Author: admin_gst

Waiver Of Late Fee Payable For Failure To Furnish Return In Form Gstr-3b By Due Date
22/2018-STATE TAX Dated:- 23-5-2018 Jharkhand SGST
GST – States
Jharkhand SGST
Jharkhand SGST
GOVERNMENT OF JHARKHAND
COMMERCIAL TAXES DEPARTMENT

NOTIFICATION NO.22/2018-STATE TAX
[S.O. NO.40 (F.NO.VAKAR/GST/03/2018],
DATED 23-5-2018
In exercise of the powers conferred by section 128 of the Jharkhand Goods and Services Tax Act, 2017 (12 of 2017), the State Government, on the recommendations

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M/s. HDFC BANK LIMITED Versus Versus THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-I, STATE GOODS AND SERVICE TAX DEPARTMENT, ERNAKULAM AND THE COMMISSIONER, STATE GOODS & SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM
VAT and Sales Tax
2018 (6) TMI 1289 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 23-5-2018
W.P.(C). No.13691 of 2018
CST, VAT & Sales Tax
MR. P.B. SURESH KUMAR, J.
For The Petitioner : Sri Joseph Jerard Samson Rodrigues
For The Respondent : Sri. V.K.Shamsudeen (SR.GP) And Sr. Government Pleader:Sri.V.K. Shamsudheen
JUDGMENT
Petitioner is a registered dealer under the Kerala Value Added Tax Act, 2003 (the Act). It is stated by the petitioner that in the return filed by them under the Act for the month of September 2015, the value of goods stock transferred was shown incorrectly by mistake. It is also stated by the petitioner that the said mistake has come to their notice only on receipt of the audit report under subsection (1) of Section 4

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ds thus:
“(2) Where any dealer detects any omission or mistake in the annual return submitted by him with reference to the audited figures, he shall file revised annual return rectifying the mistake or omission along with the audit certificate. Where, as a result of such revision, the tax liability increases, the revised return shall be accompanied by proof of payment of such tax, interest due thereon under sub-section (5) of section 31, and penal interest, calculated at twice the rate specified under sub – section (5) of section 31:
Provided that this sub-section shall not apply to a dealer against whom any penal action is initiated in respect of such omission or mistake under any of the provisions of this Act.”
Petitioner has not placed on record the audit report for the relevant year. The petitioner had earlier filed a writ petition as W.P.(C).No.6389/2018, the judges papers of which was called for and perused. The audit report of the petitioner for the relevant year was Ext.

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ut of time.
5. The learned counsel for the petitioner alternatively contended that in the light of the additional provisos added to the existing proviso to sub-section (2) of Section 42 of the Act in terms of Finance Act, 2018, the petitioner is entitled to prefer Ext.P1 application. The provisos added to the existing proviso to sub-section (2) of Section 42 of the Act reads thus:
“Provided further that those dealers who have filed audited statement of accounts and certificates under sub-section (1) will be allowed to revise the returns for the period up to June, 2017, in respect of defects of a technical or clerical in nature, having no effect on the sales turnover already conceded or the tax paid. Such dealers may apply for revision of their returns before the assessing authority on or before 30th June, 2018:
Provided also that this facility shall not be available to dealers against whom assessment proceedings have already been initiated based on such defects:
Provided also

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Wavier of late fee on GSTR-3B for certain class of registered persons.
38/1/2017-Fin(R&C)(58) Dated:- 23-5-2018 Goa SGST
GST – States
Goa SGST
Goa SGST
GOVERNMENT OF GOA
Department of Finance
Revenue & Control Division
_
Notification
No. 38/1/2017-Fin(R&C)(58)
In exercise of the powers conferred by Section 128 of the Goa Goods and Services Tax Act, 2017 (Goa Act 4 of 2017) (hereinafter referred to as the “said Act”), the Government of Goa, on the recommendations of the Counc

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Commissioner of CGST & Central Excise, Varanasi Versus M/s R.P.L. Projects Ltd.
Service Tax
2018 (7) TMI 1786 – CESTAT ALLAHABAD – 2019 (25) G. S. T. L. 113 (Tri. – All.)
CESTAT ALLAHABAD – AT
Dated:- 23-5-2018
ST/Stay/70051/2018 IN APPEAL No.ST/70066/2018-CU[DB] – ST/A/71120/2018-CU[DB]
Service Tax
Smt. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical)
Shri Mohammad Altaf, Assistant Commissioner (AR) for Appellant
Shri Prashant Shukla, Advocate for Respondent
ORDER
Per: Anil G. Shakkarwar
Heard learned A.R. on Stay Application. Revenue has sought stay of operation of order passed by learned Commissioner through which proceedings for demand of Service Tax were dropped. Since, the order is non executable, the stay application is rejected. Since the matter is covered by earlier decision of this Tribunal, appeal is taken up for final disposal with the consent of both the sides.
2. The present Appeal is filed by Revenue against O

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M/s NCL and M/s IGL and that the terms and conditions of the contract were for providing GTA Services to NCL and IGL and on the said service value NCL and IGL were paying Service Tax under reverse charge mechanism. They further submitted that the activity was shifting of coal from one place to another within the mining area of NCL and the service included transportation of coal in contractor‟s tipping trucks from the coal stockyard to Coal Handling Plant situated within the main premises of NCL and therefore, they contended that service provided by them was rightly covered under GTA Service and did not qualify the requirement of definition of „Cargo Handling Service‟. The Learned Commissioner held that none of the activities provided by the respondent to either NCL or to IGL fall under the definition of 'Cargo Handling Service' and therefore no service tax liability can be fasten on respondent under that category and also that the said service recipients were discharg

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Service provider is providing certain ancillary services such as loading/unloading, packing/unpacking, transshipment and temporary storage in the course of transport of goods by road then value of such ancillary services should be counted towards GTA Services. He has further submitted that learned Original Authority has relied on said CBEC Circular as one of the grounds for his decision. He has also submitted that the issue is covered by the decision of this Tribunal in the case of M/s Rungta Projects Ltd. Vs CCE reported at 2017-TIOL-3782-CESTAT.
6. On carefully considering the submissions from both the sides and after going through the joint “statement of facts and grounds of appeal” filed by revenue, we find that revenue could not satisfactorily establish that the transactions in the present appeal are not covered by the said clarification dated 05.10.2015 issued by CBEC. Further, revenue did not contradict the finding of the original authority that same service has been subjected

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In Re: M/s. A.W. Faber-Castell (India) Pvt. Ltd.
GST
2018 (8) TMI 975 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – 2018 (16) G. S. T. L. 121 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – AAR
Dated:- 23-5-2018
GST-ARA-31/2017-18-B-39
GST
SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER
PROCEEDINGS
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by M/S. A W. Faber-Castell (India) Pvt. Ltd., the applicant, seeking an advance ruling in respect of the following question :
Whether the product of the applicant i.e. “Modelling dough' will be covered under Chapter 34 or Chapter 95 under the Customs Tariff Act, 1975.
At the outset, we would like to make it clear that the p

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alia engaged in the manufacture of various products taxable under GST law.
2. The present application is filed in respect of one of its products – “Modelling Dough” which is a specially manufactured semi-solid, clay-like structure to be used as a toy tor kids to make various shapes, things, caricatures of animals etc. It is made up of 'maida' i.e. 'refined wheat flour' or 'white flour', Modelling dough is usually supplied in packs containing multiple such dough in various colours to attract kid.
3. The applicant submits that there appears to be an anomaly in the Customs Tariff as well as in the GST Tariff Schedules in so far as 'modelling dough' is concerned. The term 'Modelling pastes, including those put up for children's amusement' finds a mention in Chapter Heading No. 34.07 as Tariff Item No. 34.07 00 10. “Modelling paste' of Chapter Heading No. 34 07 is specified under Sl. No. 63 of- Schedule-III to Notification No. 1/2017-Central Tax (Rate) dated 28 06.2017 as amended by Notif

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al nor any allied industrial product. Therefore, to classify the product in the concerned Section of Customs Tariff and applying the rate of tax applicable to Chemicals cannot be construed to be the intention behind the Tariff.
5. Furthermore, it has been recently brought to the applicant's notice that competitors of the applicant (who are branded players in the stationery items and children's goods sector) are clearing identically placed products under the category of 'Toys' by classifying the same under Chapter 95 (Heading No.95 03) of the Customs Tariff (under the GST regime) and charging CGST @ 6%. Thus, effective rate of GST on the said product is 12%.
6. The present ambiguity regarding product-in-question is because of the aforementioned factors and the mismatch usage and composition of the applicant product in relation to Chapter Heading No. 34.07 of the Customs Tariff The applicant's product may fall under Chapter 34.07 which covers 'modelling pastes'. However, the same produ

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option but to supply our product currently by charging CGST @ 9% in order to avoid any possible litigation with the department, whereas some of our competitors have already started charging CGST @ 6%, to take benefit of lower GST rates, which is affecting fair competition, not allowing a level playing field, resulting in loss of market share and financial loss to us. This can also cause confusion amongst consumers, as there are different GST rates being applied in the market for essentially the same product, under different classification / codes for different brands, in different distribution channels.
9. Under the aforesaid circumstances, the ambiguity regarding the applicable taxation rate on the product in question is affecting our business significantly and hitting our industry badly Under such circumstances, we reiterate our request to expedite the matter at hand and Issue a clarification regarding the same and also grant us with a personal meeting to represent our case in detai

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s under:-
“22. (1) Every supplier shall be liable to be registered under this Act in the State or Union territory, other than special category States, from where he makes a taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees:”
(Emphasis Supplied)
A.4 The above referred section -can be vivisected into following essentials: –
a. A supplier shall be liable to be registered under CGST Act in the State or Union Territory, from where he makes taxable supply of goods or services or both;
b. If the aggregate turnover in the financial year exceeds rupees twenty lakh.
A.5 The Applicant submits that as on date, it is registered in Maharashtra and also making taxable supplies of goods from the same to its customers located in State of Maharashtra, Further, the turnover of the Applicant exceeds rupees twenty lakhs in the financial year. Given this, it is submitted that Applicant clearly satisfies to be 'applicant' in terms of s

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n respect of,
(a) classification of any goods or services or both;
(b) applicability of a notification issued under the provisions of this Act;
(c) determination of time and value of supply of goods or services or both;
(d) admissibility of input tax credit of tax paid or deemed to have been paid;
(e) determination of the liability to pay tax on any goods or services or both;
(f) whether applicant is required to be registered;
(g) whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both, within the meaning of that term.”
Emphasis Supplied
A.8 In view of the above, it is submitted that advance ruling may be sought by the Applicant on the questions concerning classification of goods or services or both, on the question involving determination if anything done by the applicant with respect to a good or services or both amounts to or results in a supply of goods or service

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17, reads as under:
“96. (1) The Government shall, by notification, constitute an Authority to be known as the Maharashtra Authority for Advance Ruling :
Provided that the Government may, on the recommendation of the Council, notify any Authority located in another State to act as the Authority for the State.
(2) The Authority shall consist of-
(i) one member from amongst the officers of central tax; and
(ii) one member from amongst the officers of State tax,
to be appointed by the Central Government and the State Government, respectively.
(3) The qualifications, the method of appointment of the members and the terms and conditions of their services shall be such as may be prescribed.”
Emphasis Supplied
A.11 The Applicant submits that in terms of the above referred section 96 of the Maharashtra Goods and Service Tax Act, 2017, the Government of Maharashtra has issued a Notification No. MGST-1017/CR 193/Taxation dated 24.10.2017, which constitutes this authority as Maharasht

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'MODELLING DOUGH' AS MANUFACTURED AND SUPPLIED BY THE APPLICANT ARE CLASSIFIABLE UNDER CHAPTER 95 OF THE CUSTOMS TARIFF AND COVERED BY SL. NO. 228 OF SCHEDULE-II TO NOTIFICATION NO. 1/2017-CENTRAL TAX (RATE) DATED 30.06.2017
C.1 In terms of Section 9(1) of CGST Act subject to Section 9(2), there shall be levied a tax called the Central Goods and Service Tax on all intra-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 and at such rates, not exceeding twenty per cent, as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person.
C.2 The Central Government has issued Notification No. 1/2017-Central Tax (Rate) dated 28.6.2017 in exercise of the powers under Section 9(1), This Notification in Schedule I to VI specifies goods which will be levied to tax at the rate of 2.5%  9%, 14%

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or similar forms; other preparations for use in dentistry, with a basis of plaster (of calcined gypsum or calcium sulphate):
 
 
 
3407 00 10

Modelling pastes , including those put up for children 's amusement
 
 
 
3407 00 90

Other
 
 
 
Chapter Heading No. 95.03
Tariff Item
 
Description of goods
Unit
Rate
 
 
 
