Author: admin_gst

IN RE: CMI FPE LIMITED
GST
2018 (9) TMI 234 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – 2018 (16) G. S. T. L. 311 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – AAR
Dated:- 19-5-2018
GST-ARA-25/2017-18/B-34
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 CMI FPE LIMITED, the applicant, seeking an advance ruling in respect of the following question:
Eligibility of Input Tax Credit
At the outset, we would like to make it clear that the provisions of both the CCST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar prov

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licy, 25%, 50% and 100% provision will be made for materials not moved 2 year, 3 year and 4 year respectively.
As per 3 (5B) of cenvat credit rules, 2004 we reverse the cenvat credit when the provision for write off inventory value is made in our books of accounts. As per above said rules re-credit can be taken only when such goods are subsequently used. From October-2014 to 30/06/2017 we have debited total amount Rs. 52,65,551/- Out of Rs. 52,65,551/- we availed re-credit for Rs. 29,83,759/- and (for material subsequently in production) balance credit to be availed is Rs. 22,81,792/-.
As on 30/06/2017 we have the total debit balance of Rs. 22,81,792/- In post GST there are no specific provisions available either in the GST Act/GST rules, for taking back such credit.
Statement containing the applicant's interpretation of law in respect of the aforesaid questions- We refer to Sub-rule (5B) of Rule 3 of the CCR states that if the value of any: (i) input, or (ii) capital goods before b

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Section 95 of the Finance Act, 2004 with effect from 10.9.2004. The Cenvat Credit Rules, 2004 also notified from the same date, vide Rule 3(1) provided that the manufacturer or provider of taxable (output) service shall be allowed to take credit, inter alia, of the Education Cess.
Secondary and Higher Education Cess (SHE Cess) was levied on excisable goods and taxable services with effect from 12.5.2007 under Section 136, read with Sections 138 & 140 respectively of the Finance Act, 2007. Correspondingly, the Cenvat Credit Rules, 2004 were amended for allowing credit of the SHE Cess.
Through Rule 3(7)(b) of the Cenvat Credit Rules, 2004, read with provisos thereunder it was mandated that credit of education cess on excisable goods and taxable services can be utilised for payment of education cess on excisable goods or taxable services. Similarly, utilisation of credit of SHE Cess was allowed only for payment of SHE Cess on excisable goods and taxable services.
Section 95 of the Fin

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itate a smooth transition to levy of tax on services by both the Centre and the States, it is proposed to increase the present rate of Service Tax plus education cesses from 12.36% ton consolidated rate of 14%'.(para 121)
Thus, it was generally expected by the trade and industry that as the Education Cesses have been subsumed as part of Excise Duty or Service Tax, the existing balance of the cesses would be allowed to be utilised for payment of Excise duty or Service Tax. However, no amendments were made to Rule 3(7)(b) of the Cenvat Credit Rules, 2004 to this effect.
However Notification No.12/2015-CE(NT) amended second proviso to Rule 3(7)(b) for allowing utilisation of EC paid on inputs and capital goods received on or before 01.03.2015 by a manufacturer towards payment of excise duty Credit of balance fifty percent of EC on capital goods received by a manufacturer during the previous FY for payment of excise duty;
Credit of EC paid on input services received by the manufacturer

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present discussion is that all through the above process, till the introduction of GST, there was no change in Rule 3(1) and it continued to provide that 'a manufacturer or producer of final products or a provider of output service shall be allowed to take credit (hereinafter referred to as the CENVAT Credit) of:
The education cess on excisable goods leviable under section 91, read with section 93 of the Finance Act, 2004. The Secondary and Higher education cess on excisable goods leviable under section 136, read with Section 138 of the Finance Act, 2007,
The cess on taxable service leviable under section 91, read with section 95 of the Finance Act, 2004 the Secondary and Higher education cess on taxable services leviable under Section 136, read with Section 140 of the Finance Act, 2007; paid on any input or capital goods or input service received by the manufacturer of final products or provider of output service paid on any input or capital goods or input service received by the m

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y laid down the above principle in the following words:
'17. It is clear from these Rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgement thereof. It is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. There is no provision in the Rules which provides for a reversal of the credit by the excise authorities except where it has been illegally or irregularly taken, in which event it stands cancelled or, of utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible.'
The principle flowi

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the strength of the rules available certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily it follows that right, which had accrued to a party such as availability of a scheme, is affected and, in particular, it loses sight of the fact that provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier scheme necessarily the taxes have to be adjusted and payment made complete. Any m

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ing advance ruling on the issues detailed at column number 14 of the Application field, in form of questions framed as under 1-3 as in note sheet.
1. The admissibility of input tax Credit pertaining to chapter V of the CGST Act, 2017 from Section 16 to 21 is a different subject matter than the Transitional Provisions under chapter XX Section 139 to 142.
2. The Authority of Advance Ruling can pronounce it advance ruling only to the subject matter and questions entrusted under Section 97(2)(a) to Section 97(2)(g) and not any other subject matter or questions.
3. Since question or subject matters under Transitional Provision of Chapter XX are not covered in the said list of questions under Section 97(2), the Authority of Advance Ruling has no jurisdiction over the instant subject questions related to Transitional Provisions of Chapter XX and, hence, it will not be appropriate that the 'Authority of Advance Ruling' pronounce any Advance Ruling regarding any such questions which is out o

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ion of eligible duties in Section 140 cannot be availed. This fact has been explained by the party in their application itself. So, no further comments are warranted.
The above submissions are made only as preliminary submissions about the admissibility of the application and detailed submissions would be filed as a later stage. From the discussion as made above taxes leviable in the pre GST regime are now not finding any entry under the existing GST Act, 2017 hence, Input Tax Credit is not applicable in any case. In any case, this application is out of jurisdiction. Hence, it is prayed that the application may be rejected at this stage only.
04. HEARING
The case was taken up for preliminary hearing on 20.03.2018. Sh. S Ramaiya, Asstt. Chief Manager appeared and made an oral request as well as written submission stating that their Consultant is not available and therefore an adjournment be granted in the matter. Jurisdictional Officer Sh. Anil Kumar, Superintendent, Division – X, Ra

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or the same. The request was considered and granted.
05. OBSERVATIONS
We have gone through the facts of the case. There are two issues before us which are required to be decided. The primary issue raised by the applicant is regarding availment, under the GST laws, of input tax credit (ITC) for excise duty paid under Rule 3(5B) of the Cenvat Credit Rules, 2004 (CCR) and the second issue   is whether they are eligible to avail ITC against unutilized cenvat credit such as Education Cess (EC), Secondary & Higher Education Cess (SHEC) and Krishi Kalyan Cess (KKC) lying in their books of accounts.
We find that in respect of their first question raised in the application, they at the time of hearing on 04.04.2018 have stated and accepted that this question is not covered within the scope of Section 97 of the CGST Act, 2017 and therefore they withdraw this question and the same may not be answered by the authority. In view of this, as their question is not covered within the scope of S

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, in the case of taxable services and w.e.f. 01.03.2015 in the case of excisable goods. Later on Notification No. 12/2015-CE (NT) dated 30.04.2015 was issued and the said Notification allowed manufacturers to utilize the Cenvat credit on CESS towards payment of basic excise duty in certain situations. The amendment was made applicable only to CESS paid on inputs, capital goods and input services received in the factory of the manufacturer on or after 01-03-2015. The Budget provisions in 2015 made no express provision as regards to the lapse of balance of credit available with the manufacturers or the provision of its utilisation in future or its refund.
Similarly, Secondary and Higher Education Cess (SHEC) was levied by the Finance Act, 2007 and the CCR vide Rule 3(1) notified that the manufacturer or provider of taxable (output) service shall be allowed to take credit of SHEC. The CCR also mandated that such credit of SHEC could be utilized only for payment of SHEC on excisable goods

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the unutilized amount of EC or SHE credit, which was available and had not been set off as on 1st March 2015 and 1st June 2015 for payment of tax on excisable goods and taxable services respectively. The contention was that EC and SHE were subsumed in the Central Excise Duty, the general rate of which was increased from 12% to 12.5%, and service tax, which was increased from 12.36% to 14%. Reliance was placed upon the Budget Speech of the Finance Minister and the memorandum explaining provisions of Finance Bill, 2015. Reference was also made to the TRU letter F.No.334/5/2015-TRU dated 28th February 2015. The court has held that Manufacturers and Service providers are entitled to wail and utilize EC and SHEC against the liability of EC and SHEC before the cut-off dates i.e, 01st March 2015 in case of Goods and 01st June 2015 in case of Services, as the EC and SHEC was ceased to be applicable after the said dates. The provisos added to Rule 3, sub-rule (7) in clause (b) allowing utilizat

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lso whether they are eligible to avail ITC against unutilized cenvat credit of Krishi Kalyan Cess (KKC) lying in their books of accounts. This authority has answered this question in the negative in the Advance Ruling order passed in the case of M/s. Kansai Nerolac Paints Limited (KNPL). In the case of KNPL, the query was similar i.e. whether accumulated credit by way of KKC would be considered as ITC under GST laws. The reasons on the basis of which the said ruling has been passed would also be applicable to the subject matter at hand.
We find that express provisions have been made in the Cenvat Credit Rules from time to time that credit availed in respect of EC, SHEC and KKC can be used for making tax/duty payments only against ECT SHEC and KKC, respectively. The CCR has also expressly provided that items in respect of which CENVAT credit is available, would not be utilized for payment of EC SHEC and KKC. Thus, there was a clear demarcation of the credit in respect of EC, SHEC and K

