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M/s. Sundram Fasteners Limited Versus Commissioner of GST & Central Excise
Central Excise
2018 (7) TMI 914 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 12-7-2018
E/40341, 40342, 40344, 40345, 40346/2018 – Final Order Nos. 41995-42000 / 2018
Central Excise
Hon'ble Ms. Sulekha Beevi C.S., Member (Judicial)
Shri M. Kannan, Advocate for the Appellant
Shri S.Govindarajan, AC (AR) for the Respondent
ORDER
The issue involved in all these appeals being the same, they were heard together and are disposed by this common order.
2. Brief facts are that the appellants were issued show cause notice proposing to disallow credit on various input services and for recovery of the same along with interest and for imposing penalties. After due process of law, the original authority disallowed credit on certain input services which was partly upheld by the Commissioner (Appeals). Aggrieved by the disallowance of credit on various input services, the appellant is now before t

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eriod involved in Appeal No.E/40341/018 and E/40346/2018 are both prior to 1.4.2011. In respect of group health insurance services, ld. counsel argued that in respect of demand in Appeal No.E/40341/2018, all the invoices except one is prior to 1.4.2011. That in any case, the said issue whether group health insurance service is eligible for credit has been held in favour of the appellant in their own case reported in 2016 (43) STR 454 (Tri. Chennai). The ld. counsel argued that the exclusion clause in definition of input service excludes insurance coverage given to employees during the journey availing leave travel allowance. The group health insurance in the present case was availed for covering the risk of employees and not for any leave travel allowance. That therefore the credit is eligible. It is also submitted that it is mandatory for the appellant to take insurance benefit for the employees as there are more than 600 employees under the assessee.
3.2 With regard to convention se

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appeals which are stated above, the said services were availed prior to 1.4.2011. With regard to other four appeals, the construction services were availed only for repair and maintenance, modernization and renovation of the premises. The authorities below have rejected stating that those have no nexus with the manufacturing activity and that they are not eligible for credit. He submitted that the appellants would be able to produce documents showing that construction services were availed by the appellant after 1.4.2011 for repair and modernization and therefore requested to remand this issue to the adjudicating authority.
3.4 With respect to rent-a-cab service, the ld. counsel was fair enough to submit that the services were not utilized for manufacture and therefore the appellant is not pressing with regard to the demand raised on this service.
3.5 Coating service (job work) was availed by the appellant for the purpose of processing of the intermediate products which were returned

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ligible for credit since they are not related to the manufacturing activity of the appellant. He relied upon the decision of the Tribunal in the case of Hindustan Petroleum Corporation Vs. Commissioner of Central Excise, Mumbai- 2018 (12) GSTL 305 (Tri. Mum.) and argued that in the said case, the medical insurance premium paid for employees of security agency (CISF) was disallowed by the Tribunal. He also relied upon the decision in the case of Maruti Suzuki India Ltd. Vs. Commissioner of Central Excise – 2017 (5) GSTL 18 (P&H) to argue that only  when the input services  have  nexus  with  the manufacturing activity, credit is eligible. The decision in the case of Commissioner of Central Excise Vs. Gujarat Heavy Chemicals Ltd. – 2011 922) STR 610 (Guj.) was relied by the ld. AR to argue that the credit in respect of security service provided in residential quarters was disallowed. He submitted that the authorities below have rightly disallowed the credit on va

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ices were availed for taking insurance coverage for the employees. Since the appellant has more than 600 employees, it is mandatory for them to take insurance coverage for their employees. The exclusion clause in the definition of input service excludes such kind of insurance which is taken for an employee during the leave travel allowance and it does not blanketly exclude all insurance service. Though the Tribunal in the case of Hindustan Petroleum Corporation (supra) has taken a view that medical insurance service is not eligible for credit, the said decision is not applicable to the facts of the present case for the reason that in the said case the insurance was taken for security agency i.e. CISF, who is not a direct employee of the assessee. In the appellant's own case, for the period after 1.4.2011, as reported in 2016 (43) STR 454, the Bench has allowed the credit. The relevant portion is reproduced as under:-
“4. So far as the Cenvat credit on insurance service is claimed, th

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el has submitted that commercial construction service were availed n Appeal Nos. E/40342/2018, E/40343/2018, E/40344/2018 and E/40345/2018 for the purposes of modernization and renovation of the factory and office premises. He submitted that the appellant would be able to furnish documents to establish the same. I therefore deem it fit to remand the matter on this issue to the adjudicating authority, which I hereby do.
6.4 With regard to commercial construction services which have been availed prior to 1.4.2011 as reflected in Appeal No.E/40341/2018 and E/40346/2014, I am of the view that the credit is eligible.
6.5 The authorities below have disallowed credit on coating service (job work). The appellant has submitted that the goods were sent for processing of the job work and during the disputed period, the job worker was not liable to pay service tax for the reason that the processing work did not amount to manufacture. Later Notification No.25/2012 dated 20.6.2012 came into force

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For these reasons, I hold that disallowance of credit on air-conditioner maintenance service is unjustified and requires to be set aside, which I hereby do.
7. From the above discussions, I hold that:-
(a) Group health insurance service, coating service (job work), commercial construction service prior to 1.4.2011 are eligible for credit.
(b) The issue with regard to commercial construction service after 1.4.2011 and convention service prior to 1.4.2011 are remanded to the adjudicating authority for reconsideration of the issue, who shall grant an opportunity of hearing.
(c) The air-conditioner maintenance service is allowed.
(d) Rent-a-cab service is disallowed and the demand along with interest and penalty in respect of the same are upheld.
8. The impugned orders are modified to the above extent.
The appeals are partly allowed and partly remanded in the above terms, with consequential relief, if any.
( Dictated and pronounced in open court )
Case laws, Decisions, Jud

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M/s Glazetech Industries Pvt. Ltd. Versus CCE & CGST, Jaipur
Central Excise
2018 (7) TMI 996 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 12-7-2018
Excise Appeal Nos. 50893 – 50894 of 2018 – Final Order No. 52494 – 52495/2018
Central Excise
Hon'ble Sh. V. Padmanabhan, Member (Technical)
Shri Arun Goyal, Advocate for the appellant
Sh. P. Juneja, AR for the respondent
ORDER
Per : V. Padmanabhan
The present appeals are filed against the Order-in-Appeal Nos. 19-20 (AK)CE/ JPR/2017 dated 22.01.2018 passed by the Commissioner (Appeals), Central Excise & CGST, Jaipur.
2. Brief facts of the case are that the appellant is engaged in the manufacture of goods falling under Chapter 76 of the First Schedule to Central Excise Tariff Act, 1985. The appellant defaulted in payment of duty for the months of April and June, 2014. The default for April and June, 2014 was cleared on 10.07.2014 and 19.08.2014 respectively. The balance duty over and above what was paid

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cate for the appellant and Sh. P. Juneja, ld. AR for the Revenue.
4. The argument advanced on behalf of the appellant is summarised below:
(i) Ld. Advocate submitted that during the period of default, the appellant was entitled to make use of this cenvat credit for payment of duty. Such view has been taken by the Hon'ble Gujarat High Court in the case of Indsur Global Ltd. vs. Union of India -2014-TIOL-2115- HC-AHM-CX. Hon'ble Gujarat High Court held as ultra virus the provision of Rule 8(3A) of the Cenvat Credit Rules, 2002. Even though the Revenue has challenged the decision of the Gujarat High Court before the Apex Court, the Delhi High Court in the case of Principal Commissioner of C. Ex. Delhi-I vs. Space Telelink Ltd. – 2017 (355) ELT 189 (Del.) has held that the principle laid down in the Gujarat High Court decision will still be applicable. By following the above two decisions, the CESTAT Chandigarh Bench has decided the issue in identical circumstances, in favour of the ass