 
Standard
Preferential Areas
1
 
2
3
4
5
9503
 
TRICYCLES, SCOOTERS, PEDAL CARS AND SIMILAR WHEELED TOYS; DOLL'S CARRIAGES; DOLLS; OTHER TOYS; REDUCED-SIZE (“SCALE”) MODELS AND SIMILAR RECREATIONAL MODELS, WORKING OR NOT ; PUZZLES OF ALL KINDS
 
 
 
9503 00
–
Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls; other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds:
 
 
 
9503 00 10

Of wood
 
 
 
9503 00 20

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foresaid Notifications contains the following explanation:
(i)………………….
(ii)…………………..
(iii) “Tariff Item”, “sub-heading”, “heading” and “Chapter” shall mean respectively a tariff item, heading, sub-heading and Chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975).
(iv) The rules for the interpretation of the First Schedule to the said Customs tariff Act, 1975, including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, so far as may be, apply to the interpretation of this notification.
C.6 A perusal of the aforesaid provisions read with explanation to the Notification No. 1/2017-Central Tax (Rate) shows that in order to determine the rate of CGST leviable on the product in question, it is paramount to determine the classification or the product in question under Customs Tariff Act. 1975.
C.7 The Custom Tariff is generally based on the tariff classification adopted by World Cust

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and kaolin and are slightly greasy to the touch.
Other are mixtures of cellulose pulp and kaolin with binders.
These pastes are usually coloured and are presented in bulk or in cakes, sticks, plates. etc,
Assorted modelling pastes, including those put up in sets for the amusement of children, are also covered by this heading.”
 ………….emphasis supplied
C.9 From a perusal of the above, it is observed that the goods of Chapter Heading No 34.07 are preparations or plastics or plastic preparation generally used by artists or goldsmiths. Even those modelling pastes which are used by children for amusement purposes are classifiable under this Heading only. However, Chapter Heading No. 34.07 only covers goods made of plastics and not of other materials Therefore, it can be said that the modelling pastes that are used by children for amusement purposes and made specifically from plastics shall only be covered by Chapter Heading No 34.07,
C.10 However, it is clear that the mo

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only but the said definition is applicable throughout the nomenclature. Therefore, if any goods covered under Heading No. 3407 generally be preparations of plastics or plastics preparation shown content the ingredients from materials of Heading No.3901 to 3914. In the present case, the product in question is made entirely out of maida i.e. preparations of wheat flour and none of the contents/materials as covered under Heading No. 3901 to 3914 are present. Thus, the question of product in question Falling under Heading 3407 is clearly ruled out.
C.12 It is pertinent to note that the applicant's product i.e. Modelling Dough is a clay-like semi-solid product which is primarily made of 'maida' or refined wheat flour. Although it is made for the use of children as a growth stimulating, creativity toy and may be termed to be for the amusement of children; it is specifically made from edible substances including maida so as to make it safe for children and not have any harmful effects even i

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s Tariff which provides for 'Products of the Chemical or Allied Industries'. Section VI covers chemicals or allied industry products only and not children educational products. Therefore, it shall be wrong to classily the applicant's product which is an educational toy made of maida under Section VI of the Customs Tariff along with other products of Chemicals or other allied industries.
C.15 The principle of ejusdem generis specifies that like items should be treated likely i.e. goods of the same kind should be clubbed and treated similarly. Extending the same principle to 'modelling dough', it is submitted, that modelling dough should not be treated in law as to be of the same kind as other plastic preparations and chemicals. Rather, it is submitted, that the applicant's product i.e. modelling dough should be classified along with similar educational toys for kids and clubbed with the same for the purpose of taxation under GST.
C. 16 Chapter Heading No. 9503 covers toys of various k

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under the Chapter Heading No. 95.03 of the Customs Tariff Act, 1975 attracting CGST on supply ot- such goods @ 6% by virtue of Sl. No. 228 of Schedule-II to Notification No. 1/2017-CentraI Tax (Rate) dated 30.06.2017 as amended by Notification No. 41/20 17- Central Tax (Rate) dated 14.11.2017.”
03. CONTENTION – AS PER THE CONCERNED OFFICER
The relevant portion of the submission, as reproduced verbatim, could be seen thus-
“2. It is submitted at the outset that the applicant ought to have furnished all the relevant information and details in his application necessary to decide the classification issue. For determination of classification number of factors are required to be examined like raw materials/inputs used and their proportion; desired characteristics of the final product and in turn function, essential characteristics of different raw materials used /the purpose of using each input, manufacturing process, intended as well as alternate use of the product, manufacturing proces

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8(2) of the Central Goods and Services Act, 2017 of at least may be kept in abeyance till all essential information/material is produced before the Authority and made available to the Respondent.
4. With reference to said application of the applicant following further submissions are made as preliminary submissions and detailed response would be submitted at later stage after getting above discussed information from the applicant:-
a) It may be true that the product “moulding/modelling dough is manufactured by the applicant using wheat flour. But wheat flour used appears to be a base material. To enable any material to be used as 'moulding/nodelling dough', that too which shall be reusable, it must have elasticity. pliability and non perishable nature. These three characteristics appear to be essential for any material for using it as 'moulding/modelling dough'. Wheat flour/Maida does not contain any of these characteristics. As such mere use or wheat flour in product, even If predom

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ium. By itself, “alum” often refers to potassium alum, with the formula KAl(SO4) 2*12H 2O. Other alums are named after the monovalent ion, such as sodium alum and ammonium alum.
The name “alum” is also used, more generally, for salts with the same formula and structure, except that aluminium is replaced by another trivalent metal ion like chromium(III), and/or sulfur is replaced by other chalcogen like selenium. The most common of these analogs is chrome alum KCr(SO 4) 2*12H 2O. In some industries, the name “alum” (or “papermaker's alum”) is used to refer to aluminium sulfate Al 2(SO 4) 3*nH 2O. Most industrial flocculation done with “alum” actually uses aluminium sulfate. In medicine, “alum” may also refer to aluminium hydroxide gel used as a vaccine adjuvant ****
c) From above it appears that while manufacturing 'moulding /modelling dough' on commercial basis, certain chemical must be being used to give essential characteristics like elasticity, pliability and non perishable n

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nce the applicant has not provided vital details essential to determine classification, as discussed above at paragraph 2 above the application filed may be rejected or it shall not be admitted till the applicant furnishes full facts.
04. HEARING
The case was taken up for preliminary hearing on dt.28.03.2018 with respect to admission or rejection of the application when Sh. Nirav Karia, Advocate appeared and orally contended for admission of application as per their contentions made in the Advance Ruling application and additional written submissions made. Sh. S. S. Bhide, Superintendent GST/CX, Mumbai East Commissionerate, Mumbai Zone, Jurisdictional Officer appeared and made written submissions and orally stated that the applicant has not given detailed contents of the product and should not be therefore admitted till full details of product are given.
The application was admitted and a final hearing was held on dt.17.04.2018 when Sh. Nirav Karia, Advocate alongwith Sh. R. Nambira

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cks containing multiple such dough in various colours to attract kids.
During hearing, the applicant was asked to submit the ingredients of the product which have been informed as being thus –
CONTENTS
% CONSUMPTION
HYDONTOIN DMDM (PRESERVATIVE)    
**%
POLYSORBATE 80             
**%
MD-002- POTTASIUM DIHYDROGEN ORTHO PHOSPATE 
**%
MD-003(SODIUM CHLORIDE)
**%
MD-004- MAIDA
47.57%
MD-006-CALCIUM CHLORIDE DIHYDRATE
**%
MD-008- BUTYL STEARATE
**%
PETROLIUM JELLY -OP – 304
**%
CR-010-LIQUID PARAFFIN OIL    
**%
PC-005-SODWM BENZOATE
**%
PG-002-ALUMlNIUM SULPHATE
**%
HEATED DM WATER
34.58%
POLYBUTENE-950
**%
FLUORO ROYAL BLUE- IXT
**%
VANILLA SP FLAVOUR
**%
DRM-105 (2 PHYNOXY ETHANLO) – LOCAL
**%
TOTAL
100.00%
The Table above reveals that the ingredients consist of maida, water and chemicals. The percentages of various chemicals used by the app

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in packings for retail sale or in plates, horseshoe shapes, sticks or similar forms; other preparations for use in dentistry, with a basis of plaster (of calcined gypsum or calcium sulphate):
3407 00 10

Modelling pastes, including those put up for kg. 10% children 's amusement
3407 00 90

Other
Heading 9503
9503
 
TRICYCLES, SCOOTERS, PEDAL CARS AND SIMILAR WHEELED TOYS; DOLL'S CARRIAGES; DOLLS; OTHER TOYS; REDUCED-SIZE (“SCALE”) MODELS AND SIMILAR RECREATIONAL MODELS, WORKING OR NOT ; PUZZLES OF ALL KINDS
9503 00
–
Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls; other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds:
9503 00 10

Of wood
9503 00 20

Of metal
9503 00 30

Of plastics
9503 00 90

Other
As can be seen, the CTH 34.07 covers modelling pastes and includes modelling pastes for children's amusement. While Heading 9503 is about toys. A toy is an object

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of 'Toys' by classifying the same under Chapter 95 (Heading No 95.03) of the Customs Tariff (under the GST regime) and charging CGST @6%.
* The applicant's product may pall under Chapter 34.07 which covers 'madelling pastes'. However, the same product is actually used as a 'toy' for kids and maybe more aptly covered under Chapter 95 of the Customs Tariff which covers Toys, games and sports requisites; parts and accessories thereof.
* The prevailing ambiguity has led to two separate Tariff Item Nos. being used for the product in question with contradictory usages thereby levying two different rates of CGST applicable on them. While some cautious sellers are charging CGST @ 9% on the product in question whereas some registered persons are using the ambiguity to charge CGST @ 6% only. The above ambiguity results in unfair market practices being adopted by certain registered persons in an attempt to reduce effective price of product and increase their market share and profits. Further

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o many other chemicals as given in table above are also added to it . Neither can “maida” alone be used for preparing the various shapes as various chemicals are needed to be added to “maida” for it to be used and reused as modelling dough for making the various shapes. These chemicals are needed to give the needful firmness, elasticity, plasticity and non perishability to the shapes. The dough needs to be mouldable and flexible to make the various shapes. There needs to be some safeguard against cracking, crumbling. [I GOT THIS FROM A PATENT RELATED ARTICLE – A MODELING DOUGH COMPRISING A POLAR POLYMERIC RESIN, WATER, A GELLANT, AND A FILLER PROVIDES A DOUGH RESISTANT TO FLAKING, CRACKING, AND CRUMBLING. SO NOT COPIED IT ENTIRELY]. In view thereof, the use of chemicals in the modelling dough is significant. And therefore, the product can very well fall in the Section VI for “Products of the Chemical or Allied Industries”.
Then we come to the Harmonized Commodity Description and Codin

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he Nomenclature the expression “plastics” means those materials of headings 39.01 to 39.14 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticiser) by moulding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.
It is essential here to mark the difference in the words used. Chapter 39 says “plastics'  while Chapter 34 says ” plastic”. “Plastics” is not the same as “plastic”. The meaning of “plastic”  is not given by the HSN and nor the Customs Tariff Act of India. Hence, we refer to the meaning of “plastic” as normally understood thus –
We find that the word Plastic is a noun as well as an Adjective..
AS NOUN…..
noun: plastic; plural noun plastics
1. a synthetic material made from a wide range of organic polymers such as polyethylene, PVC, nylon, etc

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:
rigid
* offering scope for creativity.
“the writer is drawn to words as a plastic medium”
* relating to moulding or modelling in three dimensions. or to produce three-dimensional effects.
* “the plastic arts”
In view of the above meanings of the word PIASTIC and PLASTICS we find that in the HSN Explanatory notes of the CTH 3407 under the heading “Modelling pastes” it is stated that these are “Plastic Preparations” generally used by Artists or goldsmiths for making models and also by children for amusement purposes. Here in these explanatory notes it is apparent that the word “Plastic” used in phrase “Plastic preparations” is used as an Adjective which denotes the Plastic property of modelling pastes i.e. their malleability, mouIdability, shapability, pliability, flexibility etc as per synonyms of this property mentioned under its meaning above when used as an adjective.
From the extracts reproduced and detailed discussions above it is clear that the meaning of 'plastic” is

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“, The Notes Chapter 39 say that the expression 'Plastics' means those materials of headings 39.01 10 39.14 which are or have been capable, either at the moment of polymerization or at some subsequent stage of being formed under external influence (usually heat and pressure, If necessary with a solvent or plasticiser) by moulding, casting, extruding_rolling or other process into shapes which are retained on the removal of the external Influence. Whereas Notes to Heading 3407 Say that modelling pastes are plastic preparations generally used by artists or goldsmiths for making models and also by children for amusement purposes.
Thus we find that the applicant in their contentions have taken “Plastics” and “Plastic” as one and the same and are therefore not able to be certain of the correct classification of their product which would be under CTH 3407 as per detailed discussions above once we are able to differentiate between the word “Plastic” and “Plastics”.
The impugned product is a

