Author: admin_gst

GIST OF RECENT PRONOUNCEMENTS ON GST (PART-XIV)
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 18-7-2018

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

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

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

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

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Key 30 suggestions on Proposed Amendments in the GST Law
By: – Bimal jain
Goods and Services Tax – GST
Dated:- 18-7-2018

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

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nt Circular No. 47/21/2018 – GST dated 08.06.2018 wherein while discussing servicing of car issue, it was clarified that where a supply involves supply of both goods and services, values of which are shown separately, the goods and services would be liable to tax at their respective rates. Hence, it is suggested that the concept of composite and mixed supply should be dealt and clarified as legislator intended while framing the section 8 of the CGST Act and should be more emphasized and explained by way of an example in the respective section of the CGST Ac and dominant/ principal supply concept would be determining factor for arriving at the composite supply irrespective of the fact of portion of material & services involved in the contract.
* Clarifying the meaning of term 'immovable property' under Para 6(a) of Schedule II – Meaning of term 'immovable property' must be clarified to avoid disputes whether particular activity is 'works contract' or not.
II Schedule III
The scope o

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

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

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true sense.
V Input Tax Credit – No interest on reversal of ITC for non-payment to supplier
It is proposed to delete interest applicability when GST ITC is reversed for non-payment of invoice amount after 6 months from date of invoice
Suggestion(s):
* Retrospective effect – This provision should be made applicable retrospectively from 01.07.2017 and payment of interest already made in intervening period should be refunded/ reinstated.
VI Input Tax Credit – Blocked credit
It is proposed to prune down blocked credit list in Section 17(5) of the CGST Act. ITC shall be available in case of motor vehicles having approved capacity of not more than 13 persons (including the driver) only in case it is used for specified purposes. It is also proposed that ITC in respect of food and beverages, health services, renting or hiring of motor vehicles, vessels and aircraft, travel benefits to employees etc., can be availed where the provision of such goods or services is obligatory for an emplo

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ar pharmaceuticals/ medicinal industries where medicines cannot be sold without providing test samples. Here, the intention of the registered person is to promote their business i.e. it is a promotional or advertising activity. The company itself understand the same and such advertising cost is generally taken into account while finalizing pricing of other items manufactured. Hence, denial of credit on goods supplied as free samples is not justified.
* Clarification that term 'gift' shall not include promotional items – It may be clarified that supply of promotional items along with supply of goods as a combo supply (undertaken as a part of business promotional activity), shall not be covered under the ambit of 'gift' for reversal of ITC.
* Allow ITC on 'gifts' when tax is paid on outward supply – In terms of Para 2 of Schedule I, supply of goods and services between related persons, shall be treated as supply even if made without consideration. However, gifts not exceeding INR 50,

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ept of seamless flow of credit.
* Any other civil structure not to be excluded from Plant and machinery – Explanation in Section 17 for the purposes of Chapter V (Input Tax Credit) and Chapter VI (Registration) provides that the 'Plant and Machinery' means apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes –
* land, building or any other civil structures;
* telecommunication towers; and
* pipelines laid outside the factory premises
It is therefore suggested that the words “other civil structures” be removed from the said Explanation. Inclusion of the term “Other civil structures” may lead to numerous disputes on the eligibility of credit on various plant and machineries as various plant and machineries require civil works to support their operation.
* Pipe line used outside the factory should be covered un

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(78) of the CGST Act]. Like, supply of five specified petroleum products and alcoholic liquor for human consumption may be termed as non-taxable supply. Then, what constitutes non-GST supply? Whether Schedule III items are being taken as non-GST supply? Clarity in this regard is required.
* Clarification on meaning of 'non-taxable supply' – A concrete list of activities constituting non-taxable supplies in GST be provided to avoid any confusion as to its inclusion in aggregate turnover and reversal of common credit.
VIII Registration
It is proposed to insert the provisions of separate registration for multiple units in an SEZ.
Suggestion: Word 'shall' be replaced with 'may' – It should not be made mandatory for the existing SEZ units which is having a single registration if located in the same SEZ. This will create confusion and additional work for the existing units. This should be an optional facility only.
Further, the proposed amendment in Section 25(2) of the CGST Act allo

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posed Section 43A makes supplier and the recipient jointly and severally liable to pay tax or to reverse the input tax credit availed against such tax, for which the details have been furnished by the supplier but the return in respect thereof has not been furnished and tax has not been paid.
It is advisable that the supplier shall be made primarily responsible to pay taxes and the recipient shall not be made liable to reverse ITC availed against such taxes already paid by the recipient to the supplier. Only on failure of recovery of taxes from supplier under exceptional circumstances, as affirmed by the GST Council in their 27th GST Council meeting, the recipient could be approached for discharge of liability or reversal of ITC, as the case may be. In this regard, strict safeguards must be ensured so that GST authorities cannot deny ITC if the supplier has not paid the taxes as a first recourse. Further, appropriate provisions must be inserted/ amended in the GST ITC provisions also

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bility shall be adjusted in such manner as may be prescribed, should be done away as there are lot many situation viz. quantity discounts/ trade discounts, etc., when DN/CN to be issued nearly at the end of next FY, following the end of relevant financial year in which such supply was made
* Issuance of DN/CN without GST may also be allowed as an option to deal with financial adjustments wherein no adjustment of the tax liability is required in the hands of the supplier and corresponding reversal of ITC in the hands of recipient.
XI GST Refund
Amendments are proposed under Section 54(3) of the CGST Act to file refund claim for the unutilized ITC on Inputs & Input Services by due date for furnishing of returns under Section 39 for the period for which the claim for refund of ITC arises, which is presently the end of the financial year.
Suggestion(s):
* Facility on GSTN portal should be enabled to allow monthly and/ or quarterly refund – As of now Form RFD – 01A allows only monthl

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ount to be deposited to file appeal from the appellate authority to appellate tribunal is 20% of the disputed tax amount along with the amount deposited u/s 107(6) subject to maximum of ₹ 50 crores.
Suggestion(s):
* Maximum ceiling should be 10 crores – Under Excise and Service tax, pre-deposit @ 7.5% of tax in dispute at first level and 2.5% at second level was applicable subject to maximum of ₹ 10 Crores. Keeping such high pre-deposit amount of 10%/20% with maximum ceiling as high as ₹ 25 crores/ 50 crores will cause undue hardship on innocent assesses having genuine case and not easing business for SME/ MSME Sectors.
It is suggested that, pre-deposit amount under GST also should be 7.5% at first level of appeal and 2.5% at second level, totalling together 10% of disputed tax amount subject to maximum of ₹ 10 Crores.
XIII Recovery of Tax
It is proposed to provide that recovery may be made from distinct persons present in different States / UTs in order t

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f the enactment without interest or penalty implication.
Other changes to be considered:
I Definition of 'composite supply'
Section 2(30) of the CGST Act defines Composite supply as a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply.
Suggestion(s):
* Clarification as to separate consideration – It is suggested that suitable clarification be provided that if separate considerations are charged for various goods and services supplied in conjunction with each other in ordinary course of business, the same shall also amount to composite supply.
* Suitable clarification be issued to provide certainty for determining whether a bundle of supply is a composite supply and also to determine principal supply therein.
II Time of supply
Section 14 of

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l goods or plant and machinery reduced by such percentage points as may be prescribed or the tax on the transaction value of such capital goods or plant and machinery determined under section 15, whichever is higher:
Provided that where refractory bricks, moulds and dies, jigs and fixtures are supplied as scrap, the taxable person may pay tax on the transaction value of such goods determined under section 15.
Suggestion(s):
* Words 'plant and machinery' be deleted – The use of word plant and machinery is not required as they are already covered under the meaning of capital goods.
* Clarification on no reversal of ITC in case of renting of capital goods – Section 18(6) uses the term 'supply' which includes even renting of those capital goods or plant and machinery, on which ITC has been taken i.e. to say in case such capital goods/ plant or machinery are rented out, Section 18(6) triggers and there would be reversal of ITC which is not the intention. Suitable proviso be inserted

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n(s):
* Two crores limit must be computed per registration wise – Anomaly of word 'turnover' in Section 35(5) viz-a-viz word 'aggregate turnover' in Rule 80(3) be removed. Further, clarity must be provided that two crores limit for GST audit shall be determined per State wise turnover rather than taking aggregate turnover on PAN India basis of an assessee. Considering aggregate turnover of an assessee will create a situation where one unit of such assessee having only ₹ 1,00,000 (assumed) turnover shall be required to conduct GST Audit just because its other units are crossing two crore limit.
V Centralised Authority for Advance Ruling
Considering the contrary rulings coming from different States' Advance Ruling Authorities, necessary provision for establishing centralised Authority for Advance Ruling or Appellate Authority for Advance Ruling be inserted. The issue has been identified as a concern by the GST Council also and hence necessary amendments in this regard be initia

