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2018 (4) TMI 1216 – KERALA HIGH COURT – [2018] 2 GSTL 76 (Ker) – Release of detained goods – Section 129 of the Central Goods and Services Tax Act – Held that: – identical matter has been disposed of by a Division Bench of this Court in The Commercial Tax Officer And The Intelligence Inspector Versus Madhu. M.B. [2017 (9) TMI 1044 – KERALA HIGH COURT], directing expeditious completion of the adjudication of the matter and permitting release of the goods detained pending adjudication, in terms of Rule 140(1) of the Kerala Goods and Services Tax Rules, 2017 – the competent authority is directed to complete the adjudication provided for u/s 129 of the statutes – petition disposed off. – WP (C). No. 12152 of 2018 Dated:- 6-4-2018 – P. B. Sure

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2018 (4) TMI 1243 – CESTAT NEW DELHI – TMI – Classification of services – services of shifting and transportation of the coal for M/s Western Coalfields Ltd from pitheads to railway sidings – whether classified under Cargo Handling service or under GTA Services? – Held that: – an identical issue has come up before the Tribunal in the case of M/s Associated Builders & Contractors V/s CCE, Jabalpur [2018 (4) TMI 848 – CESTAT NEW DELHI], where reliance placed in the case of Commissioner of Central Excise And Service Tax, Raipur Versus Singh Transporters [2017 (7) TMI 494 – SUPREME COURT], where it was held that a mine is not to be understood necessarily in respect of pit-heads of the mining area or the excavation or drilling underground, as m

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e coal for M/s Western Coalfields Ltd from pitheads to railway sidings. 3. Such activities undertaken by the appellant was interpreted by the Department that the same should fall under the taxable category of the cargo handling service but the appellant claimed it under the GTA (Goods Transport Agency) on which M/s Coalfield (recipient) has discharged the tax liability. Being aggrieved the present appeal has been filed. 4. With this background we heard Shri Kr. Vikram Ld. Counsel for the appellant and Shri G.R. Singh, Ld. DR for the Revenue. 5. After hearing both the sides and on perusal of appeal records it appears that an identical issue has co me up before the Tribunal in the case of M/s Associated Builders & Contractors V/s CCE, Jab

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stainable as per the settled principles of law enunciated by the judicial forum, which are to the extent that while adjudicating the matter, the authorities should only discuss whether, the proposals made in the SCN should sustain or not and that the authorities are not competent to change the clarification of service, under which the assessee was sought to be classified. Further, we also find that the issue as to ST/50128/2016 – CU [DB] 4 whether, transportation of coal within the mining area should be classified under GTA service or any other heads of service, is no more res – integra, in view of the judgment of Hon ble Supreme Court in the case of Singh Transporters (Supra). 7. Therefore, we do not find any merits in the impugned order.

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2018 (5) TMI 365 – KERLA HIGH COURT – TMI – Supply of 8M and 9M Pre Stressed Concrete Poles (PSC Poles) to the Electrical Circles – submission of tenders – it was the case of petitioner that the 3rd respondent has blatantly violated the conditions stipulated in the tender document – adjustment of the GST incurred by the petitioner at the time of purchase of the raw-materials towards GST payable at the time of sale of Poles – as per the petitioner, the 3rd respondent has violated the conditions, by submitting a certificate along with pre-qualification documents, stating that the effect of GST credit to be availed has been taken into account in the quoted price.
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Held that: – even if Ext.P7 is issued by the 3rd respondent, that will not have any bearing or implication with respect to the terms and conditions of the contract, and respondents 1 and 2 are entitled to overlook the same and consider the bid submitted by the respective parties.
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Clause 14 of Section-A stipulated tha

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with the conditions incorporated thereunder.
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The impracticability of Clause B.20 regarding tax, put forth by the petitioners cannot be legally sustained since a clear method is worked out in the special conditions of contract.
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The petitioners could not make out any case of arbitrariness, illegality, malafides or unfairness so blatant and patent, so as to interfere with the evaluation made by the 1st and 2nd respondents with respect to the successful bidder, under Article 226 of the Constitution of India – Moreover, it is a commercial contract and the master of the contract is at liberty to enjoy reasonable flexibility in choosing its partner, taking also into account the price bid in the larger public interest, which may not in any manner interferes with the fundamental rights guaranteed under Part III of the Constitution.
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Petition dismissed – decided against petitioner. – W.P.(C) Nos.1112, 2221, 2450 & 4034 of 2018 Dated:- 6-4-2018 – MR. SHAJI P.CHALY J. BY ADVS.S

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itted their E-tender, petitioner could gather from the E-tender submitted by the 3rd respondent that it has blatantly violated the conditions stipulated in the tender document. Pursuant to the notification, a pre-bid meeting was convened on 10.10.2017. Before the pre-bid meeting, petitioner issued a communication to the 2nd respondent dated 07.10.2017, evident from Ext.P2. In Ext.P2, petitioner brought to the notice of the authorities that there is an anomaly with respect to clause B.20 Taxes in the special conditions of contract. The Special Conditions of Contract is produced as Ext.P3. It is also brought to the notice of respondents 1 and 2 that, if the said clause is not varied, it may create hurdle on bill processing, for the reason that, for the manufacture of pre stress concrete poles, the rawmaterials required are cement, steel, coarse aggregates and fine aggregates. When the petitioner sells the PSC Poles to the Board, then GST is imposed, which is known as output GST. When the

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, the same shall be rejected. Therefore, it is trite law that the executing authority who issues the tender notification must rigorously follow the same and scrupulously observe both standards, and if there is violation of any such condition, it would invite the wrath of Article 14 of the Constitution of India. 4. After submission of the E-tender by the 3rd respondent, petitioner could gather that 3rd respondent has violated the conditions stipulated in the tender document. Thereupon, petitioner has submitted a representation to respondents 1 and 2 on 10.11.2017, bringing to the notice of the authorities about the violation made by the 3rd respondent, evident from Ext.P6. In Ext.P6, petitioner has stated that, there is violation of the general conditions of contract and special conditions of contract. It is also the case of the petitioner that, the 3rd respondent has submitted documents which were not called for in the tender notice, and therefore, there is a clear violation. 5. Petiti

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pursuant to Ext.P1 notification. iii) Issue a writ of certiorari or other appropriate writ order or direction quashing the original of Ext.P9 in so far as pre-qualifies the 3rd respondent pursuant to Ext.P1 tender notice. iv) To grant such other relief which this Hon'ble Court may deem fit under these circumstances. 6. Petitioner has also produced additional documents along with I.A.No.952 of 2018 to show that the 3rd respondent is qualified by the respondents in spite of the illegalities committed by the 3rd respondent. 7. A detailed counter affidavit is filed by respondents 1 and 2, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, the writ petition is not maintainable, since as per the special conditions of contract, petitioner has agreed to approach the civil courts at Thiruvananthapuram in the event of disputes arising pertaining to the contract. Therefore, according to the said respondents, the writ petitio

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at he is required to quote the prices after considering all the input tax credit available to him. The said methodology is the correct one in the present GST regime. Therefore, there is no ambiguity in the tender provisions and the petitioner is trying to create confusion, whereas in reality, the provisions are clear and unambiguous. It is also stated that, by agreeing to the bid conditions that the benefit of input tax credit will be passed on to the respondents, the 3rd respondent has not committed any violation of the tender formalities and averments to the contrary in the writ petition are all denied. 8. It is also submitted that, the price bids were opened on 11.01.2018 as per the tender conditions, evident from Ext. R1(a). From Ext. R1(a), it is evident that, in respect of 8m poles except for the Electrical Circle, Kattakkada, 3rd respondent is the lowest one. As far as 9m poles are concerned, except for Electrical Circles, Kollam, Kattakkada and Kottarakkara, the rate quoted by

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and demands raised by the respondents and have also produced Exts.P11 to P16. Apart from reiterating the stand adopted in the writ petition, it is also submitted that, after the invitation of the tender, the price of the raw-materials have changed considerably, and so also the GST rate of PSC Poles is reduced from 28% to 18% and these things will definitely establish that the GST rate could not be followed correctly at the time of submission of the bids, and therefore, Clause B.20 of the special conditions of contract is totally illegal and is detrimental to the tender conditions. 10. I have heard Sri. Ramesh Chander M., learned Senior Counsel appearing for the petitioners in W.P.(C) No.1112 of 2018 and Shri. K. Jaju Babu, learned Senior Counsel for the petitioner in W.P.(C) No.2450 of 2018 and the other Advocates appearing for the petitioners in the other writ petitions, Sri. Raju Joseph, learned Senior Counsel appearing for respondents 1 and 2 and also the learned counsel appearing f

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clause B.20 of tender, section-B of special conditions of contract, it is clearly mentioned that the benefit of input tax credit will be passed on to KSEB Ltd., as per Sec.171 of CGST Act. Even though clarification was sought on the said matter, the Chief Engineer has clarified vide the corrigendum referred to above, and it is specified that, there is no change in the tender documents. However, according to the learned Senior Counsel, the 3rd respondent has violated the said conditions, by submitting a certificate along with pre-qualification documents, stating that the effect of GST credit to be availed has been taken into account in the quoted price. 12. It is also pointed out that, as per clause 14 of Section-A (Bid specifications Part-II, Instruction to Bidders), the indication of price anywhere else other than in price bid (BOQ) will render the tender invalid and will be liable to be rejected. Therefore, according to the learned Senior Counsel, Ext.P7 enclosure produced along with

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the Electrical Circle concerned and therefore, the same is violative of clause B.04 of Section-B of special conditions of contract. 15. On the other hand, learned Senior Counsel appearing for respondents 1 and 2 submitted that, the imperative conditions in the notice inviting bid as well as the general conditions of contract and special conditions of contract are not violated by the 3rd respondent. The instructions were issued for quoting the price in accordance with the terms and conditions of the notice inviting tender. It was specifically mentioned that the price cannot be quoted anywhere else other than in the specified place of the bid document. It is also submitted that, there is no contention for the petitioners that the 3rd respondent has violated the special conditions of contract and the only contention is that, they have added Ext.P7 along with the bid document, which is in no way causing any manner of prejudice to the petitioners or violating the terms and conditions conta

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spect of alteration is in the bid form or schedule or specifications annexed thereto. Clause 13 stipulates that: Special conditions, if any mentioned in the offer of the bidder or in any other communication from him will not be applicable to the contract unless they are expressly accepted in writing by the purchaser . This clause shows that, even if any communication is issued by any of the bidders over and above the bid document, the same will not be applicable to the contract, which thus also means, respondents 1 and 2 are entitled to ignore any communication so issued by any bidder. Therefore, it is clear that, even if Ext.P7 is issued by the 3rd respondent, that will not have any bearing or implication with respect to the terms and conditions of the contract, and respondents 1 and 2 are entitled to overlook the same and consider the bid submitted by the respective parties. 18. Clause 14 of Section-A stipulated that: The indication of price anywhere else other than in the price bid

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he Electrical Circle concerned. Necessary casting beds, structures, moulds, curing tanks, testing yard etc. shall also be made available in the pole casting yard. All facilities shall be provided by the contractor at his cost. The construction, operation and maintenance of the yard are to be managed and executed by the contractor. The capacity of the yard shall be designed in accordance with the requirement of poles. All the facilities required for pre-tensioning, casting, de-tensioning, curing and lifting operations should be provided at the yard . Other conditions are also incorporated thereunder. 20. Clause B.20 deals with Taxes, which read thus: All Taxes which KSEBL specifically agrees to bear will be admitted at the rates applicable at the time of delivery, on the basis of an undertaking on Kerala Government stamp paper worth ₹ 500/- from the supplier in the following format: P.O. No………………………..dated …………….(Name & address of firm) hereby

