Goods and Services Tax

M/s. Auromatrix Hotels Pvt. Ltd. Versus Commissioner of GST & Central Excise
Service Tax
2019 (2) TMI 1246 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-2-2019
ST/120/2010 – Final Order No. 40308 / 2019
Service Tax
Hon'ble Ms. Sulekha Beevi C.S., Member (Judicial) And Hon'ble Shri Madhu Mohan Damodhar, Member (Technical)
Ms. Radhka Chandrasekar, Advocate for the Appellant
Shri K. Veerabhadra Reddy, ADC (AR) for Respondent
ORDER
Per Bench
The appellants are providing consultancy and management services to hotels and resorts. They are registered under the category of Management Consultancy Services and Intellectual Property Service. During the course of audit of accounts, it was noticed that they did not pay service tax within the prescribed statutory due dates and belated the payment of service tax for the period from April 2007 to December 2007. Further, they did not discharge appropriate service tax demand on the gross service charges received by them

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firmed the demand of Rs. 64,13,890/- for the period April 2006 to December 2006 along with interest and also imposed penalty of Rs. 75 lakhs under section 78 of the Finance Act, 1994 with option to pay reduced penalty of 25%. Aggrieved, the appellants are now before the Tribunal.
2.1 On behalf of the appellant, ld. counsel Ms. Radhika Chandrasekar explained that the appellants entered into a resort operation and licence agreement dated 14.4.2005 with M/s. Sterling Holiday Resorts India Ltd. (SHRIL for short). As per the agreement, the appellant was entrusted with the responsibility of operating 11 resorts owned by SHRIL. For rendering such services, SHRIL was to pay various charges to the appellant. However, both the parties, that is the appellant herein and SHRIL reviewed the agreement and mutually agreed to terminate the above service agreement by Final Settlement Agreement dated 1.3.2006. As per the settlement agreement, it was agreed that balance of Rs. 3,29,81,431/- was payable a

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money only. Thus any consideration received other than money was not subject to levy of service tax prior to 18.4.2006. The department has referred in the show cause notice the said section as it stands after the amendment with effect from 18.4.2006. Therefore, the demand of service tax on the value of immovable property is incorrect. Section 67(1)(ii) prior to 18.4.2006 contemplates amount in money, which is equivalent to the consideration. Consideration also includes amount that is payable. Therefore levy can be made only when consideration is passed on in the nature of money. Further as per Rule 6(1) of Service Tax Rules, service tax shall be paid on the payments received and service tax is on receipt basis.
2.4 The settlement amount was arrived by mutual agreement and then the mode of payment of such settlement was both in nature of money and property. As the settlement took place prior to 18.4.2006, even if property was received as consideration, the value of such property cannot

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mand of service tax only on the amount relating to the value of the property acquired by them towards the final settlement. She also submitted that the point of taxation rules have come into effect only in 2011 wherein the service tax is thereupon liable to be discharged on accrual basis instead of receipt basis.
3. In grounds para 33, 34 and 35, the appellants have contested the penalties imposed. It is submitted that the service tax of Rs. 33,53,890/- and interest of Rs. 2,93,093/- was paid on 27.3.2008 which is much before issuance of show cause notice which is dated 15.5.2008. She prayed to set aside the penalties.
4. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. He submitted that as per Section 67, the appellants are liable to pay service tax upon the monetary value of the immovable property received by them which is also consideration for final settlement of providing the service. The appellant has discharged service tax on amounts received

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accounts in terms of money only. Merely because a portion of the service charges was paid by the service provider by way of immovable property, does not take away the liability to pay service tax.
5. Heard both sides.
6.1 The assessee is contesting only the demand of service tax raised on the value of immovable property which was given to them as part of settlement deed.
6.2 M/s. SHRIL had entered into an agreement with the appellant for operating the various resorts owned by SHRIL. However, both the parties later agreed mutually to terminate the above agreement by a final settlement agreement dated 1.3.2006. The relevant portion of the settlement agreement is reproduced as under for better appreciation of the facts:-
“AND WHEREAS the parties have had detailed discussions with regard to the settlement of accounts and the mode of payment of the settled accounts consequent to the termination of the said agreement and mutually agreed to freeze the amount payable by STERLING under th

