Goods and Services Tax – Right to carry lottery business – Use of Kerala GST Act, 2017 and police power to interfere into the lottery business – practical difficulty – The petitioners should not be pr
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Goods and Services Tax – Seizure of goods – incomplete E-Way bill – Section 129(1) of UP GST – Apparently there is a convention of the provision of the Act which mandates that the E-Way bill should be
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Goods and Services Tax – Started By: – LAKSHMINARAYANAN TR – Dated:- 20-4-2018 Last Replied Date:- 23-4-2018 – Hi May I see expert opinion on availing ITC on pre-operative expenses when the outward supply includes both exempt and taxable. If the Input or Input services relate to exempt or taxable supply specifically, its apparent not to avail or avail ITC appropriately. But challenge comes when common input/input services and capital goods consumed well before commencement of commercial activity of the business, how to apply rule 42 or 43? Request expert opinion please best regards Durai – Reply By Rajagopalan Ranganathan – The Reply = Sir, Section 16 (1) of CGST Act, 2017 stipulates that every registered person shall, subject to such cond
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10081001, 9811004443 – Reply By Ganeshan Kalyani – The Reply = The excess credit taken during the year can be paid with interest on or before September month of the subsequent financial year. Hence you may avail the credit now and when the year is over and you have the turover detail you can revise work and take corrective action. – Reply By CS SANJAY MALHOTRA – The Reply = Not starting commercial activity sometimes means trial run on product development taken but no supplies made. In such scenarios, ITC on input and input services are not eligible as no supply made. – Reply By KASTURI SETHI – The Reply = Sh.CS Sanjay Malhotra Ji, Sir, Thanks a lot for throwing light on the issue. – Reply By CASusheel Gupta – The Reply = Section 16 allows I
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CS SANJAY MALHOTRA – The Reply = ITC is linked with supply which is main criteria in GST. Units avail ITC during factory set up considering that they shall be making supply of taxable goods. No one avails ITC if they know product is charged to nil GST. – Reply By CASusheel Gupta – The Reply = Respected Sanjay jiAgreed that No one avails ITC if they know product is charged to nil GST.My reply was restricted to that since during trial run there is no supply and in the absence of supply during trial run ITC is not allowed. Regards – Reply By LAKSHMINARAYANAN TR – The Reply = Dear All Many thanks for your valuable suggestions, interestingly many dimensions have come out in this forum. I would like some details to my original question based on
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Goods and Services Tax – Started By: – Kusalava InternationalLimited – Dated:- 20-4-2018 Last Replied Date:- 26-5-2018 – Is GST applicable on Deputation of Salaries of Sister Company employees?If applicable what is the Rate? – Reply By KASTURI SETHI – The Reply = Salary is not subject to GST whether on deputation or on regular basis. Employer-employee relation does not lose its status during deputation. During deputation an employee works on behalf of his employer. – Reply By Ganeshan Kalyani –
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Goods and Services Tax – GST – By: – Suriyanarayanan Iyer – Dated:- 20-4-2018 Last Replied Date:- 20-4-2018 – Canteen services under GST- an analysis of the advance ruling in Caltech Polymers Private Limited [ 2018 (4) TMI 582 – AUTHORITY FOR ADVANCE RULING – KERALA ] The Authority for Advance Ruling-Kerala has decided on 26/03/2018 that recovery of the expenses from the employees for the canteen services provided by a company would come under the definition of outward supply as defined in section 2 (83) of the CGST Act, 2017 and therefore will be taxable as a supply of service under GST. 2) The said decision is based on the interpretation of definition of business in section 2 (17) of the CGST Act by the authority and its conclusion that supply of food by the applicant company to its employees would definitely come under the phrase any activity or transaction in connection with or incidental or ancillary to sub- clause (a) occurring in sub- clause (b) ibid. 2.1) The definition of bus
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6, proof of profit-motive is unnecessary to constitute business and that the transaction of supply of food and drink to the workmen in the canteen maintained by the assessee, in pursuance of the Factories Act and the Rules, were sales and constituted business for the purposes of the Act. 2.3) The apex court decision in Burmah Shell was, though holding the field and not explicitly overruled/reversed, came to be ignored by the apex court itself in respect of cases involving sale of unserviceable spares etcetera by State Transport Corporations. In such cases, the apex court went into the dominant object of service by the State Transport Corporations and held that sale of unserviceable parts etcetera by such transport corporations cannot be subjected to sales tax/VAT. The decision of the Delhi High Court reported as Commissioner of Sales Tax Versus Delhi Transport Corporation- 1996 (7) TMI 576 – DELHI HIGH COURT discusses about the dominant object test in respect of state transport corpora
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t. 3.1) After noting the Burmah Shell decision of the Supreme Court and the Hyderabad Asbestos Cement Case approved therein, considering the subsequent decision of the Supreme Court in Northern India Caterers India Ltd- 1978 (9) TMI 154 – SUPREME COURT OF INDIA as well as the earlier decision in Raipur Manufacturing Co Ltd- 1966 (9) TMI 82 – SUPREME COURT OF INDIA, the full bench of the Madhya Pradesh High Court held that sale of food articles in the canteen were not exigible to tax. The review petition filed by the revenue against the said decision was dismissed by another three-member bench of the Madhya Pradesh High Court as per reports in 2004 SCC online MP 163. 4) A question can arise that the decisions against the revenue cited above are only in respect of VAT/sales tax on canteen sales whereas the CGST Act, 2017 is a comprehensive legislation for tax on both goods and services. 4.1) But the fact that the said CGST Act considers that services by an employee to the employer in the