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Gujarat High Court in the case of Indsur Global Ltd. (supra) has held as ultra virus the provision of Rule 8(3A). Similar view has been expressed by the Delhi High Court in the case of Space Telelink Limited (supra). The Delhi High Court has further held that even though the Gujarat High Court decision is stayed by the Apex Court in the appeal filed by Revenue, this does not deface the underlying basis of the judgement itself. By following the above decision, the Tribunal in the case of Ess Ess Kay Engg. Co. Pvt. Ltd. (supra) has already taken the view that duty demands are not justified and also the penalties. The observations of the Tribunal is reproduced below:
“6. Considering the basis of show cause notice is that during the defaulted period, the appellant has paid duty by utilizing cenvat credit account. The provisions of Rule 8(3A) have been declared ultra vires by the Hon'ble Gujarat High Court in the case of Indsur Global Ltd. and the Hon'ble Delhi High Court in the case of S

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pellant has violated the provision of Rule 8(3A) which has been declared ultra vires, in that circumstances, the credit can be utilised but under the said provisions, the goods are to be cleared on consignment wise, therefore, the goods are liable for confiscation. As the goods are not available for confiscation and not cleared under any bond, therefore, redemption fine cannot be imposed on the appellant in the light of larger bench decision in the case of Shiv Kripa Ispat Pvt. Ltd. -2009 (235) ELT 623 (Tri. LB) = 2009-TIOL-388-CESTAT-MUM-LB. Therefore, redemption fine imposed on the appellant is set aside.
8. We find that the penalties have been imposed on the appellant under Rule 25 & 26 of the Central Excise Rules, 2002. As the penalty under these rules can be imposed subject to the condition of section 11AC of the Act but the ingredients of section 11AC are missing. Therefore, the penalties under Rule 25 and 26 are not imposable on the appellant. Therefore, the penalties imposed

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Vijay Kuamr Nagpal Versus Union Of India
GST
2018 (7) TMI 1099 – MADHYA PRADESH, HIGH COURT – TMI
MADHYA PRADESH, HIGH COURT – HC
Dated:- 12-7-2018
W. P. No. 15420/2018(PIL)
GST
P.K. JAISWAL AND S.K. AWASTHI JJ.
Shri A.M. Mathur, learned Senor Counsel with Shri Vaibhav Asawa, learned counsel for the petitioner.
Shri Romesh Dave, learned Govt. Advocate for the respondent/State, on advance notice.
Heard on the question of admission as well as on the question of grant of interim relief.
Learned Senior Counsel for the petitioner has submitted that the GST regime has been introduced in the country on 1/07/2017 with the motive of creation of “One nation, One market, One tax”.
In pursuance to the aforesaid, in the year 2

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removed as GST regime has been introduced and, therefore, they cannot restrict or obstruct any of the vehicle from asking them to pay tax on the check posts except the GST.
Issue notice to the respondents No.3 and 5, on payment of PF within 3 working days, returnable within four weeks. In addition, Dasti notice, as per rules.
Shri Romesh Dave, learned Govt. Advocate accepts notice on behalf of the respondents No.1 and 2 and, therefore, no further notice is required and he prays for and is granted four weeks time to file reply. In the meanwhile, they shall take appropriate steps in pursuant to the notification issued on 24/06/2017 and 1/07/2017, by which all the check posts have been abolished, directing the officers for removal of the che

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KOHINOOR FLOORS PVT. LTD. Versus STATE TAX OFFICER, ERNAKULAM AND STATE TAX OFFICER, ERNAKULAM
GST
2018 (7) TMI 1744 – KERALA HIGH COURT – 2018 (18) G. S. T. L. 815 (Ker.)
KERALA HIGH COURT – HC
Dated:- 12-7-2018
W. P. (C) No. 39178 of 2017
GST
MR DAMA SESHADRI NAIDU, J.
FOR THE PETITIONER : SRI.ANIL D. NAIR, SRI.R.SREEJITH, SRI.P.JINISH PAUL, KUM.MEKHALA M.BENNY, SRI. ASISH MOHAN AND SRI. G. KRISHNAKUMAR (MALLYA)
FOR THE RESPONDENT(S) : SRI. SHAMSUDHEEN V. K.
JUDGMENT
In the petitioner's premises, the Sales Tax Department conducted search and seizure, under Rule 137 of the Kerala Goods and Services Tax Rules, 2017 (the Rules). It seized many documents, besides a pen drive. The Department, it seems, copied on

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orders, payment vouchers, credit bills, and so on. All these transactions must have, in the first place, been reflected in the ledgers maintained by the petitioner. Unless the petitioner produces those ledgers, the Department cannot part with the seized documents.
5. To elaborate, the Department apprehends that once it hands over the copies of the seized documents, the petitioner will fabricate records as if they had existed from the beginning. So the Department refused to provide copies of the documents seized. About the pen drive, the Government Pleader contends that it only contains copies of the documents available in the petitioner's system.
6. Indeed, the Department's apprehension seems well placed. But the petitioner went

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Sanjay Kumar Bhuwalka and Neeraj Jain Versus Union of India
GST
2018 (7) TMI 1745 – CALCUTTA HIGH COURT – 2018 (16) G. S. T. L. 185 (Cal.)
CALCUTTA HIGH COURT – HC
Dated:- 12-7-2018
CRM 3327 of 2018 CRAN 1800 of 2018 With CRM 3328 of 2018 CRAN 1799 of 2018
GST
Shivakant Prasad, J.
Mr. Sekhar Basu, Mr. Milon Mukherjee, Mr. Rajdeep Majumdar. for the petitioner.
Mr. K. K. Maiti. for the Union of India.
This is an application for relaxation and/or modification and/or waiver of conditions of bail vide order dated 9th July, 2018 passed by this Court in CRR 3327 of 2018 thereby enlarging the petitioner on bail in connection with Case No.C-216 of 2018 arising out of DGCEI F. No.29/KZU/KOL/GR.D of 2018 dated 13th May, 2018 under Section 132(1)(a), (b) and (c) of the Central Goods and Services Tax Act, 2017 inter alia directing that the accused be released on bail on furnishing bond of the sum of Rs. 50 lakh and on condition to deposit Rs. 39 crore to the Government Exch

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higher and the maximum amount not being less than Rs. 30,000/- or 50% of the tax whichever is higher.
Mr. K. K. Maiti, learned counsel appearing on behalf of the Union of India invites my attention to the provision of Section 49 of the Act which deals with payment of tax, interest, penalty and other amounts. My attention is also adverted to the provision as enshrined in Section 74 of the Act which provides for determination of tax not paid or short paid or erroneously refunded or input tax credit rightly availed or utilized by reason of fraud or any wilful mis-statement or suppression of facts. My attention is also invited to the GST Law Manual relating to prosecution and compounding of the offences punishable under this Act relating to prosecution for certain criminal offences prescribed under Section 132 of CGST/SGST Act, 2017.
The provisions as shown to this to me are undoubtedly very very stringent nittigrity of laws of the provision in this Act. In rebuttal, Mr. Basu draws my at

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gh the competent authority is modified to the extent that Sanjay Kumar Bhuwalka the petitioner on condition shall deposit 50% of the evaded amount of Rs. 27 crore. Similarly, the petitioner Neeraj Jain would deposit Rs. 6 crore being the 50% of evaded amount of Rs. 12 crore as a condition to obtain bail.
It is also pointed out by Mr. Basu assisted by Mr. Milon Mukherjee, learned senior advocate for the petitioners that in West Bengal, there is no surety having the strength to extant for surety of the petitioner to furnish bond of a sum of Rs. 50 lakh each. I am of the considered view that this condition of furnishing bond be modified to the sum of Rs. 10 lakh each which can be furnished by way of personal bond to be executed by the petitioners. Therefore, the order dated 9th July, 2018 is modified.
However, the order dated 9th July, 2018 be modified to the extent that the petitioners be enlarged on bail by furnishing personal recognition bond of Rs. 10 lakh each and on further condit