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five lakhs only) against the amount payable as stated in clause 1 herein above leaving a balance of Rs. 2,09,81,431/- (Rupees two crores nine lakhs eighty one thousand four hundred and thirty one only).
3. Sterling agree to pay another sum of Rs. 1,20,00,000/- (Rupees one crore twenty lakhs only) towards royalty and management fee for the period 1.4.2006 to 31.3.2007.
4. Sterling have agreed to pay the balance of Rs. 3,29,81,431/- (Rupees three crores twenty nine lakhs eighty one thousand and four hundred and thirty one only) as per Annexure A in the following manner:-
ANNEXURE A
I Amount due as per agreement dated 14.4.2005
28,500,000.00
 
II Management fee upto March 2006
3,400,288.00
 
III Royalty fee upto March 2006
1,581,143.00
 
 
33,481,431.00
 
Less amount paid till 24.2.2006
12,500,000.00
20,381,431.00
IV Royalty fee for the period April 2006 to March 2007
8,000,000.00
8,000,000.00
V Management Fee for the period April 2006 to

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nt charged by the service provider of such service provided or to be provided. By him.
xxxx xxxxx xxxxx xxxxx xxxxx
Explanation. – For the purposes of this section, –
(a) “consideration” includes any amount that is payable for the taxable services provided or to be provided;
(b) “money” includes any currency, cheque, promissory note, letter of credit, draft pay order, travellers cheque, money order, postal remittance and other similar instruments but does not include currency that is held for its numismatic value.
(c) “gross amount charged” includes payment by cheque, credit card, deduction from account and any form of payment by issue of credit notes or debit notes and book adjustment, and any amount credited or debited, as the case may be, to any account, whether called “Suspense account” or by any other name, in the books of account of a person liable to pay service tax, where the transaction of taxable service is with any associated enterprise”.
6.4 Later with effect fro

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value of such taxable service shall be such amount as, with the addition of tax payable, is equal to the gross amount charged.”
6.5 Thus, after 18.4.2006, it can be seen that even if consideration is received as kind or other than money, the value of such kind other than money is also subject to levy of service tax. The value of any immovable property received as consideration would be subject to levy of service tax after 18.4.2006. In the present case, the appellants have received consideration in the nature of money as well as in the nature of immovable property. They paid up the service tax on the consideration received in the form of money. Even if the value of the immovable property is shown in the books of accounts in terms of money, it will not change the nature of the consideration received. The amendment brought forth with effect from 18.4.2006 makes it clear that prior to this date there was no intention to levy service tax on consideration received in the nature other than

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riods mentioned in Annexure A of the agreement does not indicate that the appellant has provided services from April 2006 to March 2007 or royalty fee was paid from April 2006 to March 2007. The periods mentioned in the said final settlement is only for the purpose quantification of the final settlement amount. The conclusion of the Commissioner that the amount settled by way of selling the immovable property is for the services provided for the period from 1.4.2006 to 31.3.2007 is incorrect. After the final settlement, undisputedly there has been no service provided by the appellant to SHRIL. Though part payments might have been received, such payments including the immovable property is for the services provided (or settled) upto 1.3.2006. It is also to be mentioned that prior to 2011, the service tax has to be discharged on receipt basis and not accrual basis. Though balance payments in the nature of money was received after 1.3.2006, the appellant is liable to pay service tax on su

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taxable value in cases where the consideration received for taxable services provided is not wholly in money terms and the consideration received is in money terms but not known explicitly. Separate valuation rules are proposed for this purpose”.
6.8 In Vistar Construction (P) Ltd. Vs. Union of India reported in 2013 (31) STR 129(Del.), the Hon'ble High Court of Delhi held that taxable event for service tax was rendition of service and that rate of tax applicable is the one on date on which services were rendered and not the rate on which payments were received. Since the amended Section 67 has come into effect only with effect from 18.4.2006, the immovable property which is part of consideration of Settlement Agreement dated 1.3.2006 would not be subject to levy of service tax.
7. For these reasons, we hold that the demand of service tax on the value of immovable property to the tune of Rs. 30,60,000/- with the penalties thereon cannot sustain and requires to be set aside which we