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g to composite supply has to be construed ejusdem generis only. That is, only if the supply in the canteen is by way of or as part of any intended service activity /business of employer, it can fall under the definition of composite supply . Reliance is placed on the judgement of the Bombay High Court in ANK Seals Versus Employees State Insurance Corporation- 2006 (2) TMI 687 – BOMBAY HIGH COURT wherein the Bombay High Court held that the phrase in any other manner whatsoever has to be construed ejusdem generis and acquisition of the undertaking by the central government will not fall within the sweep of the said phrase occurring after transfers that factory or establishment in whole or in part, by sale, gift, lease or license . 4.2.1) Thus, the reasoning of the Advance Ruling Authority that the supply of food and other articles in the canteen run by the employer due to the mandate under the Factories Act falls under composite supply for the purposes of GST seems to be stretching the d
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2018 (5) TMI 672 – CESTAT MUMBAI – TMI – 100% EOU – Penalty u/s 76 and 78 – service tax along with interest paid before issuance of SCN – revenue neutrality – Held that: – It is a fact that the appellant is 100% export oriented service provider. In such case, whatever the input service suffered the service tax, the said service tax is refundable u/r 5 of the CCR 2004. Therefore, even though, had the appellant paid the service tax in time, they would have got the refund of the same from the department. Therefore, neither any gain or loss either to the department or to the assessee.
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The allegation of intention to evade payment of service tax cannot be made against the appellant, which is the essential ingredient for imposing penalty – penalty cannot be invoked.
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Appeal allowed – decided in favor of appellant. – Appeal No. ST/85388/2018 – Order No. A/86111/2018 – Dated:- 20-4-2018 – Hon ble Mr. Ramesh Nair, Member (Judicial) Shri Prasad Paranjape, Advocate, for appellant Shri
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iginal passed by the adjudicating authority except the demand pertaining to the period April 2007 to September 2007 which is beyond the time limit. Therefore, the appellant is before me. 2. Shri Prasad Paranjape, learned counsel appearing on behalf of the appellant, fairly concedes that the appellant is not contesting the service tax and interest liability confirmed by the adjudicating authority. They are only contesting the imposition of penalty under Section 76 and 78 by invoking Section 80. He submits that the appellant has paid the service tax along with interest before issuance of show cause notice. He submits that there was no intention to evade the service tax for the reason that the appellant had a bona fide belief that the service being provided outside India is not liable to service tax in terms of Rule 3(ii) of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. Therefore, under that impression, the appellant did not discharge the servic
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bt that the receipt of services from abroad was liable for service tax under the reverse charge mechanism. The appellant also not declared the value of such taxable service in their ST-3 return. Therefore, there is a clear intention to evade payment of service tax. Therefore, the penalty imposed under Section 76 and 78 is correct and legal which need not to be disturbed. 4. I have carefully considered submissions and perused the records. I find that there is no doubt about the taxability of the services. The appellant had admittedly paid the service tax along with interest before issuance of show cause notice. The prayer of the appellant is only for waiver of penalty imposed under Section 76 and 78. It is a fact that the appellant is 100% export oriented service provider. In such case, whatever the input service suffered the service tax, the said service tax is refundable under Rule 5 of the Cenvat Credit Rules, 2004. Therefore, even though, had the appellant paid the service tax in ti
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ough there were conflicting decisions in this issue by the Hon ble Gujarat High Court in the case of CCE v. Cadilla Health Care – 2013 (30) S.T.R. 3 (Guj.) and by Hon ble Punjab and Haryana High Court in CCE v. Ambika Overseas – 2012 (25) S.T.R. 348 (P & H), now it stands accepted by C.B.E. & C. in their circular 943/4/2011-CX dated 29-4-2011 at item 5 that Cenvat credit can be taken on such services. On textile products a voluntary scheme for payment of excise duty was in force. So the appellants could pay duty, take credit and utilize it either for local clearance or on any export consignment and get rebate. It is also seen that from 1-4-2008, the Government exempted such taxes subject to certain conditions by issuing Notification 17/2008-S.T. Part of the demand is after 1- 4-2008. Thus this is not just a case of revenue neutrality; but a special case of revenue-neutrality involving the same person taking credit of tax paid and also being eligible for relief from such tax inc
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is improper to allege that the appellant did not pay service tax with an intent to evade payment of Service Tax. In a similar case of ECB – Enercon (India) Ltd. v. Commissioner of Central Excise & Customs, Daman (supra), this Tribunal has held as under : 5. In this case, since whatever amount was due as Service Tax, was available as credit to the appellant, penalty under Section 78 of the Finance Act, 1994 cannot be sustained since there is no need for suppressing fact, resorting to mis-declaration or undertake fraudulent act with intention to evade duty since the Cenvat credit would be available, the moment the payment is made to the Government. This view was upheld by the Hon ble High Court of Karnataka in the case of C. Ahead Info Technologies India P. Ltd. In that case, the Revenue was challenging the order passed by the Tribunal which has set aside the penalty under Section 78 of the Finance Act, 1994, observing that the records indicate the absence of intent to evade duty. 6
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2018 (5) TMI 673 – CESTAT MUMBAI – TMI – Input service distribution – Recovery u/r 14 of CCR, 2004 – demand on the ground that the input service viz. air travel agent service, is not admissible as the service related to business activity shall exclude on the definition of input service with effect from 1.4.2011 – Held that: – Rule 14 applies to the person who avails credit wrongly which is recoverable – In the present case, the appellant has not availed the credit whereas they have distributed the input service credit to their respective manufacturing unit who, in turn, availed the credit.
