAR/2018-19 Dated:- 5-7-2018 – VISHWANATH AND PARTHASARATHI DEY MEMBER Applicant s representative heard: Rahul Dhanuka, Legal Representative 1. The Applicant, stated to be a Manufacturer of the item Rakhi , is seeking a Ruling on classification of Rakhi , on whether exemption under Notification No. 2/2017-Central Tax (Rate) dated 28/06/2017 (1126-FT dated 28/06/2017 o

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a; b) The Rakhi s shall be manufactured in-house as well on job-work basis. Most of the people employed in the Rakhi industry belong to economically weaker sections and inter alia include housewives and widows who manufacture Rakhi s to earn a livelihood. Traditionally Rakhi has been considered a handicraft item and the manufacture or making of Rakhi invariably involves skilful pasting or attaching decorative items to threads; c) Rakhi is an ancient festival; d) Traditionally Rakhi used to be made up only of Kalava (i.e. cotton threads of red/orange colour); e) Rakhi was exempt from payment of VAT under several States, as well as from Central Excise duty under the earlier Tax Structure since it was considered as handicraft ; f) The Exemption Notification exempts Kalava (raksha sutra) from payment of GST since it is listed as puja samagri ; g) Reference has been made on FAQ published on CBEC website dated 03.08.2017; h) Reference has been made to Rule 3(b) of the Rules for Interpretatio

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r from the Application whether or not Rakhi s are already being manufactured by them, whether or not craftspeople from economically backward classes are being employed by them or the process undertaken for the manufacture of Rakhi s. However, on being specifically asked the Applicant has stated that till the time of filing the Application for Advance Ruling the manufacturing of Rakhi had not been begun by the unit. However, the Applicants admitted, that the manufacturing process of Rakhi has been started in their unit. Hence, all references in the Application of the Applicant intending to manufacture is being taken up in the spirit of already manufacturing and discussed accordingly. It appears from the Partnership Deed dated 31.03.2008 submitted by the Applicant that M/s M D Mohta has been in existence from 13.04.1987, if not earlier, and Partnership Deed dated 31.03.2008 submitted by the Applicant incorporates M/s M D Mohta Rakhi Pvt Ltd as the third Partner with claim to 50% of the s

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ity of Notifications and Taxability of supplies are to be considered in the context of GST. Any reference to Notifications and Taxability of the earlier Tax regimes are to be considered only insofar as they have relevance in the GST regime. Notification No 32/2017-Central Tax dated 15.09.2017, later amended as Notification No 38/2017-Central Tax dated 13.10.2017, provides a list of articles which are to be considered as handicraft goods for the purpose of GST when made predominantly by hand by the craftsmen even though some machinery may also be used in the process. Rakhi does not feature in this list. Hence, Rakhi cannot be considered as handicraft for the purpose of GST. 6. The Applicant suggests that if Rakhi is not considered to be exempt then it may be classifiable under and taxability determined in accordance to Serial No 224 of Schedule I and Serial No 171 of Schedule II of the Rate Notification. The Applicant, on being specifically asked, has also stated that one of its partner

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of this section, the expression "made up" means: (a) Cut otherwise than into squares or rectangles; (b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets); (c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by other simple means; (d) Cut to size and having undergone a process of drawn thread work; (e) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or (f) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length. Clearly, Rakhi cannot be described as a

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hi ), is the festival which is observed on the last day of the Hindu lunar calendar month of Shraavana, and on this day, sisters of all ages tie a Rakhi , around the wrists of their brothers, traditionally investing the brothers with a share of the responsibility of their potential care. The expression "Raksha Bandhan," Sanskrit, literally, "the bond of protection, obligation, or care," is now principally applied to this ritual. Rakhi , which the Applicant intends to manufacture, is this object which symbolises the bond of protection and is tied round the wrist of the brother. History records variations of this ritual, but whatever the variation the emphasis is to denote the bond between the protector and the person in need of protection. Notable among these variations is the tying of Rakhi s among Muslims and Hindus as a form of protest against the Partition of Bengal in 1905. Leonard Elmherst's memoir Poet and Plowman records that Tagore transformed the religi

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he emphasis was on the feeling of brotherhood and the need to protect the weak by the strong. Traditionally, and in all its variations, it is thus seen that the Rakhi is an object symbolising a sentiment and/or conveying a message. By no stretch of imagination can a Rakhi , or the ritual of Rakhi be linked to religious ceremonies or rituals involving deities. References have been found to Sri Radha tying Rakhi on Shri Krishna. But here again, the reference is to the symbolic gesture of the need of protection. Rakhi , in other words, is not an essential part of any Puja or Religious Ceremony to pay obeisance to any deity. Mere inclusion of Rakhi in a Puja Thali at the discretion of either the Customer or the Supplier does not make it an integral and essential part of Puja Samagri. Serial number 148 of the Exemption Notification lists the items to be considered as Puja Samagri and Rakhi is not listed therein. Rakhi , therefore, cannot attract NIL rate of duty under Serial No 9(1) of FAQ