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Seeks to amend Notification No. S.O.87/PGSTR/2017/R.89/2017, dated 14th November, 2017
S.O. 114 /PGSTR/2017/R.89./2018 Dated:- 12-7-2018 Punjab SGST
GST – States
Punjab SGST
Punjab SGST
GOVERNMENT OF PUNJAB
DEPARTMENT OF EXCISE AND TAXATION
(EXCISE AND TAXATION-II BRANCH)
NOTIFICATION
The 12th July, 2018
NO.S.O. 114 /PGSTR/2017/R.89./2018- In exercise of the powers conferred by clause (g) of sub-rule (2) of rule 89 of the Punjab Goods and Services Tax Rules, 2017 read with No

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The Punjab Goods and Service Tax (Eighth Amendment) Rules, 2018.
G.S.R.46/P.A.5/2017/S.164/Amd.(16)/2018 Dated:- 12-7-2018 Punjab SGST
GST – States
Punjab SGST
Punjab SGST
GOVERNMENT OF PUNJAB
DEPARTMENT OF EXCISE AND TAXATION
(EXCISE AND TAXATION-II BRANCH)
NOTIFICATION
The 12th July, 2018
No. G.S.R.46/P.A.5/2017/S.164/Amd.(16)/2018.-In exercise of the powers conferred by section 164 of the Punjab Goods and Services Tax Act, 2017 (Punjab Act No.5 of 2017), and all other powers enabling him in this behalf, the Governor of Punjab, on the recommendations of the Council, is pleased to make the following rules further to amend the Punjab Goods and Service Tax Rules, 2017, namely:-
RULES
1. These rules may be called the Pun

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rule (2), the provisos shall be deemed to have been inserted and with effect from the 17th August, 2017; and
(b) in sub-rule (3), the second proviso shall be deemed to have been substituted on and with effect from the 17th August, 2017.
(vi) in FORM GST REG-01, under the heading 'Instructions for submission of Application for Registration', Serial No.16 shall be deemed to have been added on and with effect from the 17th August, 2017.
3. In the said rules, in Notification No.G.S.R.46/P.A.5/2017/S.164/Amd.(4)/2017 dated the 03rd October, 2017, for sub-rule (1) to amending rule 1, the following shall be substituted, namely:-
“(2) Save as otherwise provided in these rules, they shall be deemed to have come into force on and with ef

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effect from the 29th September, 2017.
(iv) in rule 119, the words and figures “the period specified in rule 117 or such further period as extended by the Commissioner” shall be deemed to have been substituted on and with effect from the 29th September, 2017.
(v) in rule 120, the words and figures “the period specified in rule 117 or such further period as extended by the Commissioner” shall be deemed to have been substituted on and with effect from the 29th September, 2017.
(vi) in rule 120A, the marginal heading “Revision of declaration in FORM GST TRAN-1” shall be deemed to have been inserted on and with effect from the 29th September, 2017.
(vii) in FORM GST REG-29,-
(a) the heading “APPLICATION FOR CANCELATION OF REGISTRATION OF M

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Raj Electrical Engineering Works Versus The Commissioner Customs, Central Excise and Service Tax (Now the Commissioner of CGST and Central Excise, Commissionerate Aurangabad.)
Service Tax
2018 (9) TMI 1672 – BOMBAY HIGH COURT – 2018 (18) G. S. T. L. 595 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 12-7-2018
CENTRAL EXCISE APPEAL NO.6 OF 2018
Service Tax
PRASANNA B. VARALE & S. M. GAVHANE,JJ.
Mr. Alok Sharma, Advocate h/f Mr R.S. Indani, Advocate for appellant;
Mrs. (Dr.) Kalpalata Patil Bharaswadkar, Advocate for respondent sole.
ORAL ORDER :
Heard Mr. Alok Sharma, learned Counsel appearing for the appellant and Mrs. Bharaswadkar Patil, learned Counsel for the respondent sole.
2. There is no dispute on the facts that the appellant subjected himself to a scheme known as 'Voluntary Compliance Encouragement Scheme'.(for short, 'VCES'). Certain rules are also framed and they are known as 'Service Tax Voluntary Compliance Encouragement Rules, 2013&#39

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irstly reference is made to the absence of the appellant, the tribunal subsequently by observing that VCES being a self contained code under Finance Act, 2013 without any appeal provision in the scheme dismissed the appeal holding that the appeal is not maintainable. He then submits that dismissal of appeal on the ground of no provision in the scheme is unsustainable. He further submits that basic Act itself provides remedy of appeal and merely because such appeal remedy is not a part of same scheme, the appeal ought not to have dismisseed by the tribunal on the ground that there is no provision in the scheme of appeal.
6. Mr. Sharma, learned Counsel appearing for the appellant by placing heavy reliance on the judgment of Madras High Court in the matter of Narasimha Mills Pvt. Ltd. vs. Commissioner of C. Ex.(Appeals), Coimbatore, reported in 2015(39) S.T.R. 795 (Mad.) submitted that the very issue fall for consideration before the Madras High Court and the Madras High Court, by specif

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by Madras High Court as well as Punjab & Haryana High Court.
9. It would be useful to refer observations of Madras High Court on the issue in paragraph Nos. 18 and 19, which read thus :
“18. Further, it is relevant to note that the Service Tax Voluntary Compliance Encouragement Scheme, 2013 has been introduced by the Central Government, in exercise of the powers conferred by sub-sections (1) and (2) of Section 114 of the Finance Act, 2013 (17 of 2013) with effect from 13-5-2013 by Notification 10/2013 and hence, it is not a self-contained code, but is to be construed as a part and parcel of the Chapter V of the Act, 1994 in view of the contents of Section 105 of the Finance Act, 2013. Therefore, when the said scheme itself is construed as part and parcel to the Finance Act, all other provisions of the Act except to the extent specifically excluded would automatically apply to proceedings under the scheme and consequently, I am of the view that the order, dated 15-11-2013 passed by th

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COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX AND CENTRAL EXCISE Versus CADILA HEALTH CARE LTD.
Service Tax
2018 (11) TMI 181 – GUJARAT HIGH COURT – 2018 (18) G. S. T. L. 47 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 12-7-2018
R/TAX APPEAL NO. 591 of 2018 With R/TAX APPEAL NO. 593 of 2018 With R/TAX APPEAL NO. 614 of 2018
Service Tax
MR M.R. SHAH AND MR A.Y. KOGJE, JJ.
For The Petitioner : MR DHAVAL D VYAS (3225)
For The Respondent : MR HIRAK P.GANGULY for MR HASIT DAVE (1321)
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. There is a broad consensus between learned Advocates appearing for the respective parties to dispose of the present appeals on the same terms as per the order passed in other group of ap

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passed by the learned Tribunal is hereby quashed and set aside and the appeals are restored to the file of the learned Tribunal and to avoid any further multiplicity of proceedings /appeals before this Court, it is directed that the appeals on remand be kept pending till the decision of this Court in the case of Essar Steel India Ltd., being Tax Appeal No.444 of 2016.
8. The appeals are partly allowed to the aforesaid extent.
9. It will be open for the Revenue /Department to file note /application for fixing early date of hearing of Tax Appeal No.444 of 2016, as the decision on the said appeal would have direct bearing in pending appeals before the learned Tribunal, which are reported to be more than 100.”
3. In view of the above a