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or carry forward of Tax or duty credit under any existing law or on goods held in stock on the appointed day. Sub-rule 1 of Rule 117, reads as under:
Every registered person entitled to take credit of input tax under section 140 shall, within ninety days of the appointed day, submit a declaration electronically in FORM GST TRAN-1, duly signed, on the common portal specifying therein, separately, the amount of “eligible duties and taxes as defined in explanation to section 140” to which he is entitled under the provisions of the said section:
The said rule provides for carry forward of only eligible duties and taxes as defined in the explanation to section 140. Eligible duty has been defined in the explanation to section 140 with reference to sub sections i.e. 140 (3,4,5&6). The definition of eligible taxes does not include the EC SHEC and KKC. The usage of word “eligible duties and taxes” in the latter part of the Rule has confined the scope of carry forward of credit by excluding th

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me to notice where credit of VAT and PLA balance has been availed as transitional credit. This is not allowed in law”.
Further in an FAQ issued by the government on the said issue, in response to the question:
“Whether closing balance of education cess and secondary higher education cess prior to 1st Mar 2015 can be carried forward in GST?” has been answered as follows:-
“No it will not be carried forward in GST as it is not covered by definition of “eligible duties and taxes under Section 140 of the CGST Act”
06. In view of the deliberations as held hereinabove, we pass the 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. GST-ARA-25/2017-18/B-34
Mumbai, dt. 19.05.2018
For reasons as discussed in the body of the order, the question is answered thus-
Q1. How to avail input tax credit for excise duty paid under Rule 3(5B) of the Cenvat Credit Rules?
Ans. Not answered as this quest

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IN RE: JOTUN INDIA PRIVATE LIMITED
GST
2018 (9) TMI 1105 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (17) G. S. T. L. 659 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 19-5-2018
GST-ARA-29/2017-18/B-35
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 JOTUN INDIA PRIVATE LIMITED, the applicant, seeking an advance ruling in respect of the following issues.
1. Whether marine paints supplied by the applicant, would be considered to be part of ship and accordingly be then classified under SI no 252 of Schedule I of Notification No 1/2017 of Central Tax (Rates) dated June 28, 2017?
A

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rized in Solvent based paints and Water based paints. One of the major supplies by Applicant are marine paints, Composition of such marine paint being manufactured by Applicant makes it suitable for ships during building stage and even during maintenance. Details of such products along with its description are enclosed as Annexure 4
* In the erstwhile Indirect Tax regime, Applicant has been discharging applicable Indirect taxes on supply of such paints and availing exemptions when granted under respective legislation. Since July 2017, new Indirect Tax regime – Goods and Service Tax (GST) has been introduced in India by way of introduction of following legislation:
* Central Goods and Service Tax Act, 2017 (CGST)
* State wise Goods and Service Tax Legislation (SGST)
* Integrated Goods and Service Tax Act, 2017 (IGST)
* With the introduction of GST, Applicant has analysed classification and applicability of CGST, SGST and IGST in light of new legislation. For classificatio

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ing 8907 i.e. part of ships. Since, marine paints supplied by Applicant are suitable for use by ships, Applicant wishes to understand Whether the said marine paints could get classifiable under Schedule I.
Accordingly, Applicant is making detailed submission herein below to demonstrate eligibility of marine paint to be classified under Schedule I and requests a ruling be pronounced in this regard.
A. Marine paints to qualify as part Ship in order to get covered under Schedule I of IGST Rate Notification liable to 5%
A1. In order to deliberate on the question being sought, it is pertinent to analyse the classification of marine paints supplied by Applicant in detail. Technical features of marine paints are relevant for such analysis.
A2. Accordingly, Applicant submits that marine paint is a specific type of paints suitable for use principally for ships during building stage and even during maintenance. The sailing ship needs protection from corrosive environment in which they op

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id notification, it has been specified that section notes, chapter notes and General explanatory notes mentioned under Customs Tariff Act, 1975 shall apply to the goods classified therein under GST.
* Since the notification refers to the classification of goods under The Customs Tariff Act, 1975, we have to refer to classification adopted therein.
CLASSIFICATION UNDER CUSTOMS TARIFF ACT
* As regards classification of the marine paints under Customs Tariff Act, it would be pertinent to refer to extract of description of goods falling under Customs Heading 3208:
Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers or chemically modified natural polymers dispersed or dissolved in a non-aqueous medium; solutions as defined in Note 4 to this Chapter
* Thus based on the technical specification of the product, marine paints appear to be classifiable under heading 3208. Since, marine paint is suitable for use for S

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Schedule II
12%
3
Schedule III
18%
4
Schedule IV
28%
5
Schedule V
3%
6
Schedule VI
0.25%
A4. As IGST Rate Notification directs to adopt classification in terms of Customs Tariff Act, 1975, Applicant has adopted classification of paints under heading 3208 to determine applicable rate. Entry number 20 of Schedule IV of IGST Rate Notification reads as under:
Sr.No.
Chapter/Heading/ Sub-heading/ Tariff item
Description of Goods
20.
3208
Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers, dispersed or dissolved in a non-aqueous medium; solutions as defined in Note 4 to this Chapter
However, marine paints are suitable for principally use of ships and hence, it is also pertinent to analyse Entry 252 to Schedule I of Notification No 1/2017 Integrated Tax (Rates) dated June 28, 2017 liable to 5% IGST:
Sr.No.
Chapter/Heading/ Sub-heading/ Tariff item
Description of Goods
252.
Any Chapter
Parts of

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along with its parts (covered under entry 252) would be taxed at the rate of 5%.
A5. Applicant wishes to draw your kind attention to the fact that Entry 252 reproduced above is applicable to goods falling under any chapter but which are parts of goods falling under headings 8901, 8902, 8904, 8905, 8906 and 8907. Accordingly, a product which is classifiable under any chapter, if could be construed as part of these prescribed goods then the same would fall within the purview of entry 252 and hence would be liable to 5% IGST.
A6. Similar view Was adopted by the Hon'ble Court in the case of Mahindra & Mahindra Ltd. vs Commissioner of C. Ex., Nagpur [2007 (210) E.L.T. 579 (Tri. – Mumbai)],= 2006 (12) TMI 289 – CESTAT, MUMBAI wherein it was held that we also note that the recent Circular No. 839/16/06-CX dated 16-11-2006 issued by the Board has clarified that inasmuch as Notification No. 6/2002 exempts parts, falling under any Chapter used within factory of production for manufactur

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of the term 'parts of goods', could then be adopted from its meaning in common parlance. Consequently, we have referred to the definition of the term 'Part', legal jurisprudence on the term 'Parts / Components' under erstwhile Indirect Tax regime, the Merchant Shipping Act, 1958 and UK VAT Guidelines.
B.2 Meaning of 'PART'
* The term 'Part' as defined under The Black's Law Dictionary 'an integral portion, something essentially belonging to a larger whole, that which together with another or others makes up a whole.'
* Definition of 'Part' from Thesaurus 'an essential or integral attribute or quality'
* The meaning of the term 'part' in common parlance is that component part of an article is an integral part necessary to the constitution of the whole article and without it, the article will not be complete'.
B3. From the above, it could be understood that anything which is an integral element and is

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usive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976) or any other law for the time being in force.
Section 356Q(a) MS Act – Definition 'anti-fouling system'
“anti-fouling system” means a coating, paint, surface treatment, surface, or device that is used on a ship to control or prevent attachment of unwanted organisms
* Section 356R of MS Act – Control of Anti-fouling system
1. Every Indian ship and other ships which are not entitled to fly Indian flag but operating under the authority of India, shall comply with the requirements set forth in this Part, including the applicable standards and requirements as prescribed front time to time as well as effective measures to ensure that such ships comply with the requirements, as may be prescribed from time to time.
2. All other vessels to which this Part applies shall comply with requirements of the anti-fouling systems as prescribed from time to time.
* Section 356X of MS Act – Information regarding contraven

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des, and deck but not the masts, superstructure, rigging, engines, and other fittings
B5. Furthermore, if any Indian ship fails to comply with the provisions of this chapter, the Director – General or any officer authorised by him in his behalf can detain the ship until the causes of such contravention are removed or levy a penalty on such ship. Consequently, it could be construed that ships must have a layer of coating or paint on its hull, thereby making it very essential for a ship to operate and thus be marketable.
B6. Considering the fact that all ships are mandatorily required to apply paint makes it evident that paint is essential element for any ship to operate. Accordingly, such marine paint has to be considered as part of ship and should get covered under 5% IGST Rate schedule.
C. A product which is essential to complete the product and make it marketable then the same would construed as part
C1. In order to understand coverage of term 'parts', it is relevant

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article. Applying this test in the instant case, the plastic spools over which the adhesive plaster tapes are wrapped have to be considered as one of the component parts of the goods marketed, i.e., adhesive plaster tapes. It is not disputed that adhesive plaster tapes can be marketed only after wrapping them on plastic spools. Therefore, plastic spools are to be held component part of the adhesive plaster tapes, that is, the goods marketed. Hence plastic spools cease to be packing material.
C4. The Apex Court, in case of Collector of Central Excise, Calcutta-II Vs. Eastend Paper Industries Ltd. [1990] 77 STC 203 (SC) held that to be able to be marketed or to be marketable, it appears to us, in the light of facts in the appeals, that it was an essential requirement to be goods, to be wrapped in paper. Anything required to make the goods marketable, must form part of the manufacture and any raw material or any materials used for the same would be component part for the end product.

