Author: admin_gst

Notification under the Tamil Nadu Goods and Services Tax Act. (G.O. Ms. No.56 CT and R (B1), 14th May 2018)
II(2)/CTR/448(f)/2018. Dated:- 14-5-2018 Tamil Nadu SGST
GST – States
Tamil Nadu SGST
Tamil Nadu SGST
GOVERNMENT OF TAMIL NADU
COMMERCIAL TAXES AND REGISTRATION DEPARTMENT
G.O. (MS) NO.56
DATED: 14.05.2018
Chithirai-31, vilambi,
Thiruvalluvar Aandu, 2049
NOTIFICATION No. II(2)/CTR/448(f)/2018.
In exercise of the powers conferred by Section 128 of the Tamil Nadu Goods

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Notified the waiver of late fee payable for failure to furnish return in form GSTR-3B.
F.NO.FIN/REV-3/GST/1/08(PT-I)/140 Dated:- 14-5-2018 Nagaland SGST
GST – States
Nagaland SGST
Nagaland SGST
GOVERNMENT OF NAGALAND
OFFICE OF THE COMMISSIONER OF STATE TAXES
NAGALAND: DIMAPUR
NOTIFICATION [F.NO.FIN/REV-3/GST/1/08(PT-I)/140]
Dated Dimapur, 14-5-2018
In exercise of the powers conferred by section 128 of the Nagaland Goods and Services Tax Act, 2017 (4 of 2017), the State Govern

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Waives the late fee payable FORM GSTR-3B.
20/2018-State Tax Dated:- 14-5-2018 Arunachal Pradesh SGST
GST – States
Arunachal Pradesh SGST
Arunachal Pradesh SGST
GOVERNMENT OF ARUNACHAL PRADESH
DEPARTMENT OF TAX & EXCISE
ITANAGAR
–
Notification No. 20/2018-State Tax
The 14th May, 2018
No. GST/23/2017.-In exercise of the powers conferred by section 128 of the Arunachal Pradesh Goods and Services Tax Act, 2017 (7 of 2017), the State Government, on the recommendations of the Coun

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Sainik Mining & Allied Services Ltd. Versus Union of India, Goods and Service Tax Council, New Delhi, Commissioner of Central Tax, Goods and Services Tax, Chhattisgarh And Commissioner, State Tax, Goods and Services Tax, Raipur, Chhattisgarh
GST
2018 (7) TMI 966 – CHHATTISGARH HIGH COURT – 2018 (14) G. S. T. L. 181 (Chhattisgarh)
CHHATTISGARH HIGH COURT – HC
Dated:- 14-5-2018
Writ Petition (T) No. 79 of 2018
GST
Mr. Sanjay K. Agrawal, J.
For The Petitioner : Mr. Amrito Das, Advocate.
For The Respondent : Mr. B. Gopa Kumar, Assistant Solicitor General of India, Mr. Maneesh Sharma, Advocate And Mr. Gary Mukhopadhyay, Govt. Advocate
Order
1. The petitioner is a registered dealer under the Chhattisgarh Goods and Services Tax Act, 2017and providing coal mining, logistics and other allied services to mainly Coal India Ltd.. The petitioner filed its last return for the period from 1st April, 2017 to 30th June, 2017 under the Chhattisgarh Value Added Tax Act, 2005 fo

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n clicking the submission button for filing TRAN-1, an error message was displayed as “some uploaded records are in progress, kindly submit once it is processed”. The authorities were complained of the said error which the authorities confirmed receipt of same and assured of updating as soon as the error was resolved, but it has not been resolved and the petitioner could not upload the statutory form TRAN-1, therefore, on account of technical glitches, the petitioner cannot be deprived of input tax credit benefit which the petitioner is otherwise entitled for. The petitioner has prayed for appropriate writ directing the respondent authorities to entertain the application of the petitioner manually and grant input tax credit benefit to the petitioner after due verification and to reopen the portal for enabling the petitioner to submit / upload FORM TRAN – 1.
3. Return has been filed by respondent No.4 and 5 stating inter alia that the Government of India, Ministry of Finance, Departmen

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id circular. Para 5 relates to appointment of Nodal Officer and para 8 relates to resolution of stuck TRAN-1s and filing of GSTR-3B. Para 8 of the circular reads as follows: –
“8. Resolution of stuck TRAN-1s and filing of GSTR- 3B
8.1 A large number of taxpayers could not complete the process of TRAN-1 filing either at the stage of original or revised filing as they could not digitally authenticate the TRAN-1s due to IT related glitches. As a result, a large number of such TRAN-1s are stuck in the system. GSTN shall identify such taxpayers who could not file TRAN-1 on the basis of electronic audit trial. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1 procedure (original or revised) of filing them on or before 27.12.2017 due to IT-glitch, shall be provided the facility to complete TRAN-1 filing. It is clarified that the last date for filing of TRAN 1 is not being extended in general and only these identified taxpayers shall be allowed to

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scribed for redressal of grievance which the petitioner has raised in this writ petition, particularly of non-uploading of FORM TRAN – 1 due to technical glitches. Apart from this, the State Government – Commissioner, Central Excise / GST has issued order dated 5-4-2018 in which Nodal Officers have already been appointed by the State Government. In view of the above, the petitioner is directed to approach the Nodal Officer of Korba i.e. Assistant Commissioner, State GST, Korba Circle-1 within four days from today by filing representation along with all necessary documents for redressal of his grievance and in turn, the said authority would consider and dispose of the same following the procedure laid down in para 8 of the circular dated 3-4-2018 and would take decision accordingly keeping in view that this writ petition remained pending since 11-4-2018.
8. With the aforesaid direction, the writ petition stands finally disposed of. No order as to cost(s).
9. Certified copy by tomorrow

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Waives the late fee payable the return in FORM GSTR-3B.
ERTS(T) 65/2017/372 Dated:- 14-5-2018 Meghalaya SGST
GST – States
Meghalaya SGST
Meghalaya SGST
GOVERNMENT OF MEGHALAYA
EXCISE, REGISTRATION, TAXATION & STAMPS DEPARTMENT
Notification
Dated Shillong, the 14th May, 2018
No. ERTS(T) 65/2017/372- In. exercise of the powers conferred by section 128 of the Meghalaya Goods and Services Tax Act, 20177 (Act No. 10 of 2017), the Government of Meghalaya, on the recommendations of t