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The Puducherry Goods and Services Tax (Seventh Amendment) Rules, 2018.
G.O. Ms. No. 36 Dated:- 12-7-2018 Puducherry SGST
GST – States
Puducherry SGST
Puducherry SGST
GOVERNMENT OF PUDUCHERRY
COMMERCIAL TAXES SECRETARIAT
(G.O. Ms. No. 36, Puducherry, dated 12th July 2018)
NOTIFICATION
In exercise of the powers conferred by section 164 of the Puducherry Goods and Services Tax Act, 2017 (Act No.6 of 2017), the Lieutenant-Governor, Puducherry, hereby makes the following rules further to amend the Puducherry Goods and Services Tax Rules, 2017, namely: –
1. (1) These rules may be called the Puducherry Goods and Services Tax (Seventh Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from the

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Sadguru Electricals Versus The Commissioner Customs, Central Excise and Service Tax (Now the Commissioner of CGST and Central Excise, Commissionerate Aurangabad.)
Service Tax
2018 (12) TMI 1429 – BOMBAY HIGH COURT – TMI
BOMBAY HIGH COURT – HC
Dated:- 12-7-2018
CENTRAL EXCISE APPEAL NO. 7 OF 2018
Service Tax
PRASANNA B. VARALE & S. M. GAVHANE,JJ.
Mr. Alok Sharma, Advocate h/f Mr. R.S. Indani, Advocate for appellant;
Mr. D.S. Ladda, Advocate for respondent sole.
ORAL ORDER :
Heard Mr. Alok Sharma, learned Counsel appearing for the appellant and Mr. Ladda, learned Counsel for the respondent sole.
2. There is no dispute on the facts that the appellant subjected himself to a scheme known as 'Voluntary Compliance Encouragement Scheme'.(for short, 'VCES'). Certain rules are also framed and they are known as 'Service Tax Voluntary Compliance Encouragement Rules, 2013'. The appellant runs enterprise namely Sadguru Electricals and is engaged in providing taxable servic

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contained code under Finance Act, 2013 without any appeal provision in the scheme dismissed the appeal holding that the appeal is not maintainable. He then submits that dismissal of appeal on the ground of no provision in the scheme is unsustainable. He further submits that basic Act itself provides remedy of appeal and merely because such appeal remedy is not a part of same scheme, the appeal ought not to have dismissed by the tribunal on the ground that there is no provision in the scheme of appeal.
6. Mr. Sharma, learned Counsel appearing for the appellant by placing heavy reliance on the judgment of Madras High Court in the matter of Narasimha Mills Pvt. Ltd. vs. Commissioner of C. Ex.(Appeals), Coimbatore, reported in 2015(39) S.T.R. 795 (Mad.) submitted that the very issue fall for consideration before the Madras High Court and the Madras High Court, by specific observation, dismissed the appeal on the ground that there is no remedy of appeal in the scheme would be giving unfet

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ssue in paragraph Nos. 18 and 19, which read thus :
“18. Further, it is relevant to note that the Service Tax Voluntary Compliance Encouragement Scheme, 2013 has been introduced by the Central Government, in exercise of the powers conferred by subsections (1) and (2) of Section 114 of the Finance Act, 2013 (17 of 2013) with effect from 13.5.2013 by Notification 10/2013 and hence, it is not a self-contained code, but is to be construed as a part and parcel of the Chapter V of the Act, 1994 in view of the contents of Section 105 of the Finance Act, 2013. Therefore, when the said scheme itself is construed as part and parcel to the Finance Act, all other provisions of the Act except to the extent specifically excluded would automatically apply to proceedings under the scheme and consequently, I am of the view that the order, dated 15-11-2013 passed by the Assistant Commissioner of Central Excise, the second respondent herein is appealable under Section 85 of the Act, 1994.”
“19. The rem

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COMMISSIONER, CGST AND CENTRAL EXCISE Versus NARESH F. SHAH
Central Excise
2019 (1) TMI 821 – GUJARAT HIGH COURT – 2018 (362) E.L.T. 972 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 12-7-2018
R/Tax Appeal No. 741 of 2018 with R/Tax Appeal No. 742 of 2018
Central Excise
M.R. Shah and A.Y. Kogje, JJ.
Shri P.Y. Divyeshvar, for the Appellant.
JUDGMENT
[Judgment per : M.R. Shah, J. (Oral)]. – As common question of law and facts arises and as such one is with respect to the Company and another is with respect to the Director of the Company, both these Appeals are decided and disposed of together by this common order.
2. The facts leading to the present Tax Appeals in nutshell are as under;
2.1 Proceedings were initiated against the Company for recovery of Rs. 43,38,450/- on account of wrong availment of Cenvat Credit duty on Linear Alkyl Benzene (LAB) (hereinafter referred to as 'LAB'). It was alleged that LAB was not at all utilized as input in the final produ

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ded statement of Shri Vijay A. Vora, Excise Clerk of M/s. Ganesh Chem Tech that it did not contain LAB. I further find that the adjudicating authority has heavily relied on post facto opinion of Dr. Y.K. Agarwal, Director of School of Science, Gujarat University which based on technical literature of the final products manufactured by the appellants stating that LAB is not essential raw material/ingredient in the manufacture of their final products. I find that such opinion was obtained in some another case of the Commissionerate and not in the case of appellants & the copy of the opinion of Dr. Y.K. Agarwal, Director of School of Science, Gujarat University was also not given to the appellants in the interest of Principle of natural justice. The question for consideration in this case is if the initial confessional statements of the clerk and director of the appellants are sufficient evidence to prove serious charges of irregular availment of cenvat credit if there is no evidence othe

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receipt/acknowledgment on the body of LRs. He was having no records showing where the said tankers of LAB were unloaded practically. It is universal fact that the onus to prove irregular availment of Cenvat credit is on the part of Department. In view of the statement of dealer Shri Jayesh M. Bhimani & transporter Shri Ravindra M. Shah it cannot be disputed that LAB was not delivered by dealer Jayesh M. Bhimani to the appellants at Sr. No. 1 of the table above. The initial statement of Naresh F. Shah that he used to take payment by cheque & get back 98% by cash is also not reliable as there is no evidence to support this statement as investigation even did not confirm that there have been cash withdrawal by Shri Jayesh M. Bhimani from any of his accounts. I therefore hold that the Department has to prove with documentary evidences about diversion of 519.511 Mts. of LAB during the year 2001-02 to 2003-04 by the appellants or dealer after taking Cenvat credit thereon. The case of non us

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therefore, the adjudicating authority was not in a position to take the samples for chemical test. However, it is required to be noted that as such the matter was remanded to the learned Commissioner (Appeals) for the very purpose by specifically observing that the onus is on the Department to prove that the assessee wrongly availed the Cenvat Credit on the tax paid on LAB, which was used in the input of the final product, and therefore, unless and until the Department was able to prove that in the final product the LAB was not used/utilized at all, the Department was not justified in holding that the assessee wrongly availed the Cenvat Credit on LAB. So far as other circumstances are concerned, statement of other persons, which were earlier relied upon by the original adjudicating authority while passing the first order, were as such considered and dealt with by the Learned Commissioner (Appeals) and in fact the Learned Commissioner (Appeals) came to a conclusion on the basis of the

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GST RATE AND SAC CODE FOR FOOD/MEAL SUPPLY
Query (Issue) Started By: – Bhavesh Sharma Dated:- 11-7-2018 Last Reply Date:- 14-7-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Hello Everyone,
I Want Clarification for following query:
PARTY A (BAKERS & CATERERS BUSINESS)
PARTY B (COMPANY)
Party A Only Supplies Meals (3 Times Lunch a day daily and it pays the bill in the end of month instead at same time) like food delivering done by hotels to Party B. So in this case what will be the GST Rate and SAC Code. and whether it will fall under contract or not.
I am taking in SAC 996333
Please clarify …
Reply By ANITA BHADRA:
The Reply:
GST Rate will be 18% .
Recently Gujrat AAR said – Food delivery outside hotel premises

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INPUTS RETURN
Query (Issue) Started By: – TAX solution Dated:- 11-7-2018 Last Reply Date:- 12-7-2018 Goods and Services Tax – GST
Got 8 Replies
GST
Dear Experts
We have purchased some inputs goods and same has been rejected by our quality control department. Now, we want to send back to vendor.
My queries are
* How to send goods to vendor? Whether through Tax Invoice or Challan or Debit note.
* Whether we have to reverse ITC or credit /increase to tax liability?
* When purchased return to vendor , purchase return in which GSTR return should be reported by us, whether GSTR- 1 or GSTR-2 .
* Who will sign the tax invoice? Any intimation is required to tax authority, if any employee is authorized for sign to tax invoices?

