Month: March 2019

GST – Started By: – Madhavan iyengar – Dated:- 4-3-2019 Last Replied Date:- 11-3-2019 – A company has recovered Certain sums basic amount and interest from vendor these amounts are certain taxes of earlier law which was not paid by the vendor to the company and in companys assessment the ITC of earlier law was disallowed query is gst applicable on the recovery of basic amount of taxes and the interest – Reply By PAWAN KUMAR – The Reply = Dear Sir, As per my view, the same will be subject to GST. As per valuation section 15 of CGST act, any tax, duty, cess fee and any other charges of any law other than SGST, UTGST, GST(Compensation to states) Act shall be liable to be includible in value of supply of goods or services or both. Interest, late fee , penalty in respect of supply of goods or services shall also be laible to be include in value for charging GST. – Reply By SHARAD ANADA – The Reply = First of all GST Is charged only on supply of goods or services or both. In your case there

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GSTR-3B. The applicable interest and penalty shall apply on all such reversals which shall be paid through entry in column 9 of Table 6.1 of FORM GST-3B. 6.2 Amended Para 3. It may be noted that all such liabilities may be discharged by the taxpayers, either voluntarily in FORM GST DRC-03 or may be recovered vide order uploaded in FORM GST DRC-07, and payment against the said order shall be made in FORM GST DRC-03. It is further clarified that the alternative method of reversing the wrongly availed CENVAT credit under the existing law and inadmissible transitional credit through Table 4(B)(2) of FORM GSTR-3B would no longer be available to taxpayers. The applicable interest and penalty shall apply in respect of all such amounts, which shall also be paid in FORM GST DRC-03. – Reply By Madhavan iyengar – The Reply = Dear Sirs sharadji and pawanji thanks for the detailed analysis but iam once again retiterating the issueThe Company has discharged all its obligations under earlier law, now

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ery + explanation provided:- I'm on the view that there is no supply in this transaction as the same is transaction in money. No requirement to pay GST on the same. Grounds for opinion :- W.e.f from 01.02.2019 – Schedule II of CGST Act can't be used for determining the transaction whether it is supply or not. It is only to classify whether the supply is supply of goods or services. The clause (e) of Sl.no.5 of Schedule II of CGST Act sounds like a residuary clause as it mentions agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act which can be interpreted in a way to cover even transaction in monies. Before classifying a supply under this head a detailed analysis and great care has to be taken. I'm re-iterating your case in some other manner for better understanding – you made payment to vendor for purchase of 100 units but he delivered only 75 units and your receiving back the amount relating to 25 units, will you treat i

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GST – Started By: – SAFETAB LIFESCIENCE – Dated:- 4-3-2019 Last Replied Date:- 6-3-2019 – Dear Experts, We have received a letter from GST range seeking clariification for the variation between our GSTR-3B and GSTR-2A. Some of the suppliers have not uploaded their bills and every one aware that this difference is due to suppliers non uploading only. But we have pucca GST paid bills. At this stage, we want to know whether we are eligible to take ITC only if it is displayed in 2A compulsorily and is it mandatory. What we can do if our party is not uploading their bills. Is there any rules or notification are there stating only and only we can take ITC if available in GSTR-2A only. – Reply By KASTURI SETHI – The Reply = Uploading invoices by

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B for the month of September, 2018 is unfounded as the same exercise can be done thereafter also. As per Section 155 of CGST Act, 2017 the burden of proof is cast upon the person who claims ITC. As per Section 43 A (6) of CGST ACT both are jointly and severally liable to pay or to pay ITC. The supplier is also statutorily bound to file returns under Section 39 wherein he is to mention details of all invoices. – Reply By Ganeshan Kalyani – The Reply = The input tax credit taken by the buyer is on self assessment basis. There is no compulsion as of now to match the invoice appearing in GSTR-2A with the details uploaded by the supplier in his GSTR-1. However, as rightly said by Sri Kasturi Sir, the onus of claiming the credit is upon the buyer

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essment basis, the condition prescribed in the section 16(1) should be complied with : -GST should be paid by supplier – In this provisions, all output invoices must upload on Portal so as to correctly estimate the GST liability and paid taxes. -GST return should be filed by supplier – As per this provision, return should be filed for the taxes paid. The press note dated 18.10.2018 was issued to clarify the aspect that in trade it was being communicated that ITC if not reconciled with 2A and 3B, one cannot take ITC. The CBIC released the press note to clarify that even if reco not done, claim will not impact. you may claim itc subject to condition of section 16 which now prevails and exists. Even some of the trade has been issued notice tha

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2019 (3) TMI 453 – CESTAT KOLKATA – TMI – Refund claims – price variation clause – transaction value determined after importation due to annual discount/quantity rebate, determined after end of the contract period – rejection on the ground that the assessments are final and as such, refund claims are not maintainable – Held that:- Tribunal in the case of Commissioner of Customs (Export) New Delhi Vs. Lalit Kumar [2017 (1) TMI 7 – CESTAT NEW DELHI] has held that refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 – refund allowed – appeal allowed – decided in favor of appellant. – MA (EH)-77675-77687/18 & Cus. Appeal Nos.75850-75862/18 – MO/75133-75145/2019 & FO/75233-75245/2019 – Dated:- 4-3-2019 – SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri S.