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Non appearance of supplier invoice of 1 supplier in July GSTR2A return
Query (Issue) Started By: – Ashish Gupta Dated:- 18-7-2018 Last Reply Date:- 3-8-2018 Goods and Services Tax – GST
Got 6 Replies
GST
For July 2017 Invoices of 1 supplier are not appearing in GSTR 2A. The supplier had filed his GSTR1 late somewhere in November. We had already shown his invoices in GSTR 2 under missing invoices before then. I think it is a systems related issue. I have logged into his online GST account and have seen that he has uploaded the invoices in his GSTR1.
What documents or confirmations do I need to take or correspondence to be done to show to GST audit in future? I already have his confirmation and GST tax paid challans.
Reply By A

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

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

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

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xamined. As PAN is embedded in the GSTIN, CBIC has decided to accord similar treatment to such cases also as are already covered under Para 2 of Circular 15/2018-Customs. The conditions prescribed in para 2 of the said circular shall apply mutatis mutandis.
3. CBIC has issued circulars 05/2018-Customs dated 23.02.2018, 08/2018-Customs dated 23.03.2018 and 15/2018-Customs dated 06.06.2018 wherein an alternative mechanism with an officer interface to resolve invoice mismatches (SB005 error) was provided for the shipping bills filed till 30.04.2018. Despite wide publicity and outreach programmes to make exporters aware about the need to have identical details in invoices given in shipping Bills and GST returns, it has been observed that a few

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Southern Erectors (P) Ltd. Versus Commissioner of Service Tax [sought to be changed as CGST & Central Excise, Chennai South Commissionerate Chennai]
Service Tax
2018 (7) TMI 1219 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
Application No. ST/Misc[CT]/41703/2017 & Appeal No. ST/515/2011 – FINAL ORDER No. 42029 / 2018
Service Tax
Hon'ble Ms. Sulekha Beevi, C.S., Member (Judicial) And Hon'ble Shri Madhu Mohan Damodhar, Member (Technical)
Shri M. Karthikeyan, Advocate For the Appellant
Shri A. Cletus, ADC (AR) For the Respondent
ORDER
Per Bench
The appellants are engaged in providing service under “Erection, Commissioning or Installation Services”. During the course of audit, it was found that during the period 2007-08, the appellants had realized labour charges covering the period from 12/06 to 5/07 during 4/07 July/2007 towards erection, commissioning or installation services rendered to their clients, but had not discharged service tax on such

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eceived by them were barely enough to pay staff / workers and their salaries. Despite this financial crunch, appellant had taken all efforts to realize the payments but could not succeed. When the payments were received, the appellants remitted the same along with interest. The delay in making the payment of service tax was only due to the delay in receiving payments. He points out that the amount of service tax along with interest was paid much before issuance of show cause notice. Only the differential amount as calculated by the department due to change in the rate of service tax from 12.24 % to 12.36% was to be paid. The same was paid within one month after issuance of SCN i.e. 15.11.2008. Thus, appellant had paid the entire service tax liability along with interest before passing of the OIO dt. 13.3.2009. Apart from the allegation that appellant has suppressed facts, there is no evidence to establish that appellant suppressed facts with intention to evade payment of tax. There was

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7) STR 343 (Tri.-Bang.) and argued that penalty is unwarranted when there is mere delay in payment of service tax. The facts put forward before us as well as the records would show that other than delay in payment of service tax, there is no evidence to show that appellant has suppressed facts with intention to evade payment of tax. The figures required for quantification of the demand of service tax has been taken from the accounts maintained by the appellant and there is nothing unearthed by the department to show that there was any positive act of suppression on the part of the assessee. We therefore find this is a fit case for invoking Section 80 of the Finance Act, 1994 as the appellant has put forward reasonable cause for non-payment of service tax during the disputed period. We therefore hold that the penalty imposed under Section 78 is unwarranted and requires to be set aside. The impugned order is modified to the extent of setting aside penalty imposed under Section 78 of the

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Commissioner of Service Tax, Chennai [sought to be changed as CGST & Central Excise, Chennai South Commissionerate Chennai] Versus Vasanth & Co.
Service Tax
2018 (7) TMI 1220 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
Application No. ST/Misc [CT]/41475/2017 & Appeal No. ST/524/2011 – Final Order No. 42030 / 2018
Service Tax
Hon'ble Ms. Sulekha Beevi, C.S., Member ( Judicial ) And Hon'ble Shri Madhu Mohan Damodhar, Member ( Technical )
Shri B. Balamurugan, AC (AR) For the Appellant
Shri K. A. Parthasarathy, Advocate For the Respondent
ORDER
Per Bench
The facts of the case are that M/s.Vasanth & Co., the respondents herein, are engaged in the business of trading in consumer durables like TV, Refrigerators, Washing Machines etc. in the show rooms. Pursuant to investigations carried out by the Directorate General of Central Excise Intelligence (DGCEI), it appeared that respondents had tie up with various financial institutions like GE Countrywide

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ority by an order dt. 08.09.2010 confirmed the proposals regarding tax demand in the SCN with interest, and also imposed penalties of Rs. 2000/- under Section 77 and equal penalty of Rs. 35,23,936/- under section 78 ibid. In appeal, the Commissioner (Appeals) vide impugned order dt. 17.06.2011, the Commissioner (Appeals) set aside the order of original authority and allowed the appeal. Aggrieved, Revenue is before this forum.
2. Today when the matter came up for hearing, on behalf of the Revenue Ld. A.R Shri B. Balamurugan reiterates the grounds of appeal and also made the following submissions :
i) The issue in question has been decided against the respondents in the Larger Bench of the Tribunal decision in Pagariya Auto Center Vs CCE Aurangabad – 2014 (33) STR 506 (Tri.-LB).
ii) The customers of respondents were directed to approach only such banks / financial institutions who have tie up with them and not to others.
iii) The representative of income by financial institutions

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siness Auxiliary Service'. Being an restricted activity, the Tribunal also held that for concluding that BAS has been provided, the transactional documents and other evidence on record should indicate the substantial activities falling within the contours of any of the integers of the definition of “Business Auxiliary Service'.
ii) However, in the instant case, no transactional documents have been relied upon by the original authority as well as by Commissioner (Appeals) and only statement of Shri S. Jeyaraj, Accounts Manager has been relied upon.
iii) All that the respondents did was to direct prospective customers to representatives of banks / financial institutions operated from the place of business of the respondents.
iv) The Department has sought various particulars on 1.10.2007 to which they had given reply on 10.10.2007 along with copies of General Ledger for the years 2003-04, 2004-05 and 2005-06. Further in response to summons dt. 15.11.2007 they had submitted a letter dt.

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nal authority was passed on 08.10.2010 and the impugned order of lower appellate authority was passed on 17.6.2011. Discernably, the lower authorities would obviously not have had the benefit of Larger Bench decision of the Tribunal Pagariya Auto Center Vs CCE Aurangabad – 2014 (33) STR 506 (Tri.-LB) which was passed only on 12.09.2013. In fact, the SCN has largely relied upon the single statement of Shri S. Jeyaraj, Accounts Manager of respondent to support the allegations made therein. There is no reference to any agreements or communications between the respondents and the financial institutions made in the body of the SCN. However, in the list of relied upon documents supplied along with SCN a reference has been made to sample copies of communications with ICICI Bank and GE Countrywide (Annexure-II) and also to worksheets containing details of payments received towards commission by respondents (Annexure-III). All the same, both the lower authorities have not done any analysis of t

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or financial institution would per se amount to BAS. The identification of the transaction and its appropriate classification as the taxable BAS or otherwise must clearly depend upon a careful analysis of the relevant transactional documents. Only such scrutiny and analysis would ensure rational classification of the transaction.
21. Where mere space is provided along with furniture for facilitating accommodation of representatives of financial institutions in the premises of an automobile dealer and consideration is received for that singular activity, such consideration may perhaps constitute a rent for the provision of space and associated amenities. Such restricted relationship/transaction may not amount to BAS. If on the other hand, the transactional documents and other evidence on record indicates a substantial activity falling within the contours of any of the integers of the definition of BAS, spelt out in Section 65(19), then it would be legitimate to conclude that BAS is