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ich are being manufactured are not always of Cotton thread. Other elements mentioned are Zari, Nylon and Silk Threads. Even these are not exhaustive. The Applicant may use other forms of material to enable the Rakhi s being tied on the wrist. The Rakhi s which are being manufactured include Decorative Rakhi , Designer Rakhi , & Fancy Rakhi . This again, is not an exhaustive list of the kind of Rakhi s being manufactured. The Applicant may manufacture other variants of Rakhi too. The mention of Glass Beads, Plastic Beads, Coloured Stones, Metal Pendants and Rudraksha also clearly points to the fact that what the Applicant intends to manufacture are not merely Cotton threads in the form of yarn of specifically red and yellow in colours, in other words these rachis are not in the form of Kalava . This is also obvious from the pictures submitted by the Applicant of the Rakhi s that will be manufactured by them. Serial No 92(2) of the TRU Clarification is not applicable to the Rakhi s m

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ce. In the case of Rakhi , the item is supplied by the Applicant, as Decorative/Designer/Fancy/Kids Rakhi and customers are being motivated to buy the Rakhi s due to the specific characteristic which makes the Rakhi Decorative/Designer/Fancy/Kid s and not merely to put round the wrist. 12. The various components which go into the making of Rakhi are innumerable of no fixed or predetermined ratio and both, the variety and the proportion in which they are used do not follow any fixed formula but are at the Manufacturer s will. The resultant products are identifiable as new items, independent in manner and form of its constituent materials, and cannot be stated to be a mere assemblage of its constituent materials. In other words, Rakhi retains its specific identity as a symbol of a bond involving the potential care of the sister by the brother, and not merely a conglomeration of discrete materials, is clearly not classifiable under a single Tariff code. Moreover, under the GST Act the ide

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value of the product. It is also clear from the TRU Clarification that it is a recognised and admitted fact that numerous materials are used in the making of Rakhi and in the absence of any specific Tariff Code a Rakhi can be considered an article of any of these constituent materials. Rule 3(c) of the Interpretation Rules, requires to be resorted to, then, for the classification of Rakhi . Rule 3(c) of the Interpretation Rules, states that When goods cannot be classified by reference to 3(a) [heading most specific] or 3(b) [applicable to mixture, composite goods and goods put up in sets for retail sale] they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration . A typical Rakhi , as evidenced in the pictures submitted by the Applicant of Rakhi s intended to be manufactured by them, will have a i) cord/twine or any material to enable it to be put round the wrist; ii) one or many items made of different materials which

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Rule 3(c), this Rakhi will be classifiable under Chapter 70/71 and will attract GST accordingly. Again, in item number RR-757, the declared constituent materials are metal pendant, stone ring, metal moti, cotton thread and plastic beads falling under Chapter 71 to 81 (depending on the metal), Chapter 70/71 (depending on the nature of the stone), Chapter 52, Chapter 39. Assuming that there are no other constituent materials undeclared in the literature submitted by them, under Rule 3(c) this Rakhi will be classifiable under Chapter 71 to 81 (depending on the metal) and attract GST accordingly. 14. The Applicant states that the intention is to supply Rakhi , including but not limited to, decorative Rakhi , Designer Rakhi , & Fancy Rakhi and these Rakhi s consist of, inter alia, Cotton thread, Zari thread, Silk Thread, Nylon Thread, Glass Beads, Plastic Beads, Coloured Stones, Metal Pendants and Rudraksha. On being asked specifically whether or not the list of materials constituting t

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ependently identifiable item and the materials that go into the making of a Rakhi cannot be held as mere accessories.The judgement in the case of A V Venkateswaran, Collector of Customs, Bombay vs Ramchand Sobhraj Wadhwani And Another [1983 (13) ELT (1327 (SC)] too, is not relevant to the instant case since Rakhi is an independently identifiable item and it is not a case of a general classification gaining precedence over a specific classification. The judgement in the case of A. Nagaraju Bros vs State of Andhra Pradesh [1994 (72) ELT 801 (SC)] again, is not relevant to the instant case since Rakhi is known as such in both, common and commercial parlance and the predominant material that goes into the making of a Rakhi varies at the manufacturer s will. The judgement in the case of Kemrock Industries & Exports Ltd vs Commr of C. Ex, Vadodara [2007 (210) ELT 497 (SC)] held that composite goods are to be classified on the basis of material or component that gives the product its esse

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made up of innumerable materials of no fixed or predetermined ratio, and yet retain its specific identity as a symbol of a bond involving the potential care of the sister by the brother, and not merely an assemblage of discrete materials. Rakhi cannot be termed as a handicraft item under GST under Notification No 32/2017- Central Tax dated 15.09.2017, (later amended as Notification No 38/2017-Central Tax dated 13.10.2017). It is also seen that Rakhi is not purely puja samagri as it is not an essential and integral part of any Puja or Religious Ceremony to pay obeisance to any Hindu deity, and that Rakhi has been historically used to emphasise the bond between Hindus and Muslims. Rakhi , therefore, cannot attract NIL rate of duty under Serial No 92(1) of the TRU Clarification, nor can it be considered exempt in terms of Serial no. 148 of the Exemption Notification since it is not listed therein. With reference to the list of various materials submitted along with the Application for the

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cation and Rakhi is to be classified in terms of Rule 3(c) of the Interpretation Rules and will be leviable to GST accordingly. 17. The case laws referred to by the Applicant have been considered carefully. It is seen that Rakhi is an independently identifiable product and is also known to be so in common and commercial parlance. The multifarious constituents that go into the making of the Rakhi cannot be considered as accessories; the material which provides the essential character to Rakhi is varied and the buyer may also be motivated to purchase the same as much for its for its designer/decorative/fancy part, as for its symbolic characteristic of a bond of protection. In view of the foregoing we rule as under RULING The Applicant has to classify the goods Rakhi as per its constituent materials in accordance with Rule 3(c) of Rules for Interpretation of the Customs Tariff Act, 1975, as laid down in Explanatory Notes (iv) of Notification No 1/2017-CT(Rate) dated 28.06.2017 (Note (v) o