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considered as 'part of that ship'
C8. Thus, it could be contended that marine paints so supplied for vessels, would be considered as 'Parts of vessel' and thus would fall under the ambit of entry 252 of Schedule I of the classification wherein tax would be levied at the rate of 5%.
D. If paint is considered as part of aeroplane helicopter then the same should be considered as part of ship
D1. Under erstwhile Central Excise regime, similar benefit was introduced for the parts (irrespective of their classification) of aeroplanes or helicopters required for manufacture or servicing of aeroplanes or helicopter Vide notification 6/2002 -Central Excise dated March 1, 2002. while deciding on whether wires and cables manufactured for aircrafts / helicopters would be considered as parts of aircraft, the Hon'ble Court in case of Sanghvi Aerospace (P) Ltd Vs Commissioner of Central Excise Ahmedabad [2009 (247) E.L.T. 578 (Tri. – Ahmd.)] = 2009 (6) TMI 808 – CESTAT, AHMED

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g similar analogy, paint when supplied for manufacture of ship should be considered as part of ship.
E. Under erstwhile Indirect Tax regime, Central Excise exemptions were granted to marine paints supplied to ship.
Hence. intention of legislators appears to provide indirect tax concession to this product.
E1. In order to evaluate whether marine paint would be eligible for lower rate of GST, it is also relevant to understand history of indirect tax rate and exemptions, if any, under erstwhile Indirect Tax regime.
E2. Under Central Excise Act, 1944, Notification No. 44/2015-CE dated 24 November 2015 has issued prescribing effective rate of central excise for specified goods (amending Notification 12/2012 dated 17 March 2002). Said notification inserted following entry for prescribing effective rate of excise for goods mentioned therein.
Sr. No.
Chapter or heading or sub-heading tariff item or of the First Schedule
Description of excisable goods
Rate
Condition No.
306C
Any

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all the products meant for use in manufacture of vessels. Keeping this in view, it can be contended that legislators would wish to continue extending such benefits to all products used in manufacture of vessel. Hence, paint which is meant for use in manufacture of vessel should fall within the purview of entry 252 of Schedule I of IGST rate schedule and would attract 5% IGST.
E5. The goods falling under chapter 8901 to 8907 are covered under schedule I of IGST Rate notification vide entry 246 to 251. Whereas separate entry 252 has been inserted for parts of these goods, Thus, the intention appears to be to avoid inverted duty rate structure for vessel manufacturers. They should be able to procure all the parts at 5% IGST and then would also be charging same rate on their outward supply of different types of vessels. Hence, entry 252 of IGST Rate notification should be read to cover all raw materials and parts which are meant for use in manufacture of different types of vessels.
F.

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for the time being so specified.
b. Group 8 of Schedule 8 of Value Added Tax Act 1994
The supply of parts and equipment, of a kind ordinarily installed or incorporated in, and to be installed, or incorporated in,-
a. the propulsion, navigation or communication systems, or
b. the general structure,
of a qualifying ship or, as the Case may be, aircraft
c. VAT Notice 744C ships, aircraft and associated services published on July 20, 2011
7.5. Which parts and equipment are excluded from zero rating?
Any raw or bulk materials. partly processed parts or equipment and also non-specialist goods or appliances are excluded from zero rating. The list below gives examples of other parts and equipment which are not zero-rated. It is not exhaustive.
* Binoculars
* catering equipment (domestic)
* crockery
* cutlery
* diving equipment
* furniture (unfixed)
* laundering equipment (domestic)
* missiles, shells etc
* ship's stores
* soft furnishings

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qualifying ship.
F4. Thus as per section 30(2) read along with Schedule 8 of VATA, supply of parts and equipment of installed or incorporated in the propulsion, navigation or communication systems or the general structure of a qualifying ship would be considered as zero-rated supplies and accordingly no tax would be liable thereon. However in order to avail the benefit of above provisions, it would be pertinent to identify what would be considered to be parts and equipment of a ship, Therefore under VAT Notice 744C, the UK government has prescribed a non-exhaustive list of parts and equipments which are not zero-rated. The said non-exhaustive list of parts and equipments includes paints, solvent and thinners.
F5. Thus from above it is clear that paints, solvent and thinners have been considered to be parts and equipments of a ship since it is reported under a non-exhaustive list of parts and equipments.
CONCLUSION
1. In our view, marine paints so supplied by applicant, would be c

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rudence it is said that anything which is required for making goods marketed or to be marketable, would be form component part of that end products and hence paints would form part of the ship.
6. In addition to the above, we have also scrutinized the concerned issue under UK VAT, wherein paints is mentioned under the list of 'Parts and equipments of ship' which are excluded from zero rated goods.
However in absence of any such specific provisions in India, it could be said that paints are 'parts of the ship' and therefore would fall under Sr No 252 of Schedule I of IGST Act 2017 and hence be taxed at 5%”
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-
“M/S. Jotun India Pvt. Ltd., GSTIN:- 27AABCj6665jZ6, who is assigned to this office under case allocation, has applied for advance ruling under section 97 of CGST/MGST Act, 2017

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hen Sh. Nitin S Shah, Advocate, duly authorized, appeared and made oral submissions for admission of application as per details in their written submissions.
During hearing, the jurisdictional officer, Sh. Rajesh Gaikwad, Dy.Commr., State GST, stated that they have made written submissions objecting to admission of their application stating that when there is a specific entry for any commodity the said commodity cannot be classified differently.
The application was admitted and during the Final Hearing on 11.04.2018, Sh. Nitin S Shah, Advocate, duly authorized, appeared and made oral and written submissions along with case laws. Ms Shweta Patni, Chartered Accountant was also present.
The jurisdictional officer, Sh. Rajesh Gaikwad, Dy, Commr., State GST, also appeared and orally reiterated that the goods were having a specific entry and should be classified accordingly.
05. OBSERVATIONS
We have perused the records on file and gone through the facts of the case and the submissions

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of Notification 1/2017 of Integrated Tax (Rates) dated 28.06.2017 and would be liable to IGST @ 5% as they are parts of goods of Headings 8901, 8902, 8904, 8905, 8906 and 8907.
Further we find that the jurisdictional officer, in his submissions has stated that under CTH-3208 and 3209 of the GST Tariff, there are specific entries for paints and varnishes and therefore the applicant's contention that marine paints be treated as parts of ship cannot be accepted.
From the above contentions of the applicant and the department, it is apparent that there is no dispute with regard to classification of the subject goods under CTH 3208 and 3209. The difference of opinion is only with respect to the claim of the applicant that the goods are parts of ship and therefore would be eligible for concessional rate of IGST @ 5% as given under Sr. No. 252 of Schedule -I of Notification No. 1/2017 of Integrated Tax (Rates), as discussed above.
To arrive at the correct position we need to examine all

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d to hulls of ships. They prevent barnacles and other marine organisms from adhering to the hulls of ships. Thus it is the contention of the applicant that such types of paints sold by them should be treated as parts of a ship.
First of all we refer to the exact body of the Sr.No. 252 of Notification No. 1/2017 of Integrated tax, the benefit of which the applicant is claiming.
Sl. No.
Chapter/Heading/ Sub-heading/Tariff item
Description of Goods
252.
Any chapter
Parts of goods of heading 8901, 8902, 8904, 8905, 8906 and 8907'
We find that as per above details, the benefit of concessional rate of IGST @5% is available to parts of goods of headings 8901, 8902, 8904,8905,8906 and 8907.
Thus it is very apparent that parts of goods of Heading 8901, 8902, 8904, 8905, 8906 and 8907 are eligible for concessional rate of IGST @ 5%.
In view of the above, we first of all require to ascertain as to what are the goods that are covered under the above Tariff Headings. We find that thes

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ine as to what are “Parts”. We find that the word “Part/Parts” has not been defined in GST nor was it defined in Central Excise earlier. In view of this first we are required to understand the general meaning of the word 'Part/ Parts' which is of relevance to us in the present case.
We find that as per Cambridge English Dictionary:
Part as a noun – a separate piece of something or a piece that combines with other pieces to form the whole of something
One of the pieces that together form a machine or some type of equipment.
It has other meanings also in other context which are not of relevance in present context like:
-a single broadcast of a series of television or radio programme or Division of a story.
-one of two or more equal or almost equal measures of something etc.
Further, we also find the definition of 'Spare Part' as per Wikipedia
A spare part, spare, service part, repair part or replacement part is an interchangeable part that is kept in an inventory

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measures such as Walkie-talkie, Binoculars, Life Jackets, Lifeboats, etc. Though these are also to be compulsorily made available on a vessel and ship but cannot be taken to be parts of a ship as per general understanding but are rather additional equipments on a ship..
In addition to the above there are other essential items like furniture, fans, air-conditioners, television, etc which are very essential for comfort of officers and crew of the ship but do not come under essential parts or equipments of a vessel/ship.
In continuation of the same we find that the issue to be decided in the present case is whether marine paints can be considered as parts of a ship.
We find that the items that are discussed as essential parts of a ship/ vessel are such essential components of a vessel/ ship without which the ship would not be complete and would not exist. These are very integral for the functioning of the ship and can be separated from the ship for repair/replacement. There are various

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h other pieces to form the whole of something. In this regard we find that marine paints are in no way piece of ship that would in any way form the whole ship. They are just consumables for the essential parts of ship.
Similarly the second definition of part also defines 'part' as one of the pieces that together form a machine or some type of equipment. We find that marine paints are not covered in this definition also.
In the same way we find that marine paints are not covered within the definition of spare part also as given in discussions above.
The applicant has contended that marine paints are mandatorily required to be applied on all ships as per Merchant Shipping Act, 1958 and therefore should be considered as parts of ship. Just because it is mandatory, under some law, to be applied on ships, does not essentially make it, its part.
The applicant has claimed that under the erstwhile indirect tax regime, Central Excise exemptions were granted to marine paints supplied