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at, already the 3rd respondent is making arrangements for the yard within the Electrical Circle concerned, and moreover, it is a subject matter to be considered after the award of the bid. So far as Clause B.20 in respect of tax is concerned, the contention advanced is that, due to variation of GST rate, the said condition can never be put into practice. However, under Clause B.42 of the Special Conditions, Price Variation is dealt with, which read thus: B.42 PRICE VARIATION. Prices will be re-fixed every month, starting from the actual date of commencement of supply of poles, provided there is a variation in the average cost of cement, sand, coarse aggregate and diesel and average values of Whole Sale Price Index Number for Manufacture of Basic Metals (published by IEEMA) and Consumer Price Index Number (published by the Department of Economics and Statistics) during the month under consideration, from its values on the due date of tender. Price variation will be given for the poles s

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ticability of Clause B.20 regarding tax, put forth by the petitioners cannot be legally sustained since a clear method is worked out in the special conditions of contract. 22. Learned Senior Counsel appearing for the petitioners invited my attention to Clause 7(b) of General Conditions of Contract, which stipulates that: Tenders not stipulating period of firmness and tenders with price variation clause and/or subject to prior sale conditions are liable to be rejected . Learned counsel has also invited my attention to Clause 7(c), which stipulates that: Tenders subject to conditions will not be considered. They are liable to be rejected on that sole ground . In my considered opinion, the General Conditions of Contract will have to be taken into account and read along with the special conditions of contract. First of all, there is no price variation clause put forth by the 3rd respondent. As I pointed out earlier, in Ext.P7, the 3rd respondent has specified an aspect with respect to the

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more than ₹ 7 crores, even though the same is disputed by the petitioners. However, there is no case for the petitioners that, the 3rd respondent is not the lowest bidder with respect to certain regions. 24. Taking into account the sum and substance of the contentions made above, the various provisions of the Instructions, Special Conditions and the General Conditions of contract, I am of the considered opinion that, petitioners could not make out any case of arbitrariness, illegality, malafides or unfairness so blatant and patent, so as to interfere with the evaluation made by the 1st and 2nd respondents with respect to the successful bidder, under Article 226 of the Constitution of India. This is also a very settled legal position. Moreover, it is a commercial contract and the master of the contract is at liberty to enjoy reasonable flexibility in choosing its partner, taking also into account the price bid in the larger public interest, which may not in any manner interferes

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2018 (5) TMI 525 – KERALA HIGH COURT – 2018 (16) G. S. T. L. 484 (Ker.) – Delay in grant of registration under GST Statutes – mistake in providing the PAN number of another firm for the purpose of obtaining registration – grievance of the petitioner is that since the GST statutes came into being from 01.07.2017, the petitioner is unable to comply with the statutory requirements in relation to the business for the period from 01.07.2017 to 12.08.2017 – Held that: – To err is human – it is obligatory for the respondents concerned to make appropriate provisions to tackle issues of the instant nature as well, so as to enable persons like the petitioner to comply with the statutory requirements from the date of introduction of the GST statutes

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e petitioner is unable to comply with the statutory requirements in relation to the business for the period from 01.07.2017 to 12.08.2017. The petitioner, therefore, seeks appropriate directions in this regard, in the writ petition. 2. Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned Standing Counsel for the fourth respondent. 3. To err is human. As such, it is obligatory for the respondents concerned to make appropriate provisions to tackle issues of the instant nature as well, so as to enable persons like the petitioner to comply with the statutory requirements from the date of introduction of the GST statutes. In the circumstances, having regard to the orders passed by this Court in similar

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2018 (5) TMI 529 – AUTHORITY FOR ADVANCE RULING – DELHI – 2018 (13) G. S. T. L. 373 (A. A. R. – GST) – Classification of goods and/ or services or both – Rate of GST – Dried Tobacco Leaves – Determination of the liability to pay tax on goods or services or both – appellant engaged in trading of Dried Tobacco Leaves – whether such 'Dried Tobacco Leaves' will be classified under Heading 2401 of HSN or the same may be classified in Heading 2403 of HSN or in any other Heading of HSN? – Held that: – It is observed that the heading 2401 of HSN covers Tobacco Leaves and Unmanufactured Tobacco. However, heading 2403 covers 'Manufactured Tobacco'. Hence, to determine the correct classification under HSN, it has to be first ascertained whether the goods proposed to be supplied are unmanufactured tobacco or the same can be considered as manufactured tobacco. It is observed that HSN notes for heading 2401 specifically mention that the said heading covers whole plants or leaves in the natural stat

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dly undergone curing by Sun-dry/ Air-dry processes, the same cannot be called 'Tobacco Leaves' and would be covered as ‘unmanufactured tobacco (other than tobacco leaves)'.
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Circular No. 81/5/87 – CX-3 dated 23.06.1987 issued by the Ministry of Finance – Held that: – the same is regarding classification of unmanufactured tobacco merely broken by beating and then sieved and packed for consumption as chewing tobacco (Zarda) and it was clarified that the same should be classifiable as unmanufactured tobacco under heading 2401. Hence, the same is not applicable in the present case.
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Circular No. 143/12/2011-ST dated 26.05.2011 – Held that: – the same is regarding levy of Service Tax on certain processes in relation to agriculture and hence, the same is not applicable in the present case.
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N/N. 12/2017 Central Tax (Rate) dated 28.06.2017 – Held that: – the notification pertains to levy of GST on certain processes related to agriculture. Hence, the same is not applicable in th

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ed Tobacco Leaves' which would be purchased from registered dealer who in return purchases such Tobacco Leaves from Agriculturist / Farmers. Such registered dealer after purchasing it from Agriculturist / Farmers will sell the same to Applicant as it is without any further change in its form. 2. Applicant after cleaning and removal of unwanted particles (Bhusa, Dust etc.) will further sell such 'Dried Tobacco Leaves' in wholesale market. During the above explained activity of cleaning and removal of unwanted particles (Bhusa, Dust etc), no essence or foreign particle will be added to the 'Dried Tobacco Leaves'. Such dried tobacco leaves will be sold in wholesale market without any branding on it. It is also clarified that such 'Dried Tobacco Leaves' are not fit for direct human consumption in any way. A flow chart of the entire agricultural activity on tobacco is also given as follows:  Details of Question on which Advance Ruling is requested: 3. Classi

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st etc.) has been done without any addition of foreign particles, would be levied @ 5% or 28% under Chapter No. 24 Tariff Item 2401 under Notification No. 01/2017 – Central Tax (Rate) dated 28.06.2017. Views of The Applicant: 5. Product to be traded by the applicant is 'Dried Tobacco Leaves' as such and no processing/ modification shall be done by the applicant so the same shall be classifiable under 'Tobacco Leaves' and GST @ 5% shall be levied on such 'Dried Tobacco Leaves' as per the interpretation of Law and common parlance by the applicant under Chapter No. 24 Tariff Item 2401. 6. Further, as per the FAQ's released by CBEC F.No. 332/2/2017- TRU, it is further – clarified in S. No. 42 that "For GST Rate of 5%, tobacco leaves means, leaves of tobacco as such or broken tobacco leaves or tobacco leaves stem." 7. As per the above explanation, dried tobacco leaves shall be covered under 'Tobacco Leaves' as per HSN Code List Chapter No. 24 Ta

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mixture too concentrated for comfortable consumption by human beings and fails to meet test of marketability of product as 'chewing tobacco' – classification under Sub-heading 2401.10 of Central Excise Tariff appropriate. In view of this it was submitted that the Commissioner's Order was incorrect and should be set aside. 10. Board vide its Circular No. 37/90-CX.3, dated 17.07.1990, in case of flavours/scents added in preparation of scented snuff held the view that Snuff Tobacco even after addition Of "Perfumes, Scents and Menthol" remain Tobacco. Therefore, the explanatory notes of HSN bringing in the leaf treated with tobacco Solution Quimam herein and thereafter with flavouring perfumes agents cannot transform Raw leaf tobacco unmanufactured to manufactured tobacco. The addition of these volatile flavours will not amount to unmanufactured tobacco to manufactured tobacco following the settled posion that process of treatment Raw leaf of tobacco by effecting var

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Unmanufactured tobacco; tobacco refuse (other than tobacco leaves) 13. Chapter 24 of HSN: Tobacco and manufactured tobacco substitutes General Tobacco is obtained from various cultivated varieties of the genus Nicotiana of the Solanaceae family. The size and shape of the leaves differ from one variety to another. The harvesting method and curing process depend on the variety (type) of tobacco. The plant may be cut whole, at average maturity (stalk cutting), or the leaves may be picked separately, according to their state of maturity (priming). Thus, tobacco may be cured either as whole plants (on the stalk) or as separate leaves. The various methods, of curing are sun curing (in the open air), air curing (in closed sheds with free circulation of air), flue curing (in hot air flues), or fire curing (with open fires). Before packing for shipment, the dried leaves are treated in order to ensure their preservation. This may be done by controlled natural fermentation (Java, Sumatra, Havana

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ermented leaves, whole or stemmed/ stripped, trimmed or untrimmed, broken or cut (including pieces cut to shape, but not tobacco ready for smoking). Tobacco leaves, blended, stemmed/stripped and "cased" ("sauced" or "liquored") with a liquid of appropriate composition mainly in order to prevent mould and drying and also to preserve the flavour are also covered in this heading. (2) Tobacco refuse, e.g., waste resulting from the manipulation of tobacco leaves, or from the manufacture ot tobacco products (stalks, stems, midribs, trimmings, dust etc). 15. HSN Notes for heading 24.03: 24.03 – Other manufactured tobacco and manufactured tobacco substitutes; "homogenised" or "reconstituted" tobacco; tobacco extracts and essences. – Smoking tobacco, whether or not containing tobacco substitutes in any proportion: 2403.11 -Water pipe tobacco specified in Subheading Note 1 to this Chapter 2403.19 -Other – Other: 2403.91 – "Homogenised"

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pressure or prepared by boiling waste tobacco in water. They are used mainly for the manufacture of insecticides and parasiticides Discussion: 16. The proposed activity of the applicant is to purchase 'Dried Tobacco Leaves' and after cleaning and removal of unwanted particles, to supply the same in the wholesale market without addition of any essence or foreign particle and without any branding. Such 'Dried Tobacco Leaves' are not fit for direct human consumption. 17. The goods to be supplied by the applicant are explained to be 'Dried Tobacco Leaves' which have been harvested and then undergone the process of curing by the process Of Sun-dry or Air-dry, removal of dust particles, straw/bhusa and other unwanted particles. 18. The issue for decision is whether such 'Dried Tobacco Leaves' will be classified under Heading 2401 of HSN or the same may be classified in Heading 2403 of HSN or in any other Heading of HSN. Further, if the same are classified und

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"stalk cutting" and if the tobacco is harvested by removing the individual leaves off the stalk as they ripened, it is called "cropping", "pulling" or "priming". The recently harvested tobacco that has not yet entered the curing phase is called "Raw Tobacco . 21. Curing of tobacco: It is necessary to cure tobacco after harvesting and before it can be consumed. Tobacco is cured to remove all of the natural sap from the leaves so that it can be further processed and/ or manufactured. The four primary methods of curing are as follows: (i) Air curing: One of four main methods of curing, which involves removing all of the natural sap and moisture from tobacco leaves. Air-curing is a natural drying process in which harvested tobacco leaves are hung to dry in an air-curing barn. The barn is a wooden structure that can be either closed completely or ventilated, depending on weather conditions. The barn is closed to conserve moisture in dry condition

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natural sap and moisture from tobacco leaves. This method of curing uses only artificial heat, such as that provided by oil or petroleum. Flue-curing barns are outfitted with pipes that supply the heat and fans that circulate the heat for even distribution. (iv) Sun-curing: One of four main methods of curing, which involves removing all of the natural sap and moisture from tobacco leaves. This method of curing involves exposing tobacco leaves to full sunlight, thereby drying the leaves completely. 22. Tobacco curing is also known as colour curing, because leaves are cured with the intention of changing their colour and reducing their chlorophyll content. Curing tobacco has always been a process necessary to prepare the leaf for consumption because, in its raw, freshly picked state, the green tobacco leaf is too wet to ignite and be smoked. 23. Fermentation: Some tobaccos are subjected to a second stage of curing knows as fermenting or sweating. There are primarily two types of ferment