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2018 (7) TMI 627 – MADHYA PRADESH HIGH COURT – 2018 (362) E.L.T. 385 (M. P.) – Competency of officers of Directorate of Revenue Intelligence to adjudicate the SCN which were kept in the call book – Validity of Circular No.276/104/2016-CX.8A dated 3/01/2017 issued by the Central Board of Excise & Customs – SCN issued by DRI – Held that:- For every issue, some or the other case would be pending in High Court or the Hon'ble Supreme Court. The same cannot cause fetter in exercise of quasi judicial or judicial functions of the authorities or lower courts. If merely for this reason the adjudication is kept in call book, there would be grave injustice and the same would be not in public interest. The matters can be kept in call book, if there is specific direction for the same issued in that case by the Superior Courts.
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ar No.276/104/2016-CX.8A dated 3/01/2017 issued by the Central Board of Excise & Customs directing that the show cause notices, adjudication of which was kept in call book pursuant to the earlier Circulars dated 29/06/2016 and 28/12/2016 shall be taken out and be adjudicated in accordance with law. 2. According to the writ petitioner, the earlier Circulars of 2016 which thus stand withdrawn, were on the issue of competency of officers of Directorate of Revenue Intelligence, covered by judgment of Delhi High Court in Mangali Impex Ltd. v. Union of India & Others [2016 (335) ELT 605]. The Department's SLP No.20453/2016 is pending before the Apex Court, wherein in while issuing notice, operation of the said judgment is stayed on 1.08.2016. The petitioner submits that even if a judgment is stayed, the stay shall operate qua the parties thereto, and not qua all others. Thus, irrespective of the stay, the judgment of Delhi High Court is still in force qua all others and thus the

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ate of revenue Intelligence is pending for final order before the Apex Court, to avoid adjudication, the petitioner has challenged the Circular dated 3/01/2017. For every issue, some or the other case would be pending in High Court or the Hon'ble Supreme Court. The same cannot cause fetter in exercise of quasi judicial or judicial functions of the authorities or lower courts. If merely for this reason the adjudication is kept in call book, there would be grave injustice and the same would be not in public interest. The matters can be kept in call book, if there is specific direction for the same issued in that case by the Superior Courts. 5. It is not the case of the petitioner that the SLP in Mangilal Impex Ltd.(supra) is already listed for final hearing and, therefore, the adjudicating authority shall await the decisions of the Hon'ble Supreme Court. The Circular do not contain any infirmity. The Circular is binding upon the authorities and they cannot act to the contrary as

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rs, have been placed in call book by various adjudicating authorities all over India is not supported by any favourable data. In any event, the show cause notices which were kept in the Call Book, in view of the said Board instructions will have to be taken out of the Call Book immediately and the adjudication of such show cause notices are to be proceeded in accordance with law. It would cause grave harm to the petitioner for noncompliance of instructions issued by the Board. Therefore, if adjudicating authority is proceeding for adjudication, we find no error in the same and thus on the contrary the adjudicating authority is bound to do the same in view of the said binding circular. Therefore it is clear that so far as the department is concerned, whatever action it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time. The challenge of the circular, therefore, fails for lack of any merit. 7. We also find no basis on the ap

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oducts Pvt. Ltd. v. Commissioner [2012(281) E.L.T.193(Del.), Basudev Garg v. Commissioner [2013(294) E.L.T. 353(Del.), CCE, Meerut-1 v. Parmarth Iron Pvt. Ltd. [2010 (260) E.L.T. 514 (All.) and Swiber Offshore Constructions Pvt. Ltd.(Supra) on the applicability of the provisions of Section 138 B of Customs Act, 1962/Section 9D of Central Excise Act, 1944 and also on the order of examination as per the judgment of the Apex Court in the case of Sukhwant Singh v. State of Punujab(supra). 8. The apprehension of the petitioner that the adjudicating authority would pass a final order without following the said mandatory, statutory and legal requirements and the petitioner would then be forced to hardship of payment of pre-deposit which is pre-requisite for availing appellate remedies, is also unfounded. Had the petitioner prima facie shown any material for such apprehension,we would have issued notice to ensure compliance of statutory requirements or if the final order is passed by the Adjud

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2018 (7) TMI 1097 – MADHYA PRADESH HIGH COURT – 2018 (15) G. S. T. L. 310 (M. P.) – Non-filing of part B of E-way bill – Inter and Intra State Supply of Goods or Services – Rule 138 and Section 68 of Central Goods and Service Tax Act, 2017 and M. P. Goods and Service Tax Act, 2017 – case of petitioner is that due to technical error, Part-B of the e-way bill cannot be updated – demand of GST with equal amount of penalty – petitioner placed reliance on the Division Bench decision of Allahabad High Court in the case of VSL Alloys (India) Pvt. Ltd. vs. State of UP & others [2018 (5) TMI 455 – ALLAHABAD HIGH COURT] and submitted that in identical circumstances, the Division Bench found that there was no ill intention at the hands of the petitioner nor the petitioner was supposed to fill up Part-B giving all the details including the vehicle number before the goods are loaded in the vehicle, which is meant for transportation to the same to its end destination.
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Article 226 of the Constitution of India, the petitioner is praying for quashment of order dated 30.05.2018 passed by the respondent No.2 – GST Appellate Authority & Joint Commissioner of State Tax, Indore and order dated 04.05.2018 passed by the respondent No.3 – Assistant Commissioner of State Tax, Indore wherein demand and penalty imposed by the respondent No.3 has been upheld and directed the petitioner to pay the amount of ₹ 1,32,13,683/-. Relevant part of the order dated 04.05.2018 passed by the respondent No.3 reads as under :- 2. This order has been challenged by filing an appeal before the respondent No.2. The respondent No.2 vide impugned order dated 30.05.2018 came to the conclusion that the petitioner has violated the provisions of Section 68 r/w Rule 138 of the Central Goods and Service Tax Act, 2017 and M. P. Goods and Service Tax Act, 2017 and dismissed the appeal. 3. Facts of the case are that the petitioner is a Private Limited company engaged in the business