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M/s DVB Technologies Pvt. Ltd. Versus CGST & Excise, Siliguri
Central Excise
2019 (2) TMI 1096 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 18-2-2019
Ex. Appeal No.78529/18 – FO/75197/2019
Central Excise
SHRI P.K. CHOUDHARY, JUDICIAL MEMBER
Shri Shyamal Dey, Advocate for the Appellant (s)
Shri A. Roy, Supdt. (A.R.) for the Revenue
ORDER
Per Shri P.K. Choudhary:
The present appeal is filed by the appellant against the Order-in- Appeal No.33/SLG-CGST/2018 dated 21.06.2018.
2. The facts of the case in brief are that the appellant availed cenvat credit of service tax paid on outward freight, whereas their place of removal is the factory gate. The period of dispute is from 01.01.2005 to 2007-2008, 2008-2009 and 2009-2010 (Upto November, 2009). Show-cause notice dated 25.03.2010 was issued. Show-cause notice mentioned that the assessee had already reversed/paid amounts of Rs. 17,852/- and Rs. 12,617/- i.e. for the period post 01.04.2008. The Adjudicating

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o a period prior to 1-4-2008. The aforesaid Rule was amended w.e.f. 1-4-2008 as would be noticed hereafter. However, since we are concerned with the unamended Rule, we reproduce the same hereunder :
“(l) “input service” means any service, –
(i) used by a provider of taxable service for providing an output service; or
(ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal,
and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales, promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry and securi

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ontentions, which have been raised by some of the assessees, have been rejected and that aspect is decided in favour of the Department. Since these appeals are filed by the Department questioning the interpretation that is given by the CESTAT as well as the High Court in respect of first part, we are not making any comments insofar as judgment of the CESTAT pertaining to second part is concerned.
5. Coming back to the first part of the definition as to what input service means, the Full Bench of the CESTAT held that all input services which are used by the manufacturer, whether directly or indirectly, in or in relation to manufacture of final products and clearance of final products from the place of removal are concerned, they are treated as input services and Cenvat credit in respect of expenditure incurred in relation to such services would be admissible. The expression with which the CESTAT was concerned, and which was the subject matter of discussion, was as to what would be the

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oresaid approach of the Full Bench of the CESTAT, as affirmed by the High Court, appears to be perfectly correct and we do not find any error therein. For the sake of convenience, we would like to reproduce the following discussion contained in the judgment of the High Court.
“30. The definition of 'input service' contains both the word 'means' and 'includes', but not 'means and includes'. The portion of the definition to which the word means applies has to be construed restrictively as it is exhaustive. However, the portion of the definition to which the word includes applies has to be construed liberally as it is extensive. The exhaustive portion of the definition of 'input service' deals with service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products. It also includes clearance of final products from the place of removal. Therefore, services received or rendered by the manufacturer from the place of removal till it reac

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se the word 'means' in this portion of the definition, it has to be construed strictly and in a restrictive manner. After defining the 'input service' used by the manufacturer in a restrictive manner, in the later portion of the definition, the legislature has used the word 'includes'. Therefore, the later portion of the definition has to be construed liberally. Specifically what are the services which fall within the definition of 'input service' has been clearly set out in that portion of the definition. Thereafter, the words 'activities relating to business' – an omni-bus phrase is used to expand the meaning of the word 'input service'. However, after using the omni-bus phrase, examples are given. It also includes transportation. The words used are (a) inward transportation of inputs or capital goods (b) outward transportation upto the place of removal. While dealing with inward transportation, they have specifically used the words 'inputs' or 'capital goods'. But, while dealing wit

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r view gets support from the amendment which has been carried out by the rule making authority w.e.f. 1-4-2008 vide Notification No. 10/2008-C.E. (N.T.), dated 1-3-2008 whereby the aforesaid expression “from the place of removal” is substituted by “upto the place of removal”. Thus from 1-4-2008, with the aforesaid amendment, the Cenvat credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be. This aspect has also been noted by the High Court in the impugned judgment in the following manner :
“However, the interpretation placed by us on the words 'clearance of final products from the place of removal' and the subsequent amendment by Notification 10/2008-C.E. (N.T.), dated 1-3-2008 substituting the word 'from' in the said phrase in place of 'upto' makes it clear that transportation charges were included in the phrase 'clearance from the place o