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sumed product. Non-aged or low quality tobacco is often artificially flavoured with these otherwise naturally occurring compounds. The aging process continues for a period of months 25. After tobacco is cured, it is moved from the curing barn into a storage area for processing. If whole plants were cut, the leaves are removed from the tobacco stalks in a process called stripping. For both cut and pulled tobacco, the leaves are then sorted into different grades. The tobacco is then packed for transportation. 26. Whole leaf: This term refers to a tobacco leaf in its entirely, including both the blade and Stem of the leaf. In contrast, the terms blade, lamina, and web refer only to the blade Of the leaf and do not include the stem. 27. Broken leaf and scrap: Broken leaf is unprocessed tobacco in which some Of the leaf has been lost because of excessive handling. Broken leaf is different from scrap, which is leaf that is broken into small pieces during the processing or manufacturing stage

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dered as manufactured tobacco. It is observed that HSN notes for heading 2401 specifically mention that the said heading covers whole plants or leaves in the natural state and also cured or fermented leaves. Hence, even after the process of curing or fermenting of Tobacco Leaves, they remain covered under heading 24.01. 32. As far as rate of GST under Notification No. 1/2017 – Central Tax (Rate) dated 28.06.2017 is concerned, it is observed that 'Tobacco Leaves' attract 2.5% (CGST) and 2.5% (SGST) or 5% (IGST) under S. No. 109 of Schedule-I of Notification No. 1/2017 -Central Tax (Rate) dated 28.06.2017. Whereas, 'unmanufactured tobacco (other than tobacco leaves)' attract 14% (CGST) and 14% (SGST) or 18% (IGST) under S. No. 13 of Schedule-IV of the said Notification. It has been clarified by the CBEC vide Circular F.No. 332/2/2017-TRU dated December 2017 that the said rate of 5% is applicable only on the following three categories of goods. (i) Leaves of Tobacco as suc

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s obtain by stalk cuttings i.e. When entire plant is harvested along with the stalk, stem and the leaves. It is not the claim of the applicant that goods proposed to be supplied by them are covered in this category. 37. All the above mentioned three categories which are covered as 'Tobacco Leaves' in S.NO. 109 of Schedule-1 of Notification No. 1/2017 – Central Tax (Rate) dated 28.06.2017 as per CBEC Circular F.No. 332/2/2017-TRU dated December 2017, covers only those Tobacco Leaves which have not undergone any processing like curing, fermentation etc. Since the goods proposed to be supplied by the applicant are admittedly undergone curing by Sun-dry/ Air-dry processes, the same cannot be called 'Tobacco Leaves' and would be covered as unmanufactured tobacco (other than tobacco leaves)'. 38. Regarding Circular No. 81/5/87 – CX-3 dated 23.06.1987 issued by the Ministry of Finance, .the same is regarding classification of unmanufactured tobacco merely broken by beating

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processes in relation to agriculture and hence, the same is not applicable in the present case. 41. Further, the applicant has mentioned Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 which pertains to levy of GST on certain processes related to agriculture. Hence, the same is not applicable in the present case. Ruling 42. It is held that the 'Dried Tobacco Leaves' which have undergone the process of curing after harvesting of tobacco leaves are 'unmanufactured tobacco' covered in HSN Code 2401. However, they are not covered under S. No. 109 of Schedule-1 of Notification No. 1/2017- Central Tax (Rate) dated 28.06.2017 @ 2.5% (CGST) + 2.5% (SGST) or 5% (IGST), but the same are covered under S. No. 13 of Schedule- IV of the said Notification as 'unmanufactured Tobacco (Other than Tobacco Leaves)' @ 14% (CGST) + 14% (SGST) or 28% (IGST). – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxm

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2018 (5) TMI 594 – AUTHORITY FOR ADVANCE RULING – DELHI – 2018 (14) G. S. T. L. 414 (A. A. R. – GST) – Classification of books – Work Books or Exercise Book -‘Sulekh Sarita’ – Whether the books ‘Sulekh Sarita’ are ‘Printed Books’ classifiable under ‘HSN 4901 10 10’ or are classifiable as ‘Exercise Books’ under ‘HSN 4820’ of the GST Tariff? – Held that: – the main feature which differentiates ‘Work Books’ of heading 4901 from the ‘Exercise Books’ of heading 4820 is that whereas the ‘Work books’ of heading 4901 contain questions or exercise with space for writing the answers whereas, the ‘Exercise Books’ of heading 4820 contain printed texts with space for copying manually.
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Hence, presence of printed text does not affect their classification under heading 48.20 as exercise books. Further, since, none of the books contain any pages with children’s picture, drawing or colouring matter, classification of any of them under heading 49.03 is not possible. Hence, the goods are to be corr

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o pay GST as supplier of goods and/ or services. – Advance Ruling No. 05/DAAR/2018 Dated:- 6-4-2018 – Pankaj Jain Member (Centre) and Vinay Kumar Member (State) Present for the Applicant: Shri Vineet Bhatia, Advocate Present for the Revenue (Centre): Shri Neeraj Aneja, Superintendent, Division Janakpuri, GST West, New Delhi Present for the Revenue (State): None Statement of Facts as per the Applicant: The applicant is a Publishing House and engaged in the business of publishing and selling of books for students of various classes. 2. The applicant has got registered under the Central Goods and Service Tax Act and is holding GSTIN No. 07AAACS2232H1ZQ. 3. That besides many of its other publications, the applicant is also publishing books by the name of Sulekh Sarita Part-A (सुलेख सरिता भाग – अ), Sulekh Sarita Part-B (सुलेख सरिता भा&#

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2375;ख सरिता भाग – ब) and Sulekh Sarita Part-1-5 (सुलेख सरिता भाग – 1 से 5) are classifiable as Printed books falling under HSN 4901 . 7. That whereas exercise books / writing books simply contains sheets of lined paper, commonly known as note books for practising and are used by students for taking down notes or for practising written contents and/or solving problems. Thus exercise books generally do not contain any instructions and are merely compilation of plain papers with lines printed on them. The printing of lines on the plain paper is merely for enabling the students to write in a straight manner. Merely printing of lines and binding these ruled sheets does no per-se qualify these note books or exercise books as printed books . 8. That on the other hand, the Sulekh Sarita Part-A (सुलेख सर&

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1;ञान with comparison of words and picture presentation. The concept helps the child to learn Hindi MATRAS in the easy way, thus making the Hindi subject easier for the child. c. The printed matter given in these books are also aimed at- (i) Teaching the students about various prominent idioms i.e. (मुहावरों का ज्ञान करवाना) (ii) Teaching the students about the art of word formation i.e (शब्द निर्माण सिखाना) (iii) Improving the vocabulary of the students i.e. (हिन्दी शब्दकोश का ज्ञान करवाना) (iv) हिन्दी की गिनती &#

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2350;ूल उदेश्य बच्चों को वो संस्कार प्रदान करना है जो जीवन मे उनके काम आएं और वे एक अच्छा इंसान बनने मे उनकी मदद करे। have been provided in the book with the objective to inculcate ethos and values in the minds of the growing children. 11. Although, the good hand writing not only helps a child to get good marks in examination, it also depicts the personality of a person. However, the book sulekh sarita (सुलेख सरित&

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49;ाग – ब) also qualify to be a picture book falling under HSN 4903. These books, alternatively, even otherwise would be exempt from tax falling either under HSN 4901 or 4903. The primary level books of Sulekh Sarita Part 1-5 definitely qualify to be printed books falling under HSN 4901. 15. Regarding, the relevance and importance of these books it is mentioned as these books are the first books which a child holds while beginning his process of learning. In the formative years the endeavour is to make learning a fun exercise for a child and therefore, the basic pre-nursery/ nursery and primary books are designed in such a manner that a child gets attracted towards them. For this purpose, the book contains pictures etc. to make the book more attractive. In the initial years a child begins to join dots, draw straight and curved lines and look at pictures as an entertainment which help the child identify the surroundings objects. This way of learning has been scientific

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ords or expressions in a entry derives its meaning, colour and characteristics from the preceding and succeeding words. A particular section of the statute shall not be divorced from the rest of the Act. The Ejusdem Generis rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. Even otherwise when the principle of ejusdem generis is applied to these HSN codes then the meaning of exercise books and printed books becomes clear. It can be noticed that the word exercise books (In HSN 4820) is preceded by the word registers, account books, note books, order books, receipt books, letter pads, diaries and similar other articles and succeeded by the words binders, folders, file covers, inter leaved carbon sets, and other articles of stationery of paper and board . Thus the word exercise books as appearing in HSN 4820 is preceded and succeeded by stationery items and therefore the same also has to be constructed as a s

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hat are not liable to tax or are wholly exempt from tax then the person is not liable itself to register. Section 23 of the GST Act is reproduced here under for ready reference and the same reads as under: Section 23(1): The following persons shall not be liable to registration, namely:- (a) Any person engaged exclusively in the business of supplying goods or services or both that are not liable to tax or wholly exempt from tax under this Act or under the integrated Goods and Services Tax Act. (b) An agriculturist, to the extent of supply of produce out of cultivation of land. 21. Section 24 of the CGST Act deals with compulsory registration in certain cases, Section 24 of the CGST Act reads as under: Section 24: Notwithstanding anything contained in sub-section (1) of Section 22, the following categories of persons shall be required to be registered under this Act,- (i) Persons making any inter-state taxable supply; (ii) Casual taxable persons making taxable supply; (iii) Persons who

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supply of goods that are not liable to tax or wholly exempt from tax (say for example printed books or fresh vegetables or fruits) but is also availing the services of Goods Transport Agency or an Advocate and thus liable to pay tax under reverse charge then whether such a person is liable for registration or not? 23. From a plain reading of Section 24 it can be noticed that the opening word of Section 24 states Notwithstanding anything contained in the sub-section (1) of section 22 . Thus, it can be noticed that section 24 specifically overrides the provision of section 22 (1), which prescribe the threshold taxable quantum. However, section 24 is silent as far as its overriding effect on section 23 is concerned. Thus section 23 of the CGST Act is an independent code in itself and even section 24 of the CGST Act does not tinker with it. 24. That is the intention of the legislature had been such it wanted section 24 to override the provisions of section 23, it could have very easily st

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That the product supplied by the applicant i.e. Sulekh Sarita Part-A , Sulekh Sarita Part-B and Sulekh Sarita Part 1-5 be classified as printed books falling under HSN 4901 or as picture books falling under HSN 4903 and consequently covered by entry No. 119 or 121 of Notification No. 2/2017 – Central Tax (Rate). 28. That the applicant is not liable for registration, if it is engaged in supply of goods or services that are not liable to tax or wholly exempt from tax under the GST Acts. Comments of Jurisdictional Officer (Centre): 29. With respect to Question No. 1: CBEC vide Circular No. 1057/6/2017-CX dated 07.07.2017 has issued a clarification on classification of Printed Workbooks, Exercise Books etc. under erstwhile CETA, 1985. As per para 2 of the said circular, the books Sulekh Sarita is an Exercise Book and classifiable under HSN 4820 of the GST Tariff. Thus, as per Entry no. 123 of Schedule II of Notification No. 1/2017- Central Tax (Rate) dated 28.06.2017, GST rate of 6% is ap

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High Court directed Board to examine the matter and pass appropriate order at its earliest convenience. (ii) The issue has been examined. Exercise Books have been explained in HSN under explanatory note (2) to Heading 48.20 as, These may simply contain sheets of lined paper but may also include printed examples of handwriting for copying in manuscript . Such exercise Books are specifically classified under heading 4820 of the erstwhile CETA, 1985. These are nothing but stationary items having blank pages with lines for writing and may also include printed texts for copying manually. In common parlance they are more akin to handwriting note books for practising rather than work books containing printed exercise. This definition of Exercise Books is in harmony with other items specified under Chapter Heading 4820 of erstwhile CETA, 1985 such as registers, note books, diaries, letter pads etc. where printing is incidental to their primary use i.e. writing. The fact that printing is incide

