Section 142(6)(a) CGST Act mandates cash refunds for any admissible credit claims.
Case-Laws
Central Excise
Refund in cash – In view of Section 142(6)(a) of Central Goods & Service Tax Act, a
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ATTACHMENT OF BANK ACCOUNTS – NOT TO BE IN THE NATURE OF DRASTIC MEASURE FOR A TEMPORARY PERIOD AND CANNOT BE EXERCISED IN A ROUTINE MANNER
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 28-6-2018
In 'Remark Flour Mills Private Limited v. State of Gujarat' – 2018 (4) TMI 1292 – GUJARAT HIGH COURT the petitioner company is engaged in the supply of wheat flour, meslin flour, cereal flour etc.,. They are supply such goods in packets which are branded as well as unbranded. The packing of more than 25 Kgs. are branded while the others are unbranded.
The Departmental officers visited the petitioners on 20.02.2018 and noticed that the petitioners were not paying GST either on branded or unbranded goods. Under coercion the Authorities collected three cheques for a mount of ₹ 19.47 lakhs. The Revenue remitted the cheque which was returned back since the petitioner instructed the bank not to clear the cheques.
On 27.02.2018 the Department issued a
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st grievance
The High Court in respect of the first grievance of the petitioner that the Departmental authorities forcibly collected cheques even before the tax liability of the petitioner was ascertained. In this respect the High Court held that the action of the department cannot be countenanced. The collection of post dated cheques under coercion during raid is not permissible when no tax has been confirmed or crystallized. This is not to suggest that if the assessee voluntarily gives such cheques in order to avoid harsher measures of provisional attachment of premises, stock or bank accounts, the High Court held that the action of the authorities must fail in such a case. The High Court found that there did not appear to be any justification of the departmental authorities to collect and the petitioners to voluntarily give cheques. The High Court, therefore directed the department to return such cheques to the petitioner.
Second grievance
The second grievance of the petitioner i
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r any willful misstatement or suppression of facts.
Section 74(1) of the Act provides that if the proper officer would issue notice for recovery of unpaid tax on account of fraud, willful misstatement or suppression of facts why the amount specified in the notice should not be recovered with interest and penalty. Section 74(2) provides for time limit for issuance of such notice. Section 74(3) provides that the proper officer is to serve a statement containing the details of tax unpaid, short paid or erroneously refunded for a period other than covered under section 74(1) where a notice has been issued for any period. Thus section 74(3) cannot be exercised for expanding or enlarging the liability arising out of show cause notice under section 74(1) from the said period. Section 74(1) and 74(3) are envisaged to cover separate periods.
The High court held that the respondents are wholly incorrect in issuing a fresh show cause notice for the same period of July 2017 to 20.02.2018 which n
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State of Gujarat [ 2015 (3) TMI 258 – GUJARAT HIGH COURT ]' – 2014 SC Online Gujarat 14217. The Supreme Court held with reference to VAT Act, the following, on the power of provisional attachment by the Department-
* The power of provisional attachment is in the nature of extraordinary measure available to the revenue authorities for the purpose of protecting the interest of Government revenue.
* Even before any assessment is made, such powers can be exercised if the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary to do so.
* This power is of drastic nature which is coupled with the duty to exercise such power with due care and in appropriate cases.
* The Authority exercising such powers must have a strong prima facie case to show that upon ultimate conclusion of the assessment, there is a likelihood of tax, interest and/or liability being attached on a dealer and further that pending such consideration,
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Sentini Ceramica Pvt. Ltd Versus CCT, Guntur GST
Central Excise
2018 (7) TMI 165 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 28-6-2018
Appeal No. E/30197/2018 – Final Order No. A/30648/2017
Central Excise
Hon'ble Mr. P. Venkata Subba Rao, Member ( Technical )
Shri G. Prahlad, Advocate for the Appellant
Shri Guna Ranjan, Superintendent /AR for the Respondent
ORDER
[ Order per: Mr. P.V. Subba Rao ]
1. This appeal has been filed by the appellant against Order-in-Appeal No. GUN-EXCUS-000-APP-134-17-18, dated 30.11.2017.
2. Heard both sides and perused the records. The issue in brief is that the appellant is the manufacturer of ceramic glazed tiles and is paying Central Excise Duty. He had also availed CENVAT credit on various raw materials used in the manufacture of ceramic glazed tiles. For manufacturing these items, the appellant also needs natural gas which is available at ONGC well which is located 30 K.M. away from their factory. The appellant pum
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issued to the appellant alleging irregular availment of CENVAT credit as the compressor was moved out of the factory and asking them to reverse the credit in terms of Rule 3(5) of CENVAT Credit Rules, 2004. The Show cause notice also proposed imposition of penalty and recovery of interest.
3. After following due process of law, Ld. Lower authority has confirmed the demands along with interest and penalty. Aggrieved, the appellant approached Commissioner (Appeals) who, vide impugned Orderin- Appeal dated 30.11.2017 upheld the Order-in-Original dt. 22.07.2015 in toto and rejected the appeal.
4. Ld. Counsel for the appellant argues that their final products cannot be manufactured without gas and the only way to get the gas is by pumping it from well which is 30 KM away from their factory. Hence they used the compressor to pump the gas into the tankers and bring it to the factory. In that sense, he argues that the gas well should be treated as an extension of their factory premises and h
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Indore [2006(194) E.L.T. 3(S.C) wherein Hon'ble Supreme Court has allowed credit on inputs viz; explosives used for blasting mines to produce limestone for use in the manufacture of cement by the assessee.
(e) CCE, Madurai vs. India Cements Ltd. [2002(150)E.L.T. 341 (Tri.- Chennai).
(f) Synthetic Packers Pvt. Ltd. vs. CCE (Appeals-I), Bangalore [2009(240)E.L.T. (Tri.-Bang.)]
(g) Jaypee Bela Plant vs. CCE, Bhopal [2005(180)E.L.T 31 (Tri.-Del.)]
(h) CCE Salem vs. Bharath Sanchar Nigam Ltd. [2017(7)G.S.T.L. 129 (Mad.)]
5. Ld. DR vehemently opposed the appeal and reiterated the arguments made in the Order-in-Original and Order-in-Appeal. It is his submission that credit can be allowed as per the definition of “capital goods” under Rule 2 (a) of CENVAT Credit Rules 2004. This rule allows credit in respect of capital goods used “in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in office or outside the factory of the manuf
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rried on.”
6. He relied on the following case laws:
(i) Rajhans Metals Pvt. Ltd. vs CCE Rajkot [2007-TIOL-1491- CESTAT-AHM)]
(ii) Atul Auto Limited vs. CCE, Rajkot [2009(237)E.L.T 102 (Tri.- Ahmd)]
(iii) Rajshanti Metals Pvt. Ltd. vs. CCE, Rajkot [2015(39)S.T.R. 875 (Tri.-Ahmd.)]
(iv) Leamak Healthcare Pvt. Ltd. vs. CCE, Ahmedabad [2017(49) S.T.R. 605 (Tri.-Ahmd.)]
7. There are a number of cases where the CENVAT credit has been disallowed to the appellants when the capital goods were used in places such as wind mills which are located far from the factory of the manufacturer, although the electricity so generated is ultimately provided to the factory for use in manufacture of final products. He argues that the ratio of these cases applies to the instant case.
8. Heard both sides and perused the records. I find that the definition “Capital goods” under Rule 2(a) of CCR 2004 specifically requires the goods to be used in the factory of the manufacturer of the final product
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treated as a part of the factory of the manufacturer. It is true that the goods are finally required for the manufacture and so are many other raw materials sourced from various places without which the manufacture cannot take place. All these places from where raw materials are sourced, cannot be treated as part of the factory of the manufacturer. There is nothing on record to show that the well is part of the registered premises of the factory of the manufacturer. I, therefore, find that the demand is sustainable and CENVAT credit is inadmissible. It needs to be reversed along with interest. However, in view of the cases cited by the appellant, I find that he has enough reason to suspect that they were entitled to the credit and hence I cannot attribute any malafide intent and therefore, I set aside the penalty imposed on them. The appeal is allowed partly to the extent of setting aside the penalties imposed in the Order-in-Original.
9. The appeal is allowed to the extent of settin
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Naga Distributors Versus Union of India
GST
2018 (7) TMI 1096 – KERLA HIGH COURT – 2018 (16) G. S. T. L. 15 (Ker.)