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Input service distributor does not fall under Rule 14 of the Cenvat Credit Rules as they neither avail the cenvat credit nor utilize the same for
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the input service distributor as input service distributor does not avail the cenvat credit. They only distribute the input service credit to their manufacturing unit where the credit is availed under Rule 3 of the Cenvat Credit Rules. Therefore, Rule 14 has no application on input service distributor. He placed reliance on the judgment of the Tribunal in the case of Mahindra and Mahindra Ltd. vs. CST, Mumbai – 2017-TIOL-2364-CESTAT-MUM. 3. Shri Vivek Dwivedi, learned Assistant Commissioner (AR) reiterates the finding of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of the records, I find that the demand was raised from the input service distributor who has distributed the service cred
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cenvat credit nor utilize the same for payment of any service tax/excise duty. Therefore, the denial of cenvat credit and recovery thereof under Rule 14 against the input service distributor is without authority of law. On this count itself, the demand is not sustainable. This issue has been considered by the Division Bench of this Tribunal in the case of Mahindra and Mahindra Ltd. (supra) wherein the Bench has taken a view that input service distributor has only distributed the input service credit. Rule 14 of the Cenvat Credit Rules can be made applicable only on the person who avails the cenvat credit wrongly or utilizes the same. Show cause notice cannot be issued to the appellant who is an input service distributor for recovery of cen
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2018 (5) TMI 981 – CESTAT MUMBAI – TMI – Penalty u/s 78 – service tax along with interest were paid before show cause notice – construction of residential complex service – Held that: – it is well known fact that the builders in all over India challenged the levy of service tax on construction of residential complex – it cannot be said that the appellants had any mala fide intention, particularly for the reason that the appellants have not suppressed the value as they have declared in the books of account.
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Relying on the fact that the matter was under litigation therefore, penalty needs to be waived – appeal allowed – decided in favor of appellant. – APPEAL Nos. ST/85456,85458-85460/2018 – A/86105-86108/2018 – Dated:- 20-4-2018 – Mr
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ion to evade service tax as the entire transactions are appearing in the books of account. The service tax was not paid because the validity of the levy of service tax on construction of residential complex was under controversy. They are member of Maharashtra Chamber of Housing Industry who challenged the validity of the levy before the Hon ble High Court and the Hon ble Bombay High Court has given the judgment in 2012. Subsequently, the matter was challenged before the Hon ble Supreme Court, which is pending. In these facts, the intention to evade the service tax does not establish. Hence the penalty under Section 78 was not imposable. 3. Shri Atul Sharma, learned Assistant Commissioner (AR) appearing on behalf of the Revenue, reiterates
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t, it cannot be said that the appellants had any mala fide intention, particularly for the reason that the appellants have not suppressed the value as they have declared in the books of account. This Tribunal time and again in identical issue waived the penalty. Relying on the fact that the matter was under litigation in the case of MCHI before the Hon ble Bombay High Court, therefore, in the present case also, the same benefit can be extended to the appellants. Accordingly, I set aside the penalty imposed under Section 78 of the Finance Act. The impugned order is modified to the above extent. 5. The appeals are allowed in the above terms. (Pronounced in court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmana
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2018 (5) TMI 1302 – CESTAT NEW DELHI – TMI – CENVAT credit – Renting of Immovable Property services – inputs – cement, glass and steels – input services – architect service and Works Contract Services – capital goods – Held that: – the identical issue has come up in the case of M/s Galaxy Mercantile Ltd. V/s Commissioner [2018 (4) TMI 1042 – CESTAT ALLAHABAD], where it was held that unless excluded, all goods used in relation to manufacture of final product and for any other purpose used by a provider of taxable service for providing an output service are eligible for Cenvat Credit – credit on input and put services allowed.
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Capital goods – Held that: – the appellant is entitled for availing Cenvat Credit as per the provisions of the provisions of Section 2 (1) of the Cenvat Credit Rules, 2004 – credit on capital goods allowed.