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M/s. Dhamtari Krishi Kendra Versus Union of India, State of Chhattisgarh, Principal Commissioner, Central Excise, Customs & Service Tax (Central GST & Central Excise), Commissioner, Commercial Tax And GST Officer, Dhamtari, Commercial Tax/GST Office, Chhattisgarh
GST
2018 (5) TMI 1746 – CHHATTISGARH HIGH COURT – TMI
CHHATTISGARH HIGH COURT – HC
Dated:- 14-5-2018
Writ Petition (T) No. 68 of 2018
GST
Mr. Sanjay K. Agrawal, J.
For The Petitioner : Mr. Rajkamal Singh, Advocate
For The Respondent : Mr. B. Gopa Kumar, Assistant Solicitor General of India, Mr. Maneesh Sharma, Advocate And Mr. Gary Mukhopadhyay, Govt. Advocate
Order On Board
1. The petitioner is a registered dealer under the Chhattisgarh Goods and Services Tax Act, 2017 and carries on the agricultural related business of pesticides, fertilizers and seeds. The petitioner filed its last return for the period from 1st April, 2017 to 30th June, 2017 under the Chhattisgarh Value Added Tax Act, 2005 for pr

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nsel for the respondents submit that the Central Government has issued a notification setting up an IT grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST portal providing for appointment of Nodal Officer on identified issues and solutions have also been suggested in the said notification.
5. I have heard learned counsel for the parties and considered their rival submissions made herein above.
6. On 3rd of April, 2018, a circular has been issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs, New Delhi, for redressal of grievances of tax payers due to technical glitches on GST portal on which an IT Grievance Redresssal Committee has been constituted. Procedure for resolving the resolution of stuck TRAN – 1 has bee recorded and the manner has been indicated in paras 5 and 8 of the said circular. Para 5 relates to appointment of Nodal Officer and para 8 relates to reso

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nd the amount of credit in TRAN-1 during this process vis-a-vis the amount of credit which was recorded by the taxpayer in the TRAN-1, which could not be filed. If needed, GSTN may request field formations of Centre and State to collect additional document/data etc. or verify the same to identify taxpayers who should be allowed this procedure.
8.3 GSTN shall communicate directly with the taxpayers in this regard and submit a final report to GIC about the number of TRAN-1s filed and submitted through this process.
8.4 The taxpayers shall complete the process of filing of TRAN 1 stuck due to IT glitches, as discussed above, by 30th April 2018 and the process of completing filing of GSTR 3B which could not be filed for such TRAN 1 shall be completed by 31st May 2018.”
7. After going through the aforesaid circular and the scheme of the circular, I am convinced that complete procedure has been prescribed for redressal of grievance which the petitioner has raised in this writ petitio

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Waiver the late fee payable the return in FORM GSTR-3B.
16082-FIN-CT1-TAX-0043/2017-S.R.O. No. 169/2018 Dated:- 14-5-2018 Orissa SGST
GST – States
Orissa SGST
Orissa SGST
FINANCE DEPARTMENT
NOTIFICATION
The 14th May, 2018
S.R.O. No. 169/2018- In exercise of the powers conferred by Section 128 of the Odisha Goods and Services Tax Act, 2017 (Odisha Act 7 of 2017), the State Government, on the recommendations of the Goods and Services Tax Council, do hereby waive the late fee paya

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Natural Ester Dielectric Fluid (Envirotemp FR3) classified under GST Schedule II, incurs 12% IGST for transformer use.
Case-Laws
GST
Applicability of GST – Classification of goods – Natural Easter Dielectric Fluid (Envirotemp FR3) – soyabean oil has to be modified or adapted for use in the transformers – Envirotemp FR3 falls under Serial no. 27 of Schedule II – taxable at the rate of 12% IGST (i.e. 6% CGST and 6% SGST) – AAR
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Interest on Short-Term Loans by Del Credere Agents Exempt from GST, Says Authority for Advance Rulings.
Case-Laws
GST
Exemption from GST – Whether an amount charged as interest on transaction

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EMPLOYER-EMPLOYEE RELATIONSHIP V/S GST
By: – Natasha jhaver
Goods and Services Tax – GST
Dated:- 12-5-2018

“If you take care of your employees, they will take care of your business” by Richard Branson. It is the employees who support the employer to retain the customers and run the business. With the decision of the Advance Ruling Authority, Kerala [Caltech Polymers Pvt. Ltd. – 2018 (4) TMI 582 – AUTHORITY FOR ADVANCE RULING – KERALA ] the employer will have to think twice before providing healthy environment to the employees.
Wherein it was held that “Recovery of food expenses from the employees for canteen services provided by company would come under the definition of 'outward supply' as defined in the Section 2(83) of the Act, 2017, and therefore, taxable as a supply of service under GST”
The important aspect which was overlooked by AAR and needs attention is that Schedule III under Section 7(2) specifies that any services provided by an employee to the employer i

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reement during the tenure of the employment will out of the scope of GST. Like –
* Allowances mentioned as per the appointment letter of employees – travel allowance, food allowance, daily allowance etc.
* Perquisites – Accommodation, car, meal vouchers, etc
* Providing of transport facility
* Providing laptop for work
* Providing food at subsidized rate or for free
* Reimbursement of expenses like accommodation, drivers salary, medical expenses
Apart from the above, any transaction which occurs in connection or association with the employment will also be out of the scope of GST like –
* Refreshments (tea/coffee), lunch provided during the course of employment
* Reimbursement of expenses incurred by the employees in the course or furtherance of business.
Last but not the least, Section 7(2) overrules section 7(1), thus makes it more flawless that any transactions which are provided by the employee to employer in the course/relation to the employment shall be out of t

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e course or furtherance of business
Can a mere payment of some portion of the cost render the activity as in the course or furtherance of business? Though the term “in course or furtherance of” is not defined under the GST but the word 'business' has been defined in the GST law. Broadly it means any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity whether or not it is for pecuniary benefits. Any activity ancillary or incidental to these activities is also covered as business.
It would be therefore essential to refer the dictionary meaning of the said phrase. The Australian Concise Oxford Dictionary (1997) defines the phrase 'in the course of' as 'during' and the word 'furtherance' as to mean 'furthering or being furthered; the advancement of a scheme etc.'
In the instant case, the employer is manufacturer of the footwear and is providing the canteen services by the employer exclusively for the employe

