Author: admin_gst

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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the Tribunal in the case of CCE & ST Vs. Samsung India Electronics Pvt. Ltd. – 2017 (52) STR 497 (Tri.-All.). Since Revenue has challenged such decision further, he submitted that the appeal may be allowed.
4. The case of the respondent was argued by Shri Sandeep Mukherjee, ld. CA. It is his submission that the decision of the Tribunal in the case of Samsung India Electronics Pvt. Ltd. was further upheld by the Hon'ble Allahabad High Court reported as 2017 (52) STR J253 (All.). He submitted that even though Revenue has challenged the decision further the benefit is to be granted to the respondent.
5. Heard both sides and perused the record.
6. The main reason why the Cenvat credit has been disputed by Revenue is that the premises for which rent was paid along with service tax was not part of the centralised registration till it was granted to the respondent with effect from 28.1.2015. It is further seen that the application for such centralised registration was submitted as early as

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roved and granted on 19-7-2013. Further it has been certified by the C.A. that invoices for output service rendered from Stellar Park, was raised from the Registered Office at Noida. That as per Rule 3 of CCR, 2004, there was no condition precedent, that input service have to be received at Registered Premises, only of the output service provider. Further reliance is placed on the ruling of Hon'ble Karnataka High Court in mPortal India Wireless Solutions (P) Ltd. v. CST, 2012 (27) S.T.R. 134 (Kar.) and of Hon'ble Bombay High Court in Deepak Fertilizers & Petrochemicals Corporation Limited v. CCE, 2013 (32) S.T.R. 532 (Bom.). Considering the rival contentions, following the rulings of Karnataka High Court and Bombay High Court (supra), this ground is rejected. It is held that a service provider can avail Cenvat credit of Service Tax paid on various input services, as long as the said services are used for providing output-taxable services.”
7. The said decision has further been upheld

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

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(Appeals) order is reproduced below:-
“Thus, I hold that construction of residential flats under Manyawar Shri Kanshi Ramji Shehari Garib Awas Yojna, was not taxable under “Works Contract Service”, during the impugned period and as such, the appellant are not liable to pay Service Tax on such construction service. Same view has also been taken in cases of M/s Sanjeev Saran Srivastava, M/s Manoj Kumar Singh and M/s Ganesh Yadav, involving exactly the same issue, by the then Commissioner (Appeals), Central Excise, Customs and Service Tax, Allahabad, vide Order-in-Appeal No. 170/ST/ALLD/2013 dated 31.12.2013, No. 120/ST/ALD/2015 dated 22.07.2015 and No. 267/ST/ALLD/2015 dated 16.12.2015 respectively, wherein appeals were allowed after obser

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ontending as above, Revenue has not been able to give any details of the appeal filed before the Hon'ble High Court. Even, the fact as to whether the same stands admitted by the High Court or not, has not been placed before us. There is no order of Stay of operation of the Tribunal decision in the case of Ganesh Yadav.
Apart from the above we also note that the issue involved is the taxability of the services and applicability of exemption notification and as such the appeal was, in any case required to be filed before the Hon'ble Supreme Court and not before the Hon'ble High Court.
5. Inasmuch as the Tribunal's decision in the case of Ganesh Yadav holds the field, we find no infirmity in the impugned orders of Commissioner (Appeals). Acc

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M/s. Pothys, rep. by its Managing Partner Mr. S. Ramesh, Chennai-17, Tirunelveli Versus The Principal Chief Commissioner, Goods and Services Tax Act (previously Central Excise & Customs), Government of Tamil Nadu, Union of India, The Chairman, GSTIN
GST
2018 (9) TMI 685 – MADRAS HIGH COURT – TMI
MADRAS HIGH COURT – HC
Dated:- 18-7-2018
W. P. Nos. 7218 to 7225 of 2018
GST
Mr. T.S.SIVAGNANAM J.
For the Petitioners : Mr.A.Ravichandran
For the Respondent-1 : Mr.V.Sundareswaran, SPC
For the Respondent-2 : Mrs.G.Dhana Madhri, GA
For the Respondents 3 & 4 : Mr.T.L.Thirumalaaisamy, CGSC
COMMON ORDER
Heard both.
2. The sum and substance of the prayer of the petitioners is that they are unable to upload Form GST TRAN-1 to take credit of the input tax/ service tax/central excise duty availed by them at the time of migration within the time stipulated.
3. The petitioners would state that they were unable to upload Form GST TRAN-1 within the time stipulated on account

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by filing representation along with all necessary documents for redressal of his grievance and in turn, the said authority would consider and dispose of the same following the procedure laid down in para 8 of the circular dated 3.4.2018 and would take decision accordingly keeping in view that this writ petition remained pending since 26.3.2018.
8.With the aforesaid direction, the writ petition stand finally disposed of.”
5. So far as the High Court of Delhi is concerned, the Delhi High Court, in W.P(C) No.1300 of 2018 etc. batch by order dated 09.4.2018, directed the petitioners therein to approach the concerned Nodal Officer with brief representations outlining their grievances and the Nodal Officer or the Redressal Committee was directed to appropriately deal with representations in accordance with the circular dated 03.4.2018.
6. So far as the Kerala High Court is concerned, in W.P.No.17348 of 2018 by order dated 14.6.2018, the following direction has been issued:
“Having reg

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ell.
8. It was brought to the notice of the Central Board of Indirect Taxes (CBIC) and Customs about the difficulties faced by a section of tax payers owing to technical glitches on the GST and representations were given by the petitioners. Therefore, the CBIC is setting up a Grievance Redressal Mechanism vide Circular No.39/13/2018-GST dated 03.4.2018. Paragraph 8 of the said circular would be relevant for the purpose of the cases on hand, which reads as under :
“8. Resolution of stuck TRAN-1s and filing of GSTR-3B
8.1 A large number of taxpayers could not complete the process of TRAN-1 filing either at the stage of original or revised filing as they could not digitally authenticate the TRAN-1s due to IT related glitches. As a result, a large number of such TRAN-1s are stuck in the system. GSTN shall identify such taxpayers who could not file TRAN-1 on the basis of electronic audit trail. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1

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iscussed above, by 30th April 2018 and the process of completing filing of GSTR 3B which could not be filed for such TRAN 1 shall be completed by 31st May 2018.”
9. Further, paragraph 5.1 of the said circular would state that GSTN, Central and State Government would appoint Nodal Officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the common portal. This would be publicized adequately.
10. An argument was advanced by the learned counsel for the assessees that paragraph 5 of the said circular dated 03.4.2018 is confined to non-TRAN-1 issues. However, this Court finds that there is no such specific distinction brought about in paragraph 5 of the said circular.
Therefore, it can be safely held that the procedure of appointment of Nodal Officers and identification of issues are to be done in the manner provided in paragraph 5 of the said circular. Unless the Nodal Officers are appointed, the Jurisdictional officer of the Assessee, namely Asse

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M/s. SAIL Refractory Co. Ltd. Versus Commissioner of GST & Central Excise, Salem
Central Excise
2018 (9) TMI 1059 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
E/394 to 397/2012 – Final Order Nos. 42038-42041/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Ms. S. Gayatri, Advocate for the Appellant
Shri A. Cletus, Addl. Commissioner (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellants are engaged in the manufacture of refractory bricks. They raised bonus claim against the buyers to whom the refractory bricks were supplied and which had outperformed the guarantee period as per commercial terms and conditions of t

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llant has to be included in the assessable value. Four show cause notices were issued raising the above allegations for the periods as mentioned below. The original authority confirmed the demand, interest and imposed equal penalty. In appeal, the Commissioner (Appeals) upheld the demand and interest but set aside the penalty imposed under Rule 25 of Central Excise Rules. Hence these appeals.
2. On behalf of the appellant, learned counsel Ms. S.Gayatri explained the details of the adjudication order, period involved and the amount as given in the Table below:-
Order-in-Original
Period
Total
No. 10/2005 dated 26.12.2005
March 2004 to Jan. 2005
42,96,023/-
No. 12/2008 dated 26.12.2008
1/2008 to 3/2008
36,464/-
No. 03/2009 dated 26.