KERLA HIGH COURT – HC
Dated:- 28-6-2018
WP(C). No. 20978 of 2018
GST
MR. DAMA SESHADRI NAIDU J.
PETITIONER: BY ADV. SRI. K.S. HARIHARAN NAIR
RESPONDENTS: BY ADV. SRI. N. NAGARESH, ASSISTANT SOLICITOR GENERAL R4 BY ADV. SRI. P.R. SREEJITH, SC, GOODS AND SERVICES TAX NETWORK R BY GOVERNMENT PLEADER
Dama Seshadri Naidu, J.
JUDGMENT
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 at the time of migration, the petitioner had to upload FORM GST TRAN-1 within the stipulated time
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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 applications shall be collated by the nodal officer and forwarded to GSTN who would on r
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The Jharkhand Goods and Services Tax (Fifth Amendment) Rules, 2018.
S.O. No. 43-26/2018-State Tax Dated:- 28-6-2018 Jharkhand SGST
GST – States
Jharkhand SGST
Jharkhand SGST
COMMERCIAL TAXES DEPARTMENT
–
Notification
28th June, 2018
Notification No. -26/2018 – State Tax
S.O. No. 43. Dated- 28th June, 2018 In exercise of the powers conferred by section 164 of the Jharkhand Goods and Services Tax Act, 2017 (12 of 2017), the State Government hereby makes the following rules further to amend the Jharkhand Goods and Services Tax Rules, 2017, namely:-
(1) These rules may be called the Jharkhand Goods and Services Tax (Fifth Amendment) Rules, 2018.
(2) Save as otherwise provided, This notification shall be deemed to be effective from 13th June 2018.
2. In the Jharkhand Goods and Services Tax Rules, 2017, –
(i) in rule 37, in sub-rule (1), after the proviso, the following proviso shall be inserted, namely:-
“Provided further that the value of supplies on account of any
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d is claimed under sub-rules (4A) or (4B) or both; and
(b) Adjusted Total turnover shall have the same meaning as assigned to it in sub-rule (4).”
(iv) with effect from 01st July, 2017, in rule 95,in sub-rule (3), for clause (a), the following shall be substituted, namely:-
“(a) the inward supplies of goods or services or both were received from a registered person against a tax invoice;”;
(v) in rule 97, in sub-rule (1), after the proviso, the following proviso shall be inserted, namely:-
“Provided further that an amount equivalent to fifty per cent. of the amount of cess determined under sub-section (5) of section 54 read with section 11 of the Goods and Services Tax (Compensation to States) Act, 2017 (15 of 2017), shall be deposited in the Fund.”;
(vi) in rule 133, for sub-rule (3), the following shall be substituted, namely:-
“(3) Where the Authority determines that a registered person has not passed on the benefit of the reduction in the rate of tax on the supply of goods o
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Act.
Explanation: For the purpose of this sub-rule, the expression, “concerned State” means the State in respect of which the Authority passes an order.”;
(vii) in rule 138, in sub-rule (14), after clause (n), the following clause shall be inserted, namely:-
“(o) where empty cylinders for packing of liquefied petroleum gas are being moved for reasons other than supply.”;
(viii) in FORM GSTR-4, in the Instructions, for Sl. No. 10, the following shall be substituted, namely:-
“10. For the tax periods July, 2017 to September, 2017, October, 2017 to December, 2017, January, 2018 to March, 2018 and April, 2018 to June, 2018, serial 4A of Table 4 shall not be furnished.”;
(ix) with effect from 01st July, 2017, in FORM GST PCT-01, in PART B,
(a) against Sl. No. 4, after entry (10), the following shall be inserted, namely:-
“(11) Sales Tax practitioner under existing law for a period of not less than five years
(12) tax return preparer under existing law for a period of not less than
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following Statement shall be substituted, namely:-
“Statement 5B
[see rule 89(2)(g)]
Refund Type: On account of deemed exports
(Amount in Rs)
Sl.No.
Details of invoices of outward supplies in case refund is claimed by supplier/Details of invoices of inward supplies in case refund is claimed by recipient
Tax paid
GSTIN of the supplier
No.
Date
Taxable Value
Integrated Tax
Central Tax
State Tax/Union Territory Tax
Cess
1
2
3
4
5
6
7
8
9
;”
(xi) in FORM GST RFD-01A, in Annexure-1,
(a) for Statement 1A, the following Statement shall be substituted, namely:-
“Statement 1A [see rule 89(2)(h)]
Refund Type: ITC accumulated due to inverted tax structure [clause (ii) of first proviso to section 54(3)]
Sl.No.
Details of invoices of inward supplies received
Tax paid on inward supplies
Details of invoices of outward supplies issued
Tax paid on outward supplies
GSTIN of the supplier
No.
Date
Taxable Value
Integrated Tax
Central Tax
State Tax/Union territory
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The Jharkhand Goods and Services Tax (Sixth Amendment) Rules, 2018.
S.O. No. 45-28/2018-State Tax Dated:- 28-6-2018 Jharkhand SGST
GST – States
Jharkhand SGST
Jharkhand SGST
COMMERCIAL TAXES DEPARTMENT
–
Notification
28th June, 2018
Notification No. 28/2018-State Tax
S.O. No. 45 Dated 29th June, 2018 In exercise of the powers conferred by section 164 of the Jharkhand Goods and Services Tax Act, 2017 (12 of 2017), the State Government hereby makes the following rules further to amend the Jharkhand Goods and Services Tax Rules, 2017, namely:-
(1) These rules may be called the Jharkhand Goods and Services Tax (Sixth Amendment) Rules, 2018.
(2) Save as otherwise provided, this notification shall be deemed to be effective f
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gible to use any of the Goods and Services Tax Identification Numbers for the purposes of the said Chapter XVI.”;
(ii) in rule 138C, after sub-rule (1), the following proviso shall be inserted, namely:-
“Provided that where the circumstances so warrant, the Commissioner, or any other officer authorised by him, may, on sufficient cause being shown, extend the time for recording of the final report in Part B of FORM EWB-03, for a further period not exceeding three days.
Explanation.- The period of twenty four hours or, as the case may be, three days shall be counted from the midnight of the date on which the vehicle was intercepted.”;
(iii) in rule 142, in sub-rule (5), after the words and figures “of section 76”, the words and figures “o
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M/s. Sungwoo Gestamp Hitech India Pvt. Ltd. Versus CGST & CE, Chennai Outer
Central Excise
2018 (9) TMI 895 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 28-6-2018
E/40082/2018 – Final Order No. 41977/2018
Central Excise
Shri P. Dinesha, Judicial Member
Ms. P. Srija, Advocate for the Appellant
Shri R. Subramaniyam, AC (AR) for the Respondent
ORDER
The brief facts are that M/s. Sungwoo Gestamp Hitech India Ltd., the appellants herein are engaged in the manufacture of 'Automobile Parts and Seats parts” and are availing Cenvat credit on inputs, capital goods and input services. On verification of records it was found that the appellant had availed 'Rent-a-Cab' services for the staff/employees working in the off
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Ld. Commissioner (Appeals) confirmed the denial of Cenvat credit, but set aside the penalty imposed by the adjudicating authority. Aggrieved by the same, the appellant is before this forum.
2. Heard Ms. P. Srija, Ld. Advocate for the appellant and Shri R. Subramaniyam, AC (AR) for the Revenue.
3. It was argued by the Ld. Advocate for the appellant that Cenvat credit was denied on Rent-a-Cab services that was availed for transportation of staff/employees of the appellant firm on the ground that these services do not qualify as input services, as per Rule 2 (l) of the CCR, 2004, since this Rule was amended with effect from 01.04.2011. This Rule provides for certain exclusions and Cenvat credit in respect of services specifically excluded fr
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n by the Ld. Advocate, it is seen that the Tribunal followed the decision of the Hon'ble High Court of Bombay in the case of Ultratech Cement Ltd. – 2010 (20) STR 577 (Bom.) wherein, it has been held that Rent-a-Cab services availed by the assessee for the employees bringing them from their residence to factory or vice versa, qualifies as input services. By following the ratio of the above decision of the Tribunal, I hold that prior to 01.04.2011, Rent-a-Cab services are eligible input services and Cenvat credit cannot be denied on these input services. Accordingly, the impugned order is set aside and the appeal allowed with consequential reliefs, if any.