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by the proper officer at any place, he may require the person to charge of the said conveyance to produce the documents prescribed under the said sub-section and devices for verification, and the said person shall be liable to produce the documents and devices and also allow the inspection of goods. From perusal of the aforesaid provision, it is clear that the government is empowered in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed. 6. In the light of the power conferred under Section 68, the vehicle of the petitioner company was checked on 27.04.2018. On enquiry, the driver (person incharge of a conveyance) of the vehicle bearing registration No.HR-47-C-2647 produced the bill and challan, but eway bill on enquiry, it was found that the petitioner transporter company who was transporting the goods from Pune(Wadki), Maharashtra to Noida via Indore and othe

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de Product Description Quantity Taxable Amount Rs. Tax Rate (C+S+I+Cess) 30049086 10976.00 2226598. 00 0+0+12+0 Net Taxable Amount : 2226598.00 CGST Amount ₹ 0.00 SGST Amount ₹ 0.00 IGST Amount ₹ 267191.52 Cess Amount ₹ 0.00 4. Transportation Details 36AADCG2096A1ZY & GATI-KINTETSU EXPRESS PRIVATE Transporter ID & Name : LIMITED Transporter Doc. No. & Date : 229076616 & 25/04/2018 5. Vehicle Details Mode Vehicle/Trans Doc No. & Dt. From Entered Date Entered By CEWB No. (if any) Road MH14EM1313 Pune 25/04/2018 07.49 PM 36AADCG2 096A12Y 1410467481 Road MH14EM1313 Bhursungi 25/04/2018 07.43 PM 36AADCG2 096A12Y Road MH04CG8538 & 229076818 & 25/04/2018 Wadki 25/04/2018 03.26 PM 27AAECA9 456D1ZM 8. In the light of Section 164 of the M. P. Goods and Service Tax Act, the State Government has framed the M. P. Goods and Service Tax Rules, 2017 which were further amended vide notification dated 07.03.2017 and the amendment came into force w.e.f.

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registered. The petitioner submitted its reply by stating that due to technical error, Part-B of the e-way bill cannot be updated. 12. Learned adjudicating Authority considering the fact that the petitioner has failed in performing the statutory provisions, penalty was imposed, which was assailed by filing an appeal and the same was also dismissed by the respondent No.2. 13. The stand of the respondents is that the petitioner company is a leading transportation company and the explanation submitted by him that due to technical error, Part-B of the e-way bill cannot be updated has not been accepted by the authority because the portal of the goods or service tax provides for an option of grievance in case the petitioner was having any problem in updating the Part-B of the e-way bill. No such grievance has been raised by the petitioner and he has never given any written grievance so that the grievance with regard to the updating the technical error could not have been considered. 14. It

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ncluding transportation charges), during Inter and Intra State of Supply of Goods or Services from Wadki, Maharashtra to Noida were accompanied by e-way bill The respondent No.2 has directed for physical verification. On physical verification, respondent No.3 has found the alleged irregularity that Part-B of the e-way bill was incomplete and, therefore, he has detained the vehicle as well as the goods by passing an order under Section 129 (1) of the Act. by which he assessed the value of the goods. 18. Consequently, a notice under Section 129(3) of the Act has been issued by which he has directed the petitioner to pay the same towards the tax liability as well as the same amount towards penalty. 19. On 04.05.2018, an order was passed and being aggrieved by the aforesaid order, he filed an appeal, which was also dismissed and, thereafter, instant writ petition has been filed. 20. The contention of the petitioner before the learned Authority was that there was no intention on the part of

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e vehicle, which is meant for transportation to the same to its end destination. 22. In the case of VSL Alloys (India) Pvt. Ltd. (supra), the distance was within 50 kilometeres and, therefore, the petitioner therein was not under an obligation to fill the Part-B of the e-way bill and the Division Bench of the Allahabad High Court has rightly quashed the order. 23. In the present case, the distance was more than 1200-1300 kilometers and it is mandatory for the petitioner to file the Part-B of the e-way bill giving all the details including the vehicle number before the goods are loaded in the vehicle. Thus, he admittedly violated the provisions of the Rules and Act of 2017 and, learned Authority rightly imposed the penalty and directed the petitioner to pay the same. The order is not in violation of any of the provisions of the Rules and Act of 2017. The writ petition filed by the petitioner has no merit and is accordingly, dismissed. – Case laws – Decisions – Judgements – Orders – Ta