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othing to do .You return the rejected goods on the basis of Credit note Issued by your Vendor.
Reply By KASTURI SETHI:
The Reply:
Thanks a lot, Sh.Shivkumar Shama Ji.
Reply By Alkesh Jani:
The Reply:
Sir,
For sake of clarity and supporting the views expressed by our experts, the Q.No.33 of FAQ is reproduced below:-
“Q 33. Is there any provision in GST for tax treatment of goods returned by the recipient?
Ans. Yes, Section 34 deals with such situations. Where the goods supplied are returned by the recipient, the registered person (supplier of goods) may issue to the recipient a credit note containing the prescribed particulars. The details of the credit note shall be declared by the supplier in the returns for the month during which s

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Credit of GST paid in respect of Motor Vehicle
By: – Ashwarya Agarwal
Goods and Services Tax – GST
Dated:- 11-7-2018

This is a general update for frequently asked queries in relation to credit of GST paid on purchase of Motor Vehicle and other incidental & traveling expense. There has been contradictory opinion on this issue by various experts, however I would like to share my view.
As per Sec 17(5) of the CGST Act, credit shall not be available for GST paid in respect of motor vehicle and other conveyance, EXCEPT when it is used for:
* Transportation of GOODS;
* Further supply of such vehicle;
* Transportation of Passenger;
* Imparting training on driving;
Further credit of GST paid on Rent-a-cab is also not avail

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taxpayers may have missed to take credit of GST paid on such expense as discussed above, incurred for FY 2017-18; do not worry as you can avail the same now, before filing of GSTR 3B return for the month of September 2018.
Note: If there is any invoice dated of FY 2017-18 for which you have failed to take credit, your can take the same even now before filing of GSTR 3B return for the month of September 2018.
I hope you find the same helpful.
Reply By KASTURI SETHI as =
Dear Sh.Aggarwal Ji,
Nice article. This article was required to clear the air. Timely and very very informative and useful. One must not be a victim of phobia of the department, if intention as well as interpretation and understanding of law is crystal clear. Mostly s

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VERIFICATION OF DOCUMENTS AND CONVEYANCES
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 11-7-2018

Rule 138B provides for verification of documents and conveyances. Rule 138 B(1) provides that the Commissioner or an Officer empowered by him in this behalf may authorize the proper officer to intercept any conveyance to verify the e-way bill or the e-way bill number in physical form for all inter-State and intra-State movement of goods.
The Commissioner shall get Radio Frequency Identification Device readers installed at places where the verification of movement of goods is required to be carried out and verification of movement of vehicles shall be done through such device readers where the e-way bill has been mapped with the said device.
RFID Device
RFID stands for Radio Frequency Identification Device. RFID uses electromagnetic fields to automatically identify and track tags attached to objects. The tags contain electronically stored informatio

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o be carried out by any other officer after obtaining necessary approval of the Commissioner or an officer authorized by him in this behalf.
RFID system
An RFID system consists of three components-
* a scanning antenna and transceiver (often combined into one reader, also known as an interrogator);
* transponder, and
* the RFID tag.
An RFID tag consists of a microchip, memory and antenna.
The RFID reader is a network-connected device that can be permanently attached or portable. It uses radio frequency waves to transmit signals that activate the tag. Once activated, the tag sends a wave back to the antenna, where it is translated into data.
There are two main types of RFID tags-
* active RFID; and
* passive RFID.
An active RFID tag has its own power source, often a battery. A passive RFID tag, on the other hand, does not require batteries; rather it receives its power from the reading antenna, whose electromagnetic wave induces a current in the RFID tag's antenna. T

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is 125 KHz. LF RFID has short transmission ranges, generally anywhere from a few inches to less than six feet.
High Frequency
High-frequency RFID systems range from 3 MHz to 30 MHz, with the typical HF frequency being 13.56 MHz. The standard range is anywhere from a few inches to several feet.
Ultra High Frequency
UHF RFID systems range from 300 MHz to 960 MHz, with the typical frequency of 433 MHz and can generally be read from 25-plus feet away.
Microwave RFID systems run at 2.45 GHz and can be read from more than 30-plus feet away.
The frequency used will depend on the RFID application, with actual obtained distances sometimes varying considerably from what might be expected. For example, when the U.S. State Department announced it was to issue electronic passports enabled with an RFID chip, it said the chips would only be able to be read from approximately four inches away. However, the State Department was soon confronted with evidence that RFID readers could skim the infor

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ing healthcare, manufacturing, retail, business and home use.
RFID vs. barcodes
Using RFID as an alternative for barcodes is increasing in use. Among its benefits, RFID can identify individual objects, animals or people without direct line of sight, can identify many items often a thousand or more simultaneously, and can scan items anywhere from inches to feet away depending on the type of tag and RFID reader. Read time for RFID tags is typically less than 100 milliseconds.
Barcodes, on the other hand, require direct line of sight and closer proximity than an RFID tag. They also take longer to read, generally ½ second or more per tag. Because barcodes represent a product type versus an individual object represented by an RFID tag, additional information cannot be gleaned from them. In addition, barcodes are not read-write, and because they are printed on the outside of the object are limited in terms of reuse thanks to wear and tear. RFID tags are more rugged and better pro

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this can be a national security concern or life-or-death matter.
Because RFID tags do not have a lot of compute power, they are unable to accommodate encryption, such as might be used in a challenge-response authentication system. One exception to this, however, is specific to the RFID tags used in passports, basic access control (BAC). Here, the chip has sufficient compute power to decode an encrypted token from the reader, thus proving the validity of the reader. At the reader, in turn, information printed on the passport is machine-scanned and used to derive a key for the passport. There are three pieces of information used the passport number, the birth date of the passport holder and the passport's expiration date along with a checksum digit for each of the three. Researchers have pointed out that this means passports are protected by a password with considerably less entropy than is normally used in e-commerce, and further that the key is static for the life of the passpo

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hnology with smart sensors and/or GPS technology allows sensor data including temperature, movement and location to be wirelessly transmitted.
Inspection and detention of goods
Rule 138C provides for inspection and verification of goods. Rule 138C(1) provides that a summary report of every inspection of goods in transit shall be recorded online by the proper officer in Part A of Form GST EWB – 03 within twenty four hours of inspection and the final report in Part B of Form GST EWB – 03 shall be recorded within three days of such inspection.
Rule 138C(2) provides that where the physical verification of goods being transported on any conveyance has been done during transit at one place within the State or in any other States no physical verification of the said conveyance shall be carried out in the Statement, unless a specific information relating to evasion of tax is made available subsequently.
Form GST EWB – 3
The form GST EWB – 3 has two parts, as Part A and Part B. The proper