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Appeal allowed – decided in favor of appellant. – Appeal No. ST/57043/2013-DB – ST/A/51699/2018-CU[DB] – Dated:- 20-4-2018 – Justice Dr. Satish Cha
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as field present appeal. 3. With this background we heard Shri Narender Singhavi, Ld. Counsel for the appellant and Shri R.K. Majhi, Ld. DR for the Revenue. 4. After hearing both the parties and on perusal of record, it appears that the identical issue has come up in the case of M/s Galaxy Mercantile Ltd. V/s Commissioner Final Order NO. 70762/2018 dated 08/03/2018 where it was observed that: – 5. Having considered the rival contention and on perusal of case ready and on going through the case laws relied upon by learned counsel, we find that the issue is no more resintegra and the same has been settled through the ruling by Hon ble High Court of Andhra Pradesh at Hyderabad in above stated case of Commissioner of Central Excise, Visakhapatnam-II vs. Sai Sahmita Storages (P) Ltd. wherein in Para 7 the Hon ble High Court has ruled as follows:- In a pliant reading of both the above definitions would show that, unless excluded, all goods used in relation to manufacture of final product and
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ing of Immovable Property Service in the present case. We, therefore, set aside the impugned Order-in-Original and allow the appeal. The MISC Application No. ST/MISC/54064/2014 in APPEAL No. ST/3088/2012-CU[DB] 5 appellant shall be entitled for consequential relief as per law. 5. By following our decision (supra) we set aside the impugned order and allow the appeals. 6. Regarding the capital goods, the matter has come up before the Tribunal in the case of DLF Ltd. V/s CCE & ST, Delhi, Final Order No. 62037-62030/2018 dated 22/03/2018 where the issue pertaining to the capital goods for input service used for providing the output services namely renting of immovable property service, it was observed that the appellant is entitled for availing Cenvat Credit. The said order is reproduced below:- 3. Considering the fact that the said issue has already been examined by this Tribunal in the case of DLF Cyber City Developers Ltd., vide Final Order No.60018/2018 dated 03/01/2018, this Tribu
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in error to rely upon the Board Circular No.98/1/2008-ST dated 04/01/2008 in as much, the definition of input services during the relevant period does not bar availment of Cenvat Credit all input services. In order to appreciate correct position of law, the definition of input services under Rule 2 (1) of the Cenvat Credit Rules, 2004 as was during the relevant period of these cases is reproduced: Input service means any service, – (i) Used by a provider of taxable service for providing an output service; or (ii) Used by the 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 setting up, modernization, 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 up to the place of removal, procurement of inputs, acti
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2018 (6) TMI 430 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – 2018 (14) G. S. T. L. 159 (A. A. R. – GST) – Levy of GST – Marg Sudharan Shulk and Abhivahan Shulk – Whether GST is leviable on the “Marg Sudharan Shulk” and “Abhivahan Shulk” charged by Forest Division Dehradun from the non government, private and commercial vehicles engaged in mining work in lieu of use of forest road? – Held that:- Under GST, “the services by way of assess to a road or a bridge on payment of toll charges” are included in the list of exempted services – the said “marg sudharan shulk” is nothing but toll charges collected by the applicant from the users for using forest road and the said toll charges are being used for the maintenance of forest road – no GST is leviable as on date on the said “marg sudharan shulk” charged and collected by the applicant.
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GST on Abhivahan Shulk – Held that:- The said ““Abhivahan Shulk”“ is charged and collected by applicant in respect of forest produce carried out by
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97 of the CGST Act and the rules made thereunder filed by Regional Forest Officer (Forest Division Dehradun) seeking an advance ruling on the question whether GST is leviable on the Marg Sudharan Shulk and Abhivahan Shulk charged by Forest Division Dehradun from the non government, private and commercial vehicles engaged in mining work in lieu of use of forest road. The said mining is being undertaken at Saung and Jakhan Rivers falling under the jurisdiction of Forest Division Dehradun under the supervision of Van Vikas Nigam after getting necessary approval from Environment Ministry, Government of India. 2. Advance Ruling under GST means a decision provided by the authority or the appellate authority to an applicant on matters or on questions specified in sub section (2) of section 97 or sub section (1) of section 100 in relation to the supply of goods or services or both being undertaken or proposed to be undertaken bythe applicant. 3. As per Section 97(2)(e) of CGST/SGST Act, 2017 t
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said marg sudharan shulk is charged and collected by applicant from non government, private and commercial vehicles engaged in mining work in lieu of use of forest road. Stated purpose of said marg sudharan shulk is for maintenance of forest road. Under GST, the services by way of assess to a road or a bridge on payment of toll charges are included in the list of exempted services. Further, A toll road, also known as a turnpike or tollway, is a public or private road for which a fee (or toll) is Assessed for passage. It is a form of road pricing typically implemented to help recoup the cost of road construction and maintenance. In the present case we find that the said marg sudharan shulk is nothing but toll charges collected by the applicant from the users for using forest road and the said toll charges are being used for the maintenance of forest road. Therefore we conclude that no GST is leviable as on date on the said marg sudharan shulk charged and collected by the applicant. 6.2
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2018 (6) TMI 462 – AUTHORITY FOR ADVANCE RULING-ANDHRA PRADESH – TMI – Maintainability of Advance Ruling Application – Clarification of rate of tax – grain based extra neutral alcohol – Whether the grain based extra neutral alcohol comes under 18% or exempted or any other taxes category in GST tax system? – Held that:- On verification of the record submitted by the jurisdictional authority, it was found that the proceedings were initiated well before the filing of application before this authority. Further, the applicant himself admitted that they have preferred writ petition No.7734/2018, dt 07.03.2018 before the Hon'ble High Court of Judicature at Hyderabad on the same issue which is pending for disposal.