(Operative portion of the order pronounced in open court)
Case laws, Decisions, J
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Rs 2,000 cr GST evasion unearthed in 2 months
GST
Dated:- 27-6-2018
New Delhi, Jun 27 (PTI) The GST investigation wing has detected tax evasion of over ₹ 2,000 crore in two months, and data analysis reveals that only 1 per cent of over 1.11 crore registered businesses pay 80 per cent of the taxes, a senior official said today.
CBIC member John Joseph said alike small businesses who are making mistakes while filing GST returns, multinationals and big corporates too have slip-ups.
"If you look at the way tax revenues are paid, it gives an alarming picture. We have registration of more than 1 crore businesses.
"But if you look at where the tax is coming from, it is less than 1 lakh people paying 80 per cent of
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Input tax Credit on GST for Foreign Inward Remittance
Query (Issue) Started By: – JAISIMHA GOPALARAO Dated:- 27-6-2018 Last Reply Date:- 28-6-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Dear Sir,
We provide Export of Services as well we provide domestic Services. We receive proceeds in foreign currency for exports. Banker charge Bank charges and also GST @ 18%. Can we take input credit on the same.
Reply By Alkesh Jani:
The Reply:
Sir, In my point of view, banking service
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Bill to ship to transaction
Query (Issue) Started By: – Venukumar HJ Dated:- 27-6-2018 Last Reply Date:- 1-7-2018 Goods and Services Tax – GST
Got 3 Replies
GST
Dear All,
Company "A" registered in "India" entered into contract with Company "B" located in "France" for manufacture and supply of Goods. "B" Company instructed "A" to supply goods to "SEZ unit Nagpur" in India. Company "A" subcontracted the contract to "C". "C" will deliver the goods to "A". Later contract terms changed to "A" has to deliver goods "SEZ unit in AP" to "D". Then Goods will be assembled in SEZ AP. Responsibility of
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M/s Hotel Leela Venture Ltd. Versus Commissioner (Audit), Central Excise & CGST, Jodhpur
Central Excise
2018 (7) TMI 970 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 27-6-2018
Excise Appeal No. E/51358/2018 [SM] – A/52443/2018-SM[BR]
Central Excise
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Narendra Pati, Advocate
Present for the Respondent: Mr. H. Saini, D.R.
ORDER
PER: RACHNA GUPTA
Present is an Appeal against the Order of Commissioner (Audit) dated 16.02.2018.
2. The appellant herein is engaged in providing the taxable services of accommodation in hotel for lodging purposes. The Department, during an audit for the period 01.04.2010 to 31.03.2015 and subsequently for April, 2015 to March, 2016 observed that the appellant has availed a total of cenvat credit on annual maintenance of lifts installed in the building. It is the case of the Department that the said service do not fall in the category of the input service. Re
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ervice as such fall in the exclusion clause of the input definition. It is submitted that the said allegation is not at all sustainable. The decision of Mumbai Tribunal in the case Redhat India Pvt. Ltd. vs Principal Commissioner of Pune, 2016 (44) STR 45 (Tri.-Mumbai) has been impressed upon to submit that the maintenance of lift in the appellants premises is very much the part of the inclusive definition of the input services. The impugned Order is accordingly, prayed to be set aside and the Appeal is prayed to be allowed.
5. While rebutting these arguments, Ld. DR has impressed upon para 8 of the impugned order where the Commissioner (Audit) has explained the definition of Work Contract and has mentioned that the repair or renovation of a building or civil structure is included in the construction service. While justifying the said Order it is submitted by the Ld. DR that the decision of Tribunal Hyderabad has rightly been relied upon by Commissioner (Audit) and the decision has be
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d the said imported goods are his inputs or capital goods; or
(ii) any service used by a provider of output service for providing an output service; or
(iii) any service used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal,
and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal, but excludes:
(A) service portion in the execution of a works con
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epair of the premises of provider of output services. It is an apparent and admitted fact that the appellant is providing output services of accommodation/ lodging from the said premises. The use of word repair and maintenance in the Works Contract, to my opinion, is not applicable to the given circumstances as the definition of Works Contract has to be read as a whole and the perusal thereof makes it clear that when the repair, maintenance, etc. is the part of a contract where construction is also an activity then that renovation will be covered under the definition of Work Contract else it will be very much inclusive part of the definition of input. It is observed that the India Cements Ltd. vs CCE, Guntur has wrongly been relied in the impugned order. The issue therein was the cleaning and maintenance of garage which was held to be exclusive of the definition of input service. More precisely applicable is the case of Red Hat India Pvt. Ltd. vs Principal Commissioner, Pune 2016 (44)
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M/s KLJ Developers Pvt. Limited Versus CE, C&CGST, Delhi-III
Service Tax
2018 (7) TMI 1444 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 27-6-2018
S.T. Appeal No. 53710 of 2015 – ST/A/52349/2018-CU[DB]
Service Tax
Mr. V. Padmanabhan, Member (Technical) And Mr. Ajay Sharma, Member (Judicial)
Sh. Devesh Parekh, C. A. for the appellant
Sh. A. K. Singh, AR for the Respondent
ORDER
Per: V. Padmanabhan:
The present appeal is directed against the Order-in-Original No. 27/ST/SVS/DL-III/2015 dated 31.07.2015 passed by the Pr. Commissioner, Service Tax, Delhi-II.
2. The appellant is engaged in construction of complex and are registered for providing service tax under various services in connection with construct
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3. With the above background, we heard Sh. Devesh Parekh, ld. C.A. for the appellant as well as Shri A. K. Singh, ld. AR for the Revenue.
4. Ld. C.A. submitted that 'Car Parking Charges' would not be liable for service tax under the category of 'Construction of Complex Service'. He submitted that the appellant was already discharging service tax on the amount recovered from the customers towards covered car parking charges. The dispute is only with reference to open car parking. He referred to the definition of 'preferential location or external or internal development of complex service' under Section 65(105)(zzzzu). He submitted that the said service has excluded services in relation to parking place, alongwith the services under (zzzh).
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s recovered by the appellant form the buyers of apartment towards 'Car Parking Charges'. Such charges are admittedly towards provision of open car parking place within the residential complex. After perusal of the definition of residential complex, we note that provision of parking place within the residential complex is very much included within the definition of residential complex and the same will be liable to payment of service tax under the said category. Consequently, we find no reason to interfere with the impugned order. The adjudicating authority is directed to recomputed the demand with the above mentioned discussion.
7. In the result, appeal is rejected.
(Dictated and pronounced in the open Court).
Case laws, Decisions, Ju
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K. REGHUNATHAN, PROPRIETOR, K.R. INN Versus ASSISTANT COMMISSIONER OF STATE TAXES STATE GOODS AND SERVICES TAX DEPARTMENT, THRISSUR, ASSISTANT COMMISSIONER COMMERCIAL TAXES COMPLEX, PUTHOLE, THRISSUR AND STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM
VAT and Sales Tax
2018 (7) TMI 1518 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 27-6-2018
W.P (C) No.17900 of 2018
CST, VAT & Sales Tax
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : Sri. Tomson T. Emmanuel
For The Respondent : Sri. V. K. Shamsudheen, Government Pleader
JUDGMENT
The petitioner, running a bar attached to a hotel, is a registered dealer under the Kerala General Sales Tax Act.
2. Despite the petitioner's fil
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some other case. The judgment, the petitioner claims, was rendered on identical facts.
4. Yet again, the first respondent passed Ext.P12 reiterating the earlier findings. Aggrieved, the petitioner has filed this writ petition. He wants the Court to quash the first respondent's Ext.P12 order, issued for 2013-14.
5. The petitioner's counsel has submitted that the first respondent has ignored the binding judgment from this Court and rendered the Ext.P12 in a mechanical manner. He has also brought to my notice the judgment, dt.11.04.2018, in WP(C) No. 1286 of 2018, to contend that this Court, earlier, under similar circumstances, directed the authority to reconsider the issue.
6. The learned Government Pleader submitted that the petitioner h
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could redress. And that forum is available under Section 34 of the Act.
8. As a result, I conclude that the petitioner has an efficacious alternative remedy. So this writ petition must fail. It does. It is dismissed.
9. The petitioner, in fact, bona fide pursued his remedy here, and this Court now holds that the petitioner's remedy lies elsewhere- before the appellate authority. Fairness demands, under these circumstances, that the petitioner be given time to approach the appellate forum. In the meanwhile, the respondent should not take steps that may render the petitioner's statutory remedy illusory.