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M/s Bansal Classes Pvt. Ltd. Versus Commissioner, Central Goods and Service Tax
Service Tax
2018 (7) TMI 1012 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 11-7-2018
Appeal No. ST/51467/2018-ST(SM) – Final Order No: 52488/2018
Service Tax
Hon'ble Mr. V. Padmanabhan, Member (Technical)
Sh. Sanjiv Agarwal, Adv. for the appellant
Sh. P. R. Gupta, DR for the respondent
ORDER
Per : Mr. V. Padmanabhan
The present appeal is filed against the Order-in-Appeal No. 137/2017-18 dated 15/3/2018.
2. The appellant is engaged in providing the Commercial Training and Coaching Services and for such service they are registered for payment of service tax. They entrusted various advertising agencies for publishing advertiseme

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or publishing of advertisement.”
4. He submitted that such service tax has been paid under the category of Advertising Services which are allowable as Cenvat Credit on input services as per the definition of Rule,2(l) of the CCR, 2004. Advertising Services are specifically mentioned the inclusive portion of the definition of Rule 2(l). He also submitted that it is not open to the department to dispute the classification of input service at the hand of the receiver of such services. Finally he submitted that the appellant was entitled to the Cenvat Credit.
5. On behalf of Revenue, we heard Shri P.R. Gupta ld. DR. He justified the impugned order and submitted that no service tax is payable on the payment to print media since the service tax

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appellant.
8. The ld. Counsel for the appellant has drawn attention to the copies of a few invoices which are available on record. He has also emphasized the relevant part of the agreement entered into by the appellant with advertising agencies. Perusal of such agreement indicates that the activities carried out by the advertising agencies included the preparation of such advertising as well as getting them published in print media. The service tax charged by such advertising agencies appear to be for service of the Advertisement Agency rendered to the appellant.
9. The definition of input service under Rule 2(l) of the CCR, 2004 provides for credit on any service used for providing the output service. In addition, in the inclusive part

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M/s True Count Systems Pvt. Ltd. Versus Union of India And 6 Others
GST
2018 (7) TMI 1330 – ALLAHABAD HIGH COURT – 2018 (15) G. S. T. L. 483 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 11-7-2018
Writ Tax No. 965 of 2018
GST
Hon'ble Bharati Sapru And Hon'ble Dinesh Kumar Singh, JJ.
For the Petitioner : Nishant Mishra
For the Respondent : A.S.G.I.,C.S.C.,Ramesh Chandra Shukla
ORDER
Heard Sri Nishant Mishra, learned counsel for the petitioner, Sri Krishna Agarwal, learned Counsel for the respondent nos.1, & 2, Sri Ramesh Chandra Shukla, learned Counsel for the respondent nos.3, 4 & 5 learned Standing Counsel appears for the respondent nos.6 and 7.
The petitioner seeks a writ of mandamus directing the GST council

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A.F. BABU, PROPRIETOR, BRIGHT AUTO AGENCIES Versus GOODS AND SERVICE TAX COUNCIL, THE STATE GST OFFICER, PATTAMBI, THE GOODS AND SERVICES TAX NETWORK PVT. LTD. AND UNION OF INDIA, NEW DELHI
GST
2018 (7) TMI 1418 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 11-7-2018
W. P. (C). No. 5032 of 2018
GST
MR. DAMA SESHADRI NAIDU, J.
For The Petitioner : Sri. Mahesh V. Menon
For The Respondent : Sri.P.R.Sreejith, SC, Central Board of Excise And Customs, Sri.N.Nagaresh, Assistant Solicitor General, Sri. P. R. Sreejith, SC, Goods And Services Tax Network and Sri.Shamsudheen V.K, Government Pleader
JUDGMENT
The petitioner was a registered dealer under the Kerala Value Added Tax Act, now migrated to the Goods and S

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5 of the circular outlines the procedure the Nodal Officers is to follow. It reads:
5. Nodal officers and identification of issues
5.1 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.
5.2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the Common Portal in relation to an identified issue, due to which the due process as envisaged in law could not be completed on the Common Portal.
5.3 Such an application shall enclose evidences as may be needed for an identified issue to establish bona fide attempt on

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the issue resolution.
5. So, in this case also, the petitioner may apply to the Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner's uploading FORM GST TRAN-1, without reference to the time-frame. Ordered so.
6. To set a time frame, I may also observe that if the petitioner applies within two weeks after receiving this judgment, the Nodal Officer will consider and take steps within a week thereafter. If the uploading of FORM GST TRAN-1 is not possible for reasons not attributable to the petitioner, the authority will also enable him to take credit of the input tax available at the time of migration.
With these directions, I dispose of the Writ Petition.
Case laws, Decisio

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M/s. M.G. Shahani & Company (Bombay) Pvt. Ltd. Versus The Commissioner Of State GST Tax
GST
2018 (7) TMI 1743 – KERLA HIGH COURT – TMI
KERLA HIGH COURT – HC
Dated:- 11-7-2018
W. P. (C) No. 22055 of 2018
GST
MR. DAMA SESHADRI NAIDU J.
Petitioner:  by Advs. Sri. Harisankar V. Menon Smt. Meera V. Menon Smt. K. Krishna
Respondent:  R3 BY ADV. Sri. N. Nagaresh, Assistant Solicitor General R2 by Adv. Sri. P.R. Sreejith, SC, Goods and Services Tax Network R by Adv. Sri. Shamsudheen, Government Pleader  
JUDGMENT
DAMA SESHADRI NAIDU, J.
The petitioner was a registered dealer under the Kerala Value Added Tax Act, now migrated to the Goods and Services Tax regime. To use the input tax available to his credit

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t reads:
5. Nodal officers and identification of issues
5.1 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.
5.2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the Common Portal in relation to an identified issue, due to which the due process as envisaged in law could not be completed on the Common Portal.
5.3 Such an application shall enclose evidences as may be needed for an identified issue to establish bona fide attempt on the part of the taxpayer to comply with the due process of law
5.4 These applicat

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Ms Anuradha Sharma Versus Commissioner (Appeals), Customs GST and Central Excise, Lucknow
Service Tax
2018 (8) TMI 26 – CESTAT ALLAHABAD – 2019 (24) G. S. T. L. 443 (Tri. – All.)
CESTAT ALLAHABAD – AT
Dated:- 11-7-2018
ST/70384/2018-ST[SM] – FINAL ORDER NO. 71542/2018
Service Tax
Smt. Archana Wadhwa, Member (Judicial)
Shri Shambhu Chopra (Proxy Counsel) for Appellant
Shri Gyanendra Kumar Tripathi (AC) AR for Respondent
ORDER
Per: Archana Wadhwa
After rejecting the request for adjournment, I proceed to decide the appeal itself, inasmuch as the notice of hearing was given well in advance to the appellant and there is no force in the prayer of the learned Advocate that he has not gone through full papers as he got them only yesterday. If a notice of hearing has been sent to the assessee well in advance, it was the responsibility of the assessee to make full arrangements for engaging the advocate in advance and to hand over papers to the advocate. Further I also

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ment nor was discharging its obligation under the “Renting of Immovable Property”, by paying the appropriate service tax.
3. On the above basis proceedings were initiated against them by way of issuance of a show cause notice dated 03.09.2012 raising demand of duty of service tax to the extent of Rs. 4,27,030.00/- and also proposing imposition of penalty. It is also seen that as the appellant had already paid service tax amounting to Rs. 1,62,454/- along with interest of Rs. 29,325/- the proposal was to confirm the balance service tax.
4. During the course of adjudication the appellant contested the quantum of the service tax on the ground that they are entitled to the initial threshold exemption for the years 2009-10 and 2010-11 as also on the ground that the premises were lying vacant for the period July, 2011 to December, 2011.
5. While adjudicating, the Deputy Commissioner, Service Tax, Agra accepted the assessee's stand of entitlement to the threshold exemption. As regards the