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hat if the main activity falling under sub-clause (i) did not amount to business, normally these sales made in connection with or were incidental or ancillary to the main activity would not be 'business' but there could still be an exception where the sales so connected or incidental or ancillary to the main "non-business" activity were proved to have been made with an independent intention to do business and the burden of proof to prove the exception would fall on the revenue.”
In the light of the above interpretation by the Apex court, canteen services cannot be treated as ancillary to the business activity of manufacturing footwear. Firstly, canteen services are provided is an ingredient of the wage negotiation with employer and would form part of the consideration under employment agreement. Secondly, Factories Act mandates the employer to provide food/meal to the employees and lastly, canteen cannot be termed as a business activity. Hence, if canteen can be term

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the main business."
will not draw an inference
" if the main activity falling under sub-clause (i) did not amount to business, normally these sales made in connection with or were incidental or ancillary to the main activity would not be 'business' "
A few decisions of Hon'ble High Courts
1. CCE vs Magalam Cement, Udaipur ( 2017 (11) TMI 483 – RAJASTHAN HIGH COURT )
2. CCE v. Ferromatik Milacron India Ltd. ( 2010 (4) TMI 649 – GUJARAT HIGH COURT ), In the above factual and legal background, the Tribunal was justified in holding that the service tax paid on outdoor catering services by the canteen located in the respondent's manufacturing premises has to be considered as an input service relating to business and that Cenvat credit is admissible in respect of the same.
3. In CCE v. Stanzen Toyotetsu India Pvt. Ltd. ( 2011 (4) TMI 201 – KARNATAKA HIGH COURT ),
12. It is in this context that when the Assessee provides outdoor canteen facilities b

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I states that services by an EMPLOYEE to an EMPLOYER shall not be treated as supply which means if the supply provider and supply receiver is employee and employer respectively, then in such case the transaction shall not be treated as supply.
Whereas if a company provides food to its employees and recovers the amount from their salary, then in such case the supply provider and receiver shall be considered as employer and employee respectively which does not get covered under schedule III resulting that this transaction shall be treated as supply which falls under the inclusive definition of Section 7(1) and not under Section 7(2).
The value of taxable supply shall be determined as per the provisions of section 15 of CGST Act, 2017 in which for the purpose of such section, the term "persons" shall be deemed to be related persons if such persons are employer and employee.
Would like to take any inputs on this if any.
-SAIRAM ESWARAN
Dated: 14-8-2018
Scholarly article

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suo-motu CANCELLATION OF REGISTRATION
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 12-5-2018

In the article entitled 'Cancellation of registration under GST' published on 04.05.2018 in the TMI discusses the general procedure for cancellation of registration by the tax officers, revocation of cancellation of registration. In this article the detailed procedure on the cancellation of registration suo motu by tax officials of a registered person, as provided in the GST website.
Initiation of cancellation of registration
The tax officials may initiate suo motu cancellation of registration of a registered person under GST provisions under the following circumstances-
* Failure to furnish Application for Enrollment within 3 months from the appointed day or such extended period specified;
* Any Taxpayer other than composition taxpayer has not filed returns for a continuous period of six months;
* Supplies any goods and / or services without issu

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ctitioner is found guilty of misconduct in connection with any proceeding under the GST Law;
* Discontinuation/Closure of Business;
* Change in Constitution leading to change in PAN;
* Ceased to be liable to pay tax;
* Transfer of business on account of amalgamation, merger/demerger, sale, lease or otherwise disposed of etc.
* Death of Sole Proprietor;
* Composition person has not furnished returns for three consecutive tax periods;
* Registration has been obtained by means of fraud, willful misstatement or suppression of facts etc.,
Pre-condition for suo motu cancellation
There shall be valid reason among the above for the initiation for suo motu cancellation of registration.
Show cause notice
The certificate of registration cannot be cancelled by the tax officials unless the registered person is given reasonable opportunity of being heard. A show cause notice is to be issued in this regard by the tax official by the proper officer to submit the clarifications/reply

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notice
In case the Tax Official is satisfied with the response received from the taxpayer, on the Show Cause Notice issued, the proceedings can be dropped. The same may be intimated as detailed below-
* Primary Authorized Signatory will be intimated about dropping of SCN by SMS & Email.
* Issuance of Order for dropping of SCN will also be intimated to the Primary Authorized Signatory by Email and SMS.
* Order will be made available on the taxpayer's dashboard to view, print and download.
* Status of GSTIN will change from “Proceeding for Cancellation Initiated” to “Active”.
Cancellation of registration
If the proper officer is not satisfied with the response provided by the registered person he may order for cancellation of registration. The registered person whose registration is cancelled is to navigate to Services > User Services > View Notices and Orders to view the order regarding suo motu Cancellation of Registration.
Once registration is cancelled by the Tax Authori

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egistration.
The registered person whose registration is cancelled can login to the GST Portal after suo motu cancellation of registration. He can submit returns of the earlier period (i.e. for the period before date of cancellation mentioned in the cancellation order), after suo moto cancellation of registration. However, he will not be allowed to file return or upload invoices for the period after date of cancellation mentioned in the cancellation order. Also, GST Practitioner will not be able to carry out GSTP functions on his behalf for the period after the date of cancellation mentioned in the cancellation order.
Liability
Any liabilities prior to the date of suo moto cancellation will have to be paid by the taxpayer, irrespective of the fact that when determination of liabilities are done. Any liability which is related to that particular GSTIN is required to be paid by the taxpayer. It can be recovered later on even after the cancellation of GSTIN.
Cancellation under other A

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RECOMMENDATIONS OF GST COUNCIL (27th MEETING)
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 12-5-2018

It its 27th meeting held on 4th May, 2018, GST Council, the high powered Constitutional body to take decisions on levy and administration of Goods and Service Tax in India considered various issues and concerns and made recommendations. These recommendations are subject to detailed consideration by Group of Ministers or other bodies and shall be implemented in due course.
GST Council inter alia, made the following recommendations in its last meeting held on 04.05.2018:
Towards Simplification of returns:
Government is keen to introduce the simplified return design at the earliest to reduce the compliance burden on the trade in keeping with the philosophy of ease of doing business. Returns shall be simplified also by reducing the content/information required to be filled in the return. The details of the design of the return form, business process and

