Goods and Services Tax

Goods manufactured under excise regime now written off
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 22-2-2019 Last Reply Date:- 24-2-2019 Goods and Services Tax – GST
Got 3 Replies
GST
XYZ(Manufacturer) had transferred the unutilized CENVAT credit laying in balance as on July'17 to Electronic credit ledger under GST through TRAN – 1. They are holding certain manufactured stocks of excise regime which they now want to write off. Are they required to proportionately reverse

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GST ON SKIN CARE PRODUCTS
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 22-2-2019

In general parlance, there are many products which are used as cosmetics or soaps which may have medicinal relevance or considered as 'Ayurvedic' in nature. 'Ayurvedic' is one discipline of medicine just like allopathy or homeopathy.
The issue of classification came up before the Authority for Advance Ruling (AAR) of West Bengal in the matter of Akansha Hair & Skin Care Herbal Unit Pvt. Ltd. 2018 (4) TMI 811 – AUTHORITY FOR ADVANCE RULING , WEST BENGAL ; . However, this ruling has since been modified by Appellate Authority for Advance Ruling, West Bengal.
In the instant case, there was a manufacture of skin care preparations and issue was of classification of 33 such products. It was claimed that its skin care preparations are Ayurvedic Medicaments. They are meant for therapeutic or prophylactic uses, put up in packaging for retail sale and entirely correspond to the des

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classification. The remaining products mentioned in the list submitted by them are not offered primarily as medicaments and, therefore, not to be included under Heading 3004. This ruling is valid subject to the provisions under Section 103(2) until and unless declared void under Section 104(1) of the GST Act.
It was also observed that medicaments are not defined under GST law or Customs Tariff applicable for goods classification in GST law. Further, for classification of skin care products as medicament, it is not sufficient that such a product manufactured as per authoritative text book, merely helps in controlling skin disease. Its curative or preventive value must be substantial, and product must be manufactured primarily to control or cure a skin-related disease. Further, it must he established that consumers use it primarily for treatment, mitigation, cure or prevention of specific skin disease or skin disorder. Since most of skin care preparations have both uses i.e. medicinal

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& Skin Care Herbal Unit Pvt. Ltd. 2018 (4) TMI 811 – AUTHORITY FOR ADVANCE RULING , WEST BENGAL] gave the ruling that:
"Preparations for the care of the skin namely, Rupam (Pimple Pack) and Pailab (Anti-Crack Cream), in the list submitted by the Applicant are classifiable as Medicament under Heading 3004 of the Customs Tariff Act, 1975. Preparations listed as Swarnajyoti, Sunayana and Tarumitra-60 have not yet come into existence, and, therefore, no rulings are pronounced on their classification. The remaining products mentioned in the list submitted by them are not offered primarily as medicaments and, therefore, not to be included under Heading 3004."
It was held that to determine whether or not a product or a formulation is to be labelled as a 'medicament', it is necessary to consider its efficacy in treating or remedying an 'injury', an 'ailment' or an 'illness'.
The four products in question were Komal Parash and Romancho (Lavender, Va

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THE ARUNACHAL PRADESH GOODS AND SERVICES TAX (AMENDMENT) BILL, 2019
LA/Bill-2/2019 Dated:- 22-2-2019 Arunachal Pradesh SGST
GST – States
Arunachal Pradesh SGST
Arunachal Pradesh SGST
ARUNACHAL PRADESH
LEGISLATIVE ASSEMBLY SECRETARIAT
ITANAGAR
–
NOTIFICATION
The 22nd February, 2019
No. LA/Bill-2/2019.-The following Bill introduced in the Arunachal Pradesh Legislative Assembly on the 21st February, 2019 is published under Rules 73 of the Rules of Procedure and Conduct of Business in Arunachal Pradesh Legislative Assembly for general information.
BILL NO. 2 OF 2019
(As introduced in the Legislative Assembly on 21st February, 2019)
THE ARUNACHAL PRADESH GOODS AND SERVICES TAX
(AMENDMENT) BILL, 2019
A
BILL
to amend the Arunachal Pradesh Goods and Service Tax Act, 2017 (Act No. 7 of 2017).
BE it enacted by the Legislative Assembly of Arunachal Pradesh in the Seventieth-Year of Republic of India as follows,-
1. Short title and commencement : (1) This Act may be c

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race club including by way of totalisator or a license to book maker or activities of a licensed book maker in such club; and”;
(d) clause (18) shall be omitted;
(e) in clause (35), for the word, brackets and letter “clause (c)”, the word, brackets and letter “clause (b)” shall be substituted;
(f) in clause (69), in sub-clause (f), after the word and figures “article 371”, the words, figures and letter “and article 371J” shall be inserted;
(g) in clause (102), the following new Explanation shall be clarified that the expression “services” includes facilitating or arranging transactions in securities;”.
Amendment of section 7.
3. In the principal Act, in section 7, with effect from the 1st day of July, 2017,
in sub-section (1),
(a) in clause (b), after the words “or furtherance of business;”, the word “and” shall be inserted and shall always be deemed to have been inserted;
(b) in clause (c), after the words “a consideration”, the word “and” shall be omitted and the punctuatio

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o shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services or both.”.
Amendment of section 10.
5. In the principal Act, in section 10,
(1) in sub-section (1),
(a) for the words “in lieu of the tax payable by him, an amount calculated at such rate”, the words, brackets and figures “in lieu of the tax payable by him under sub-section (1) of section 9, an amount of tax calculated at such rate” shall be substituted;
(b) in the proviso, for the words “one crore rupees, as may be recommended by the Council.”, the words “one crore and fifty lakh rupees as may be recommended by the Council:” shall be substituted;
(c) in the proviso, for the punctuation mark “.”, the p

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ection 16.
8. In the principal Act, in section 16, in sub-section (2),
(a) in clause (b), for the Explanation, the following Explanation shall be substituted, namely: –
“Explanation. – For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services
(i) where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise;
(ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person.”;
(b) in clause (c), for the word and figures “section 41”, the words, figures and letter “section 41 or section 43A” shall be substituted.
Amendment of section 17.
9. In the principal Act, in section 17,
(a) in sub-section (3), the following new Explanation s

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or
(D) imparting training on flying such aircraft;
(ii) for transportation of goods;
(a) services of general insurance, servicing, repair and maintenance in so far as they relate to motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa):
Provided that the input tax credit in respect of such services shall be available-
(i) where the motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) are used for the purposes specified therein;
(ii) where received by a taxable person engaged-
(I) in the manufacture of such motor vehicles, vessels or aircraft; or
(II) in the supply of general insurance services in respect of such motor vehicles, vessels or aircraft insured by him;
(b) the following supply of goods or services or both-
(i) food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, leasing, renting or hiring of motor vehicles, vessels or aircraft referred to in clause (a) or clau

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ries 84 and 92A” shall be substituted.
Amendment of section 22.
11. In the principal Act, in section 22,
(a) in sub-section (1),
(i) for the word “ten” the word “twenty” shall be substituted;
(ii) for the punctuation mark “.”, the punctuation mark “:” shall be substituted and thereafter the following new provisos shall be inserted, namely:
“Provided that where such person makes taxable supplies of goods or services or both from any of the special category States, he shall be liable to be registered if his aggregate turnover in a financial year exceeds ten lakh rupees:
Provided further that where such person makes taxable supplies of goods or services or both from a special category State in respect of which the Central Government has enhanced the aggregate turnover referred to in the first proviso, he shall be liable to be registered if his aggregate turnover in a financial year exceeds the amount equivalent to such enhanced turnover.”;
(b) in the Explanation, in clause