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al Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction that such goods are cleared for the intended use.
In fact the said notification gave exemption to all raw materials and parts for use in the manufacture of certain specified ships/vessels, subject to actual user conditions.
While interpreting the issues like the one at hand, we may refer to certain judgements which throw light on the disputed issue.
In case of Saraswati Sugar Mills Vs Commissioner of Central Excise Civil Appeal No.5295 of 2003 decided on 2nd Aug 2011 Hon. Supreme Court of India = 2011 (8) TMI 4 – SUPREME COURT OF INDIA observed :
12. In order to determine whether a particular article is a component part of another article, the correct test would be to look both at the article which is said to be component part and the completed article and then come to a conclusion whether the first article is a component part of the whole or not. One must first look at the article

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made by this Court :-
 “… paper core would also be constituent part of paper and would thus fall within the term “component parts” used in the Notification in so far as manufacture of paper in rolls is concerned. Paper core, however, cannot be said to be used in the manufacture of paper in sheets as component part. We are conscious that the relevant tariff item uses the word “paper” but since paper in rolls and paper in sheets are nothing but different forms of paper, both of them would be excisable goods as paper under the relevant tariff item.” 
15. In Modi Rubber Ltd. v. Union of India, (1997) 7 SCC 13, = 1997 (8) TMI 75 – SUPREME COURT OF INDIA the appellant had set up tyre and tube manufacturing plant and imported various plants and machineries. While using the plants and machineries, PPLF (Polypropylene Liner Fabric) was used as a device in the form of liner components to various machinery units to protect the rubber-coated tyre fabric from atmospheric moisture a

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since the notification itself does not contain any definition of the expression.
In the State of Uttar Pradesh vs M/S. Kores (India) Ltd on 18 October, 1976, Equivalent citations: 1977 AIR 132, 1977 SCR (1) 837. = 1976 (10) TMI 131 – SUPREME COURT OF INDIA
In this case the appellant contended before the Hon SC that carbon paper does not lose its character as paper in spite of being subjected to chemical processes, and that ribbon is not an accessory but an essential part of the typewriter.
While dismissing the appeal Court held that “A word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs. It has to be understood according to the well-established canon of construction in the sense in which persons dealing in and using the article understand it.”
The Hon. SC further observed that “Bearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the wor

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tate of Mysore v. Kores (India) Ltd. 26 STC 87). = 1970 (3) TMI 126 – MYSORE HIGH COURT (1) where it was held:
“Whether a typewriter ribbon is a part of a typewriter is to be considered in the light of what is meant by a typewriter in the commercial sense. Typewriters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essential part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Mysore Sales Tax Act, 1957.”
Considering the meaning of an expression (Part) as defined in the dictionary and adopted by the courts mentioned above besides common parlance test it can be safely concluded that Marine Paint is not a component part of Ship. This conclusion which we have drawn as above gets support from the facts stated by the appellant and detailed discussions above as per which marine paints are clearly consumable items and not parts.
Thus we would be stretching the definition of 'part' greatly, if w

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The deadline for filing the GSTR-3B return for April 2018 has been extended.
News
Indian Laws
Extension of date for filing return in FORM GSTR-3B for the month of April, 2018
TMI Updates

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Extension of date for filing return in FORM GSTR-3B for the month of April, 2018
GST
Dated:- 18-5-2018

In the interest of taxpayers, it has been decided to extend the last date for filing of return in FORM GSTR-3B for the month of April, 2018 for two days, i.e., till 22nd May, 2018. The notification in this regard shall be published shortly.
Earlier it was brought to the notice of the competent authority that certain technical issues are being faced by the taxpayers during the fi

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Catering service or Restaurant Service
Query (Issue) Started By: – ROHIT GOEL Dated:- 18-5-2018 Last Reply Date:- 21-5-2018 Goods and Services Tax – GST
Got 6 Replies
GST
One of our client has been appointed as a food contractor by a club. Supply by our client to a club will be based on actual orders placed by customers of club. Payments from customers will be charged by a club and GST @ 5% has been charged in invoice considering it as a restaurant services.
Our client will raise invoice to club at the end of month for the supplies made by him.
Issue that arises is whether services provided by our client are catering service @18% or restaurant services @5%.
Reply By KASTURI SETHI:
The Reply:
It is outdoor catering service H

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r drink is supplied, located in the premises of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes having declared tariff of any unit of accommodation of seven thousand five hundred rupees and above per unit per day or equivalent. are chargeable @ 9% towards CGST.
Reply By YAGAY and SUN:
The Reply:
Outdoor Catering Service Taxable at 18% GST: AAR.
The Gujarat Authority for Advance Ruling, recently held that the supply of service provided by the applicant is in nature of 'outdoor catering ' and is liable to GST at the rate of 18%. The Applicant, M/s. Rashmi Hospitality Services Private Limited, is an industrial canteen contractor who provides cantering services to manufacturin

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GSTR 3B gets Zero
Query (Issue) Started By: – Kishan Barai Dated:- 18-5-2018 Last Reply Date:- 19-5-2018 Goods and Services Tax – GST
Got 3 Replies
GST
After setting off the tax, system showing error GSTN-EXEC1003 & saved data get zero.
Reply By Arjun Gopalakrishna:
The Reply:
This is the technical error at the GSTN Facilitation center. Consider all sales and input credit particulars in the subsequent month in case you query has not resolved by GSTN. and rectify in the GSTR 1 file

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LUT & IGST Shipping Bills
Query (Issue) Started By: – Praveen Nair Dated:- 18-5-2018 Last Reply Date:- 19-5-2018 Goods and Services Tax – GST
Got 3 Replies
GST
Hello Experts,
When GST was implemented in July 2017, there were substantial changes made in forms, format & reporting structures. One of the format change was in Shipping Bill. ARE particulars were removed and then Invoice mis-match percolated etc…
Shipping Bill had this issue most of the CHA's had errorneously mentioned LUT instead of IGST in the S/Bill resulting in blockage of refund. Interesting to note that there are no facility in the EDI software to change from LUT to IGST, though you have submitted at Tax Invoice paying IGST.
You either have an option to

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INPUT Credit
Query (Issue) Started By: – Arjun Gopalakrishna Dated:- 18-5-2018 Last Reply Date:- 22-6-2018 Goods and Services Tax – GST
Got 8 Replies
GST
INPUT CREDIT OF GST COLLECTED BY GOVERNMENT BODY ON FINES AND PENALTIES LEVIES FOR DELAY IN SUBMISSION OF FORMS.
IS THERE ANY RESTRICTION FOR CLAIMING GST INPUT IN THIS CASE
Reply By KASTURI SETHI:
The Reply:
In my view ITC on penalty paid due to late submission of forms is not allowed. In my view such penalty is legal requirement and does not qualify to the criteria of "in the business or furtherance of business."
Reply By Arjun Gopalakrishna:
The Reply:
Sir we appreciate you view on this query. SEBI has levied penalty for delay in submission of quarterly forms

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2) (d) of CGST Act, 2017, interest, or late fees or penalty for delayed payment of any consideration for supply, is mentioned. Only payment of penalty cannot constitute supply.
Merely, non-mentioning in Section 16, 17 and 18 of Act, does not gives you liberty of all Taxes as credit, other factors are required to be considered before arriving at any conclusion.
Our experts may correct me if mistaken.
Thanks
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
I endorse the views of Shri Arjun.
Reply By KASTURI SETHI:
The Reply:
If penalty is imposed upon an assessee for an offence (committed by assessee )by way of Adjudication Order, no ITC on that amount of penalty is admissible. In other words, such penalty is not to be treated in busines

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E-waybills
Query (Issue) Started By: – Jayadevan K M Nair Dated:- 18-5-2018 Last Reply Date:- 22-5-2018 Goods and Services Tax – GST
Got 1 Reply
GST
Our client is a timber merchant dealing in timber logs and they raise invoice to the customers mentioning the product HSN code of timber logs which is 4403. But the client B before transporting the timber, does sawing of timber B logs into chipped/sliced timber in near by saw mill.B For sawing services the Sawmill issues sawing bill with service HSN code 9988. After sawing of Timber log, the product is changed to chipped/sliced Timber and its HSN Code is 4407.
HenceB the final item transported would be split timber which comes under HSN 4407.
* The sawing centre raises only a se

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d in some cases E-way bill is taken by Timber merchant by giving B reference of their sale bill. Is the process is correct?
* If B a customer cut timber log from his on land or purchased from an unregistered dealerB and bring for sawing , then which are the documents to be attached while transporting the chipped/sliced timber. Shall E-way bill is to be taken. How fill the part A particulars in E-way bill. As he is having only GSTINB of the service provider.
Please clarify as we are not able to give proper guidance to our client.
with regards
Jayadevan
Muralidhar & Associates
Reply By YAGAY and SUN:
The Reply:
Consignment value and HSN needs to be determined for goods only not for services as only the goods are in movement and e-way

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Capital Goods ITC claim
Query (Issue) Started By: – narendra patel Dated:- 18-5-2018 Last Reply Date:- 11-12-2018 Goods and Services Tax – GST
Got 12 Replies
GST
Suppose a capital good (purely for business purpose) is purchased for 80,000. on 1.4.2018.
So CGST part will be 7200. We avail 1/5 part (1440) for current year and put reversal entry of 5760.
Now, in next year we claim next 1/5 part (1440).
My question:
1. Do we claim next year ITC on 1.4.2019 or 31.3.2020 (ie exactly 1 year after purchase or at the end of next FY) 2. Under which section of GST, do we claim ITC of next year.
3. Under which section of GST, do we enter reversal enter of current year.
Please advise.
Reply By KASTURI SETHI:
The Reply:
Restrict