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Parasakti Cement Industries Ltd Versus CCCE & ST, Guntur, CCT, Guntur- GST
Central Excise
2019 (2) TMI 1095 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 18-2-2019
E/25403/2013, E/26266/2013, E/23453/2014, E/21341/2015, E/31070/2016, E/30491/2017 – A/30195-30200/2019
Central Excise
Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical)
Shri T. Jagapathi Rao, Advocate for the Appellant.
Shri B. Guna Ranjan, Superintendent/AR for the Respondent.
ORDER
Per: P.V. Subba Rao.
1. All these six appeals have been filed by the appellant against Orders-in- Original and Order-in-Appeal as above. Heard both sides and perused the records.
2. Learned consultant for the appellant submits that the issue in all these cases fall in a narrow compass. The appellants manufacture cement which they clear mainly in two ways. (a) by sales to dealers/ retail sales agency and (b) by sales to various industries like contractors/ builders/ cons

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roposed to impose penalty under Rule 25(1) of the Central Excise Rules read with Sec.11AC of the Central Excise Act. He submits that exemption notification exempted goods under various heads is as follows:
1. Individual buyers who buy Cement bags for construction of their own house/ building etc.,
2. Contractors/ Builders who buy Cement bags for use in the construction of Buildings etc. and sell the buildings/ constructions after completion of construction.
3. Industries who buy cement bags for construction of their factory or for constructing any civil structures in their factory.
4. Industries who buy Cement bags as inputs and cleared as such.
5. Industries who buy Cement bags for use in production, manufacturing etc.
3. He submits that the dispute is whether the cement manufactured and supplied to bulk industrial consumers but sent in 50 Kg bags specifically indicating that it is meant for industrial use and not for retail sale is eligible for exemption notification 04/20

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t, on being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods of the description specified in column (3) of the Table below read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading or sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act), as are given in the corresponding entry in column (2) of the said Table, from so much of the duty of excise specified thereon under the First Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table and subject to the relevant conditions specified in the Annexure to this notification, and the Condition number of which is referred to in the corresponding entry in column (5) of the Table aforesaid.”
S. No.
(1)
Chapter or heading or sub-heading or ta

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.1B, other than those cleared in packaged form;
Rs. per tonne 400
–
Explanation:- For the purposes of S.Nos.1, 1A, 1B and 1C-
1. 'mini cement plant' means –
(i) A factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement product by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or
(ii) A factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 3,00,000 tonnes;
2. 'retail sale price' means the maximum price at which the excisable goods in packaged form may be and the price so printed is the sole consideration for the sale:
Provided that if the goods are cleared in wholesale packages containing a number of standard packages with retail sale price declared on them, then, such declared retail sale price s

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stitutional consumers by the appellant. The only contention that has been raised by the learned Commissioner is that under such institutional consumers, construction companies would not fall under the service industry and it is his interpretation that institutional consumers would be merely airways, railways, etc. We are not inclined to accept this proposition of the learned Commissioner. Construction activity has been considered as a service industry by the Finance Ministry itself, which is obvious as there is imposition of Service Tax on the 'commercial or industrial construction services' and also on 'construction complex'. It is an admitted position that the Foreign Trade Policy of Government of India in the list of services as enumerated in Appendix-10 clearly indicated the following services as service industry.
“3. Construction and related Engineering services
A. General Construction work for building
B. General Construction work for Civil Engineering
C. Installation

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ued by the Central Board of Excise and Customs under Circular No.625/16/2002 dated 28-2-2002 wherein it was clarified that goods sold in bulk at contracted price are to be assessed under Section 4. During the hearing of the case, learned counsel for the appellants has also relied on several decisions of the Tribunal – Bharti Systel Ltd v. CCE [2002 (145) ELT 626 (T)=2002 (51) RLT 649]. CCE v. Trishul Research Lab Pvt Ltd [2002 (144) ELT J204], Goa Bottling Co. Ltd v. CCE [2001 (128) ELT 81 (LB)] and H & R Johnson (India) Ltd v. CBEC [2002 (144) ELT 506 (Kar.)].
4. We have perused the records and considered the submissions made by both sides. We find merit in the submissions made on behalf of the appellant. Marking on the goods prominently stated that the goods were “specially packed for builders”. Thus, the goods were intended for a particular industry and thus, remained excluded under Rule 34 of the Packaged Commodities Rules. The Commissioner (Appeals) has rejected this claim of t