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r amusement of children, the Heading 3407 would be the correct classification. The description against CTH 3407 being applicable to the impugned product, we refrain from engaging ourselves in any exercise of what constitutes a “toy” and whether the impugned product is a toy”.
We find that the CTH 3407 is covered by the Schedule III of the Notification No. 1/2017-Central/State Tax (Rate) [as amended from time to time] thus –
63
3407
Modelling pastes, including those put up for children's amusement: Preparations known as “dental wax” or as “dental impression compounds”, put up in sets, in packings for retail sale or in plates, horseshoe shapes, sticks or similar forms; other preparations for use in dentistry, with a basis of plaster (of calcined gypsum or calcium sulphate)
06. In View of the deliberations as held hereinabove, we pass an order as under :
ORDER
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
No

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In Re: Nutan Warehousing Company Private Limited
GST
2018 (8) TMI 1073 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – 2018 (16) G. S. T. L. 139 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – AAR
Dated:- 23-5-2018
GST-ARA-30/2017-18/B-38
GST
SHRI B.V. BORHADE, AND SHRI PANKAJ KUMAR, MEMBER
PROCEEDINGS
(Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and MGST Act”] by NUTAN WAREHOUSING COMPANY PRIVATE LIMITED, the applicant, seeking an advance ruling in respect of the following issues.
1. Whether Exemption provided in serial no. 54 to Notification No. 12/2017-Central Tax (Rate) is applicable to the activity carried by the company?
At the outset, we would like to make it clear that the

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LAW AND/OR FACTS AS THE CASE MAY BE, IN RESPECT OF AFORESAID QUESTION(S)(i.e.) APPLICANT'S VIEW POINT AND SUBMISSIONS ON ISSUES ON WHICH THE ADVANCE RULING IS SOUGHT) AND AS PER SUBMISSION DT. 10.04.2018
Brief Facts submitted by applicant on 10.04.2018
1. M/s. Nutan Warehousing Company Pvt Ltd (hereinafter referred to as applicant) is a company formed for following main objective
a) To carry on the business of warehousing, cold storage and refrigeration in all its branches and activities and sphere.
b) To carry on the business of storage of fertilizers, insecticides, quality seed, agricultural and horticultural equipment, tool and machinery.
c) To carry on the business of quality seeds and develop quality seeds, acquire suitable lands and carry on agriculture.
d) To produce material and fertilisers and insecticides and acquire agency in the above lines and act as commission agents.
e) To act as clearing and godowns for proper and safe storing of valuable agricultural and hor

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red in bulk, either from public tea auctions or directly from manufacturers of tea is an agricultural produce as defined in clause 2(d) of the Notification No. 12/2017-CT (Rate) dated 28.6.2017. Further, storage & warehousing of tea post procurement, blending and packing undertaken by M/s Unilever is exempted under E. No. 54(e) of the Notification No. 12/2017-CT (Rate) dated 28.6.2017.
5. Based on this understanding, applicant had neither taken GST registration nor discharged the GST liability. After, insistence from Applicant's client, M/S Unilever, applicant had taken registration and regularly discharging GST liability.
6. As the applicant had a serious reservation regarding taxability of renting of warehouse as the warehouse is used for warehousing of tea, an agricultural produce. Under this background, the applicant had requested for advance ruling on
“Whether the supply of warehouse services used for packing & storage of tea, under above mentioned facts & circumstances wa

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ea is exported to overseas countries. Applicant claims that the storage and warehousing of tea is exempted vide Serial No 54(e) of Notification No. 12/2017- Central tax (rate). The said entry is reproduced as under
54
Heading 9986
Services relating to cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fibre, fuel, raw material or other similar products or agricultural produce by way of
(a) agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or testing;
(b) supply or farm labour;
(c) processes carried out at an agricultural farm including tending, pruning, cutting, harvesting, drying, cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter the essential characteristics of agricultural produce but make it only marketable for the primary market;
(d) renti

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e for primary market;
11. Before, going into interpretation, it is essential to mention the process involved in making green leaves marketable in form of tea-
Tea leaves are plucked from the tea plants and the green leaves plucked from the tree are not fit for the human consumption and it cannot be sold in the open market for human consumption. The raw tea leaves are withered by exposure in the shadow of the sun or by heating in trays until pliable. Thereafter the leaves are rolled by hand or machine in order to break the leaf cells and liberate the juices and enzymes. Finally, the leaves are completely dried either by further exposure to the sun, over fires, or in a current of hot air then the tea leaves are fermented in baskets, glasses and in clothes. Thereafter the leaves were then subjected to grading with sieves of various sizes. The said leaves are finally roasted with charcoal for obtaining suitable flavour and colour. Thereafter the said tea is packed in the bulk packs.
12

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aves consists of only above processes and not beyond them. All the three ingredients are fulfilled in the present case.
a) The produce must emerge from cultivation of plants or rearing of all life forms of animals-Green leaves are plucked from the tea plant. Hence the first condition is undoubtedly fulfilled.
b) Either no further processing is done or such processing is done as is usually done by a cultivator or producer on the said produce.
14. Tea leaves are plucked from the tea plants and the green leaves plucked from the tree are not fit for the human consumption and it cannot be sold in the open market for human consumption. The raw tea leaves are withered by exposure in the shadow of the sun or by heating in trays until pliable. Thereafter the leaves are rolled by hand or machine in order to break the leaf cells and liberate the juices and enzymes. Finally, the leaves are completely dried either by further exposure to the sun, over fires, or in a current of hot air then the te

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it for marketing when by a minimal process they are made fit for human consumption. Processes were necessary for the purpose of saving the tea-leaves from perishing, making them fit for transporting and marketing them. The process applied was minimal. Withering, crushing and roasting the tea-leaves will be surely necessary for preserving them. The process of fermentation or final roasting with charcoal for obtaining suitable flavour or colour and also the process of grading them with seives were all within the region of minimal it no point of time it crossed that limit and robbed the tea-leaves, the agricultural produce, of their character of being and continuing as such substantially. These processes are normally done by the cultivator or the producer, hence the second ingredient is also satisfied.
17. The process undertaken does not alter its essential characteristics.
The tea leaf remained what it always was. It was tea leaf when selected and plucked and it continued to be tea lea

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after drying and processing remained agricultural produce.. Similar view had been expressed by the Hon'ble Uttaranchal High Court in case of Dehradun Tea Company Ltd. vs State Of Uttaranchal And ors. [2006 148 STC 56 Uttra) (Annexure-2).
19. C(ii) The processes undertaken makes it marketable for primary market. The process undertaken is seen from the submission on record. it is not repeated herein it is the not direct activity link with cultivation.
20. Circular cannot override the Notification.
Notifications are issued using the subordinate legislative power and are tabled in parliament. Circulars are issued for clarifying the issue, which had been dealt in the Act/rule/notification in a legal language. Circulars are issued by authority expressing their view point. It cannot override the Notification. Any circular contrary to the law (including notification) is non est in the eye of the law. It is neither binding on the department nor on the Assessee. The applicant intend to re

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s well.
Therefore, tea was an agricultural produce during entire service tax regime.
In light of the above, he pray for passing the appropriate order.
Addition submission by Applicant dated on 11.05.2018.
Please refer to our application reference No. 30 dated 23.2.2018 in respect of which, hearing was held before you on 24.4.2018 and our earlier letter dated 3.5.2018 on the above subject. During the hearing, we were directed to submit documents/data from M/s Unilever Export, Pune within ten days from the date of hearing. Accordingly, M/s Unilever Export had been requested to submit the same.
We are pursuing the matter with the M/s Unilever Export. However, we are yet to receive the complete reply as M/s Unilever Export are in a process of shifting their activity from our premises to Dubai. It is therefore requested to grant us some more time to submit the same. Accordingly, the detail process was submitted on record is considered while passing of order. Hence it is not repeated a

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e) and corresponding Notification issued under IGST and UGST Act and therefore the exemption from GST is not available to their loading, packing, warehousing etc. and that any issued in the past to the contrary of Service Tax or Vat/SaIes Tax is no more relevant.
Applicant have obtained online Service Tax Registration No. AAACN7084LST001 on 29.06.2005 for providing Taxable Service under the category of Storage and Warehousing Services. They are providing services in the nature of Warehousing and storage viz. storing Tea Bags (manufactured)in various format such as Service Sachet, Sqeezables, Herbals, Infusion, Flavoured Tea, Packet Tea and blended tea and receiving consideration on account of Warehousing charges, Service Charges, Lease Rent, other charges and Transport charges from M/s. Unilever India Exports Ltd. 100% EOU. Further applicant vide their letter date 13.10.2017, 15.12.2017 02.02.2018 informed this office that they are providing warehousing services 100% EOU viz. Unilever

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n to the activities carried out by the applicant, the definition of agriculture produce, clearance of tea stored in EOU and category of the service recipient is to be discussed as under.
The definition of Agriculture Produce as per Section 65B (5), for the purpose of clause (102) of 65, w.e.f. 01.07.2012 in Service Tax is as under
*Agriculture produce means any produce of agricultural on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes marketable for primary market
The Definition of agricultural produce for the purpose of Sr.54 of Notfn No. 12/2017 in GST is as under-
” agricultural produce” means any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fibre, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually

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. 99(2001)/SEEPZ/EOU/80/2001-05/5 valid upto 31/03/2022, it means the possession / control of the premises is with 100% EOU. In this case, the status of applicant is Service Provider and received consideration for providing services as mentioned in Answer to Question No. 14.
The Tea stored in 100% EOU is manufactured packed in bags in the factory and exported, and the exemption is applicable only to the agriculture produce which are marketed in primary market therefore the exemption claimed by the applicant is not applicable As per the balance sheet,the service wise income received from M/S. Unilever India for the period 2013-2014 to 2015-2016 is as under –
Category of service provided
2013-2014
2014-2015
2015-2016
Warehousing charges
2979264
3507604
55000
Service charges
19440003
19059D984
23037450
Lease Rent
8947365
7572675
8883305
Other charges
340920
167280
559320
Transport charges
11310000
3069800
6288000
 Zero copies of extract of Note 14 of Balance

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e applicant's interpretation of law is based on the legal provisions which were valid up to 30.06.2012. The changes made by the Govt. in the definition of Agriculture Produce after 01.07.2012 and nature and category of service recipient is not considered while filling application under Advance Ruling.
The definition of “Agricultural produce” as defined under Section 65B (5), for the purpose of clause (102) of Section 65, w.e.f. 01 .07.2()12 in Finance Act, 1994 is as under:
” agricultural produce” means any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fibre, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market;”
Further Board vide Circular No. 16/16/2017-GST issued under F.No.354/173/2017-TRU dated 15.1

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the deptt. started investigation on 10th January 2018 by issue of letter for submission of documents. However, the applicant have filed application for advance ruling on 25th January 2018 which is much later than the action initiated by deptt. for investigation. It is also noticed that the Registered office of the applicant as per Service Tax Registration is at Krishi Bhavan, 1379, Bhavani Peth, Pune- 411042 falling under the jurisdiction of Swargate Division. However, the applicant has willfully shown the address of Registered office at the time of GST Registration as Krishi Bhavan, 1379, Bhavani Peth Pune 411002 by quoting wrong PIN code falling under Shivajinagar Division to mislead the deptt.
Thus the applicant, by mentioning the wrong Pin Code as 411002 instead of 411042 for the same address in GST Registration, the applicant has tried to mislead the deptt. for hiding the evasion made in past period from 01/07/2012 to 30.06.2017 with intention to make the loss to the Govt. exche

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ion Certificate bearing No. No. AAACN7084LST001 on for storage and warehousing services and the same is valid till date.
It is therefore requested to consider the legal provision of the Service Tax/ GST/ Foreign Trade Policy while taking the decision on the application as evasion of tax made by the applicant involves revenue of more than Rupees One Crore.
Additional submission by Jurisdictional Officer dated 21.05.2018
The applicant requires advance ruling on two issues viz.-
a) Whether exemption provided in Sr.No.54 (e) to Notfn No. 12/2017-CentraI Tax (Rate) is applicable to the activity carried out by the company?
b) Applicability of Exemption for the activity of providing Services in the nature of warehousing for loading, unloading, packing, storage or warehousing of agriculture produce?
Issue No. 1 – In this issue, the assessee is asking whether exemption provided in Sr.No.54 to the Notfn No. 12/2017-C.T. (Rate) is applicable to the activities carried by the company.
In thi