So I hold that respondent should defer coercive steps for six weeks from today, and the petitioner, in the meanwhile, approach the appell
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Appointment of Authorities to exercise the powers u/s 105.GST Act 2017
05/2018-State Tax Dated:- 27-6-2018 Kerala SGST
GST – States
Kerala SGST
Kerala SGST
GOVERNMENT OC KERALA
KERALA STATE GOODS AND SERVICES TAX DEPARTMENT
Notification No. 05/2018-State Tax
No. CT/22046/2017-C1
Thiruvananthapuram, 27 June, 2018
In exercise of the powers conferred by sub-section (1) of section 5 of the Kerala Goods and Services Tax Act, 2017 (20 of 2017) (hereinafter referred to as the said A
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In Re: M/s. Ultratech Cement Limited
GST
2018 (7) TMI 1761 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – 2018 (15) G. S. T. L. 455 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – AAR
Dated:- 27-6-2018
ARA-34/2017-18/B-56
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 M/S. Ultratech Cement Limited, the applicant, seeking an advance ruling in respect of the following question :
Whether the amount paid to dealer towards “rate difference” post supply can be considered for the purpose of arriving at the 'transaction value' in terms of Section 15 of the Central Goods and Service Tax Act (“CGST Act”),
At
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d allied products (hereinafter referred to as “goods”) which are taxable under GST law.
2. The applicant has obtained registration and holding valid registration certificate issued under Central Goods and Services Tax Act, 2017 (“CGST Act”).
3. The applicant is manufacturing goods at its manufacturing units located at, Taluka: Korpana, District Chandrapur, Hotgi- District Solapur, Mouda District. Nagpur, Ratanagari, Post-JNPT-Nava Seva- Navi Mumbai and Pune in the State of Maharashtra. Besides this there are plants situated in other States also.
4. The goods manufactured at the aforesaid units arc supplied by the applicant to various authorised dealer/stockists located in state where the above registration certificate is obtained and also to authorised dealer/stockists situated in different states. Apart from the same, the goods received from other States are also supplied to customers/dealers in the State.
5. The applicant enters into an agreement with the authorised dealers/stock
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tions, the authorised dealers/stockists of the applicants have lo sell the goods purchased from the applicant, at a price lower than their purchase price i.e. the price at which the goods are sold by the applicant to continue in business for the reason that the market for cement is very dynamic and the prices keep changing – not only on daily basis but on real time basis. Hence, it sometimes happens that the authorised dealers/stockists of the applicants have to sell the goods purchased from the applicant, at a price lower than their original purchase price to continue in business i.e. the price at which the goods are originally billed by the applicant. For eg. the dealer has to sell a 50 kg bag of cement to ultimate customer at Rs. 295/- based on then prevailing market conditions even though the said dealer purchased the said bag of cement from the applicant at Rs. 300/-. The dealer is aware that there will be compensation in form of “rate difference” as per past practice. However, th
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lls goods to the trade a percentage deduction from the regular list or catalogue price of goods.”
13. Therefore, the trade discount is the difference between the regular list or catalogue price and the actual price at which the goods are sold by the trader. At this stage, we refer and rely on the CBEC's excise manual of supplementary instruction, 2005 in Chapter 3, Part – III of Para 2.5(iv) has clarified as follows with regard to deduction of trade discount.
(iv) discount of any type or description given on any normal price payable for any transaction will not form part of the transaction value for the goods, e.g. quantity discount for goods purchased or cash discount for the prompt payment etc. will therefore not form part of the transaction value. However it is important to establish that the discount has actually been passed on the buyer of the goods. The differential discount extended as per commercial consideration on different transactions to unrelated buyers is also perm
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rs/stockists is reduced effectively to that extent. At this stage, we are enclosing the invoices issued by the applicant on the authorised dealers/stockists for supply of cement at full value and subsequent credit notes issued to the authorised dealers/stockists for reduction of sale price on account of rate difference as (Annexure-21 & (Annexure-3) collectively.
16. It is submitted that the transaction of compensating the authorised dealers/stockists on account of 'rate difference' is generally followed in the entire Cement Industry.
17. Section 15(1) of the CGST Act states that the value of supply for purpose of GST would be the “transaction value”, which is the price actually paid or actually payable for such supply between unrelated parties, and where the price is sole consideration for supply.
18. Further, Section 15(3)(b) of the CGST Act states that, the discount provided after the supply has been effected shall be excluded from the value of supply subject to fulfilmen
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services or both, may issue to the recipient a credit note containing such particulars as may be prescribed.”
20. Even though the sale price of the goods sold by the applicant to the authorised dealers/stockists gets reduced subsequently due to rate difference, the applicant ends up paying GST on the total value mentioned in the original invoice issued to the authorised dealers/stockists as compared to the realization received from the customer/dealer.
21. Under the aforesaid circumstances, the amount paid to the authorised dealers/stockists towards rate difference, without taking the adjustment of same in the output tax liability of the applicant, is becoming cost to the applicant, in other words, once the benefit of rate difference is passed on to the dealers/stockists, the effective value of original supply gets reduced and this results in charging of higher tax than what is mandated by law. Due to absence of clarity in law, the applicant seeks the applicability of Section 34{1) o
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cope of the term 'applicant', as defined under sub-Section (c) of Section 95 of the CGST Act shall include both, the person registered under the CGST Act and also the person who is not registered as on date of applying for the advance ruling, but is desirous of seeking registration under the CGST Act, in the state where advance ruling is sought.
A.3 Further, Section 22 of the CGST Act, specifies the person liable for registration and reads as under:-
“22. (1) Every supplier shall be liable to be registered under this Act in the State or Union territory. other than special category States, from where he makes a taxable supply of goods or services or both. if his aggregate turnover in a financial year exceeds twenty lakh rupees:
… Emphasis Supplied
A.4 The above referred Section can be vivisected into following essentials: –
a. A supplier shall be liable to be registered under CGST Act in the State or Union Territory, from where he makes taxable supply of goods or services
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larifies that the advance ruling can only be sought on the issues, as arc specified under Section 97(2) of the CGST Act, which reads as under-
“97. (1) An applicant desirous of obtaining an advance ruling under this Chapter may wake an application in such form and manner and accompanied by such fee as may be prescribed, stating the question on which the advance ruling is sought.
(2) The question on which the advance ruling is sought under this Act, shall be in respect of,-
(a) classification of any goods or services or both;
(b) applicability of a notification issued under the provisions of this Act;
(c) determination of time and value of supply of goods or services or both;
(d) admissibility of input tax credit of tax paid or deemed to have been paid;
(e) determination of the liability to pay tax on any goods or services or both;
(f) whether applicant is required to be registered;
(g) whether any particular thing done by the applicant with respect to any goods or servi
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e deemed to be the Authority for advance ruling in respect of that State or Union territory.”
Emphasis Supplied
A.9 Hence, an Advance Ruling Authority appointed by the concerned State or Union Authority Government under concerned State or Union Territory Goods and Service Tax Act, shall be the deemed to be the Advance Ruling Authority for the purpose of CGST Act. The Section 96 of the Maharashtra Goods and Service Tax Act, 2017, reads as under:-
“SECTION 96
(1) The Government shall, by notification, constitute an Authority to be known as the Maharashtra Authority for Advance Ruling:
Provided that the Government may, on the recommendation of tlie Council, notify any Authority located in another State to act as the Authority for the State.
(2) The Authority shall consist of-
(i) one member from amongst the officers of Central tax; and
(ii) one member from amongst the officers of State tax, to be appointed by the Central Government and the State Government respectively.
(3) The
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EQUIRING ADVANCE RULING
B. The question on which Advance Ruling is sought by the Applicant is as under:-
* Whether the amount paid to authorized dealers towards “rate difference” after effecting the supply of goods by the applicant to aforesaid dealers can be considered for the purpose of arriving at the 'transaction value' in terms of Section 15 of the CGST Act.
* Whether the amount paid to authorized dealers towards “rate difference” after effecting the supply of goods would be allowed under Section 15(1) read with Section 34(1) of the CGST Act or under Section 15(3) read with Section 34(1) ibid.