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ulating ITC automatically
* There shall not be any automatic reversal of input tax credit from buyer on non-payment of tax by the seller.
* Recovery of tax or reversal of input tax credit shall be through a due process of issuing notice and order. The process would be online and automated to reduce the human interface
* There will be three stage Transition Model as follows:
* Stage I: the present system of filing returns, which suppose to continue for period not exceeding 6 months.
* Stage II: New invoice wise return facility and claiming of ITC on self declaration basis.
* Stage III: After 6 month of phase II, the facility of claiming ITC on provisional basis will get withdrawn and input tax credit will only be limited to invoices uploaded by seller from whom dealer had purchased the goods.
* GSTR-I and GSTR 3B returns will continue for 6 months more.
Incentive to promote of Digital Transaction
* With a view to promote less cash economy, Council discussed a proposal

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rofit company under Section 25 of the Companies Act, 1956 (Section 8 of the Companies Act, 2013) with an objective to provide shared IT infrastructure and services to Centre and States Governments, tax payers and other stakeholders for implementation of Goods and Services Tax (GST) in the country.
* Presently, the Central Government and State Government are holding 24.5% equity shares respectively and the remaining 51% are held by non-Governmental institutions and through various mechanisms, GSTN is under strategic control of government.
* GST Council decided as follows:
Acquisition of entire 51% of equity held by the Non-Governmental Institutions in GSTN amounting to ₹ 5.1 crore, equally by the Centre and the States governments and allow GSTN Board to initiate process for acquisition of equity held by the private Companies; and GSTN Board shall be allowed to continue the existing staff at existing terms and conditions for the a period upto five years, and shall have the fl

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Electricity production by JEL from JSL-supplied coal is 'manufacture', not 'job work', under GST Act.
Case-Laws
GST
GST – The activity undertaken by JEL amounts to manufacture of electricity from the coal as supplied by JSL and is squarely covered in the definition of manufacture' under the GST Act. It is, therefore, not covered by the scope of the definition of 'job work' under the GST Act as contended by the applicant – AAR
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High Court Overturns Goods Seizure, Confirms Proper Tax Applied; No Tax Evasion in Interstate Transaction.
Case-Laws
GST
Detention of goods with vehicle – interstate movement of goods – There is no doubt with regard to transaction in question as the Integrated Goods and Service Tax (IGST) has been charged by the petitioner in its invoice and when the IGST is required to be paid then there cannot be any intention to evade the payment tax namely SGST and CGST – the seizure order and the c

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India Gate Basmati Rice Anti-profiteering Case Dismissed Due to No Input Tax Credit Benefit for Consumers.
Case-Laws
GST
Anti-Profiteering proceedings – Benefit of reduction in the rate of ta

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Hotel Services in Karnataka SEZs Not Tax-Exempt Under GST, Deemed Intra-State Supplies per Place of Provision Rules.
Case-Laws
GST
Supply of goods & services to SEZ or not – intra-state supply – Place of Provision Rules – Whether the Hotel Accommodation & Restaurant services provided by them, within the premises of the Hotel, to the employees & guests of SEZ units, be treated as supply of goods & services to SEZ units in Karnataka or not? – Held No – AAR
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Vasantha Green Projects Versus CCT, Rangareddy GST
Service Tax
2018 (5) TMI 889 – CESTAT HYDERABAD – 2019 (20) G. S. T. L. 568 (Tri. – Hyd.)
CESTAT HYDERABAD – AT
Dated:- 11-5-2018
Appeal No. ST/31095/2017 – Final Order No. A/30559/2018
Service Tax
Hon'ble Mr. M. V. Ravindran, Member (Judicial) And Hon'ble Mr. Madhu Mohan Damodhar, Member (Technical)
Shri Alok Barthwal & Sh. Ch. Nageswara Rao,Advocate and Consultant for the Appellant
Shri J Sreenivas, Superintendent /AR for the Respondent
ORDER
[ Order Per : M. V. Ravindran ]
1. This appeal is directed against Order-in-Original NO. HYD- EXCUS-004-COM-006-17-18, dated 31.05.2017.
2. The relevant facts that arise for consideration are that appellant is registered with the Department under the category of construction of residential complex services and works contract services; entered into joint development agreement for construction of houses and residential premises with different land owners, in respect of o

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ued on the basis of nearest sale value of the villas to the new prospective customers of the property which lies with the appellant. The appellant contested the show cause notice on limitation as well as on merits, taking the stand that the value of Rs. 5,495/- per sq. Ft in respect of the land owner share is incorrect as the entire value of the land was considered by them while discharging the service tax liability in terms of Section 67 (1)(iii) of Finance Act, 1994 read with Rule 3(a) of Service Tax (Determination of value) Rules, 2006 and claim the benefit of abatement as per various notifications. The adjudicating authority, after due process of law, confirmed the demands raised alongwith interest and imposed penalties.
3. Ld. Counsel Shri Alok Barthwal appeared alongwith Shri Ch. Nageswara Rao, Consultant for the appellant. It is his submission that demand has been wrongly confirmed; that at the time of sale of Villas to prospective customers, appellant had included the cost of

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he Finance Act, 1994 shall be gross amount charged by service provider (builder in this case) for such services provided or to be provided and these instructions are applicable on Revenue and has not been withdrawn.
4. Ld. DR after reiterating the findings of the lower authorities, submits that to arrive at gross value for discharge of service tax, the value of construction of villas which are given free of cost to the landlords also needs to be considered as recorded by the adjudicating authority in para Nos. 21 to 23. It is his submission that they have adopted the value for inclusion of discharge of service tax on the portion of the land developed and given to the land owners @ Rs. 1,779/- per sq.ft. is totally wrong going by the provisions of Section 67 (1) of Finance Act, 1994 read with rule 3(a) of the Service Tax (Determination of value) Rules, 2006 and as clarified by the Board vide circular dated 10.02.2012 and the value that should be adopted for discharging the service tax

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s provided construction services to the land owner and as a consideration, received legal rights on his share of land, constructed Villas on that land and sold them, which would mean that appellant is investing the consideration received from first transaction of land owners right to construct in second transaction. In our view, merely because the consideration received from land owners is invested in construction of villas to other buyers on which service tax is paid, it cannot be concluded that service tax paid on consideration received from land owners has to be evaluated differently.
6. There is no dispute as to the following facts:
a) Appellant and land owners entered into joint development agreement under which appellant has to construct villas on the land owned by land owner and sale the same to prospective customers on which service tax liability is discharged.
b) In consideration of such land, appellant has constructed villas for the land owner and the value of villas sol