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e the Special Economic Zone in the same State”;
(b) in sub-section (2),for the proviso, the following new proviso shall be substituted, namely :-
“Provided that a person having multiple places of business in the State may be granted a separate registration for each such place of business, subject to such conditions as may be prescribed.”.
Amendment of section 29.
14. In the principal Act, in section 29,
(i) in the marginal heading after the word “Cancellation”, the words “or suspension” shall be inserted;
(ii) in sub-section (1), in clause (c), for the punctuation mark “.”, the punctuation mark “:” shall be substituted and thereafter, the following new proviso shall be inserted, namely: –
“Provided that during pendency of the proceedings relating to cancellation of registration filed by the registered person, the registration may be suspended for such period and in such manner as may be prescribed.”;
(iii) in sub-section (2), in the proviso, for the punctuation mark “.”, the

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In the principal Act, in section 35, in sub-section (5), for the punctuation mark “.”, the punctuation mark “:” shall be substituted and thereafter the following new proviso shall be inserted, namely: –
“Provided that nothing contained in this sub-section shall apply to any department of the Central Government or a State Government or a local authority, whose books of account are subject to audit by the Comptroller and Auditor-General of India or an auditor appointed for auditing the accounts of local authorities under any law for the time being in force.”.
Amendment of section 39.
17. In the principal Act, in section 39, –
i. in sub-section (1),
(i) for the words “in such form and manner as may be prescribed”, the words “in such form, manner and within such time as may be prescribed” shall be substituted;
(ii) the words “on or before the twentieth day of the month succeeding such calendar month or part thereof” shall be omitted;
(iii) for the punctuation mark “.”, the punctua

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sion or incorrect particulars are noticed”, the words “in such form and manner as may be prescribed” shall be substituted;
(ii) in the proviso, for the words “the end of the financial year”, the words “the end of the financial year to which such details pertain” shall be substituted.
Insertion of new section 43A.
18. In the principal Act, after section 43, the following new section shall be inserted, namely: –
Procedure for furnishing return and availing input tax credit.
43A.(1) Notwithstanding anything contained in sub-section (2) of section 16, section 37 or section 38, every registered person shall in the returns furnished under sub-section (1) of section 39 verify, validate, modify or delete the details of supplies furnished by the suppliers.
(2) Notwithstanding anything contained in section 41, section 42 or section 43, the procedure for availing of input tax credit by the recipient and verification thereof shall be such as may be prescribed.
(3) The procedure for furnishi

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en furnished under sub-section (3) or sub-section (4) but return thereof has not been furnished.
(7) For the purposes of sub-section (6), the recovery shall be made in such manner as may be prescribed and such procedure may provide for non-recovery of an amount of tax or input tax credit wrongly availed not exceeding one thousand rupees.
(8) The procedure, safeguards and threshold of the tax amount in relation to outward supplies, the details of which can be furnished under sub-section (3) by a registered person, –
(i) within six months of taking registration;
(ii) who has defaulted in payment of tax and where such default has continued for more than two months from the due date of payment of such defaulted amount, shall be such as may be prescribed.”
Amendment of section 48.
19. In the principal Act, in section 48, in sub-section (2), after the word and figures “section 45”, the words “and to perform such other functions” shall be inserted.
Amendment of section 49.
20. In the

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integrated tax;”.
Insertion of new sections 49A and 49B.
21. In the principal Act, after section 49, the following new sections shall be inserted, namely: –
Utilisation of input tax credit subject to certain conditions.
“49A. Notwithstanding anything contained in section 49, the input tax credit on account of State tax shall be utilised towards payment of integrated tax or State tax, as the case may be, only after the input tax credit available on account of integrated tax has first been utilized fully towards such payment.
Order of utilisation of input tax credit.
49B. Notwithstanding anything contained in this Chapter and subject to the provisions of clause (e) and clause (f) of sub-section (5) of section 49, the Government may, on the recommendations of the Council, prescribe the order and manner of utilisation of the input tax credit on account of integrated tax, central tax, State tax or Union territory tax, as the case may be, towards payment of any such tax.”.
Amendment

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b-section (4), for the punctuation mark “.”, the punctuation mark “:” shall be substituted and thereafter the following new Explanation shall be inserted, namely: –
“Explanation. For the purposes of this section, the word person shall include “distinct persons” as referred to in sub-section (4) or, as the case may be, sub-section (5) of section 25.”.
Amendment of section 107.
25. In the principal Act, in section 107, in sub-section (6), in clause (b), after the words “arising from the said order,”, the words “subject to a maximum of twenty-five crore rupees,” shall be inserted.
Amendment of section 112.
26. In the principal Act, in section 112, in sub-section (8), in clause (b), after the words “arising from the said order,” the words “subject to a maximum of fifty crore rupees,” shall be inserted.
Amendment of section 129.
27. In the principal Act, in section 129, in sub-section (6), for the words “seven days” occurring at both the places, the words “fourteen days” shall be su

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M/s. Asean Aromatics Private Limited Versus Assistant Commissioner (Circle) GST, Tamil Nadu State GST, Tambaram (Circle).
GST
2019 (3) TMI 269 – MADRAS HIGH COURT – 2019 (23) G. S. T. L. 464 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 22-2-2019
W. P. No. 807 of 2019 And WMP. Nos. 888 & 890 of 2019
GST
Dr. Justice Anita Sumanth
For the Petitioner : Mr. K. Jayachandran
For the Respondent : Mr. Mohammed Shafiq, Special Government pleader (Taxes) assisted by Mr. V.Haribabu, AGP (Taxes)
ORDER
The petitioner challenges an order dated 08.11.2018 cancelling his registration for non filing of returns of returns, on the ground that GSTR 3B returns have been filed upto December 2017 and GSTR-1 only UPTO August 2018.
2. Mr. K. Jaya

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of noncompliance along with tax dues, in order for the cancellation of the registration to be revoked.
5. Learned counsels have referred, in extenso, to a slew of circulars issued by the Centre (the Central Board of Indirect Taxes and Customs) and the State (the Principal Secretary/Commissioner of Commercial Taxes) relaxing the time limits fixed for submission of returns for various periods.
6. I consciously refrain from referring to details of the circulars as neither of the learned counsels is in a position to explain with clarity what the prevailing position is with regard to the extended/applicable time limit for submission of returns. Suffice it to say that the overall impression that I get is that the authorities, both Centre and St

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fact that the petitioner has not engaged in any business transactions, on account of the cancellation of registration, for the last four (4) months as well as relevant circulars issued by the authorities till date, in disposing the application.
8. The petitioner will appear before the Principal Secretary/Commissioner of Commercial taxes on 04.03.2019 at 10:30 am or on a date as proximate to the aforesaid date as convenient to Principal Secretary/Commissioner of Commercial taxes and communicated to the petitioner and orders will be passed by him on the Application within two (2) weeks thereafter.
9. This Writ Petition is disposed of in the aforesaid terms. No Costs. Consequently, connected Miscellaneous Petitions are closed.
Case laws

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A.P. KAKKU ASSOCIATES Versus DEPUTY COMMISSIONER (APPEALS), STATE GST DEPARTMENT, THRISSUR, THE INTELLIGENCE OFFICER (INVESTIGATION BRANCH), THRISSUR, COLLECTOR/AUTHORIZED OFFICER, INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES, COMMERCIAL TAX COMPLEX, POOTHOLE, THRISSUR AND THE STATE TAX OFFICER (IB) OFFICE OF THE ASST. COMMISSIONER OF STATE TAX (INT), STATE GOODS AND SERVICES TAX, THRISSUR
GST
2019 (3) TMI 268 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 22-2-2019
WA. No. 655 of 2019
GST
MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ.
For The Appellant : ADVS. SRI. A. KUMAR SMTG. MINI(1748) SRI. AJAY V. ANAND SRI. P. J. ANILKUMAR AND SRI. P. S. SREE PRASAD
For The Respondent : SRI V. K. SHAMSUDHEEN SR GP

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he conditions as prescribed in the statute, this Court exercising jurisdiction under Article 226 is not bound by such prescriptions. We agree with the learned Single Judge that the authorities under the statute could not have passed an order otherwise than by fixing conditions as provided in the statute itself. This is precisely the reason why the assessee has approached this Court invoking the extra ordinary jurisdiction under Article 226.
3. The assessee is a dealer registered in the State of Kerala and carrying on business. We also at the admission stage directed the Senior Government Pleader to get instruction as to whether the assessee is a habitual defaulter. The learned Senior Government Pleader submits that as of now there is no un