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ount/quantity rebate, resulted in reduction of price/assessable value under Section 14 of the Customs Act, 1962. Refund claims were filed along with all the documents including BRC. The claims were rejected on the ground that the assessments are final and as such, refund claims are not maintainable. 4. Heard both sides and perused the appeal records. 5. We find that the raw material i.e. Rock Phosphate was imported from Morocco, with whom the appellants have long terms contracts. The said contract contains price variation clause, according to which depending upon the quantum of off take, the overseas supplier offers quantity rebate and price discount, which can only be ascertained at the end of the contract period. The above factual aspects are admitted by the authorities below, and therefore, those are not under dispute. Since the quantity rebate/price discount was not known at the time of import, the imported goods were cleared on payment of duty, on the basis value shown by the over

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reduced value represented the transaction value of imported Rock Phosphate, in terms of Section 14 of the Customs Act. 7. As stated above, the appellant at the time of importation, paid duty on the value shown in the bill of lading, which was higher than the transaction value, determined subsequently, after receipt of discount/rebate amount from the foreign suppliers. Transaction value, in terms of Section 14 of the Act, means the price actually paid/ payable for the imported goods. Duty, in terms of Section 14 of the Act, is leviable/payable on the transaction value. Duty payable in this case became lesser than the duty already paid by the appellant. 8. The Assistant Commissioner, relying upon the decision of the Hon ble Supreme Court in the case of Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries 2004 (172) E.L.T. 145 (S.C.), had held that since the appellant did not challenge the assessment of bill of entry by filling appeal against the same, Refund App

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rusal of the case records, we find that the refund application filed by the respondent on 25-5-2011, claiming refund of excess duty paid by it was returned by the Assistant Commissioner (Refund) under the cover of his letter dated 24-8-2011. Thereafter, the respondent had filed the appeal before the Commissioner (Appeals) on 12-9-2011. Cause of action for filing appeal will not be considered as the date of assessment of the Bill of Entry inasmuch as the benefit of duty exemption provided under the above referred notifications was claimed by the respondent in the refund application, since the same was not considered at the time of assessment. Decision taken by the Department for non-consideration of the refund application filed after finalization of assessment and return of the same under the cover of letter dated 24-8-2011, assigning the reason of premature and not maintainable, in our considered opinion, would give rise to the cause of action for filing appeal before the ld. Commissio

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the benefit provided under notification dated 1-3-2006 was not claimed in the Bill of Entry. On the basis of information furnished by the respondent, since the Bill of Entry was assessed by the Customs Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent in pursuance of an order of assessment . The case of the respondent falls under the second category, i.e., borne by him contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, claiming of refund of such excess duty in terms of Section 27 ibid, in our view is in conformity with the statutory provisions. 7. The judgment of Hon ble Supreme Court in the case of Priya Blue Industries Ltd. (supra) cited by Revenue in their grounds of appeal is distinguishable from the facts of the present case inasmuch as the duty in such case was paid by the importer in pursuance of an assessment order and the Hon ble Supreme Court have r

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ment are extracted herein below :- If, therefore, we refer to language of 4. Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be borne by him . Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of cases, where the duty is paid by a person without an order of assessment, i.e. in a case like the present where the assessee pays the duty in ignorance of a notification which allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adversarial assessment order. The Tribunal has referred to the cases of 5. CCE, Kanpur v. Floc

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Central Excise – Refund of unutilized amount lying in Cenvat credit account post GST – no authority can sanction refund claim to be credited in Cenvat credit account – refund is allowed in cash – TMI Updates – Highlights

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GST – Started By: – Madhavan iyengar – Dated:- 2-3-2019 Last Replied Date:- 3-3-2019 – A Company has received an Invoice for AMC bill for period January 2018 to December 2018 towards maintenance services. Company has made the entire payment in the month of January 2018Issue: Can the Company avail the entire GST-ITC as mentioned in the AMC in the month of January 2018. – Reply By CASusheel Gupta – The Reply = Yes, can be claimedIn case of goods also, we take ITC at the time of inward supply irrespective of actual date of consumption. – Reply By Madhavan iyengar – The Reply = but one of the conditions to avail itc in gst law is that the company should have received the goods / services ??? – Reply By KASTURI SETHI – The Reply = In terms of S

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me month is also changes as per availability of me and sometime his. Similarly in case of yours can you maintain a log as to when he is giving service in terms of AMC. If yes take credit when service is received . otherwise it can be safely decided that credit can be taken on the receipt of invoice . – Reply By CASusheel Gupta – The Reply = Suppose I purchase an AC on 31.03.2018It am entitled to one AC (goods received), one year warranty (shall be availed in next year) and three free service coupon (shall be availed in next year) . How to apportion now between these three. I believe unless the stakes are high, we can take credit on receipt of invoice. At the most at year end we can reverse an estimated amount and can take re-credit in April

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GST – Started By: – HIMANSHU SHRIMALI – Dated:- 2-3-2019 Last Replied Date:- 5-3-2019 – is E Way Bill required to be generate if i issue 4 invoice of ₹ 20000/-each (80,000)to same receipeant, same tranporter.? Whether provision of Rajasthan E Way Bill (intra – state i.e. movement of goods with in Rajasthan) is same as of CGST ? I tried a lot to get amended E Way Bill provision of Rajasthan GST but failed. 1. is E Way Bill required to be generate by the supplier or recipient : if i issue 4 invoice of ₹ 20000/-each (80,000) to same recipient, same transporter?2. Whether provision of Rajasthan E Way Bill (intra – state i.e. movement of goods with in Rajasthan) is same as of CGST ? I tried a lot to get amended E Way Bill provision