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understand that the value which has been arrived at for sale of villas to prospective customers, would include the consideration paid or payable for acquisition of land. It is not a case that appellant has not discharged the service tax liability on the value received for the villas from prospective customers. In our view, if the consideration towards the acquisition of the land has been included in the value of the villas sold to prospective customers and appropriate service tax liability has been discharged the same value, it cannot be again made liable to service tax under the premise that sale value of the villas given to land owners is a consideration on which service tax liability was not discharged. It would be imperative to reproduce the provisions of Section 67 of the Finance Act, 1994 which would apply in the case in hand, as also rule 3 of the Service Tax (Determination of the Value) Rules, 2006.
“24. For the purpose of analyzing the valuation aspect of the impugned transa

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ll be such amount as, with the addition of tax payable, is equal to the gross amount charged.
(3) The gross amount charged for the taxable service shall include any amount received towards the taxable service before, during or after provision of such service.
(4) Subject to the provisions of sub-sections (1), (2) and (3), the value shall be determined in such manner as may be prescribed under Rule 3 of Service Tax (Determination of value) Rules, 2006 (hereinafter “valuation Rules.”
“Rule 3. Manner of determination of value- subject to the provisions of section 67, the value of taxable service where such value is not ascertainable, shall be determined by the service provider in the following manner:-
(a) The value of such taxable service shall be equivalent to the gross amount charged by the service provider to provide similar service to any other person in the ordinary course of trade and the gross amount charged is the sole consideration;
(b) Where the value cannot be d

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ideration received by them and in such a case there is no reason to again demand service tax on the villas constructed and handed over to the land owners.
9. The Chartered Accountant certificate has clearly stated that to arrive at the value of construction, areas of villas to be shared to land owners, the Developer (the appellant herein) had undertaken an exercise to determine the value of construction per sq.ft for the villas and the said construction value of the villas built up area which was shared free of cost to the land owner, was considered while arriving at the service tax liability. We find that the annexure to the said certificate talks about the financial arrangements which we have explained herein above. The said Chartered Accountant certificate and the annexure thereto are reproduced:
10. The adjudicating authority, in the impugned order, had relied upon Board Circular No. 151/2/2012-ST, dt. 10.02.2012 to arrive at the value in the case of flats given to land owners to

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c) contractors and (d) buyers exist. These practices influence the 'taxable value' under the construction of complex services. In all such situations, the taxable value under section 67 shall be the gross amount charged by the service provider (builder in this case) for such services provided or to be provided by him. This read with notification No. 18/2005-ST, dated 07.06.2005 entitles a builder/contractor an abetment of 67% on the gross amount charged, which shall include the value of goods and material supplied. Further, there is no deductions/exemptions provided for computation of such taxable value in the composite contract.”
(emphasis supplied)
12. It can be seen from the above said instructions, the gross amount charged by the builder is liable to tax. The said instructions are in force till today and has not been withdrawn by the Board. As already detailed herein above, the appellant has discharged the service tax liability on the gross amount charged i.e. consideration re

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e tax on the same amount again would amount to double taxation.
13. The reliance placed by Ld. DR on the case of LCS City Makers Pvt. Ltd. will also not carry the case of Revenue any further, as in that Bench upheld the contention of the Revenue that recording that “the facts and circumstances of the case do not warrant assessment of a different value for services in respect of flats sold to individual buyers as compared to flat handedover to the land owners”; and recorded that the flats which were allotted to land owners were sold by land owners. In the case in hand, the facts are different.
14. In respect of the arguments put forth on limitation, we do find that in the situation wherein the interpretation of the provisions of Section 67 and the rules were involved and there could be different interpretation. It is undisputed that appellant had declared the value received from prospective customers in their returns and discharged the service tax liability thereon, which include the

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Pioneer Hi Bred Private Limited Versus CCT, CE & ST, Medchal GST
Service Tax
2018 (5) TMI 923 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 11-5-2018
Appeal No. ST/30143/2018 – Final Order No. A/30562/2018
Service Tax
Hon'ble Mr. M. V. Ravindran, Member ( Judicial )
Shri Puneet Bansal, Advocate for the Appellant
Shri B. Guna Ranjan, Superintendent /AR for the Respondent
ORDER
[ Order Per : M. V. Ravindran ]
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS- 001-AP2-0226-17-18-ST, dated 09.11.2017.
2. Heard both sides and perused the records.
3. On perusal of records, it transpires that the issue is regarding rejection of refund claim of Rs. 14,94,636/- on the grounds that the operations were carried out at different locations and which were not registered in the Centralised registration; denial of refund of Rs. 6,35,422/- on the ground that invoices issued by the Service Provider were not in the name of appellant.
4. Appellant herein

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ar.)] is not applicable and as regards refund of Rs. 6,35,422/- in addition to the finding that the premises were not registered, he has recorded that the invoices contain the name of another person i.e. Pioneer Overseas Corporation. As regards refund amount of Rs. 14,94,636/-, there is no dispute as to the fact that the locations from where the services were exported by the appellant were to the account of this appellant only and the premises from where the services were exported are in existence and the input services were received at such premises, is a question of fact that it is undisputed in both the issues.
6. If that be so, Ld. First appellate authority was in error in not following the law settled by Hon'ble High Court of Karnataka in the case of mPortal India Wireless Solutions Private Limited (supra). Their Lordships in para Nos. 6 to 8 held as under:
(6). The assessee is a 100% export oriented unit. The export of software at the relevant point of time was not a taxable s

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ot made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside.
(8). That does not mean that the assessee is entitled to refund as claimed by him consequent to setting aside these orders. As is clear from the order of the original authority in the show cause notice, they have categorically called upon the assessee to furnish the particulars of the taxes paid on input services. They called upon the assessee to produce the invoices, bills, receipts to substantiate their claim for their verification. The assessee would be entitled to the refund of the Cenvat credit only on his proof that he has paid input Service tax.
7. Similar view was expressed by Hon'ble High Court of Madras in the case of CST Chennai [2017(3) GSTL 45 (Mad

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In Re : EMC Ltd.
GST
2018 (5) TMI 964 – AUTHORITY FOR ADVANCE RULINGS, WEST BENGAL – 2018 (13) G. S. T. L. 217 (A. A. R. – GST), [2018] 2 GSTL (AAR) 67 (AAR)
AUTHORITY FOR ADVANCE RULINGS, WEST BENGAL – AAR
Dated:- 11-5-2018
Case Number 07 of 2018
GST
Mr. Vishwanath, Member And Mr. Parthasarathi Dey, Member
RULING
1. The Applicant is stated to be a supplier of materials and allied services for erection of towers, testing and commissioning of transmission lines and setting up sub-stations collectively called the Tower Package. His question is related to contracts obtained mainly from M/s Power Grid Corporation of India (hereinafter the contractee). The contractee awards the Applicant contracts for supply of Tower Packages split up into two separate sets of contracts – one for supply of materials at exfactory price (hereinafter the First Contract), and the other for supply of allied services like survey and erection of towers, testing and commissioning of transmi