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as of now, since it gives a separate cause of action to the assessee. Leaving such question open, we direct the assessee to pay the short fall which has been suffered by the Department that is 2,95,000/- to the Department directly within a period of three weeks from today. The Revenue Recovery proceedings shall be kept in abeyance then. Along with such a deposit the assessee shall also furnish a simple bond without sureties, if not already furnished. The recovery shall stand stayed until the disposal of the first appeal on such conditions being satisfied. We make it clear that the we have not authoritatively pronounced on the assessee's right to get back the collection charges nor affirmed the State's entitlement for collection cha

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M/s. Hyundai Motor India Ltd. Versus Commissioner of GST & Central Excise, Chennai
Central Excise
2019 (2) TMI 1484 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 22-2-2019
Appeal No. E/504/2012 – Final Order No. 40371/2019
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri M.N. Bharathi, for the Appellant
Shri B. Balamurugan, AC (AR) for the Respondent
ORDER
Per Bench
The facts of the case are that the appellants are inter alia manufacturers of cars. Pursuant to audit, it emerged that appellant had availed CENVAT credit on certain inputs like angles, channels and other items used for support of capital goods, in particular, hollow profiles and panels for use in paint shop. Department took the view that there cannot availment of CENVAT credit in respect of such items. Accordingly, proceedings were initiated against the appellant which culminated in an order dated 7.9.2012, (impugned order), w

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f the paint shop.
2.5 The adjudicating authority has relied upon the decision of the Larger Bench of the Tribunal in the case of Vandana Global Ltd. – 2010 (253) ELT 440 (Tri.LB) to conclude that input credit cannot be allowed in fabrication of items which are eventually embedded to earth. However, the said decision been overruled by the Hon'ble High Court of Chattisgarh as reported in 2018 (16) GSTL 462 (Chat.)
2.6 The ld. counsel submits that the issue has already been addressed and decided in favour of the appellant in a number of other judgments / decisions of High Court / Tribunal.
3. On the other hand, ld. AR Shri B. Balamurugan supported the findings in the impugned order. He further submits that the decision of the Vandana Global Ltd. by Hon'ble High Court of Chattisgarh has been appealed against by the department. Hence the matter is not settled.
4. Heard both sides.
5. We find ourselves in agreement with the ld. counsel that the matter in dispute is no longer res integra

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ase and held as follows :
“We do not find that amendment made in the Cenvat Credit Rules, 2004 which come into force on 7-7-2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the Legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification on particular thing or goods and/or input and as such, the amendment could operate only prospectively.”
6. That view has been quoted with approval by the Madras High Court in M/s. Thiruarooran Sugars v. Customs, Excise and Service Tax Appellate Tribunal (CMA 3814/2014 and connections) decided on 10-7-2017 [2017 (355) E.L.T. 373 (Mad.)] to conclude that the said amendment cannot be treated as clarificatory. M/s. Thiruarooran Sugars also considered the issue

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M/s Godrej & Boyce Mfg. Co. Ltd. Versus Commissioner of CGST, Navi Mumbai
Service Tax
2019 (2) TMI 1424 – CESTAT MUMBAI – 2019 (24) G. S. T. L. 362 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 22-2-2019
APPEAL NO. ST/86812/2018 – A/85361/2019
Service Tax
DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL)
Shri K.A. Photographer, Associate Vice President for Appellant
Shri Dilip Shinde, Assistant Commissioner (AR) for Respondent
ORDER
Rejection of refund claim made by the appellant on the ground that it failed to qualify the test of unjust enrichment is the subject matter of this appeal in this second round of litigation.
2. Factual backdrop of the case is that appellant M/s Godrej & Boyce Manufacturing Co. Ltd. claimed refund recalculated as Rs. 19,66,794/- for the period from April 2008 to September 2008 on commission received for export of services from a Singapore based company M/s Komatsu Asia Pvt. Ltd. against sale and services of its trucks in India. Appellant's

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rders. At the same time, the procedural aspect of filling the declaration and granting the refund to the appellant needs to be done. Accordingly I direct the appellant to file the declaration as required under Notification No. 12/2005 read with Export of Services Rules, 2005 before the Adjudicating Authority and the Adjudicating Authority on receipt of such declaration, will process refund claims.”
20. In view of the foregoing discussions, I set aside the impugned order on merit with the direction to the refund sanctioning authority to sanction the refund/rebate subject to observance of the procedure and the applicability of the doctrine of unjust enrichment. The appeal of the appellant is allowed in above terms with consequential relief, if any.”
3. Appellant complied with the orders, appeared before the Assistant Commissioner of Service Tax, Division-I, Mumbai-VII and participated in the personal hearing, who vide his order dated 28.10.2016, made some adverse observation on the m

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through CENVAT credit except for the month of June, 2008. The payment under reverse charge was always required to be made through CASH only. Therefore the claim of the claimant that they made the Service Tax under reverse charge does not hold ground.
(iii) xxxxxxx
(iv) From the above bills, it can be seen that the claimant has received Rs. 9,37,714/- (inclusive of Service Tax) by way of foreign exchange remittance equivalent to USD 22,186/- from the foreign client and it was credited to their account. This is evident form FIRC no. 3129007336 for an amount of USD 22,176/-. It is therefore conclusively proved that the claimant has received the payment inclusive of Service Tax from the foreign customer. The claimant claims that they merely worked back from the said commission amount of Service Tax liability to be discharged by them under reverse charge and paid the said Service Tax amount from the actual service commission received by them. I find that once the invoice or bill has bee

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ice Tax and doctrine of unjust enrichment is applicable in this case.
(9) xxxxxxxxxx
10. The claimant has submitted the certificate of Chartered Accountant and foreign customer to prove that they have not recovered any amount of Service Tax from their customer. It is already proved that the amount received by the claimant from their foreign customer is inclusive of Service Tax, therefore the Certificate issued by C.A. has no relevance. The CA certificate is neither corroborative by any documentary evidence nor does it explain the method adopted for arriving at the conclusion that the Service Tax has not been recovered from the clients which puts the said certificate on a weak footing in view of the facts and documents discussed in the foregoing paras. Further the CA certificate alone cannot prove that the incidence of duty/tax has not been passed to the customers. For this proposition, I rely on the decision of Hon'ble Tribunal in case of CCE, Chennai-II Vs. M/s Caterpillar India P

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have already held in para 8 (iv) (ii) above that the payment made by the claimant is not under reverse charge and the same was made by them as a service provider and the amount has been collected from the client and paid to the government treasury, therefore the case law cited by them is not relevant in the instant refund claim.
12. To sum up, I hold that the “Business Auxiliary Services” provided by the claimant qualify as export of service. They have fulfilled the procedural aspect for claiming the rebate under Notification No. 11/2005-ST dated 19.04.2005. However, the claimant has failed the test of doctrine of unjust enrichment in the instant refund claim, as the incidence of duty has already been passed to the clients/third party.”
4. Being aggrieved by the above rejection order, appellant preferred on appeal before the Commissioner (Appeals) and as the same yielded no fruitful result, it has approach this Tribunal seeking relief in this second round of litigation.
5. In the

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g of the Adjudicating Authority that appellant had failed in the test of unjust enrichment, despite the fact that judicial decision regarding acceptance of Chartered Accountant certificate by the Hon'ble High Court of Gujarat in the case of Joshi Technologies International Vs. Union of India – [2016 (339) ELT 21 (GUJ)] and Tribunal decisions reported in [2014 (34) STR 890 (Tri.-Mumbai)] in the case of Vodafone Cellular Ltd. Vs. Commissioner of Central Excise, Pune-III, [2018 (12) GSTL 316 (Tri.-Del.)] in the case of Western Union Financial Services Inc. Vs. Commissioner of Service Tax, Delhi and [2015 (40) STR 699 (Tri.-Mumbai)] in the case of Commissioner of Service Tax, Mumbai-I Vs. Vodafone (India) Ltd. were all in favour of appellant, for which he prayed to set aside the order of the Commissioner (Appeals).
6. In response to such submissions, Shri Dilip Shinde, learned Assistant Commissioner (AR) for the respondent-department has supported the reasoning and rationality of the