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bill if supplies or recepient has not gererated e way bill. Please refer Rule 138(7) of CGST Rule 2017. The same is reproduced here under for your ready reference 7) Where the consignor or the consignee has not generated the e-way bill in FORM GST EWB-01 and the aggregate of the consignment value of goods carried in the conveyance is more than fifty thousand rupees, the transporter, except in case of transportation of goods by railways, air and vessel, shall, in respect of inter-State supply, generate the e-way bill in FORM GST EWB-01 on the basis of invoice or bill of supply or delivery challan, as the case may be, and may also generate a consolidated e-way bill in FORM GST EWB-02 on the common portal prior to the movement of goods: Provi

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Goods and Services Tax – GST – By: – Mr. M. GOVINDARAJAN – Dated:- 2-3-2019 Last Replied Date:- 5-3-2019 – Intermediary The term intermediary is defined under section 2(13) of the IGST Act as a broker, an agent, or any other person, by whatever name called, who arranges or facilitates the supply of goods or services or both, or securities, between two or more persons, but does not include a person who supplies such goods or services or both or securities on his own account. From the above definition it can be inferred that an intermediary can be a broker, an agent or any other person who arranges and facilitates the supply of goods and/or services between two or more persons and who cannot change the nature of supply as provided by the principal. An intermediary cannot alter the nature or value of the service, the supply of which he facilitates on behalf of his principal, although the principal may authorize the intermediary to negotiate a different price. The principal must know the

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aid activities of the appellant clearly in the nature of arranging or facilitating supply of goods by foreign entity to customers in India, the same is considered to be as intermediary services as defined under section 2(13) of the Central Goods and Services Tax Act, 2017 particularly when he is not supplying goods neither on behalf of the principal or on his own account but the same is supplied by the principal, a foreign entity. Therefore the Appellate Authority held that the contention of the appellant that promotion and marketing services provided by him to such foreign entity on his account, excluded from purview of the definition of intermediary service is not acceptable. Intermediary services – Export of services? Section 2(6) of the Integrated Goods and Services Tax Act, 2017 ( IGST Act for short) defines the expression export of services as the supply of services, when- (i) the supplier of service is located in India; (ii) the recipient of service is located outside India; (ii

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nswer is given in the following case laws- In re Vishakhar Prashant Bhave – 2018 (12) TMI 227 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA the question for which advance ruling was sought is as to whether the commission received by the applicant in convertible foreign exchange for rendering services as an intermediary between an exporter abroad receiving such services and an Indian importer of an equipment is an export of service falling under section 2(6) of IGST Act and outside the purview of section 13(8)(b) attracting zero rated tax under section 16(1)(a) of IGST Act. The AAR held that since the place of supply of services in this case is in taxable territory, the said intermediary services cannot be treated as export of services under the provisions of GST laws. In re Global Reach Education Services Private Limited – 2018 (8) TMI 392 – APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL, the appellant promotes the courses of the University, finds suitable prospective students to un

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the subscriber to whom it is proposed to market the CRS software. Based on the organizational and workflow analysis of the subscriber and following a back ground check of their prior activities, the applicant logs on a request into the system through the website maintained by Sabre APAC called Subscriber Communication Management System. If the subscriber agrees to use the CRS software, order forms are collected from them to begin the process for activation of the CRS Software. Once the subscriber is registered successful and a Pseudo City Code is allotted in its favor. Once the code is allotted and the setup is activated the applicant s engineers install user interfaces to access the CRS Software in the subscriber s computer systems. The Authority found that the job of the applicant is to scout for the subscribers in India. The applicant explains and educates the subscribers about the software. The subscribers become aware of the software only after the applicant approaches them. The s

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Goods and Services Tax – GST – Dated:- 1-3-2019 – On the occasion of 43rd Foundation Day of the Indian Civil Accounts Service (ICAS), the Controller General of Accounts (CGA) and his team of senior officers along with the Expenditure Secretary, Shri G.C. Murmu called on the Union Minister of Finance and Corporate Affairs, Shri Arun Jaitley in his office here today and briefed him on two recent achievements: Refunds of GST, and Operationalisation of PM-KISAN Scheme. CGA presented a Report on Tot

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Goods and Services Tax – GST – Dated:- 1-3-2019 – Total gross GST revenue collected in the month of February, 2019 is ₹ 97,247 crore of which CGST is ₹ 17,626crore, SGST is ₹ 24,192crore, IGST is ₹ 46,953crore (including ₹ 21,384crore collected on imports) and Cess is ₹ 8,476 crore (including ₹ 910crore collected on imports). Total number of GSTR 3B Returns filed for the month of January up to 28th February, 2019 is 73.48lakh. The Government has settled

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GST – Started By: – RAMESH M – Dated:- 1-3-2019 Last Replied Date:- 3-3-2019 – We exported our automobile material with payment of IGST, Due to some techinical issue the exported materials were rejected. we have to RE-IMPORT the above material. If there is any tax implication while RE-IMPORT the same.We also availed the all export benefits like DBK / MEIS / IGST refund for above export shipmentsShall we repay the availed above export benefits to GOVT ? or any other customs duty shall we pay add