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oods transport agency (hereinafter the GTA) or engaged in insurance business. He will, according to the application, arrange such services and pay the GST as applicable on the consideration paid to the suppliers of such services. His service to the contractee for inland/local transportation, the applicant argues, is exempt under the GST Act. He refers to Notification No. 9/2017 – IT (Rate) dated 28/06/2017, which, according to him, grants exemption on transportation service provided by an entity other than GTA. Since the applicant is not a GTA, his supply of transportation service, he claims, is exempt vide the above notification.
4. Before dealing with the above argument, it needs to be clarified that reference to a notification under the IGST Act should be contract specific, where an inter-state supply is taking place. In this application general nature of a supply is being dealt with rather than the place of any particular supply. Moreover, West Bengal Authority for Advance Ruling

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ortation and ancillary services like in-transit insurance, which are included in the freight bills the contracts referred to above need to be examined.
7. The First Contract includes ex-works supply of all equipment and materials. The scope of the work includes testing and supply of transmission line towers, spares and accessories thereof, and all other materials required for successful commissioning of the transmission line.
8. The Second Contract includes all other activities required to be performed for complete execution of the tower package. The scope of the work includes transportation, in-transit insurance, loading/unloading and delivery of the goods to the contractee's site; detailed survey including route alignment, profiling etc; classification of foundations for the towers and casing of foundations based on the drawing supplied by the contractee; erection of the towers; dismantling of the existing 400kv transmission line; stringing of power line crossing section under live

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ntractee is aware of such interdependence of the two contracts. Although awarded under two separate contract agreements, clauses under both of them make it abundantly clear that notwithstanding the break-up of the contract price, the contract shall, at all times, be construed as a single source responsibility contract and the Applicant shall remain responsible to ensure execution of both the contracts to achieve successful completion and taking over of the facilities. Any breach in any part of the First Contract shall be treated as a breach of the Second Contract, and vise versa. It is expressly understood that any default or breach under the 'Second Contract' shall automatically be deemed as a default or breach of this 'First Contract' also and vice-versa, and any such default or breach or occurrence giving the contractee a right to terminate the 'Second Contract', either in full or in part, and/or recover damages there under.
11. The two contracts are, therefore, linked by a cross f

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is clear from the clause that defines satisfactory performance of the First Contract (supply of goods) as the time when the goods so supplied are installed and finally commissioned in terms of the Second Contract. In other words, the First Contract cannot be performed satisfactorily unless the goods have been transported and delivered to the contractee's site, applied for erection of towers, the transmission lines laid, tested and commissioned in terms of the Second Contract. The two promises – supply of the goods and the allied services – are not separately enforceable in the present context. The recipient has not contracted for ex-factory supply of materials, but for the composite supply, namely works contract service for construction of the Tower Package.
13. The price components of both the First and the Second Contracts, including that for transportation, in-transit insurance etc are to be clubbed together to arrive at the value of the composite supply of works contract service a

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Assitant Commissioner Of Central GST Ahmedabad South Versus Ideal Sheet Metal Stamping And Pressing Pvt Ltd.
VAT and Sales Tax
2018 (5) TMI 1179 – GUJARAT HIGH COURT – TMI
GUJARAT HIGH COURT – HC
Dated:- 11-5-2018
Civil Application (OJ) NO. 1 of 2018 in R/Tax Appeal No. 550 of 2018
CST, VAT & Sales Tax
MR. AKIL KURESHI AND MR. B.N. KARIA, JJ.
For The Petitioner : Mr Nirzar S Desai
IA ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
Learned counsel for the applicant su

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M/s. Premier Agro Products (P) Ltd. Versus Assistant Commissioner of State Tax State GST Department Kerala, Palakkad
VAT and Sales Tax
2018 (5) TMI 1184 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 11-5-2018
W.P. (C). No.15199 of 2018
CST, VAT & Sales Tax
MR. SUNIL THOMAS, J.
For The PETITIONER : SRI. C. P. MOHAMMED NIAS And SRI.S.AJITH (PALAKKAD)
For The RESPONDENT : SRI MOHAMMED RAFIQ
JUDGMENT
By Ext.P9, interest on balance tax due from the petitioner for the year 1997-98 was determined by the assessing authority. It is stated that, pursuant to it, Exts.P10 and P11 demand notices were issued for the recovery of the amounts due. According to the petitioner herein, challenging that, sales tax appeal ha

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Assistant Commissioner of Central GST Ahmedabad South Versus Ferromatik Milacron India Private Limited
Central Excise
2018 (5) TMI 1208 – GUJARAT HIGH COURT – TMI
GUJARAT HIGH COURT – HC
Dated:- 11-5-2018
R/Tax Appeal No. 551 of 2018
Central Excise
MR. AKIL KURESHI AND MR. B.N. KARIA, JJ.
For The Petitioner : Mr Nirzar S Desai (2117)
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
Tax Appeal is admitted for consideration of the following substantial question of

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Commissioner of CGST, Customs And Central Excise, Alwar Versus M/s. Lark Laboratories, M/s. Kajaria Ceramics Ltd.
Central Excise
2018 (6) TMI 860 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 11-5-2018
Excise COD Application No. 50342 – 50343 of 2018, Excise Appeal No. 50835 – 50836 of 2018 – A/51944-51945/2018-EX[DB], MISC ORDER No. 50305-50306/2018
Central Excise
Mr. Justice (Dr.) Satish Chandra, President And Mr. Bijay Kumar, Member (Technical)
Shri M R Sharma. Shri R K Mishra, AR for the Appellants
Shri Ankit Danial, Advocate for the Respondent No. 1, None for Respondent No. 2
Per: Justice (Dr.) Satish Chandra:
Delay in filing the present appeals is condoned for the reasons mentioned in the application. COD application allowed and appeals are admitted.
2. Both the appeals are filed by the department against Order-in-Appeal Nos. 475 & 473 (SM) CE/JPR/2017 both dated 22.11.2017.
3. Brief facts of the case are that the respondents-assessee were a