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appellant had submitted declaration in compliance to Notification No. 11/2005 read with Export of Service Rules, 2005 to the Adjudicating Authority and also made an alternative prayer in the grounds of appeal. In the first round of litigation, which was not made before the Commissioner (Appeals) at the first instance who passed order in favour of the appellant, the test of unjust enrichment was asked to be decided by the Refund Sanctioning Authority. This being so, rejection of refund is solely confined to the dispute concerning applicability of doctrine of unjust enrichment to the appellant, since claim of refund was allowed to it and the same attained finality being unchallenged by the respondent department. Therefore, determination of such an issue is well within the jurisdiction of this Tribunal for which hearing had been rightly preceded.
8. The test of unjust enrichment, in its limited applicability, is confined to the consideration as to who had borne the incidence of tax? If

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tution of India. It is not understood as to why the Adjudicating Authority and Appellate Authority have ignored this documentary evidence and only placed their reliance on bifurcation of tax component in the invoice raised by the appellant, which appellant claims to have been prepared for the purpose of calculation of Service Tax liability only and on the basis of foreign exchange remittance as well as invoice copies, Commissioner (Appeals) had drawn a presumption that incidence of duty had passed on knowing, fully well that presumption/suspicion, however strong, cannot take the place of proof. Despite the fact that Adjudicating Authority vide his order dated 28.10.2016 (page no. 12 of the appeal memo) under para 8 (iii) had given his observation that it was for the appellant to change/amend their CIF system to make it complacent as per their requirement and they have not done so. Further, when the service receiver denied to have born the incidence of tax, it is not understood as to wh

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M/s Anil Kumar And Sons Versus Union of India And 4 Others
GST
2019 (2) TMI 1341 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 22-2-2019
Writ Tax No. – 221 of 2019
GST
Bharati Sapru And Piyush Agrawal JJ.
For the Petitioner : Vishwjit
For the Respondent : A.S.G.I.,C.S.C.,Ramesh Chandra Shukla
ORDER
Heard Sri Vishwjit, learned counsel for the petitioner, Sri O.P. Srivastava, learned Counsel for the respondents no.1, 2 & 3, and Shri R.C. Shukla, learned Counsel for the respondent no.4.
The petitioner seeks a writ of mandamus directing the GST council respondent no.2 to make recommendations to the Commissioner to extend the time period for filing of GST Tran-1 in the case of the petitioner because hi

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GSTR-3B Deadline Extended to February 28, 2019, for State J; February 22, 2019, for All Other States.
Notifications
GST
Due date for furnishing FORM GSTR-3B extended for the month of January,

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Taxpayers Can Revise Form GST TRAN 2 Post-Submission, Ensuring Error Corrections and Accurate Filings.
Case-Laws
GST
Rectification/revision of Form GST TRAN 2 electronically or manually – The

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GST Credit on -COST allocation to Other unit -head of ineligible Credit items
Query (Issue) Started By: – Prem Choudhary Dated:- 21-2-2019 Last Reply Date:- 23-2-2019 Goods and Services Tax – GST
Got 7 Replies
GST
Dear Expert
please advice on input tax credit is eligibility , One Manufaturing Company has 5 manufaturing units in different states and all unit has maintaining separate books and return in GST . And every month each unit is raising tax invoice on other units for cost incurred / facilities provided to employee of other units by using "SAC -998599 Other Support Service". However in Cost allocation invoice the component of following cost is also included :-
* Taxi Hire charges:- ( providing unit has paid G

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r services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force.
It is further clarified that that law may be State subject or Central subject. This amendment can be helpful to you, if you make efforts in the light of this latest amendment.
Reply By Prem Choudhary:
The Reply:
Thank you for reply,
Sir i want highlight that in case of Taxi hire charges GST is paid by providing units under RCM and debited to COST and Cost of Taxi hire allocate to other unit in SAC – 998599 'Other Support Services".. . The other unit has filling the return and paid IGST as Other Support Services in GSTR-1.
Our query is, whether COST recipient state can eli

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UTILISATION OF ITC AFTER INSERTION OF SECTION 49A AND 49B
By: – Nitika Aggarwal
Goods and Services Tax – GST
Dated:- 21-2-2019

UTILISATION OF ITC AFTER INSERTION OF SEC 49A
In midst of changes vide CGST Amendment Act, 2018 there is an insertion of new sections i.e. 49A and 49B in CGST Act, 2017, which has paved its way in new direction. Let's analyze the impact of the same on the industry:-
Section 49(5) of CGST Act, 2017 provides the set off policies against the liabilities of CGST, IGST, SGST and UTGST from Input tax credit available. Prior to amendment in CGST Act, 2017 via CGST Amendment Act, 2018, Section 49(5) of the act reads as under:-
Section 49(5) of CGST Act, 2017:-
“(5) The amount of input tax credit available in the electronic credit ledger of the registered person on account of
(a) integrated tax shall first be utilised towards payment of integrated tax and the amount remaining, if any, may be utilised towards the payment of central tax and State tax

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IGST
SGST & UTGST
SGST
SGST
IGST
CGST
UTGST
UTGST
IGST
CGST
Following are the examples for better understanding the aforesaid provision of the act:-
Example 1:-
When ITC of IGST is available and IGST liability is NIL
ITC
ITC Amount
Liability
1st Adjustment
2nd Adjustment
Balance to be Paid in Cash
Balance ITC
IGST
200
–
–
–
–
CGST
200
350
Rs.200-200 (CGST )
₹ 150-150 (IGST)
–
–
SGST
200
250
₹ 200-200 (SGST )
₹ 50-50 (IGST)
–
–
Example 2:-
When ITC of IGST is available along with the liability of IGST
ITC
ITC Amount
Liability
1st Adjustment
2nd Adjustment
Balance to be Paid in Cash
Balance ITC
IGST
200
50
Rs. (50-50)
(IGST)
–
–
150
CGST
200
350
₹ 200-200 (CGST )
₹ 150-150 (IGST)
–
–
SGST
200
250
₹ 200-200 (SGST )
50
–
However, the aforesaid position of set off against the ITC available after insertion of section 49A and 49B vide CGST Amendment Act, 2018 has been changed. Let's ana

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f any such tax.".
Payment for
First set off from
Then set off from
IGST
IGST
CGST and SGST
CGST
IGST
CGST
SGST
IGST
SGST
Example 1:-
When ITC of IGST is available and there is no liability of IGST
ITC
ITC Amount
Liability
1st Adjustment
2nd Adjustment
Balance to be Paid in Cash
Balance ITC
IGST
200
0
–
–
–
–
CGST
200
350
₹ 200-200 (IGST )
₹ 150-150 (IGST)
–
50
SGST
200
250
₹ 200-200 (SGST )
50
–
Example 2:-
When ITC of IGST is available along with the liability of IGST
ITC
ITC Amount
Liability
1st Adjustment
2nd Adjustment
Balance to be Paid in Cash
Balance ITC
IGST
200
50
(50-50)
IGST
–
–
–
CGST
200
350
Rs (150-150)
(IGST )
₹ 200-200 (CGST )
–
–
SGST
200
250
₹ 100-100 (SGST)
–
50
–
Now, this shall lead to accumulation of input tax credit on account of CGST, SGST and UTGST, which was fully utilized prior to insertion of section 49A. Cash flows of trade dealers might wedged

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THRESHOLD LIMIT FOR REGISTRATION UNDER ‘GST’
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 21-2-2019