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receding para. Further, since printing in case of printed workbooks is not merely incidental to the primary use of the of the goods, such goods are classifiable under Chapter 49, in terms of Chapter note 12 to Chapter 48 of erstwhile CETA, 1985. (iv) Similarly, HSN Chapter note (6) to Chapter 49 read with HSN explanatory note under heading 49.03 covers children s workbooks consisting essentially of pictures with complementary texts, for writing or other exercises, and children s drawing or colouring books, provided the pictures form the principal interest and are not subsidiary to the text. Thus, children s drawing books which are in harmony with said HSN Chapter note (6) and HSN Explanatory note to heading 4903 would fall under Chapter 49. The relevant entries of Notification No. 1/2017 – Central Tax (Rate) dated 28.06.2017 are as under: 32. Schedule 1 (2.5 % duty): S. No. Chapter/ Heading/ Sub-Heading/ Tariff Item Description of Goods 201. 4901 Brochures, leaflets and similar printed

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ries and similar articles, exercise books, blotting-pads, binders (loose-leaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collection and book covers, of paper or paperboard. 4820.20 – Exercise books (2) Exercise Books. These may simply contain sheets of lined paper but may also include printed examples of handwriting for copying in manuscript. Educational workbooks, sometimes called writing books, with or without narrative texts, which contain printed textual questions or exercises not incidental to their primary use as workbooks and usually with spaces for completion in manuscript are, however, excluded (heading 49.01). Children s workbooks consisting essentially of pictures, with complementary texts, for writing or other exercise are also excluded (heading 49.03). Some articles of this heading often contain a considerable amount of printed matter but remain classi

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turgical books such as prayer books and hymn books (other than music hymn books of heading 49.04); children s books (other than children s picture, drawing or colouring books of heading 49.03). Such books may be bound (in paper or with soft or stiff covers) in one or more volumes, or may be in the form of printed sheets comprising the whole or a part of the complete work and designed for binding. Heading 4901 also covers: Bound picture books (other than children s picture books of heading 49.03). The heading 49.01 further excludes: (a) …. (b) Diaries and other stationery books of heading 48.20, that is those which are essentially for completion in manuscript or typescript. (c) …. (d) Children s workbooks consisting essentially of pictures with complementary texts, for writing or other exercises (heading 49.03) (e) …. (f) …. (g) …. Note 6 to Chapter 49 of HSN reads as under: For the purpose of heading 49.03, the expression children s picture books means books for children in w

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outlines of pictures, with or without printed instructions, for completion by drawing or colouring; sometimes coloured illustrations for guidance are incorporated. They also include similar books with invisible outlines or colour which can be made visible by rubbing with a pencil or applying water with a paint brush, and also books in which the small amounts of water colour required for colouring are contained in the books (e.g., in the form of a palette). 39. The issue of classification of text books and printed work text books was subject matter of WP(C) No. 7198 of 2016 before the Hon ble High Court of Delhi. It was claimed by the petitioner that the said goods are appropriately classifiable in Chapter 49 of the Central Excise Tariff Act, whereas the department was considering classification as exercise books in Chapter 48 (4820) of Central Excise Tariff Act. The Hon ble High Court of Delhi vide order dated 31.08.2016 had directed CBEC to examine the matter and pass appropriate orde

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examples of handwriting for copying by the students. 42. In the case of certain goods of heading 49.01 e.g workbooks, there may be space for writing in addition to the printed text but printing is of primary use and space for writing is incidental. On the contrary, in case of certain goods of heading 48.20 e.g. diaries, exercise books, there may be considerable amount of printed matter but the printing is incidental to their primary use of writing by hand. 43. It is observed that the main feature which differentiates Work Books of heading 4901 from the Exercise Books of heading 4820 is that whereas the Work books of heading 4901 contain questions or exercise with space for writing the answers whereas, the Exercise Books of heading 4820 contain printed texts with space for copying manually. 44. With the abovementioned difference between the headings 49.01 and 48.20, the samples submitted by the applicant have been examined. 45. The goods supplied by the applicant Sulekh Sarita Part-A ,

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if a person is required to pay tax under reverse charge, then he is compulsorily required to get registered. The contention of the applicant that the persons who are engaged exclusively in supply of goods and services that are exempt or not liable to tax shall not be required to take registration is not correct because without registration payment of tax under reverse mechanism would not be possible. The Sections 22, 23 and 24 have to be read together and from the combined reading of the same it is held that the applicant is required to take registration if it has GST liability under reverse charge mechanism. It is also observed that there is no threshold exemption for payment of GST under Reverse charge mechanism. Ruling 47. The products supplied by the applicant Sulekh Sarita Part-A , Sulekh Sarita Part-B and Sulekh Sarita Part 1-5 are correctly classified under HSN 4820 and not under HSN 4901 or 4903. Hence, they are not covered under entry no. 119 or 121 of Notification No. 2/2017

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GST – States – 1/2018-STATE TAX – Dated:- 6-4-2018 – GOVERNMENT OF KERALA GOODS AND SERVICE TAXES DEPARTMENT NOTIFICATION No. 1/2018-STATE TAX No. CT/22046/2017-C1. Thiruvananthapuram, 6th April 2018. In exercise of the powers conferred by section 168 of the Kerala Goods and Services Tax Act, 2017 (20 of 2017) (hereinafter in this notification referred to as the Act) read with sub-rule (5) of rule 61 of the Kerala State Goods and Services Tax Rule, 2017 the Commissioner of State Tax, on the recommendations of the Council, hereby specifies that the return in Form GSTR-3B for the month as specified in column (2) of the Table below shall be furnished electronically through the common portal, on or before the last date as specified in the corr

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GST – States – 2/2018-STATE TAX – Dated:- 6-4-2018 – GOVERNMENT OF KERALA GOODS AND SERVICE TAXES DEPARTMENT NOTIFICATION No. 2/2018-STATE TAX No. CT/22046/2017-C1. Thiruvananthapuram, 6th April 2018. Sub:- Extension of date for submitting the statement in FORM GST TRAN-2 under rule 117 (4) (b) (iii) of the Kerala State Goods and Service Tax Rules, 2017. In exercise of the powers conferred by sub-clause (iii) of clause (b) of sub-rule (4) of rule 117 of the Kerala State Goods and Services Tax R

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Goods and Services Tax – Started By: – BIBHUTIBHUSAN PATTANAIK – Dated:- 5-4-2018 Last Replied Date:- 7-4-2018 – Sir sub- A reg. dealer having machine want to let out his machine to a Reg dealer, how can i give effect in both parties – Reply By Ganeshan Kalyani – The Reply = Sec 7(a) of CGST Act, 2017 states as, all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person i

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Goods and Services Tax – Started By: – Venukumar HJ – Dated:- 5-4-2018 Last Replied Date:- 5-5-2018 – Dear All,Please clarify me.We are having letter of undertaking valid up to 30th June 2018. I read some where 2017-18 LUT is valid up to 31st March, 2018. for the year 2018-19, we have to apply for new LUT in April 2018 itself, still our old LUT valid till 30th June 2018.Thanks,Regards,Venu – Reply By KASTURI SETHI – The Reply = If online facility in Common Portal System is operative, prefer apply afresh. Second choice is manual. Since LUT filed manually is valid till 30.6.18, no need to file afresh manually. Manual filing is viable/required only in the absence of facility on Common Portal System due to glitches. – Reply By YAGAY AND SUN –

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sdictional office for acceptance of LUT. The Circular also stated that if an exporter s LUT has been accepted and later if it was discovered that the exporter was ineligible to furnish a LUT in place of a bond, then the LUT will be liable for rejection and such LUT shall be deemed to have been rejected from the very beginning. The Circular was issued upon receiving various queries from the field formations and exporters regarding a technical glitch that the LUTs submitted via online in FORM GST RFD-11 on the common portal were not visible to the jurisdictional officers of the Central Board of Indirect Taxes and Customs (CBIC) and of a few states. – Reply By GORAKHNATH KHARADE – The Reply = Dear Sir,online LUT is submitted and ARN number is

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Goods and Services Tax – Inaction on the part of the first respondent in taking a decision – advance ruling u/s 97(1) of the Kerala State Goods and Services Tax Act – HC issued the directions. – TMI Updates – Highlights

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VAT and Sales Tax – The provisions of Section 8 of the CST Act, Rule 12 of CST (R&T) Rules and declaration Form C have not undergone any amendment after the implementation of the GST laws. There canno

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2018 (4) TMI 531 – KERALA HIGH COURT – TMI – Detention of goods – Rule 140(1) of the Kerala Goods and Services Tax Rules, 2017 – Held that: – the writ petition disposed off directing the competent authority among the respondents to complete the adjudication provided for under section 129 of the statutes – petition disposed off. – W. P. (C) No. 11900 of 2018 Dated:- 5-4-2018 – MR. P. B. SURESH KUMAR, J. For The Petitioner : Sri. K. M. Cherian And Sri. P. M. Girijavallabhan For The Respondent : Sri. C. Unnikrishnan JUDGMENT Goods belonging to the petitioner have been detained by the competent authority under the Central Goods and Services Tax Act as also the Kerala State Goods and Services Tax Act, invoking the powers under section 129 of t

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antee for the amount demanded in terms of notice accompanying Ext.P5 order. 5. The learned counsel for the petitioner then submitted that the writ petition can be disposed of directing completion of the adjudication provided for under section 129 of the statutes. In the circumstances, I dispose of the writ petition directing the competent authority among the respondents to complete the adjudication provided for under section 129 of the statutes. This shall be done as expeditiously as possible, at any rate, within two weeks from the date of production of a copy of the judgment. The petitioner is free to produce a copy of the judgment for compliance. – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia –

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2018 (5) TMI 458 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – 2018 (12) G. S. T. L. 526 (A. A. R. – GST) – Whether accumulated credit by way of Krishi Kalyan Cess (KKC) as appeared in the Service tax return of Input Service Distributor (ISD) ON June 30, 2017 which is carried forward in the electronic credit ledger maintained by the company under CGST Act 2017, will be considered as admissible input tax-credit?
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Held that: – The enumerated list of items in respect of which CENVAT credit is available makes no reference to the KKC. By the Notification No. 28/ 2016 – Central Excise (N.T.), the 26th May, 2016, the Central Government made the rules, which came into force on 1st of June, 2016, to amend the CENVAT Credit Rules, 2004 – in respect of these rules, CENVAT credit was available in respect of KKC.
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KKC would be utilised towards payment of KKC only, Further, it was expressly provided that the list of items in respect of which CENVAT credit is available, as enumerated abov

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ction 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 KANSAI NEROLAC PAINTS LIMITED, the applicant, seeking an advance ruling in respect of the following question : Whether accumulated credit by way of Krishi Cess (KKC) as appeared in the Service tax return of Input Service Distributor (ISD) ON June 30, 2017 which is carried forward in the electronic credit ledger maintained by the company under CGST Act 2017, (Pill be considered ns admissible input tax-credit? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions, Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would

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ble CENVAT credit to its factories and Head Office according to Rule 2(m) of Cenvat Credit Rules 2004 (herein after referred as CCR), read with Rule 7 and Rule 7A of CCR. Rule 9(10) of the CCR requires the input service distributor to file the half yearly return in the statement giving the detail of the credit received and distributed during the said half yearly period by the end of the following months. As an input service distributor, the company received CENVAT credit at head office. Those CENVAT credit also included Krishi Kalyan Cess (KKC) as well but the company could not distribute KKC to its factories as because, KKC credit could be utilized only with KKC liability as prescribed under CCR, and recipient entities being manufacturing units did not have any KKC liability to set off KKC credit. As a result of which there was accumulation of KKC credit in the return service tax ISD return, filed under Rule 9(10) or CCR. In view of provision of sec 140(1) of CGST Act 2017 read with R