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credit each year. Hence I asked this question.
Please advise.
Reply By KASTURI SETHI:
The Reply:
Dear Querist,
You can take full ITC on capital goods in one year. Reversal (you are talking) is required on account of usage of tax paid inputs/capital goods in the business or furtherance of business in respect of exempted as well as taxable supply of goods or services.
Are you engaged in exempted as well as taxable supply ?
Reply By KASTURI SETHI:
The Reply:
Dr.Govindarajan Ji,
Sir, What I want to say is as under :-
During pre-GST era, Cenvat Credit on capital goods was allowed as 50% in first financial year and balance (50% ) in next financial year. In GST regime, ITC on capital goods can be taken in full in one year. (year of

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iews it seems I can take FULL ITC in the same year in which I buy machinery (Capital Goods).
Thank you very much.
If my conclusion from above discussion is wrong, please advise.
Reply By Shashank Mutha:
The Reply:
Respected kasturi Sethi & Govindrajan ji
I think that if we charge depreciation on capital goods at the end of financial year than we can't avail ITC .
I refer Sec 17 (5) of CGST Act about BLOCK CREDIT
If I am wrong than kindly guide us
Thank you
(waiting for reply)
Reply By Shashank Mutha:
The Reply:
#DR.MARIAPPAN GOVINDARAJAN
Reply By Shashank Mutha:
The Reply:
#KASTURI SETHI
Reply By Ganeshan Kalyani:
The Reply:
In case of capital goods used for taxable goods then full credit can be taken in one year. And in

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Seeks to extend the due date for filing of FORM GSTR-3B for the month of April, 2018
23/2018 Dated:- 18-5-2018 Central GST (CGST)
GST
CGST
CGST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
Notification No. 23/2018 – Central Tax
New Delhi, the 18th May, 2018
G.S.R. 462 (E).- In exercise of the powers conferred by section 168 of the Central Goods and Services Tax Act, 2017 (12 of 2017) read with sub-rule (5) of rule 61 of the Central Goods and Services Tax Rules, 2017, the Central Government, on the recommendations of the Council, hereby makes the following amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue

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Chandigarh – E-way bill comes into effect w.e.f. 25-5-2018 – Central Government, rescinds the notification number G.S.R. 316(E) dated the 31st March, 2018
7/2018 Dated:- 18-5-2018 Union Territory GST (UTGST)
GST
UTGST
UTGST
MINISTRY OF FINANCE
(Department of Revenue)
NOTIFICATION No. 7/2018-Union Territory Tax
New Delhi, the 18th May, 2018
G.S.R. 463(E).-In exercise of the powers conferred under sub-section (1) of Section 22 of the Union Territory Goods and Services Tax Act, 2

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Dadra and Nagar Haveli – E-way bill comes into effect w.e.f. 25-5-2018 – Central Government rescinds the notification number G.S.R. 317(E) dated the 31st March, 2018
8/2018 Dated:- 18-5-2018 Union Territory GST (UTGST)
GST
UTGST
UTGST
MINISTRY OF FINANCE
(Department of Revenue)
NOTIFICATION No. 8/2018-Union Territory Tax
New Delhi, the 18th May, 2018
G.S.R. 464(E).-In exercise of the powers conferred under sub-section (1) of Section 22 of the Union Territory Goods and Services

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Daman and Diu – E-way bill comes into effect w.e.f. 25-5-2018 – Central Government rescinds the notification number G.S.R. 318(E), dated the 31st March, 2018
9/2018 Dated:- 18-5-2018 Union Territory GST (UTGST)
GST
UTGST
UTGST
MINISTRY OF FINANCE
(Department of Revenue)
NOTIFICATION No. 9/2018-Union Territory Tax
New Delhi, the 18th May, 2018
G.S.R. 465(E).-In exercise of the powers conferred under sub-section (1) of Section 22 of the Union Territory Goods and Services Tax Act

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Extension of due date of filing of GSTR-3B for the month of April, 2018
09/2018–C.T./GST Dated:- 18-5-2018 West Bengal SGST
GST – States
West Bengal SGST
West Bengal SGST
GOVERNMENT OF WEST BENGAL
DIRECTORATE OF COMMERCIAL TAXES
14, BELIAGHATA ROAD, KOLKATA-700015
NOTIFICATION BY THE COMMISSIONER OF STATE TAX
Notification No. 09/2018-C.T./GST
Dated: 18.05.2018
Notification No. 23/2018 – State Tax
In exercise of the powers conferred by section 168 of the West Bengal Good

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M/s. Structural Waterproofing Pvt. Ltd., M/s. Frontier Strips Pvt. Ltd. Versus Commissioner of CGST, Central Excise, Alwar
Central Excise
2018 (5) TMI 1409 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 18-5-2018
Excise Appeal No. 50675 of 2018, Excise Appeal No. 50692 of 2018 – Final Order No. 51951-51952 /2018
Central Excise
Hon'ble Mr. Justice ( Dr. ) Satish Chandra, President And Hon'ble Mr. V. Padmanabhan, Member ( Technical )
Shri G G Gupta, Advocate and Shri Mohit Gohlyan, CA for the Appellants
Shri M R Sharma, AR for the Respondent
ORDER
Per: Justice ( Dr. ) Satish Chandra
The present appeals are filed by the appellant against the Order-in- Appeal No. 34 (AK) CE/JPR/2017 dated 29.01.2018 and 496-544(SM)CE/JPR/2017 dated 01.12.2017. In both the appeals, the issue is identical and hence, are disposed of by a common order.
2. Brief facts of the case are that the appellants have their factories situated in the State of Rajasthan and were operating

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e on record, it appears that identical issue has came up before the Tribunal in the case of M/s. Shree Cement Ltd. & other vs. CCE, Alwar [ Final Order Nos. 50189- 50191/2018 dated 18.1.2018] as also in M/s. UltraTech Cement Ltd. vs. CCE, Jaipur I [Final Order No. 51129/2018 dated 28.3.2018] wherein it was observed that :
4. After hearing both sides and on perusal of record, it appears that identical issue has come up before the Tribunal in the case of Shree Cement Ltd. vs. CCE, Alwar (Final Order No. 50189 – 50191/2018 dt. 18.01.2018) where it was observed that:
“7. We have heard both sides at length and perused the appeal record. As out lined above, the appellants are covered by the Investment Promotion Schemes of the Rajasthan Government. In terms of the various schemes of the Rajasthan Government, the appellants are required to discharge their VAT liability by making payment of the same. Out of such VAT credited to the Government, a certain portion is disbursed back to them in

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owever, we note that the Tribunal in the case of Welspun Corporation Ltd. (Supra) has distinguished the decision of the Apex Court in the light of Gujarat VAT Act, 2003. In the Welspun Corporation Ltd. case, the assesse had opted for remission of tax scheme under which a portion of the VAT paid was remitted back to the assessee. The Tribunal held that such subsidy amounts are not required to the included in the transaction value.
9. In the present case we know that for the initial period the assessees are required to remit the VAT recovered by them at the time of sale of the goods manufactured. A part of such VAT is given back to them in the form of subsidy in Challan 37 B. Such Challans are as good as cash but can be used only for payment of VAT in the subsequent period. In terms of the scheme of the Government of Rajasthan payment of VAT using such Challan are considered legal payments of tax. In view of the above, Revenue is not correct in taking the view that VAT liability discha

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Shree Raipur Cement Plant (A unit of Shree Cement Limited) Versus State of Chhattisgarh, The Commissioner, Commercial Taxes Department, The Assistant Commissioner, Commercial Taxes Department, Union of India, Ministry of Finance (Department of Revenue), The Under Secretary (ST-II), Ministry of Finance
GST
2018 (5) TMI 1494 – CHHATTISGARH HIGH COURT – 2018 (17) G. S. T. L. 387 (Chhattisgarh)
CHHATTISGARH HIGH COURT – HC
Dated:- 18-5-2018
Writ Petition (T) No. 83 of 2018
GST
Hon'ble Shri Justice Sanjay K. Agrawal
For the Petitioner: Mr. Ramit Mehta, Mr. Saurabh Maheshwari and Mr. Anumeh Shrivastava, Advocates
For the Respondents : State of Chhattisgarh: – Mr. Anand Dadariya, Deputy Government Advocate
For the Respondents : Union of India: – Mr. Vaibhav P. Shukla, Advocate, appears on behalf of Mr. B. Gopa Kumar, Assistant Solicitor General of India
ORDER
1. The short question involved in this writ petition is, whether the petitioner is entitled to be issued

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etitioner was also having registration certificate under the provisions of the Chhattisgarh Value Added Tax Act, 2005 and with the introduction of the Central Goods and Services Tax Act, 2017 (for short, the CGST Act, 2017), the petitioner has also been registered under the CGST Act, 2017 with effect from 1-7-2017. It is the case of the petitioner that the respondent Department had been issuing C-Forms to the petitioner Company till 30-6-2017 for the goods covered under Section 2(d) of the CST Act, 1956 and as specified in the certificate of registration of the dealer for use in terms of Section 8 of the CST Act, 1956, but with effect from 1-7-2017, from coming into force of the CGST Act, 2017, C-Form is not being issued and / or withheld by showing error message that “ED9: Invoice date should be less than 1st July, 2017”.
3. The petitioner has filed this writ petition stating inter alia that its registration certificate is with regard to High Speed Diesel covered under the definition

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ax Act, 2005. After the roll-out of the Central Goods and Services Tax Act, 2017, the petitioner / dealer has been migrated to the GST regime by virtue of the provisions contained in Section 139 of the CGST Act, 2017 and the provisions of the CGST Act, 2017 as such, the petitioner's previous registration under the CST Act, 1956 is no more valid and, therefore, the petitioner has rightly been denied the privilege of C-Form, as under the provisions of the CST Act, 1956, C-Form has to be issued only to the registered dealer under the said Act. Therefore, the petitioner's registration under the CST Act, 1956 stood cancelled upon the petitioner's registration under the CGST Act, 2017 and thus, the petitioner is not entitled for the privilege of C-Form under the CST Act, 1956 read with the Rules of 1957. It has further been stated that the petitioner has not availed the facility of C-Form so far as High Speed Diesel is concerned, till 30-6-2017, therefore, the petitioner Company