Registration
Section 22 of the Central Goods and Services Tax Act, 2017 ('Act' for short) provides for registration by every supplier under the Act. Section 22(1) of the Act that every supplier shall be liable to be registered under this Act in the State or Union territory, other than special category States, from where he makes a taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds Rs.20 lakhs. The proviso to section 22(1) provides that where such person makes taxable supplies of goods or services or both from any of the special category States, he shall be liable to be registered if his aggregate turnover in a financial year exceeds Rs.10 lakhs.
The Goods and Services Tax (Amendment) Act, 2018 inserted second proviso to Section 22(1). The second proviso provides that the Government may, at the r

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e turnover also exclude the value of inward supplies on which tax is payable by a person on reverse charge basis.
Person
The aggregate turnover of the following persons exceeding the threshold limit is liable to registration as supplier under GST Act-
* an individual;
* a Hindu Undivided Family;
* a company;
* a firm;
* a Limited Liability Partnership;
* an association of persons or a body of individuals, whether incorporated or not, in India or outside India;
* any corporation established by or under any Central Act, State Act or Provincial Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013
* any body corporate incorporated by or under the laws of a country outside India;
* a co-operative society registered under any law relating to co-operative societies;
* a local authority;
* Central Government or a State Government;
* society as defined under the Societies Registration Act, 1860
* trust; and
* every artificia

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itories were asked to select their option as to the threshold limit they want to raise the threshold limit or maintain status quo. It was one time measure of exercising the option. The increased threshold is for the benefit of micro, small and medium enterprises.
Effective date
The revised threshold limit as adopted by the States and the Union Territories will take effect from 01.04.2019.
Option of States
The following States/UTs opted to increase the threshold limit to ₹ 40 lakhs from ₹ 20 lakhs-
* Chhatisgarh;
* Jharkhland;
* Delhi;
* Bihar;
* Maharashtra;
* Andhra Pradesh;
* Gujarat;
* Haryana;
* Goa;
* Punjab;
* Uttar Pradesh;
* Jammu & Kashmir;
* Assam;
* Himachal Pradesh;
* Karnataka;
* Madhya Pradesh;
* Odisha;
* Rajasthan;
* Tamil Nadu; and
* West Bengal.
The following States/UTs opted to increase the threshold limit to ₹ 20 lakhs from ₹ 10 lakhs-
* Puducherry;
* Meghalaya;
* Mizoram;
* Tripura;
* Ma

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Aditya Medisales Ltd. Versus Commissioner of Customs GST, Belapur
Service Tax
2019 (3) TMI 420 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 21-2-2019
APPEAL NO: ST/87272/2018 – A/85350/2019
Service Tax
Shri Ajay Sharma, Member (Judicial)
Shri Kiran Sawale, Advocate for appellant
Shri S.B. Mane, Assistant Commissioner (AR), Shri Omi Shivdikar, Assistant Commissioner (AR) for respondent
ORDER
The instant appeal has been filed challenging the order dated 26.2.2018 passed by the Commissioner, CGST & Central Excise, Belapur. The issue to be decided in this Appeal is the imposition of penalty u/s. 78 of the Finance Act, 1994.
2. The appellants are engaged in activities of consignment business and trading business as a consignment agent and trader of products of M/s. Sun Pharmaceutical Industries and their group companies. The dispute is the availment of ineligible Cenvat Credit by the Appellant of Rs. 13,85,751/ – during the period from September, 2011 to Feb

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er resulting into short payment but after intimation by the department, the Appellant paid the total amount with interest and in spite of that the department had issued the show cause notice. According to him, during the relevant period, due to absence of person who was handling the service tax, service tax payment through Cenvat debit reflected in the ST-3 Returns for the relevant period was less than the Cenvat Credit available in their Cenvat Credit Register and since the Cenvat Credit was not available with the appellant at that time, it resulted in short payment of service tax. He also submitted that the question of fraud, willful mis – statement or suppression of facts does not arise since immediately upon pointing out the shortfall by the department, the appellant paid the entire amount with interest without even waiting for the show cause notice and that they have been following all norms and have been filing Service Tax Returns in form ST-3 regularly. According to him, the sho

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the service tax is paid before the service of notice then the department shall not issue any notice u/s. 73(1) ibid and only if there is any malafide intention or suppression then the benefit of Section 73(3) is not available. The only reason given by the revenue in the show cause notice for invoking the extended period is that but for audit, the subject evasion would have gone undetected and revenue lost forever and that the action of the appellant appears deliberate and intentional with intent to evade payment of Service Tax. Therefore, according to the Revenue, the case falls within section 73(4) and not under section 73(3) ibid. It is settled legal position that if the assessee deposited the service tax liability with interest before the issuance of show cause notice then the provisions of section 73(3) ibid gets attracted. It is true that section 73(4) keeps operation of section 73(3) out of the purview, in cases where the service tax has not been levied, paid, short-levied or sh

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or on the basis of what was ascertained by the Central Excise Officer. Sub-section (3) was intended to confer an extended benefit much more in nature than the varying degrees of penalty imposed under the different provisos of sub-section (1) of Section 78.
16. It is true that sub-section (4) of Section 73 keeps the operation of sub-section (3) out of the purview, in cases where the Service Tax has not been levied, paid, short-levied or short-paid by reason of fraud, collusion, willful mis-statement, etc. But nevertheless, the law does not treat all cases of fraud, collusions, willful misstatement, suppression of facts, etc., alike.
17. Keeping this in mind, if we go through the order- in-original, it could be found that the respondent- assessee paid the service tax to the extent of Rs. 40,39,751/- along with interest to the tune of Rs. 12,42,633/-. This amount was paid even before the show cause notice, dated 22.04.2010, was issued. It is only in Paragraph 15(iii) and 15(iv) that the

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proceedings. Mens rea has to be proved for invoking the extended period of limitation and also for imposing penalty under Section 78 of the Finance Act, 1994. Mere inaction to declare what was supposed to be declare d under the law does not lead to suppression of facts. Similarly, mere non-payment of short- payment of duties or taxes cannot be construed as with an intent to evade duties/taxes. There must be something more than mere failure to pay taxes for invoking the provisions of Section 78 ibid. The culpable state of mind of the assessee needs to be proved absolutely and not by mere references. The appellant has shown their bona fide by paying the service tax alongwith interest thereon immediately admitting their unintentional lapse. Considering the facts involved, I have come to the conclusion that the authorities below have failed to brought on record any evidence to prove suppression or mala fide intention on the part of the appellant and, therefore, no case has been made out f

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M/s GLORY CHEMICALS LIMITED Versus ASSISTANT COMMISSIONER OF GST AND CENTRAL EXCISE
Central Excise
2019 (3) TMI 183 – GUJARAT HIGH COURT – TMI
GUJARAT HIGH COURT – HC
Dated:- 21-2-2019
R/SPECIAL CIVIL APPLICATION NO. 1444 of 2019
Central Excise
MS HARSHA DEVANI AND DR A. P. THAKER, JJ.
For The Petitioner : MR ANAND NAINAWATI (5970)
For The Respondents : MR NIRZAR S DESAI (2117)
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Rule. Mr. Nirzar Desai, learned Senior Standing Counsel waives service of notice of rule on behalf of the respondents.
2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 8.1.2019 issued by the Assistant Commissioner, GST & Central Excise Division-X (Vapi-II) under rule 9 and rule 10 of the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995, requiring the petitioner to pay a sum of Rs. 52,39,752/- with interest as applica

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It is the case of the petitioner that they did not receive copy of the order passed by the Tribunal and it is only when they were delivered a letter dated 14.8.2018 directing them to pay up the dues of Central Excise duty, interest and penalty arising out of the orders-inoriginal, that the petitioner learnt about the passing of the order by the Tribunal. Thereafter, the petitioner moved an application for restoration on 9.10.2018, which is pending before the Tribunal.
3.1 In another matter, the Tribunal by an order dated 12.11.2014, observed that the first appellate authority directed the petitioner to deposit an amount of Rs. 13,00,000/- as against the confirmed demand of approximately Rs. 13,80,000/-. The Tribunal expressed the view that the predeposit order made by the first appellate authority was excessive and accordingly, ordered the petitioner (appellant therein) to deposit a sum of Rs. 1,50,000/- in addition to the amounts already deposited before the Commissioner (Appeals) on