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ustice require that the matter should be remanded for de novo consideration by the original authority to apply the tests laid down by the Larger Bench of the Tribunal in Pagariya Auto Center Vs CCE Aurangabad (supra) as discussed above. So ordered.
8. At the same time, we find merit in the alternative contention of the Ld. Advocate that in a number of Tribunal decisions, which have applied the ratio laid down by Larger Bench in Pagariya Auto Center (supra), have consistently set aside penalties even while upholding the tax liability with interest. We find that this is the ratio adopted by the Tribunal in Sharya Motors Vs CST Mumbai – 2016 (43) STR 158 (Tri.-Mumbai) where it has been held as follows :
“6. In short, the appeal is disposed of by upholding the tax liability with interest, under the Business Auxiliary Services for commission received from the financial institution, while the tax demand on amount received as target incentive is set aside. Interest liability on the tax con

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es imposed under Sections 76, 77 and 78, we find that as per our above discussion on limitation, there is bona fide belief of the appellant for non payment of service tax, the appellant has been able to reasonable cause for invocation of Section 80. We are therefore of the view that considering the facts and circumstances as well as discussion made herein above with regard to the demand being time bar penalties under Sections 76, 77 and 78 require to be set aside invoking Section 80. As result we pass following order :
(a) Demand from July, 2003 to March, 2005 in respect of Business Auxiliary Services (service relate to HDFC bank) is set aside being time bar.
(b) Service tax demand for April and May-2005 require to be re-quantified as per our above discussion by the Adjudicating Authority.
(c) As regard the demand of Rs. 1,42,114/- relates to Business Auxiliary Service (Commission on sale of car) require to be re-considered applying the Notification No. 14/2004-S.T. by the Adj

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Jaypee Sidhi Cement Plant Versus CGST C.C & C. E-Jabalpur And Hindustan Zinc Ltd Versus CE & ST-Udaipur
Central Excise
2018 (7) TMI 1279 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Appeal No. E/50633/2018-SMC, Appeal No. E/51064/2018-SMC – Final Order No. 52540-52541/2018
Central Excise
Hon'ble Mr. V. Padmanabhan, Member (Technical)
Sh. Hemant Bajaj, Advocate for the appellant
Sh. P. Juneja, H.C. Saini & K. Poddar, DR for the respondent
ORDER
Per: V. Padmanabhan
1. The present appeals have been filed against the Order-in-Appeal No. 494/2017-18 dated 29/11/2017 (for appeal E/50633/2018) and Order-in-Appeal No. 323/2017 dated 07/02/2018 (Appeal No E/51064/2018). The issue involved in both the cases are identical and hence are being disposed through this common order.
2. The brief facts for purposes of the present appeals are that the appellants purchase coal from various subsidiary companies of M/s Coal India Ltd., like M/s South Eastern Co

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the Cenvat Credit availed on the basis of supplementary invoices issued by Coalfields. Aggrieved by the decisions the present two appeals have been field.
3. In the above background we heard Shri Hemant Bajaj, Ld. Counsel for the Appellants as well as Shri P. Juneja & Shri H.C. Saini, Ld. DRs for the Revenue.
4. The arguments advanced on behalf of the appellants by Ld. Advocate are summarized below:-
i. He contended that the case of the Department is that the differential duty paid by the Coal Companies was on account of fraud, suppression etc alleged against them and hence the prohibition contained in Rule 9(1)(b)) applies to the appellants. In this connection he submitted that proceedings against the coal companies have not attended finality and are subjudice before the Apex Court. The appeals filed by the coal companies before the Tribunal have been disposed off with a direction to approach the Tribunal again after the outcome of the decision of the Hon'ble Supreme Court in the

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turer on account of willful misstatement, suppression of facts etc. Proceedings against the coal companies have been initiated by the Revenue by alleging suppression and hence the supplementary invoices cannot be the basis for availing credit as has been held by the lower authorities. Hence it is prayed that the appeal may be dismissed.
6. Further he submitted that the case law in the case of Birla Corporation may not be applicable to the present case but the fact whether there is suppression on the part of the present appellant is required to be considered by Tribunal.
7. After hearing both sides and perusal of record I note that the issue involved in the present appeals is whether the appellants are entitled to Cenvat Credit on the basis of supplementary invoices issued by the coal companies. Such credit stands denied in terms of Rule 9 (1)(b) of the Cenvat Credit Rules which denies the credit if such supplementary invoices are issued for duties which became payable by the manufact

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M/s Incopac Parts Pvt. Ltd. Versus CCE & CGST, Jaipur
Central Excise
2018 (7) TMI 1366 – CESTAT NEW DELHI – 2018 (362) E.L.T. 904 (Tri. – Del.)
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Excise Appeal Nos. 51200 – 51201 of 2018 – Final Order No. 52538 – 52539/2018
Central Excise
Hon'ble Sh. V. Padmanabhan, Member ( Technical )
Sh. Somesh Arora, Advocate for the appellant
Sh. K. Poddar, AR for the respondent
ORDER
Per : V. Padmanabhan
The present appeals are challenging the Orders-in-Appeal Nos.32-33 (SJ)/CE/JPR/2018 dated 02.02.2018 passed by the Commissioner (Appeals), Central GST and Central Excise, Jaipur. The period of dispute is April to September, 2014.
2. The appellant is a 100% EOU. For manufacture of goods in the EOU, the appellant procured various inputs on payment of duty and availed cenvat credit of duty paid on such goods. The dispute pertains to the refund claims made by the appellant under Rule 5 of the Cenvat Credit Rules, 2004. Part of the ref

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arised below:
(i) Ld. Advocate submitted that the inputs were procured on payment of duty. The department is not justified in denying the cenvat credit of duty paid on such inputs for the reasons that the exemption notification which was available for procurement of such goods i.e. Notification No. 22/2003 dated 31.03.2003 is a conditional notification and the exemption in terms of such notification will be available only subject to fulfilment of such condition. In view of the conditions in the notification, he submitted that the provision of Section 5A(1) cannot be held against the appellant.
(ii) In this connection, he relied on the decision of the Karnataka High Court in the case of CCE, Bangalore-II vs. Federal Mogul TPR India Ltd. -2016 (334) ELT 476 (Kar.). In the above decision, he argued that the Hon'ble High Court has taken the view that Section 5A(1A) cannot be cited in the case of job work exemption under Notification No. 8/2005-ST.
4. Ld. AR appearing for the Revenue j

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iscussed the issue on merit and has rejected the refund claim and hence the appeal filed by the appellant on merits may be considered.
6. After hearing both sides and on perusal of record, I find that the crux of the dispute is whether the appellant is entitled to cenvat credit of duty paid on inputs procured by them for use in the manufacture of final product in the EOU. It is not in dispute that the inputs have been procured on payment of duty, even though the appellant could have procured the same without payment of duty in terms of Notification No. 22/2003 dated 31.03.2003. The concurrent finding of both the authorities below is that the cenvat credits are irregular and hence the refund of such credits under Rule 5 of the Cenvat Credit Rule will not be admissible.
7. The provision of Section 5A (1A) of the Central Excise Act is reproduced below:
“where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has

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on unconditionally. The appellant, being EOU was entitled to procure inputs without payment of duty under Notification No. 22/2003. A reference to this notification indicates that the exemption is granted subject to various conditions including the condition that the procedure contained in Central Excise (Removal of Goods at Concessional Rate of Duty for manufacture of Excisable Goods) Rules, 2001. The above clearly reveals that the exemption is conditional and is not absolute. In view of the above, it is to be concluded that provision of Section 5A(1A) as well as the Circular dated 26.11.2010 are not applicable for procurement of goods under Notification No. 22/2003. Consequently, there is no infirmity in the availment of credit by the appellant on duty paid. Further, the appellant will also be entitled to refund under Rule 5 of the Cenvat Credit Rules subject to satisfaction of conditions for claim of such refund.
10. Ld. AR has raised the ground that the impugned order has been pas

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Sh. Rishi Gupta Versus M/s. Flipkart Internet Pvt. Ltd.
GST
2018 (7) TMI 1490 – NATIONAL ANTI-PROFITEERING AUTHORITY – 2018 (17) G. S. T. L. 623 (N. A. P. A.)
NATIONAL ANTI-PROFITEERING AUTHORITY – NAPA
Dated:- 18-7-2018
Case No. 5/2018
GST
MR. B. N. SHARMA, CHAIRMAN, MR. J. C. CHAUHAN, TECHNICAL MEMBER AND MR. R. BHAGYADEVI, TECHNICAL MEMBER
ORDER
1. The brief facts of the case are that an application dated 11.01.2018 was filed by the above Applicant before the Standing Committee, constituted under Rule 123 (1) of the Central Goods & Services Tax (CGST) Rules, 2017 stating that he had ordered a Godrej Interio Slimline Metal Almirah through the Respondent vide his order No. OD 110666745976477000 on 04.11.2017 and a tax invoice dated 07.11.2017 was issued to him for an amount of Rs. 14,852/- by M/s Godrej & Boyce Mfg. Co. Ltd., Mumbai (here-in-after referred to as the Supplier). At the time of delivery, another invoice dated 29.11.2017 was issued by the Supplier