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factory and sale in the open market as well as in overseas countries, the service provided by the applicant to Business activity is not treated as service provided to agricultural produce hence there is not exemption from payment of service tax/GST.
ii) High Court Decision in the case of Brook Bond Lipton India Ltd. Vs State of Karnataka 109 STC 265 in which it was stated that packing led to value addition for the purpose of excise and sales tax and that it was a possible view that packaged blended tea produced in the Industrial unit of the appellant is a manufactured product in which packing material are inputs.
The contents of the exemption in Sr.No.54 of Notfn No. 12/2017 dated 28.06.2017 are as under
Sr. 54 -Services relating to cultivation of plants and rearing of all life forms of animals, except the reading of horses, for foods, fibre, fuel, raw material or other similar products or agricultural produce falling under Chapter 9986 by way of-
(a) to (d)
(e) Loading, unloading

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g, refining, oxidation, packing etc on green leaf and is the processed output of the same.
This Circular is also in consonance with the above referred judgments.
In view of the above, Applicant's Question whether exemption provided in Sr.No.54 (e) to Notfn. No. 12/2017-CentraI Tax (Rate) is applicable to the activity carried out by the company can be answered in the Nagative.
5. ISSUE No.2- The Second issue on which applicant sought Advance Ruling is “Applicability of Exemption for the activity of providing Services in the nature of warehousing for loading, unloading, packing, storage or warehousing of agriculture produce”
The propriety of the asking Advance Rulling in respect of this Question is not understood since from the facts described by the applicant in his application, it appears that he is only storing tea manufactured by M/s. Unilever India Export Ltd, which is branded and packed and ready for distribution for tertiary market which is mainly 100% export market. There

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Commissioner of Sales Tax Vs. D.S. Bist and others dated 11.09.1979
Issue-Assessee, agriculturist and having owned Tea Garden grown tea leaves on his own land, after carrying out some kind of process or treatment, tea is sold therefore the sale of tea effected by him was exempted from sales tax under the proviso to the Act. The Sales Tax authorities rejected the assesee 's contention.
Decision-While giving decision High Court held that sales of tea leaves were not exigible to sale tax. The commodity which was sold was not different from the commodity therefore the proviso to Sr.2 (i) of the Act is attracted.
The decision given in the above case is relating to exemption from payment of sale Tax allowed to Agriculturist of Tea, whereas in applicant's case, the applicant is providing Services to the manufacturing Tea unit registered as 100% EOU, hence the same decision is not applicable as the tea is manufactured goods classified under CSH 0902 under Head “Tea whether or not f

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packed tea manufactured by M/s. Unilever India Export Ltd. which comes to applicant's warehouse in packed form ready for tertial market.
c) The decision of Supreme Court in the case of Commissioner of C. Ex. Bolpur Vs. Ratan Melting and Wire Industries
Issue-Departmental Clarification vis-a-vis court Decision Binding nature of Circulars Contrary to Statutory Provisions having no Existence in law
Decision-wherein it has been held that a circular which is contrary to the statutory provision has really no existence in law. It is for the court to declare what the particular provisions of Statute Says and it is not for the Executive. Since CBECs Circular is in consonance with the provision of CGST/SGST Act, the ratio of Ratan Melting and Wire Industries is not applicable in the facts of applicant's case.
On going through the letter dated 11.05.2018 submitted by the applicant to Advance Ruling Authority along with the letter of M/s. Unilever Export dated 9.7.2014 mentioning the d

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ontentions made in ARA. During hearing Jurisdictional Officer, Sh. Sachin Ghagare, Asstt. Commr. Division-II (Swargate) Pune-II, CGST Commissionarate, Pune also appeared and made written submissions and contended that investigations against the applicant is already going on and therefore their application is required to be rejected. Further he was requested to produce documentary evidences in respect of initiation of investigation at the earliest. The applicant was also requested to submit their contentions and written submissions in this regard.
The application was admitted and called for final hearing on 24.04.2018, Sh. Suresh Singh C.A along with Sh. Chanshayam L Navalakha, Director and Sh. Bhushan Patil, C.A. appeared and written submissions and orally contended as per their written submissions. They were orally to give details of exact nature of product that was being stored, including photographs of the product, sample of bags in which it was stored along with markings or detail

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g unloading, packing, storage of agricultural produce. The Applicant is seeking the advance ruling in relation to whether exemption as per Serial No.54 of Notification No.12/2017 Central Tax (Rate) is applicable to the activity carried out by the company or not? The Notification 12/2017 is reproduced herein below.
54
Heading 9986
Services relating to cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fibre, fuel, raw material or other similar products or agricultural produce by way of
(a) agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or testing;
(b) supply of farm labour;
(c) processes carried out at an agricultural farm including tending, pruning, cutting, harvesting, drying, cleaning, trimming, sun dryings fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter the essential c

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less the context otherwise requires, the Definition of agricultural produce for the purpose of Sr.54 of Notification No. 12/2017 under the GST law is as under-
(g) “Agricultural produce” means any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fiber, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market;
In view of the above, we are required to ascertain if the goods being stored by M/s. Unilever India Export Ltd., in the warehouse of applicant would fall in the definition of 'Agricultural produce' as given above. To ascertain the exact nature of goods being stored in warehouse. we find that a letter received by the applicant from M/s. Unilever dated 09.07.2014 gives the details about the exact nature

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.
Assembly of Raw material as per Bled Order
Cross checking of assembled Tea
5.
Tipping of Tea over Magnetic Grid
Inspection while tipping
6.
Conveying under closed condition
 
7.
Vibratory sieving
Perforated Mesh : 3 mm
8.
Conveying thru bucket elevator to feed hopper 
 
9.
Transferring teas to Blend Drum & Blending
Under covered condition
10.
Conveying and drawing Blended Tea into Mobile Storage Hopper
Closed Hopper, Blended tea checked for sensorial and other Lab clearance
11.
Placing Mobile Hopper on machine chute having Mesh and Magnetic Grid
5000 Gauss Strength.
12.
Filling tea into Tea bags on Constanta Machine  
 
13.
Auto filling of Tea bags into Inner carton               
Online Quality checks for Tea bag Quality
14.
On line Lid closing of Inner carton
 
15.
On line Laser Coding on Inner carton
 
16.
On line over wrapping of

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processing of raw tea leaves into tea results in emergence of a new product having distinct name i.e. Tea, which has distinct name, character and use i.e. Lipton Pure and Simple 100s Tea bags. As such the impugned activity is a 'manufacture' as defined in clause (72) of section 2 of the GST Act. The final product considering various processes undertaken by M/s. Unilever cannot be considered as Agricultural Produce. Both the applicant as well as Jurisdiction Officer have cited several judgments in support of their contentions which we have already referred in their submissions portion but we find that the decision cited by the applicant are not applicable to the facts of the case and hence not discussed. However, the decision of Income Tax Appellate Tribunal, Kolkatta in the matter of Narendra Tea Co. (P) Ltd Vs. Assesse dated 20/07/2017 is a direct authority on the issue. In this case on reference by Division Bench, Special Bench was constituted and following question was refe

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ion u/s. 10B of the Act as prayed for. Further the judgments cited by the jurisdictional office namely Union of India Vs. Belgachit Tea Co. and Brook Bond Lipton India Ltd cited supra support the view that 'Tea' is a manufactured product and not agricultural produce.
Thus, we find that the goods being stored in the applicant's godown are not agricultural produce as per definition given in Notification No.12/2017-Central Tax (Rate) dated 28th June, 2017 and the same is reiterated by Board Circular No. 16/16/2017-GST issued under F No. 354/173/2017-TRU dated 15.11.2017,
05.  In view of the extensive deliberations as held hereinabove, we pass an order as follows :
ORDER
(Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
NO.GST-ARA-30/2017-18/B-38
Mumbai, dt. 23.05.2018
For reasons as discussed in the body of the order, the questions are answered thus –
Question 1. Whether Exemption provided in s

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CENTRAL INDUSTRIAL SECURITY FORCE Versus COMMR. OF CGST & C. EX.
Service Tax
2018 (9) TMI 834 – ALLAHABAD HIGH COURT – 2018 (14) G. S. T. L. 198 (All.) , [2019] 71 G S.T.R. 451 (All)
ALLAHABAD HIGH COURT – HC
Dated:- 23-5-2018
Writ Tax No. 822 of 2018
Service Tax
Krishna Murari and Ashok Kumar, JJ.
Shri Rishi Raj Kapoor, Counsel, for the Petitioner.
Shri Ramesh Chandra Shukla, Counsel, for the Respondent.
ORDER
Learned Counsel for the petitioner is permitted to implead the appellate authority as respondent No. 4 to the writ petition and also carry out necessary amendment in the prayer clause of the writ petition during the course of the day.
2. The petitioner M/s. Central Industrial Security Force, FGUTPP Unit, Unchahar, Raebareli, has approached this Court challenging the order dated 12-2-2018 passed by the respondent No. 1 rejecting the rectification application made under Section 74 of the Finance Act as well as order dated 6-1-2017 rejecting the appe

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vice Tax on accommodation charges incurred on the personnel for the same period. Proceedings were contested by the petitioner by giving a reply. The assessing authority vide order dated 17-3-2016 confirmed the demand of Service Tax amounting to Rs. 8,43,581/- plus Education Cess @ 2% amounting to Rs. 16,872/- plus Higher Education Cess @ 1% amounting to Rs. 8,436/- total amounting to Rs. 8,68,889/-. An equal amount was levelled as penalty under Section 78 of the Finance Act and a sum of Rs. 20,000/- was imposed as late fee under Section 70 of the Act read with Rules 7C of the Rules of 1994.
6. Petitioner preferred an appeal before the respondent No. 1 vide order dated 6-1-2017. The appeal has been dismissed by respondent No. 1 being barred by limitation.
7. Learned Counsel for the petitioner contends that delay had occasioned on account of time spent in obtaining sanction for filing of an appeal. It is also submitted that the authorities not being well conversant with the l

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10. Admittedly the appeal was filed beyond time, however, in the facts and circumstances we are of the considered opinion that the delay was not occasioned because of any fault on the part of the petitioner but was due to circumstances which was beyond his control. However since the Act does not empowers the appellate authority to condone the delay 30 days beyond the prescribed limitation, no illegality is found to have been committed by the appellate authority however in the interest of justice we feel that the petitioner is entitled to be afforded an opportunity of hearing on merits.
11. Considering the aforesaid facts and circumstances, we set aside the order dated 6-1-2017 passed by the appellate authority as well as order dated 16-2-2018 passed on the rectification application and remit the matter back to the appellate authority, respondent No. 4 with a direction to consider and adjudicate upon the appeal filed by the petitioner on merits, without raising any objection

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ICES Advisory 21/2018 (IGST Refund) Interim Procedure for processing IGST Refund payments after corrections in the Bank Accounts details of Beneficiaries
36/2018 Dated:- 23-5-2018 Trade Notice
Customs
OFFICE OF THE COMMISSIONER OF CUSTOMS
CHENNAI VIII (GENERAL)
CUSTOM HOUSE, NO.60 RAJAJI SALAI, CHENNAI – 600 001.
Telephone: 25254444 – FAX:25224622
www.chennaicustoms.gov.in
F.No.S.Misc.09/2018 – Sys Unit
Dated: 23/05/2018
PUBLIC NOTICE. 36/2018
Sub: ICES Advisory 21/2018 (IGST Refund) Interim Procedure for processing IGST Refund payments after corrections in the Bank Accounts details of Beneficiaries
************
Kind attention of Exporters/ Customs Brokers is invited to the IGST refund in ICES.
2. It has been noticed th

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re it fails only for one or more exporters after having been accepted by PFMS, i.e. 'Failed-after-Success' cases, following interim procedure may be followed:
a. The report on such cases shall be shared by the ePAO (O/o the Pr…CCA, CBIC) with ICEGATE and the Central DDO appointed by CBIC on a daily basis in the following format
Transaction ID:
Name of the Beneficiary:
Bank Account No:
IFSC Code:
Name of the Bank: Reason of Failure:
b. The Central DDO will forward the details to the respective Commissionerate. The details will be sent to the concerned System Manager on his ICEGATE email id. The System Manager shall then ask the sanctioning authority (AC/DC of Refunds) -to obtain the correct Bank Account details of the benefi

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bove subject. It may be ensured that the verified account details are emailed to the above id by the System Manager through the official ICEGATE sysmgr email id. No other communication shall be entertained by the Central DDO. It is also reiterated that this procedure is only an interim procedure for the 'Failed-after-Success' cases and not a replacement for submitting valid bank account details in ICES in the CLK role. The correct account details shall have to be updated in ICES before sending the above document to Central DDO.
3. If any difficulty is faced in this regard may be brought to the notice of Dy Commissioner (EDI) for necessary action.
Yours faithfully,
(Dr. ANIL'K NIGAM)
COMMISSIONER OF CUSTOMS
CHENNAI VIII – GE