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/- (rupees forty lakh) in cash and also submit a bank guarantee of Rs. 1,10,00,000/- (rupees one crore and ten lakh). The learned advocate further submitted that the respondents may be directed not to encash the bank-guarantee for a period of two months in case adverse orders are passed by the Tribunal as well as the Commissioner (Appeals). He has also submitted that the respondents may also be directed to provide quantification of the interest amount calculated by them stating as to how they have arrived at the figure of Rs. 1,50,00,000/-.
6. Mr. Nirzar Desai, however, insisted that the entire amount be deposited in cash in place of a bank guarantee. He further submitted that in case the court is not inclined to direct the petitioner to deposit the entire amount in cash, the petitioner may be directed to furnish two bank guarantees of Rs. 55,00,000/- each, in respect of (i) the proceeding pending before the Tribunal and (ii) the proceeding pending before the Commissioner (Appeals), w

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Jeevan Diesels & Electricals Ltd., Unit II Puducherry Versus Commissioner of GST & Central Excise, Puducherry
Central Excise
2019 (3) TMI 26 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 21-2-2019
Appeal No. E/40098/2018 – FINAL ORDER No. 40374/2019
Central Excise
Ms. Sulekha Beevi, C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri K.S. Jain, Managing Director For the Appellant
Shri S. Govindarajan, AC (AR) For the Respondent
ORDER
Per Bench
The facts of the case are that the appellants are manufacturers of Diesel Generating sets. Pursuant to audit, it appeared to the department that while appellants were clearing their final products, they also cleared such excisable goods manufactured by them to their sister units, where the goods were consumed in the manufacture of final products. It also appeared that in respect of such goods cleared by them, they had not determined the value in terms of Rule 8 of the Central Excise Va

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ontravention of the Rules cited above. On appeal, Commissioner (Appeals) vide impugned order No.150/2017 dt. 20.09.2017setaside penalty of Rs. 5 lakhs however did not interfere with the remaining portion of the order of original authority. Aggrieved appellants are in appeal before this forum.
2. Today when the matter came up for hearing, on behalf of the appellant Shri K.S. Jain, their Managing Director submitted that the issue is revenue-neutral since whatever the duty was paid by the appellant would have been taken as credit by their other unit. He also submits that demand is time-barred for the reason that the issue was under correspondence between the jurisdictional Range Officer and the appellants from 08.03.2004 and they had time and again clarified that they are not required to produce the CA-4 certificate.
3. On the other hand, Ld.A.R Shri S. Govindarajan submits that for all clearances to their sister unit appellants were required to clear the goods at 115% / 110% of the cos

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the assessable value as 115% / 110% of such cost, as the case may be, to demand any duty liability. Instead, a very discernible shortcut, not supported by any provision of law, was adopted, namely, adding 15% to their invoice prices.
5.2 We find merit in the contention of the appellants that this issue in any case is revenue-neutral. That averment is supported by a slew of case laws / decisions of higher appellate forum. This very Bench in the case of Anglo French Textiles Vs CCE Puducherry 2018 (360) ELT 1016 (Tri.-Chennai) has held as under :
“5. On considering the fact that the goods are cleared to the sister unit and also the fact that the appellant is eligible for credit on the duty paid, the entire exercise is a revenue neutral situation as contended by the Learned Counsel for the appellant. This being the case, even if the appellant is directed to pay duty, other sister unit would be eligible for the credit. In the case of Jay Yuhshin Ltd. (supra), in a similar situation, the

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M/s H.M. INDUSTRIAL PVT. LTD. Versus THE COMMISSIONER, CGST AND CENTRAL EXCISE
GST
2019 (2) TMI 1452 – GUJARAT HIGH COURT – 2019 (22) G. S. T. L. 324 (Guj.) , [2020] 72 G S.T.R. 119 (Guj)
GUJARAT HIGH COURT – HC
Dated:- 21-2-2019
R/SPECIAL CIVIL APPLICATION NO. 1160 of 2019
GST
MS HARSHA DEVANI AND DR A. P. THAKER, JJ.
For The Petitioner (s) : ANANDODAYA S MISHRA (8038)
For The Respondent (s) : MR NIRZAR S DESAI (2117)
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
Rule. Mr. Nirzar Desai, learned Senior Standing Counsel, waives service of notice of rule on behalf of the respondent.
2. By this petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondent to release all the bank accounts of the petitioner, as shown in paragraph12 of the memorandum of petition.
3. Vide order dated 06.02.2019, this Court had directed the respondent to forthwith release the attachment on the petitioner's cash credit acc

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00 maintained with the Bank of Baroda.
6. Heard Mr. A.S. Mishra, learned advocate for the petitioner and Mr. Nirzar Desai, learned Senior Standing Counsel for the respondent.
7. Mr. Mishra, learned advocate for the petitioner, has submitted that the petitioner had reversed the input tax credit of Rs. 12,99,32,058/, against the total input tax credit taken in respect of M/s. Om Enterprises, M/s. Shivay Enterprises and M/s. Avi Enterprises. It is further submitted that the petitioner has already paid the initial demand of GST to the tune of Rs. 7,51,01,066/. Thus, according to the learned advocate for the petitioner, in all, an amount of Rs. 13,52,00,000/stands reversed.
8. On the other hand, Mr. Nirzar Desai, learned Senior Standing Counsel, under instructions, states that, in all, a sum of Rs. 13,28,00,000/has been paid, either by way of reversal or otherwise. He, however, has submitted that as of now, the amount due and payable by the petitioner is Rs. 16.24 crores, out of which, o

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eedings under section 67, 73 or 74 of the Act.
11. Under section 83 of the CGST Act, the Commissioner is empowered to order provisional attachment for the purpose of protecting the interest of the Government revenue. In the facts of the present case, while a liability of Rs. 14.62 crores had been estimated at the time when the order under section 83 of the CGST Act came to be passed, the present estimate is Rs. 16.24 crores. Thus, the petitioner, upon conclusion of any proceedings that may be taken pursuant to the proceedings under sections 67, 73 or 74 of the CGST Act, may be liable to pay such amount. Admittedly, the petitioner has already reversed input tax credit to the tune of Rs. 13,28,00,000/. In the opinion of this Court, considering the amount paid by reversing input tax credit, the interest of the Revenue is sufficiently secured. Therefore, the provisional attachment of the above referred bank accounts of the petitioner is no longer justified.
12. For the foregoing reasons,

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M/s Swees Gems & Jewellery, M/s Aaradhya Impex Versus CGST & CE, Jaipur-I
Customs
2019 (2) TMI 1375 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 21-2-2019
Appeal No. C/53512-53513/2018-Cus. (DB) – Final Order No. 50283-50284/2019
Customs
Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical)
Sh. Arun Goyal, Advocate – for the appellant
Shri Rakesh Kumar, DR – for the respondent
ORDER
Per: Bijay kumar :
All these appeals have been filed by the appellant on an identical issue and, therefore, being disposed of by this common order. The details of the adjudication order are as under :
S.No.
Bill of Entry
Name of Importer
Date of detention/seizure
1.
6045058 & 6046267 dated 19.4.2018
M/s Swees Gems & Jewelery
26.4.2018/8.8.2018
2.
6044641 & 6045969 dated 19.4.2018
M/s Aardhya Impex
26.4.2018/8.8.2018
2. In all these cases, the appellants have imported the consignment of rough diamond (precious stone) from Hong Kong