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

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

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

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the above Act is not established.
8. It is also apparent that the Respondent was not the Supplier/manufacturer of the Almirah and was only an agent who had offered his platform to the Supplier to sell the Almirah by charging commission, and was also not responsible for collection or refund of GST and hence he cannot be held accountable for contravention of Section 171 of the CGST Act, 2017. It has also been found that the Supplier has refunded an amount of Rs. 700/- through the Respondent which was charged as tax in excess from the Applicant at the time of the placing of the order. It has also come to the notice from the perusal of the letter dated 27.4.2018 that the Respondent had charged 28% GST in the case of 7254 orders which were placed on his platform by the various buyers before 15.11.2017 and in which the supply was made after reduction of GST to 18%. The Respondent has claimed that he had already initiated the process of refund of excess tax collected from the recipients. Ke

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M/s. Amman Match Company Versus The Assistant Commissioner of GST & Central Excise, The Commissioner of GST & Central Excise
Central Excise
2018 (7) TMI 1596 – MADRAS HIGH COURT – 2018 (363) E.L.T. 120 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 18-7-2018
W.P.(MD)No.12060 of 2018
Central Excise
M. Govindaraj, J.
For the Petitioner : Mr.A.P.Ravi
For the Respondents : Mr.R.Nandakumar
ORDER
This Writ Petition is directed against the order of the first respondent passed in the Order in Original No.MAD-CEX-000-ASC-196-16, dated 29.07.2016, for violation of principles of natural justice.
2. The petitioner submitted a rebate application along with the required documents to the first respondent on 02.05.2016. Pursuant to the application, a show cause notice was issued by the first respondent on 24.06.2016 proposing to reject the rebate claim of Rs. 12,40,360/- and it was received by the petitioner on 27.06.2016. Since he has failed to file his objections within 30 days, th

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r personal hearing in the case and request the assessee to appear before him for a personal hearing by himself or through an authorised representative. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communications should be made to the noticee for each opportunity of personal hearing. In fact separate letter for each hearing/extension should be issued at sufficient interval. The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding adjourn the hearing for reasons to be recorded in writing. However, no such adjournment shall be granted more than three times to a noticee.”
5. The learned counsel would also contend that the show cause notice mandated the petitioner to show cause against the notice within 30 days. As per Paragraph No.15 of the show cause notice, if no cause is shown against the action proposed to be taken within 30 days of r

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

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(7) Manohar Vs. State of Maharashtra [2013(295) ELT 358 (SC)];
(8) Reema Gases (P) Ltd. vs. Commissioner [2014(309) ELT A50 (Cal)];
(9) Kantilal B.Mohite vs UOI 2014(306) ELT 51 (Bom)];
(10) Baboo Ram Hari Chand vs. UOI [2014(304) ELT 371 (Guj)];
(11) Logic Transware India Pvt Ltd vs. CC. [2014(302) ELT 228(Del)];
(12) Adhunik Power Transmission Ltd. vs. UOI [2015(325) ELT 865 (Jhar)];
(13) CC, Bangalore vs. Fly Jac Logistics Pvt Ltd [2015(323 ELT 730 (Kar)];
(14) Shrushthi Plastics Pvt Ltd vs. CCE, Puducherry [2015(323) ELT 515(Mad)];
(15) Confidence Petroleum India Ltd. vs. ADDL.C.C., C.E. & S.T., Coimbatore [2015(322) ELT 237 (Mad)];
(16) General Mills India Pvt Ltd. vs. UOI [2015(322) ELT 95(Bom)];
(17) Deputy Commissioner of Central Excise, Chennai vs. Dorcas Market Makers Pvt. Ltd., [2015(321) ELT 45(Mad.)];
(18) JSL Lifestyle Ltd. vs. Union of India [2015(326) ELT 265(P&H)];
(19) Panoli Intermediate (India) Pvt. Ltd. vs. Union of India [201

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d Customs, New Delhi, which goes to say that the adjudicating authority had proceeded to fix a date and time for personal hearing in the case and request the assessee to appear before him for a personal hearing by himself or through his authorized representatives. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communication should be made to the noticee for each opportunity of personal hearing. From this, it can be inferred that while adjudicating the issues, it is incumbent on the adjudicating authority to provide opportunity of personal hearing, not one, at least three, with sufficient interval of time, so that,the noticeee may avail the opportunity of being heard. The very object of the Master Circular issued by the Central Board of Excise and Customs mandates that the provision of personal hearing is very essential before deciding any issue by a quasi judicial autho

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

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nt Commission examined the application and other connected records and has taken into consideration the reply filed by the appellant therein and decided the issue. In such an appeal proceeding, it is observed that if personal hearing is not given, it could not be said that there was violation of principles of natural justice. More so, the subject matter of controversies/disputes between the parties only impinge upon the interpretation of various Sections of the Customs Act on legal plane and, therefore, no prejudice was caused to the party in not providing opportunity of hearing to its authorised representative. Whereas, in the instant case, a show cause notice was issued by the adjudicating authority to the petitioner and it requires explanation directly by him and in cases of clarification, requires his presence in person to explain the factual issues. The issue decided by this Court in the above said case is with regard to the appeal proceeding and that cannot be equated with the or

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e petitioner therein.
18. In the instant case, after giving show cause notice granting 30 days time, the authority, without waiting for any reply, on the 32nd day, passed an order. Therefore, the judgment of the Karnataka High Court cannot be applied to the case on hand.
19. Again, the learned Standing Counsel for the respondents relied on the judgment of Calcutta High Court reported in 2005(185) E.L.T. 227 (Cal.) [Nellimarla Jute Mills Co. Ltd. vs. Zonal Dir.Gen. of Foreign Trade], wherein the adjudicating authority, after lapse of time granted to the petitioner therein, has extended further time of seven days and served notice on the petitioner therein and thereafter, proceeded with the adjudication. In such circumstances, it cannot be said that the order was passed hastily. Another opportunity was given in compliance with the principles of natural justice. Therefore also, the said judgment is of no avail in favour of the respondents.
20. The Hon'ble Supreme Court in Swami Dev

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

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

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e Assistant Commissioner (CT), Avarayampalayam Assessment Circle, Coimbatore] dated 16.03.2018, has held as under:-
“Denial of Personal hearing:
“10.The respondent denied the appellant opportunity of hearing only on the ground that objection was not given to the pre-assessment notices. Even if objection was not given, still the assessing authority was expected to post the matter for hearing by issuing notice to the assessee. In case the assessee fail to appear, it is open to the assessment authority to pass orders on merits. We make the position clear that the failure to submit objection to the pre-assessment notice would not give a right to the Assessment Officer to deny opportunity of personal hearing to the assessee.
23. Insofar as the issue of approaching this Court without exhausting the alternative remedy is concerned, a Full Bench of Hyderabad High Court in Electronics Corporation of India Ltd. vs. UOI [2018-TIOL-484-HC-AP-CX-LB], at Paragraph No.23, has observed as under

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

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M/s WM Logistics India Pvt. Ltd. Versus CGST & CE, Indore
Service Tax
2018 (8) TMI 172 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Appeal No. ST/51431/2018-SM with ST/Misc. /50641/2018 – Final Order No. 52609/2018
Service Tax
Hon'ble Mr. V. Padmanabhan, Member ( Technical )
Shri S. Thirumalai, Consultant – for the appellant
Shri K. Poddar, D.R. – for the respondent
ORDER
Per V. Padmanabhan
The present appeal challenges the Order-in-Appeal No. 402/2017-18 dated 12.12.2017.
2. The appellant is a 100% subsidiary of WM Logistics LLC, USA. As per the agreement with their parent company, they provided product development support services for collection and disposal activities of WML, USA. The appellant was registered for providing taxable services including 'Information Technology Software Service'. The dispute pertains to the claim for refund filed by the appellant for the period April, 2015 to September 2015, for refund of accumulated Cenvat