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Commissioner of Central Goods And Service Tax, Udaipur Versus Prem Jain Ispat Udyog Private Limited
Central Excise
2018 (9) TMI 1060 – RAJASTHAN HIGH COURT – TMI
RAJASTHAN HIGH COURT – HC
Dated:- 18-7-2018
D.B. Central/excise Appeal No. 10/2018
Central Excise
Mr. Kalpesh Satyendra Jhaveri And Mr. Vijay Kumar Vyas JJ.
For the Appellant(s) : Mr. Sidharth Ranka
For the Respondent(s) : Ms. Archana for Ms. Mahi Yadav
JUDGMENT
1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal filed by the appellant.
2. The counsel for the appellant has framed the following substantial questions of law:
1. Whether the ld. CESTAT has grossly erred in law in ignoring the vital evidences in the form of voluntary statements of the Director and General Manager of the Company and the loose slips recovered by the Department during the search in setting aside the order of the ld. Adjudicating Authorit

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

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y 32 slips. These findings of the adjudicating authority have been challenged by the assessee in the present appeals. It is their submission that the goods covered by these seven slips were never despatched from the factory for various reasons. It is their submission that the kachha parchis were initially made for internal use indicating the quantity of material, name of the party, place to which goods to be despatched and other details. Later on, the relevant quantum of goods are identified from the stockyard and loaded into the despatch truck whose number is also included in the kachha parchi. In respect of these seven kachha parchis, the orders placed by the customers have got cancelled and hence no goods were despatched to the parties indicated in the kachha parchi.
8. On going through the impugned order, we note that the adjudicating authority has not given due consideration to the submissions made by the appellant. The allegation of clandestine removal has been upheld in respect

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stained. The assessee has cited a large number of decisions to support the contention that clandestine clearance cannot be upheld without tangible evidence.
4. We are of the opinion that valuation of seven parchis which were found will come to less than 50 lacs and in view of the circular of the Department dated 11.7.2018 which reads as under:
F.No.390/Misc./116/2017-JC
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes & Customs
(Judicial Cell)
********
'B' Wing, 4th Floor, HUDCO-VISHALA Building Bhikaji Cama Place, R.K. Puram, New Delhi-66
Dated 11.7.2018
INSTRUCTION
To
1. All Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/Commissioners of Customs/ Customs (Preventive)/ GST & CX;
2.All Principal Director Generals/ Director Generals of Customs, GST & CX;
3.Chief Commissioner (AR); Commissioner Directorate of Legal Affairs, CBIC;
4.
Subject : Reduction of Government Litigation – Raising of

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

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d monetary limits SC 25Lakhs -1 Crores) / HC 20 -50 Lakhs/ CESTAT 10-20 Lakhs
S No
I. Zones (in alphabetical order)
II.Identified
III. Filed
IV. Withdrawn
 
 
SC
HC
CESTAT
TOTAL
SC
HC
CESTAT
TOTAL
SC
HC
FILED
WITHDRAWN
 
 
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
Table M -1
Cases remaining to be filed / withdrawn
(as per instruction -11/07/2018)
As on(Last working day)//
Remaining to be Filed/Withdrawn
S No
I. Zones (in alphabetical order)
I. Remaining to be filed*
II. Remaining to be withdrawn**
 
 
SC
HC
CESTAT
Total
SC
HC
CESTAT
Total
 
 
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
*identified minus filed in Table M
**filed minus withdrawn in Table M
5. We are not inclined to interfere in the appeal. Moreso, counsel for the respondent has relied on the decision of this Court in D.B. Central/excise Appeal No. 26/2017, Commissioner of Central Excise V/s Mittal Pigment Pvt. Ltd, decided

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er dated 19.5.2009. The department confirmed the duty demand along with interest for the period of five years alleging suppression of clandestine removal of the final product and also imposed penalty mainly based on the production approximation and on the statement of Director of the unit, Shri Agarwal, who is one of the appellants in this case.
6.2 The department has not gone beyond the approximation and the statement of Shri Agarwal. Any prudent person would not so conclude on extra production by approximation and by a mere statement of the Director of the company. Unless there are further corroborations in the form of documentary evidences, which could be like despatch details for the production, receipt details of the said material, transactions of the sale money, transportation details of such goods, details of additional consumption of electricity for such suppressed production a prudent individual would not agree with the present conclusions of the Revenue. There is nothing on

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e High Court in the case of Continental Cement Company (supra) has inter alia observed as under:
13. ……to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department….
14………
15. ……When there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible…….”
7. Considering above discussions and the case laws cited above, we conclude that the Revenue has failed to reasonably prove suppressed production and clandestine clearance on the part of the appellants. Consequently, the impugned order in respect of confirmation of duty for alleged suppressed production, and imposition of fine and penalty on the appellant No. 1 and imposition of personal penalty of Rs. 40 lakhs on Shri Agarwal who is appellant No. 2 are hereby set aside. The appellants will get the relief accordingly.
8. The imp

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at there is no substantial question of law. It is appreciation of fact and in view of decision by this Court reported in 2008 (221) E.L.T. 180 (Raj.), Union of India vs. Jain Plas Pack (P) Ltd., wherein it has been observed as under:-
“2. In appeal is the order passes by the Customs Excise and Service Tax Appellate Tribunal dated 3.8.2005 allowing the appeal of the respondent No. 1 by setting aside the demand of Rs. 72,707/- as the duty adjudicated on alleged removal of the fabric from the factory and like amount of the penalty levied by the Adjudicating Officer.
4. The manufacturer's case from the beginning was that the register found during the visit of Excise Authorities in question was not a register maintained for recording production but was a document maintained for the purpose of keeping supervision over the factory workers and on their daily production was entered on estimate basis only.
Before entries were made in RG-1 the product was actually weighed and actual weight was

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ons of Madras High Court in: 1. D.V.Kishore vs. Commr. Of Cus. (SeaportsImports), Chennai, 2017 (350) E.L.T. 527 (Mad.), wherein it has been observed:-
26. It is also the findings on the part of the Tribunal to state that there was no effective and reliable denial on the part played by the appellant either in the proceedings before the Commissioner or before the Tribunal.
27. In fact, the appellant had started retracting his statement of confession itself from the beginning and when that being so, such a finding as has been given by the Tribunal, would not stand in the legal scrutiny. The further reasons given by the Tribunal is that, even though the only defence apparently was that the statements had been retracted, the seizure of gold and the consensual deposition by other witnesses implicating the appellant and therefore, the same cannot be ignored.
2. S.M.A. Siddique vs. Government of India, 1989 (42) E.L.T. (Mad.), wherein it has been observed:-
2. Mr. K. Ramaswami, learned Co

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39;Silva v. Regional Transport Authority 65 LW 73 , a bench of this Court observed as follows : “We have no hesitation in making it clear that a quasi-judicial Tribunal like the Regional Transport Authority or the Appellate Tribunal therefrom cannot ignore the findings and Orders of competent Criminal Courts in respect of an offence, when the Tribunal proceeds to take any action on the basis of the commission of that offence. Let us take the instance before us. The offence consist in smuggling foodgrains. For that same offence, the petitioner was criminal prosecuted. He has also been punished by his permit being suspended for a period of three months. If the criminal case against him ends in discharge of acquittal, it means that the petitioner, is not guilty of the offence and therefore did not merit any punishment. It would indeed be a strange predicament when in respect of the same offence, he should be punished, by one Tribunal on the footing that he was guilty of the offence and th

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ng i.e., bleaching, dyeing, printing, finishing, packed in HDPE bags on comparison with recorded stock, a shortage of 175178 L. mtrs. of processed MMF valued at Rs. 31,53,204/- involving Central excise duty of Rs. 3,15,329/- was detected. Accordingly, a panchnama came to be drawn recording the said facts. Statement of a Director of the Company, Shri Rajnikant Omkarmal Agarwal also came to be recorded, under Section 14 of the Act, wherein apart from several other admissions, he admitted the contents of the panchnama. Statements of other employees of the Respondent were also recorded under Section 14 of the Act. Subsequently, a show cause notice came to be issued to the Respondent calling upon it to show cause as to why Central excise duty amounting to Rs. 4,30,275/- should not be demanded under Section 11A of the Act, as well as, as to why mandatory penalty and penal interest should not be imposed.
5. As can be seen from the order made by the adjudicating authority, before the adjudica