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As the application do not
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nce ruling is sought by the applicant is as follows.. The grain based extra neutral alcohol which slab under comes In GST tax system. Is this comes under 18% or exempted or any other taxes category?' 3. A copy of the said application has been forwarded to both (Central tax & State tax) the jurisdictional officers, to offer their remarks on the question raised by the applicant and as well as to know any proceedings pending/passed regarding the applicant. 4. In this regard it is ascertained from the remarks as offered by the jurisdictional officer, i.e Assistant Commissioner State tax, Nandigama Circle, that, certain proceedings are pending with the Assistant Commissioner, Nandigama Circle, prohibits admission of the ruling as per the
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unds, after considering the request of the applicant, a later date i.e 04.04.2018 was scheduled for personal hearing. At the time of personal hearing, the applicant submitted that they have filed the application for advance ruling before the receipt of the show cause notice, hence to heard. But on verification of the record submitted by the jurisdictional authority, the proceedings were initiated well before the filing of application before this authority. Further, the applicant himself admitted that they have preferred writ petition No.7734/2018, dt 07.03.2018 before the Hon'ble High Court of Judicature at Hyderabad on the same issue which is pending for disposal. ORDER: In the circumstances stated above and as the application do not q
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2018 (6) TMI 478 – CESTAT CHENNAI – TMI – Invocation of Extended period of limitation – proviso to Section 73 (1) and Section 75 of the Finance Act, 1994 – Air Travel Agent’ services – suppression of facts or not? – Held that:- A mere non-disclosure of the fact cannot make a guilty mind of the assessees so as to justifiably invoking the longer period – Hon’ble SC in the case of Collector of Central Excise Vs. Chemphar Drugs & Liniments [1989 (2) TMI 116 – SUPREME COURT OF INDIA] has observed that a mere inaction or failure on the part a manufacturer is not sufficient to invoke the larger limitation of five years and the same would be applicable only when something positive indicating that the manufacturer had the reasonable belief that he has to give the particular information.
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In the present case, there is no evidence of any malafide on the part of the assesse. Also, the said issue was the subject matter of litigation with the Revenue pending at various levels and all the Air T
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e in address of the respondent. The present jurisdiction and address of the respondent is as follows:- The Commissioner of GST & Central Excise, Chennai South Commissionerate, MHU Complex, 692, Anna Salai, Nandanam, Chennai – 600 035. Accordingly, both the miscellaneous application is allowed and the jurisdiction and address of the respondent is changed from CST, Chennai to The Commissioner of GST & Central Excise, Chennai South Commissionerate. 2. The brief facts of the case are that the appellants are Air Travel Agent and had obtained registration with the department under the category of Air Travel Agent services. The appellants were involved in booking of air tickets for their customers. In providing the service of air travel ticket booking, the appellant used central Computer Reservation Systems (CRS) software supplied by M/s. ABACUS/Ms. Amedeus. During audit of the appellant s premises, it was noticed that apart from their regular business the appellants had earned income
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him vide the present impugned order. 3. The Ld. Advocate appearing for the appellant fairly concedes that the issue now stands decided against the assessee by the Tribunal decision in the case of D. Pauls Consumer Benefit Ltd. Vs. CCE, New Delhi – 2017 (52) STR 429 (Tri.-Del.). However, he assails the impugned order on the point of limitation by submitted that the demand stands raised, for the period July 2003 to January 2008, by way of issuance of SCN dated 28.08.2008. He submits that the issue involved was the subject matter of litigation with the Revenue, at all the levels as travel agents were taking a plea that the incentives/commissions received by them from such CRS software supplied by the companies are not taxable under the category of BAS. Lot of such appeals were pending before the Tribunal and the first decision came in the year 2017 in the above referred judgment of D. Pauls Consumer Benefit Ltd. (supra). He submits that as there is no evidence of any suppression with a ma
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invoke the larger limitation of five years and the same would be applicable only when something positive indicating that the manufacturer had the reasonable belief that he has to give the particular information. 5.2 In the present case, we note that there is no evidence of any malafide on the part of the assesse. In fact, we agree with the Ld. Advocate that the said issue was the subject matter of litigation with the Revenue pending at various levels and all the Air Travel Agents were fighting the case with the department on the taxability. As such, it cannot be held that the present appellant was guilty of any suppression or mis-statement etc., so as to invoke the larger period of limitation. Accordingly, we hold that the major part of the demand, being beyond the normal period of one year is barred by limitation. 5.3 However, a part of the demand would fall within the limitation period for which the matter is remanded to the original adjudicating authority for re-quantification of t
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2018 (6) TMI 762 – AUTHORITY FOR ADVANCE RULING, UTTARAKHAND – 2018 (15) G. S. T. L. 470 (A. A. R. – GST) – Transitional Credit – carry forward of Credit – Post-GST implementation situation – Uttarakhand VAT Act – Whether Credit of Uttarakhand VAT paid on Construction material such as Cement, sand, steel etc. held in closing as on 30-06-2017 is allowed to be carried forward as transitional credit as Uttarakhand GST under GST regime? – If yes, then whether it is allowed when the assessee had opt