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GST – States – 38/1/2017-Fin(R&C)(63) – Dated:- 5-7-2018 – GOVERNMENT OF GOA Department of Finance Revenue and Control Division – Notification 38/1/2017-Fin(R&C)(63) In exercise of the powers conferred by section 164 of the Goa Goods and Services Tax Act, 2017 (Goa Act 4 of 2017), the Government of Goa hereby makes the following rules further to amend the Goa Goods and Services Tax Rules, 2017, namely:- (1) These rules may be called the Goa Goods and Services Tax (Sixth Amendment) Rules, 2018. (2) Save as otherwise provided in these rules, they shall deemed to have come into force from 19th day of June, 2018. 2. In the Goa Goods and Services Tax Rules, 2017,- (i) in rule 58, after sub-rule (1), the following sub-rule shall be inserted,

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owing proviso shall be inserted, namely:- Provided that where the circumstances so warrant, the Commissioner, or any other officer authorised by him, may, on sufficient cause being shown, extend the time for recording of the final report in Part B of FORM EWB-03, for a further period not exceeding three days. Explanation.- The period of twenty four hours or, as the case may be, three days shall be counted from the midnight of the date on which the vehicle was intercepted. ; (iii) in rule 142, in sub-rule (5), after the words and figures of section 76 , the words and figures or section 129 or section 130 shall be inserted; (iv) after FORM GST ENR-01, the following FORM shall be inserted, namely:- FORM GST ENR-02 [See Rule 58(1A)] Application

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2018 (7) TMI 1217 – CESTAT MUMBAI – TMI – Refund of Service Tax paid – export of output service – Rule 5 of the CCR 2004 read with N/N. 27/2012-C.E.(N.T.) dated 18.6.2012 – denial of refund on account of nexus – Held that:- The fact is not under dispute that the appellant provides the entire output services to its overseas clients and none of the output services were provided to the clients within the country. Thus, it cannot be said that the input services, on which refund benefit has been sought, were not utilized for providing the exported output service.
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The amended provisions of Rule 5 of the rules have also been clarified by the Tax Research Unit of Department of Revenue vide Circular dated 16.3.2012. It has been stated therein that the nexus between the input service used in export of service should not be insisted upon and the benefit of refund should be granted on the basis of ratio of export turnover to total turnover demonstrated by the assessee.
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ubject matter of present disputes. The appellant had filed refund claim in terms of Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No.27/2012-C.E.(N.T.) dated 18.6.2012. The refund applications filed by the appellant were denied by the original authority on the ground that the input services on which the refund benefit been sought, have no nexus with the output service exported by the appellant. 3. The learned Advocate appearing for the appellant submits that the output services provided by the appellant were entirely exported and no services were provided by it to the service recipients located within the country. Thus, he submits that since the disputed services were used in entirety for providing output service exported by the appellant, the refund of service tax paid on the disputed services should be available under Rule 5 of the Rules read with Notification dated 18.6.2012. He also referred to the Circular dated 16.3.2012 issued by the Tax Research Unit of Departm

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ght, were not utilized for providing the exported output service. While presenting the Union Budget for the year 2012, the Finance Minister in the floor of Parliament had clarified the legislative intent in granting refund of service tax and for that purpose, had conveyed that voluminous documentation cannot be insisted upon for verification by the Department. The relevant paragraph in the Budget speech is extracted herein below:- 173. While the problems faced by exporters of goods with respect to taxes on input services was addressed earlier this year, disbursement of taxes that go into the export of services has been an irritant for long. I now announce a new scheme that will simplify refunds without resorting to voluminous documentation or verification. As an added incentive, such refunds will also be admissible for taxes on taxable services that have been exempted. 7. Further, I also find that the amended provisions of Rule 5 of the rules have also been clarified by the Tax Researc

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GST – States – F.A-3-20-2018-1-V-(58) – Dated:- 5-7-2018 – Commercial Tax Department Mantralaya, Vallabh Bhawan, Bhopal Bhopal, the 5th July 2018 No. F.A-3-20-2018-1-V-(58).-In exercise of the powers conferred by Section 164 of the Madhya Pradesh Goods and Services Tax Act, 2017 (19 of 2017), the State Government hereby makes the following rules further to amend the Madhya Pradesh Goods and Services Tax Rules, 2017, namely : AMENDMENTS These amendments shall be deemed to have come into force with effect from the 19th day of June, 2018. 2. In the Madhya Pradesh Goods and Services Tax Rules, 2017,- (xii) in rule 58, after sub-rule (1), the following sub-rule shall be inserted, namely :- (1A) For the purposes of Chapter XVI of these rules, a

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the circumstances so warrant, the Commissioner, or any other officer authorised by him, may, on sufficient cause being shown, extend the time for recording of the final report in Part B of FORM EWB-03, for a further period not exceeding three days. Explanation.- The period of twenty four hours or, as the case may be, three days shall be counted from the midnight of the date on which the vehicle was intercepted. ; (xiv) in rule 142, in sub-rule (5), after the words and figures of section 76 , the words and figures or section 129 or section 130 shall be inserted ; (xv) after FORM GST ENR-01, the following FORM shall be inserted, namely :- FORM GST ENR-02 [See Rule 58(1A)] Application for obtaining unique common enrolment number [Only for tra

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2018 (8) TMI 617 – CESTAT MUMBAI – TMI – Payment/adjustment from the cenvat account – Held that:- The report dated 4.7.2018 has not properly prepared and captured the actual cenvat credit taken and utilized for payment of service tax on the disputed taxable service – the matter should go back to the original authority for proper computation of the service tax liability and for ascertaining the fact whether, the adjudged amount, in question, had already been deposited by the appellant, as contended by the learned Advocate – appeal allowed by way of remand. – APPEAL No. ST/88122/2017 – A/86957/2018 – Dated:- 5-7-2018 – Mr. S.K. Mohanty, Member (Judicial) Shri Pramod Khera, Advocate, for appellant Shri Dilip Shinde, Assistant Commissioner (AR