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atement of the Director of the Assessee Company, Shri Rajnikant Agarwal recorded on 10-7-2003, there was no other evidence in support of the charge of clandestine removal of goods. The statement recorded on 10-7-2003 had subsequently been retracted by Shri Rajnikant Agarwal. Thus, it is apparent that the only evidence in respect of clandestine removal against the Assessee was in the nature of the statement recorded under Section 14 of the Act, which had been subsequently retracted. Before the adjudicating authority, the Respondent Assessee had led evidence to establish that the charge of clandestine removal is not made out and that there was no shortage of material as recorded in the panchnama which was accepted by the adjudicating authority. The findings of the adjudicating authority stand confirmed by both the appellate authorities. Learned Counsel for the Appellant is not in a position to point out any evidence to the contrary, in support of the case of the revenue as regards shorta

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d flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects:
(i) To find out the excess production details.
(ii) To find out whether the excess raw materials have been purchased.
(iii) To find out the dispatch particulars from the regular transporters.
(iv) To find out the realization of sale proceeds.
(v) To find out finished product receipt details from regular dealers/buyers.
(vi) To find out the excess power consumptions.
13. Thus, to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department.
14. In the instant case, no investigation was mad

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for the Department to come to a conclusive factual finding that there was shortage of 14,25,900 pieces of particular size and if they were all mixed together.
The onus would lie upon the Department to undertake the said exercise which was not possible in such a short period due to the large number of inventory which was there at the site. Nothing was brought on record, in any manner, to show that to manufacture such a large amount of 14,25,900 pieces, there was material which had been consumed since neither any relevant record had been shown to show that electricity had been consumed or labour had been utilized to manufacture the said quantity. Neither the fact of purchase of raw material from the vendors or the sale to the consumers was brought on record. In the absence of any corroborative evidence, the levy of such a huge demand was, thus, totally arbitrary and has been rightly set aside.
9. It is apparent that the demand was raised and a sum of ` 14 lacs was taken on the same da

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

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

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Commissioner of GST & Central Excise, Madurai Versus M/s. Sri Naga Nanthana Mills Ltd.
Central Excise
2018 (9) TMI 1123 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
Appeal No. E/380/2009 – Final Order No. 42036/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri S. Govindarajan, AC (AR) for the Appellant
Shri M. Kannan, Advocate for the Respondent
ORDER
Per Bench
The above appeal is filed by the department against the order passed by Commissioner (Appeals) who set aside the demand, interest and penalties.
2. The respondents are engaged in manufacture of cotton yarn and polyester yarn and are also selling through their consignment a

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an reiterated the grounds of appeal.
4. On behalf of the respondent, ld. counsel Shri M. Kannan submitted that under Rule 8(4) of Central Excise Rules, 2002, as it stood then, the assessee is required to pay “excise duty for each consignment by debit to the current account” and hence the assessee can pay the differential through CENVAT account. The respondents had the facility of payment of differential duty and paid the same through their CENVAT account for which the show cause notice was issued. He submitted that during the relevant period the issue has been decided by the Larger Bench of the Tribunal in the case of Noble Drugs Ltd. Vs. Commissioner of Central Excise – 2007 (215) ELT 500 (Tri. LB) and the same has also been considered by

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Uttarakhand Goods and Services Tax (Seventh Amendment) Rules, 2018
579/2018/10(120)/XXVII(8)/2018/CT-29 Dated:- 18-7-2018 Uttarakhand SGST
GST – States
Uttarakhand SGST
Uttarakhand SGST
Government of Uttarakhand
Finance Section-8
No. 579/2018/10(120)/XXVII(8)/2018/CT-29
Dehradun :: Dated:: 18th July, 2018
Notification
In exercise of the powers conferred by section 164 of the Uttarakhand Goods and Services Tax Act, 2017 (06 of 2017) read with section 21 of the Uttar Pradesh General Clause Act, 1904 (Act No. 1 of 1904) (as applicable in the State of Uttarakhand), the Governor is pleased to make the following rules to further amend the Uttarakhand Goods and Services Tax Rules, 2017, namely:-
The Uttarakhand Goods and Servi

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

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In Re : A.S. Moloobhoy Private Limited
GST
2018 (10) TMI 1314 – AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – 2018 (18) G. S. T. L. 683 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – AAR
Dated:- 18-7-2018
GST-ARA-14/2018-19/B-71
GST
SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER
PROCEEDINGS
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by A S Moloobhoy Private Limited , the applicant, seeking an advance ruling in respect of the following question.
The Applicant requests this Hon'ble Authority to decide as to whether the supply of goods [as listed in Annexure I-A of this ARA application] is classifiable as “Parts of goods of headings 8901, 8902, 8904, 8905, 8

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

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

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eadings 8901, 8902, 8904, 8905, 8906, 8907″ under entry 252 of Schedule I of CGST Notification No. 01/2017-Central Tax (Rate) dated 28lh June, 2017 (Amended from time to time) and liable to GST @ 5% (CGST-2.5% and SGST- 2.5%) or IGST-5% as specified in entry 252 of schedule I of Notification No. 01/2017-Integrated Tax (Rate),dated 28-06-2017.
9. The list of goods/ spares/parts/equipment (which are installed or fitted on the ships) for which the advance ruling is sought as to classification of such goods is enclosed herewith at Annexure- I-A.
STATEMENT CONTAINING THE APPLICANT'S INTERPRETATION OF LAW AND/OR FACTS, AS THE CASE MAY BE, IN RESPECT OF THE QUESTION(S) ON WHICH THE ADVANCE RULING IS SOUGHT
1. ISSUE FOR DETERMINATION
1.1. The questions/ issues before Your Honor for determination is whether supply of goods (as listed in Annexure I-A) is classifiable as “Parts of goods of headings 8901, 8902, 8904, 8905, 8906, 8907” under entry 252 of Schedule 1 of CGST Notification No.

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t.
SUBMISSION 2
2.3. Notification 01/2017 -CGST dated 27th June, 2017 states that the “classification of goods should be as per the rules of classification enshrined in the Customs Act, 1962.”
2.4. Relevant portion of Rule 3(a) of the customs valuation rules reads as under:
“When by application of rule 2(b) or for any other reason, goods are prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description.”
2.5. As stated above, the goods being imported are necessarily parts of the ship, in view of their compulsory requirement as per IMO; to establish the ship as sea worthy, and not spares per se.
The meaning of the term “spares” referred above, incorporates a wide ambit of products and therefore would lesd to a generic classification of goods.
2.6. On the other hand the classification of the same; as parts of the ship, w

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s on board a vessel, so as to ensure that the ship as a whole is sea worthy as per IMO Regulations.
3. PRAYER
In light of the above, a Ruling is sought from the Honorable Authority on classification of goods listed in Annexure III and applicable GST rate on such goods.
Additional submissions on 27/07/2018
We, M/s. A.S. Moloobhoy Pvt. Ltd. (hereinafter referred to as the Applicants) refer to their application for Advance Ruling.
2. The issue on which ruling is sought for from the Authority for Advance Ruling is as to whether parts of Marine Distress Signals, Emergency Position Indicating Radio Beacon (EPIRB) and Search and Rescue Transponder, (SART), Ship Security Alert System (SSAS), Navigation and Communication (NAVCOM) Equipment related to the Marine Industry, as detailed in Annexure-1-A, are covered under Sr.No.252 of Schedule 1 of Notn. No. 1/2017-Central Tax (Rate) and Notn.No.1/2017-lntegrated Tax (Rate) both dated 28.06.2017 and chargeable to GST @ 5%.
3.0 The facts, succi

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d the Merchant Shipping (Distress and Safety Radio Communication) Rules, 1995 has made these Rules which would apply to all sea going passenger, cargo and fishing boats of 20 mtrs. or more than length and all ships other than Indian ships more than 300 tons while they are in any port or place in sea. The Rules require all existing ships comply part I of the Rules on or before 1st February, 1995. Various dates on which these Rules will come into force in parts are mentioned, and but compliance is required on or before 1-2-99 in all cases. The said rules requires inter alia that every ship or fishing boat should carry two satellite EPIRB, Navtex receiver radio facility of Maritime safety information by the INMARSAT, enhanced group calling (EGC) system of HF Direct printing telegraphy, etc
3.4 For undertaking the repair of the ship, over and above rendering of repair service, the Applicants also are required to supply various parts of various equipment in ship viz. Navigation equipment a