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er decision in the case of National Engineering Industries Ltd. vs. CCE & ST, Jaipur I Final Order No. 57218/2017 dated 10.10.2017 where it was observed that :
“After hearing both the parties, we note that identical issue has come up before the Tribunal in the case of M/s Mangalam Cement Ltd. vs. CCE, Udaipur. The Tribunal vide final order No. 56683-56685/2017 dt. 28.08.2017 held as under:-
“4. With regard to availment of Cenvat credit on the commission paid for sale promotion activities, the CBEC vide Circular No. 943/4/2011-CX dt. 29.04.2011 has clarified that Cenvat credit is admissible on the services of the sale of the dutiable goods on commission basis. The said circular was endorsed by the Central Government vide Notification No. 2/2016-CE (NT) dt. 03.02.2016. In the case of Cadila Healthcare Ltd. (supra), the Hon'ble Gujarat High Court had not referred to the Circular dt. 29.04.2011 and also there were divergent views by the Hon'ble Punjab & Haryana High Court in the case of

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ces by way of sale of dutiable goods on commission basis. In other way, Explanation to Rule 2(l) of Rules says in clear terms that there is no bar on availment of the Cenvat credit on sales promotion service by way of sale of dutiable goods on commission basis. Further, by inserting the Explanation in the Rule 2(l), it has confirmed the Board Circular and resolved the different views of the High Courts. Taking into circumstances under which the Explanation was inserted in Rule 2(l) of Rules, 2004 and consequences of the Explanation to extend the benefit to the assessee as per Board Circular, we hold that the Explanation inserted 4 in Rule 2(l) of Rules, 2004 by Notification No. 2/2016-CX (N.T.) (supra) should be declaratory in nature and effective retrospectively”.
5. In view of the above settled position and law, we do not find any merits in the impugned orders. Accordingly, after setting aside the same, we allow the appeals in favour of the appellants”.
6. By following our earlie

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IN RE : M/s TP AJMER DISTRIBUTION LIMITED
GST
2018 (6) TMI 1196 – AUTHORITY FOR ADVANCE RULING – RAJASTHAN – 2018 (14) G. S. T. L. 309 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING – RAJASTHAN – AAR
Dated:- 11-5-2018
ADVANCE RULING NO. RAJ/AAR/2018-19/02
GST
Nitin Wapa, Member and Sudhir Sharma, Member
Present for the Applicant – Shri Varun Sharma, FCA, Authorised Representative
RULING
(A) SUBMISSION OF APPLICANT
1. M/s TP Ajmer Distribution Limited ('TPADL' or 'Applicant' or 'the Company'); having Goods and Services Tax ('GST') Registration No. 08AAGCT2158P1ZR and is engaged in the business of distribution of electricity; has submitted that,
1.1 The Tata Power Company Limited ('TPCL') has signed a Distribution Franchisee Agreement ('DFA') with Ajmer Vidyut Vitran Nigam Limited ('AVVNL') to cater to the power requirements of customers in Ajmer, Rajasthan for a period of 20 years. To serve the aforesaid purpose,

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transfer to a new location or transfer of name
Charges to be recovered for releasing temporary Connections
Charges are recovered for releasing of temporary connections. The charges include advance against electricity consumption, security and application fees and service line charges.
Charges for duplicate bill
In case of duplicate bill required by consumer, charges are recovered
Additional amount to be deposited on demand for extension of distribution mains/SuppIy line
This amount is collected for extension of the distribution mains/ supply lines. There is certain amount of material which is used in the present case.
Security Deposits for Electricity Consumption
This is a refundable security deposit w'hich is collected from the consumers
Security Deposits against Meters
This is a refundable security deposit for the meter installed at the customer's premises
Rent for metering equipment
Rent is collected for metering equipment for industrial consumers
Meter Testing

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Transformers Testing Fees
In certain cases a fee is charged for testing of transformers
Capacitor Units Testing Fees
Capacitor unit is equipment used to maintain the power factor of electrical installation. This fee is taken to ensure that the capacitor units are maintaining the power factor as per norms given by the regulator “Power Factor” shall mean the monthly average power factor determined as the ratio of total Watt Hours to corresponding
Volt Ampere Hours.
Fee charged for testing of consumer's installation
These charges are recovered for any addition/ alternation on consumer installation. Installation shall mean the whole of the electric wires, fittings, motors and apparatus erected and wired by or on behalf of the consumer, on his premises.
Charges for alteration/shifting of service line
In case of shifting of the service line from the pole to the home, charges for alteration/ shifting are recovered. Such charges may also be recovered in case of shifting of lines

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gime, as per Entry No. 25 of Notification 12/2017 – Central Tax (Rate) dated 28.06.2017, exemption from levy of GST has been granted to the activity of Transmission or distribution of electricity by an electricity transmission or distribution utility. Corresponding notifications have also been issued under the IGST Act and SGST Act – Notification No. 9/2017 – Integrated Tax (Rate) dated 28.06.2017 and SGST-No. F 17(131) ACCT/GST/2017/6822 dated 29.06.2017
(B) ISSUE FOR DETERMINATION
The question/ issue before the authority of advance Ruling (AAR) for determination are:
a. Whether TPADL is eligible to avail the exemption from levy of GST under Entry No. 25 of Notification 12/2017 – Central Tax (Rate) dated 28.06.2017 bearing description 'Transmission or distribution of electricity by an electricity transmission or distribution utility' with respect to the non-tariff charges recovered by TPADL from its customers?
b. Whether TPADL is liable to pay tax on the aforesaid recov

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outside the ambit of 'Supply'.
3.3 It is further pertinent to note that intra-state and inter-state supplies of electrical energy which is classifiable under Chapter Heading 2716 00 00 of the Customs Tariff Act. 1975 is exempt (NIL rate of tax) vide Notification No. 2/2017 – Central Tax (Rate) dated 28.06.2017 and Notification No. 2/2017 – Integrated Tax (Rate) dated 28.06.2017, respectively.
3.4 Further, services by way of transmission or distribution of electricity by an electricity transmission or distribution utility have been exempted vide the Exemption Notification. The relevant extract of the Exemption Notification is reproduced hereunder:
''Transmission or distribution of electricity by an electricity transmission or distribution utility ”
3.5 Serial No. 2(z) of the Exemption Notification defines electricity transmission or distribution utility as under:
“electricity transmission or distribution utility” means the Central Electricity Authority; a State