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RI/DZU/JRU/19/INT-11/ENQ.23/2018/1866 dated 12.10.2018 to the Commissioner of Customs, Jaipur. In the said letter of DRI, the Commissioner of Customs, Jaipur was appraised of various difficulties in not issuing the Show Cause Notice within the prescribed time of six months from the date of detention/seizure of the goods. Being aggrieved by these orders, the appellants have filed these appeals before this Tribunal.
4. Ld. Advocate on behalf of the appellant submits that in this case, the appellant were not issued the Show Cause Notice and given opportunity to be heard before extending the time limit for issuance of Show Cause Noptice under provisions of Customs Act.
4.1 He referred and relied upon the decision of Hon'ble Supreme Court in the case of I.J. Rao, Assistant Collector of Customs Vs. Bibhuti Bhushan Bagh – 1989 (42) ELT 338 (SC) wherein it is held that extension of six months period for issuance of Show Cause Notice cannot be done by the Commissioner without hearing the appe

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), wherein it is held that extension of period for retention of seized goods cannot be permitted without sufficient cause and without opportunity of being heard to the person from whose possession goods are seized
4.3 Ld. Advocate relied upon the following cases where similar view has been entertained by the respective Courts :
(i) Chunilal Damani Vs. Collr. of Cus. and C. Ex., West Bengal – 2000 (126) ELT 357 (Cal.)
(ii) K.K. Sukhani Vs. Union of India – 1999 (110) ELT 505 (Pat.).
(iii) Works of Art (Pvt.) Ltd. and Another Vs. Union of India & Others – 1998 (36) ELT 91 (Bom.).
4.4 The ld. Advocate also submitted that the amendment to the provisions of Section 110(2) of Customs Act by Finance Act, 2018, will not alter the situation as for grant of personal hearing before the extension of Show Cause Notice. He, accordingly, prayed for setting aside the impugned order and allow release of seized goods for the violation of the provisions of Section 110(2) of Customs Act.
5. Ld. AR,

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suance of Show Cause Notice. The Commissioner after applying his mind and considering the surrounding circumstances extended the time period for issue of Show Cause Notice by another six months.
6. We have considered the rival contentions and also perused the case record along with the investigation file submitted before the Bench by ld. AR. In these cases, the issue to be decided is as to whether after the amendment of Section 110(2) of Customs Act by Finance Act, 2018 is there any need for issuance of the Show Cause Notice before the extension is permitted by another six months on the reasonable ground by the Commissioner/adjudicating authority. To resolve the controversy, it will be appropriate to refer the Section 110(2) before the amendment and also after the amendment vide Finance Act, 2018. The same is reproduced as under :
Section 110(2) before
Section 110(2) after
Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a)

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d as under:
“I also propose to make certain change to the Customs Act, 1962 to further improve ease of doing business in cross border trade, and to align certain provisions with the commitments under the Trade Facilitation Agreement. To smoothen dispute resolution processes and to reduce litigation, certain amendments are being made, to provide for pre-notice consultation, definite timelines for adjudication and deemed closure of cases of tose timelines are not adhered to.”
Clause 90 of the Bill seeks, to amend Section 110 of the Customs Act so as to give power to extend the period for issuing Show Cause Notice in case of seized goods by a further period of six months to case in cases where no order for provisional release of goods has been passed. We find that similar issue has been decided by the coordinate bench of this Tribunal vide Final Order No. 75047-75048/2018 dated 17.1.2019 in the case of S.R.K. Metal & Industries & Pink Commercial, wherein it is held as under:
“Our atten

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g Authority has to give the proper reasoning by way of reasoned order after examining the requirement for extension of time period as per sub proviso 2 of Section 110. Question as to whether the person claiming restoration of the goods under Section 110 of Act is entitled to notice before time is extending, this flows from the circumstances that this is a quasi judicial proceeding, and also it goes beyond the doubt that rights of a person are likely to prejudicially affected, he is entitled to opportunity to put forwarded his case before the Adjudicating Authority. Therefore, the person from whom the goods have been seized, is entitled to notice of the proposal before Adjudicating Authority for the extension of original period of the six months under Section 110(2) of the Customs Act subject to the restriction that he is not entitled to the information about the investigation which is in possession of the Investigating Agency as there can be no right in any person to be informed whose

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iscussed above, even after insertion of with new sentence in the provisions of Section 110(2) of the Act. In fact, we are of the view that after amendment not only the Show Cause Notice is required to be issued by the Adjudicating Authority, but he has also to give a reasoned order after hearing the Investigation Officer and also taking view of the affected party from whom seizure has been made as his personal right is being deprived of which emanate from the Section 110(1) of the Act that entitled him to got the goods returned which has been seized from his possession. This is also cleared from statements of objects in the Finance Act as discussed above.
13. In view of above, we are of the opinion that the impugned order is in violation in this provisions of Section 110 of the Customs Act has held in the various decisions discussed above. We have also seen the note sheet order of the Ld. Commissioner in this case. It is seen from the order that the Commissioner while extending the ti

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at in case of Commissioner of Income Tax (Central-1), New Delhi vs. Vatika Township) [(2014) 0 SCC 670], Hon'ble Supreme Court has held that law enacted in absence of a provision in the statue about the same being with of retrospective effect in the Clause of Finance Act, the amendment will have prospective effect only. In view of that also we find that the impugned order is not sustainable as the new amended provision has been applied for the seizure made during period when the amendment was not there in the statue.
14. In view of above our analysis as above, we are of the considered opinion that there is no legality for dispensing with the Show Cause Notices to the affected party even under the amended provisions of Section 110(2) of the Act. The Adjudicating Authority has erroneously held that this is no need of issue of Show Cause Notice in the cases of extension at hand.
15. Accordingly, we set aside the impugned orders and allow appeals with consequential relief as per law.”
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Sanghavi Land Developers Pvt Ltd. Versus CCGST, Mumbai East
Service Tax
2019 (2) TMI 1311 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 21-2-2019
APPEAL NO: ST/87344/2018 – A/85344/2019
Service Tax
Shri Ajay Sharma, Member (Judicial)
Appellant: Shri Jitu Motwani, Advocate
Respondent: Shri M.P. Damle, Assistant Commissioner (AR)
ORDER
The instant appeal has been filed against the impugned order dated 26.3.2018 passed by the Principal Additional Director General, DGPM, WRU, Mumbai in Order-in-Appeal No. MUM/DGPM/ WRU/APP-53/2017-18. The only issue to be decided in this appeal is whether the Appellants are liable for penalty u/s. 78 of the Finance Act, 1994.
2. The Appellant are engaged in the business of construction of residential complexes as well as renting of immovable property. The said construction activity has been brought under the service tax only w.e.f. 1.7.2010 by way of amendment in the existing Construction of Complex Services under section 65

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by the Hon'ble High Court, therefore, immediately after pointing out by the said team, in the month of March, 2012 itself the Appellant deposited a sum of Rs. 19,79,927/- towards service tax applicable on construction services during the relevant period. Thereafter much belatedly a show cause cum demand notice dated 21.6.2016 was issued to the Appellant demanding the service tax amount, which according to the department the appellant had short paid by Rs. 1,47,072/- for the period from 1.3.2012 to 31.3.2015, alongwith interest u/s. 75 and penalty u/s.78 of the Finance Act, 1978.
3. Ld. counsel for the appellant submitted that in the instant appeal they are only challenging the imposition of penalty u/s.78 of the Finance Act, 1994. He also submitted that the Appellant are willing to deposit the amount of interest u/s. 75 ibid. According to him, the appellants were not aware about the final order of the Hon'ble High Court and therefore they did not deposit the service tax. But immediat

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rvice. – If the Central Excise Officer in the course of any proceedings under this Chapter is satisfied that any person has, with intent to evade payment of service tax, suppressed or concealed the value of taxable service or has furnished inaccurate value of such taxable service, he may direct that such person shall pay by way of penalty, in addition to service tax and interest, if any, payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of service tax sought to be evaded by reason of suppression or concealment of the value of taxable service or the furnishing of inaccurate value of such taxable service :
Provided that if the value of taxable service (as determined by the Central Excise Officer on assessment) in respect of which value has been suppressed or concealed or inaccurate value has been furnished exceeds a sum of twenty-five thousand rupees, the Central Excise Officer shall not issue any direction for payment by way of penalty wit