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o declining to renew the certificate of seaworthiness, issued to the ships under the Merchant Shipping Act, 1958 and the vessel could not have been allowed to sail. By the operation of the Rules of 1995, the vessel which is not fitted with this equipment became would be unlawful to ply.
3.8  prior to 1.07.2017, in pre-GST era, central excise duty was not applicable as the Applicants being dealers and in that  VAT was payable.
3.9 under the said factual position, the present application is filed with a prayer for ruling on the said equipment and spares of availability of concessional rate of GST of 5% (2.5% + 2.5%) under Sr. No.252 of list 1 of Notn.No.1/2017-Central Tax (Rate)/lntegrated Tax (Rate).
4.0 Grounds before Appellate Authority:
4.1 Equipment form an essential part of the ship:
4.2 The Applicants imports goods under consideration which are supplied on ships and these equipment form an essential part of the ship and makes the ship “sea worthy”.
4.3 The said equ

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t of judgments in Applicants own case/other's case under Customs:
5.1 Notn.No.23/98-Cus dated 2.6.1998 and succeeding Notifications including 21/2002-Cus dated 1.3.2002 (Sr. No. 251) was prescribing Nil rate of duty (both standard rate and additional duty rate) to capital goods and spares thereof, raw-materials, parts, material handling equipment and consumable used for repair of ocean-going vessel by Ship Repair Unit registered with DGS.
5.2 The notice was issued to the importer-Applicants proposing to deny the exemption under the said Notification on the basis that the goods were not covered by any of the category of item specified in the entry to the exemption. It further alleged that the goods were not used for repair because the ships were fully functional and would not be part of repair.
5.3 By Order-in-Original No. CAO/68/20027CAC/CC/ASS dated 18.02.2002, Ld. Commissioner of Customs, Mumbai denied exemption under Notification 23/98-Cus (Sr. No.227).
5.4 Since aggrieved a

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p Care Pvt. Ltd. [2005 (191) ELT 697 (T)] has held that Ship spares for repair of ocean-going vessel like 'Global Marine Distress Safety System' equipment imported and used to upgrade old radio communication/navigation equipment in ships were necessary for safety of ocean-going vessels in voyages and further Fitment of safety equipment to ships for making vessel seaworthy amounts to 'repair' of ship for purpose of S. No. 227 of Notification No. 23/98-Cus.
5.9  Again in Applicants own case, Tribunal vide its judgment dated 23.08.2011 [2012 (276) ELT 399 (Tri-Mum)] had held that Handset imported for replacement of defective handset of communication system of ocean going vessel would be entitled for benefit of Notification No. 21/2002-Cus (Sr. No.351).
6.0  Squarely covered by Sr.No.252 of list 1 of Notn.No. 1/2017-Central Tax (Rate) dated 28.06.2017:
6.1 The Entry No. 252 of list 1 of Notn.No. 1/2017-Central Tax (Rate) dated 28.06.2017 is as reproduced below:

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

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

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

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

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

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bmissions.
05. OBSERVATIONS
We have perused the records on file and gone through the facts of the case and the submissions made by the applicant and the department.
10. We find that the applicant has submitted that they are engaged in the business of sale and distribution of Marine Distress Signals, EPIRB and SART, SSAS, Marine Chemicals, Navigation and Communication (NAVCOM) Equipment, Life raft, Lifeboat and Fire-fighting services, including pyrotechnic Disposal, Electronic Services and Training Services related to the Marine Industry. They are importing the various goods/spares, which are supplied by them on ships. As per their submissions such equipments are an essential part of a ship, and makes the ship sea worthy.
The only issue that is raised before us by the applicant is whether the said parts/spares/equipments which are used on a ship are forming parts of the ship and therefore chargeable to reduced tax @ 5% under Sr.No.252 of Notification No.1/2017 Central Tax (Rate) dat

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definition of 'Spare Part' as per Wikipedia
A spare part, spare, service part, repair part or replacement part is an interchangeable part that is kept in an inventory and used for the repair or replacement of failed units. Spare parts are an important feature of Logistics Engineering and Supply Chain Management.
Thus in view of the above meanings/definitions of part/parts/Spare Part, we will be required to examine as to what are the parts of Goods of CTH 8901, 8902, 8904,8905, 8906 and 8907 and whether the subject goods/spares as mentioned by the applicant listed in Annexure 1-A of this ARA application can be taken to be covered within the meaning of Parts for Sr. No. 252 of Notification no. 1/2017 Integrated Tax (Rate) dated 28.06.2017.
We find that items like Anchor, Bow, Bowsprit, Fore and Aft, Hull, Keel, Mast, Rigging, Rudder, Sails, Shrouds, Engines, gearbox, Propeller, Bridge, etc. are the very essential parts of a ship or vessel and are quite clearly parts of a vesse

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

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

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ions: 1977 AIR 132,1977 SCR (1) 837.
In this case the appellant contended before the Hon SC that carbon paper does not lose its character as paper in spite of being subjected to chemical processes, and that ribbon is not an accessory but an essential part of the typewriter. While dismissing the appeal Court held that “A word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs. It has to be understood according to the well-established canon of construction in the sense in which persons dealing in and using the article understand it.
The Hon SC further observed that “Bearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word 'paper' forms part of the denomination of a specialized article is not decisive of the question whether the article is paper as generally understood, 'the word 'paper' in the common parlance or in the com

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riters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essential part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Mysore Sales Tax Act, 1957.”
In light of the above discussions, considering the meaning of an expression (Part) as given in the dictionary and also the ratio as adopted by the Hon'ble Courts as mentioned above besides common parlance test, we now take up each and every goods/spares, etc claimed by the applicant to be parts of a ship [as listed in Annexure I-A of this ARA application and as reproduced by them mentioning their uses in page no 24 of their compilation A made before this authority as an additional submission] and discuss and find out whether each of the subject goods/spares can be considered as parts of ship. They have broadly listed the equipments/parts of the equipments along with their usage which is as follows:-
S. No.
EQUIPM ENT
FULL FORM
DESCRIPTION
REMAR

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

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s
Is an essential part of ship and without it the ship would not be performing its essential function and therefore would be parts of a ship as per above discussions
N
VDR
Voyage Data Recorder
Used for recording and analysing data of the ship
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions
O
NDB
Non Directional Beacon
Used for choppers to determine landing location on board
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions
P
FCV
Fish Finder
Used for higher level accuracy and clear fish shoal images
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions
Q
SONAR
Sound Navigation and Ranging
Used for searching underwater fishing
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per

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RT
Walkie talkie
Used for internal communication by the ship's staff
Would be in the nature of an additional equipment and therefore cannot be considered as parts of a ship as per above discussions
The classification of goods under Sr. No. 252 depends solely on the nature of use to which the goods are put to. We find from the above table that the items mentioned at Sr. Nos A, B, C, D, E, G, H, I, J, K, M and S are essential parts of a ship/vessel without which the ship would not be complete and would not exist. These are very integral for the functioning of the ship. Hence out of the 504 goods mentioned in [Annexure I-A of this ARA application and reproduced by them mentioning their uses in page nos 24 to 39 of their compilation A made before this authority as an additional submission] we are of the opinion that out of the 504 items mentioned by them, only goods used in the equipments mentioned at Sr. Nos. A, B, C, D, E, G, H, I, J, K, M and S of the above table can be conside

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Refund Disposal Fortnight to handhold trade & industry in clearing pending GST refund claims from 16th July to 31st July,2018 -regarding.
22/2018/CCP/JMR Dated:- 18-7-2018 Trade Notice
Customs
OFFICE OF THE COMMISSIONER, CUSTOMS (PREV.), JAMNAGAR
'SARDA HOUSE', OPP. PANCHAVATI SOCIETY, BEDI BUNDER ROAD, JAMNAGAR – 361008
PHONE NO.: 0288 2757509/10 – FAX NO. : 0288 2757538/39
WEBSITE : www.jamnagarcustoms.gov.in E-Mail: custechjmr@gmail.com
F.No.VIII/48-168/Cus-T/2017
Date : 18-07-2018
PUBLIC NOTICE NO. 22/2018/CCP/JMR
Subject: Refund Disposal Fortnight to handhold trade & industry in clearing pending GST refund claims from 16th July to 31st July,2018 -regarding.
Attention of all the Importers/exporters, Customs Brok

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tted records to Customs EDI Systems
2. Rectification of EGM error code SB006 in respect of ICDs/Gateway ports
3. Rectification of all other error codes viz. SB002/SB003/SB005/SB006 and error. codes clubbed with each other
3. Accordingly, a Refund Cell which is created at Customs House – Pipavav to deal with the pending cases of export related refund claims, in addition to special camp at Office of the Commissioner of Customs, Customs(Prev.) Commissionerate, 'Sarda House', Bedi Bunder Road, Jamnagar for disposing off the IGST refund on export stuck up on account of above error codes.
4. In case of any difficulties faced during this Special Drive, the exporters / stake holders may contact the below mentioned Nodal Officer:
Name a