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GST – Started By: – NILESH PITALE – Dated:- 1-3-2019 Last Replied Date:- 5-3-2019 – Respected Concern Authority Our Client received Contract of ( Work Design, Fabrication,Supply, Installation,Testing,& Commissioning Heavy Duty Back Rake type Mechanical Screen) from Goverment Authority, Question No-1: Can we consider it Composit Supply and Changed it 12% , if Not then 18% ? Question No: 2: If we awarded said contact to Sub -contractor then he will charged us 12% As per Notification No. 1/2018-Central Tax (Rate) dated 25.1.2018 Question 3: If As per above notification tax Rate 12% then , I guess Our contact is chargeable at 18% Please Guide us what we should charged to the Goverment – Reply By KASTURI SETHI – The Reply = Query-wise reply

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e is a single supply. According to definition of works contract under GST regime, the supply of goods and services are done by the supplier simultaneously which is for immovable property. Hence in works contract supply of goods and services together is compulsory – Thus, based on above facts and concept such contract shall be a single supply and cannot be treated as distinct supplies. Since all the conditions of composite supply are satisfied, it is a composite supply. The activity proposed to be undertaken is a composite supply of works contract, the rate of tax in given service shall be determined in accordance with the Notification No 11/2017-CT (Rate) dated 28.06.2017, as amended from time to time. Thus, the activity of supply, design,

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GST – Levy of CST – Benefit of lower CST or exemption from CST post GST – Procurement of high speed diesel oil for manufacturing – the question whether the finished goods would also have to be amongst

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GST – Started By: – Vaibhav Bhala – Dated:- 1-3-2019 Last Replied Date:- 5-3-2019 – Respected Sir We have received an advance in pre-GST regime for service tax and we duly paid service tax on it. The services were to be rendered after 01-07-2017 i.e. post-GST induction. As we were unaware of GST provisions at that time we charged GST at the actual time of supply of services and it was duly deposited with Government. Since it was doubly taxed we took credit of earlier service tax paid in TRAN-1. But now we realized that as per Sec. 142(11)(b) of CGST Act, 2017, we were not supposed to charge GST on the supply of Services for which Service Tax was already deposited and service tax paid was our output liability and input of it cannot be avail

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Goods and Services Tax – GST – By: – Dr. Sanjiv Agarwal – Dated:- 1-3-2019 – Can reduction in discount offered by supplier of goods resulting in increase in price amounts to profiteering in contravention of section 171 of CGST Act, 2017 ? The answer is NO, as affirmed by National Anti-Profiteering Authority (NAA). In Kerala State Screening Committee on Anti-profiteering and DGAP, CBIC, New Delhi v. Asian Paints Ltd., Kerala 2019 (1) TMI 21 – NATIONAL ANTI-PROFITEERING AUTHORITY ; , the NAA, vide its Order dated 27.12.2018, has ordered that where base price is increased due to reduction in discount, it does not amount to profiteering as discount is offered from the profit margin which does not form part of base price. In the instant case, p

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t-GST 1. Product Description A Paint (AP Apex Classic WT 10 LT (HSN Code 3209) 2. Invoice No. B 13006429 KR1701110400 3. Invoice Date C 20.06.2017 09.11.2017 4. MRP as per Annexure-7 (Rs.) D 2.610 2,660 5. Price before discount per unit (Rs.) E 2,159 1,927 6. Discount per unit (Rs.) F 75.57 67.45 7. Price after discount per unit (Rs.) G=E-F 2,083.43 1,859.55 8. Central Excise Duty @12.5% on 70% of MRP (Rs.) H=(D*70%)*12.5% 228.38 – 9. Base Price (Excluding duties & taxes) (Rs.) I=G-H 1,855.05 1,859.55 10. Tax Rate Charged (%) J 14.50% VAT 28% GST 11. Tax Amount (VAT or GST) (Rs.) K=G*J 302.10 520.67 12. Total Tax Amount (Rs.) L=H+K 530.48 520.67 13. Total Tax incident (%) M=L/I 28.60% 28% 14. Increase in Base Price Diff in I Rs.4.50/- (

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n the tax rate, thus, the provisions of Section 171 (1) of the CGST Act, 2017 relating to profiteering were not contravened in the instant case. The NAA based on DGAP report, invoices etc, examined whether there was any reduction in the GST rate and whether the benefit of reduction in the rate of tax was passed on or not to the recipient as provided under Section 171 of the CGST Act, 2017. It observed that supplier had increased the base price of the product from ₹ 1855.05/- to ₹ 1859.55/- resulting in an increase of ₹ 4.50/-. In this context, it was clear that the post-GST price before discount had been reduced from ₹ 2159/- to ₹ 1927/-. Also, the discount offered had been reduced from ₹ 75.57/- to &#837

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Goods and Services Tax – GST – By: – Sandeep Rawat – Dated:- 1-3-2019 – SUPPLEMENTARY INVOICES AND THEIR USES Supplementary tax invoice has not been defined under GST law. Supplementary tax invoice is a type of invoice that is issued by a taxable person in case where any deficiency is found in a tax invoice already issued by a taxable person. It can be in form of a debit note or a credit note. ISSUANCE OF CREDIT NOTE A supplier of services is mandatorily required to issue a tax invoice. However, during the course of trade or commerce, after the invoice has been issued there could be situations like: The supplier has erroneously declared a value which is more than the actual value of the services provided. The supplier has erroneously declared a higher tax rate than what is applicable for the kind of the services supplied. The quality services supplied is not to the satisfaction of the recipient thereby necessitating a partial or total reimbursement on the invoice value. Any other simi