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2018 (6) TMI 796 – CESTAT MUMBAI – TMI – Refund claim – Services rendered outside India – Place of Provision of Services Rules – rejection on the ground that since M/s Holtech International has taken registration on 02/07/2015 at Wakad, Pune, hence as per definition of service recipient in Rule 2 (i) of PPS Rules, the location of service recipient is premises for which such registration has been obtained i.e India – Rule 6 A of Service Tax Rules – Held that:- The office of M/s Holtech International situated in USA is different establishment from its project office in India – In the present case it is the US establishment of M/s Holtech International, USA who has availed the services from the Appellant and therefore the services rendered by Appellant would clearly fall under the category of Export of Service in terms of Rule 6 A of Service Tax Rules, thereby making them eligible for refund claimed by them – appeal allowed – decided in favor of appellant. – Appeal No. ST/85367,85369,853
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Pune, hence as per definition of service recipient in Rule 2 (i) of PPS Rules, the location of service recipient is premises for which such registration has been obtained i.e India. As both service provider and service recipient are located in India as per Rule 8 of PPS Rules, 2012, the place of provision of Services shall be the location of service recipient of service. The condition (b) and (d) of Rule 6A of STA Rules has not been satisfied and therefore the impugned service do not qualify as export of service. The Appellant filed reply to the said objection contending that M/s Holtech International is having Project office in India who is rendering services solely to NTPC for their 2*800MW Lara Super Thermal Project received from BGR Energy Systems Ltd. They have not rendered any services directly or indirectly related to M/s NTPC contract. The adjudicating authority rejected the claims on the ground that w.e.f 07.05.2014 M/s Holtech international has opened branch office in India a
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e therefore their service qualify as export and are entitled for refund. He submits that as per the law settled in case of Paul Merchant Ltd. (2013 (36) STR 257), Microsoft Corporation India Pvt. Ltd. (2014(36) STR 766), Verizon Communication India Pvt. Ltd. (2018 (8) STR GSTL 32) (Del), SGS India Pvt. Ltd. (2014(34) STR 554) (Bom.), the recipient of service is the person who has contracted to avail the services and who is obliged to make payment for the services. In the present case admittedly the person who is contracted for service is Holtech international USA and the payment is also received from them in foreign exchange. The Appellant thus fulfills the requirement of Rule 6A of the Service Tax Rules, 1994 and therefore their services qualify as export of service as claimed by them and they are eligible for the refund. The registration of Holtech International USA project office in India with the service tax department shall not have any bearing on the services provided by Appellan
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) of the Finance Act, 1994 an establishment of a person in the taxable territory and any of his other establishment in a nontaxable territory shall be treated as establishment of distinct person. The establishment of Holtec International in India and USA shall be treated as distinct persons. The Appellant did not provide any service in the project office in India which has been confirmed by an independent chartered Accountant s Certificate therefore denial of export status to the appellant on the basis of above contention is incorrect. He draws analogy with Section 66A of Finance act to submit that where the provider of service has his establishment in two countries, the country where the establishment of the service provider is directly concerned with the provision of service is located, shall be treated as the country from which the service is provided. Thus in present case the establishment located in USA who has contracted for the service and not the project office will be consider
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ervice to M/s Holtec International USA and the consideration towards the same has been received in Foreign Exchange. Further the office of M/s Holtec International USA in Wakad, Pune was only for the purpose of providing services to the customer – BGR Energy Systems Ltd who had placed the purchase order dt. 15.10.2013 on Holtech International USA. Such company opened office at Pune had no connection with the services rendered by the Appellant. The instant refund claims were filed on account of services rendered outside India and the claim has been filed in terms of Rule 5 of Cenvat Credit Rules, 2004. In terms of provisions of Rule 6A (1) of the Service Tax Rules, 1994 the services are treated as export of service when : – (a) the provider of service is located in the taxable territory, (b) the recipient of service is located outside India, (c) the service is not a service specified in the section 66D of the Act, (d) the place of provision of the service is outside India, (e) the payme
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located outside India. The Indian Project office of M/s Holtech International Ltd, USA was not at all concerned with such services. Further in terms of Explanation 3 to Section 65B (44) different establishment located in non taxable territory and taxable territory are to be treated as establishment of different persons. It reads as under : service means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- Explanation 3. – For the purposes of this Chapter,- (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4. – A person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establi
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2018 (6) TMI 924 – CESTAT MUMBAI – TMI – Penalties u/s 77 and 78 – GTA Service – non-payment of Service Tax – appellant had incurred certain expenditure towards outward transportation of finished goods to various buyers including the department of railway – Held that:- Appellant is engaged in the excisable activity as well as payment of service tax on inward GTA. Being organized manufacturer, it cannot be expected that they are not aware about the levy of service tax on outward transportation. There is no different law for levy of service tax on GTA either it is inward transportation or outward transportation, levy of service tax on GTA is under common law. Therefore, contention of the appellant that being outward transportation they were under bonafide belief that the service tax payable by the recipient of the goods has no force.