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re. Therefore, the issue has reached finality. In view of the above, the impugned orders may be set aside with consequential relief.
5. Learned departmental representative agrees that the issue is covered by the order of the Tribunal in the case of Mysore Cements Ltd (supra) as confirmed by the Hon'ble High Court of Karnataka insofar as the institutional buyers are concerned. He further draws the attention of the bench to Para 5 of the show cause notice in which it has been held that the appellant is supplying cement to five categories of buyers. One of these categories is individual buyers who buy cement bags for construction of their own house/ building. This fact has been brought out in Para 19.1 of the impugned OIO which reads as follows:
“19.1 From the materials on record it is undisputed that assessees have sold the cement in 50 kgs bags without mentioning any RSP to the following customers.
1. Individual buyers who buy Cement bags for construction of their own house/ buildi

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ication for the entire consumption. He further asserts that the appellants sell cement to industrial consumers and to dealers only and not to individuals for personal consumption.
8. We have considered the arguments on both sides and perused the records. The issue which falls for consideration is whether the assessee is entitled to the benefit of notification 04/2006-CE (Sl.No.1C) in respect of the cement cleared by them in 50 Kg bags marked as “meant for industrial use” and “not for retail sale” and sold to institutional/ bulk buyers. A related issue is whether the same exemption notification is also available to sales, if any, are made to individual consumers by the assessee. In so far as the first question is concerned, we find that the issue is no longer res integra and it has been settled by the Tribunal in the case of Mysore Cements Ltd (supra) and affirmed by the Hon'ble High Court of Karnataka. Respectfully following the ratio, we hold that assessee is entitled to the benefit

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In Re: M/s. Tewari Warehousing Co. Pvt. Ltd.
GST
2019 (2) TMI 1009 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (22) G. S. T. L. 156 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 18-2-2019
Case No. 36 of 2018 Order No. 40/WBAAR/2018-19
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY, MEMBER
Applicant's representative heard Arani Tewari, FCA
1. The Applicant, stated to be supplying warehousing services, is constructing a warehouse on leasehold land, using pre-fabricated technology. According to the Applicant, it can be dismantled and reconstructed at a different location. He seeks a ruling on whether the input tax credit is admissible on the inward supplies for construction of the said warehouse.
The above question is admissible under section 97(2)(d) of the CGST/WBGST Act, 2017 (hereinafter collectively called 'the GST Act).
The Applicant declares that the issue raised in the application is not pending nor decided in any proceedings u

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ss, growing crops and the like) or anything that is permanently fixed to such things which are so embedded to the ground can be called an immovable property.
On the other hand, the System, according to the Applicant's submission, is fixed by anchor bolts to a low RCC platform embedded to the ground, and it is the only civil structure. The rest of the structure, like columns, beams, rafters, wall sheets, roof shed etc. are all joined with one another by nuts and bolts, and can be easily dismantled and restructured at another location.
The low-rising RCC platform is, of course, permanently embedded to the ground. However, according to the Applicant, the warehousing system built thereon, can be dismantled, and thus reduces repeated capital expenses in the event of a shift of location. Moreover, the question of treatment of a property that is attached to a structure permanently embedded on earth has a long legal history. The consensus that has emerged favours treatment of such property a

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up and no further. It is the System that is beneficially enjoyed, not the RCC structure.
3. “Immovable property” is not defined under the GST Act. The term 'goods' is defined under Section 2(52) of the GST Act as all kinds of moveable properties other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply.
Property other than goods, money and securities should, therefore, be considered as 'immovable property' under the GST Act.
However, in the absence of a definitive explanation under the GST Act, recourse is being taken to other allied Acts dealing with “property” to determine the definition of “Immovable property”.
It is seen that Section 3(26) of the General Clauses Act, 1897 defines “Immovable Property” as to include land, benefits to arise out of the land, and things attached to the earth, or permanently fastened to anything attac