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r services or both provided. The supplier has erroneously declared a lower tax rate than what is applicable for the kind of the goods or services or both supplied. The quantity received by the recipient is more than what has been declared in the tax invoice. Any other similar reasons. In order to regularize these kinds of situations the supplier is allowed to issue what is called as debit note to the recipient. Any registered person who issues a debit note in relation to a supply of services, shall declare the details of such debit note in the return for the month during which such debit note has been issued and the tax liability shall be adjusted in such manner as may be prescribed DETAILS REQUIRED TO BE SHOWN There is no prescribed format for credit/debit note issued by a supplier. However, it must contain certain prescribed particulars. A supplementary tax invoice / or credit note under section 34 (1) or debit note under section 34 (3) read with Rule 6 of Revised Invoice Rules 2017,

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other like documents, the amount of tax. INPUT TAX CREDIT As per section 16(1) of GST law, no registered taxable person shall be entitled to the credit of any input tax in respect of any supply of goods and/or services to him unless he is in possession of tax invoice, debit note, supplementary invoice or such other taxpaying document as may be prescribed, issued by a supplier registered under the CGST/SGST or the IGST Act. As per section 16(1) & 16(2) of GST law, The registered person will be entitled to the credit of any input tax in respect of any supply of goods and/or services to him only if ALL the following five conditions are fulfilled: (a)Possession of tax paying document [Section 16(2)(a) read with rule 36 of the CGST Rules]ITC can be availed on the basis of any of the following documents: Invoice issued by a supplier of goods and/or services Invoice issued by recipient (receiving goods and/or services from unregistered supplier) along with proof of payment of tax (in case

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M/s. TECPRO INFRA PROJECTS LTD. (FORMERLY KNOWN AS BESL INFRA PROJECTS LTD) Versus STATE TAX OFFICER STATE GST DEPARTMENT OF KERALA, ALUVA, THE COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM, STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM AND CENTRAL BOARD OF EXCISE & CUSTOMS DEPARTMENT OF REVENUE, NEW DELHI – 2019 (3) TMI 488 – KERALA HIGH COURT – TMI – Constitutionality of section 174 of KGST Act and 101st Constitutional Amendment – Jurisdiction – power to enact section 174 of KGST Act – Held that:- Identical issue decided in the case of M/S. SHEEN GOLDEN JEWELS (INDIA) PVT. LTD. VERSUS THE STATE TAX OFFICER (IB) -1, AND OTHERS [2019 (2) TMI 300 – KERALA

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that clauses [d] and [e] of section 174 of the Kerala Goods and Services Tax Act 2017 are inconsistent and contradictory with the provisions of Sec.19 of the Constitution One Hundred and First Amendment Act 2016 and hence they are ultravires to the Constitution of India. iii) To declare that the powers under erstwhile Entry 54 do not exist post 15/09/2017 and therefore the provisions of the Kerala Value Added Tax Act cannot be enforced after 15/09/2017 so long as the old Entry 54 has not been saved. iv) To declare that when the provisions of Constitution are inconsistent with the provisions of a statute, the provisions of Constitution will prevail over the provisions of statute and so provisions of Sec.174 of the Kerala Goods and Service T

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2019 (3) TMI 435 – APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA – TMI – Valuation – inclusion of amortized cost of the tools in assessable value – tools are supplied by the customer free of cost and used by the Appellant in the manufacture of the components – Section 15 of the CGST Act read with Rule 27 of CGST Rules – challenge to AAR decision – Held that:- Under the erstwhile Central Excise regime, Rule 6 of the Central Excise Valuation Rules, 2000 required an assessee to calculate the intrinsic value of the excisable goods by including any additional consideration flowing directly or indirectly from the buyer to the assessee – Under the GST regime of taxation, the taxable event which attracts the levy of GST is the ‘supply’ of goods or services, in terms of Section 9 of the CGST (and SGST) Act or Section 5 of the IGST Act, depending on whether the transaction of ‘supply’ is intrastate or interstate.
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In so far as the valuation of the supply is concerned, Section 15 of th

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ng that there is uninterrupted supply of their parts. While the first priority is that the supplier should use the DICV Owned Tools for the manufacture of the component parts, there is also the possibility that Non-DICV Owned Tools can also be used for the manufacture of parts for the customer. In the event of the second possibility, the customer, DICV takes ownership of the Non-DICV Owned Tools by way of a security only with the objective of ensuring that the supply of their parts by the Appellant is uninterrupted. In the event there is an interruption in delivery of manufactured components using the Non-DICV Owned Tools, then the customer, DICV, has the right to demand the surrender of the tools and reimburse the Appellant the percentage of the tool cost which has not been amortized. On perusal of the contract, it is understood that, in the case Non- DICV Owned Tools are used in the manufacture of the components, the price agreed upon includes the amortized cost of the Non-DICV Owned

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ions; therefore; unless a mention is particularly made to such a dissimilar provision, a reference to the CGST Act would also mean a reference to the corresponding similar provisions under the KGST Act. The present appeal has been filed under section 100 of the Central Goods and Services Tax Act, 2017 and the Karnataka Goods and Services Tax Act, 2017 (hereinafter referred to as the CGST Act and KGST Act ) by M/s. Nash Industries (I) Private Limited, (herein after referred to as the Appellant ) against the Advance Ruling No. NO. KAR ADRG 24/2018 dated 25th October 2018 = 2018 (11) TMI 607 – AUTHORITY FOR ADVANCE RULINGS, KARNATAKA. BRIEF FACTS OF THE CASE 1. M/s. Nash Industries (I) Private Limited is registered under GST with GSTIN No. 29AADCN9558Q1ZC and is a manufacturer of sheet metal pressed components and supplies to industrial customers like Automotive, Banking Hardware, Power Protection, Alternate Energy etc. The tools required to manufacture these components were designed and