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Customs – Accounts – Change of Focal Point Bank (FPB) of State Bank of India (SBI) from Vizag to Guntur for Custom duty collection and Payment of duty drawback under EDI system in respect of Kakinada Custom House under the jurisdiction of Customs Commissionerate (Preventive), Vijayawada and transfer to revenue account from Pay & Accounts Officer, CGST & Customs, Visakhapatnam to Pay & Accounts Officer, CGST & Customs, Guntur
PUBLIC NOTICE No. 26/2018-Customs Dated:- 23-5-2018 Trade Notice
Customs
OFFICE OF THE COMMISSIONER OF CUSTOMS (PREVENTNIVE)
55-17-3, C-14, 2nd Floor, Road No.2, Industrial Estate, Autonagar, Vijayawada – 520007
Phone: 0866-2551261 Fax: 0866-2551156
C. No. VIII/48/309/2018-Cus.Tech.
Date: 23.05.2018
PUBLIC NOTICE No. 26/2018-Customs
Subject : Customs – Accounts – Change of Focal Point Bank (FPB) of State Bank of India (SBI) from Vizag to Guntur for Custom duty collection and Payment of duty drawback under EDI system in respect of Kakinada Custom Hous

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Visakhapatnam, Gangavaram Port, Visakhapatnam International Airport, Visakhapatnam Special Economic Zone and the areas under the greater Visakhapatnam Municipal Corporation of Visakhapatnam), East Godavari, West Godavari, Krishna, Guntur, Prakasam, S. P. S. R. Nellore, Chittoor, Ananthapur, Dr. Y.S.R. Cuddapah, Kurnool in the State of Andhra Pradesh.
2. The Office of the Principal Chief Controller of Accounts, Central Board of Indirect Taxes & Customs, New Delhi vide Office Memorandum Coord / 2 (1) / Guntur (25) / 2018 – 19 /64 dated 04.05.2018 communicated the approval for change of Focal Point Bank of State Bank of India from Vizag to Guntur for Customs duty collection and payment of duty drawback under EDI System in respect of Kakinada Custom House under the Commissionerate of Customs (Preventive), Vijayawada. The information in detail is furnished below:
3. Consequent on re-organization of Commissionerates during the year 2014, Customs Preventive Commissionerate, Vijayawada was

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BK payment at Kakinada Custom House (Location Code : INKAKI) under the Commissioner of Customs (Preventive),Vijayawada are as follows:
Bank branch Name & BSR code
Focal Point Branch with BSR Code
Location for which branch is authorized
Mode of DBK payment
State Bank of India, Main Branch, Kakinada (BSR Code : 0000850) Jurisdictional Commissionerate
State Bank of India, Treasury Branch, Guntur (BSR Code : 0006307) Jurisdictional PAO
Kakinada Custom House (Location Code INKAKI) Specified Officer to issue cheque for DBK
EDI enabled Customs Collection & DBK payment Reason for revised banking arrangement
Commissionerate of Customs (Preventive), Vijayawada
Pay and Accounts Officer, CGST & Customs, Guntur
Shri T. Venkateswara Rao, Assistant Commissioner of Customs, Custom House, Kakinada
Change of Focal Point Bank and mapping of Kakinda Custom House from PAO, Vizag to PAO, Guntur
5. As approved by the Principal Chief Controller of Accounts, Central Board of Indirect Taxes & Custo

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GST Applies to Liquidated Damages Under Heading 9997 at 18%; Time of Supply Set by Agreement Terms.
Case-Laws
GST
Levy of GST – liquidated damages – to be classified within the Heading 9997 –

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refund of accumulated ITC in case of export.
Query (Issue) Started By: – bk r Dated:- 22-5-2018 Last Reply Date:- 23-5-2018 Goods and Services Tax – GST
Got 3 Replies
GST
The client is engaged in manufacturing of goods and clear the goods in domestic market and as well as export . the party get the advance authorisation licence and get the goods imported without BCD,SAD, CVD, Cess etc before the GST regime. The Export was made in the month of July 2017 under advance authorisation sc

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Regarding ITC on stock held
Query (Issue) Started By: – m Bhagat Dated:- 22-5-2018 Last Reply Date:- 24-5-2018 Goods and Services Tax – GST
Got 1 Reply
GST
R/S
One dealer taken Reg. on Composition from 18/08/2017 and he withdraw ,composition from 01.04.2018 onwords. can he get inputs held in stock before 01.04.2018. if yes than which return fillied either ITC1/2/3 and what is last date for it.
Reply By YAGAY and SUN:
The Reply:
Frequently Asked Questions on Composition Levy
Q 6. A person availing composition scheme during a financial year crosses the turnover of ₹ 75 lakhs/50 lakhs during the course of the year i.e. say he crosses the turnover of ₹ 75 lakhs/50 lakhs in December? Will he be allowed to pay tax und

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ADVANCE RULING AUTHORITIES
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 22-5-2018

Chapter XVII of the Central Goods and Services Tax Act, 2017 ('Act' for short) deals with the provisions relating to advance ruling.
Section 96 of the Act prescribes the Authority for advance rulings. This section provides that subject to the provisions of the Chapter XVII, for the purposes of this Act, the Authority for advance ruling constituted under the provisions of a State Goods and Services Tax Act or Union Territory Goods and Services Tax Act shall be deemed to be the Authority for advance ruling in respect of that State or Union territory.
Rule 103 of Central Goods and Services Tax Rules, 2017 provides that the Government shall appoint officers not below the rank of Joint Commissioner as member of the Authority for Advance Ruling.
Section 96 of the State GST Acts provides for the constitution of Authority for Advance Ruling. For example section 96 of Tam

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vernment
Name and designation of Member of Central Government
Office address of the Authority
Telephone No./ email id of the
office of the Authority
Andhra Pradesh
Sri J.V.M. Sarma, Joint Commissioner
Sri Amnaresh Kumar, Joint Commissioner
O/o the Chief Commissioner of State Tax, 5-59, R.K. Spring Valley Apartments, Block-B, Edupugallu (V), Kankipadu (M), Vijayawada, Krishna District, Andhra Pradesh- 521 144
0866-2821175,
arcapgst2017@gmail.com
Arunachal Pradesh
Shri Airudh S. Singh,Commissioner
Shri Suven Das Gupta, Joint Commissioner
Office of the Commissioner, Kar Bhavan, Sector-C Itanagar, District Papum – Pare, Arunachal Pradesh
1. 0360-2211771, Fax no.2291993, 9712574717. tax-com-arn@nic.in; anirudhssingh@gmail.com 2. 0360-2350641; 9163083333 cgstitanagar@gmail.com, suvendasgupta@gmail.com
Assam
Shri Ramen Kumar Barman, Joint Commissioner
Shri J.K. Simte, Additional Commissioner
Office of the Commissioner of Taxes, Kar-Bhawan, G.S. Road, Dispur, Guwahati-78100

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goa@nic.in
Gujarat
Shri R.B.Mankodi, Joint Commissioner (Legal)
Shri Gyan Chand Jain, Joint Commissioner
Rajya Kar Bhavan, Ashram Road, Ahemdabad 380009 (Gujarat)
9825209689, rajanmankodi@ yahoo.co.in, 8424910678-kabra_rameshl@ yahoo.co.in
Haryana
Shri Vijay Kumar Singh, Addl. Excise & Taxation
Mrs.Sangeeta Karmakar, Joint Commissioner,
Excise & Taxation Commissioner, Haryana, Vanijiya Bhawan, Sector- 5, Panchkula
0172-2590931; 0172-2561335 vjsing2k@haryanatax.gov.in commr
cexpchkl@nic.in
Himachal Pradesh
Shri D.T. Negi, Joint Excise & Taxation
Shri Ravindra Kumar, Joint Commissioner
01772620426, 01722704039 jetc.tax@mailptax.gov.in; ravindra.kumar76@nic.in
Jammu & Kashmir
Mr. P. K. Bhat, (KAS), Additional Commissioner, Tax Planning ,
Shri Aman Garg, Joint Commissioner
Jammu: Excise and Taxation Complex, Rail Head, Jammu. Kashmir: Excise and Taxation Complex, Ram Bagh, Srinagar
0191-2477303; aarjkgst@gmail.com 0194-2310875/ 2310135; aarjkgst@gmail.com
Jharkhand
Sh

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the Advance Ruling Authority (GST)8th floor, New Building, GST Bhavan, Mazgoan
Mumbai-10
022-23760746, advancerulinggst@mahavat.gov.in
Mizoram
Shri H.K. Lalhawngliana, Joint Commissioner
Commissioner of State Tax, New Secretariat Complex, Aizal,
Mizoram – 796001
0389-2336273 / 9436155443; mahawnga@gmail.com
Odisha
Shri Ananda Satapathy, Additional Commissioner
Shri Nilanjan Pan, Joint Commissioner
O/o the Chief Commissioner, GST & Central Excise, Central Revenue Building, GST Bhawan, Rajaswa Vishar, Near Vani Vihar, Bhubaneswar, Odisha -751007
943711721 ; 9830288794, asatpathy1960@gmail.com, & nilanjan_pan@yahoo.com
Rajasthan
Shri Sudhir Sharma, Joint
Commissioner
Shri Nitin Wapa, Joint Commissioner
Shri Sudhir Sharma, Joint Commissioner, Room No.313, II Floor, Kar Bhawan, Ambedkar Ciorcle, Jaipur; Shri Nitin Wapa, Joint Commissioner, Room No.229, NCR Building, State Circle, C-Scheme-
Jaipur.
Shri Sudhir Sharma 09414718908; 0141-2388835; ac-jaipur-spl7@rajasthan-gov.

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-Bhokta Bhawan, Pandit Nehru Complex, Gurkhabasti, Agartala, Tripura (West), Pin-799006
AAR State0381-2325534,
0381-2325554 (FAX)aartripura@gmail.comAAR Central9874418877l.beimopha@gov.in
Uttar Pradesh
Shri Sanjay Kumar Patahak, Joint Commissioner (Law) Commercial Tax, U.P. Lucknow
Shri Dinesh Kumar, Joint Commissioner, GST & Central Excise, Lucknow
Zone.
Commissioner Commercial Tax, U.P., 4, Vibhuti Khand, Gomti
Nagar, Lucknow.
7235001019 sanjay.111972@gov.in
9836952854
dineshcustom11@yahoo.com
Uttarakhand
Shri Vipin Chandra,, Addl.Commissioner,
Shri Amit Gupta, Joint Commissioner
1.State Tax Headquarter, Pulia No- 06, Ring Road, Nathanpur, Dehradun-248010. 2.Office of Commissioner, GST, E-Block, Nehru Colony, Dehradun-
248010
9837065275,fax-0135-2669935 8469378472.
Fax-0135-2668732 1. vipin1965dc@gmail.com 2.guptaamit.irs@gmail.com
West Bengal
Shri Parthasarathi Dey, Senior Joint Commissioner
Sri Vishwanath, Joint Commissioner
14, Beliaghata Road, Kolkata-
7000

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Appointment of Appellate Authority under GST for the State of Nagaland
CT/LEG/GST-AA/7/18/519 Dated:- 22-5-2018 Nagaland SGST
GST – States
GOVERNMENT OF NAGALAND
OFFICE OF THE COMMISSIONER OF STATE TAXES
NAGALAND: DIMAPUR
Dated Dimapur, the 22th May,2018
ORDER
NO. CT/LEG/GST-AA/7/18 : In exercise of the powers conferred by sub-section (2) of Section 4 of the Nagaland Goods and Services Tax Act, 2017 (4 of 2017), the Commissioner of State Taxes, Nagaland hereby appoints Shri. Y. Mha

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In Re : Zaver Shankarlal Bhanushali
GST
2018 (7) TMI 227 – AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – 2018 (14) G. S. T. L. 429 (A. A. R. – GST), [2019] 61 G S.T.R. 189 (AAR)
AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – AAR
Dated:- 22-5-2018
GST-ARA- 29/2017-18/B- 37
GST
B.V. Borhade Joint Commissioner of State Tax  and Pankaj Kumar Joint Commissioner of Central Tax
PROCEEDINGS
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by ZAVER SHANKARLAL BITANUSHALI. the applicant, seeking an advance ruling in respect of the following issues.
1. Is GST applicable on the compensation for alternate accommodation to be paid to me (the tenant of the old building) by the developer/owner?