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e levied with effect from such date as may be notified on the recommendations of the Council. The GST Council till this date, admittedly and undisputedly, has not notified high speed diesel bringing it under the purview of the CGST Act, 2017. Therefore, the petitioner is entitled for issuance of C-Form under the CST Act, 1956 and its migration to the registration under the CGST Act, 2017 will be confined excluding the goods (high speed diesel), as there is no provision even under the CGST Act, 2017 that his registration under the CGST Act, 2017 would automatically cancel his registration under the CST Act, 1956 particularly, the goods which are included in Section 2(d) of the CST Act, 1956 and those have been excluded from the purview of the CGST Act, 2017 by Section 9(2) of the CGST Act, 2017, as by issuance of C-Form the petitioner would be entitled for concessional rate of tax. Therefore, the writ petition be allowed and the respondent State be directed to issue C-Form to the petiti

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ed the privilege of C-Form for high speed diesel prior to 1-7-2017 and as such, high speed diesel is used by the petitioner for the purpose of operation of drill machine at mines, lifting and loading of limestone in dumper, use of diesel as fuel in dumper and other equipments for extraction of limestone from mines and its transportation, use of diesel in plant and machinery such as kiln and other machineries used in manufacture of clinker and cement etc.. Therefore, the petitioner is otherwise also not entitled for issuance of C-Form as he does not fulfill the criteria under Section 8(3)(b) of the CST Act, 1956 and as such, issuance of C-Form to the petitioner is not permissible and the writ petition is liable to be dismissed. He would finally submit that after coming into force of the CGST Act, 2017, the petitioner has not filed any return under the CST Act, 1956, as such, the writ petition deserves to be dismissed.
7. In rejoinder submission, Mr. Mehta would submit that the CST Act,

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ection 7(1) of the CST Act, 1956. Replying to the submission of not filing return under the CST Act, 1956 after coming into force of the CGST Act, 2017, he would submit that C-Form has not been issued to the petitioner, despite request, therefore, he could not file return and the petitioner's representation has not been replied / answered.
8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and went through the record with utmost circumspection.
9. In order to judge the correctness of the plea raised at the Bar, it would be appropriate to notice the broad features of the CST Act, 1956 before entering into the merits of the matter.
10. The CST Act, 1956 has been enacted to formulate principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or commerce or outside a State or in the course of import into or export from India, to provide for the levy, collection and distribution of t

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ch goods inside the appropriate State under the Sales Tax Law of that State.
12. Under Section 7(1) of the CST Act, 1956, every dealer, who is liable to pay tax under the CST Act, 1956, should make an application for registration under the Act, to such authority in the appropriate State, as the Central Government may specify. The certificate of registration so issued is liable to be cancelled under sub-section (4) (b) of Section 7, if the dealer fails to pay any tax or penalty payable under the CST Act, 1956.
13. Sub-section (1) of Section 8 of the CST Act, 1956 carves out an exception. If the sale is to a registered dealer and if the sale is of the goods described in sub-section (3), the dealer need not pay tax at the rate prescribed by the local Sales Tax Law of the State in terms of sub-section (2). It is enough if such a person pays only 2%. Under sub-section (4) of Section 8, the dealer is obliged to furnish to the prescribed authority, a declaration duly filled and signed by th

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15. In exercise of powers conferred by sub-section (1) of Section 13 of the CST Act, 1956, the Central Government has framed Rules known as the Central Sales Tax (Registration and Turnover) Rules, 1957. Rule 12 of the said Rules provides as under:-
“12. (1) The declaration and the certificate referred to in sub-section (4) of Section 8 shall be in Forms 'C' and 'D' respectively:
Provided that Form 'C' in force before the commencement of the Central Sales Tax (Registration and Turnover) (Amendment) Rules, 1974, or before the commencement of the Central Sales Tax (Registration & Turnover) (Amendment) Rules, 1976, may also be used up to the 31st December, 1979 with suitable modifications:
Provided further that a single declaration may cover all transactions of sale which take place in one financial year between the same two dealers:
Provided also that where, in the case of any transaction of sale, the delivery of goods is spread over to different quarters in a financial year

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he case may be, may furnish one such indemnity bond to cover all the forms of declarations so lost.
(3) Where a declaration form furnished by the dealer purchasing the goods or the certificate furnished by the Government has been lost, the dealer selling the goods, may demand from the dealer who purchased the goods or, as the case may be, from the Government, which purchased the goods, a duplicate of such form or certificate, and the same shall be furnished with the following declaration recorded in red ink and signed by the dealer or authorised officer or the Government, as the case may be, on all the three portions of such form or certificate,-
“I hereby declare that this is the duplicate of the declaration form/certificate No…………………..signed on……………and issued to………………………………who is a registered dealer of……………..(State) and whose registration certificate number is………………”
*** *** ***
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*** *** *

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m the department prescribed under the State's taxation law. The C Form is a declaration to be issued only by the Sales Tax Authorities of the States concerned. By issuing declaration in C Form the purchasing dealer would be benefited as he is entitled to purchase goods by paying only concessional rate of tax of 4% as prescribed by the State concerned of the purchasing dealer otherwise the purchasing dealer has to pay tax at a higher rate besides additional taxes on such sales effected within the State where the selling dealer is situated.”
18. Thus, the declaration (C Forms) are required by the registered dealer to purchase goods from other States at concessional tax rate under the CST Act, 1956. C Form is prescribed under Rule 12(1) of the Rules of 1957 as a declaration form for the purpose as specified under Section 8(4) of the CST Act, 1956 and if the registered dealer fails to procure C Form from the respondents / State and thereafter, do not provide C Form to the supplier/se

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speed diesel;
(iii) motor spirit (commonly known as petrol);
(iv) natural gas;
(v) aviation turbine fuel; and
(vi) alcoholic liquor for human consumption”
21. Thus, the amended definition of goods under the CST Act, 1956 includes high speed diesel and by virtue of the said amendment, the definition of “goods” given under the CST Act stands amended whereby high speed diesel was kept under the meaning of goods amongst other five items.
22. The Central Goods and Services Tax Act, 2017 was promulgated and brought into force with effect from 1-7-2017, which is an Act to make a provision for levy and collection of tax on intra-State supply of goods or services or both by the Central Government and the matters connected therewith or incidental thereto. Likewise, the Chhattisgarh Goods and Services Tax Act, 2017 (for short, 'the Chhattisgarh GST Act, 2017') was promulgated and brought into force with effect from 1-7-2017 which is also an Act to make a provision for levy

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eto.
23. At this juncture, it would be appropriate to notice the repeal and saving provision of the CGST Act, 2017 i.e. Section 174 of the CGST Act, 2017, which provides as under: –
“174. Repeal and saving.-(1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), and the Central Excise Tariff Act, 1985 (5 of 1986) (hereafter referred to as the repealed Acts) are hereby repealed.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx”
24. The aforesaid provision of the CGST Act, 2017 contains a provision pertaining to repeal and saving. It is pertinent to not

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1936 (30 of 1936), (hereinafter referred to as the repealed Acts) are hereby repealed.”
26. The aforesaid provision of the State Act clearly provides that the Chhattisgarh Value Added Tax Act, 2005 shall apply only in respect of goods included in Entry 54 of the State List of the Seventh Schedule to the Constitution. Entry 54 of the State List of the Seventh Schedule to the Constitution of India as amended by the Constitution (One Hundred and First Amendment) Act, 2016, states as under: –
“54. Taxes on the sale of petroleum, high speed diesel, motor spirit (commonly known as petrol), natural gas, aviation turbine fuel and alcoholic liquor for human consumption, but not including sale in the course of inter- State trade of commerce or sale in the course of international trade or commerce of such goods.”
27. Thus, from the aforesaid analysis, it is quite vivid that the Chhattisgarh Value Added Tax Act, 2005 has not been repealed qua the items specified under the amended Entry 54 of

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notified by the Government on the recommendations of the Council.”
30. Sub-section (2) of Section 9 of the CGST Act, 2017 and the Chhattisgarh GST Act, 2017 clearly provide that GST on crude oil, high speed diesel, aviation turbine, motor spirit (petrol) shall be levied with effect from the date as may be notified by the Government on the recommendations of the GST Council. Therefore, the CGST Act, 2017 has kept the aforesaid six goods away from the ambit of the CGST Act, 2017 and no notification has been issued by the Central Government on the recommendation of the GST Council imposing GST on high speed diesel at a prescribed rate.
31. Thus, the net effect of the aforesaid discussion is that after the promulgation of the CGST Act, 2017 and the State Act, the items mentioned in the amended Entry 54 of the State List of the Seventh Schedule to the Constitution are governed by the CST Act, 1956, as no notification has been issued even under Section 9(2) of the CGST Act, 2017 by the C

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the petitioner is entitled to be issued 'C' Forms in respect of the natural gas purchased by it in the course of interstate sales and used by it for the generation of electricity. …”
33. The Division Bench speaking through Avneesh Jhingan, J, held at the end of para 17 as under: –
“It is pertinent to note that till date, the Government has not issued a notification under either the CGST Act or the HGST Act. Hence inter-state sale of natural gas continues to be governed by the CST Act.”
34. Their Lordships finally directed the State authorities to issue 'C' Forms by holding as under: –
“28. In these circumstances, the writ petition is allowed. It is held that the respondents are liable to issue 'C' Forms in respect of the natural gas purchased by the petitioner from the Oil Companies in Gujarat and used in the generation or distribution of electricity at its power plants in Haryana. …”
35. I respectfully agree and follow the principle of law laid d