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elied upon for the purpose of arriving at the value of the services.
The said order of the Original Adjudicating Authority stands upheld by the Commissioner (Appeals) and hence the present appeal.
6. The have raised only two grounds before the Original Adjudicating Authority i.e., one relatable to the threshold exemption and the other relatable to the premises lying vacant during a particular period. Both said issues stand accepted by the Adjudicating Authority. It is not the appellant's case that they have not provided services during the period in question and the only dispute is to the value of the same. Whereas appellant have contended that the receipts reflected in their bank accounts should be considered as the value of the services, the Revenue has gone by the terms of the agreement entered into between the appellant and their tenants as also by the value reflected in Form 26 AS.
After hearing the learned AR I note that Form 26 AS is a document under the Income Tax Law reflec

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M/s Mamta Textiles Versus Commissioner, Customs, GST & Central Excise, Lucknow
Service Tax
2018 (8) TMI 812 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 11-7-2018
APPEAL No. ST/70385/2018-ST[SM] – A/71530/2018-SM[BR]
Service Tax
Mrs. Archana Wadhwa, Member (Judicial)
Shri Shambu Chopra for Appellant
Shri Gyanendra Kumar Tripathi, Asst. Commr. (AR), for Respondent
ORDER
Per: Archana Wadhwa
After rejecting the request for adjournment made by learned Advocate Shri Shambu chopra as his Vakalatnama is not on record and the appeal stands filed by the earlier advocate, whose No Objection certificate has not been produced, I proceed to decide the appeal itself.
2. Heard learned AR and have gone through the im

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r passed by Commissioner (Appeals) confirming the demand along with interest and imposition of penalty of identical amount under Section 78 of the Finance Act 1984. In addition penalty of Rs. 10,000/- was also imposed under Section 77. The said order of Original Adjudicating Authority was upheld by Commissioner (Appeals) and hence the present appeal.
5. On going through the impugned order I find that the appellants had taken a categorical stand before the authorities below that their books of account were being maintained on mercantile/accrual basis, as and when the commission was received by them. The commission accrued in one particular year is not received actually on that year and stands reflected in the ST-3 returns of the subsequent

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e that the payment which has been received by the appellant in one particular period was on account of the services belonging to the previous financial year. In such a scenario, the appellant's stand has to be verified correctly from their books of account and should be matched properly. As the said exercise can be done only at the level of Original Adjudicating Authority, I set aside the impugned order and remand the matter to Original Adjudicating Authority for fresh decision after verification of asseess's claim from the record maintained by them. The issue of penal liability is kept open for the appellant to be addressed before the Original Adjudicating Authority.
8. The appeal is allowed by way of remand.
(Dictated in Court)
Case

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P. SANKARA NARAYANAN, PROPRIETOR, C.B. FURNITURE AND INTERIOUS Versus GST COUNCIL, REPRESENTED BY ITS REVENUE SECRETARY AND EX-OFFICIO SECRETARY TO THE GST COUNCIL SECRETARIATE, COMMISSIONER, OFFICE OF THE GST COUNCIL SECRETARIAT, NEW DELHI AND THE COMMISSIONER OF STATE TAX, THIRUVANANTHAPURAM
GST
2018 (8) TMI 1414 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 11-7-2018
WP (C). No. 9100 of 2018
GST
MR. DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS.SRI.ANIL D. NAIR, SRI.R.SREEJITH  SRI.P.JINISH PAUL KUM.MEKHALA M.BENNY SRI.ASISH MOHAN, SRI.G.KRISHNAKUMAR (MALLYA) AND SRI.ACHYUT K PADMARAJ
For The Respondents : SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R3 BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN

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o address the grievances of taxpayers due to technical glitches on GST Portal.” Paragraph 5 of the circular outlines the procedure the Nodal Officers is to follow. It reads:
5. Nodal officers and identification of issues 5.1 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.
5.2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the Common Portal in relation to an identified issue, due to which the due process as envisaged in law could not be completed on the Common Portal.
5.3 Such an application shall enclos

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s Court on earlier occasions permitted the petitioners to apply to the additional 4th respondent for the issue resolution.
5. So, in this case also, the petitioner may apply to the additional 4th respondent, the Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner's uploading FORM GST TRAN-1, without reference to the time-frame. Ordered so.
6. I may also observe that if the petitioner applies within two weeks after receiving this judgment, the Nodal Officer will consider and take steps within a week thereafter. If the uploading of FORM GST TRAN-1 is not possible for reasons not attributable to the petitioner, the authority will also enable him to take credit of the input tax avai

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IN RE: SHREE CONSTRUCTION
GST
2018 (9) TMI 854 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (17) G. S. T. L. 504 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 11-7-2018
GST-ARA-09/2018-19/B-65
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 SHREE CONSTRUCTION, the applicant, seeking an advance ruling in respect of the following questions :
1. What Tax rate to be charged by the sub-contractor to main contractor on Works Contract Services (WCS) pertaining to railways original works contract?
2. Whether to charge tax rate of 12% GST or 18% GST?
At the outset, we would like to make i

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of original works pertaining to railways.
3. As per SR.No-12 in press release of 25th meeting of GST council held at New Delhi on 18-01-2018, the rate of GST applicable to main contractor should be levied by sub-contractor.
4. As per Notification No-01/2018- Central Tax (Rate) dated 25-01-2018 the service provided by sub-contractor to afore main contractor for railway original works contract services is not specified in the notification.
Statement containing the applicant's interpretation of law and/or facts, as the case may be, in respect of the aforesaid question(s) (i.e. applicant's view point and submissions on issues on which the advance ruling is sought)
1. As per our view point even though we are sub-contractor providing service to main contractor for original contract work pertaining to railways, we should charge 12% GST only and not 18% as applicable in other cases.
2. The contract for original works pertaining to railways remains the same works contract,
3. As there is

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onstruction for Railways.
d. As per the schedule of GST rate for a service under GST, the composite value of works contract is classified along with rates of tax as hereunder.
Extract of classification of services
Section 5 Construction Services
SAC Code
Description of Services
Rate in %
9954
(v) Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017, supplied by way of construction, erection, commissioning, or installation of original works pertaining to,-
(a) railways, excluding (including substituted from 25/01/ 2018)) monorail and metro;
(b) a single residential unit otherwise than as a part of a residential complex;
(c) low-cost houses up to a carpet area of 60 square metres per house in a housing project approved by competent authority empowered under the 'Scheme of Affordable Housing in Partnership' framed by the Ministry of Housing and Urban Poverty Alleviation, Government of India;
(d) low

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nment, State Government, Union territory, a local authority; a Governmental Authority or a Government Entity. Provided that where the services are supplied to a Government Entity, they should have been procured by the said entity in relation to a work entrusted to it by the Central Government, State Government, Union territory or local authority, as the case may be.
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(x) Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017 provided by a sub-contractor to the main contractor providing services specified in item (vi) d above to the Central Government; State Government, Union territory, a local authority, a Governmental Authority or a Government Entity. Provided that where the services are supplied to a Government Entity, they should have been procured by the said entity in relation to a work entrusted to it by the Central Government; State Government, Union territory or local authority, as the case may be.