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te of Maharashtra. Apart from centralized registration, company also obtained registration as Input Service Distributor (ISD) for its HO to distribute eligible credit to its respective manufacturing units according to Rule 2(m) of Cenvat Credit Rules 2004 (herein after referred as CCR), read with Rule 7 and Rule 7A of CCR. 1.3 CBEC had vide Circular No. 97 dated 23.8.2007 clarified that input service distributor is an office or premises of the manufacturer or taxable service provider which receives bills/invoices etc., of input services. The input service distributor can distribute the eligible credit to any unit of the manufacturer or any premises/office of taxable service provider. 1.4 Rule 9(10) of the CCR requires the input service distributor to file the half yearly return in the statement giving the detail of the credit received and distributed during the said half yearly period by the end of the following months. 1.5 As an input service distributor, company received cenvat credi

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t 2016 1.2 Sec 161(5) of the Finance Act specified that for levy and collection of KKC, Chapter V of Finance Act 1994 (Service Tax) will be applicable. 1.3 Entry 92C of Union List I of Indian Constitution empowers legislature to levy service tax as provided under Chapter V of Finance Act 1994. 1.4 122nd amendment of Constitution deletes Entry 92C of Union List I, in view of implementation Of Goods and Service Tax. 1.5 It implies KKC is also subsumed in Goods and Service Tax along with service tax. In other words CGST liability under CGST Act 2017 contains liability on account of KKC as well. 1.6 Rule 3(1a) of CCR includes KKC as cenvat credit. 1.7 Sec 140(1) allows a registered person to carry forward the CENVAT credit in return to electronic credit ledger provided the said credit is admissible under CGST Act 2017. 1.8 As discussed in para 1.5 above, CGST liability represent KKC liability as well therefore KKC credit will also be considered as admissible CENVAT credit as per proviso (1

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have any KKC liability to set off KKC credit, resulting in accumulation of KKC credit. In Post GST regime neither there is any specific restriction in law regarding admissibility of KKC nor there any specific provision in law regarding admissibility of KKC as input tax credit. In view of the aforesaid facts, our question regarding admissibility of input tax credit is duly covered under clause (d) of section (2) of section 97 of CGST,/MGST Act 2017 and thus the said question is duly covered under the provision of Advance Ruling as provided under CGST/MGST Act 2017. Submission of NIL date 2. Legislative provisions. 2.1 Sec 161 of Finance Act 2016 read with Chapter VI of Finance Act 2016: 161. (1) This Chapter shall come into force on the 1st day of June, 2016 (2) There shall be levied and collected in accordance with the provisions of this Chapter a cess to be called the Krishi Kalyan Cess as Service tax on all or any of the taxable services at the rate of 0.5 per cent. on the value of s

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vices, as they apply in relation to the levy and collection of tax on such taxable services under the said Chapter or the rules made thereunder, as the case may be. (Emphasis supplied) 2.2 Deletion of entry 92C vide constitution 122nd amendment 17. In the Seventh Schedule to the Constitution. (a) an List I Union List, (i) for entry 84, the following entry shall be substituted namely: 84. Duties of excise on the following goods manufactured or produced in India namely:- (a) petroleum crude: (b) high speed diesel: (c) motor spirit (commonly known as petrol) (d) natural gas (e) aviation turbine fuel; and (f) tobacco and tobacco products . (ii) entries 92 and 92C shall be omitted; (Emphasis supplied) 2.3 CGST Rules 2017 117. Tax or duty credit carried forward under existing law or on goods held in stock on appointed day.- (1) Every registered person entitled to take credit of input under section 140 Shall, within ninety days of the appointed day submit a declaration electronically in FORM

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he CENVAT Credit Rules, 2004, in rule 3, (a) after sub-rule (1), the following sub-rule shall be inserted, namely :- (1a) A provider of output service shall be allowed to take CENVAT credit of the Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016); ; (b) in sub-rule (4), after the ninth proviso, the following proviso shall be inserted, namely,- Provided also that the Cenvat credit of any duty specified in sub-rule (1) shall not be utilised for payment of Krishi Kalyan Cess leviable under section 161 of the Finance Act, 2016 (28 of 2016); ; (c) in sub-rule (7), (i) after the words, figures and brackets sub-rule (1) , the words, figures and brackets , sub-rule (1a) shall be inserted; (ii) after clause (c), the following clause shall be inserted, namely,- (d) Cenvat credit in respect of Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016) shall be utilised only towards payment of Krishi

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Tax along with service tax. In other words CGST liability as accrued under CGST Act, 2017 contains liability on account or KKC as well.. 4.5 Rule 3(1a) of CCR includes KKC as cenvat credit. 4.6 CCR provides KKC liability could be set off with KKC credit only CGST liability subsumed KKC liability in of 122nd amendment of constitution. Therefore migrated KKC credit will be admissible to setoff with CGST liability. 4.6 Sec 140(1) allows a registered person to carry forward the CENVAT credit in return to electronic credit ledger provided the said credit is admissible under CGST Act 201 7. 4.7 Sec 16 and 17 of CGST Act determines which credit will be admissible under CGST Act 2017. There is no restriction on admission of KKC as cenvat credit under the aforesaid provisions of the Act. Therefore KKC credit will also be considered as admissible CENVAT credit as per proviso (1) to sec 140(1) read with sec 16 and sec 17 of the CGST Act, 2017. Prayer: In view of the aforesaid facts of the case a

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e GST returns. Therefore, assesses were able to transfer the closing balance of credit in respect of Central Excise duty, Service Tax, Local VAT etc. As the opening credit balance in the GST returns. As specified in the proviso to Section 140(1) of the Act, the taxable person is allowed to carry forward the credit to the extent admissible as INPUT TAX CREDIT under GST. Definition of Input tax as given in section 2(62) does not include any cess. So apparently Krishi Kalyan Cess, will not be allowed to be carried forword. 04. HEARING The case was taken up for hearing on dt.06.02.2018 and on dt.21.02.2018 when Sh. Subhasis Banerjee, Chartered Accountant attended alongwith Sh. Sandesh Shinde, Executive Accounts (GST) and Sh. Mahesh T. Mandlik, Senior Accounts Officer appeared and reiterated the contention as made in the written submission. The jurisdictional Officer, D.C. GST, LTU 4, Mumbai was not present during both the hearings but has furnished a written submission in the matter. 05. O

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isting law in such manner as may be prescribed: Provided that the registered person shall not be allowed to take credit in the following circumstances, namely: (i) where the said amount of credit is not admissible as input tax credit under this Act; or (ii) where he has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date; or (iii) where the said amount of credit relates to goods manufactured and cleared under such exemption notifications as are notified by the Government. The GST Act does not have a definition of the words CENVAT credit . The words have also not been defined under the Excise and Service Tax laws. However, we find CENVAT credit rules, 2004 wherein the word credit is said to mean CENVAT credit as can be seen thus- Rule 3. CENVAT credit. – (1) A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the CENVAT cre

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Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v) (vi) and (via); (viia) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, Provided that a provider of taxable service shall not be eligible to take credit of such additional duty; (viii) the additional duty of excise leviable under section 157 of the Finance Act, 2003 (32 of 2003); (ix) the service tax leviable under section 66 of the Finance Act', (x) the Education Cess on taxable services leviable under section 91 read with section 95 of the Finance (No.2) Act, 2004 (23 of 2004); and (xa) the Secondary and Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007); and (xi) the additional duty of excise leviable under section 85 of Finance Act, 2005 (18 of 2005) The enumerated list of items in respect of which CENVAT credit is available makes no reference to the KKC. BV the N

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lause (c), the following clause was inserted – (d) Cenvat credit in respect or Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016) shall be utilised only towards payment of Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016) ; It can be seen that by express provision, it was made clear that KKC would be utilised towards payment of KKC only, Further, it was expressly provided that the list of items in respect of which CENVAT credit is available, as enumerated above, would not be utilized for payment of KKC. Thus, there was a clear demarcation of the credit in respect of KKC. Under GST, there is no levy of KKC. Now, we know that tax and duty and cess are distinct levies. In Cellular Operators Association of India vs. Union of India 2018 (2) TMI 1264 – DELHI HIGH COURT [Writ Petition (Civil) NO. 7837/ 2016 dt. 15.02.2018], the Hon. Delhi High Court was dealing with the Petition for dire

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een utilised for payment of excise duty service tax on the output, i.e, manufactured goods or taxable services Thus, cross utilization of EC and SHE towards excise duty or service tax was impermissible and not permitted. 4. EC and SHE were abolished and were not payable on excisable goods with effect from 1st March, 2015 vide Notification Nos. 14/2015-CE and 15/2015-CE both dated 1st March, 2015. EC and SHE were also abolished and ceased to be payable on taxable services when Section 95 of Finance Act (No, 2) 2004 and Section 140 of Finance Act, 2007 were omitted by Finance Act, 2015. The omission was to take effect from 1st June, 2015 vide Notification No, 14/2015-STdated 19th May, 2015. As a result, levy of EC and SHE on excisable goods was withdrawn with effect from 1st March, 2015 and in respect of taxable services with effect from 1st June, 2015. The petitioners do not have any grievance against the withdrawal or abolition of levy of and SHE. 5. The grievance of the petitioners is

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the excise duty or service tax. In fact, what the petitioners seek is an amendment of the scheme to allow them to take cross utilization of the unutilized EC and SHE upon the two cesses being Withdrawn against excise duty and service tax, though this was not the position even earlier, The Hon. Court dismissed the Writ Petition. In the present case, KKC is to be utilized for payment of KKC only. Therefore, KKC cannot be treated as excise duty or service tax. in view thereof, the CENVAT credit as referred to in sub-section (1) of section 140 would not include the credit in respect of KKC. We can also see the position in respect of the Swachh Bharat Cess (SBC) which was brought in force by Chapter VI (Section 119) of the Finance Act 2015. The Frequently Asked Questions (FAQ) issued by the Central Board of Excise and Customs (CBEC) in regard to SBC explained the new levy thus – Q. 1 What is Swachh Bharat cess (SBC)? Ans. It is a Cess which shall be levied and collected in accordance with

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h Bharat initiatives or for any other purpose relating thereto. The Swachh Bharat Cess leviable under sub-section (2) shall be in addition to any cess or service lax lev table on such taxable services under Chapter of the Finance Act, 1994, or under any other law for the time being in force. (4) The proceeds of the Swachh Bharat Cess levied under sub-section (2) shall first be credited to the Consolidated Fund of India and the Central Government may, after due appropriation made by Parliament by law in this behalf utilise such sums of money of the Swachh Bharat Cess for such purposes specified in sub-section (2), as it may consider necessary. (5) The provisions of Chapter V of the Finance Act, 1994 and the rules made thereunder, including those relating to refunds and exemptions from tax, interest and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Swachh Bharat Cess on taxable services. as they apply in relation to the levy and collec

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ament by law in this behalf utilise such sums of money of the Krishi Kalyan Cess for such purposes specified in sub-section (2), as it may consider necessary. (5) The provisions of Chapter V of the Finance Act, 1994 and the rules made thereunder, including those relating to refunds and exemptions from tax, interest and imposition of penalty shall, as far as may be, apply in relation to the levy and collection Of the Krishi Kalyan Cess on taxable services, as they apply in relation to the levy and collection of tax on such taxable services under the said Chapter or the rules made thereunder, as the case be. As can be seen, both SBC and KKC are on the same lines. Therefore, the FAQs explaining SBC apply with equal force to KKC. Under the GST Act too, the FAQs issued by CBEC clarify thus – 112 Can ITC of Swach Bharat Cess or Krishi Kalyan Cess be carried forward under GST? No Thus, it can be seen that the non-availability of carry forward of credit with respect to KKC has been clarified t