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rumalai, ld. Advocate. Revenue was represented by Shri K. Poddar.
4. The arguments advanced on behalf of the appellant is summarised below:
(1) The ld. Advocate submitted that the only reason given by the authorities below for rejection of the refund claim is the appellant's inability to submit the Softex Forms. He emphasized the fact that all other supporting documents in the form of invoices issued to WML, foreign inward remittance certificate issued by the banks as well as the Chartered Accountant's certificate certifying the export turnover have been duly submitted and the authorities below have not recorded anything against these documents.
(2) He submitted that the requirement of submission of Softex Forms is not applicable for the export of software undertaken by the appellant as has been held by the Tribunal in the case of Mobile Iron India Software Pvt. Ltd. Vs. CCE, Hyderabad – 2017 (3) CGST 518 (Tri.-Hyd.).
(3) He submitted that the appellant is satisfying all the con

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Rule 5 of the CCR, 2004 may be granted by the departmental authorities subject to fulfilment of the conditions and safeguards prescribed in the Notification No. 27/2012-CE(NT). The conditions and safeguards have been prescribed to ensure that the services have been duly exported and payment for the same has been received in foreign exchange. Documentary evidences as prescribed under notification are required to be submitted to satisfy the requirements.
8. In respect of the refund claims filed by the appellant for the quarter April 2015 to September 2015, the only objection recorded by the lower authorities is that the documentary evidence for export of services has not been satisfactorily submitted. The STPI authorities have carried vide their letter dated 28.12.2016 that the Softex Form is required to be submitted as per the RBI guidelines to evidence the export of goods/services through data communication links. The appellant is not registered with STPI authorities and hence could n

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The relevant Rule of Foreign Exchange Management (Export of Goods & Services) Regulations, 2015 is reproduced below :
“For the removal of doubt, it is clarified that, in respect of export of services to which none of the forms specified in these Regulations apply, the exporter may export such services without furnishing any declaration, but shall be liable to realise the amount of foreign exchange which becomes due or accrues on account of such export, and to repatriate the same to India in accordance with the provisions of the Act, and these Regulations, as also other rules and regulations made under the Act.”
“Declaration in Form SOFTEX
(i) The declaration in Form SOFTEX in respect of export of computer software and audio/video/television software shall be submitted in triplicate to the designated official of Ministry of Information Technology, Government of India at the Software Technology Parks of India (STPIs) or at the Free Trade Zones (FTZs) or Special Economic Zones (SEZs

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CGST, Customs & Central Excise, Bhopal Versus M/s Diligent Power Pvt. Ltd.
Service Tax
2018 (8) TMI 250 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Appeal No. ST/51495/2018-SM – A/52608/2018-SM[BR]
Service Tax
Mr. V. Padmanabhan, Member (Technical)
Shri H.C. Saini, D.R. – for the appellant
Shri Sandeep Mukherjee, CA – for the respondent
ORDER
Per V. Padmanabhan:
The present appeal is filed against the Order-in-Appeal No. 862/2017-18 dated 27.3.2018.
2. The brief facts of the case are that the respondent is engaged in providing taxable services under the category of Consulting Engineers. During the course of audit, it was observed that the respondent has availed and utilised Cenvat credit of service tax paid by them on account of Renting of Immovable Property Services. It was further noticed that such rent was paid for the period prior to obtaining centralised registration including such premises. The application made for centralised re

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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 Shri Sandeep Mukherjee, ld. CA. It is his submission that the decision of the Tribunal in the case of Samsung India Electronics Pvt. Ltd. was further upheld by the Hon'ble Allahabad High Court reported as 2017 (52) STR J253 (All.). He submitted that even though Revenue has challenged the decision further the benefit is to be granted to the respondent.
5. Heard both sides and perused the record.
6. 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

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roved 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 service have to be received at Registered Premises, only of the output service provider. Further reliance is placed on the ruling of Hon'ble Karnataka High Court in mPortal India Wireless Solutions (P) Ltd. v. CST, 2012 (27) S.T.R. 134 (Kar.) and of Hon'ble Bombay High Court in Deepak Fertilizers & Petrochemicals Corporation Limited v. CCE, 2013 (32) S.T.R. 532 (Bom.). Considering the rival contentions, following the rulings of Karnataka High Court and Bombay High Court (supra), this ground is rejected. It is 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.”
7. The said decision has further been upheld

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Commissioner of CGST & Central Excise, Varanasi Versus M/s Bahadur & Co. And Commissioner of CGST & Central Excise, Varanasi Versus M/s Aditya Cemech Construction Company
Service Tax
2018 (8) TMI 359 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 18-7-2018
STAY Application Nos. ST/Stay/70148-70149/2018 in APPEAL Nos. ST/70303-70304/2018-CUP[DB] – Final Order Nos. 71570-71571 / 2018
Service Tax
Hon'ble Smt. Archana Wadhwa, Member ( Judicial ) And Hon'ble Mr. Anil G. Shakkarwar, Member ( Technical )
Shri Shri Mohd Altaf ( Asstt. Commr. ) for Appellant
Absent for Respondent
ORDER
Per: Archana Wadhwa
As the impugned orders of Commissioner (Appeals) are non-executable, we reject the Stay Petitions filed by the R

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(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 such, the appellant are not liable to pay Service Tax on such construction service. Same view has also been taken in cases of M/s Sanjeev Saran Srivastava, M/s Manoj Kumar Singh and M/s Ganesh Yadav, involving exactly the same issue, by the then Commissioner (Appeals), Central Excise, Customs and Service Tax, Allahabad, vide Order-in-Appeal No. 170/ST/ALLD/2013 dated 31.12.2013, No. 120/ST/ALD/2015 dated 22.07.2015 and No. 267/ST/ALLD/2015 dated 16.12.2015 respectively, wherein appeals were allowed after obser

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ontending 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 order of Stay of operation of the Tribunal decision in the case of Ganesh Yadav.
Apart from the above we also note that 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.
5. Inasmuch as the Tribunal's decision in the case of Ganesh Yadav holds the field, we find no infirmity in the impugned orders of Commissioner (Appeals). Acc

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M/s. Pothys, rep. by its Managing Partner Mr. S. Ramesh, Chennai-17, Tirunelveli Versus The Principal Chief Commissioner, Goods and Services Tax Act (previously Central Excise & Customs), Government of Tamil Nadu, Union of India, The Chairman, GSTIN
GST
2018 (9) TMI 685 – MADRAS HIGH COURT – TMI
MADRAS HIGH COURT – HC
Dated:- 18-7-2018
W. P. Nos. 7218 to 7225 of 2018
GST
Mr. T.S.SIVAGNANAM J.
For the Petitioners : Mr.A.Ravichandran
For the Respondent-1 : Mr.V.Sundareswaran, SPC
For the Respondent-2 : Mrs.G.Dhana Madhri, GA
For the Respondents 3 & 4 : Mr.T.L.Thirumalaaisamy, CGSC
COMMON 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 account

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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, 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 reg

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ell.
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 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

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iscussed 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 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 Asse

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M/s. SAIL Refractory Co. Ltd. Versus Commissioner of GST & Central Excise, Salem
Central Excise
2018 (9) TMI 1059 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
E/394 to 397/2012 – Final Order Nos. 42038-42041/2018
Central Excise
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 had outperformed the guarantee period as per commercial terms and conditions of t

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llant 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. 12/2008 dated 26.12.2008
1/2008 to 3/2008
36,464/-
No. 03/2009 dated 26.