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IN RE: THE MAHARASHTRA RAJYA SAHAKRI SANG MARYADIT
GST
2018 (11) TMI 883 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (19) G. S. T. L. 369 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 18-7-2018
GST-ARA- 11/2018-19/B-70
GST
SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER
PROCEEDINGS
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by THE MAHARASHTRA RAJYA SAHAKRI SANG MARYADIT, the applicant, seeking an advance ruling in respect of the following question.
The Maharashtra Rajya Sahakari Sangh Ltd. conducts education and training programmers through its 13 co-operative training centres and 33 district co-operative boards by charging fees to particip

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institute registered under Maharasthra Co-operative Societies Act, 1960 on 13th of July 1918. The Maharashtra Rajya Sahakari Sangh Ltd. gives education to members of co-operative societies in the state (Total number is as on 31.3.2017) and training to office-bearers : committee members/ officers and employees of the co-operative societies. As per section 24 A of of M.C.S Act. 1960 and rules thereunder, every society has to give education & training through state apex training institute. Accordingly The Maharashtra Rajya Sahakari Sangh Ltd.is notified by the Government of Maharashtra on the 10 sep. 2014 for this purpose. Earlier, The Maharashtra Rajya Sahakari Sangh Ltd. was exempted by even income tax department. Income Tax tribunal order is enclosed for ready reference. As Maharashtra Rajya Sahakari Sangh Ltd.is doing work purely of education and training, it needs to be exempted from CST. This institute is not profit making organization and giving education and training by charging

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of the appellant – the assessee is a co-operative educational institute registered under Maharashtra State Co-op. Societies Act, 1960. The Sangh conducts cooperative education and training through its 13 co operative training centres. These training programmes are recognised as the essential minimum educational qualifications for principles of co. Operations. (Its State Level Apex cooperative institution).
b. Educational institution existing solely for educational purposes and not for purposes of profit.
C. Assessee has over 100 years of establishment and had the memorable association with the honourable Mohandas Karamchand Gandhi, father of our nation.
d. Incorporation of the assessee has everything to do with the then ongoing cooperative movement during the period of the father of the nation and therefore, the main object of the assessee is to educate the people of India on the cooperative movement. Regarding finances to the trust, the assessee has by virtue of section 68 of t

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the member society by virtue of section 68 of the Maharashtra Co-operative Societies Act, 1960.
g. The main objects of the society read that (i) To provide education and training to members of various co-operative societies, be present or future to make the movement of co-operative more people friendly and (ii) To homogenize the education structure relating to co-operation and to act as nodal agency in this respect”
h. The Government provided the finance to the assessee by way of making of a legislation, which cast statutory responsibility on the member societies by way of compulsory contributions to the education fund of the assessee.
i. In the background of the above, the relevant provisions reads as follows, “any university or other educational institution existing solely for educational purposes and not for purposes of profit, and which is wholly or substantially financed by the Government; or As seen from the above, the legislature has not used the words such as direct or i

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ficit, if any was to be met through grants, this was sufficient to conclude that the institute was substantially financed by the Government. The requirement is that institute wholly or substantially financed by the Government. It does mean that one has to see the financing in each year. Financed here means that the institute was set-up with the finances made available by the Government Such requirement was met in instant case. After setting-up infrastructure, the institute started imparting education and charged fees as prescribed by the Government.
l. The finances received by the assessee in the form of training receipts from the member cooperative societies by way of compulsory subscriptions in accordance with a State legislation tantamount to “financed by the Government”.
m. The instant assessee earlier has also got the requisite finance out of the exclusive Education Fund of the State Federal Society created by way of law in the name of Maharashtra Co-operative Societies; 1960,

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financing such educational institution rightly should stop with the role as a facilitator by providing requisite legislation for enabling the member societies to contribute to the assessee and contribute mandatorily. Therefore, in our opinion, it is a case of indirect financing of the educational institution of the cooperative movement by the Government and it is evolved in order to promote participation of the members and respect the financial independency of the movement in general and institution in particular. In any case, the provisions of the clause do not expressly bar the claim of tax exemptions to the cases of indirect financing by the Government in such cases of indirect financing to the educational institutions of the cooperative movement in India, the aspects of consolidated Fund of India to be the source of finance for claim of exemption become irrelevant for the reasons of minimum control of the Government on cooperative societies. Considering the peculiarities of the coo

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herefore, in the circumstances, where the Government created a special enactment i.e. Maharashtra Co-operative Societies, 1960 in general and section 68 of the said Act in particular, where by an education fund is created in this regard to constitute a fund set apart to be the source of finance to the institution. Further, we are also Of the opinion, the assessee being the case of the society engaged in the running the educational institution for promoting the cooperative movement in India, liberal interpretation of the statute is the need of the time. The cases of this kind, where the Government legislates law to provide for compulsory contributions by the member societies to an Education fund which is set apart to be the source of finance for an educational institution Of this kind engaged in the cooperative movement in India, which constitutes indirect financing by the Government.
Statement containing the applicant's interpretation of law and/or facts, as the case may be, in re

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embers of cooperative societies, office bearers, etc. and charging fees to participants for the same. They have claimed that they are not doing any commercial activity and are a non profit making organisation conducting this activity as a statutory requirement of Maharashtra Cooperative Societies Act, 1960.
3. On perusal of the documents submitted by the taxpayer in support of their claim, viz., Order dated 30.04.2010 by the Income Tax Appellate Tribunal, Pune Bench, it is seen that the taxpayer has been given the benefit of exemption only in respect of the funds received by the institution under section of the Act but were not granted exemption and denied registration under section 12AA (I)(ii) of the Income Tax Act, 1961 as a charitable trust.
4. Section 10 of the Income Tax Act, 1961 provides for income which shall not be included in the total income. Section provides that income of any university or other educational institution existing solely for educational purposes and not fo

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rdingly fall under the purview of GST as detailed below:
5.1 Under CGST Act, 2017, Section 2 (84), the definition of “Person” includes –
(a) an individual;
(b) a Hindu Undivided Family;
(c) a company;
(d) a firm;
(e) a Limited Liability Partnership;
(f) an association of persons or a body of individuals, whether incorporated or not, in India or outside India
(g) any corporation established by or under any Central Act, State Act or Provincial Act or a Government company is defined in clause (45) of section 2 of the Companies Act, 2013 (18 Of 2013)1;
(h) any body corporate incorporated by or under the laws of a country outside India;
(i) a co-operative society registered under any law relating to co-operative societies;
(j) a local authority;
(k) Central Government or a State Government;
(l) society as defined under the Societies Registration Act, 1860 (21 of 1860);
(m) trust; and
(n) every artificial juridical person, not falling within any of the above;
5.

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–
(a) any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit;
(b) any activity or transaction in connection with or incidental or ancillary to sub-clause (a);
(c) any activity or transaction in the nature of sub-clause (a), whether or not there is volume, frequency, continuity or regularity of such transacti01v,
(d) supply or acquisition of goods including capital goods and services in connection with commencement or closure of business;
(e) provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members;
(f) admission, for a consideration, of persons to any premises;
(g) services supplied by a person as the holder of an office which has been accepted by him in the course or furtherance of his trade, profession or vocation;
(h) services provided by a race club by way of totalisator or a lic

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ll not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply.
6. A cooperative society (being a person as defined above) provides services to its members in the form of facilities or benefits to its members (in course of business) for a consideration. It has been admitted by the taxpayer in their application that they charge a fee from the participant members to whom the training is being imparted.
7. Thus it appears that the said training is against a consideration, i.e., a payment made in money  (fee collected from the members) for supply of services and thus the cooperative society also gets covered under the ambit of GST and is leviable to GST under Section 9(1) of the CGST Act, 2017.
8. This service provided by the taxpayer falls under the Service Accounting Code 999293 – Commercial Training and Coaching. In terms of Notification no. 11/2017-Central Tax (Rate) dated 28.06.2017, Commercial Training and Co