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The appellant could not make out the case of reasonable cause for non payment of service tax on outward transportation – penalties upheld – appeal d
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ervice. On being pointed out, the appellant made the payment of service tax alongwith interest on 3-5-2014. The department issued a show cause notice dated 21-8-2004, the adjudicating authority confirmed the demand alongwith interest and imposed penalties under Section 78 and 77 of the Finance Act. Being aggrieved by the Order-in-Original appellant filed appeal particularly for waiver of penalty imposed under Section 78 by invoking Section 80. Ld. Commissioner(Appeals) upheld the Order-in-Original and dismissed the appeal of the appellant, therefore appellant is before me for setting aside the penalty under Section 78. 2. Shri. Vinay Jain, Ld. C.A. for the appellant submits that non-payment of service tax is due to bonafide belief that in case of outward transportation, recipient of the goods is required to pay service tax, therefore they have not discharged the service tax. It is admitted fact that appellant have been paying service tax on the inward transportation regularly. The cont
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e by the recipient of the goods has no force. It is also fact that appellant have not declared taxable value of outward transportation in their monthly ST-3 returns. The contention of the Ld. Counsel is also that there is Revenue neutralilty in case if service tax is paid on outward transportation then appellant is entitled for Cenvat credit. In my view this contention is misleading for the reason that after 1-4-2008 when the input service definition amended and term service provided for removal of goods from place of removal was amended up to the place of removal . Accordingly, it was crystal clear that Cenvat credit on outward transport was not admissible therefore this contention is of no help to the appellant. From the facts above discussed, I find that appellant could not make out the case of reasonable cause for non payment of service tax on outward transportation. Accordingly, I uphold penalties under Section 77 and 78, impugned order is upheld, appeal is dismissed. (Pronounced
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Goods and Services Tax – Started By: – PAWANKUMAR GARG – Dated:- 19-4-2018 Last Replied Date:- 8-5-2018 – SIR,I AM PURCHASING POULTRY FEED AND PAID FREIGHT. WHEATHER I AM LIABLE TO PAY GST UNDER RCM @ 5% ON PAYMENT OF FREIGHT. THE COMMODITY IS TAX FREE. – Reply By Ganeshan Kalyani – The Reply = GST is payable on the freight amount paid by you. – Reply By PAWANKUMAR GARG – The Reply = SIR, CAN WE CLAIM TAX PAID ON FREIGHT AS ITC – Reply By Susheel Gupta – The Reply = ITC of freight is allowedReg
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Goods and Services Tax – Started By: – ROHIT GOEL – Dated:- 19-4-2018 Last Replied Date:- 22-4-2018 – Hi Sir, One of our client is a trust institution operating colleges. The institution has contracted with outside vendors for operating a canteen at its hostel premises wherein the vendors operate the kitchen, obtain all vegetables and thereafter also operate the hostel mess. The charges for such services are payable to the vendors on the basis of a fixed per meal charges. Charges for such hostel mess are collected from students upfront on lump sum basis. My query is whether this would constitute service of outdoor catering by the outside vendor and hence chargeable to GST @18% or suuply of food items and chargeable to 5% without ITC. Furth
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definition of 'supply' in GST. – Reply By CASusheel Gupta – The Reply = Dear Rohit In your case, the institution is collecting the charges from students and paying to the contractor on meal basis and the contractor is not collecting any amount from the students. As such the contractor is supplying to the institution and institution is supplying the the students (thought delivery to the students may be being done by the contractor) . You need to refer to the corrigendum to the circular no. 28/02/2018-GST which clearly states that (1) If the catering services is one of the services provided by an educational institution to its students, faculty and staff and the said educational institution is covered by the definition given under par
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RCM ON TRANSPORT – Goods and Services Tax – Started By: – SURYAKANT MITHBAVKAR – Dated:- 19-4-2018 Last Replied Date:- 22-4-2018 – While making RCM under transportation charges which document to be pr
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Goods and Services Tax – Started By: – Arun Aggarwal – Dated:- 19-4-2018 Last Replied Date:- 20-4-2018 – sirI would like to know if an e way bill is to be generated for bullion/gold , jewellery and articles of gold.Notification if any in this regard would be welcomedArun – Reply By Ganeshan Kalyani – The Reply = In my view yes e way bill is required to be generated. – Reply By KASTURI SETHI – The Reply = Goods covered under Annexure to Rule 138 i.e. LPG, Kerosene, Postal baggage, jewellery, pre