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le determining whether an article is permanently fastened to anything attached to the earth both the intention as well as the factum of fastening has to be ascertained from the facts and circumstances of each case.
In S/S Triveni N L Ltd [RN – 910, 911 & 912 of 2001 (All)] = 2014 (4) TMI 842 – ALLAHABAD HIGH COURT Allahabad High Court observes that 'permanently fastened to anything attached to the earth' has to be read in the context for the reason that nothing can be fastened to the earth permanently so that it can never be removed. If the article cannot be used without fastening or attaching it to the earth and is not removed under ordinary circumstances, it may be considered permanently fastened to anything attached to the earth.
Furthermore, in the context of the GST Act, if the article attached to the earth is not agreed to be severed before supply or under a contract for supply, it ceases to be goods and, for that matter, a moveable property.
5. In the case of Solid & Correct

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an immovable property merely because it is attached to a foundation embedded in the earth. The test is whether the machine can be dismantled and sold in the market. This judgment is based on the premise that the machine and not the foundation to which it is attached is the property being used and enjoyed. It is not relevant in the context where the civil structure embedded on earth forms an integral part of the property.
6. In the present context, the Applicant is constructing the warehouse on a piece of land, taken on lease from Kolkata Port Trust for a period of thirty years for the purpose of building a storage facility. The intention, therefore, is beneficial enjoyment for more than two decades of the property being built. Unless the business is wound up, the Applicant, after the expiry of the lease, can approach KOPT for granting a fresh lease. The structure being built is, therefore, not for the purpose of temporary enjoyment, but intended to be used as a permanent structure sub

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ked on the floor. Construction of the floor, its load-bearing capacity and the space it occupies is, therefore, critical to the construction of the warehouse. The System that the Vendor supplies, as transpires from the literature annexed to the Application, does not apparently include any specific description of the floor as a pre-fabricated load-bearing structure.
Although the written submission made at the time of Hearing refers to the floor as a pre-fabricated structure, description of the System, as the Vendor provides in the literature, does not include any specification. In a cross-sectional diagram of the typical pre-engineered steel building the Vendor provides a vivid pictorial illustration of the various parts of the structure – the walls, roof, doors and windows etc. that will be built upon the floor, but does not provide any description of the floor as a pre-fabricated structure.
The literature refers to wide bay purlins spanning up to 12 M for better shop floor lay out a

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UTTARAKHAND needs to be distinguished in this context. The ld AAR in Uttarakhand has been dealing with mobile towers fixed to a pit with a concrete base. Clearly, the intention is beneficial enjoyment of the mobile tower and not of the concrete base. The mobile tower can, of course, be easily dismantled and fixed elsewhere. The ld AAR has, therefore, treated the mobile tower infrastructure, including the pole, as movable property. In the case of the warehouse, however, the pre-fabricated movable structures do not constitute the property of the warehouse. They are building blocks applied to a civil structure attached to the land to construct a complete warehouse. The warehouse cannot be conceived without the beneficial enjoyment of the civil structure, which is an integral part of the property. The decision in Vindhya Telelinks Ltd (supra) is not, therefore, relevant. In this connection, reference may be made to clause 4(v) of the Circular No. 58/1/2002-CX dated 15/01/2002, where it is

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Clarification regarding tax payment made for supply of warehoused goods while being deposited in a customs bonded warehouse for the period July, 2017 to March, 2018
91/10/2019 Dated:- 18-2-2019 CGST – Circulars / Ordes
GST
Circular No. 91/10/2019-GST
F. No. CBEC-20/16/04/2018 – GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
***
New Delhi, Dated the 18th February, 2019
To,
The Principal Chief Commissioners / Chief Commissioners / Principal Commissioners / Commissioners of Central Tax (All)
The Principal Director Generals / Director Generals (All)
Madam/Sir,
Subject: Reg.
Attention is invited to Circular No. 3/1/2018-IGST dated 25.0