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pt., Pune -I Commissionerate appeared and made written submissions.
05. OBSERVATIONS
We have perused the records on file and gone through the facts of the case and the submissions made by the applicant and the department.
The applicant has submitted that they are a state level apex training institute registered under Maharashtra Co-operative Societies Act, 1960 and as per the provisions of Section 24 A of of M.C.S Act. 1960, they are giving education/ training, though their 13 training centres, to the members of co-operative societies in the state of Maharashtra and the same is not a commercial activity. They have submitted that they do not receive any funds or grants from the Government directly and their funding is indirectly by way of mandatory contributions by the member co-operative societies under the provisions of Section 68 of the Maharashtra Co-op. Societies Act and they are not a profit making organization but only an educational institution and therefore on the similar l

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, State Government, Union territory administration under any training programme for which total expenditure is borne by the Central Government, State Government, Union territory administration are exempt.
3. Services provided by educational institution to its students, faculty and staff are exempt: Service supplied by an educational institution to its students, faculty and staff is exempt from GST – Sr. No. 66(a) of Notification No. 12/ 2017-CT (Rate) and No. 9/2017-IT (Rate) both dated 28-6-2017.
We now reproduce Section 24 A of the Maharashtra Cooperative Societies Act is relevant in the present case as under:-
24A. Cooperative Education and training to members, etc. – (1) Every society shall organisc co-operative education and training, for its members, officers and employees through such State federal societies or the State Apex Training Institutes, as the State Government may, by notification in the Official Gazette, specify. Such education and training shall.-
(i) en-sur

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ng fund of such State federal societies State Apex Training Institutes, notified under subsection (1), at such rates as may be prescribed, and different rates may be prescribed for different societies or classes of societies. Hence it is clearly seen that there is no funding from the Government directly or indirectly to the applicant as claimed by them in their submission and also that there may be other such State Federal Societies and State Apex Training Institutes which have been notified for providing such education/coaching/ training.
We find from the submissions made by the applicant that they are neither providing any services to the Central Government, State Government, Union territory administration under any training programme nor is the expenditure borne by the Central Government, State Government, Union territory administration. In their case they are funded by the fees received from the societies for the training of their members. It is also seen from their submissions th

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loyees from the applicant or other notified institutes and every society shall contribute annually towards the education and training fund of the State federal societies or State Apex Training Institutes. Hence it is very clear that there is no funding by the Government in this case.
The second issue is that the services provided by them are not in respect of their own students, faculty and staff. Services supplied /provided by an educational institution to its students, faculty and staff is exempt from GST – Sr. No. 66(a) of Notification No. 12/2017-CT (Rate) and No. 9/2017-IT (Rate) both dated 28-6-2017. They are in fact supplying services to other cooperative societies and their members and not to their own faculty, etc. Hence there is no way that their remuneration recovered from the societies can be treated as non-taxable.
From the submissions we find that the applicant are providing services of coaching and training to the members of cooperative societies for which they receive

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perative societies to obtain training for their members from the applicant or other similar institutes. It seems that it would be optional for societies to avail of such services either from the applicant of some other such institute. Thus the member societies are not under any legal compulsion to become members and get training from the applicant only. The obtaining of such membership by way of payment of annual fees implies that the applicant would supply such educational and training services only to societies who pay annual fees and not to those societies who do not pay the applicant such fees.
The applicant has submitted that The Maharashtra Societies Act, vide Section 24 provides for guidelines, which are mandatory for each and every Co-Operative Society in Maharashtra. The Applicant provides training to members of such cooperative societies which is in consonance with Section 24 of the said act, but this supply of service is provided only to those member cooperatives and not to

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(for a subscription or any other consideration) of the facilities or benefits to its members”).
To summarise, the applicant, a co-operative educational institute registered under Maharashtra State Co-op. Societies Act, 1960, conducts cooperative education and training through its cooperative training centres and provides education to members of co-operative societies in the state Of Maharashtra and training to office-bearers : committee members/officers and employees of the co-operative societies. For providing such education and training they charge annual fees/contribution from their members as provided under the provisions of the Maharashtra Co-op. Societies Act. Thus in view of the above discussions it is seen that the applicant is a person (as defined under Section 2(84) of the GST Act, Who is supplying services (as defined under Section 7(1) of the GST Act) in the nature of educational, coaching and training to its members only (and not non members), for a consideration (as defi

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Refund Disposal Fortnight to handhold trade & industry in clearing pending GST refund claims from 16th July to 31st July, 2018
PUBLIC NOTICE NO. 22/2018/CCP/JMR Dated:- 18-7-2018 Trade Notice
Customs
OFFICE OF THE COMMISSIONER, CUSTOMS (PREV.), JAMNAGAR
SARDA HOUSE', OPP.PANCHAVATI SOCIETY, BEDI BUNDER ROAD, JAMNAGAR – 361008
PHONE NO.: 0288 2757509/10, FAX NO. : 0288 2757538/39
E-Mail: custechjmr@gmail.com
F.No.VIII/48-168/Cus-T/2017
Date: 18.07.2018
PUBLIC NOTICE NO. 22/2018/CCP/JMR
Subject: regarding.
Attention of all the Importers/exporters, Customs Brokers, members of the Trade and all other concerned is invited to the above mentioned subject. Special Drive Fortnights were launched during 15th March to 31st March, 201

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B003/SB005/SB006 and error codes clubbed with each other
3. Accordingly, a Refund Cell which is created at Customs House – Pipavav to deal with the pending cases of export related refund claims, in addition to special camp at Office of the Commissioner of Customs, Customs(Prev.) Commissionerate, 'Sarda House', Bedi Bunder Road, Jamnagar for disposing off the IGST refund on export stuck up on account of above error codes.
4. In case of any difficulties faced during this Special Drive, the exporters / stake holders may contact the below mentioned Nodal Officer:
Name and designation of the Nodal Officer
Email Id
Shri P.K. Rameshwaram, Joint Commissioner
prabhat.rameshwaram@icegate.gov.in
5. The exporters and other stake holders

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Gst on exempted service tax works contract
Query (Issue) Started By: – Bijay Bharat Dated:- 17-7-2018 Last Reply Date:- 24-7-2018 Goods and Services Tax – GST
Got 5 Replies
GST
Dear Sir/Madam,
Our company has went into a works contract agreement with state govt which mentions specifically that all taxes are included except service tax which will be reimbursed as per actual but now after GST coming into force when we had claimed the Cgst part as exemption or to be borne by client I.e state govt their is ambiguity and confusion kindly help out in this regard is their any law or way to claim the part to service tax which was rembursable .
Thank you
Reply By Alkesh Jani:
The Reply:
Sir,
In this regards, my point of view is th

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notified. This does not stipulates, from registration, But….
In view of above, it can be said that Government is liable to GST and should pay GST. Alternately, you can raise the Invoice including GST , supply to un-registered person and pay tax. Any other view is appreciated.
Thanks
Reply By YAGAY and SUN:
The Reply:
In our view Government cannot deny to pay you the statutory dues/levies.
Reply By ANITA BHADRA:
The Reply:
Sir
There are two important points in your query :-
Time of Supply and GST payable by State Government .
What is time of supply ?
GST will not applied, in case invoice raised or supply made ( whichever is earlier ) pre GST period . In that condition , service tax is reimbursable by State Government as pe

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Interest rates under CGST Act.
Query (Issue) Started By: – Alkesh Jani Dated:- 17-7-2018 Last Reply Date:- 21-7-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Sir,
In terms of Section 50 (3) of CGST Act, If ITC is wrongly taken or utilized, on reversal interest @ 24% is to be paid. However, if refund is delayed for more than 60 days, interest rate @6% will be paid in terms of Section 54(12) of CGST Act, 2017.
Moreover, in terms of Section 2(84) of CGST Act, 2017, person includes Central Government or State Government.
The query is :- Section 54(12) of the Act, can be held to be ultra vires to Article 14 of Constitution of India.
Thanks
Reply By YAGAY and SUN:
The Reply:
In our view it is not ultra vires to Article 14

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of interest. Govt. pays @ 6% but recovers @ 24 % or 18% depending upon the nature of contravention. Govt. is a 'Ruler' and an assessee is a 'Ruled' as per Constitution of India. Nicely explained/ replied by both experts. I agree with the views of both experts.
If Central Govt. or State Govt. is a taxable person, that Govt. will also get interest @ 6% on the delayed refund. If we peruse decisions of various Courts, penal interest is also imposed on Central Govt. and State Govt., if contravened any provision of Act.Hence question of 'ultra vires' of Article 14 of the Constitution does not arise. All persons are equal in the eyes of law.
Reply By Alkesh Jani:
The Reply:
Sir,
I appreciate the views expressed by our e