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Commissioner of Central Goods And Service Tax, Udaipur Versus Prem Jain Ispat Udyog Private Limited
Central Excise
2018 (9) TMI 1060 – RAJASTHAN HIGH COURT – TMI
RAJASTHAN HIGH COURT – HC
Dated:- 18-7-2018
D.B. Central/excise Appeal No. 10/2018
Central Excise
Mr. Kalpesh Satyendra Jhaveri And Mr. Vijay Kumar Vyas JJ.
For the Appellant(s) : Mr. Sidharth Ranka
For the Respondent(s) : Ms. Archana for Ms. Mahi Yadav
JUDGMENT
1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal filed by the appellant.
2. The counsel for the appellant has framed the following substantial questions of law:
1. 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 Authorit

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lips, 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 claimed that all the clearances were duty paid and there was no clandestine clearance. The adjudicating authority has carefully gone through the said 25 slips alongwith the connected invoices and other documents submitted by the assessee and has given detailed discussions in para 36 of the impugned order. With reference to each kachha parchi and the relevant invoice, he has recorded that the quantity, size, truck No. name of consignee mentioned in the invoice are completely matching with the details so given in the recovered kachha parchi. Further, he has recorded that the subject invoices have been duly entered in RG-1 register as well as the ledger account. In the light of the above, he has concluded that the subject consignee were cleared on payment of Central Excise duty. We have gone through the records of the case

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y 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 covered by these seven slips were never despatched from the factory for various reasons. It is their submission that the kachha parchis were initially made for internal use indicating the quantity of material, name of the party, place to which goods to be despatched and other details. Later on, the relevant quantum of goods are identified from the stockyard and loaded into the despatch truck whose number is also included in the kachha parchi. In respect of these seven kachha parchis, the orders placed by the customers have got cancelled and hence no goods were despatched to the parties indicated in the kachha parchi.
8. On going through the impugned order, we note that the adjudicating authority has not given due consideration to the submissions made by the appellant. The allegation of clandestine removal has been upheld in respect

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stained. The assessee has cited a large number of decisions to support the contention that clandestine clearance cannot be upheld without tangible evidence.
4. We are of the opinion that 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 which reads as under:
F.No.390/Misc./116/2017-JC
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes & Customs
(Judicial Cell)
********
'B' Wing, 4th Floor, HUDCO-VISHALA Building Bhikaji Cama Place, R.K. Puram, New Delhi-66
Dated 11.7.2018
INSTRUCTION
To
1. All Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/Commissioners of Customs/ Customs (Preventive)/ GST & CX;
2.All Principal Director Generals/ Director Generals of Customs, GST & CX;
3.Chief Commissioner (AR); Commissioner Directorate of Legal Affairs, CBIC;
4.
Subject : Reduction of Government Litigation – Raising of

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eals). 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 described in para 1.3 of the Instruction dt 17.08.2011 from F No 390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits
5. Since withdrawal of Departmental Appeals is a long drawn activity requiring routine and constant monitoring, formats have been introduced in the Monthly Performance Report for all field formations to send monthly reports regarding status of withdrawal of appeals in the MPR (refer table M/ M-1). Details of the said cases should also be available in a separate register for further perusal by the Board as and when required. Tables are in the Annexure – A attached. The description of the Tables in brief is provided below:
(a) Table M: Position of withdrawal with reference to raised monetary limits SC/HC/CESTAT (as per instruction dated 11/07/2018)
b) Table M- 1: Remain

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d 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

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er 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 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

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e 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 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 Rs. 40 lakhs on Shri Agarwal who is appellant No. 2 are hereby set aside. The appellants will get the relief accordingly.
8. The imp

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at 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 Rs. 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 weighed and actual weight was

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ons 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. Ramaswami, learned Co

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39;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 guilty of the offence and th

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ng 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 Rs. 31,53,204/- involving Central excise duty of Rs. 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 Rs. 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 adjudicating authority, before the adjudica

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atement 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 case of the revenue as regards shorta

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d 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 case, no investigation was mad

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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 was taken on the same da

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Raj Petro Specialities Pvt. Ltd Versus Principal Commissioner of GST & Central Excise, Chennai North Commissionerate
Central Excise
2018 (9) TMI 1122 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
Appeal No. E/40314 to 40316/2018 – FINAL ORDER No. 42032-42034/2018
Central Excise
Ms. Sulekha Beevi C.S. Member (Judicial)
Shri V. Ravindran, Advocate For the Appellant
Shri R. Subramaniyan, AC (AR) For the Respondent
ORDER
Brief facts are that the appellants are manufacturers of Transformer oil, Petroleum jelly and light liquid paraffin and are availing the facility of Cenvat credit on service tax paid on various input services. During the disputed period, they had availed credit of service tax paid on c

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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. The free samples sent to the foreign buyers cannot be considered as export of goods or removal of goods from the factory gate to the customer's premises. The courier services availed by the appellant for sending the sample products was in the nature of marketing / promotion of products and therefore would fall within the inclusive part of the definition. He prayed that the credit may be allowed.
4. The Ld.AR, Sh.R.Subramaniyan supported the findings in the impugned order. He submitted that the appellant has sent the finished products to their prospective foreign buyers free of charge. Sinc

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Commissioner of GST & Central Excise, Madurai Versus M/s. Sri Naga Nanthana Mills Ltd.
Central Excise
2018 (9) TMI 1123 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
Appeal No. E/380/2009 – Final Order No. 42036/2018
Central Excise
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 the order passed by Commissioner (Appeals) who set aside the demand, interest and penalties.
2. The respondents are engaged in manufacture of cotton yarn and polyester yarn and are also selling through their consignment a

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an 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 during the relevant period the issue has been decided by the Larger Bench of the Tribunal in the case of Noble Drugs Ltd. Vs. Commissioner of Central Excise – 2007 (215) ELT 500 (Tri. LB) and the same has also been considered by

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Uttarakhand Goods and Services Tax (Seventh Amendment) Rules, 2018
579/2018/10(120)/XXVII(8)/2018/CT-29 Dated:- 18-7-2018 Uttarakhand SGST
GST – States
Uttarakhand SGST
Uttarakhand SGST
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 Servi

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the words "Director General of Anti-profiteering" shall be substituted.
4. Amendment in Rule, 131
In rule 131 of the "Principal Rules" for the words "Director General of Safeguards", the words "Director General of Anti-profiteering" shall be substituted.
5. Amendment in Rule, 132
In rule 132 of the "Principal Rules" for the words "Director General of Safeguards" , the words "Director General of Anti-profiteering" shall be substituted.
6. Amendment in Rule, 133
In rule 133 of the "Principal Rules" for the words "Director General of Safeguards", wherever they occur, the words "Director General of Anti-profiteering" shall be substituted.

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In Re : A.S. Moloobhoy Private Limited
GST
2018 (10) TMI 1314 – AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – 2018 (18) G. S. T. L. 683 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – AAR
Dated:- 18-7-2018
GST-ARA-14/2018-19/B-71
GST
SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER
PROCEEDINGS
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by A S Moloobhoy Private Limited , the applicant, seeking an advance ruling in respect of the following question.
The Applicant requests this Hon'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, 8

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S. Moloobhoy Private Limited ('the Applicant'/'the Company'). The Applicant, having Good and Service Tax ('GST') Registration No. 27AAMCA4160E1ZT is inter alia engaged in the business of sale and distribution of Marine Distress Signals, EPIRB and SART, SSAS, Marine Chemicals, Navigation and Communication (NAVCOM) Equipment and also providing Life Saving services: such as Life raft, Lifeboat and Fire-fighting services, including Pyrotechnic Disposal, Electronic Services and Training Services related to the Marine Industry.
2. Applicant imports various goods/spares, which are supplied on ships and these equipment form an essential part of the ship, and makes the ship “sea worthy.”
3. The above referred goods are imported by the applicant on payment of IGST. 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

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e copy of relevant purchase orders and emails are enclosed at Annexure I-H, I-I, I-J, I-K & I-L.
6. Based on the information from customers and market trend, applicant also feels that GST rate should be 5% on the goods supplied by it as same are essential part of ship which makes the ship seaworthy. It is legally 'obligatory for ships to have fitment/installation of all such spares and equipment to qualify as seaworthy. These parts/equipment should therefore be classified under the tariff heading of “Parts of goods of headings 8901, 8902, 8904, 8905, 8906, 8907.”
* Heading 8901 is for cruise ships, excursion boats, ferry boats, cargo ships, barges and similar vessels for transport of persons or goods.
* Heading 8902 applies to fishing 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 structure

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eadings 8901, 8902, 8904, 8905, 8906, 8907″ under entry 252 of Schedule I 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 I of Notification No. 01/2017-Integrated Tax (Rate),dated 28-06-2017.
9. The list of goods/ spares/parts/equipment (which are installed or fitted on the ships) for which the advance ruling is sought as to classification of such goods is enclosed herewith at Annexure- I-A.
STATEMENT CONTAINING THE APPLICANT'S INTERPRETATION OF LAW AND/OR FACTS, AS THE CASE MAY BE, IN RESPECT OF THE QUESTION(S) ON WHICH THE ADVANCE RULING IS SOUGHT
1. ISSUE FOR DETERMINATION
1.1. The 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.