APPLICANTS INTERPRETATION
C. Applicants understanding
C1 The applicants understanding is that Section 15(3) of the CGST Act has been enacted to allow deduction from the taxable value, of any discount or incentive or any other relief that may be given by the Supplier to the recipient, in respect of the goods or services supplied. On the other hand, 34(1) of the CGST Act provid
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etermined at time of removal of goods from the factory of the assessee. In the case of the applicant, the consideration received from the authorised dealers/stockists after giving the effect of rate difference shall be treated as price “actually payable” by the authorised dealers/stockists for the supply of taxable goods in terms of Section 15(1) of the CGST Act. The value received by the applicant after giving the treatment of rate difference would be considered as price for arriving at the “transaction value” for the purpose of payment of GST in terms of Section 15(1) of the CGST Act.
C.4 In such situation, the applicant submit that the Section 15(1) read with Section 34(1) of the CGST Act, it can assess the duty liability by reducing the amount equal to rate difference mentioned in the credit note given to the authorised dealers/stockists towards rate difference.
C.5 The interpretation that the operation of Section 34(1) is limited only to the amounts which qualify as “discount” u
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ribed.
In this regards, the relevant portion of the Section 34 of CGST Act is reproduced below,
“34. Credit and debit notes. – (1) Where a tax invoice has been issued for supply of any goods or services or both and the taxable value or tax charged in that tax invoice is found to exceed the taxable value or tax payable in respect of such supply, or where the goods supplied are returned by the recipient, or where goods or services or both supplied are found to be deficient, the registered person, who has supplied such goods or services or both, may issue to the recipient a credit note containing such particulars as may be prescribed.
(2) Any registered person who issues a credit note in relation to a supply of goods or services or both shall declare the details of such credit note in the return of the month during which such credit note has been issued but not later than September following the end of the financial year in which such supply was made, or the date of furnishing of the r
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side of Jurisdictional Officer.
The application was admitted and called for final hearing on 15.05.2018, Sh. Nirav Karia, Advocate, appeared and stated that they were making submissions in respect of details as asked for during preliminary hearing. However, he requested that since his senior was not available today, an adjournment is respect of final hearing be granted to them. Jurisdictional Officer Sh. Shivkumar Salunkhe, Dy. Commissioner CGST & Central Excise Division, Chandra pur appeared and made written submissions and stated that they do not want any further hearing. It is communicated to Sh. Nirav Karia, that adjournment would be considered subject to availability of new dates as found convenient in schedule of ARA and to this he agreed to.
The final hearing in the matter was held on 06.06.2018. Shri Nirav Karia, Advocate, appeared made written and oral submissions as per ARA application. He was requested to give documentary evidence in respect of Para 24 of his agreements w
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pply of cement and allied products which are taxable under the GST law. The goods manufactured at the applicant's various units are supplied by them to various authorized dealers/stockists located in the State of Maharashtra and also to authorized dealers/stockists situated in various other states.
Further factual position as stated by the applicant in his application is as under:-
“5. The applicant enters into an agreement with the authorised dealers/stockists for supply of goods on a principal-to-principal basis. Tlie agreement entered with the authorised dealers/stockists provides that the goods shall be supplied to the latter at the prices fixed by the applicant. Copies of agreement entered into between the applicant and authorised dealers/stockists are enclosed as (Annexure-1) collectively.
6. Further, the agreement also provides that the applicant shall provide various discounts to the authorised dealers/stockists at the rates as may be decided by the applicant alone, from
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their original purchase price to continue in business i.e. the price at which the goods are originally billed by the applicant. For eg. the dealer has to sell a 50 kg bag of cement to ultimate customer at Rs. 295/- based on then prevailing market conditions even though the said dealer purchased the said bag of cement from the applicant at Rs. 300/-. The dealer is aware that there will be compensation inform of “rate difference” as per past practice. However, the dealers/stockists are not aware of the exact amount of compensation to be received from the applicant.
10. Based on the trade practice and past history, the dealer is aware that there will be compensation in form of rate difference in case of significant correction of prices.
11. In order to provide relief to the authorised dealers/stockists in such scenario, the applicant pays a certain amount to the authorised dealers/stockists as 'rate difference' (Commonly known as 'Trade Discount' also). The aforesaid pa
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nding which arc reproduced in their submissions part have opined and claimed that the answer to both the questions that has been raised in their application are in the affirmative and the transactions as per facts stated in the application are allowable under Section 15 and Section 34 of the GST Act.
In view of the above facts of the case and to examine the claims made by the applicant we find that Section 15 of the CGST Act reads as under:-
Section 15:- (1) The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply.
(2) The value of supply shall include-
(a) any taxes, duties, cesses, fees and charges levied under any law for the time being in force other than this Act, the State Goods and Services Tax Act, the Union Territory Goods and Services
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subsidy.
(3) The value of the supply shall not include any discount which is given-
(a) before or at the time of the supply if such discount has been duly recorded in the invoice issued in respect of such supply; and
(b) after the supply has been effected, if-
(i) such discount is established in terms of an agreement entered into at or before the time of such supply and specifically linked to relevant invoices; and
(ii) input tax credit as is attributable to the discount on the basis of document issued by the supplier has been reversed by the recipient of the supply.
(4) Where the value of the supply of goods or services or both cannot be determined under sub-section (I), the same shall be determined in such manner as may be prescribed.
(5) Notwithstanding anything contained in sub-section (1) or sub-section (4), the value of such supplies as may be notified by the Government on the recommendations of the Council shall be determined in such manner as may be prescribed.
Expl
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on 15(3) of the CGST Act are of specific relevance in the present case before us.
We find that Section 15 of the CGST Act states that the value of supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of supply are not related and price is the sole consideration for the supply.
We further find that Section 15(3) of the CGST Act states that the value of supply shall not include any discount which is given in ways as under:-
(a) Any discount which is given before or at the time of supply if such discount has been duly recorded in the invoice issued in respect of such supply.
(b) After the supply has been effected if
(i) such discount is established in terms of an agreement entered into at or before the time of such supply and specifically linked to relevant invoices and
(ii) input tax credit as is attributable to the discount on the basis
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Motani entered into at Mumbai on dated 20 June, 2012;
(iii) Ultra tech Cement Ltd and Mr. Raju K Shah entered into at Mumbai on dated 20 June, 2012;
In respect of all the three agreements which are representative samples, we find that para 21, 22, 23 and 24 which are exactly the same in all the three agreements and gives sale procedure and discount as under:-
“Para 21:- In respect of the sales made by the authorized stockiest it will maintain proper records and shall submit copies thereof from time to time as may be required by the Company, Vie Company through itself or its representatives shall have the right to inspect the premises and records maintained by the Authorized Stockist and ask for any clarification in respect of the same from the Authorized Stockist. The Authorized Stockist shall also furnish to the Company any information, statistical or general, concerning demand, supply and prices of product in general.
Para 22:-The Company shall sell and supply the Authorized Sto
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ates that the company will further decide and pay discount at such rate after the quantity is already sold to the stockists. That the discounts are decided after the goods are already sold to the stockists, was confirmed by their representatives as well, at the time of the Personal Hearing.
In view of this we find that the discount/rate difference being given by the applicant will have to be examined for eligibility or otherwise, as per the terms and conditions given in Section 15 (3) (b) of the CGST Act referred above.
We find that the discount that is given after the goods have been sold has to be established in terms of the agreement entered into at or before such supply i.e. the discount that is to be given afterwards has to be mentioned in the terms of the agreement or the criteria for arriving at the quantum or percentage of discount has to be given in the terms of the agreement which is entered into at or before such supply.
The wordings of Section 15 (3) (b) (i) very clearly
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o even 100% as per discretion of the supplier and certainly such abnormal discounts without any criteria or basis can in no way be considered as fair and at arm's length business transactions and no taxation statute can be construed to be having open ended discount with legislative intent.
In view of the detailed discussions above now when we have a relook at para 24 of the Applicant's agreement with authorized stockists which states that the company will pay discount at such rate as may be decided by the company from time to time on the quantity sold to the authorized stockists in a particular month, we find that there is no basis or criteria or parameter (which may even be of personal relations nature between the parties to the agreement) mentioned in the agreement on the basis of which the quantum of discount to be given on the goods which have already been supplied is mentioned.
Further the Applicant during the course of proceedings stated that they are further submitting
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igible for the said Incentive Schemes the Dealer shall be credited with the entitled discount/incentive, online.
2.4 UltraTech shall issue credit notes for discounts and the same shall be linked with the respective Tax invoices of UltraTech.
2.5 The Dealer agrees to reverse the corresponding input tax credit in his books in the same month during which the Discount is given by UltraTech to the Dealer by way of aforesaid credit note.
2.6 The Dealer shall effectuate the reversal of credit in the monthly GST returns and shall fully comply with the provisions of the GST Act.