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ecommendation of the GST Council would be necessary to be notified by the Central Government, neither the GST Council has recommended levy of GST on high speed diesel nor it has been notified by the Central Government particularly when prior to introduction of GST with effect from 1-7-2017, the competent legislature has already amended the definition of “goods” under Section 2(d) of the CST Act, 1956 and purposefully amended the definition of “goods” mentioning the same items which are barred under Section 9(2) of the CGST Act, 2017 whereby high speed diesel is included.
37. Next submission of the learned State counsel is that after introduction and promulgation of GST, the registration certificate of the petitioner issued under the provisions of the CST Act, 1956 and the rules made thereunder would automatically stand cancelled after his migration to the GST regime, has no legs to stand. The registration certificate issued under the CST Act, 1956 can be cancelled only after the initi

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oods” as defined under the amended definition of Section 2(d) of the CST Act, 1956 including high speed diesel.
38. Further submission of the learned State counsel that since the petitioner did not avail the facility / privilege of 'C' Form with respect to high speed diesel prior to 1-7-2017, now, he cannot be allowed to use 'C' Form qua high speed diesel, deserves to be rejected, as if the petitioner is lawfully entitled and eligible for issuance of 'C' Form, he cannot be declined such facility, merely on the count that he did not avail such facility prior to 1-7-2017 as the CGST Act, 2017 or the CST Act, 1956 do not bar to avail such facility on the said ground. Non-furnishing of return by the petitioner raised by the State is equally fallacious. Even otherwise, there is no bar in the CGST Act, 2017 that the petitioner Company after migrating from the CST regime to the GST regime cannot hold registration certificate under the CST Act, 1956 confining it to the

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of the CGST Act, 2017 and therefore the Central Government has not notified high speed diesel to be within the ambit and sweep of the CGST Act, 2017. Thus, the petitioner's registration certificate under the CST Act, 1956 is still valid for the goods defined in Section 2(d) of the CST Act, 1956, including high speed diesel, and the petitioner is entitled for issuance of C-Form for inter-State purchase / sale of high speed diesel against the said C-Form. Accordingly, the respondents shall be liable and are directed to issue C-Form to the petitioner in respect of high speed diesel to be purchased by the petitioner and used in the course of manufacture of cement and for that, it is further directed to rectify and remove the error on their official website and entertain the petitioner's application submitted on-line on the official website seeking issuance of C Form to the petitioner for said goods.
40. The writ petition is allowed to the extent outlined herein-above leaving the p

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Officer authorized for enrolling or rejecting application for Goods and Services Tax Practitioner under the Haryana Goods and Services Tax Act, 2017.
1357/GST-2 Dated:- 18-5-2018 Haryana SGST
GST – States
Order
Subject: Officer authorized for enrolling or rejecting application for Goods and Services Tax Practitioner under the Haryana Goods and Services Tax Act, 2017.
In pursuance of clause (91) of section 2 of the Haryana Goods and Services Tax Act, 2017 and subject to sub-section (2

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Seeks to extend the due date for filing of FORM GSTR-3B for the month of April_2018.
8/2018 Dated:- 18-5-2018 Nagaland SGST
GST – States
Nagaland SGST
Nagaland SGST
GOVERNMENT OF NAGALAND
OFFICE OF THE COMMISSIONER OF STATE TAXES
NAGALAND: DIMAPUR
Dated Dimapur, the 18th May, 2018
NOTIFICATION- 8/2018
In exercise of the powers conferred by section 168 of the Nagaland Goods and Services Tax Act, 2017 (4 of 2017) read with sub-rule (5) of rule 61 of the Nagaland Goods and Servi

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Notified Extension Of Time Limit For Filing Form Gstr 3b.
(1-F/2018) Dated:- 18-5-2018 Karnataka SGST
GST – States
Karnataka SGST
Karnataka SGST
GOVERNMENT OF KARNATAKA
FINANCE SECRETARIAT
NOTIFICATION (1-F/2018)
[NO.KGST.CR.01/17-18], Bengaluru
dated: 18.05.2018
In exercise of the powers conferred by section 168 of the Karnataka Goods and Services Tax Act, 2017 (Karnataka Act 27 of 2017) read with sub-rule (5) of rule 61 of the Karnataka Goods and Services Tax Rules, 2017,

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Rectification in GST3B
Query (Issue) Started By: – Amlan Mohanty Dated:- 17-5-2018 Last Reply Date:- 22-6-2018 Goods and Services Tax – GST
Got 5 Replies
GST
Sir,
I am a civil contractor.I work with Police Housing corporation. I receive bill almost in every month and 12 % GST for construction work is allocated for GST purpose and which is given ro me. I file my GST return every month till March 18 GSTR 3B has also been filed, but by mistakenly during filing i filed it B2C instead of B2B by putting the GSTIN NO OF POLICE HOUSING corporation . Now the corporation is telling me as i had filed in B2C so the GST AMMOUNT is not visible in their GST NO and they will not be able to get input tax credit for the GST I filed. For this re

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Voith Turbo Private Limited Versus CCT, Secunderabad GST
Central Excise
2018 (5) TMI 1205 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 17-5-2018
Appeal No. E/31289/2017 – Final Order No. A/30567/2018
Central Excise
Hon'ble Mr. P.V. Subba Rao, Member (Technical)
Shri V.S. Sridhar & Shri P. Venkata Prasad, CAs for the Appellant
Shri B. Guna Ranjan, Superintendent /AR for the Respondent
ORDER
[ Order Per : P. Venkata Subba Rao ]
1. Appellant assessee are manufacturers of hydraulic/fluid couplings and they availed credit of duty paid on inputs/tax paid on input services under CENVAT Credit Rules (CCR), 2004. Their final goods are cleared both on payment of duty and without payment of duty to M/s NTPC Limited under an exemption notification. During audit by Central Excise authorities, it was found that the appellant had not reversed the CENVAT credit under Rule 6(3) on the exempted goods. It was pointed out and the appellant reversed an amount of Rs. 24,1

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edit under Rule 6(3) is not required in view of Rule 6(6)(vii), they have already reversed the same and also paid interest well before the show cause notice dated 29.09.2015 was issued. As per Section 11A(2) as they have reversed the credit and paid the interest, no show cause notice should have been issued against them. Hence, the SCN is not valid.
ii) Rule 6(6) of CENVAT Credit Rules, 2004 reads as follows:
“(6) The provisions of sub rules (1), (2), (3), and (4) shall not be applicable in case the excisable goods removed without payment of duty are either –
(i) …………………; or
(ii) ………………..; or
(iii) ………………..; or
(iv) ……………….;or
(v) ………………..; or
(vi) ………………..; or
(vii) ………………..; or
(viii) All goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under sub-section (1) of S

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defined in CENVAT Credit Rules 2004 and hence the definition of Customs Act should be relied upon. Hon'ble Supreme Court in the case of Jacsons Thevara vs. CCCE [1992(61)ELT 343 (S.C.)] held that exemption shall be read to include partial exemption.
4. The extended period of limitation is not invokable as the appellant have not wilfully contravened any Rule with intent to avoid payment of duty and had, in fact, provided all relevant information in their returns for the relevant period. Hence, wilful suppression of facts and violation of any Act or Rules with the intent to avoid payment of duty cannot be invoked.
5. The appellants are under bonafide belief that they are eligible to the impugned credit in terms of Rule 6(6)(vii) and hence extended period of limitation cannot be invoked. Interest and penalty are not payable or imposable as CENVAT Credit itself is not liable to be reversed.
6. During the hearing, Ld. Consultant appeared on behalf of the appellant and strongly reiterate

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ms” under rule 6(6)(vii) of CENVAT Credit Rules, 2004 – does it include only goods which are fully exempted or it also includes the goods which are partially exempted from the customs duty? Consequently, is the appellant required to reverse the credit as per Rule 6(3) of CENVAT credit Rules?
(ii) Has appellant resorted to fraud, wilful misstatement, suppression of facts or violated any provisions of the Act of the Rules with an intention to avoid payment of duty resulting in extended period of limitation?
(iii) Is the appellant liable to pay interest and penalty?
9. I proceed to decide these issues. The words “goods which are exempted” are not defined in CENVAT Credit Rules 2004. However, the words “exempted goods” and “exempted services” are defined in the Rules. Both these expressions would mean that they are exempted on the whole of the duty or tax or chargeable to nil rate of duty. The expression “exempted goods” is used at several places in CENVAT Credit Rules, 2004 and in Rule

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context of the scheme of CENVAT credit. The CENVAT Credit scheme has been designed to set off the duty paid on the inputs against the duty to be paid on the final products or services. Wherever no duty is payable on the final products, either because they are exempted or are chargeable nil rate of duty, no CENVAT credit is admissible. This principle has been well established and the rates of duty on the inputs and final products are immaterial. Even if the rate of duty of final products is merely 1% the credit of duty paid on inputs is available. However, if the final products are exempted or chargeable to nil rate of duty, no credit is admissible. This has been made clear in Rule 6(1) of CENVAT credit Rules 2004. Provisions have been made under sub rules 2, 3 & 4 of Rule 6, to ensure that where some inputs are used for exempted goods while others are used for goods on which duty has been paid, credit is available only to the extent the imports are used in dutiable goods. The harmonio