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Village Mohili) admeasuring 4898.61 sq.mtrs. and C.T.S. No. 837 (S.NO. 5. H. No. 6 of Village Mohili) admeasuring 497.89 sq.mtrs. and the commercial building thereon.
I, Zaver Bhanushali, am a tenant of the second floor of commercial building mentioned above. The total Area of the said tenanted premises is 2600 sq. ft. carpet area with terrace.
M/s Future Communications Limited (the owner), have entered into an agreement with M/s Spenta Residency Private Limited, the Developers, to develop a new building in place of the old building and thereby they have entered into an agreement with me (tenant) for new premises to be allotted to me in lieu of giving up the possession of the old above mentioned premises. The Owners are to provide me with a permanent alternate accommodation, shops admeasuring 4200 sq. ft. carpet area in the new building to be constructed by the developers.
It has been agreed with the developers and the owners that, during the construction period. I am to make arrang

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ai In the case of M/s Sohana Dwellers Private Limited v .s Income Tax Officer 8(3)(1) (ITA No. 5963/Mum 2013) for A.Y. 2010-11. The same is also not liable to TDS u/s 1941 of the Income Tax Act. ”
On the basis of the above, the questions as reproduced above have been raised.
03. CONTENTION – AS PER THE CONCERNED OFFICER
The submission, as reproduced verbatim, could be seen thus-
“As per the brief facts given by the applicant, M/s Future Communications Ltd. owned a commercial building at C.T.S. No. 837 wherein Shri Zaver Bhanushali was a tenant. In other words, the applicant viz. Shri Zaver Bhanushali was recipient of renting of premises services from Mis Future Communications Ltd. However, as per the tri-party agreement between M/s Future Communications Limited (Owner of the land). M/s Spenta Residency Private Ltd (Developer) and Shri Zaver Bhanushali (tenant of the old building,), the applicant has to vacate the rented premises occupied by him for minimum of 2 years and maximum as

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high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel shall be levied with effect from such date as may be notified by the Government on the recommendations of the Council. (3) The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both. Scope of supply. Tax liability on composite and mixed supplies. Levy and collection. 14 THE GAZETTE OF INDIA EXTRA ORDINA RY [PART II- (4) The central tax in respect of the supply of taxable goods or services or both by a supplier, who is not registered, to a registered person shall be paid by such person on reverse charge basis as the recipient and all the pr

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be made for a consideration by a person in the course or furtherance of business: (b) import of services for a consideration whether or not in the course or furtherance of business: (c) the activities specified in Schedule I. made or agreed to be made without a consideration. and (d) the activities to be treated as supply of goods or supply of services as referred to in Schedule II.
Under Schedule-ll at sr. No. 5(e) it has been specified as under :
“agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act: and” will be treated as supply of services. In view of the above legal provisions, for levy of tax in GST regime: following requirements are to be fulfilled.
(i) There should be 'goods' or 'services' or 'goods & services'
(ii) There should be supply of goods, or services or goods & Services.
(iii) The supply should be in the course of furtherance of business'.
In the instant case, it is seen that the ap

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commodation, shop admeasuring 4200 sq. ft. provided to the applicant and the GST paid by the applicant on compensation would be available as input tax credit to the developer.
In view of the above this office is of the view that the applicant should take GST registration for compensation received and pay appropriate GST on the same, in respect of consideration received for alternate accommodation. ”
04. HEARING
The case was taken up for preliminary hearing on dt.27.03.2018 with respect to admission or rejection of the application when Sh. Harshit Kadhi, Chartered Accountant attended alongwith Mrs. Zaver Bhanushali, applicant and Sh. Shankarlal Bhanushali. They requested for admission of application as per their written submission.
During hearing, Sh. V. D. Gawade (Superintendent), Jurisdictional Officer stated that they have made written submissions and they do not have objection to admission of application. The applicant orally stated that they do not require final hearing in the

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ED (PAN AAMPS22I0H),a company registered under the Companies Act, 1956 and having it's registered office at Rajabahadur Mansion. 1st floor, 20, Ambalal Doshi Marg, Fort, Mumbai – 400023 hereinafter referred to as the 'DEVELOPERS' (which expression shall unless repugnant to the context or meaning thereof mean and include it's successors and assigns) of the Second Part represented by its Directors (1) SHRI FARSHID ASPAN COOPER (PAN : ADVPC59 76F) of Mumbai. Indian Inhabitant residing at 501, Aventa, 16A, Allamount Road. Mumbai – 400036 and (2) SHRI GAGANDEEP SINGH MANGAT, (PAN AA VPM7257L) of Mumbai, Indian Inhabitant residing at 1901, Spenta Towers. 55-57, Forjet Street, Mumbai – 400036., the present directors of the Company hereinafter referred to as the PARTIES OF THE SECOND PART (which expression shall unless repugnant to the context or meaning thereof mean and include their respective heirs, executors and administrators ) AND (1) SMT. ZAVER alias ZAVERBEN SHANKAR BHA

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for the consideration and upon the terms and conditions therein mentioned.
(e) The existing building standing on the plot of land bearing C. T.S. No.837 out of the said Property was constructed somewhere in the year 1970 and the same is consisting of ground and two upper floors having commercial premises. The Tenants are in use, occupation and possession of office premises admeasuring 2600 sq.ft, carpet area on the Second Floor with the terrace premises of the said Budding for use of water storage tanks and air conditioning systems (hereinafter referred to as the said old premises').
(f) The Tenants were the tenants of Aditya Textile Industries Private Limited in respect of the said old premises since the year 1994 at the rent of Rs. 5,000/- per month inclusive of all other maintenance, security and municipal property taxes. Upon execution of the above recited Conveyance dated 16th April, 2007 by the said Aditya Textile Industries Private Limited in favour of Future Communication

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elopment of the said Property.
(l) ……Finally the Owners and the Developers have agreed to provide to the Tenants the shops admeasuring 4200 sq. ft. carpet area in the new building free of cost on ownership basis as permanent alternate accommodation upon the terms and conditions agreed by and between the parties hereto which are now recorded in writing by executing this Agreement.
NOW THIS AGREEMENT WITNESSETH AND IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS UNDER –
2. The Tenants are in use, occupation and possession of the office premises being admeasuring 2600 sq. ft. carpet area (approx.) on the Second floor of the said Building standing on the portion of the said Property shown by…………….. colour wash/…………………….colour boundary line on the plan hereto annexed and marked Annexure : A (hereinafter referred to as the said Old Premises').
4. The floor height of the said old Premises on second floor is 14 feet. Under the said letter dated 10/07/201

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annexed hereto and marked as Annexure : B' and thereon shown surrounded by red colour boundary line (hereinafter referred to as 'said New Premises ').
8. The Owners hereby confirm that the Tenants have paid to the Owners the rent, taxes and other outgoings in respect of the said Old Premises upto date and now no further amount is due and payable by the Tenants to the Owners in respect of the said Old Premises for the period upto the date of this Agreement. The Tenant shall continue to pay to the Owners the rent in respect of the said Old Premises at the rate of Rs. 5000/- per month till the date on which the Owners and the Developers handover to the Tenants the possession of the said New Premises as provided in this Agreement. Upon obtaining the possession of the said New Premises from the Owners and the Developers the Tenants shall surrender their tenancy rights in respect of the said Old Premises.
14. The Owners and the Developers hereby specifically agree and confirm t

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building the Tenants shall make their own arrangement for temporary alternate accommodation and the Owners/the Developers shall pay to the Tenants the rent/compensation for the temporary alternate accommodation to be arranged by the Tenants at the rate of Rs. 2,05, 000/-(Rupees Two Lacs Five Thousand only) per month for the period of first 24 months. It is agreed and confirmed that on the execution of this Agreement within 15 days from the date hereof. The Tenant shall hand over quiet, vacant and peaceful possession of the old premises to the Owner and Developers and against the same the Tenant will be paid Rs. 48,00,000/-(Rupees Forty Eight Lacs Only) at a time by a single cheque for the said period of 24 months, the rent/compensation as mentioned above.
18. The Owners and the Developers hereby agree and confirm that the Developers shall complete the construction of the new building as per sanctioned plans within 24 months from the date of issuance off Commencement Certificate subje

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the said New Premises within 24 months then in that event at the end of the period of 24 months the Owners/the Developers shall give the post dated cheques to the Tenants towards the rent for the period front 25th month to 36th month at the rate provided hereinabove.
20. Subsequent to what is mentioned in Clause 19 above, the Owners and/or the Developers hereby confirm that in the event the Owners and/or the Developers are unable to handover the possession of the said New Premises to the Tenants within 36 months the Owners and the Developers shall be liable to pay to the Tenants Rs. 5,00,000/- (Rupees Five Lakhs only) per month as damages without prejudice to the Tenants ' other rights under the law and under this Agreement.
21. The Owners and the Developers hereby confirm that (i) the Developers shall provide to the said New Premises the amenities and specifications as specified in the Second Schedule hereunder written and (ii) the Developers at their own cost shall provide the

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n is about the receipt by the applicant, of certain sums towards –
a. Compensation for alternate accommodation for the period of first 24 months.
b. Compensation for alternate accommodation for the further period from 25th month to 36th month and damages for delayed handover of possession after the period of 36 months.
Section 9 of the GST Act says that there shall be levied a tax on supplies of goods or services or both. So we need to understand as to whether the aforesaid receipt of amounts would be for a supply made by the applicant. A 'supply' defined under Section 7 of the GST Act is as follows –
“7. (1) For the purposes of this Act. the expression “supply” includes –
(a) alt 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 in the course or furtherance of business;
(b) import of services for a consideration whether or not in the course or

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n 7] ACTIVITIES TO BE TREATED AS SUPPLY EVEN IF MADE WITHOUT CONSIDERA TION
1. Permanent transfer or disposal of business assets where input tax credit has been availed on such assets.
2. Supply of goods or services or both between related persons or between distinct persons as specified in section 25, when made in the course or furtherance of business: Provided that gifts not exceeding fifty thousand rupees in value in a financial year by an employer to an employee shall not be treated as supply of goods or services or both.
3. Supply of goods-
(a) by a principal to his agent where the agent undertakes to supply such goods on behalf of the principal; or
(b) by an agent to his principal where the agent undertakes to receive such goods on behalf of the principal.
4. Import of services by a taxable person from a related person or from any of his other establishments outside India, in the course or furtherance of business.
SCHEDULE II /See section 7/ ACTIVITIES TO BE TREATED AS SUP

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on carrying on the business so as no longer to form part of those assets, whether or not for a consideration, such transfer or disposal is a supply of goods by the person;
(b) where, by or under the direction of a person carrying on a business, goods held or used for the purposes of the business are put to any private use or are used, or made available to any person for use, for any purpose other than a purpose of the business, whether or not for a consideration, the usage or making available of such goods is a supply of services;
(c) where any person ceases to be a taxable person, any goods forming part of the assets of any business carried on by him shall be deemed to be supplied by him in the course or furtherance of his business immediately before he ceases to be a taxable person, unless
(i) the business is transferred as a going concern to another person; or
(ii) the business is carried on by a personal representative who is deemed to be a taxable person.
5. Supply of.service

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respective local body of the city or town or village or development or planning authority:
(2) the expression “construction” includes additions, alterations, replacements or remodelling of any existing civil structure:
(c) temporary transfer or permitting the use or enjoyment of any intellectual property right:
(d) development, design, programming, customisation, adaptation, upgradation, enhancement, implementation of information technology software:
(e) agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act; and
(f) transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration.
6. Composite supply
The following composite supplies shall be treated as a supply of services, namely:
(a) works contract as defined in clause (119) of section 2: and
(b) supply, by way of or as part of any service or in any other manner whatsoever, of goods, bei

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cally mentioned in the clause, if we look at Schedule I, as reproduced above, the 'supply' herein would be in the course or furtherance of business.
* 'Supply' as per clause (d) is the enumeration or categorization as given in Schedule II appended to the GST Act as to which activities should be treated as supply of 'goods' and which activities to be treated as supply of 'services'. The clause does not define 'supply' but classifies the supply into either 'supply of goods' or 'supply of services'. [Clause (e) of Schedule II defines “agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act” as a Supply of Services].
Further, Sub-section (2) of section 7 states that –
* certain, specified or notified activities shall be treated neither as a supply of goods nor a supply of services.
We also find that Sub-section (3) of section 7 states that-
* that certain activities would be not

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the possession of the said New Premises as provided in this Agreement.
2. However for vacating the said premises, During the period of construction of the new building the Tenants shall make their own arrangement for temporary alternate accommodation and the Owners/the Developers shall pay to the Tenants the rent/compensation for the temporary alternate accommodation to be arranged by the Tenants at the rate of Rs. 2,05, 000/- (Rupees Two Lacs Five Thousand only) per month for the period of first 24 months and against the same the Tenant will be paid Rs. 48,00,000/- (Rupees Forty Eight Lacs Only) at a time by a single cheque for the said period of 24 months, the rent/compensation as mentioned above.
3. Further, we also find the condition that in the event the Developers are unable to complete the construction of the new building within 24 months and handover the possession of the said New Premises to the Tenants with Occupation Certificate due to reasons beyond their control the Deve