2.7 The Dealer accepts and agrees to indemnify and compensate UltraTech for the losses incurred by UltraTech in the event UltraTech is not able to take input tax reversal of credit notes within 60 days of issuance of credit note due to non-reversal by the dealer. The Dealer agrees to indemnify and make good the loss to UltraTech including any interest, penalty and all other legal costs and expenses.
3. The Parties
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, 2, 3, 4, and 5 respectively are clearly complying with the requirements of the CGST Act and the criteria or conditions for availing discount as per Section 15(3)(b)(i) and (ii) of the CGST Act and the criteria or conditions for availing discount as per Section 15(3)(b)(i) are specifically mentioned as per agreement before hand.
However we find that in respect of special discount and rate difference as mentioned at Sr. No. 6 and 7 of the above referred GST Annexure for Mumbai region, there is no pre fixed criteria, basis or rationale for arriving at the quantum of these discounts neither as per basis mentioned in GST Annexure for Mumbai region nor as per amendments incorporated in agreements with authorized stockists as referred above.
Thus we find that the amount paid to the Dealer towards “rate difference” and “special discount” as mentioned above, post supply are not complying with the requirements of section 15(3)(b)(i) of the CGST Act and therefore cannot be considered and allo
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M/s. Harbanslal Malhotra & Sons (Eng.) Pvt. Ltd. Versus CGST & C. Excise, Kolkata North
Central Excise
2018 (8) TMI 411 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 27-6-2018
Appeal No. E/75379/18 – FO/A/76365/2018.
Central Excise
Shri P. K. Choudhary, Member (Judicial)
Shri Harsh Shukla, C. A. for the Appellant (s)
Shri S. Mukhopadhyay, Suptd. (AR) for the Revenue (s)
ORDER
Per Shri P. K. Choudhary:
This appeal has been filed by the Appellant against the impugned Orderin-Appeal No. 03-04/Kol-III/2017 dated 26.09.2017 passed by the Commissioner of CGST & CX (Appeal-I), Kolkata.
2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of Safety Razor Blade classifiabl
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dit was denied on various Input Services. It is further submitted that the Tribunal in various decisions, allowed the credit on the input services.
4. The Learned A.R. reiterates the findings of the Commissioner (Appeals).
5. Heard both sides and perused the appeal records.
6. We find that the denial of credit on Input Services namely Cooking and providing Food, Cleaning and washing for worker's Canteen and other services used to provide food in the Canteen. The appellant submitted that they are required to maintain the Canteen under Section 46 of the Factories Act, 1948. The present issue is covered by the following decisions:
i) Hindustan Coca Beverages Private Limited Vs. CCE – Hyderabad 2017 (49) STR 88 (Tri- Hyd)
ii) Easun MR Tap
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ve Vs. C.C.E Chennai – 2016 (STR) 611 (Tri-Chennai).
9. It is contended that the said input credit is a necessary activity for ensuring continuous production in the factory. However, the denial of Cenvat Credit on renovation work undertaken in the recreation room for separate Union room is justified.
10. In my considered view, the renovation of Union room is not covered within the inclusive clause of definition. It cannot be said that the said service was used in or in relation to the manufacture of the final product. Accordingly, the impugned Order is modified to the extent of denial of credit on renovation work undertaken in recreation room for separate union room along with interest is upheld and the denial of credit on other issues an
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In Re : Anabond Ltd.
GST
2018 (9) TMI 691 – AUTHORITY FOR ADVANCE RULINGS, TAMIL NADU – 2018 (16) G. S. T. L. 614 (A. A. R. – GST), [2019] 61 G S.T.R. 58 (AAR)
AUTHORITY FOR ADVANCE RULINGS, TAMIL NADU – AAR
Dated:- 27-6-2018
ORDER NO. 1/ AAR/ 2018
GST
MS. MANASA GANGOTRI, MEMBER AND MR. THIRU S. VIJAYAKUMAR, MEMBER
RULING
1. M/s. Anabond Ltd., Chennai (hereinafter called the applicant or the company) has preferred an application for Advance Rulingon what is the appropriate classification of 'Polysulphide sealants' manufactured by them, under GST.
2. The Applicant is engaged in the manufacturing of engineering adhesives and sealants, paints & other chemical formulations which are used in various industries such as automobile, aerospace, energy, construction, marine, railway etc. Applicant manufactures, among other products, polysulphide sealants and market it under the trade name 'Anabond Tuffseald '.Polysulphide sealants are commonly used for sealing expansion
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sealants. There are five competing headings in which the said product can be covered. They are: Heading 3214; Heading 2830; Heading 3911; Heading 4002; Heading 3506.
3. The applicant has further stated that
* Customs Tariff Heading (hereinafter referred to as CTH) 3214 covers various types of mastics viz., “glaziers' putty, grafting putty, resin cements, caulking compounds and other mastics; painters' fillings; non-refractory surfacing preparations for facades, indoor walls, floors, ceilings or the like. Sealants are also known in the trade by their generic name “mastics”. The product in question is a mastic based on rubber which after the addition of hardener is used as mastics. HSN Explanatory Notes provides that “mastics based on rubber” are covered under CTH 3214.Further, in view of Note 3 to Section VI (under which the heading 3214 falls) the fact that the product in question has two components and these two components have to be mixed before use to prepare the sealant is no b
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duct, Viz., the polysulphide is an organic compound. Though there are some exceptions for organic compounds to be covered under Chapter 28 (for instance, organic or inorganic compounds of precious metals of rare-earth metals, or radio-active elements or of isotopes), the polysulphide rubber compound is not covered by such exceptions. From the HSN Explanatory Notes, it is clear that the type of Polysulphides covered under the heading 2830 are mixtures of inorganic polysulphides of the same metal. The polysulphide in question is an organic compound and is a synthetic rubber. Though there are some exceptions for organic compounds to be covered under Chapter 28, the Polysulphide rubber compound is not covered by such exceptions. Therefore, classification of the product in question under Chapter 28 itself could be ruled out.
* Polysulphide polymers are of two types. The one containing Carbon-Sulphur-Carbon linkage is covered under CTH 3911 while the other containing Sulphur-Sulphur linkag
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is not polysulphide rubber alone but also contains the hardener and is presented together as a set. While the General Rules of Interpretation (GRI) provide means for classification of products presented as sets under Rule 3(b) in terms of GRI I, the application of the Rules could be resorted to only when the Section or Chapter Notes are not of help in classifying the product. Therefore, it would be necessary to look at the relevant Section and Chapter Notes before resorting to the GRIs. In the present case, as discussed above, classification of the product can be done based on the Section, Chapter Notes and Headings and therefore classification under CTH 4002 can be ruled out.
* As the product has bonding property, it is relevant to analyse the appropriateness or otherwise of classification of the product under Heading 3506 which deals with adhesives and glues. Heading 3506 covers, “prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable fo
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Polysulphide Sealant; Technical data sheet; and photographs of the product (in both open and closed state). The details and documents furnished were examined.
5. The product in question, 'Anabond Tuffseald, Polysuphide Sealant'contains two components, viz., polysulphide polymer (resin/rubber) and hardener (acts as the curing agent). Liquid polysulfide polymers form the basic ingredient of the sealant formulation and Manganese dioxide is the curing agent. Both resin and hardener are packed separately within the same container.
Properties of the uncured material are as follows':
Resin
Chemical type
Polysulphide
Appearance
Smooth paste
Colour
Off-white
Hardener
Chemical type
Manganese dioxidebase
Appearance
Smooth paste
Colour
Brown
Mixed adhesive
Mixing ratio
92:08
Colour
Grey
The resin here is a polysuphide where each sulphur atom is bound on both sides by carbon atoms.The synthesis of polysulphide rubber is nNa2S2 +nCl-R-Cl->2nNaCl+- [R-S-S]. After opening the
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First Schedule to the said Customs Tariff Act, 1975, including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, so far as may be, apply to their interpretation.
CTH 3214 10 00 covers “glaziers' putty, grafting putty, resin cements, caulking ' compounds and other mastics; painters' fillings”.
As per Explanatory Notes to HSN for CTH 3214, “77k products of this heading are preparations of widely differing composition which are essentially characterised by the uses to which they are put. These preparations are usually put up in a more or less pasty form and in general they harden or cure after application….
The products of this leading are usually applied with a caulking gun, a spatula, a trowel, a plasterer's float or similar tools…..