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e CGST/KGST Act,2017. 4. Aggrieved by the said ruling of the Authority, the applicant has filed an appeal under section 100 of the CGST Act, 2017 / KGST Act, 2017 on the following grounds: 4.1. The appellant submitted that the purchase order provided by the recipient/customer is only for the manufacture of components out of the tools supplied by the recipient at free of cost. 4.2. Further, the appellant submitted that the CBIC vide Circular No.47/21/2018-GST dated 08.06.2018 has clarified the position regarding amortization of tool cost supplied free of cost by the customer, to the value of components manufactured by the component manufacturer, The relevant extract of the circular is provided below: Sl.No. Issue Clarification 1 Whether moulds and dies owned by Original Equipment Manufacturers(OEM) that are sent free of cost FOC to a component manufacturer is leviable to tax and whether OEMs are required to reverse input tax credit in this case? 1.1. MouIds and dies owned by the origina

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d component manufacturer was for supply of components made by using the moulds/dies belonging to the Component manufacturer, but the same have been supplied by the OEM to the component manufacturer on FOC basis; the amortised cost of such moulds/dies shall be added to the value of the components. In such cases, the OEM will be required to reverse the credit availed on such moulds/dies, as the same will not be considered to be provided by OEM to the component manufacturer in the course or furtherance of the former s business 4.3. They submitted that the above circular covers two situations, which are as follows: a. The value of the moulds and dies owned by the original equipment manufacturer (OEM) which are provided to a component manufacturer on FOC basis shall not be added to the value of such supply because the cost of moulds/dies was not to be incurred by the component manufacturer. b. The contract between OEM and component manufacturer was for supply of components made by using the

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t of the tool is required to be added only if the tool is belonging to the component manufacturer (Appellant). In the present case, the owner of the tool is the recipient / customer and hence the cost of tool is not required to be added to the price of the component; that the scope of the Appellant s activity is limited to manufacture and supply of components; that, the burden of supply of tools is on the customer and not on the Appellant. Therefore, the tool supplied by the customer at free of cost is not required to be added to the cost of components manufactured by the Appellant. 4.6. The appellant drew attention to the provisions of Section 15 of CGST/KGST Act,2017 and submitted that there is no amount which was liable to be paid by the Appellant but incurred by the recipient. Instead the agreement between the Appellant and the customer is only for manufacture and supply of components and not to manufacture the tool. That being the case, the cost of the tool is not be included in t

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ubmissions before this Authority wherein they stated that the Maharashtra Authority for Advance Ruling in the case of Lear Automotive India Private Ltd had passed a ruling GST-ARA-19/2018-19/B-80 dated 31.07.2018 = 2018 (12) TMI 766 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA on the same issue i.e. whether amortized value of the tool received on FOC basis from the customer is required to be included in the value of finished goods manufactured and supplied by the applicant to the customer. The Maharashtra AAR had based on the facts and circumstances of the case before them, held in the negative. Relying on the above said order they submitted that the same is also applicable in their case. During the personal hearing, this Authority asked for the details of the terms of the contract between the Appellant and their customer to be furnished in order to understand each party s obligations. The representative agreed to submit it in due course. 6. The Appellant through their representative Ch

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n flowing directly or indirectly from the buyer to the assessee. In other words, since excise duty was levied on the activity of manufacture, any activity which was contributing to the manufacturing activity was included in the assessable value irrespective of the fact as to who owned the inputs and capital goods. In view of the same, the Appellant was amortizing the value of such tools supplied by their customers free of charge and was including the same in the assessable value of the final goods for discharging applicable Central Excise duty. With the advent of GST with effect from 1st July 2017, a provision similar to the erstwhile Rule 6 of the Valuation Rules does not exist thereby warranting the question whether, under the GST regime, the value of the tool cost is required to be amortized. 10. Under the GST regime of taxation, the taxable event which attracts the levy of GST is the supply of goods or services, in terms of Section 9 of the CGST (and SGST) Act or Section 5 of the I

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n value which is the price paid or payable by the recipient provided the supplier and recipient are unrelated parties and price is the sole consideration for the supply. Further Section of the said Act specifically states that where any amount which the supplier is liable to pay in relation to a supply but the same has been incurred by the recipient on behalf of the supplier, then such amount is required to be added while determining the transaction value. 11. In the present case, there is no dispute on the fact that the Appellant and their customers are not related parties. We need to examine whether the price paid by the customers is the sole consideration for the supply made by the Appellant. For this purpose, it is necessary to understand the contractual arrangement between the Appellant and their customers to see whether the scope of the supply mandates that, the Appellant is to incur a cost for the manufacture and use of the tool but the same has been supplied by the customer fre

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er has been performed Supplier must hand over the tooling to Buyer following fulfillment of the Purchase Order if so requested by Buyer. 13. The Daimler India Special Terms (DIST) are a set of rules governing the supply arrangement between DICV and the Appellant. The DIST forms an integral part of the contract along with the General Terms and Conditions of DICV for the purchase of products that are specifically mentioned in the purchase contract. The relevant provisions of the DIST relating to tools are reproduced hereunder: 1.4. With regard to tools, a distinction must be made between tools which are or will become the property of DICV (hereinafter DICV Owned Tools ) and tools which are not the property of DICV (hereinafter Non-DICV Owned Tools ) To ensure the aforementioned distinction is made appropriately, DICV Asset Accounting team will provide Asset Identification Tags to the supplier, which should be affixed in the most appropriate place of DICV Owned Tools. Regardless of owners