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tional validity of the aforesaid amendments. There is no reason not to accept the reasoning given by the ld. counsel for the appellants that they were not aware about the final decision of the Hon'ble High Court, because as soon as the anti-evasion team visited the office of the appellants in the month of March, 2012 and informed them about the decision of the Hon'ble High Court and pointed out that they have not paid the service tax, immediately the appellants in the month of March, 2012 itself paid the service tax of Rs. 19,79,927/- upto date. Thereafter they are discharging their service tax liability regularly. After the decision of the Adjudicating Authority, the appellant has deposited the balance amount of service tax of Rs. 1,47,072/- in the month of February, 2017 which remained outstanding due to the calculation error for the period from 1.3.2012 to 31.3.2015. It is clear that the Appellants were under bonafide belief that the writ petition is still pending and that's why the

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ants were engaged in importing of rough diamonds and have paid commission to the brokers through whom they procured diamonds from DTC. If the department was aware of writ petition filed by the appellants and have filed an affidavit in September, 2006, nothing prevented them from issuing protective demand notices in order to safeguard the revenue. As has been already reproduced hereinabove, we find that bulk of the show cause notices were issued by the Revenue Department in 2011 invoking the periods as indicated against the details of individual appellants. In our view, the demand of the Service Tax liability by invoking the extended period in all these cases will not survive as Revenue was well aware of the activity of the appellant of remitting the payments to the broker as commission through proper banking channels, which has been mentioned in writ petition before the Hon'ble High Court. In our considered view, the Revenue Department having filed an affidavit before the Hon'ble High

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th interest and we do so, to that extent appeals are rejected.
10. This takes us to the issue of penalties imposed on the appellants under various provisions of the Finance Act, 1994. We find that the appellant need not be visited by penalties under the various sections of the Finance Act inasmuch, they could have entertained the bona fide belief as to that their writ petition may be decided in their favour. Invoking the provisions of Section 80 of the Finance Act, 1994, we find that the appellants have made out justifiable reason for setting aside the penalties imposed on them. Invoking the said provisions of Section 80 of the Act, we set aside the penalties imposed on all the appellants herein to that extent the appeals are allowed.”
6. The provisions under Section 11AC of the Central Excise Act, 1944 and Section 78 of the Finance Act, 1994, are pari materia. In the matter of Rajasthan Spinning and Weaving Mills (supra) the Hon'ble Supreme Court has laid down that unintentional and

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gst rate for employee recovery
Query (Issue) Started By: – Madhavan iyengar Dated:- 20-2-2019 Last Reply Date:- 23-2-2019 Goods and Services Tax – GST
Got 8 Replies
GST
A Company recovers from its employees ₹ 500 per month per employee towards bus transportation
Query: What is the GST rate to be applied on the bus amount recovery is the rate of tax to be applied on basis of bill received from bus contractor @12% or we need to charge GST@18% being general service rate
Reply By Ganeshan Kalyani:
The Reply:
in my view, 18%.
Reply By KASTURI SETHI:
The Reply:
Sh.Ganeshan Kalyani Ji,. How you justify 18% rate ? For enrichment of my knowledge pl.
Reply By Ganeshan Kalyani:
The Reply:
Company is providing a support servic

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ply:
kasturiji and kalyaniji thanks for your valuable guidance and inputs, what happens if there was no recovery ie bus service was free of cost should employer discharge gst on the entire billed amount by the bus service provider ( employer employee being related party) ?
Reply By KASTURI SETHI:
The Reply:
It is a hypothetical question. It depends upon the nature of the contract. Who is service provider and who is service receiver ? Normally perks, amenities, various allowances are treated as part of salary given to the employee by employer. (No GST on salary). . If it is so, liability to discharge GST is cast upon the employer.
Reply By Ganeshan Kalyani:
The Reply:
I agree with the views of Sri Kasturi Sir.
Discussion Forum – Kn

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GST ITC on spondorship
Query (Issue) Started By: – Madhavan iyengar Dated:- 20-2-2019 Last Reply Date:- 24-2-2019 Goods and Services Tax – GST
Got 6 Replies
GST
In case of sponsorship fees paid by a manufacturing company to an agency for purpose of sponsor of event related to employee national awards for the rcm paid on sponsorship can credit of rcm be availed by company as eligible credit under gst
Reply By KASTURI SETHI:
The Reply:
In my view, this activity conforms to the condition of ITC using in the course of business or furtherance of business.Hence ITC is allowed under RCM.
Reply By Ganeshan Kalyani:
The Reply:
Yes, the credit is eligible.
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
If the sponsorship services i

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Court Denies Pre-Arrest Bail for Wrongful Input Tax Credit Case, Applicant Deemed Unworthy of Bail Protection.
Case-Laws
GST
Grant of pre-arrest/anticipatory bail – wrongful availment of inpu

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Rate of tax
Query (Issue) Started By: – Abhimanyu Juneja Dated:- 20-2-2019 Last Reply Date:- 20-2-2019 Goods and Services Tax – GST
Got 1 Reply
GST
Please tell about Rate of Tax and HSN Code of Wastage known as Gad which is wastage of oil when caustic soda is mixed with oil manufactured from cotton seed
Reply By CASeetharaman KC:
The Reply:
Rate of Tax would be 18% and HSN Code should be 1522
1522 – Degras , residues resulting from the Treatment of fatty substances or animal or v

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NIL RATED SUPPLY FROM SUPPLIER & NON GST SUPPLY
Query (Issue) Started By: – SURYAKANT MITHBAVKAR Dated:- 20-2-2019 Last Reply Date:- 24-2-2019 Goods and Services Tax – GST
Got 4 Replies
GST
If we received material from unregistered dealer can we treat that Nil Rated Supply under GSTR3B.
Reply By Spudarjunan S:
The Reply:
Dear Sir,
No. Only goods with 0% rate of tax are called Nil rated in the general parlance. Materials received from URD can't said to be a nil rated supply un

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Can Customer Hod GST Amount And Pay Base Price
Query (Issue) Started By: – Prashanth Jadhav Dated:- 20-2-2019 Last Reply Date:- 23-2-2019 Goods and Services Tax – GST
Got 4 Replies
GST
Dear Sirs/Madam,
We had sold IT hardware and goods in the month of March 2018.
The customer has held our GST amount and paid the base price of the product.
Informing that I have to pass an Input Tax credit.
Can the customer withhold the tax for such a long time.
Or he should pay and then approach the National Anti profiteering Authority
========================================
I had submitted a query a few months ago and the members of the Forum were kind enough to reply.
ID: Issue ID: 114184:
We had received a Purchase Order for supply

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ty of this demand by the customer and his holding of the taxes.
On our part since they had issued a revised PO we had purchased the goods under the GST regime for the whole chain (Supplier, Distributor and Importer)
Please let us know if the customer is correct in his claim that it attracts anti profiteering clause.
===================================================
Warm regards,
Reply By KASTURI SETHI:
The Reply:
As per Section 9 (1) of CGST Act, 2017 it is statutory duty of taxable person to collect GST and deposit with Govt. Tax is Govt. exchequer and cannot be withheld beyond due date. 20th of the following month is the last date to deposit and make payment into Govt. account from electronic cash ledger or credit ledger. Thereaft

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e value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be added to his output tax liability, along with interest thereon, in such manner as may be prescribed:
Provided also that the recipient shall be entitled to avail of the credit of input tax on payment made by him of the amount towards the value of supply of goods or services or both along with tax payable thereon.
Reply By KASTURI SETHI:
The Reply:
I also concur with the views of Sh.Sharad Anada. In GST regime, noose of law does not spare defaulter recipient also.
Reply By Ganeshan Kalyani:
The Reply:
In GST everything i

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