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ossession of the said New Premises to the Tenants within 36 months the Owners and the Developers shall he liable to pay to the Tenants Rs. 5,00,000/- (Rupees Five Lakhs only) per month as damages without prejudice to the Tenants' other rights under the law and under this Agreement.
5. Thus we find that for vacating the said premises, the applicant has received/is to receive compensation from the developer as per details mentioned above.
6. It is also to be noted that for their premises in the old building, after redevelopment is complete the applicant is to receive newly constructed and redeveloped property as per the below mentioned clause of the agreement.
” The flour height of the said old Premises on second floor is 14 feet. Under the said letter dated 10/07/2011 the Owners and the Developers have agreed to provide to the Tenants the new premises admeasuring 3250 sq. ft. carpet area (consisting of 2600 sq. ft. area presently occupied by the Tenants and 650 sq. ft. area being

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oper implies that the applicant has agreed to do an act and such act, of vacating the premises, by the applicant, squarely falls under clause 5(e) of the Schedule II mentioned above and therefore the amounts received by the applicant for having agreed to do such an act, would attract tax liability.
Thus from the above referred terms of the agreement for redevelopment of the premises referred above we find that even during the period of redevelopment, the applicant remains a tenant of the owners of the old premises and continues to pay them due rent @ Rs. 5,000/- per month. However in lieu of they vacating the rented premises for redevelopment as per the agreement of redevelopment as referred above, the applicant is agreeing to the obligation to the obligation to refrain from an act or tolerating an act or situation of redevelopment in place of old premises and of not causing hindrance or creating obstacle in the same.
We observe herein that the receipt of amounts towards alternate ac

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n extent that, the said amounts are in the form of compensation paid to them, to do an act i.e. vacating the premises redevelopment as well as tolerating construction cum redevelopment work during the specified period of redevelopment as per their agreement referred above and also to tolerate an act i.e. the act of not having received the New Premises within 36 months from the developer.
06. In view of the extensive deliberations as held hereinabove, we pass an order as follows :
ORDER
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
NO.GST-ARA- 29/2017-18/B- 37
Mumbai, dt. 22/05/2018
For reasons as discussed in the body of the order, the questions are answered thus –
Q.1  Is GST applicable on the compensation for alternate accommodation to be paid to me (the tenant of the old building) by the developer/owner?
A.1  Answered in the affirmative. GST is applicable on the compensation for alternate ac

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M/s. Lakshmi Machine Works Ltd. Versus GST, CCE, Coimbatore
Central Excise
2018 (7) TMI 602 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 22-5-2018
E/42586 – 42587/2017 – 41557-41558/2018
Central Excise
P. DINESHA, Member (Judicial)
Shri A. R. Sreenivasan, Manager, for the appellant
Shri R. Subramaniyam, AC (AR) for the Respondent.
ORDER
The appellant is a holder of Central Excise Registration No. AAACL5244NXM003 for the manufacture of CNC Lathes, Machining Centre and their parts classified under Chapter Sub-heading Nos. 8457, 8458 and 8466 respectively of the schedule to the CETA, 1985. It is the case of the Revenue that during the course of audit of books of accounts of the appellants, the officers of the audit wherein noticed that in addition to its main activity of manufacture of dutiable goods, the appellant was also doing trading activity from its factory premises and it was found to be selling raw materials like furan resins, furring sheets, sepa

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ii) An amount of Rs. 7,49,449/- being the amount equivalent to the specified percentage of the value of clearances of exempted goods during the period from 2011-12 to 2014-15 should not be demanded from them under Rule 14 of CCR read with Section 11A(4)/11A(5) of CEA.
iii) the interest as applicable for the delayed payment of the amount mentioned in Sl.No. (ii) above should not be demanded from them under the provisions of Rule 14 of the CCR read with Rule 6 (3A) (e) of CCR and Section 11AA of CEA.
iv) A penalty under Rule 15(2) of CCR read with Section 11AC of CEA, should not be imposed on them for the said contravention.
2. The appellant filed its detailed reply vide its letter dated 16.04.2016 and it was in the case of the assessee, in nutshell, that they did not have a Trader licence or registration to involve in trading of goods and that they were involved in manufacturing activity alone. Further, they were clearing some inputs as spare parts to their customers and some of the

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uirements of law. It is no doubt true that the appellant did some trading activity but the same was to an extent of a mere 1%, that too which is supplied to its job workers for processing the products. During the course of hearing, he also relied on the orders of this Court in the case of Sister concern of the appellant, in the case of Lakshmi Ring Travellers (Cbe) Ltd. in Final Order No. 42443/2017 dated 27.10.2017, wherein on identical facts this Court has held as under:-
“5. It is brought out from the facts that the appellant has reversed the credit when the inputs are removed as such from the factory. The department has taken the view that such removal amounts to trading and has directed the appellant to expunge the credit to the extent of the value of inputs removed by them. In fact, such removal of inputs from one factory to the sister unit under the excise law by reversing the credit cannot be considered as a trading activity requiring the appellant to reverse the CENVAT credit

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Dura Line India Pvt. Ltd. Versus Commissioner of CGST & Customs Goa
Central Excise
2018 (7) TMI 767 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 22-5-2018
Appeal No. E/85637/18 – A/86806/2018
Central Excise
Mr. Sanjiv Srivastava, Member (Technical)
Ms. Anjali Hirawat, Advocate for appellant
Shri A.B. Kulgod, Asst. Commr (AR) for respondent
ORDER
Per: Sanjiv Srivastava
The issue in the appeal is in respect of admissibility of CENVAT credit availed in respect of services provided by the over-seas commission agent including the services of sales promotion by the appellant.
2. The matter was represented by Ms Anajali Hirawat, Advocate on behalf of the appellant and Shri A.B. Kulgod, Authorised Representative on behalf of Revenue.
3. Heard both sides and perused the records.
4. Relying on following decisions, learned Counsel argued that in respect of the same services provided by the overseas commission agents, CENVAT Credit have continuously been allowed

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(b) Essar Steel India Ltd. v. CCE & ST – 2016 (335) ELT 660 (Tri. – Ahmd)
(c) CCE ST v. Shivalik Rasayan Ltd. – 2016 -TIOL-3412- CESTAT-Del
(d) Beloorbayir Biotech Ltd. v. CCE – 2018 (5) TMI 24 – CESTAT Bangalore
(e) CCE v Shree Rathi Steel (Dakshin) Ltd – 2018 (5) TMI CESTAT New Delhi.
4.2 Lastly, on limitation, she submitted that since there was contradicting views on the issue, larger period of limitation should not be invoked in view of the decision of the Hon'ble Apex Court as follows:-
(a) Blue Star Ltd. v. Union of India – 2015 (322) ELT 820 (SC)
(b) Continental Foundation Jt. Venture v. CCE – 2007 (216) ELT 177 (SC).
5. On the contrary learned A.R. reiterated the finding of the Commissioner.
6. I have considered the matter along with the sample agreement with the commission agents. From the agreement produced by the appellant which has been made between M/s. MAZER-the foreign commission agents and the appellant clearly placed the responsibility to undertake activ

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otherwise agreed by both the parties.
(e) MASER will be responsible for (i) developing marketing plans to generate salesof products; (ii) identifying the key decision makers and contacts for the purchase of Products; (iii) aggressively promoting the sale of products and other business objectives of DURALINE; (iv) providing guidance to DURALINE concerning the customs and practices of public agencies and private business and liaison between DURALINE and such agencies and businesses; (v) occasionally providing translation, interpretation, administrative support and other similar services as requested, (vi) Jointly preparing tenders and compliance statements and other submission and compliances. As an independent contractor, MASER shall be responsible for the manner in which and the time during which the above-described services are performed; however, in so doing MASER agrees to use its best efforts to promote the sale of the said products.
(f) MASER represents and warrants to DURALI

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er form of communication received from any Governmental agency in regard to the activities contemplated herein under. MASER shall b liable for any representations that DURALINE has not specifically authorized in writing.
(i) MASER shall perform its business activities in compliance with all the State laws, rules and regulations concerning marketing and sale of DURALINE products while performing its duties pursuant to this agreement and shall not violate such laws, rules or regulations.
“6. Sales Target:
a. MASER shall endeavor to secure maximum sale for DURALINE in the said TERRITORY.
b. MASER will submit sector-wise regular market potential of the said TERRITORY on a quarterly basis as per the attached BBC format.
7. Payment:
On specific orders/requirement of MASER, DURALINE shall supply its products agreed by both parties. The payment for each shall be made by MASER as per the terms and conditions laid down in the relative Purchase Order for the procurement of the products.

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ote or sell any other similar product of any other company, which is directly competitive in nature to DURALINE, subject to the provisions in clause 4 c.
11. Confidentiality:
Except as expressly agreed to in writing by DURALINE, MASER shall not at any time or in any manner, directly or indirectly, use of disclose to any party and trade secrets of DURALINE. During the term hereof and, for a period of 1 year thereafter MASER will treat as proprietary the information belonging to DURALINE disclosed to MASER under this Agreement. MASER agrees that within 72 hours following effective date of termination or non-renewal hereof MASER will return to DURALINE all information and materials in its possession concerning the trade secrets, customer information and lists, proprietary information and research of DURALINE.
12. Termination: Non-Renewal:
a) All obligations arising out of the commitments made during the tenure of the Agreement shall be fulfilled by both parties even after the termina

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terminate this Agreement on sixty (60) days prior written notice to MASER.
I. If either party in its own judgment feels that the agreement with other party is either detrimental to or not beneficial to its business in Thailand or any other market.
II. If MASER fails to meet any of its annual revenue goals for the year; or
III. If MASER liquidates or discontinues its business or terminates the majority of its sales force in the Territory; or
IV. If DURALINE discontinues manufacturing/marketing of the Said Products. Under this provision MASER will be given as option of a last time buy.
V. If MASER starts its own manufacturing of the said products.
13. Jurisdiction:
In the event of any dispute or difference or any other incidental matter relating to this agreement the courts of competent jurisdiction in India only to the exclusion of all other courts shall have jurisdiction and would be competent to adjudicate all the matters arising out of, related to and/or connected with this

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usa to india
Query (Issue) Started By: – kalathur narasimhan Dated:- 21-5-2018 Last Reply Date:- 22-5-2018 Goods and Services Tax – GST
Got 2 Replies
GST
When I ship commercial goods form USA to Indian Firm do I need to register for GST
Reply By Alkesh Jani:
The Reply:
Sir,
In terms of Section 7(2) of IGST Act, 2017, which reads as follows:-
“(2) Supply of goods imported into the territory of India, till they cross the customs frontiers of India, shall be treated to be a supply

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Manufacturing export and merchant export
Query (Issue) Started By: – Abhay Inamdar Dated:- 21-5-2018 Last Reply Date:- 22-5-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Pls guide whether a manufacturing exporter can do MERCHANT EXPORT with same GSTIN.
Reply By Alkesh Jani:
The Reply:
Sir,
The GST regime is supply based, export is considered as zero-rated supply. As a manufacturing exporter, a person receives input(s) in order to make finished goods. For example, ingredients a, b and c are received and final product X is made out of it and same is exported. On other than a person receives product X and exports it. Every person can export the goods and/or services. In GST even unregistered person can export goods and/o

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Employee Transfer to Related Party company – Gratuity
Query (Issue) Started By: – SARAVANAN RENGACHARY Dated:- 21-5-2018 Last Reply Date:- 22-5-2018 Goods and Services Tax – GST
Got 5 Replies
GST
Dear Experts,
Two companies are related. i.e. ABC Private Limited and XYZ Private Limited.
An employee of the company (ABC) is permanently transferred to another company (XYZ). Subsequently, accrued Gratuity liability of the employee is also transferred from ABC to XYZ. Money is transferr

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GST Council asks Centre, states to quickly set up appellate authorities
GST
Dated:- 21-5-2018

New Delhi, May 20 (PTI) The GST Council has asked the Centre and states to expedite setting up of appellate authorities for aggrieved entities to appeal against orders of the Authority for Advance Rulings (AAR).
With AARs in different states started giving rulings since March, it has become imperative for the Centre as well as states to set up the Appellate Authority for Advance Ruling (AAAR), an official said.
"The Secretariat of the GST Council has shot off letters to the states as well as the Central Board of Indirect Taxes and Customs (CBIC) to nominate members to the AAAR on an urgent basis so that they can start functioni

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tates are required to set up at least one AAR for seeking advance ruling over GST levy and one appellate authority to hear appeals against the AAR order.
According to experts, the business entities, which are aggrieved by the decision of AAR, currently do not have any remedy in the absence of an appellate authority.
Deloitte Haskins & Sells LLP Partner (Indirect Tax) M S Mani said businesses will not be able to file appeals against advance rulings unless the appellate authority is set up in every state.
"The recent increase in AAR decisions needs to be matched by a quick constitution of the appellate authority in all states. The constitution of the AAAR should also be on the lines of the CESTAT (Customs, Excise and Service Tax Appel