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I, therefore, find that the appellant is not exempted from reversing the credit as per Rule 6(3) of CENVAT Credit Rules. The second question is whether the assessee has resorted to fraud, wilful misstatement, suppression of facts or violation of any condition of the Act or Rules, with an intent to avoid payment of duty. I find from the records presented during hearing that the assessee in fact had filed returns in ER-I in which under the head “duty payable for clearance”, they have declared that they have availed the benefit of notification No. 12/2012. Under the head details of CENVAT credit taken and utilised, they have shown the credit utilised for payment of amount in terms of Rule 6 of CENVAT credit Rules as zero. Thus, it is evident that the assessee had declared both the fact that they have availed the exemption notification and also that they have not reversed any CENVAT credit, in their ER-I returns filed with the department. I do not find that they have suppressed any facts

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CCT, Visakhapatnam GST Versus Sri Sitarama Lakshmi Jute Mills Pvt. Ltd
Customs
2018 (5) TMI 1246 – CESTAT HYDERABAD – 2019 (370) E.L.T. 939 (Tri. – Hyd.)
CESTAT HYDERABAD – AT
Dated:- 17-5-2018
Appeal No. E/31339/2017 – FINAL ORDER No. A/30566/2018
Customs
Hon'ble Mr. P. V. Subba Rao, Member ( Technical )
Shri P.S. Reddy, Asst. Commissioner/AR for the Appellant
None for the Respondent
ORDER
[ Order Per : P. Venkata Subba Rao ]
1. When this matter was called, nobody appeared on behalf of the respondents. The Ld. Departmental Representative explained the case as follows.
2. The assessee imported jute yarn from Bangladesh which was exempted from Basic Customs Duty and CVD. However, they paid Special Additional Duty (SAD) @ 4% as applicable and applied for refund of SAD under Notification No. 102/97-Cus. Their application for refund was rejected by the lower authority on the following grounds:
a) Para 2 (a) of the notification 102/97-Cus requires the importer t

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the notification is concerned, where goods are sold on a commercial invoice, no such endorsement is required and merely not mentioning the SAD on the invoice would suffice as laid down by the Principal Bench of the Tribunal in the case of RKG International Pvt. Ltd. Vs Commissioner of C.Ex. &Cus. Noida [2013 (290)ELT 253 (Tri-Del)] and remanded it back to the Assistant Commissioner to decide the refund. The appeal of the Commissioner (Appeals) was not contested by the Department on grounds of monetary limits and therefore, has become final. Based on the order of the Commissioner (Appeals), the Assistant Commissioner sanctioned the refund. The Department appealed against this to the Commissioner (Appeals) who rejected it vide OIA No. 7/2016 [VSP]CE [D] dated 28.9.2017. This is an appeal against this OIA of the Commissioner (Appeals).
4. Condition No. 3 of the notification 102/97 says that the application for refund must be filed with the jurisdictional officer. In this case, the goods

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sioner, Vizianagaram. He could have returned the application directing it to be filed before the jurisdictional officer. Instead, he considered it on merits and passed an order rejecting it. The department appealed to Commissioner (Appeals) and it does not emerge from the OIA that the department raised this issue of jurisdiction before the Commissioner (Appeals) either. When the Commissioner (Appeals) remanded the matter back to the to the lower authority for sanction of refund, this order of the Commissioner (Appeals) was also not contested by the Department. The Deputy Commissioner sanctioned the refund and the department appealed against it before the Commissioner (Appeals) citing the issue of jurisdiction. The Commissioner (Appeals) rejected the department's appeal and hence this appeal.
6. Special Additional Duty (SAD) @ 4% was introduced to provide a level playing field to the domestic manufacturers who suffer VAT (which is not leviable on the imports). If the imported goods are

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Naveep Sharma and others Versus The Union of India and others
GST
2018 (5) TMI 1650 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 17-5-2018
CWP No. 12490 of 2018 (O&M)
GST
MR. AJAY KUMAR MITTAL, ACJ. AND MR. TEJINDER SINGH DHINDSA, J.
For The Petitioners : Mr. Brijesh Nandan, Advocate
ORDER
AJAY KUMAR MITTAL, ACJ.(ORAL)
The petitioner has approached this Court under Articles 226 /227 of the Constitution of India, for issuance of a wr

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Western Refrigeration Pvt. Ltd. Versus Commissioner of CGST, Thane Rural
Central Excise
2018 (6) TMI 235 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 17-5-2018
Appeal No. E/85245/2018 – Order No. A/86433/2018
Central Excise
Hon'ble Mr. Ramesh Nair, Member ( Judicial )
Shri Rajesh Ostwal, Advocate, for appellant
Shri M. R. Melvin, Superintendent (AR), for respondent
ORDER
The present appeal is filed by the appellant only for waiver of penalty imposed under Section 11AC of the Central Excise Act, 1944.
2. The facts of the case are that the appellant has availed cenvat credit in respect of common input service. Apart from the sale of their manufactured goods, they are also doing the trading activity of boughtout items. The case of the department is that the appellant was supposed to reverse the cenvat credit under Rule (3A) of the Cenvat Credit Rules, 2004 attributed to the trading activity being an exempted service. The demand of cenvat credit was confirmed

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he case of wrong availment of credit. As per Rule 6(3A), the appellant is required to pay the proportionate cenvat credit attributed to the exempted service along with interest @ 24%. Since this interest rate is very exorbitant, it is in the form of penalty. Therefore, the legislators very consciously did not make the provision for penalty in such cases. He submits that Rule 15 of the Cenvat Credit Rules, 2004 meant for penalty was not invoked and also not invokable. Therefore, penalty under Section 11AC cannot be imposed. He placed reliance on the following judgments:-
(i) CCE vs. Sangrur Agro Ltd. – 2010 (254) ELT 25 (P&H);
(ii) Eastern Medikit Ltd. vs. CCE – 2009 (242) ELT 51 (Tri.-Del.);
(iii) Sandoz Pvt. Ltd. vs. CCE – 2018 (4) TMI-CESTAT Mumbai;
(iv) Man Structural Pvt. Ltd. vs. CCE&ST – 2015 (11) TMI 664-CESTAT New Delhi.
He further submits that the appellant has recorded the trading activity and availment of cenvat credit in their books. Therefore, the case was als

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oods or the provider of output service shall intimate in writing to the Superintendent of Central Excise giving the following particulars, namely :-
(i) name, address and registration number of the manufacturer of goods or provider of output service;
(ii) date from which the option under this clause is exercised or proposed to be exercised;
(iii) description of inputs and input services used exclusively in or in relation to the manufacture of exempted goods removed or for provision of exempted services and description of such exempted goods removed and such exempted services provided;
(iv) description of inputs and input services used exclusively in or in relation to the manufacture of non-exempted goods removed or for the provision of non-exempted services and description of such non-exempted goods removed and non-exempted services provided;
(v) CENVAT credit of inputs and input services lying in balance as on the date of exercising the option under this condition;
(

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mmon credit, denoted as C and calculated as,-
C = T – (A + B);
Explanation. – Where the entire credit has been attributed under sub-clauses (i) and (ii), namely ineligible credit or eligible credit, there shall be left no common credit for further attribution.
(iv) the amount of common credit attributable towards exempted goods removed or for provision of exempted services shall be called ineligible common credit, denoted as D and calculated as follows and shall be paid, –
D = (E/F) x C;
where E is the sum total of –
(a) value of exempted services provided; and
(b) value of exempted goods removed, during the preceding financial year; where F is the sum total of –
(a) value of non-exempted services provided,
(b) value of exempted services provided,
(c) value of non-exempted goods removed, and
(d) value of exempted goods removed, during the preceding financial year :
Provided that where no final products were manufactured or no output service was provi

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(c) the manufacturer or the provider of output service shall determine the amount of CENVAT credit attributable to exempted goods removed and provision of exempted services for the whole of financial year, out of the total credit denoted as T (Annual) taken during the whole of financial year in the following manner, namely :-
(i) the CENVAT credit attributable to inputs and input services used exclusively in or in relation to the manufacture of exempted goods removed or for provision of exempted services on the basis of inputs and input services actually so used during the financial year, shall be called Annual ineligible credit and denoted as A(Annual);
(ii) the CENVAT credit attributable to inputs and input services used exclusively in or in relation to the manufacture of non-exempted goods removed or for the provision of non-exempted services on the basis of inputs and input services actually so used shall be called Annual eligible credit and denoted as B(Annual);
(iii) com

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ble common credit and the aggregate amount of ineligible credit and ineligible common credit for the period of whole year, namely, [{A(Annual) + D(Annual)} – {(A+D) aggregated for the whole year)}], where the former of the two amounts is greater than the later;
(e) where the amount under clause (d) is not paid by the 30th June of the succeeding financial year, the manufacturer of goods or the provider of output service, shall, in addition to the amount of credit so paid under clause (d), be liable to pay on such amount an interest at the rate of fifteen per cent. per annum, from the 30th June of the succeeding financial year till the date of payment of such amount;
(f) the manufacturer or the provider of output service, shall at the end of the financial year, take credit of amount equal to difference between the total of the amount of the aggregate of ineligible credit and ineligible common credit paid during the whole year and the total of the amount of annual ineligible credit

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h the date of payment of the amount;
(iv) interest payable and paid, if any, determined as per the provisions of clause (e); and
(v) credit determined and taken as per the provisions of clause (f), if any, with the date of taking the credit”.
5.1 As per above Rule 6(3A), it can be seen that the only requirement is to pay the proportionate cenvat credit along with interest @ 24%. There is no provision for imposition of penalty. The penalty provisions under the Cenvat Credit Rules are provided under Rule 14 which reads as under:-
“Recovery of CENVAT credit wrongly taken or erroneously refunded. – Where the CENVAT credit has been taken and utilized wrongly or has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or the provider of the output service and the provisions of sections 11A and 11AA of the Excise Act or sections 73 and 75 of the Finance Act, shall apply mutatis mutandis for effecting such recoveries.”
5.2 From the above

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