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gned to it in clause (67) of section 2 of the Electricity Act, 2003 (36 of 2003);
4. The applicant has also submitted that,
4.1 From the provisions of the CGST Act mentioned above in Para 2, the service of transmission or distribution of electricity by an electricity transmission or distribution utility is exempt under Exemption Notification. As per the said Exemption Notification, the benefit of the exemption can be availed only when the below mentioned conditions are satisfied:
a) The service shall be the service of transmission or distribution of electricity, and
b) The said service shall be provided by an electricity transmission or distribution utility.
4.2 In the present case, TPADL is regarded as a franchisee since it has entered into a DFA with AVVNL being distribution licensee under the Electricity Act, 2003 ('Electricity Act). Therefore, TPADL would clearly fall within the ambit of definition of the term 'electricity transmission or distribution utility'. Ac

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ertain activities like installation, repair and maintenance of meter, electric lines/plant and other related activities. The detailed list of activities undertaken by TPADL are enumerated under para 3 above. The expenses incurred by TPADL for providing the aforesaid services are as a part and parcel of the activity of distribution of electricity as TPADL has to incur these expenses in order to provide the service of distribution of electricity.
(D) Personal Hearing (PH)
5. In the matter personal hearing was given to applicant. Shri Varun Sharma, FCA , appeared as Authorised Representative of applicant for personal hearing on 05.05.2018. During the PH he reiterated the submission already made in application submitted on 12.02.2018 .
Further during personal hearing the clarification issued under Circular no. 34/8/2018-GST dated 01.03.2018 issued vide F.No. 354/17/ 2018 was brought to the applicant's notice and issues raised in application for Advance Ruling were discussed in ligh

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2017 GST. (Notification No.9/2017 Integrated Tax (Rate) dated 28.06.2017 and SGST No. F12 (56)FD/Tax/2017-Pt-I-50 dated 29.06.2017)
” Transmission or distribution of electricity by an electricity transmission or distribution utility” is EXEMPTED
Further as per the definitions given under notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 in respective paras,
(z) “electricity transmission or distribution utility ” means the Central Electricity Authority; a State Electricity Board; the Central Transmission Utility or a State Transmission Utility notified under the Electricity Act, 2003 (36 of 2003);
or a distribution or transmission licensee under the said Act,
or any other entity entrusted with such function by the Central Government or, as the case may be, the State Government;
Therefore, in terms of above definition. M/s TPADL is covered under electricity transmission or distribution utility and Transmission or distribution of electricity by an electricity transmiss

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service lines
v. charges for duplicate bill;
provided by DISCOMS to consumer are taxable.
7.3 REFUNDABLE SECURITY DEPOSITS –
As per Section 2 (31) of the CGST Act, 2017
“consideration” in relation to the supply of goods or services or both includes-
(a) any payment made or to be made, whether in money or otherwise, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government:
(b) the monetary value of any act or forbearance, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government:
Provided that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the sup

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yment of any consideration for any supply;
Hence taxable.
7.7 The Jurisdictional officer in his comments has also stated that GST is liveable on all nontariff charges for services not directly related to transmission or distribution of electricity and has opined that there no such exemption under the GST Act, hence are taxable . He has further given reference of the clarification issued under Circular no. 34/8/2018-GST dated 01.03.2018 issued vide F.No. 354/17/ 2018 which states that other services provided by DISCOM to consumer are taxable.
7.8 Therefore, in view of the clarification issued under Circular no. 34/8/2018-GST dated 01.03.2018 issued vide F.No. 354/17/ 2018. and as discussed in above paras, it is found that, M/s TPADL is not eligible to avail the exemption from levy of GST under Entry No. 25 of Notification 12/2017 – Central Tax (Rate) dated 28.06.2017 bearing description 'Transmission or distribution of electricity by an electricity transmission or distribution ut

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M/s Avadh Rail Infra Limited Versus Commissioner, GST & Central Excise, Lucknow
Central Excise
2018 (7) TMI 1114 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 11-5-2018
APPEAL No. E/70205/-2018-EX[SM] – A/71086/2018-SM[BR]
Central Excise
Mr. Anil G. Shakkarwar, Member (Technical)
Shri A. P. Mathur, Advocate for Appellant
Shri Gyanendra Kumar Tripathi. Assistant Commissioner (AR) for Respondent
ORDER
Per: Anil G. Shakkarwar
The present appeal is directed against Order-in-Appeal No. 211-ST/APPL-LKO/LKO/2017 dated 06/09/2017 passed by Commissioner (Appeals) GST & Central Excise, Lucknow.
2. The brief facts of the case are that the appellant was registered under Service Tax for Goods Transport Agency Service and was paying Service Tax on the said service under “Reverse Charge Mechanism”. Through their letter 26/05/2015 appellant submitted a claim for refund of Rs. 6,57,070/-. The appellant contended that during the period from July, 2012 to March, 201

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4, the Refund Application was time barred. The appellant was called upon to show cause as to why the said refund application should not be rejected. The said claim was adjudicated through Order-in-Original dated 23/05/2016, wherein the Original Authority has held that the refund claim was hit by limitation and therefore, rejected the refund claim. Aggrieved by the said order appellant preferred appeal before Commissioner (Appeals), which was decided through impugned Order-in-Appeal. The ld. Commissioner (Appeals) has held that out of the claim of refund Rs. 2,49,450/- were barred by limitation and the entire refund claim was hit by bar of unjust enrichment for the reason that the appellants, neither at the stage of adjudication proceedings nor at the appeal stage could prove by any documentary evidence that the incidence of excess payment had not been passed on by him to any other person. Aggrieved by the said order, appellant is before this Tribunal.
3. Heard ld. Counsel – Shri A.P.

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on Versus Commissioner of Central Excise, Nashik reported at 2018 (9) G.S.T.L. 8 (Bombay), wherein it was held that the amount paid as duty by mistake of law is not covered by Section 11B of the Central Excise Act, 1944, so far as limitation is concerned. He has also relied on ruling of Hon'ble Karnataka High Court in the case of K.V.R. Constructions Versus Commissioner of Central Excise, Bangalore reported at 2010 (17) S.T.R. 6 (Karnataka) wherein it was held that if an amount paid by assessee to Revenue considering Service Tax, it is to be treated as deposit at the hands of Government and over such amount limitation under Section 11B of the Central Excise Act, 1944, does not apply.
4. Heard the ld. A. R. for Revenue, who has supported the impugned Order-in-Appeal.
5. Having considered the rival contentions and on perusal of the facts on record, I find that the contentions raised by ld. Counsel for the appellant are sustainable in law. I, therefore, hold that impugned Order-in-A

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