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recipient were located in the same State or Union territory. Hence taxpayers making such supplies have reported such supplies as intra-State supplies and discharged central tax and state tax instead of integrated tax accordingly. Now, representations have been received from trade to clarify the same.
3. In order to ensure uniformity in the implementation of the provisions of law across the field formations, the Board, in exercise of its powers conferred by section 168 (1) of the Central Goods and Services Tax Act, 2017, hereby issues the following instructions.
4. Supply of warehoused goods while deposited in custom bonded warehouses had the character of inter-State supply as per the provisions of Integrated Goods and Services tax Act, 2

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Compliance of rule 46(n) of the CGST Rules, 2017 while issuing invoices in case of inter- State supply
90/09/2019 Dated:- 18-2-2019 CGST – Circulars / Ordes
GST
Circular No. 90/09/2019-GST
F. No. CBEC-20/16/04/2018 – GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
***
New Delhi, Dated the 18th February, 2019
To,
The Principal Chief Commissioners / Chief Commissioners / Principal Commissioners / Commissioners of Central Tax (All)
The Principal Director Generals / Director Generals (All)
Madam/Sir,
Subject: Reg.
A registered person supplying taxable goods or services or both is required to issue a tax invoice as per the provisions contained

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field formations, the Board, in exercise of its powers conferred by section 168 (1) of the Central Goods and Services Tax Act, 2017, hereby issues the following instructions.
3. After introduction of GST, which is a destination-based consumption tax, it is essential to ensure that the tax paid by a registered person accrues to the State in which the consumption of goods or services or both takes place. In case of inter-State supply of goods or services or both, this is ensured by capturing the details of the place of supply along with the name of the State in the tax invoice.
4. It is therefore, instructed that all registered persons making supply of goods or services or both in the course of inter-State trade or commerce shall specify th

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Mentioning details of inter-State supplies made to unregistered persons in Table 3.2 of FORM GSTR-3B and Table 7B of FORM GSTR-1
89/08/2019 Dated:- 18-2-2019 CGST – Circulars / Ordes
GST
Circular No. 89/08/2019-GST
F. No. CBEC-20/16/04/2018 – GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
***
New Delhi, Dated the 18th February, 2019
To,
The Principal Chief Commissioners / Chief Commissioners / Principal Commissioners / Commissioners of Central Tax (All)
The Principal Director Generals / Director Generals (All)
Madam/Sir,
Subject: Reg.
A registered supplier is required to mention the details of inter -State supplies made to unregistered pe

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ervices Tax Act, 2017(CGST Act for short), hereby issues the following instructions.
3. It is pertinent to mention that apportionment of IGST collected on inter-State supplies made to unregistered persons in the State where such supply takes place is based on the information reported in Table 3.2 of FORM GSTR-3B by the registered person. As such, non-mentioning of the said information results in –
(i) non-apportionment of the due amount of IGST to the State where such supply takes place; and
(ii) a mis-match in the quantum of goods or services or both actually supplied in a State and the amount of integrated tax apportioned between the Centre and that State, and consequent non-compliance of sub-section (2) of section 17 of the Integrated

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ITC on inputs by Hotel having restaurant also
Query (Issue) Started By: – IRFAN MALIK Dated:- 17-2-2019 Last Reply Date:- 18-2-2019 Goods and Services Tax – GST
Got 2 Replies
GST
Query relating to ITC on F&B material purchased by hotel (having restaurant):
I have a hotel with restaurant in its premises. Following are GST sales:-
1. Accommodation with breakfast (package sales) – GST charged by hotel is 12/18%
2. Accommodation with breakfast & lunch/dinner (package sales) – GST charged by hotel is 12/18%
3. Direct restaurant sales – GST charged is 5%
In such case how to claim ITC on F&B item as no ITC is allowed if GST charged is 5% but package sales include breakfast/lunch/dinner & GST charged is 12/18%
my 2nd query is Hotel

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with per day transaction value more than ₹ 7,500/- you need to discharge GST @ 5% without any ITC and also treat the same as exempt supply for the purpose of Rule 42 & 43 of CGST rules. i.e. reversal of ITC relating to ITC. – refer notification no. 13/2018 CT(R) dated 26.07.2018.
Hence in your case, avail the entire ITC of food and beverages and reverse the ITC related to 5% outward supply based on Rule 42 & 43 of CGST rules.
Reply to Q.2 –
In light of the notification no.13/2018 CT(R) dated 26.07.2018 you have to charge 5% GST on supply of food and beverages services without availing ITC. However, based on the CGST Amendment Act,2018 w.e.f 01.02.2018, you can avail the ITC on such supplies to employees provided the same is mandat