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ment of service tax on the taxable service of renting of immovable property. He submits that such payment/adjustment from the cenvat account is not proper and justified. 3. Considering the submissions of the learned AR that the report dated 4.7.2018 has not properly prepared and captured the actual cenvat credit taken and utilized for payment of service tax on the disputed taxable service, I am of the view that the matter should go back to the original authority for proper computation of the service tax liability and for ascertaining the fact whether, the adjudged amount, in question, had already been deposited by the appellant, as contended by the learned Advocate. 4. Therefore, after setting aside the impugned order, I remand the matter t

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M/s. SUPER PLAST POLY PRODUCTS INDIA PRIVATE LIMITED Versus STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM, THE COMMERCIAL TAX OFFICER-I, STATE GOODS AND SERVICES TAX DEPARTMENT, THRISSURGST COUNCIL REPRESENTED BY ITS CHAIRPERSON, NEW DELHI, NEW DELHI, THE NODAL OFFICER FOR STATE GST, GOODS AND SERVICES TAX DEPARTMENT, KARAMANA, THE NODAL OFFICER FOR CENTRAL GST DEPARTMENT, THIRUVANANTHAPURAM, THE COMMISSIONER, GOODS AND SERVICES TAX DEPARTMENT DEPARTMENT, THRIUVANANTHAPURAM – 2018 (8) TMI 937 – KERALA HIGH COURT – 2018 (18) G. S. T. L. 221 (Ker.) – Revision of return – petitioner failed to include the purchased item in the return submitted by it, for December 2016 – Held that:- When a dealer wants to revise a return, the Assessing Authority, as the Act mandates, must accept it – the 2nd respondent is directed to permit the petitioner to revise the returns for December 2016 – petition disposed off. – W. P. (C). No.21257 of 2018 Dated:- 5-7-2018 – MR. D

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Thus alleging, the petitioner filed this writ petition. It sought a direction to the respondents to permit it to revise the return for December 2016: to include the purchase of the diesel generator. 4. The respondents, however, apprehend that if the petitioner could include the purchases in the returns for December 2016, it would automatically claim input credit on the tax it paid when it had purchased generator. And it may seek to use that input credit when it discharges tax on the product sold by it. 5. Heard the learned counsel for the petitioner as also the learned Government Pleader. 6. I may, to begin with, observe that a Division Bench of this Court dealt with the same issue in The Commercial Tax Officer v. C. R. Varghese. WA No.2541 of 2018 and connected cases, judgment, dt.06.06.2018 It has held as follows: 12. Under Section 21(2), the dealer, on detecting any omission or mistake in the monthly return, can file a revised return rectifying the same within two months from the l

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iso to the aforesaid provision also prohibits any revision by a dealer against whom penal action is initiated. Section 79B is a non-obstante clause, by which also there is a prohibition in filing a revised return when instances of tax evasion has been detected and proceedings are initiated against such evasion. 7. After elaborately discussing the pros and cons of letting the dealer file revised returns, C. R. Varghese has held that when a dealer wants to revise a return, the Assessing Authority, as the Act mandates, must accept it. The decision also asserts that there is no prohibition against the dealer s seeking to revise a return after the time specified if no penal proceedings are pending. It then concludes that the Assessing Officer has the authority to examine the dealer s claims even beyond the period and decide the question in accordance with well-established principles of law and ensure that the attempt is not to cover up or get over a penal provision or avoid the penal conseq

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2018 (8) TMI 1382 – CESTAT MUMBAI – TMI – Abatement claim – period of closure under Rule 96ZP(2) of erstwhile Central Excise Rules, 1944 – rejection on the ground that since the appellant has exercised option to pay lump sum duty under Rule 96ZP(3) of the said Rules – Held that:- Learned C.A. for the appellant could not produce any order whereby, the operation of the judgment of 3 members Bench in the case of Supreme Steels and General Mills [2001 (10) TMI 90 – SUPREME COURT OF INDIA] has been stayed – In absence of any stay, the ratio laid down thereunder be considered as binding precedent.
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Appeal dismissed – decided against appellant. – Appeal No. E/86209/18 – A/87037/2018 – Dated:- 5-7-2018 – DR. D.M. MISRA, MEMBER (JUDICIAL) Shri Jayesh P Doshi, C.A. for Appellant Shri Sanjay Hasija, Supdt. (AR) for Respondent ORDER Per: Dr. D.M. Misra Heard both sides. 2. This is an appeal filed against Order-in-Original No. NSK/CGST-CS/002/CPM/13/2017-18 dated 29.12.2017 passed by the Comm

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le Supreme Court but recently the issue has been referred by two members Bench of the Hon'ble Supreme Court for constitution of the Larger Bench in the case of Bhuwalka Steel Industries Ltd. Vs. Union of India – 2017 (348) ELT 393 (SC). Therefore, the matter should not be decided and be kept in abeyance. However, he submits that no stay has been granted by the Hon'ble Supreme Court against the earlier judgment of the three members Bench. 5. Per contra learned AR vehemently argued that this Tribunal has decided the issue. He further submits that all these issues have been considered by the jurisdictional High Court in the case of Rajuri Steels Pvt. Ltd. – 2008 (225) ELT 189 (Bom), wherein it has been held that once the assessee opted to discharge duty under Rule 96ZP(3) of the erstwhile Central Excise Rules, 1944, he cannot in turn ask for abatement under Rule 96ZP(2) of the Central Excise Rules, 1944. Further, he submits that in absence of stay from the Supreme Court, the prece