These preparations are mainly used to stop, seal or caulk cracks and in certain cases to bond or firmly join components together. They are distinguished from other glues and other adliesives by the fa
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presented together; and,
iii. identifiable, whether by their nature or by the relative proportions in which they are present, as being complementary one to another.”
As per Harmonised System of Nomenclature, the general explanation of the above Note 3 is as follows:
“Note 3:
This Note deals with the classification of goods put up in sets consisting of two or more separate constituents, some of which fall in section VI. The Note is, however, limited to sets of which the constituents are intended to be mixed together to obtain a product of Section VI or VII. Such sets are to be classified in the leading appropriate to that product provided that the constituents meet conditions (a) to (c) of the Note”
Applying the above, to the case at hand, it is evident that the base and the curing agent are presented in a single pack and are intended to be used together and complimentary to one another. Thereby, the conditions of the section Note 3 is satisfied. When the conditions are sat
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es products having the character of mastics, fillings, etc., of heading 3214. Therefore the product under consideration is not classifiable under this heading.
c. Chapter 3911 covers polysulphides. As per explanatory notes to HSN, Polysulphides are polymers characterised by the presence of monosulphide linkages in the polymer chain…In polysulphides each sulphur atom is bound on both sides by carbon atoms, as opposed to the thioplasts of Chapter 40, which contain Sulphur-sulphur linkages. In the case at hand, Sulphur-Sulphur linkages are present and therefore they are thioplasts. Hence, the product is not classifiable under this heading.
d. Chapter 4002 covers “synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip; mixtures of any product of heading 4001 with any product of this heading, in primary forms or in plates, sheets or strip”. The product in question contains polysulphide rubber/resin which is a synthetic rubber. Therefore, the pol
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In Re: Fichtner Consulting Engineers (I) Pvt Ltd.
GST
2018 (9) TMI 692 – AUTHORITY FOR ADVANCE RULING, TAMILNADU – 2018 (16) G. S. T. L. 612 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, TAMILNADU – AAR
Dated:- 27-6-2018
TN/02/AAR/2018
GST
MS. MANASA GANGOTRI KATA, AND SHRI S. VIJAYAKUMAR, MEMBER
At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a reference to the same provisions under the Tamil Nadu Goods and Service Tax Act.
1. M/s. Fichtner Consulting Engineers (India) Private Limited, Chennai (hereinafter called the Applicant or the company) has preferred an application for Advance Ruling on which one is applicable from the following options to charge Tax in tra
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the Coal Handling Plant for the west PIT of PakriBarwadih Coal Block in North Karanpura Coalfields in Hazaribagh district of Jharkhand state, as per the requirements of NTPC/Tenova's Enquiry Specifications”
The said Client is an EPC sub-contractor for the coal handling plant in the Mine. As per the enquiry specification given by the client, the successful bidder (Applicant) shall be responsible for the basic and detailed engineering for the mechanical, structural and auxiliary systems of the coal handling plant meeting the requirements of the Main EPC Contractor and meeting the technical guidance of the end user (owner). The order is being executed from their design office at Chennai and the drawings are delivered to their client to their Chennai office. This fulfils their scope of supply, their design and drawings are specifically made for the Coal Handling Plant of the Mine referred in the job description. They deal only with their client and do not have any direct interaction
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Chennai office, in Tamil Nadu.
3. The Authorised Representative of the Applicant was heard in the matter. They submitted that they are providing engineering consultancy services to a recipient in Chennai in relation to an Immovable property, a coal mine located in North Karanpura Coalfields, Jharkhand for coal handling activities at the site. They state that as it is service in relation to Immovable property, place of supply under Section 12(3) will be Jharkhand and hence it is an inter-state supply.
4. The Advance Ruling sought is whether CGST & SGST or IGST is payable on the said supply. i.e., whether the transaction is an inter-state supply or intra-state supply. In this connection Section 97 of the CGST Act and Tamil Nadu GST Act (TNGST) has given the scope of Advance Ruling Authority, i.e, the question on which the Advance Ruling can be sought. For ease of reference, the section is reproduced as under:
97, (1) An Applicant desirous of obtaining an advance ruling under this Chap
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M/s. Ramkay Agencies Versus Commissioner of Service Tax, Chennai (Now Commissioner of GST & C.E. Chennai South Commissionerate)
Service Tax
2018 (9) TMI 1068 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 27-6-2018
Application No. ST/MISC[CT]/41106/2017, Appeal No. ST/00219/2011 – Final Order No. 41881/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri T.R. Ramesh, Advocate for the Appellant
Shri K.P. Muralidharan, AC (AR) for the Respondent
ORDER
Per Bench,
The issue in dispute concerns income received by appellants from various banks and financial institutions as commission, allegedly for providing service in relation to promoting and marketing va
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Commissioner of Central Excise, Kanpur, 2012 (25) S.T.R. 489 (Tri. – Del.) and Addis Marketing Vs. Commissioner of Central Excise, Mumbai, 2017 (50) S.T.R. 56 (Tri. – Mumbai) in support of his contention.
3. On the other hand, Ld. AR supports the impugned order. He points out that the appellants have paid up the tax liability along with interest only after being pointed out by audit.
4. Heard both sides. We have gone through the facts.
5. Without doubt, the issue of taxability on the impugned services was mired in litigation and was set to rest only by the decision of the larger Bench of the Tribunal in Pagariya Auto Center Vs. Commissioner of Central Excise, Aurangabad, 2014 (33) S.T.R. 506 (Tri. – LB.). Especially when there was confus
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om the discussions above the matter was being interpreted by judicial forums in different ways as may be seen from the decisions quoted by the Appellants. The Higher Courts have been taking the view that in such situations the extended period of time cannot be invoked for raising demand. Even in the case of Bridgestone Financial Services the Tribunal has given the benefit for such reason. So we are of the view that the demand in this case can be sustained only to the extent covered in the normal period of limitation. In such a situation penalties are not imposable either.”
6. Following the ratio, we hold that the demand in this case is restricted to the normal period of limitation from the date of issue of Show Cause Notice, with interest
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Gstaad Hotels Private Limited, Versus Union of India Represented by The Joint Secretary, Ministry of Commerce and others.
Customs
2018 (10) TMI 172 – KARNATAKA HIGH COURT – TMI
KARNATAKA HIGH COURT – HC
Dated:- 27-6-2018
WRIT PETITION No.9556 OF 2018 (GM-RES)
Customs
MR. ARAVIND KUMAR J
Petitioner (By Sri. Ajesh Kumar.S, Advocate)
Respondents (By Sri Aditya Singh, Central Government Standing Counsel)
O R D E R
Petitioner being aggrieved by notice dated 31.10.2014 (Annexure-A) is before this Court.
2. The sum and substance of grievances raised by the petitioner in the petition is that a scheme was introduced by the Government of India in exercise of its power vested under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 and Foreign Trade Policy (for short 'FTP') a scheme known and called as “Served From India Scheme” (for short 'SFIS') which provided for benefits in the form of duty credit scrip certificates equitant to an am
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tended by Sri.Ajesh Kumar learned Counsel appearing for the petitioner that Additional Director General of Foreign Trade has now issued a recovery notice dated 31.10.2014 to recover the entire value of the duty credit scrips which was granted to the petitioner Hotel irrespective of the quantum of utilization by the petitioner, by following pick- and choose policy and erroneously interpreting the law.
5. Learned counsel for the petitioner by elaborating his submissions would contend that a meeting of the Policy Interpretation Committee (for short PIC) under the Chairmanship of 2nd respondent Director General of Foreign Trade came to be held on 27.12.2011 at 12.30 and said Committee have sought to interprete the term “All India Service Providers” at para 3, 12.2 of FTP 2009-14 for grant of duty credit scrip under “SFIS” scheme and it came to be clarified against the interest of petitioner. Hence, learned counsel for the petitioner seeks for quashing of the notice.