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lowing terms of maintenance. The supplier must ensure constant defect-free functional capacity and readiness of the tools during their use within the framework of the supply contract with DICV for the purpose of uninterrupted delivery to DICV by means of continuous maintenance and repair at its own expense. 2.5 In the event where changes in DICV s technical specifications require any modifications to the tools, the supplier must submit a prior written offer to DICV to modify the tools with the least possible expenditure. 2.6 The supplier must clearly and permanently identify those tools which are DICV Owned Tools as the property Of DICV. 2.8 At the end of delivery or termination of contractual relationship with the supplier, the supplier shall return the tools to DICV in the condition to be expected following fulfillment of the supplier s duties arising from these DIST. 3. Insofar as Non-DICV Owned are concerned, DICV shall Obtain ownership of the existing and subsequent tools by way o

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ourse of the development of the Tool will be transferred to DICV. The Appellant is entitled to keep the tool in his premises only as a temporary possession until the completion of the supply of components manufactured using the tool. During the course of temporary possession of the tools owned by DICV, the Appellant is required to affix Asset Identification Tags on the DICV Owned Tools in order to identity the DICV owned tool. On completion of the contractual relationship, the Appellant is required to return the tools to DICV. In so far as Non-DICV Owned Tools are concerned, the terms of the contract state that in order to ensure uninterrupted supply of parts, DICV obtain ownership of the existing and subsequent tools by way of security. Thus it is evident that, in this case, the customer, DICV, has assumed the responsibility to provide the tools to the Appellant in the interest of ensuring that there is uninterrupted supply of their parts. While the first priority is that the supplier

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by OEM that are provided to a component manufacturer on FOC basis do not constitute a supply as there is no consideration and in such cases, the value of goods provided on FOC basis shall not be added to the value of supply of components. However, in case the contractual obligation is cast upon the component manufacturer to provide moulds/dies but the same have been provided by the OEM on FOC basis, then the amortized cost of the moulds/dies is required to be added to the value of the components supplied. In the present case, the terms and conditions of the contract between the OEM DICV and the Appellant clearly indicate that no such obligation is cast on the Appellant. The OEM has taken the responsibility to provide the tools. In a case where the tools are developed and manufactured by the Appellant according to the requirements of the customer (DICV), then the total cost of the tools is borne by DICV and the title of the tools transfers to DICV, while the Appellant is allowed to reta

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2019 (3) TMI 429 – NATIONAL ANTI-PROFITEERING AUTHORITY – TMI – Profiteering – Caribbean Wood Tile – benefit of reduction in the rate of tax no passed on – contravention of Section 171 of the Central Goods & Service Tax (CGST) Act, 2017 – Held that:- There was no reduction of tax with the introduction of GST. The DGAP on examining various facts has categorically mentioned that the invoices very clearly show that no VAT was levied and CST was also exempted prior to 01.07.2017. In fact the rate of tax has increased from Central Excise Duty 13.97% to GST 28% w.e.f. 01.07.2017. Therefore, the allegation of profiteering is not sustainable in terms of Section 171 of the CGST Act, 2017 as there has been no reduction in the rate of tax.
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There is no merit in the application – application dismissed. – Case No. 14/2019 Dated:- 1-3-2019 – Sh. B. N. Sharma, Chairman, Sh. J. C. Chauhan, Technical Member, Ms. R. Bhagyadevi, Technical Member And Amand Shah, Technical Member Ms. A. Shainamol, A

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he above reference was examined by the Standing Committee on Anti-Profiteering and was further referred to the DGAP vide minutes of its meeting dated 02.07.2018 for detailed investigations under Rule 129 (1) of the CGST Rules, 2017. 3. The Directorate General of Anti-Profiteering (DGAP), after detailed investigation submitted its present report dated 03.10.2018 under Rule 129 (6) of the CGST Rules, 2017. 4. The DGAP has observed that in the pre-GST era, the rate of tax applicable on the product was Central Excise Duty @ 12.5% of the 60% of the MRP and there was no VAT or CST charged in the invoice whereas after implementation of the GST w.e.f. 01.07.2017, the tax rate of GST on the said product was fixed at 28%. The DGAP has further furnished the pre-GST & the post-GST sale invoice-wise details of the applicable tax rate and base price (excluding CST or GST) of the said product supplied by the Respondent in the table given below:- Period Pre-GST (prior to 01.07.2017) Post-GST (post

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gation of profiteering by the Respondent was not established 6. The above report was considered by the Authority in its meeting held on 03.10.2018 and it was decided that since there was no complainant/other applicant in this case, the Kerala Screening Committee be asked to appear before the Authority on 18.10.2018. Since, no one appeared for the hearing on 18.10.2018, the Authority decided to ask Kerala Screening Committee to appear before the Authority on 31.10.2018. Ms. A. Shainamol, Additional Commissioner, SGST, Kerala appeared on behalf of the Applicant No. 1 on 31.10.2018. During the hearing, it was observed that the DGAP report had not considered the MRP and base price (excluding VAT) of the product in question. 7. The Authority accordingly vide its letter dated 13.12.2018 had returned the report to the DGAP for re-investigation on the above mentioned issue under Rule 133(4) of the CGST Rules, 2017. 8. The DGAP vide his Report dated 20.12.2018 has submitted that as per Annexure