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2018 (5) TMI 761 – ALLAHABAD HIGH COURT – 2018 (14) G. S. T. L. 168 (All.) – Detention of goods with vehicle – interstate movement of goods – the Transit Declaration Form has been presented in pursuance of the insistence by respondent no.3 – goods as well as vehicle seized on the ground that the goods were being transported from outside the state of U.P. without the Transit Declaration Form, which is in violation of provision of UPGST Act – relevant date.
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Held that: – E-way bill system has been prescribed only recently by a notification of the Government of India dated 7th March, 2018 whereby Rule 138 of the CGST Rules, 2017 has been amended and other Rules have been incorporated in this regard. These amendments are to come into force from a date to be specified by the Central Government which is specified w.e.f. 01.04.2018 – the fact of the matter is that on the date of incident i.e. 24.03.2018 neither there was any E-way Bill System nor any notification by the Central Governme

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ri and Hon'ble Ashok Kumar,JJ. For the Petitioner :- Nishant Mishra JUDGEMENT (Per: Hon'ble Ashok Kumar, J.) 1. Heard Sri Nishant Mishra assisted by Sri Vipin Kushwaha, learned counsel for the petitioner and Sri C.B. Tripathi, learned Standing Counsel for the respondents-State. 2. With the consent of learned counsel for the parties, writ petition is finally disposed of without calling the counter affidavit. 3. The instant writ petition has been filed by the petitioner for the following relief; A. Issue a writ, order or direction in the nature of certiorari quashing the impugned seizure order dated 28.03.2018 and consequential notice dated 28.03.2018. (Annexure-1 & 2) passed by respondent no.3 B. Issue a writ, order or direction in the nature of mandamus commanding Respondent No.3 and his agents, to release the Vehicle No. UP-12AT-1460, without insisting for deposit of any amount of tax/penalty; C. Issue a writ, order or direction declaring that Notification No.1014 dated 21

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ryana, it generated e-way bill prescribed under Central Goods and Service Tax, Rules (hereinafter referred as the 'CGST') after uploading of the relevant details of the aforesaid transactions. The said e-way bill has been downloaded from the official portal on 24.03.2018. The said e-way bill indicates the time and the date of generation as 24.03.2018 at 8.38 P.M. giving all requisite details therein. The said goods were booked for transportation from Faridabad to Haridwar through a transporter namely DEV Transporter, Muzaffar Nagar against goods receipt (GR) no. 241 dated 24.03.2018. The aforesaid goods are loaded at Faridabad and transported through truck no. U.P.-12AT-1460. 6. Learned counsel for the petitioner has submitted that when the aforesaid vehicle in question was crossing through Ghaziabad, it was intercepted/detained by the Assistant Commissioner, State/Commercial Tax, Mobile Squad-VIIth Unit, Ghaziabad on 25.03.2018 at about 12.05 P.M. When the petitioner received

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ce to the seizure order, has issued a show cause notice dated 28.03.2018 under Section 129(3) of the UPGST Act directing the petitioner to appear before him on 04.04.2018 and to explain as to why tax @ 18% amounting to ₹ 63,262/- and equivalent amount of penalty may not be imposed. 9. Learned counsel for the petitioner has submitted that there is no requirement for generation or downloading of the Transit Declaration Form-I for the goods crossing/passing through the State of U.P. He has further submitted that since the TDF-I is not required under the law, the seizure of goods and the vehicle on the ground of non availability of TDF-I is wholly illegal and without jurisdiction. 10. It is further submitted that in exercise of power conferred by Rule 138, as originally enacted, State Government issued Notification No.1014 dated 21st July, 2017 specifying the following documents in clause (i) to (iv) to be carried while the goods are in movement or in transit storage- Clause Document

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the Constitution were amended. As per the amended Article 269-A, which pertains to levy and collection of Goods and Services Tax in the course of inter-state trade or commerce such tax shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Service Tax council. Import within the territory of India was included within the meaning of the term "Inter-State Trade or Commerce" and in respect of it tax, as aforesaid, would be levied and collected by the Government of India. 12. In pursuance to the aforesaid 101st Amendment of the Constitution three enactments were passed by the Parliament, i.e. the Integrated Goods and Services Tax Act 2017; the Central Goods and Services Tax Act 2017; the Union Territory Goods and Services Tax Act 2017 (hereinafter referred as ''UTGST Act'). In addition to the aforesaid three

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fication, specify. Similarly for enforcement of CGST Act 2017 by virtue of section 6 thereof State Authorities under UPGST Act 2017 are also empowered to enforce CGST Act 2017. 15. It is also not in dispute that by virtue of section 20(xv) of the ''IGST Act, 2017' the provisions of ''CGST Act, 2017' apply in respect of matters covered by the IGST Act, 2017 on the subject of inspection, search, seizure and arrest. Chapter XIV of the CGST Act, 2017 deals with inspection, search, seizure and arrest. While section 67 of CGST Act, 2017 deals with the power of inspection, search and seizure, section 68 deals with inspection of goods in movement and it is this provision with which we are primarily concerned. It reads as under: "68. Inspection of goods in movement (1) The Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices a

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ification, specify the documents that the person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage." 17. As would be evident from a reading of the aforesaid rule, it refers to an E-way bill System which is to be developed by the GST Council and it provides for an interim arrangement by the Government till an E-way Bill System is so developed and approved. The words "Government" used therein is defined in Section 2(53) of CGST Act, 2017 to mean the "Central Government". It is not in dispute that on the date of interception of the vehicle in question E-way Bill System had not been developed, therefore, the documents which were required to be carried during movement of any consignment of goods were those which may have been notified by the Central Government under Rule 138 of the CGST Rules, 2017, as, by virtue of Section 20(xv) thereof, it is this rule which is applicable to matters perta

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tem. 18. Thus, E-way bill system has been prescribed only recently by a notification of the Government of India dated 7th March, 2018 whereby Rule 138 of the CGST Rules, 2017 has been amended and other Rules have been incorporated in this regard. These amendments are to come into force from a date to be specified by the Central Government which is specified w.e.f. 01.04.2018. 19. Be that as it may, the fact of the matter is that on the date of incident i.e. 24.03.2018 neither there was any E-way Bill System nor any notification by the Central Government under Rule 138 of the CGST Rules, 2017 requiring the carrying of a TDF Form or any other such document in the course of inter-State supply/movement of goods, as such, the very basis for passing the impugned orders and taking action against the petitioner as impugned herein is apparently erroneous and illegal. In view of the above, it cannot be said that there was any intent to evade tax. 20. As regards the contention of Sri C.B. Tripath

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f the matter, we are of the considered view that on the relevant date i.e. 24.03.2018, there was no requirement of carrying TDF Form-1 in the case of an inter-State supply of goods. In fact on the relevant date there was no prescription of the documents to be carried in this regard under Rule 138 of the CGST Act, 2017, accordingly, the seizure and penalty imposed upon the petitioners based on the notification dated 21.7.2017 issued under Rule 138 of the UPGST Act 2017, which was not applicable, is clearly illegal. 22. Cross-empowerment under section 4 of IGST Act, 2017 and section 6 of CGST Act, 2017 merely means that State Authorities empowered under the UPGST Act, 2017 can also enforce the provisions of CGST Act, 2017 or IGST Act, 2017, but it does not mean that they can apply the provisions of UPGST Act, 2017 or Rules made thereunder to cases of inter-State trade in violation of section 20(xv) of IGST Act, 2017. It does not mean that the State Government can issue a notification und

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x No.95 of 2018 does not apply to the instant case, as the challenge therein was to the very power of the State Authorities under UPGST Act, 2017 to seize goods involved in inter-state supply. Here the question is whether petitioner was required to carry TDF Form I or not, which we have answered in the negative. 24. As regards the provisions of Section 129 UPGST Act, 2017 under which the impugned action has been taken, the same is not applicable to an inter-State trade or commerce. By virtue of Section 20 of the IGST Act, 2017, it is section 129 of CGST Act, 2017 that would apply, but this is not the ground on which we are invalidating the impugned action, as, if it is traceable to the aforesaid provision of CGST Act, 2017 which is pari materia to the State Act, then mere wrong mentioning of a provision would be too technical a ground for interference. We are invalidating the action on account of absence of any notification by the Central Government under Rule 138 of CGST Rules, 2017 a

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/2017 – Central Tax for the purposes of pointing out that, although the power to prescribe the documents that are to accompany the transportation of goods in the course of interstate trade is conferred on the Central Government, the Central Government has, till date, not notified the documents that have to be carried by a transporter of the goods in the course of interstate movement. Under the said circumstances, and finding that neither the State Legislature nor the State Government would have the power to make laws/rules to govern interstate movement of goods in the course of trade, and for the purposes of levy of tax, I am of the view that detention in Ext.P.5, for the sole reason that the transportation was not accompanied by the prescribed documents under the IGST Act/CGST Act/CGST Rules, cannot be legally sustained. I therefore, allow the writ petition by making the interim order absolute." 26. Furthermore, we find that alongwith the consignment of goods the driver was carry

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s covered by the Integrated Goods and Services Tax Act, 2017 and as per section 20 (xv) thereof, in matters of inspection, search, seizure and arrest, provisions of the Central Goods and Services Tax Act, 2017 were applicable. As per section 68 of the CGST Act, 2017, inter alia, Government may require, the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified, to carry with him such documents and such devices as may be prescribed. This prescription is contained in Rule 138 of the Central Goods and Services Tax Rules, 2017, but, no notification had been issued by the Central Government under the said rule specifying the documents that a person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage, therefore, the rule was practically inoperative and there was no requirement of carrying any such document. The invoice and other documents which were being c

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not in consonance with the Act and Rule or the notifications. He has further submitted that the Commissioner is not expected to perform the legislature function and issue the instruction or the circular on something contrary to the provision which are available in the Act or Rule. 30. Learned counsel for the petitioner, therefore, has submitted that the Commissioner by way of circular dated 06.02.2018 usurped the rule making power of the legislature. It is further submitted that the circular issued by the Commissioner cannot revive the notification. In the present case the Notification no. 1014 dated 21.07.2017 which was already amended by another notification No. 1359 dated 20.09.2017 has no legal value. The counsel for the petitioner has challenged the validity of the circular dated 06.02.2018 and has submitted that the same is ultra vires to UPGST Act and Rules 2017. 31. On the contrary, Sri C.B. Tripathi, learned counsel representing the State has submitted that the circular is no

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d no substance in the submission of learned counsel for the State. 34. We noticed that the notification dated 21.07.2017 has already been amended by the notification No. 1359 dated 20.09.2017 and on account of aforesaid amendment, the UPGST (4th Amendment) Rules, 2017 was introduced and made effective with effect from 01.02.2018 vide notification No.138 dated 30.01.2018, therefore, in our opinion, the initial notification no.1014 by which e-way bill-01, e-way bill-02, e-way bill-03 and TDF (Transit Declaration Form) was introduced stands rescinded. 35. We are in agreement with the submission of learned counsel for the petitioner that with effect from 01.02.2018 there was no requirement to download the Transit Declaration Form-I as the same was not required under the law after the aforesaid cut of date. 36. There is no doubt with regard to transaction in question as we find that the Integrated Goods and Service Tax (IGST) has been charged by the petitioner in its invoice and when the IG

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2018 (5) TMI 1390 – GUJARAT HIGH COURT – TMI – Transitional credit u/s 140 – Input tax credit – Case of the petitioner is that its case is covered under sub-rule [4] which lays down detailed procedure and conditions for claiming tax credit and making a declaration under sub-rule [1] of Rule 117 is not applicable – Such requirement is procedural or substantive? – Admitted fact is that the petitioner has not made a declaration referred to under sub-rule [1] of Rule 117 within the time permitted.
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Question is, can the petitioner still claim tax credit, as provided under sub-rule [4] of Rule 117 of the Rules read with Section 140 of the CSGT Act, 2017 – Notices issued.
– R/Special Civil Application No. 5212 of 2018 Dated:- 5-4-2018 –

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2018 (5) TMI 1391 – GUJARAT HIGH COURT – 2018 (17) G. S. T. L. 183 (Guj.) – Levy of GST on Supply of electricity meters for hire – Applicability of circular issued during the service tax regime, to the GST regime when the main activity is exempt under both the regime – Summons issued for calling for information and documents – Exemption from service tax – transmission and distribution of electricity by an electricity transmission or distribution utility. – Applicability of new clarification dated 1.3.2018 over clarification dated 7.12.2010 – Demand can be raised w.e.f 1.3.2018 or w.e.f. 1.7.2017.
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HC granted interim relief – Till further orders, the petitioners shall not have to reply to such summons dated 28.3.2018. – R/Special Civil