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ding rate of interest say 6% which is less than the Bank Interest while 24% or 18% is like imposing penalty. Even money lenders are abid by the rate of 18%, then why 24% for taxpayers.
We are in Independent India, these kind of rate of interest and taxes were levied during British Rule. If Govt. is for the people, why not to keep 24 % instead of 6% for delayed refund.
I also acknowledge the views expressed by Sh. Rajagopalan Ranganathan Sir, with request that 24% is 4 times higher than delayed refund rate of 6%, without any doubt, it is undue hardship to any taxpayers or any citizen. Here, we are to keep in our mind the business man having turnover of just more than 20 or 10 lakhs, as the case may be. Please re-offer your comments.
Thank

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CBIC to observe Third Refund Fortnight to clear pending refunds
GST
Dated:- 17-7-2018

Refunds of GST have been a concern for the Government and Trade for the past several months. In this regard, the CBIC has observed two special drives cum refund fortnights in the Month of March, 2018 (15th to 31st March, 2018) and June, 2018 (31st May to 16th June, 2018) respectively. These refund fortnights have provided a lot of relief to the trade. In the 1st refund fortnight, ₹ 4265 Crore IGST refunds and ₹ 1136 Crore ITC refunds were sanctioned by field formations of CBIC. Similarly, during the 2nd refund fortnight, ₹ 6087 Crore IGST refunds and ₹ 1548 Crore ITC refunds were sanctioned by CBIC. In case of IGST ref

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FIRST APPELLATE ORDER IN ADVANCE RULING
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 17-7-2018

In March, 2018, Authority for Advance Ruling (AAR), Maharashtra had pronounced a ruling on job work vis-à-vis manufacture in relation to supply of goods (electricity). The advance ruling under reference is in the matter of In Re JSW Energy Ltd. [(2018) 13 GSTL 92; (2018) 5 TMI 763; ] with reference to scope of 'supply' under section 7 of the GST law.
Advance Ruling
Accordingly, it was ruled that where applicant-power company i.e. JSW Energy Ltd. (JEL) generates power from coal supplied by JSL, a steel company, and JEL supplies power to Jindal Steel Ltd. (JSL), activity under taken by JEL amounts to manuf

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ase, the end product i.e., 'electricity' had a distinct name, character and use than the inputs i.e., “coal”. Thus, when the Legislature had provided for the definition of 'job work' as well as 'manufacture', the meaning as understood by the definition of 'manufacture' cannot be read into the words 'treatment or process' as found in the definition of 'job work'. 'Treatment', 'Process' and 'Manufacture' are three different activities recognized by the Legislature. The intent of the Legislature was to restrict the scope of 'job work' to 'treatment' or 'process' and not to extend the same to 'manufacture'.
It was therefore, held that the activity under

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cant i.e. JEL regarding conversion of coal (to be levied by JSL) into electricity, the Authority decided the same as supply of goods and not as job work. The main ground for decision of the Authority lies in the fact that definition of job work covers process and treatment on goods, whereas in the instant case the operations carried out by JEL are beyond the process and treatment, and thus not covered under the definition of job work.
The Appellate Authority discussed in detail the interpretation on meaning of job work and manufacture and whether activity involved was supply of goods and/or job work or not. The Appellate Authority concluded that the activity undertaken by JEL to convert coal, to be supplied by JSL, in electricity is not co

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Radico Khaitan Limited Versus Principal Commissioner of GST & Central Excise Delhi
Central Excise
2018 (7) TMI 1280 – DELHI HIGH COURT – 2018 (17) G. S. T. L. 582 (Del.)
DELHI HIGH COURT – HC
Dated:- 17-7-2018
SERTA 19/2018
Central Excise
MR. S. RAVINDRA BHAT AND MR. JUSTICE A. K. CHAWLA JJ.
Appellant Through: Mr. L. Badri Narayanan, Advocate with Mr. Yogendra Aldak, Mr. Karan Sachdev, Mr. Shrey Ashat, Ms. Apeksha Mehta and Mr. Kunal Kapoor, Advocates.
Respondent Through: Mr. Harpreet Singh, Sr. Standing Counsel for respondent with Mr. Suresh Chaudhary, Advocate.
MR. S. RAVINDRA BHAT (ORAL)
CM APPL. 27730/2018 (for exemption)
Allowed, subject to all just exceptions.
SERTA 19/2018 & CM APPL. 27729/2018 (for stay)
2. Issue notice.
3. Mr. Harpreet Singh, Sr. Standing Counsel for the respondent accepts notice.
4. The appellant's grievance in the present proceedings under Section 35G of the Central Excise Act, 1944 is that the final order of the Customs, Excis

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t part of the order reflecting this aspect is as follows:-
“32. Now, the noticee has submitted the legal agreement dt : 30-06-2006 duly signed by them as well as by M/s Jefferies with their reply to the show cause notice and has also produced the same for my perusal at the time of personal hearing. I find in the fact and circumstances of the present case the very first issue before me is whether the agreement dated : 30-06-2006 is a legal document are not as alleged in the impugned SCN, in as much as classification of services received by the noticee depends upon the sanctity of the said agreement as the same was discarded by the department ab-initio on failure of the noticee to produce the signed copy during the course of investigation.
33. I find it is an admitted fact that according to the balance sheet for the year 2006-07 the noticee had raised foreign currency convertible bonds of US dollars 50 millions and had incurred a foreign currency expenditure of Rs. 11.47 crorres for ra

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d introduce potential purchasers to the company in connection with the purchase of securities.
35 to 43    xxx    xxx    xxx
44. Further I find the ibid letter of engagement dated 20-04-2006 was translated into a further legal agreement MOU between the parties vide subscription agreement dated 30-06-2006, duly signed, dated and delivered and is legally binding upon both the parties.
45. The subscription agreement dated 30-06-2006, inter alia, provides for the following clauses –
(a) Preamble/Details
The issuer proposes, subject to the compliances all conditions set out herein. To issue US $ 4,00,00,000 3.5% convertible bonds due 2011. In addition, the issuer grants the manager an option to subscribe or procure subscription for up to an additional US $ 100,00,000 3.5% convertible bonds due 2011.
(b) Issue of the bonds (Clause 3)
The issuer undertakes to the manager (subject to the terms and in accordance with provisions of this agreeme

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is as per the provision of clause 5 of subscription agreement).
49. I further find that the subscription agreement dt : 30-06-2006 is the authentic, genuine and legally binding agreement and the so called agreement (letter of engagement) dated 20-04-2006 was not a binding agreement which is clearly evident from the following paras/language in the said letter dt : 20-04-2006.
(A) The final terms and conditions governing the transactions shall be mutually agreed between the company and Jefferies.
(B) The terms of the transaction will be governed by one or more definitive agreements. This agreement is not intended to constitute a binding agreement to consummate the transaction or to enter into any agreement in relation to the transaction nothing in this agreement shall give rise to any underwriting or purchase obligation on the part of Jefferies in relation to the transaction. Similarly, nothing in this agreement shall give rise to any obligation on the part of the company to issue or

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consider that the said letter dated 20.04.2008 was a relevant evidence in the present case and established the fact that the foreign service provider was indeed engaged and appointed by the notice as lead manager and sole placement agent for certain purpose and provision of services for raising FCCB of US$50 Millions in the FY 2006-07. The adjudicating authority erred in taking into account only the agreement MOU between the said parties dated 20.04.2006. It is pertinent to take note of the relevant fact that the transaction between the parties were initiated only through letter agreement dated 20.04.2006 and it is relevant as to the purpose, the motive and the intention behind the transaction to be carried out between the parties. Also, it is not disputed that only the letter agreement dated 20-04-2006 was translated into a further agreement MOU between the parties vide subscription agreement dated 30-06-2006.
The adjudicating authority further failed to consider the essence and sub

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service provider in relation to the raising FCCB of US $ 50 Millions. Therefore, the findings of the Adjudicating Authority were perverse to the extent that in terms of the later and binding agreement dated 30.06.2006, the service provided were 'underwriting service' and not 'Banking and Other Financial service'.”
8. In the impugned order the CESTAT noticed this aspect and remitted the matter for de novo fresh consideration by the Commissioner in the following terms.
“7. After hearing both the parties and on perusal of record, it appears that in the instance case the main controversy is pertaining to the agreement between the service provider and service recipient. It is the allegation that in the memorandum of understanding, the scope has been enhanced and the new document has been given at the time of adjudication. The contention of the department is that both the agreements has different contents. When it is so, then we set aside the impugned order and remand the matter to the or