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oduction capacity determined, are required to pay the duty at the rate of ₹ 300/- per tonne, as against ₹ 400/- per tonne in the cases covered by sub-rule (1) of Rule 96. Therefore, if the manufacturer desires to enjoy the benefit of the scheme under Rule 96 ZP(3) of payment of annual duty at a lower rate at ₹ 300/- per tonne and by payment in twelve monthly instalments payable before 10th of every calendar month, the condition is that he shall not have benefit of proviso to sub-section (3) as also sub section (4) of Section 3, which we have already reproduced hereinabove. If the proviso to sub-section (3) is not available, the manufacturer-enjoying benefit of payment by the procedure prescribed under Rule 96-ZP(3) shall have no remission, merely because production had come to halt for certain period, although exceeding seven days. 6. So far as reliance placed by Advocate Shri Chillarge on proviso to sub-section (2) is concerned, on comparing the text of sub-section (

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2018 (9) TMI 85 – CESTAT NEW DELHI – TMI – 100% EOU – Clandestine manufacture and removal – suppression of production – copper ingots – Department has entertained a doubt that appellants are under-reporting the recovery of copper from copper scrap procured by them and by indulging into lower recovery, they are suppressing the manufacturing and clearance of copper ingots and thereby evading central excise duty – Held that:- For establishing the clandestine manufacture and clearance, the department has not made any sincere efforts to establish that appellant-assessee have manufactured and clandestinely cleared the copper ingots over and above what was declared by them in their statutory records. The law is fully settled that in every case of alleged clandestine manufacture and clearance, the onus is on the revenue to prove what it alleges with positive and concrete evidences – the average recovery of copper from five consignments of copper scrap cannot form concrete evidence to demand d

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irm and under Rule 26 of Central Excise Rules on the partners does not arise and thus, same are also set aside – appeal allowed – decided in favor of appellant. – Excise Appeal No. 51695 – 51697 of 2017 – A/52626-52628/2018-EX[DB] – Dated:- 5-7-2018 – Mr. Anil Choudhary, Member (Judicial) And Mr. C L Mahar, Member (Technical) Shri Prem Ranjan, Advocate for the Appellants Ms Tamana Aalam, AR for the Respondent ORDER Per: C L Mahar: The brief facts of the matter are that the appellants are a 100% EOU engaged in manufacture of copper ingots from various kinds of copper scraps such as mixed copper cable scrap, mixed copper scrap, copper scrap, MS scrap, rubber picuks, etc. The appellants, after segregation of the scraps retrieves copper from the same and the copper scrap so obtained is melted and from it copper ingots are manufactured. The department has entertained a doubt that appellants are under-reporting the recovery of copper from copper scrap procured by them and by indulging into l

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med and equal amount of penalty on the appellant was imposed under Section 11AC. Personal penalty of ₹ 10 lakh was imposed on Shri Sanwar Mai Goyal, partner of the appellant. 3. Against the above mentioned order-in-original, the appellant in his first round of litigation had come before this Tribunal wherein vide Final Order No. 55292 -55294/2016 dated 16.11.2016, the Tribunal has remanded the case for denovo adjudication with the following directions:- 7. In the totality of the facts and circumstances of the case, we are of the view that in the instant case, no comparative study of like manufacturing units was considered by the department. Similarly, the appellant to support their contention has not brought on record any such studies pertaining to the yield from the consignments of the scrap. A comparative study of like factories on this subject matter is required to be considered for coming to the right decision. Hence, we set aside the impugned order and remand the matter back

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en from the impugned order-in-original that no such comparative study as ordered by this Tribunal has been undertaken before re-adjudication of the matter. The adjudicating authority has held that they are not in a position to find any like units or factories working in their jurisdiction where the comparative study can be made. It has also been mentioned in the impugned order that after 13 years, there is no data available, therefore, no comparative duty can be carried out at this stage. It has also been mentioned that – 19.2 ……..Any comparative study of Industries has to be done in relevance to time period involved. After 13 years there is no data available, therefore, no comparative study can be carried out at this stage. An apple can be compared with an apple and orange can be compared with orange but an apple cannot be compared with orange. Besides, in this case, personal hearing was held on 18.5.2017 but as on date the assessee has also not submitted any comparative

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s. It has further been contended that the Central Excise Officers supervised the activities of segregation of copper, MS scrap, rubber picuks, dust and other metals (viz. lead aluminous etc. for the recovery of copper scrap, from mixed copper cable scrap / mixed copper scrap / copper scrap in respect of 16 consignments weighing 300.825 MT imported vide 5 Bills of entries from 10.9.2004 to 8.11.2004. The Central Excise officers also examined the raw material issue slips and plant segregation challan which revealed that average copper recovery from mixed copper cable scrap was 31.8% for the said 5 Bills of Entry. 7. We have heard the learned DR who has reiterated the findings given in the order-in-original. 8. We have heard the rival contentions. We are of the view that the while asking for the comparative study, this Tribunal had expected that the Commissioner would not confine himself to his own jurisdiction, he could have done the exercise of taking the relevant data of copper recover