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al Excise duty was leviable @ 12.5% on 60% of the MRP(40 0/o abatement). Since the transaction had taken place at a price lower than the MRP, the MRP has no bearing on the allegation of profiteering. 9. The DGAP has further observed that in the pre-GST invoice dated 27.04.2017, there was no VAT (transaction was exempt from CST) and the Central Excise duty amounted to 13.97%, there was no reduction in the tax rate post implementation of GST. In fact, post-GST, the tax rate increased from 13.97% to 28%. Hence, Section 171 of the CGST Act, 2017, is not attracted. 10. We have carefully examined the report of the DGAP and the documents placed on record and find that the only issue that needs to be dwelled upon is as to whether there was reduction in the rate of tax on the product in question after introduction of GST and whether the provisions of section 171 of CGST Act, 2017, are attracted. Perusal of Section 171 of the CGST Act, 2017, reads as under:- (1). Any reduction in rate of tax on

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2019 (3) TMI 374 – ALLAHABAD HIGH COURT – TMI – Maintainability of petition – alternative remedy of appeal – order passed under Section 73 (9) of the U.P. GST Act, 2017 – Held that:- The aforesaid order is appellable under Section 107 of the U.P. GST Act – In view of the statutory provision for appeal we are not inclined to entertain the petition at all – petition dismissed. – Writ Tax No. – 235 of 2019 Dated:- 1-3-2019 – Pankaj Mithal And Saumitra Dayal Singh JJ. For the Petitioner : Nikhil Agrawal For the Respondent : C.S.C. ORDER Heard Sri Nikhil Agrawal, learned counsel for the petitioner and Sri CB. Tripathi for the respondents. The writ petition is directed against the order passed under Section 73 (9) of the U.P. GST Act, 2017 date

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2019 (3) TMI 370 – THE NATIONAL ANTI-PROFITEERING AUTHORITY – TMI – Profiteering – Ceramic Vitrified Tiles – benefit in the reduction of rate of tax not passed on – contravention of Section 171 (1) of the CGST Act, 2017 – N/N. 41/2017-Central Tax (Rate) dated 14.11.2017 – Held that:- It is clear that the base price of the product per box was ₹ 232.50 prior to 15.11.2017 and had remained the same even after GST rate reduction w.e.f. 15.11.2017. Therefore, the benefit of rate reduction appears to have been passed on. This Authority agrees with the DGAP's Report dated 28.09.2018 and accordingly, holds that the allegation of profiteering is not sustainable.
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The provisions of Section 171 of the CGST Act, 2017, have not been contravened and there is no merit in the application forwarded by the Applicant No. 1 – application dismissed. – 13/2019 Dated:- 1-3-2019 – Sh. B. N. Sharma, Chairman, Sh. J. C. Chauhan, Technical Member, Ms. R. Bhagyadevi, Technical Member And Sh. Amand S

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the pre-GST rate reduction period and invoice no. 0860 dated 15.12.2017 issued in the post-GST era. 2. The above application was examined by the Standing Committee on Anti-Profiteering and was referred to the DGAP vide minutes of its meeting dated 02.07.2018 for detailed investigation under Rule 129 (1) of the CGST Rules, 2017. 3. The present Report dated 28.09.2018 has been received from the Directorate General of Anti-Profiteering (DGAP) after detailed investigation under Rule 129 (6) of the CGST Rules, 2017. 4. The DGAP in his Report has stated that vide Notification No. 41/2017- Central Tax (Rate) dated 14.11.2017 the GST rate on the product "Ceramic Vitrified Tiles" Nano Series PRE-I (HSN Code 69072100) was reduced to 18% from the existing rate of 28% w.e.f 15.11.2017. Based on scrutiny of the two invoices issued by the Respondent, the pre & post GST rate reduction sale invoice-wise details of the said product are furnished in the table below by the DGAP:- Table Desc

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ar before the Authority on 18.10.2018 however the hearing was postponed to 31.10.2018. Smt. Shainamol, Additional Commissioner, SGST, Kerala appeared on behalf of the Applicant No. 1 and the DGAP was represented by Sh. Anwar Ali, Additional Commissioner. 7. The Authority during the course of the hearing had found that the above Report had not given any findings in respect of the price of the wholesaler, which was the basis for forwarding the case by the Applicant No. 1 to the Standing Committee. Therefore, the Authority vide its' order dated 12.12.2018 passed under Rule 133 (4) of the CGST Rules, 2017, had directed the DGAP to investigate the above issue and send his Report accordingly. 8. The DGAP has submitted his Report on 24.12.2018 under Rule 133 (4) of the CGST Rules, 2017, and has stated that the present case was covered by Annexure-6 of the minutes of the meeting held by the Applicant No. 1, alleging profiteering by the manufacturer/wholesalers by the Respondent in pursuant

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2019 (3) TMI 168 – ALLAHABAD HIGH COURT – TMI – Maintainability of petition – Validity of order passed under Section 73 (9) of the U.P. GST Act, 2017 dated 21.1.2015 – appealable order under Section 107 of the U.P. GST Act or not? – Held that:- The order is appellable under Section 107 of the U.P. GST Act – In view of the statutory provision for appeal we are not inclined to entertain the petition at all.
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In appeal question of fact as well as law both can be considered and decided. Therefore, even if question of law is arising and there may not be any dispute of fact, still it is not proper to allow the petitioner to bye pass the statutory remedy.
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Appeal dismissed on the ground of alternative remedy. – Writ – A No. – 235 of 201

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