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t.
SUBMISSION 2
2.3. Notification 01/2017 -CGST dated 27th June, 2017 states that the “classification of goods should be as per the rules of classification enshrined in the Customs Act, 1962.”
2.4. Relevant portion of Rule 3(a) of the customs valuation rules reads as under:
“When by application of rule 2(b) or for any other reason, goods are prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description.”
2.5. 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, 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, w

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s on board a vessel, so as to ensure that the ship as a whole is sea worthy as per IMO Regulations.
3. PRAYER
In light of the above, a Ruling is sought from the Honorable Authority on classification of goods listed in Annexure III and applicable GST rate on such goods.
Additional submissions on 27/07/2018
We, M/s. A.S. Moloobhoy Pvt. Ltd. (hereinafter referred to as the Applicants) refer to their application for Advance Ruling.
2. The issue on which ruling is sought for from the Authority for Advance Ruling is as to whether parts of Marine Distress Signals, Emergency Position Indicating Radio Beacon (EPIRB) and Search and Rescue Transponder, (SART), Ship Security Alert System (SSAS), 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, succi

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d the Merchant Shipping (Distress and Safety Radio Communication) Rules, 1995 has made these Rules which would apply to all sea going passenger, cargo and fishing boats of 20 mtrs. or more than length and all ships other than Indian ships more than 300 tons while they are in any port or place in sea. The Rules require all existing ships comply part I of the Rules on or before 1st February, 1995. Various dates on which these Rules will come into force in parts are mentioned, and but compliance is required on or before 1-2-99 in all cases. The said rules requires inter alia that every ship or fishing boat should carry two satellite EPIRB, Navtex receiver radio facility of Maritime 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 a

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o declining to renew the certificate of seaworthiness, issued to the ships under the Merchant Shipping Act, 1958 and the vessel could not have been allowed to sail. By the operation of the Rules of 1995, the vessel which is not fitted with this equipment became would be unlawful to ply.
3.8  prior to 1.07.2017, in pre-GST era, central excise duty was not applicable as the Applicants being dealers and in that  VAT was payable.
3.9 under the said factual position, the present application is filed with a prayer for ruling on the said equipment and spares of availability of concessional rate of GST of 5% (2.5% + 2.5%) under Sr. No.252 of list 1 of Notn.No.1/2017-Central Tax (Rate)/lntegrated Tax (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 equ

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t of judgments in Applicants own case/other's case under Customs:
5.1 Notn.No.23/98-Cus dated 2.6.1998 and succeeding Notifications including 21/2002-Cus dated 1.3.2002 (Sr. No. 251) was prescribing Nil rate of duty (both standard rate and additional duty rate) to capital goods and spares thereof, raw-materials, parts, material handling equipment and consumable used for repair of ocean-going vessel by Ship Repair Unit registered with DGS.
5.2 The notice was issued to the importer-Applicants proposing to deny the exemption under the said Notification on the basis that the goods were not covered by any of the category of item specified in the entry to the exemption. It further alleged that the goods 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 a

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p Care Pvt. Ltd. [2005 (191) ELT 697 (T)] has held that Ship spares for repair of ocean-going vessel like 'Global Marine Distress Safety System' equipment imported and used to upgrade old radio communication/navigation equipment in ships were necessary for safety of ocean-going vessels in voyages and further Fitment of safety equipment to ships for making vessel seaworthy amounts to 'repair' of ship for purpose of S. No. 227 of Notification No. 23/98-Cus.
5.9  Again in Applicants own case, Tribunal vide its judgment dated 23.08.2011 [2012 (276) ELT 399 (Tri-Mum)] had held that Handset imported for replacement of defective handset of communication system of ocean going vessel would be entitled for 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:

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p;  (a) Malwa Industries – 2009 (235) ELT 214 (SC)
    (b) Mewar Bartan Nirman Udyog – 2008 (231) ELT 27 (SC)
    (c) Parle Biscuits – 2005 (192) ELT 23 (SC)
    (d) Bombay Oil Industries – 1997 (91) ELT 538 (SC)
7.0 Section/Chapter Notes and/or Explanatory Notes to HSN are for classification and not for interpreting exemption Notn.:
7.1 HSN, Explanatory Notes, Rules of Interpretation, etc. cannot be used to interpret the exemption notification and further exemption notification to be strictly interpreted in accordance with words of notification thereunder and the intention thereof.
7.2 The above view gets substantiated from the ratio of following judgments:-
    (a) Gujarat Ambuja – 216 (338) ELT 481 (SC)
    (b1) Winter Misra Diamond Tools -1996 (83) ELT 670 (T)
    (b2) -do- Upheld by Supreme Court – 1997 (94) ELT A-52 (SC)
    (c) Set Telecommunication – 2003 (161

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and their associated spares, etc., detailed therein, are integral part of a ship without which ship cannot sail and would not be considered seaworthy as per the IMO/SOLAS/guidelines.
It is further certified that every ship being built at any shipyard must include these equipment and its associated spares to construct a sea worthy vessel.
9.2 The said certificate would substantiate that the goods under consideration mentioned at Annexure-l-A to application are parts of goods of heading 8901, 8902, 8904, 8905, 8906 and 8907.
10.0 The provisions of Merchant Shipping (Distress & Safety Radio Communication) Rules, 1995 would support that the goods under consideration are parts of ship and hence, would be covered under Sr. No.252 of list 1 of Notn. 1/2017-Central Tax (Rate)/Integrated Tax (Rate)
11. With the above submissions and those made in their application and additional submissions, it is humbly prayed for holding that the disputed equipment would be covered under Entry No. 252 of

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ng questions:
a) Whether marine distress signals, EPIRB, SART, SSAS, marine chemicals, navigation and communication equipment life raft, lifeboat, firefighting services, pyrotechnic disposal, electronic services and training services related to marine industry supplied by the applicant, would be considered to be part of ship and accordingly be then classified under SI no. 252 of Schedule I of Notification No 1/2017 of Central Tax (rates) dated June 28,2017
Also, as per the notice following details were asked by the Advance Ruling Authority:-
1) Registration No, of Central Excise or Service Tax or both as applicable.
2) Period of Registration in case of Para (1) above.
3) Registration Address for Central Excise or Service Tax or both as applicable,
4) (a) Classification of Goods and their Central Excise Tariff Heading.
(b) Rate of Central Excise duty as applicable.
(c) Details of benefit of notification of Central Excise if any availed.
5)  (a) Classification of Service/Se

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  B-501, 5th floor, Marathon Futurex,
    Mafatlal Mills, N. M. Joshi Marg,
    Lower Parel, Mumbai, 400013.
    3) Registered address of Service Tax Office:
    Mumbai Central-New, Division-Ill, Range I,
    Primal Chambers, Jijibhoy Lane,
    Lalbhaug, Parel, Mumbai-400012.
    4) Classification of Services provided by the applicant under service tax is as under:
Table-1
Sr. NO.
Services provided by Applicant
Accounting Code
Service Tax Rate (Basic+SBC+KKC)
Benefit of any notification claimed
1
Technical Inspection and certification Agency Services
00440249
15%
N. A.
2
Maintenance & Repairs Services
00440245
15%
Exemption was claimed under clause 25 (b) of Notification 25/2012 ST dated 20/06/2012 for services provided to Govt., a Local authority or a Govt. authority by way of repair or maintenance of vessel.
 
5) Assesse have not applied for any

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sp;
8529
Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528
48%
 
9014
Direction finding compasses; other navigational instruments and appliances
18%
 
8526
Radar apparatus, radio navigational aid apparatus and radio remote control apparatus
18%
 
8479
Machines and mechanical appliances having individual functions, not specified or included elsewhere in this Chapter
18%
 
6307
Other made up articles, including dress patterns
5 & 12%
 
8525
Transmission apparatus for radio broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras, digital cameras and video camera recorders
12,18 & 28%
 
8544
Insulated (including enamelled or anodised) wire, cable (including co-axial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fibre cables, made up of individually sheathed fibres,

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bmissions.
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 the business of sale and distribution of Marine Distress Signals, EPIRB and SART, SSAS, Marine Chemicals, Navigation and Communication (NAVCOM) Equipment, Life raft, Lifeboat and Fire-fighting services, including pyrotechnic Disposal, Electronic Services and Training Services related to the Marine Industry. They are importing the various goods/spares, which are supplied by them on ships. As per their submissions such equipments are an essential part of a ship, and makes the ship sea worthy.
The only issue that is raised before us by the applicant is 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) dat

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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. Spare parts are an important feature of Logistics Engineering and Supply Chain Management.
Thus in view of the above meanings/definitions of part/parts/Spare Part, we will be required to examine as to what are the parts of Goods of CTH 8901, 8902, 8904,8905, 8906 and 8907 and whether the subject goods/spares as mentioned by the applicant listed in Annexure 1-A of this ARA application can be taken to be covered within the meaning of Parts for Sr. No. 252 of Notification no. 1/2017 Integrated Tax (Rate) dated 28.06.2017.
We find 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 vesse