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ed by them in their statutory records. The law is fully settled that in every case of alleged clandestine manufacture and clearance, the onus is on the revenue to prove what it alleges with positive and concrete evidences. We find that average recovery of copper from five consignments of copper scrap cannot form concrete evidence to demand duty over and above the declared quantities of clearances of copper ingots. The department should have gathered some more precise evidences to prove unrecorded manufacture of copper ingots and sale of same. We find that they have not even made any efforts in this direction. We note that since a huge quantity of copper ingots cannot manufactured and sold without leaving some traces of evidences but no efforts have been made to prove the same. 10. If there were excess sale of copper ingots other than what is provided in the statutory records of the appellant-assessee then some investigations should have been done to prove it but we find the department

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cooperation of the American Zinc Institute; and the Scrap Specifications Circular issued by Institute of Scrap Recycling Industries, Inc. saying that the conclusions mentioned in the show cause notice and in the order-in-original confirming the suppressed production and duty is not correct, considering the varieties of zinc scrap like Saves, Scabs, Scribe and so on used by the appellant. 6.1 Further the department has not gone beyond the approximation of yield which they have shown as 70 to 84% in col. 3 of Annexure-A attached to the show cause notice and average yield overall had been shown as 77.60% which has been made the basis for issuance of the show cause notice (SCN) as well as for confirming the duty of Central Excise by the impugned order dated 19-5-2009. 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

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on as 77.6% and one statement of Shri Agarwal, Director of the appellant company cannot be called a prudent conclusion of the production estimate. 6.3 Consequently, we are of the considered view that the department has not discharged its burden of conclusively proving the case of suppressed production and clandestine clearance by the appellants. In this regard we seek support from Hon ble Allahabad High Court s decision in the case of Continental Cement Company v. Union of India – 2014 (309) E.L.T. 411 (All.) and Supreme Court s decision in the case of Oudh Sugar Mills Ltd. v. Union of India – 1978 (2) E.L.T. (J172) (S.C.) and CESTAT s in the case of Punalur Paper Mills Ltd. v. CCE – Vide Final Order Nos. 996-997/2008, dated 26-8-2008 [2009 (244) E.L.T. 204 (Tribunal)]. The Hon ble High Court in 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 thi

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GST – States – Trade Notice No. 08/2018-19 – Dated:- 5-7-2018 – 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. 08/2018-19 Dated 05.07.2018 Sub: Clarification of certain issues under GST-Reg. Kind attention of all the members of Trade/Industry/Trade Associations/Chambers of Commerce and Industry/RAC and all others concerned is invited to Circular No. 47/21/2018-GST issued under F. No. CBEC-20/16/03/2017-GST dated 08.06.2018 by the commissioner GST, central Board of Indirect Taxes and Customs, GST Policy Wing, New Delhi on the above subject matter which is as under; Sl.No. Issue Clarification 1. Whether moulds and dies owned by Original Equipment Manufacturers (OEM) that are sent free of cost (FOC) to a component manufacturer is leviable to tax and whether OEMs are required to reverse input tax credit in this case? 1.1 Moulds and dies owned by the original equipme

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t manufacturer was for supply of components made by using the moulds/dies belonging to the component manufacturer, but the same have been supplied by the OEM to the component manufacturer on FOC basis, the amortised cost of such moulds/dies shall be added to the value of the components. In such cases, the OEM will be required to reverse the credit availed on such moulds/ dies, as the same will not be considered to be provided by OEM to the component manufacturer in the course or furtherance of the former's business. 2. How is servicing of cars involving both supply of goods (spare parts) and services (labour), where the value of goods and services are shown separately, to be treated under GST? 2.1 The taxability of supply would have to be determined on a case to case basis looking at the facts and circumstances of each case. 2.2 Where a supply involves supply of both goods and services and the value of such goods and services supplied are shown separately, the goods and services wo

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the purpose of auction of tea, coffee, rubber etc., or the principal and the auctioneer for the purpose of supply of tea through a private treaty, are required to maintain the books of accounts relating to each and every place of business in that place itself in terms of the first proviso to sub-section (1) of section 35 of the CGST Act. However, in case difficulties are faced in maintaining the books of accounts, it is clarified that they may maintain the books of accounts relating to the additional place(s) of business at their principal place of business instead of such additional place(s). (c) The principal and the auctioneer for the purpose of auction of tea, coffee, rubber etc., or the principal and the auctioneer for the purpose of supply of tea through a private treaty, shall Intimate their Jurisdictional officer. In writing about the maintenance of books of accounts relating to the additional place(s) of business at their principal place of business. 3.2 It Is further clarifie

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Goods and Services Tax – Started By: – KVRAVI RANGARAAJAN – Dated:- 4-7-2018 Last Replied Date:- 5-7-2018 – IS SPONSORSHIP BY A CORPORATE FOR A PARTICULAR EVENT, TO THE EVENT MANAGEMENT ORGANIZATION (SAY, A SOCIETY OR TRUST REGISTERED UNDER GST) IS ELIGIBLE FOR RCM ? – Reply By KASTURI SETHI – The Reply = Notification No.13/17-C.T.(Rate) dated 28.6.17 Sl. No. Category of Supply of Services Supplier of service Recipient of Service 4 Services provided by way of sponsorship to any body corporate or partnership firm. Any person Any body corporate or partnership firm located in the taxable territory. – Reply By YAGAY and SUN – The Reply = We do endorse the view of Kasturi Sir. – Reply By KVRAVI RANGARAAJAN – The Reply = is any person means only

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