6. Per contra Central
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pment and Regulation) Act has interpreted extant policy of 2004-2009 and there is no new clause which has been introduced into the policy and the existing clause in the policy alone has been interpreted by the said Committee in order to accelerate the growth in export of services, so as to create a powerful and unique 'Served from India' brand. He would also draw the attention of the Court to the minutes of PIC- Policy Interpretation Committee, where under it has been clarified that said object of the policy is to encourage essentially Indian brands abroad and globally, so as to make India so unique and easily recognizable and create a distinct identity for itself both domestically and internationally, so as to enhance the Indian image and it is because of these precise reasons, the words that is coined as 'Serve from India' brand. Hence, he would also submit that petition is liable to be dismissed on merits as well as on delay and latches. On these grounds, learned counsel for respond
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memorials were being submitted to the authorities and same was not disposed of and thereby a dead cause of action was alive and then, approach this Court belatedly. This view is fortified by the authoritative pronouncement of the Hon'ble Apex Court in the case of KARNATAKA POWER CORPORATION LIMITED AND ANOTHER vs K THANGAPPAN AND ANOTHER reported in AIR 2006 SC 1581.
10. That apart, sub-article (2) of Article 226 of the Constitution of India would indicate that power conferred under sub article (1) to issue directions, orders or writs to any Government, authority or person can be exercised by any High Court exercising jurisdiction in relation to the territories within which cause of action, wholly or in part, arises. In other words, such power can be examined by this Court, notwithstanding that seat of such Government or authority or the residence of such person is not within those territories and this Court can exercise the jurisdiction under Article 226(1), if the cause of action w
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rd to contend that this Court has jurisdiction to entertain this writ petition under Article 226(1). Merely because petitioner is also having a hotel at Bengaluru amongst being run by it chain of hotels across the country would not give rise for cause of action within the territorial jurisdiction of this Court to exercise the power vested under Article 226(1). This view is fortified by the judgment by Hon'ble Apex Court in Oil and Natural Gas Commission vs Utpal Kumar Basu and others reported in (1994) 4 SCC 711 vide paragraphs 5, 6 and 12. Thus, even on the second ground of want of territorial jurisdiction this writ petition is not maintainable.
12. Though learned counsel for petitioner has canvassed arguments with regard to the merits of the case, this Court would not embark upon conducting or examining such plea, in as much as reply to the show cause notice (Annexure-A), which is said to have been submitted by the petitioner on 17.07.2015 is yet to be examined by the respondent/aut
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CCGST, Mumbai Central Versus M/s. TA Associates Advisory Pvt. Ltd.
Service Tax
2018 (10) TMI 547 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 27-6-2018
Application No. ST/Stay/85541/2018, ST/Stay/85514/2018 in Appeal No. ST/86369/2018, ST/86370/2018 – A/86796-86797/2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
For the Appellant : Shri Dilip Shinde, AC (AR)
For the Respondent : Shri Ankit Nagela, CA with Ms. Aparna Shah, CA
ORDER
These two appeals are taken up together for passing of common order as issue involved in both the appeals are identical in nature.
2. The narrow compass in which the department has taken up the issue to this Tribunal stage centers on the admissibility of refund claim of the
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which it has been held that export of service is completed only on receipt of consideration in “Foreign exchange and therefore the date in Forward Inward Remittance Certificate (FIRC) is relevant” in view of Notification no. 27/2012 with effect from 01.03.2016 [14/2016 (NT) refers]. The Larger Bench also had made it clear that any beneficial amendment to the statute may be given effect retrospectively provided the same does not impose a burden on the public (decision of the Hon'ble Supreme Court in the case of Bhatika Township 2014-TIOL-78-SC-IT-CB referred). In the conclusion, it was held that the relevant date for purpose of deciding the time limit for consideration of refund claims under Rule 5 of Cenvat Credit Rules in respect of e
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The Puducherry Goods and Services Tax (Sixth Amendment) Rules, 2018.
G.O. Ms. No. 35 Dated:- 27-6-2018 Puducherry SGST
GST – States
Puducherry SGST
Puducherry SGST
GOVERNMENT OF PUDUCHERRY
COMMERCIAL TAXES SECRETARIAT
(G.O. Ms. No. 35, Puducherry, dated 27th June 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) These rules may be called the Puducherry Goods and Services Tax (Sixth Amendment) Rules, 2018.
(2) Save as otherwise provided in these rules, they shall be deemed to have c
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umber, he shall not be eligible to use any of the Goods and Services Tax Identification Numbers for the purposes of the said Chapter XVI.”;
(ii) in rule 138C, after sub-rule (1), the following proviso shall be inserted, namely:-
“Provided that where the circumstances so warrant, the Commissioner, or any other officer authorised by him, may, on sufficient cause being shown, extend the time for recording of the final report in Part B of FORM EWB-03, for a further period not exceeding three days.
Explanation.- The period of twenty-four hours or, as the case may be, three days shall be counted from the midnight of the date on which the vehicle was intercepted.”;
(iii) in rule 142, in sub-rule (5), after the words and figures “of section 76”
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availment of ITC of IGST paid under protest by the supplier.
Query (Issue) Started By: – Narendra Soni Dated:- 26-6-2018 Last Reply Date:- 28-6-2018 Goods and Services Tax – GST
Got 12 Replies
GST
Dear experts,
Please suggest can we avail ITC of IGST paid under protest by the supplier ????. Under protest is also mentioned on invoices of supplier.
Please confirm at the earliest.
Reply By Ganeshan Kalyani:
The Reply:
In my view input tax credit of the tax paid under protest is not eligible.
Reply By Alkesh Jani:
The Reply:
Sir, any disputed ITC can be availed but you should not utilize it, unless final order is issued.
Our experts may correct me if mistaken,
Thanks
Reply By YAGAY and SUN:
The Reply:
In our view it is al
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ill we can avail ITC???, Kindly re confirm.
Reply By Ganeshan Kalyani:
The Reply:
In my view no.
Reply By Narendra Soni:
The Reply:
Dear experts,
Thanks for valuable advises.
Now two types of opinions are received, one is saying that ITC is eligible, another is ITC not eligible.on GST paid under protest.
We are unable to juge which option we should select.
Hence, Kindly provide expert opinion based on rule,act or citation.
Thanks
Reply By Alkesh Jani:
The Reply:
Sir,
In this regards, my point of view is that, if we apply the ratio of Para 2.1 of Circular No.33/2018 dated 23.02.2018, You may avail the credit but as it is disputed credit, you shall not utilize the same for payment of tax.
Our experts may correct me if mistaken
T
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It had been represented by CEI that there is generally a dispute between the industry and the Central Excise field formations regarding eligibility of certain raw materials as 'input' for claiming Modvat. The industry in order to preserve its right or justify the contention regarding eligibility of Modvat, avails the Modvat credit on such items in RG 23A Part II and keeps it in abeyance without utilisation. Show cause notices are, therefore, issued by Central Excise authorities every 6 months for the same inputs resulting in repeated litigation and consequential hardship to the assessees. CEI had, therefore, desired that some practical way out should therefore, be devised to save this avoidable inconvenience.
The matter has been examined
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CHANGES IN BUYERS DETAILS
Query (Issue) Started By: – SURYAKANT MITHBAVKAR Dated:- 26-6-2018 Last Reply Date:- 27-6-2018 Goods and Services Tax – GST
Got 3 Replies
GST
We have cleared Goods to merchant exporter (Concessional Rate i.e. 0.10%) under intimation to department under Notification No.40/2017.
Now, while shipping the Goods, Exporter informed us he has to export the material under different merchant exporter and asking us to raise fresh the Tax invoice on that exporter so h
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M/s. Navin Housing & Properties (P) Ltd. Versus Commissioner of GST & Central Excise, Chennai South Commissionerate, Chennai
Service Tax
2018 (8) TMI 1515 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 26-6-2018
Application No. ST/Misc/41495/2017 Appeal No. ST/175/2011 – Final Order No. 41875/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri G. Natarajan, Advocate for the Appellant
Shri K.P. Muralidharan, AC (AR) for the Respondent
ORDER
Per Bench
The MA filed by department for change of cause title is allowed.
2. The appellants are engaged in construction of residential complex and was registered with the Service Tax Department. On specific in
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s which includes the cost of entire construction. Hence this appeal.
3. After hearing both sides, we find that the period involved in the case is from June 2005 to April 2006. That the issue being a works contract whether subject to service tax prior to 1.6.2007 has been settled by the judgment of the Hon'ble Supreme Court in the case of Commissioner Vs. Larsen & Toubro Ltd. – 2015 (39) STR 390 (SC). We also note that the coordinate Bench in the case of CCL Products (India) Ltd. Vs. Commissioner of Central Excise, Guntur – 2017 (48) STR 50 (Tri. – Hyd.), in a similar matter had set aside the demand relying upon the judgment of the Hon'ble Supreme Court on identical set of facts.
4. Following the same, we hold that the demand is unsustaina
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