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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, we find that 'part' is a separate piece of something or a piece that combines with other pieces to form the whole of something.
Similarly the second definition of part also defines 'part' as one of the pieces that together form a machine or some type of equipment.
While interpreting the issues like the one at hand, we may refer to certain judgements which throw light on the disputed issue.
In case of Saraswati Sugar Mills Vs Commissioner of Central Excise Civil Appeal No.5295 of 2003 decided on 2nd Aug 2011 Hon. Supreme Court of India observed :
12. In order to determine whether a particular article is a component part of another article, the correct test would be to look both at the article which is said to be component part and t

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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 thus fall within the term “component parts” used in the Notification in so far as manufacture of paper in rolls is concerned. Paper core, however, cannot be said to be used in the manufacture of paper in sheets as component part.
15. In Modi Rubber Ltd. v. Union of India, (1997) 7 SCC 13, the appellant had set up tyre and tube manufacturing plant and imported various plants and machineries. While using the plants and machineries, PPLF (Polypropylene Liner Fabric) was used as a device in the form of liner components to various machinery units to protect the rubber-coated tyre fabric from atmospheric moisture and dust. This Court held that the PPLF was not a component of the machine itself. It was not a constituent part. It was used as a Liner Fab

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ions: 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, and that ribbon is not an accessory but an essential part of the typewriter. While dismissing the appeal Court held that “A word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs. It has to be understood according to the well-established canon of construction in the sense in which persons dealing in and using the article understand it.
The Hon SC further observed that “Bearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word 'paper' forms part of the denomination of a specialized article is not decisive of the question whether the article is paper as generally understood, 'the word 'paper' in the common parlance or in the com

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riters 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 Second Schedule to the Mysore Sales Tax Act, 1957.”
In light of the above discussions, considering the meaning of an expression (Part) as given in the dictionary and also the ratio as adopted by the Hon'ble Courts as mentioned above besides common parlance test, we now take up each and every goods/spares, etc claimed by the applicant to be parts of a ship [as listed in Annexure I-A of this ARA application and as reproduced by them mentioning their uses in page no 24 of their compilation A made before this authority as an additional submission] and discuss and find out whether each of the subject goods/spares can be considered as parts of ship. They have broadly listed the equipments/parts of the equipments along with their usage which is as follows:-
S. No.
EQUIPM ENT
FULL FORM
DESCRIPTION
REMAR

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oscope
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 Identification System
Used for identifying other ships details
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions
G
DS
Doppler Speed Log
Used to measure ships speed through water
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
H
MF/HF
Medium/High Frequency Communication
Used for long range communication
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
I
VHF
Very High frequency
Used for short range speed communication
Is an essential part of ship and without

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s
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
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions
O
NDB
Non Directional Beacon
Used for choppers to determine landing location on board
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions
P
FCV
Fish Finder
Used for higher level accuracy and clear fish shoal images
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions
Q
SONAR
Sound Navigation and Ranging
Used for searching underwater fishing
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per

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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 which the goods are put to. We find from the above table that 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 conside

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Refund Disposal Fortnight to handhold trade & industry in clearing pending GST refund claims from 16th July to 31st July,2018 -regarding.
22/2018/CCP/JMR Dated:- 18-7-2018 Trade Notice
Customs
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 Brok

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tted records to Customs EDI Systems
2. Rectification of EGM error code SB006 in respect of ICDs/Gateway ports
3. Rectification of all other error codes viz. 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 a

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IN RE: THE MAHARASHTRA RAJYA SAHAKRI SANG MARYADIT
GST
2018 (11) TMI 883 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (19) G. S. T. L. 369 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 18-7-2018
GST-ARA- 11/2018-19/B-70
GST
SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER
PROCEEDINGS
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by 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 particip

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institute registered under Maharasthra Co-operative Societies Act, 1960 on 13th of July 1918. The Maharashtra Rajya Sahakari Sangh Ltd. gives education to members of co-operative societies in the state (Total number is as on 31.3.2017) and training to office-bearers : committee members/ officers and employees of the co-operative societies. 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

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of the appellant – the assessee is a co-operative educational institute registered under Maharashtra State Co-op. Societies Act, 1960. The Sangh conducts cooperative education and training through its 13 co operative training centres. These training programmes are recognised as the essential minimum educational qualifications for principles 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 t

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the member society by virtue of section 68 of the Maharashtra Co-operative Societies Act, 1960.
g. The main objects of the society read that (i) To provide education and training to members of various co-operative societies, be present or future to make the movement of co-operative more people friendly and (ii) To homogenize the education structure 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 i

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ficit, if any was to be met through grants, this was sufficient to conclude that the institute was substantially financed by the Government. The requirement is that institute wholly or substantially financed by the Government. It does mean that one has to see the financing in each year. Financed here means that the institute was set-up with the finances made 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,

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financing such educational institution rightly should stop with the role as a facilitator by providing requisite legislation for enabling the member societies to contribute to the assessee and contribute mandatorily. Therefore, in our opinion, it is a case of indirect financing of the educational institution of the cooperative movement by the Government and it is evolved 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 coo

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herefore, in the circumstances, where the Government created a special enactment i.e. Maharashtra Co-operative Societies, 1960 in general and section 68 of the said Act in particular, where by an education fund is created in this regard to constitute a fund set apart to be the source of finance to the institution. Further, we are also Of the opinion, the assessee being 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 re

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embers of cooperative societies, office bearers, etc. and charging fees to participants for the same. They have claimed that they are not doing any commercial activity and are a non profit making organisation conducting this activity as a statutory requirement of Maharashtra Cooperative Societies Act, 1960.
3. On perusal of the documents submitted by the taxpayer in support of 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 fo

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rdingly fall under the purview of GST as detailed below:
5.1 Under CGST Act, 2017, Section 2 (84), the definition of “Person” includes –
(a) an individual;
(b) a Hindu Undivided Family;
(c) a company;
(d) a firm;
(e) a Limited Liability Partnership;
(f) an association of persons or a body of individuals, whether incorporated or not, in India or outside India
(g) any corporation established 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.

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–
(a) any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit;
(b) any activity or transaction in connection with or incidental or ancillary to sub-clause (a);
(c) any activity or transaction in the nature of sub-clause (a), whether or not there is volume, frequency, continuity or regularity of such transacti01v,
(d) supply or acquisition of 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 lic

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ll not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply.
6. A cooperative society (being a person as defined above) provides services to its members in the form of facilities or benefits to its members (in course of business) for a consideration. It has been admitted by the taxpayer in their application that they charge a fee from the participant members to whom the training is being imparted.
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 Co

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pt., Pune -I Commissionerate 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.
The applicant has submitted that they are a state level apex training institute registered under Maharashtra Co-operative Societies Act, 1960 and as per the provisions of Section 24 A of of M.C.S Act. 1960, they are giving education/ training, though their 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 l

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, State Government, Union territory administration under any training programme for which total expenditure is borne by the Central Government, State Government, Union territory administration are exempt.
3. Services provided by educational institution to its students, faculty and staff are exempt: Service supplied 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.
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-sur

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ng 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 seen that there is no funding from the Government directly or indirectly to the applicant as claimed by them in their submission and also that there may be other such State Federal Societies and State Apex Training Institutes which have been notified for providing 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 th

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loyees 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.
The second issue is that the services provided by them are not in respect of their own students, faculty and staff. 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 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

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perative societies to obtain training for their members from the applicant or other similar institutes. It seems that it would be optional for societies to avail of such services either from the applicant of some other such institute. Thus the member societies are not under any legal compulsion to become members and get training from the applicant only. The obtaining of such membership by way of payment of annual fees implies that the applicant would supply such educational and training services only to societies 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

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(for a subscription or any other consideration) of the facilities or benefits to its members”).
To summarise, the applicant, a co-operative educational institute registered under Maharashtra State Co-op. Societies Act, 1960, conducts cooperative education and training through its cooperative training centres and provides education to members of co-operative societies in the state Of Maharashtra and training to office-bearers : committee members/officers and employees of the co-operative societies. For providing such 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 defi

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Refund Disposal Fortnight to handhold trade & industry in clearing pending GST refund claims from 16th July to 31st July, 2018
PUBLIC NOTICE NO. 22/2018/CCP/JMR Dated:- 18-7-2018 Trade Notice
Customs
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: 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, 201

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B003/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 holders

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Gst on exempted service tax works contract
Query (Issue) Started By: – Bijay Bharat Dated:- 17-7-2018 Last Reply Date:- 24-7-2018 Goods and Services Tax – GST
Got 5 Replies
GST
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 th

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notified. This does not stipulates, from registration, But….
In view of above, it can be said that 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:
Sir
There 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 pe

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