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on and distribution of electricity, the same is covered by the exemption for transmission and distribution of electricity, extended under the relevant notifications . Thus the petitioners previously did not have to recover and pay service tax on transmission and distribution of electricity including the other incidental services provided by them. In the new GST regime also the exemption has been provided in similar terms, as earlier, under heading 9969 where the exemption is for the following service : Transmission or distribution of electricity by an electricity transmission or distribution utility However, for the incidental or connected services, the Government of India has now issued a clarification dated 1.3.2018 in which it is provide

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172018 besides other information. Counsel for the petitioner submitted that when the exemption granted to the electricity companies under the earlier service tax regime has been continued under GST regime, the Government's clarification in connection with the incidental services cannot be changed. In any case, the clarification cannot operate retrospectively and at any rate cannot apply to a period prior to introduction of GST. The action of the authority to call for information for the period as far back as the financial year 20122013 is therefore, wholly unjustified. Notice returnable on 3.5.2018. Till further orders, the petitioners shall not have to reply to such summons dated 28.3.2018. Direct service is permitted. – Case laws –

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GST – States – NO.KA.NI.-2-540/XI-9(42)/17 – Dated:- 5-4-2018 – Uttar Pradesh Shasan Sansthagat Vitta, Kar Evam Nibandhan Anubhag -2 NOTIFICATION NO.KA.NI.-2-540/XI-9(42)/17-U.P. GST RULES-2017-ORDER (123)-2018 Lucknow : Dated : April 5, 2018 In exercise of the powers conferred by section 164 of the Uttar Pradesh Goods and Services Tax Act, 2017 (U.P. Act no.1 of 2017) read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act no.1 of 1904), the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh Goods and Services Tax Rules, 2017:- THE UTTAR PRADESH GOODS AND SERVICES TAX (FIFTEENTH AMENDMENT) RULES, 2018 Short title and commencement 1. (1) These rules may be called the Uttar Prades

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ker, indicating therein the quantity and description of goods where the goods are sent by one job worker to another or are returned to the principal: Provided further that the challan endorsed by the job worker may be further endorsed by another job worker, indicating therein the quantity and description of goods where the goods are sent by one job worker to another or are returned to the principal."; Amendment of rule 127 3. In the said rules, in rule 127, in clause (iv), after the words "to furnish a performance report to the Council by the tenth", the word "day" shall be inserted; Amendment of rule 129 4. In the said rules, in rule 129, in sub-rule (6), for the words "as allowed by the Standing Committee&quo

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nt of rule 134 6. In the said rules, for rule 134, the following rule shall be substituted, namely:- "134. Decision to be taken by the majority.- (1) A minimum of three members of the Authority shall constitute quorum at its meetings. (2) If the Members of the Authority differ in their opinion on any point, the point shall be decided according to the opinion of the majority of the members present and voting, and in the event of equality of votes, the Chairman shall have the second or casting vote."; Amendment of Explanation of Chapter XV 7. In the said rules, in the Explanation, appearing after rule 137, in clause (c), after sub-clause (b), the following sub-clause shall be inserted, namely:- "c any other person alleging, und

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GST – States – (4-O/2017) – Dated:- 5-4-2018 – GOVERNMENT OF KARNATAKA FINANCE SECRETARIAT NOTIFICATION (4-O/2017) [NO. FD 47 CSL 2017], Bengaluru dated: 05-04-2018 In exercise of the powers conferred by section 164 of the Karnataka Goods and Services Tax Act, 2017 (Karnataka Act 27 of 2017) on the recommendation of the GST Council, the Government of Karnataka hereby makes the following rules further to amend the Karnataka Goods and Services Tax Rules, 2017, namely:- RULES Title and commencement 1. (1) These rules may be called the Karnataka Goods and Services Tax (Fifth Amendment) Rules, 2018. (2) Save as otherwise provided in these rules, they shall come into force on the date of their publication in the Official Gazette. Amendment of ru

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er to another or are returned to the principal: Provided further that, the challan endorsed by the job worker may be further endorsed by another job worker, indicating therein the quantity and description of goods where the goods are sent by one job worker to another or are returned to the principal." Amendment of rule 127 3. In rule 127 of the said rules, in clause (iv), for the word "tenth", the words "tenth day" shall be substituted. Amendment of rule 129 4. In rule 129 of the said rules, in sub-rule (6), for the words "as allowed by the Standing Committee", the words "as may be allowed by the Authority", shall be substituted. Amendment of rule 133 5. In rule 133 of the said rules, after sub-r

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of three members of the Authority shall constitute quorum at its meetings. (2) If the Members of the Authority differ in their opinion on any point, the point shall be decided according to the opinion of the majority of the members present and voting and in the event of equality of votes, the Chairman shall have the second or casting vote." Amendment to rule 137 7. In rule 137 of the said rules, in clause (c), after sub-clause b, . the following shall be inserted, namely:- "c. any other person alleging, under sub-rule (1) of rule 128, that a registered person has not passed on the benefit of reduction in the rate of tax on any supply of goods or services or the benefit of input tax credit to the recipient by way of commensurate re

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2018 (10) TMI 1237 – ALLAHABAD HIGH COURT – 2018 (17) G. S. T. L. 378 (All.) – Validity of Seizure Order u/s 129 (1) of UPGST Act, 2017 – penalty u/s 129 (3) of the Act – goods not accompanied with E-way bill – petitioner has submitted that since the respondent No. 2 has directed for furnishing/presentation of the E-way bill, the same has been downloaded from the official portal on 24.3.2018 at 7:30 PM i.e. just after half an hour from detention/interception of the vehicle and there is no malafide intent.
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Held that:- The writ petition clearly indicates the charge of IGST at the rate of 18% on value of the goods has been paid – even the net value which includes the value of the goods as well as tax charged has been duly mentioned by the transporter while issuing the goods receipt. There is no other reason except of non submission of the E-way bill at the time of interception of the vehicle in question.
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We have also perused the E-way bill which has been generated by the pers

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– WRIT TAX No. – 563 of 2018 Dated:- 5-4-2018 – Mr Krishna Murari And Mr Ashok Kumar, JJ. For The Petitioner : Raghwendra Prasad Mishra,Vijay Babu For The Respondent : C.S.C. ORDER Supplementary affidavit filed today, is taken on record. We have heard Shri Raghwendra Prasad Mishra and Shri Vijay Babu, learned counsel for the petitioner and learned Standing Counsel appearing on behalf of the State-respondents. The instant writ petition has been filed by which the petitioner has challenged the seizure order dated 25.3.2018 passed under Section 129 (1) of UPGST Act, 2017 (hereinafter referred to as the 'Act') and the show cause notice dated 25.3.2018 issued under Section 129 (3) of the Act for proposed penalty. Learned counsel for the petitioner has submitted that the petitioner is a registered proprietorship firm and is carrying on the business of purchase and sale of iron and steel items. Certain goods have been purchased by the petitioner from one M/s. Hi Tec Power & Stee

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e on 25.3.2018 at 11:00 AM. The respondent No. 2 has prepared a report dated 25.3.2018 in which the details with regard to transaction has been noted. Since, the respondent No. 2 was not satisfied with the documents, therefore, a seizure order has been passed on the same date, namely, on 25.3.2018 wherein the value of the goods has been estimated at ₹ 7,92,002/- excluding the IGST, which has been clearly mentioned in the tax invoice as well as in the GR issued by the transporter. Vide seizure order dated 25.3.2018, the respondent No. 2 has indicated that the goods and vehicle has been seized on the ground of non availability or non submission of E-way bill. Learned counsel for the petitioner has submitted that on account of some practical difficulties the necessity of the E-way bill has been waived of till 31st March, 2018 and the same has become mandatory with effect from 1st April, 2018. Learned counsel for the petitioner has submitted that since the respondent No. 2 has direct

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parately mentioning in the tax invoice. Learned counsel for the petitioner has also challenged the show cause notice issued under Section 129 (3) of the Act by which the respondent No. 2 has proposed to impose the penalty to the extent of ₹ 1,42,560/- i.e. equal to the liability of tax which has been assessed at the rate of 18% on the value of the goods. On the other hand, learned Standing Counsel has pointed out before us that E-way bill was admittedly not accompanying with the goods when the vehicle was intercepted and filing of the E-way bill subsequently has nothing but an after thought, therefore, the seizure proceedings and the show cause notice under Section 129 (3) are well within the domain of the authorities. We have heard learned counsel for the respective parties and found that admittedly the goods were being purchased by a registered dealer and the same are sold by the registered dealer. While issuing the tax invoice which is enclosed as Annexure-1 to the writ petiti

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2018 (11) TMI 704 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 43 (All.) – Seizure of goods alongwith vehicle – e-way bill-01 has not been produced along with other documents – Held that:- After issuance of notification no. 177 dated 06.02.2018, the notification no.138 dated 30.01.2018 was rescinded which made effective notification no.1359 (4th Amendment) to GST Rules, 2017 with effect from 01.02.2018.
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The goods were coming from Ahmadabad and are to be delivered at Meerut. Both the parties situated at Ahmadabad and Meerut are registered with their respective Assessing Authority. Goods were accompanied with all the requisite documents including Gujarat e-way bill dated 21.03.2018, therefore, there was no ground to hold that the goods were coming in contravention of the provision of GST Act/Rule and the intention of the petitioner was to evade the payment of Tax – the order of seizure passed by the respondent no.4 is wholly illegal, arbitrary as such, is clearly against the int

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shing the notices dated 25.03.2018 issued u/s 129(3) of UPGST Act by Respondent No.4. C. Issue writ order or direction in the nature of certiorari quashing Commissioner Circular No.2899 dated 06.02.2018 being ultra vires to UPGST Act, 2017. D. Issue any other Writ, Order or Direction in favour of the petitioner which this Hon'ble Court deems fit in the facts and circumstances of the case. E. Award cost of the petition to the petitioner. 3. The brief facts of the case are that the petitioner is a company registered under the Companies Act as well as under the provisions of GST Act, situated at Ahmadabad, Gujarat having supplied of printed laminated rolls worth ₹ 7,84,564/and 4,37,588/through two separate invoices in which the Integrated Goods and Service Tax (IGST) has been charged @ of 18%. The goods aforesaid proceeded through a Truck No. DL-1GB-7369 under Consignment Note No.A 89423 dated 21.03.2018 which has been issued by the Transporter and the seller of Gujarat has gene

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produced along with other documents, therefore, there is a presumption that the goods are transported inside of State of U.P. with intention to evade payment of tax. The seizing authority has asked the petitioner to deposit the tax and has further proceeded to issue a notice under Section 129(3) of the Act by which the respondent no.4 has directed the petitioner to furnish the Bank guarantee to the value of proposed amount of ₹ 11,86,253/. This demand has been made by the respondent no.4 for release of the seized goods and vehicle. 6. Learned counsel for the petitioner has submitted that in exercise of power under Rule 138 of UPGST Rules, 2017 Notification No. KA-NI-1014/XI9(52)/17-UPGST Rules-2017-Order-(31)-2017 Lucknow dated 21.07.2017 specifying Form e-way bill-01, e-way bill-02, e-way bill-03 and TDF will be carried for supply/movement/transit of Interstate/ Intra state goods. He has further submitted that in exercise of power under Section 164 of UPGST Act, 2017 read with