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Goods and Services Tax – Zero rated supply or not – supply from the shop located in the Security Hold Area of the IGI International Airport – supply to an International outbound passengers holding int
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Goods and Services Tax – Started By: – SURYAKANT MITHBAVKAR – Dated:- 19-4-2018 Last Replied Date:- 20-4-2018 – Local transporter who is registered and unregistered under GST not charging any GST in their bill.Is there any liability to us to pay GST under RCM. But RCM is exempted till June-18. – Reply By Rajagopalan Ranganathan – The Reply = Sir, Under Section 9 (3) of CGST Act, 2017 the Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in rela
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Goods and Services Tax – Started By: – SURYAKANT MITHBAVKAR – Dated:- 19-4-2018 Last Replied Date:- 19-4-2018 – Our clearing agent charging their charges including freight to us. On freight amount they will not charge GST.Is it any exemption for freight paid on Export Consignment? – Reply By Susheel Gupta – The Reply = Vide notification no. . 2/2018- Central Tax (Rate) , freight on export of goods has been exempted up to 30.09.2018 Regards CA Susheel Gupta 8510081001, 9811004443 – Discussion-Fo
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Goods and Services Tax – Started By: – Basha AbdulRazack – Dated:- 19-4-2018 Last Replied Date:- 20-4-2018 – Sir,We are paying monthly Retainer Fees to Advocate but they are not charging GST, so Reverse Charge mechanism is applicable or not, please clarify.Thanks & RegardsRazack. – Reply By KASTURI SETHI – The Reply = Legal services are under RCM. Recently Board has clarified. – Reply By Basha AbdulRazack – The Reply = Sir,Thank you for your clarification but Reverse Chage mechanisim rule for Epxenses cancelled till 30.06.2018, so advocate fees come under this category or not? please confirm once again to proceed further.Thanks & RegardsRazack – Reply By Rajagopalan Ranganathan – The Reply = Sir, Vide Sl. No. 2 of Notification No.
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tral Tax (Rate) dated 28.6.2017 as amended. – Reply By Susheel Gupta – The Reply = There are two sections of RCM Section 9(3) – which requires payment on RCM on advocate fees, transportation charges. etc. Section 9(4) – which requires payment on RCM on purchases from unregistered suppliers Section 9(4) has been deferred till 30.06.2018. But u need to pay GST on advocate fees under section 9(3) which has not been deferred and still applicable. Regards CA Susheel Gupta 9811004443, 8510081001 – Reply By Basha AbdulRazack – The Reply = Dear Sirs,Thank you very much for giving detailed explanations to Mr. Rajagopalan Ranganathan Sir & Mr. Susheel Gupta Sir.RegardsAbdul Razack – Reply By Ganeshan Kalyani – The Reply = GST on legal service is
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Goods and Services Tax – Started By: – Ravikumar Doddi – Dated:- 19-4-2018 Last Replied Date:- 9-6-2018 – Dear sir,Material sending for jobwork in Delivery challan for Intra state movement of goods way bills is required or not for the value below ₹ 50,000/- Please clarify – Reply By KASTURI SETHI – The Reply = Not required. – Reply By subramanian vijayakumar – The Reply = No e_eay bill is requiredDelivery challan is enough – Reply By Ganeshan Kalyani – The Reply = Not required, but you can generate . – Reply By Ravikumar muthusamy – The Reply = irrespective of purpose of supply .i.e for job work or sale or otherwise if value of taxable goods is less than 50k e way bill not required – Reply By CS SANJAY MALHOTRA – The Reply = Eway bil
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ndatory for job work in their eway bill Notification, the same has to be generated irrespective of value, as people normally manipulate the value of job work.querist has to go through his state eway bill Notification. – Reply By Praveen Nair – The Reply = I agree with Sanjay. Gujarat State has this provision of making E-Way for Jobworker's irrespective of the amount. – Reply By Himan Sharma – The Reply = Hello sir as intra state way bill has been mandatory, can u share any document regarding job work scenario.I m from haryana n looking the answer for intra state way bill rules for our state. – Reply By Himan Sharma – The Reply = Mr Praveen as you mentioned the gujrat case where others can check the same for their respective state – Repl
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Goods and Services Tax – Started By: – SURYAKANT MITHBAVKAR – Dated:- 19-4-2018 Last Replied Date:- 5-5-2018 – E-way bill operations are compulsory for inter-state movement of goods with effect from 01.04.18.In case of Trading Export, we are given instruction to our supplier to deliver goods directly to port for further process of export. We are sending our document like tax invoice , Packing List to clearing agent.In above case generation of Eway bill is compulsary. If yes who is liable to generate Eway bill. – Reply By KASTURI SETHI – The Reply = Yes. It is compulsory. Any registered person who causes the movement of goods. is required to generate E-way bill. However, first responsibility to raise E-way bill is on consignor. if consignor
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