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GIST OF RECENT PRONOUNCEMENTS ON GST (PART-XI)
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 21-5-2018

Goods and Services Tax (GST), introduced from July 1, 2017 is more than ten months old now but has resulted in operational and implementation disruptions affecting all stakeholders. GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council his however, making regular changes to fix the anomalies and hardships faced by taxpayers.
Taxpayers have already started challenging various provisions of GST laws and rules framed thereunder with more than 180 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. This has also been indicated in Circular No. 39 dated 03.04.2018 wherein it is has been hinted in relation to resolution of struc

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inistrative charges as well as GST on same activity.
Molasses is an important raw material for chemical industries and industrial alcohol. Administrative charges were claimed to be in the nature of tax. Since both charges / tax shall tantamount to double taxation, petitioners filed this writ who were willing to pay GST. Further, in view of fact that a similar matter is pending before Apex Court in relation to trade tax vis-à-vis administrative charges, court granted interim stay from collection of administrative charges till final decision in the matter subject to the petitioners paying GST.
It was also directed that separate accounts be maintained for sale / supply / purchase of molasses till final disposal.
* In Tara Chand Saluja v. Union of India 2018 (5) TMI 275 – DELHI HIGH COURT ; where the assessee could not file TRAN-1 / TRAN-2 forms in due time due to technical errors in the GSTN system. On a question for claiming input tax credit when it could not be availed due to

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Indirect Taxes and Customs.
* In L.G. Electronic India Pvt. Ltd. v. State of UP 2018 (3) TMI 1318 – ALLAHABAD HIGH COURT , where the competent authority had caused inspection of goods in movement and seized goods alongwith the vehicle for want of e-way bill. The court directed that the seized goods of the assessee as well as vehicle be released by the authorities forthwith on the assessee's furnishing security other than cash and bank guarantee of the proposed tax and penalty and indemnity bond of the value of the seized goods. The revenue was allowed to file counter affidavit within a month after which petitioner could file the rejoinder.
* In Level 10 Retail Venture v. State Tax Officer 2018 (4) TMI 346 (Kerala); where the state tax officer had detained the textile goods under transport as well as the vehicle on the plea that the goods were not accompanied by the valid documents as contemplated under the CGST Act and SGST Act and Rules. He also insisted the assessee to pay the a

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ner submitted that as admittedly the seized goods were in transit for outside the state the transaction would be covered by the Integrated Goods and Services Tax Act, 2017 (IGST) read with Central GST and that the provisions of the UPGST or its Rulesor the notifications issued therein would not apply.
Rule 138 of the Rules framed under the Central GST provides that till such time e-way bill system is developed and approved by the Council, the Government by notification may specify the documents which are to be carried with the consignment of goods. In exercise of the said power a notification has been issued which provides for the carrying of e-way bill with the goods in transit but the same is applicable has been enforced w.e.f. 01.02.2018. Court observed that the soled ground of seizure of goods is non-production of e-way bill whereas there is no dispute with regard to issuance of invoice and charge of tax by the petitioner.
It was held that there was no error on the part of petiti

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M/s Golden Tobacco Ltd., M/s Chinar Cigarettes (P) Ltd. Versus CGST, Delhi
Central Excise
2018 (5) TMI 1300 – CESTAT NEW DELHI – 2019 (370) E.L.T. 1036 (Tri. – Del.)
CESTAT NEW DELHI – AT
Dated:- 21-5-2018
Excise Appeal Nos. 3396, 3935 & 3965 of 2010 – Final Order No. 51920-51922/2018
Central Excise
Satish Chandra, President And Bijay Kumar, Member ( Technical )
For the Petitioner : Sh. V.K. Bindal, CA
For the Respondent : Sh. R. K. Mishra, DR
ORDER
Per Bijay Kumar
All the present appeals are filed by the assessee-Appellants against the Order-in-Appeal No. 16-21/CE/PKJ/CCE/ADJ/2010 dated 09.07.2010 passed by the Commissioner (Appeals) Central Excise, Delhi.
2. This is the second round of litigation before the Tribunal. Earlier the Tribunal vide Final Order dated 10.04.2002 had remanded the matter to the original authority for deciding the issue afresh. In compliance with the directions, the impugned order has been passed where duty has been demanded and penal

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However, on verification of the said records, it was found that there were duplicate invoices and somewhere duplicate entries were also made in the books. In some cases, for the invoices bearing same serial number, the bill amounts were different. In the case of two invoices of the identical serial number, first original invoice was supported by the original gate pass and the other original invoice of the identical serial number was supported by the photocopy of the same Central Excise gate pass and both these invoices were discounted by the franchise units from their respective banks.
5. According to the assessee-Appellants, this exercise was done intentionally to obtain the bank loans from the different banks. But the Department has refused the plea and demanded the duty on all duplicate bills also and entries made. The Department has also imposed penalties. Being aggrieved, the assessee-Appellants have filed the present appeals.
6. With this background, we have heard Shri V.K. Bin

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he cigarettes factories, no irregularity was noticed pertaining to the assessee-Appellants even on their surprise visits.
8. It is the submission of the learned Chartered Accountant that some additional evidence came to the notice of the Department in the searches conducted in the year 1995 subsequent to the issuance of the show cause notice in the instant case. The original search was conducted in the year 1993. The adjudicating authority has accepted the additional evidence holding that the allegation of unaccounted receipt of material and clandestine removal of cigarettes were already levelled against the noticees in the show cause notices and no new allegations are sought to be added by additional evidences nor any additional liability is demanded. It is the further submission of the learned Chartered Accountant that the records seized from the premises of the assessee-Appellants or its franchise units did not show iota of evidence to prove clandestine removal of the cigarettes. N

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GTC as a financing arrangement, which, on the due date i.e. three months from the date of discounting were paid by GTC to the discounting bank of the franchisee units by honouring its Hundis of the accommodation bills. Thus, in this manner, three months were availed by GTC from the banks of the franchisee units on the basis of its Hundis/accommodation bills/bills of exchanges etc. without giving any guarantee or assets as security to the banks of the franchisee units.
9. The learned Chartered Accountant further submits that the assessee-Appellants and franchisee units were, during the period under dispute i.e. February, 1989 to March, 1992, under the strict physical control and supervision of the Excise Officer who supervised the manufacturing activities very closely. For this purpose, records were maintained by the Excise Officers posted there in the diary XT-1 for movement of the goods. The Departmental Officers having been constantly present and closely supervising all the activit

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v) Leather Chemicals & Industries Ltd., Calcutta vs CCE, Calcutta, 1984 (15) ELT 451 (T);
(vi) Kale Khan Mohd. Hanif vs CCE, Nagpur, 2001 (132) ELT 374 (T-Mum);
(vii) Norton Intec Rubbers (P) Ltd. vs CCE, Madras, 2004 (164) ELT 5 (Mad); and
(viii) New Tobacco Ltd. vs CCE, Visakhapatnam-II, 2007 (208) ELT 257 (T-Bang.).
11. The learned Chartered Accountant further submits that no action of any nature whatsoever has been taken against the Excise Officers in all the cigarettes supplying manufacturing units located all over the country, so allegation of clandestine removal cannot be sustained. He also submits that duplicate bills were merely an accommodation bills and there was no actual physical movement of the goods. All the transactions were duly recorded in the books of accounts of both the parties. He also informed that ITAT has deleted the additions made on this ground under the Income Tax Act for the assessment year 1992-93, so similar treatment may be given in the present ca

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s not physically dealt with the goods liable for confiscation. For the purpose, he relied upon the following case laws :
(i) Rakesh Kumar Garg vs CCE, 2016 (331) ELT 321 (Del-HC);
(ii) CCE vs Bansal Steel Corporation & Ors. (HC-Mum), dated 12.09.2017 www. taxscan.in
(iii) MEK Slotted Angles (I) Ltd. vs CCE, Belapur, (2009) 247 ELT 364 (Mumbai-CESTAT);
(iv) Broadway Textiles Ltd. vs CCE, Kanpur, (1999) taxmann.com 385 (CESTAT-New Delhi); and
(v) Sujana Metal Products Ltd., 2016 (335) ELT 218 (Madras)
13. Lastly, he made a request that the impugned order may kindly be set aside.
14. On the other hand, the learned DR for the Department, heavily relied upon the impugned order as also the show cause notice. It is his submission that the goods were discounted by the Bank only when the receipt of the goods were duly acknowledged by the GTC on the duplicate bills. This shows that there was actual movement of goods on duplicate bills without payment of excise duty. According to the

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ce of the show cause notice and is contrary to the evidence of the officers of the Bank who were concerned with discounting of bills. It is also seen that the statements of the Bank Officers that they were not concerned with physical verification of movement of goods have been mis-interpreted by the noticees to give the impression that discounting could be done without the movement of goods in spite of endorsement on the documents by GTC of receipt of cigarettes. During the course of arguments, the learned DR read out para 97 of the impugned order wherein it is stated that manufacture of cigarettes is subject to physical control and the Department has also prescribed a detailed Cigarette Manual which regulates every activity in connection with the manufacture of cigarettes. It was also contended that demands on the basis of clandestine removal cannot be made and established in cases where there is physical control except through unimpeachable evidence of clandestine clearance. Accordin

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ture of cigarettes is subject to physical control and the Department has also prescribed a detailed Cigarette Manual which regulates every activity in connection with the manufacture of cigarettes. It was also contended that demands on the basis of clandestine removal cannot be made and established in cases where there is physical control except through unimpeachable evidence of clandestine clearance without knowledge of the departmental officers and in violation of the guidelines issued.
18. As per the ratio laid down by the Hon'ble Supreme Court in the case of Audh Sugar Mills, 1978 (2) ELT J172, it was held that in the case of physical control units, cannot be held that there was suppression of facts and the assessee clandestinely manufactured and removed the goods so as to invoke the extended period of limitation.
19. Undoubtedly, in the instant case, during the period February, 1989 to March, 1992, all the franchisee units were under the strict physical control and supervision o

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e duty is paid thereupon and original excise gate pass, is self-supporting evidence for despatch of the goods. The buyer acknowledges the receipt of the goods on the bill confirming that the goods have been received. But in case of duplicate/accommodation bills, the goods were not received but only for the purpose of discounting, the receipt is acknowledge with no corresponding evidence of actual movement of the goods. These documents in original along with a Hundi accepted by buyer and were presented to their bank by the franchisee units for bill discounting. The amount of the bill after deducting charges and interest for the period of bill (normal 90 days) is credited in the bank account of the franchisee units at the time of discounting the bill by the bank. The same is paid by the buyer on the due date of bill. In this manner, the buyer avails a credit facility of 90 days to make the payment of his purchases whereas the seller gets the sale proceeds immediately on presentation of t

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ed on the basis of physical verification of goods, but the bank would go by the document representing the title of the goods. Another bank official, Mr. Venkatraman Iyer, in cross-examination has stated that the bank was dealing in the documents of title of the goods and physical movement of the goods was not within their purview. Similarly, Mr. Pramod Kumar, another official of the Bank, also confirmed during cross-examination that the banks were not physically verifying the transactions and that bill discounting may have been done on the basis of Xerox copies of the invoices.
23. From the record it appears that, all the transactions of the bill discounting were duly recorded in the books of account of both the parties.
24. In view of the above, we are of the opinion that the assessee-Appellants has committed a fraud with the Banks by raising the duplicate bills. For this financial irregularity, Department will be at liberty to initiate appropriate proceedings under the relevant law

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Andaman and Nicobar Islands – E-way bill comes into effect w.e.f. 25-5-2018 – Central Government, rescinds the notification number G.S.R. 315(E), dated the 31st March, 2018
10/2018 Dated:- 21-5-2018 Union Territory GST (UTGST)
GST
UTGST
UTGST
MINISTRY OF FINANCE
(Department of Revenue)
NOTIFICATION No. 10/2018-Union Territory Tax
New Delhi, the 21st May, 2018
G.S.R. 470(E).-In exercise of the powers conferred under sub-section (1) of section 22 of the Union Territory Goods and

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Lakshadweep – E-way bill comes into effect w.e.f. 25-5-2018 – Central Government, rescinds the notification number G.S.R. 319(E), dated the 31st March, 2018
11/2018 Dated:- 21-5-2018 Union Territory GST (UTGST)
GST
UTGST
UTGST
MINISTRY OF FINANCE
(Department of Revenue)
NOTIFICATION No. 11/2018-Union Territory Tax
New Delhi, the 21st May, 2018
G.S.R. 471(E).-In exercise of the powers conferred under sub-section (1) of section 22 of the Union Territory Goods and Services Tax Ac

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