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rt 2:. Our Submission and Explanation
In support of our charging tax @ 12%, we submit our submission as under –
1. As per the section 2 (119) of the CGST Act, 2017 “works contract” means a contract for building, construction, fabrication, completion, erection, installation fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property, wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract;
2. As per Section 2 (5) of CGST Act, 2017 “agent” means a person, including a factor, broker, commission agent, arhatia, del credere agent, an auctioneer or any other mercantile agent; by whatever name called, who carries on the business of supply or receipt of goods or services or both on behalf of another;
3. Contractor and sub-contractor are not defined under the CGST Act, 2017 but as per the general definition.
a. Contractor means a person or firm that under

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ract between the main contractor and the employer.
7. As per the definition of agent above a agent is a person who carries on the same business of supply and / or receipt of goods or services or both on behalf of another. Thus we can call a subcontractor as an agent also who is undertaking the same supply of service for main contractor.
8. It can also be said that, the sub-contractor is only an agent of the contractor and the works job undertaken by him passes directly from the sub-contractor to the employer.
9. As the work get transferred directly to the employer by the subcontractor the works contract remains the same and therefore leads to the conclusion that there is only one contract which is undertaken by the contractor as well as subcontractor.
10. In our case, it is the transaction of a works contract, where the property in goods passes directly to the employer as and when we as a subcontractor have transferred and put our material and services for of execution of civil wor

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ection 5 of classification of services even though not specified separately.
14. Thus the rate applicable for civil works contract carried out for railways in para (v) of heading 9954 of section 5 classification of services should be applicable to subcontractor also.
03. CONTENTION – AS PER THE CONCERNED OFFICER
2. As directed the application has been examined with reference to provisions of Chapter XVII of CGST Act, 2017 and it is submitted that-
i) Prima facie it appears that the question on which the advance ruling is sought under CGST Act doesn't fall under any of the category mentioned in sub section (2) of Section 97 of the Act as the question, put forth by the applicant is only relating to charging of rate of tax on the Works Contract Services (WCS) by the sub contractor to main contractor in respect of railways original works contract.
ii) On examination of the Notification No.20/2017-Central Tax (Rate) dated it appears that in terms of serial number (v) of Table, Comp

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ed is 12%. However, for construction services other than (v), rate of tax is prescribed as 18%. Therefore, Notification 01/2018-Central Tax (Rate) dated 25.01.2018, the services provided by sub contractor to main contractor for railway original works contract services are excluded from the main entry (ix) and (x) of the said notification. All other construction services other than specified services are therefore attract rate of 18% tax which includes services provided by sub contractor to main contractor for railway original works Contract,
(v) The contention of the Applicant, that their services are covered by the original works contract specified in para (ix) and (x) of amended Notfn.No.01/2018-CT(Rate) dated is not correct in as much as the said Notification has classified all other Works Contracts relating to Construction services in head (xii) prescribing rate of 18%. The minutes of meeting dated 18.01.2018 para-12 quoted by the Applicant has mention Of Government Entity but doe

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, Pune-I Commissionerate appeared and made written submissions which were taken on record .
05. OBSERVATIONS
We have gone through the facts of the case, submissions made by the applicant and the department and documents on record.
The applicant has submitted that they are supplying Works Contract Services (WCS), as a sub-contractor, to the main contractor who in turn are supplying WCS for original work pertaining to the Railways. They have made further submissions that when a contractor awards either wholly or partially, the work to a sub-contractor, then the work to be performed by both of them remains the same and identical to what is specified in the contract between the main contractor and the employer, in this case, the Railways and as per Notification No-20/2017- Central Tax (Rate) dated 22-08-2017 the rate of GST is 12% for composite supply of works contract supplied by way of construction, erection, commission or installation of original works pertaining to railways. They a

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r favour, of the said Notfn, as amended by Notfn No. 20/2017-Central Tax (Rate) dated 22.10.2017 is reproduced below:-
Sl. No.
Chapter, Section or Heading
Description of Service
Rate (per cent)
Condition
3.
Heading 9954
(Construction services)
(v) Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017, supplied by way of construction, erection, commissioning, or installation of original works pertaining to,-
(a) railways, excluding monorail and metro;
(b) ………………………………………………………….;
(c) ………………………………………………………….;
(d) ………………………………………………………….;
(e) ………………………………………………………….;or
(f) ………………………………………………………….;
6
-]
A plain reading of Sr. No. 3, clause (v) reveals that 'composite supply of WCS sup

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of Works Contract pertaining to Railways and therefore chargeable to tax @ 12% (6% of CGST and SGST each). However, the benefit of 12% tax rate would be available to the applicant only if the Works Contract services provided by them are Composite supply of works contract as defined in clause(119) of section 2 of the Central Goods and Services Tax Act, 2017, supplied by way of construction, erection, commissioning, or installation of original works pertaining to railways.
Thus, in respect of Sr. No. 3 of Notification No. 11/2017 dated 28.06.2017 as amended uptill today, even the sub-contractor providing services of composite supply of works Contract in respect of original works pertaining to railways would be covered for concessional rate of GST @ 12% as given under Sr. No. 3 of Notification No. 11/2017 as amended referred above.
06. In view of the deliberations as held hereinabove, we pass an order as follows:
ORDER
(under section 98 of the Central Goods and Services Tax Act, 2017

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Responsive Industries Ltd. Versus Commissioner of CGST & CE Mumbai
Customs
2018 (10) TMI 766 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 11-7-2018
Applications No. C/EH/85678/2018 & E/EH/85680/2018, C/MISC/85679/2018 & E/MISC/85681/2018, Appeal No. C/86868/2018 & E/86870/2018 – A/87430-87431/2018
Customs
Mr. S.K. Mohanty, Member (Judicial)
Shri Vishal Agrawal, Advocate with Shri Ramnath Prabhu, Advocate for appellant
Shri S.R. Nair, E.O with Shri M.R. Melvin, Supdt. (AR) for respondent
ORDER
Per: S.K. Mohanty
Appellant has filed these miscellaneous applications, seeking for early hearing of appeals and for stay of operation of the impugned order/communication of the Asst. Commissioner (Adj), Central GST & Central Excise, Palghar.
2. When the matter was called, learned D.R. appearing for Revenue, at the outset, submits that the appeals against the decision of Asst. Commissioner dated 3rd May, 2018 is not maintainable before the Tribunal in terms of Se

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se of Amit Electronics v. Commissioner of Customs (Prev.).
4. Heard both sides and examined the records.
5. The Assistant Commissioner (Adj.) in his letter dated 03.05.2018 had conveyed that he had been directed by the adjudicating authority for communicating to the appellant for not granting cross examination of the witnesses. The said communication of the Asst. Commissioner cannot be considered as an order / decision by the Commissioner of Customs, as an adjudicating authority inasmuch as such letter is silent about the mode of direction being given by the adjudicating authority and also there is no available record to show that some order was passed or decision taken by the Commissioner and the same was merely communicated/ conveyed by the Assistant Commissioner. Since sub-section (1) of Sections 129A / Section 35B of the Act recognizes the decision or order passed by the Commissioner of Customs / Central Excise as adjudicating authority alone, for entertaining the appeal by the a

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Delhi High Court in the case of Amit Electronics (supra) relied upon by the learned Advocate for the appellant is distinguishable from the facts and circumstances of the present case inasmuch as in such cited case, there was an order dated 03.05.2013, passed by the Commissioner of Customs (Prev.), which was merely communicated by the Asst. Commissioner. Since in the case of Amit Electronics (supra), the order was passed by the competent authority as contemplated under Section 129A of the Act, such order will be considered as appealable order and the Hon'ble High Court has held that appeal is maintainable against such order passed by the Commissioner of Customs (Preventive).
6. In view of foregoing discussion and analysis, I do not find any merits in the applications filed by the appellant, and accordingly, the same are dismissed. Since, the appeals stand in narrow compass regarding determination of their maintainability before Tribunal, which have already been held in the previous par

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