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on both the genuineness of the document (agreement dated 30.06.2006) as well as on its interpretation. Given these facts, if the Tribunal was in doubt as to whether the document was genuine, the least that it could have done was to limit the findings on remand while retaining Revenue's appeal on the file. This Court notices that CESTAT has been repeatedly passing remand orders virtually abdicating its responsibility as an Appellate Court. This trend is unhealthy given that it is the final Court of fact and is required to adjudicate both on the issues of fact and law, especially in matters such as the present one i.e. where the appeal before it was by way of the first appeal.
11. In these circumstances, this Court hereby sets aside the impugned order. The Tribunal is hereby directed to render specific findings on the issue after taking into account the submissions of the parties and calling for a limited remand findings on the issue of genuineness of the document alone.
The appeal st

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RATHEESH PROPRIETOR, M/s. KBM AGENCIES Versus SECRETARY TAXES, GOODS & SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM, UNION OF INDIA REPRESENTED BY THE UNION SECRETARY, NEW DELHI, THE AGRICULTURAL INCOME TAX & STATE TAX OFFICER CIVIL STATION, ALAPPUZHA, THEMATIC NODAL OFFICER, THE DEPUTY COMMISSIONER, VAZHUCHERRY, THEMATIC NODAL OFFICER AND THE ASSISTANT COMMISSIONER (APPEALS), VAZHUCHERRY
GST
2018 (7) TMI 1489 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 17-7-2018
W. P. (C) No. 21833 of 2018 (D)
GST
MR. DAMA SESHADRI NAIDU, J.
For The Petitioner : Adv. Sri. A. Krishnan
For The Respondents : Sri. N. Nagaresh, Assistant Solicitor General And Smt Thushara James
JUDGMENT
The petitioner was a registered deale

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dal Officers is to follow. It reads:
5. Nodal officers and identification of issues
5.1 GSTN, Central and State government would appoint nodal officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the Common Portal. This would be publicized adequately.
5.2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the Common Portal in relation to an identified issue, due to which the due process as envisaged in law could not be completed on the Common Portal.
5.3 Such an application shall enclose evidences as may be needed for an identified issue to establish bona fide attempt on the part of the taxpayer to comply with the due p

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Consolidated Premium Retailers, The R & R Marketing Company Versus The Principal Commissioner, GST and Central Excise, Government of Tamil Nadu, Union of India, The Chairman, GSTIN
GST
2018 (7) TMI 1825 – MADRAS HIGH COURT – 2018 (16) G. S. T. L. 179 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 17-7-2018
W. P. Nos. 11878 & 11879 of 2018
GST
T. S. Sivagnanam, J.
For the Petitioners : Mr.Adithya Reddy
For the Respondents : Mr.A.P.Srinivas, SPC, Mrs.G.Dhana Madhri, GA, Mr.V.Sundareswaran
ORDER
Heard both.
2. The sum and substance of the prayer of the petitioners is that they are unable to upload Form GST TRAN-1 to take credit of the input tax/ service tax/central excise duty availed by them at the time of migration within the time stipulated.
3. The petitioners would state that they were unable to upload Form GST TRAN-1 within the time stipulated on account of some error. Therefore, the petitioners seek for appropriate direction in this regard.
4. Similar prayers wer

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ty would consider and dispose of the same following the procedure laid down in para 8 of the circular dated 3.4.2018 and would take decision accordingly keeping in view that this writ petition remained pending since 26.3.2018.
8.With the aforesaid direction, the writ petition stand finally disposed of.
5. So far as the High Court of Delhi is concerned, the Delhi High Court, in W.P(C) No.1300 of 2018 etc. batch by order dated 09.4.2018, directed the petitioners therein to approach the concerned Nodal Officer with brief representations outlining their grievances and the Nodal Officer or the Redressal Committee was directed to appropriately deal with representations in accordance with the circular dated 03.4.2018.
6. So far as the Kerala High Court is concerned, in W.P.No.17348 of 2018 by order dated 14.6.2018, the following direction has been issued:
Having regard to the facts and circumstances of this case as also the orders passed in similar matters, I deem it appropriate to disp

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by a section of tax payers owing to technical glitches on the GST and representations were given by the petitioners. Therefore, the CBIC is setting up a Grievance Redressal Mechanism vide Circular No.39/13/2018-GST dated 03.4.2018. Paragraph 8 of the said circular would be relevant for the purpose of the cases on hand, which reads as under :
8. Resolution of stuck TRAN-1s and filing of GSTR-3B
8.1 A large number of taxpayers could not complete the process of TRAN-1 filing either at the stage of original or revised filing as they could not digitally authenticate the TRAN-1s due to IT related glitches. As a result, a large number of such TRAN-1s are stuck in the system. GSTN shall identify such taxpayers who could not file TRAN-1 on the basis of electronic audit trail. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1 procedure (original or revised of filing them on or before 27.12.2017 due to IT glitch, shall be provided the facility to com

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hall be completed by 31st May 2018.
9. Further, paragraph 5.1 of the said circular would state that GSTN, Central and State Government would appoint Nodal Officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the common portal. This would be publicized adequately.
10. An argument was advanced by the learned counsel for the assessees that paragraph 5 of the said circular dated 03.4.2018 is confined to non-TRAN-1 issues. However, this Court finds that there is no such specific distinction brought about in paragraph 5 of the said circular. Therefore, it can be safely held that the procedure of appointment of Nodal Officers and identification of issues are to be done in the manner provided in paragraph 5 of the said circular. Unless the Nodal Officers are appointed, the Jurisdictional officer of the Assessee, namely Assessing Officer would not be in a position to forward the representations/applications filed by the assessees pointing out the g

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Cubex Tubings Limited Versus The Assistant Commissioner of State Tax INV) D-002) & Ors.
GST
2018 (8) TMI 64 – BOMBAY HIGH COURT – 2018 (15) G. S. T. L. 643 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 17-7-2018
Writ Petition No. 7390 of 2018
GST
S.C. DHARMADHIKARI & SMT. BHARATI H. DANGRE, JJ.
Mr. Dhopatkar i/b Santosh Vhatkar & Associates for the Petitioner.
P.C. :
1. The petitioner has approached this Court complaining that the consignment, which was loaded on a vehicle, was intercepted during the course of its transport from the petitioner's office and factory to the State of Gujarat. The petitioner claims that they are manufacturers of copper and copper alloy products. They are holding the necessary Central Excise registration till migration to Goods and Services Tax (GST). They are also admitting that the product is covered by Chapter Heading 74 and the petitioners are holding a GST identification, details of which are set out in their letter Exhibit-F page 3

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r assurances to the ultimate user. The material be, therefore, released, otherwise the consignees export will be hampered and they will suffer huge losses. An alternate request is made that the vehicle can be detained, but at least the goods be released.
2. Mr. Dhopatkar appearing for the petitioners does not dispute that the power to detain and seize and release goods and conveyances in transit is conferred by section 129 of the Goods & Service Tax Act, 2017. That sub-section (1) of section 129 confers an overriding power and the authorities can proceed to detain or seize and equally after detention or seizure, release the goods.
However, there is a complete procedure, in the sense, the release can be directed provided the concerned person complies with clauses (a), (b) and (c) of sub-section (1) of section 129. Thus, to the satisfaction of the officer detaining the seizing the goods, the goods can be released. It is common ground before us that the seizure has not been challenged.

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the release of the goods. The conduct of the petitioner shows that it is not ready and willing to comply with these conditions, but desires that this Court should interfere and direct unconditional release of goods.
We are not inclined to agree with Mr. Dhopatkar given that there are disputed about questions of fact.
4 In the circumstances, the petitioner is aware of the consequences which would follow post such detention and seizure and if it still desires to approach the concerned official with a proper request and express its readiness and willingness to comply with all the conditions permissible in law, we have no doubt in our mind that the release would be granted.
5 In the teeth of an alternate, equally efficacious remedy, we do not think that we should interfere in this writ petition.
6 We do not wish to start a trend which was prevalent during the earlier regime. On most occasions, people would rush to this Court and invoke its extra ordinary, discretionary and equitable j

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