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ated under this rule or under rule 138 of GST of any State shall be valid in every State and Union Territory. 9. He further submitted/placed that another notification no.177 dated 06.02.2018 was issued by which the Governor was pleased to rescind notification no.138 dated 30.01.2018 with effect from the date of issuance of such notification. From perusal of aforesaid notifications, it is apparent that Notification no.1014 dated 21.07.2017 was superseded by notification no.1359 dated 20.09.2017 by which UPGST (4th amendment) Rules 2017 was introduced and made effect w.e.f. 01.02.2018 vide notification no. 138 dated 30.01.2018. Accordingly, the initial notification no.1014 by which e-way bill-01, e-way bill-02, e-way bill-03 and TDF were introduced stand rescinded. 10. We have noticed that after issuance of notification no.177 dated 06.02.2018; notification no.138 dated 30.01.2018 was rescinded which made effective Notification No. 1359 (4th Amendment to GST Rules, 2017) w.e.f. 01.02.201

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Commissioner to issue instructions for proper implementation of the Act or rules. 14. According to the counsel for the petitioner, the Commissioner of State Tax has no power to issue the circular in exercise of power under Section 168 of the Act. The Commissioner, therefore, cannot issue notifications and directions which are not in consonance with the Act and Rule or the notifications. He has further submitted that the Commissioner is not expected to perform the legislature function and issue the instruction or the circular on something contrary to the provision which are available in the Act or Rule. 15. Learned counsel for the petitioner, therefore, has submitted that the Commissioner by way of circular dated 06.02.2018 usurped the rule making power of the legislature. He has further submitted that the circular issued by the Commissioner cannot revive the notification. In the present case the Circular no. 1014 dated 21.07.2017 which was already amended by another notification No. 13

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dated 20.09.2017 and on account of aforesaid amendment, the UPGST (4th Amendment) Rules, 2017 was introduced and made effective with effect from 01.02.2018 vide notification No.138 dated 30.01.2018, therefore, in our opinion, the initial notification no.1014 dated 21.07.2017 by which e-way bill-01, e-way bill-02, e-way bill-03 and TDF (Transit Declaration Form) was introduced stands rescinded. 19. We have noticed that after issuance of notification no. 177 dated 06.02.2018, the notification no.138 dated 30.01.2018 was rescinded which made effective notification no.1359 (4th Amendment) to GST Rules, 2017 with effect from 01.02.2018. 20. In view of the aforesaid facts the effect and operation of the notification no.1359 dated 20.09.2017 stands rescinded. 21. Now coming to the facts of the present case, we noticed that goods were coming from Ahmadabad and are to be delivered at Meerut. Both the parties situated at Ahmadabad and Meerut are registered with their respective Assessing Authori

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Customs – PUBLIC NOTICE NO: 16/2018-19 – Dated:- 5-4-2018 – OFFICE OF COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, KANDLA NEW CUSTOMS BLDG, NR. BALAJI TRMPLE KANDLA – 370 210 KUTCH, GUJRAT Phone No. 02860-271468-469, FAX: 271467 Email:- kandlacustoms@gmail.com F. No. S/20-72/PN/IGST REF/AG/2017-18 Kandla, dated: 05.04.2018 PUBLIC NOTICE NO: 16/2018-19 Subject: Regarding. Attention of all Exporters, General. Trade and other stake holders is invited to the Public Notice No. 01/2018 dated 16/01/2018, Public Notice No. 09/2018 dated 27/02/2018, Public Notice No.13/2018 dated 15/03/2018, and Standing Order No. 02/2018 dated 16/03/2018, issued by this office to resolve errors in the IGST refund claims held up with Customs system. 2. In several cases, the refunds are held up due to non-transmission of data from GSTN to Customs EDI system. The reason of non-transmission of data from GSTN to Customs EDI system is incorrect or insufficient information(s) filed by the exporters on the GST Portal. 3.

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exports. As there is no column to declare Cess amount, some of the exporters have declared the total of IGST and Cess paid amount in the column meant for IGST amount only. The declaration of IGST and Cess amount, in the manner, as above, as resulted in mis-match of IGST amount figures declared in Table 6A of GSTR-I vis-a-vis figures shown in Table 3.1(b) of GSTR-3B, resulting in data not getting transferred from GSTN to Customs EDI System, as amount of IGST paid reported in Table 6A of GSTR-1 is higher than the IGST amount indicated in Table 3.1(b) of GSTR-3B. For non-transmission on account of failure of above validation, the matter has been taken up by the CBEC with GSTN for resorting to system based solution. (ii) Export supplies has been declared as domestic in GSTR-3B: – (a) It is also observed that some of the exporters have provided correct details in Table 6A of GSTR-1 but while filing GSTR-3B, particulars of exports have been furnished incorrectly by not declaring the entire e

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cate from the Chartered Accountant that the IGST has been paid on export of goods for which IGST refund is being claimed. 5. In addition to above, there are shipping bills in which the exporters by mistake have mentioned the status of IGST payment as "NA" instead of mentioning "P" in the shipping bill(s). In other words, the exporter has wrongly declared that the shipment is not under payment of IGST, despite the fact that they have paid the IGST. As a one-time exception, it has been decided to allow refund of IGST through an officer interface so that the officer can verify the actual payment of IGST based on GST return information forwarded by GSTN. Trade should also note that the IGST amount can be refunded to the same bank account which was mentioned in the PFMS registration. 6. The Trade Associations are requested to publicize the contents of this Notice amongst their members. Difficulties anticipated/concerns, if any, should be brought to the notice of the unde

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2018 (4) TMI 1630 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 590 (All.) – Detention of goods alongwith vehicle – the details with regard to the vehicle are not mentioned and the same are being mentioned subsequently after downloading the E-Way Bill in handwriting – Held that:- There are no irregularity in the transaction in question, for the reason, that till the downloading of the E-Way Bill the transport company and the vehicle was not engaged and the same has been engaged subsequently therefore the details with regard to the vehicle number has been mentioned by hand – since the petitioner is a registered dealer and the invoices clearly indicates the charge of IGST and Central Cess, there are no irregularity in the transaction in que

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st the invoices, which are duly issued by the petitioner and the claim of the petitioner is that the invoices as well as the goods receipt (GR) issued by the transport company were containing all the details of goods as well as the tax charged. It is submitted by the counsel of the petitioner that as required under the provisions of UPGST Act the petitioner has downloaded the requisite E-Way Bill-02 from the official website of the portal. In the E-Way Bill all the details are duly mentioned with regard to the consignment and it is further indicated that against which invoices the goods are being transported (sold). However, since the transport company and the vehicle was not engaged, till the time of the downloading of the E-Way Bill, the

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regard to the vehicle number has been mentioned by hand. Learned counsel for the petitioner has further argued that even otherwise the details of the transport company or the vehicle are not necessary to be mentioned while downloading the E-Way Bill as the same are not mandatory. In view of the aforesaid facts, we find substance in the submission of the learned counsel for the petitioner and since the petitioner is a registered dealer and the invoices clearly indicates the charge of IGST and Central Cess, we find no irregularity in the transaction in question, hence, the goods and the vehicle seized on 27th March, 2018 by the respondent no. 4 are directed to be released forthwith. The seizure order dated 27.03.2018 as well as notice issued

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Customs – PUBLIC NOTICE NO. 15/2018 – Dated:- 5-4-2018 – GOVT. OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE O/o THE PRINCIPAL COMMISSIONER OF CUSTOMS (CHENNAI-VII) NEW CUSTOM HOUSE, MEENAMBAKKAM, CHENNAI – 600027. F. No.: S.Misc.29/2016-17- EDI-ACC Dated: 05.04.2018 PUBLIC NOTICE NO. 15/2018 Sub: Implementation of revised Assessable value for IGST & GST Cess calculation-Instruction – Reg. <<<>>><<<>>> Attention of Importers, Custom Brokers & Trade is invited towards amendments in Finance Bill,2018 to introduce new Sections 3(8A) and 3(10A) of Customs Tariff Act, 1975 to determine assessable value for calculation of IGST and GST Compensation Cess on Ex-Bond Clearance. 2. If the goods are so

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Customs – PUBLIC NOTICE NO. 11/2018 – Dated:- 5-4-2018 – GOVERNMENT OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE OFFICE THE PRINCIPAL COMMISSIONER OF CUSTOMS (AIR CARGO) NEW CUSTOM HOUSE, MEENAMBAKKAM, CHENNAI – 600027. F. No.: S.Misc.29/2016-17- EDI-ACC Dated: 26.02.2018 PUBLIC NOTICE NO. 11/2018 Subject: Regarding. Kind attention of Exporters/ Customs Brokers, Industry Associations, Trading Public Other Stake holders is invited to Board's Circular no.05/2018-Customs dated 23.02.2018, wherein possible issues/ errors in Refund of IGST paid on exports is discussed. Numerous representations have been received from exporters / trade associations seeking resolution of various problems which have hindered the sanction of refund of IGST paid on exports. CBEC has issued Circular No 42 / 2017 dated 07-11-2017 which highlighted the common errors that hindered the sanction and disbursal of refund of IGST p

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mistakes in the information furnished to (i) GSTN while filing GSTR 1 / Table 6A or GSTR 3B and (ii) Customs EDI system while filing Shipping Bill. The pre- requisites and precautions that need to be taken for successful processing of refund claims are as follows: (i) Exporters have to file GSTR 3B with taxable value for export and IGST paid against exports indicated in appropriate fields. (ii) Exporters have to file GSTR 1 or Table 6A for the exports made with correct details such as Invoice number, Taxable value. IGST paid, Shipping Bill number, Shipping Date and Port Code, Large number of exporters have filed incomplete GSTR 1 or Table 6A where shipping bill number or date or port code are missing. These records are not processed / forwarded to Customs by GSTN. E-mails have been sent to exporters asking them to correct their records through amendment process of GSTR 1 i.e through Table 9 of GSTR 1 of the following month. (iii) The aggregate IGST paid amount claimed in GSTR 1 or Tabl

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he records of previous month so as to take care of issues mentioned in paras (ii) and (iii) above. In cases where exporters have already filed information through Table 9 of GSTR 1, the said information is being validated by GSTN. The validated information is expected to be forwarded by GSTN to Customs by mid-March 2018 for further processing. (vi) The records (i.e GSTR 1 or Table 6A) which have been forwarded by GSTN to Customs after validations mentioned at (ii) and (iii) above are processed by the Customs EDI system. In cases where the information forwarded by GSTN tallies with the information furnished in Shipping bills, refunds are automatically sanctioned by Customs EDI system. As mentioned earlier, till date about ₹ 4000 Crore has been sanctioned as refund of IGST paid. 3 (vii) However, there are many instances where refunds are held up on Customs EDT system due to certain errors which have been clearly brought out in the Circular No 42/2017- Customs. The major errors that

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egistration APPROVED.pdf Java set up for the DSC upload: https://www. icep.ate.eov.in/Down load/JavaSetupForDSC.pdf Once the registration is obtained, the exporters can check the status of IGST refunds associated with their exports and the corresponding error message, if any. This enquiry takes GSTIN Number, Port-code and Return Month as inputs and based on the input, Shipping Bill Number, Shipping Bill Date, Return Month, Invoice Number, Invoice Date, Response Code and Processed date is displayed as a result of the enquiry. The records displayed are those that have been received from GSTN and processed by the Customs Automated System. (ix) The analysis of Customs data indicates that while most of the errors mentioned in para (vi) above are decreasing, the error mentioned at (c) in para (vii) is most prevalent. The error mentioned at (c) in para (vii) is about invoice mis-match. This error is because of the fact that exporters are using two sets of invoices, one invoice for GST and ano

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at variance. It is pertinent to note that refund claims would be processed in only those cases where the error code is mentioned as SB005. Further, it may also be noted that all refunds shall continue to be credited electronically through the PFMS system, and no manual payment / cheque should be issued. The procedure for processing of IGST refund claims in these cases would be as follows: a. The exporter shall provide a concordance table indicating mapping between GST invoices and corresponding Shipping Bill invoices, as annexed in support of the refund claim to the designated officer in the Custom house. A scanned copy of concordance table may also be sent to dedicated email address of Customs location from where exports took place. b. Customs EDI system shall display list of all the invoices pertaining to such SBs vis-a-vis the invoice data received from GSTN. The officer shall verify the following: i. Duly certified concordance table submitted by the exporter as per Annexure A indi

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