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GST Exemption – Notification Nos.47/17
Query (Issue) Started By: – KV Vijayendra Dated:- 17-2-2019 Last Reply Date:- 18-2-2019 Goods and Services Tax – GST
Got 2 Replies
GST
Sir
Notification Nos.47/17 is applicable for the purchase of laboratory equipment by private institute affiliated to Government approved university. The purchase is made from the government funded laboratory development grant such as MODROB by All India Council for Technical Education [AICTE]
Kindly clarify wh

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Computation of GST ,on amount exceeding Thrashed
Query (Issue) Started By: – dhirajlal patel Dated:- 17-2-2019 Last Reply Date:- 20-2-2019 Goods and Services Tax – GST
Got 8 Replies
GST
Dear sir
In case of a member of co op hsg society ,n the maintainable charges up to RS 7500/ charged by a society no GST is to be charged ,Now the question arises is if Maintenance charges exceeds thrashed limit of RS 7500/ then ,whether GST is to be levied on the entire Sum or only on the difference between Entire sum and thrashhold limit of RS 7500/ ,What does the provisions of GST stipulate in these understands
Reply By Ganeshan Kalyani:
The Reply:
In my view, GST is applicable on the amount in excess of threshold limit for the first tim

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ding the threshold amount.
Reply By dhirajlal patel:
The Reply:
It is true and undisputed that G S T is applicable once Thrashhold of RS 7500/ exceeds ,but question is whether G S T is leviable on the entire amount or a difference of amount ,is the moot question ,on which there is no clarity and Co op societies are charging GST on the entire Amount
Reply By KASTURI SETHI:
The Reply:
GST is payable on the amount which is in excess of ₹ 7500/-. There is no doubt. If someone is paying GST on whole amount that is incorrect. It does not mean all should follow them.Those persons are paying out of phobia of the department. There are instances where the assessees adopt wrong practice by following others without understanding law.
Reply

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Joint Development Agreement
Query (Issue) Started By: – Bhavesh Patel Dated:- 16-2-2019 Last Reply Date:- 18-2-2019 Goods and Services Tax – GST
Got 1 Reply
GST
Land owner entered into Joint Development Agreement(JDA) on 28/06/2016 with developer of residential plot. As per agreement payment is made to land owner once the full consideration received from customer. Full sales consideration received from customer on 08/02/2019 and then the developer pay to land owner as per JDA. Is GS

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Misunderstanding of GST Entry: Tax Liability on Recipient via Reverse Charge for Mineral Licensing Services.
Case-Laws
GST
Levy of GST – business of mining – The applicant has misconstrued th

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Manpower Services to Hospitals and Universities Not GST Exempt; Entities Must Comply with Tax Obligations.
Case-Laws
GST
Man power services to Hospital cum General Medical College and State U

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Haryana Property Rental Registration: Business Location Key; Rajasthan Correct for Transport Services Starting There.
Case-Laws
GST
Requirement for registration – Renting of property situated in Haryana – place of business to be considered for the purpose of registration – the applicant have rightly taken registration in state of Rajasthan as the supply of transport services is initiated from the state of Rajasthan
TMI Updates – Highlights, quick notes, marquee, annotation, news, al

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Ineligible for Input Tax Credit: Central Tax Paid in Haryana, Supplier and Supply Outside Rajasthan Jurisdiction.
Case-Laws
GST
Input tax credit (ITC) – As the supplier of services and place

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gardening expenses itc
Query (Issue) Started By: – Madhavan iyengar Dated:- 16-2-2019 Last Reply Date:- 16-2-2019 Goods and Services Tax – GST
Got 5 Replies
GST
gardening expenses incurred for garden maintained at factory can ITC be claimed
Reply By Ganeshan Kalyani:
The Reply:
Yes, ITC is available in GST. There is no such concept that the expense should have been incurred in or in relation to manufacturing activity as it was there in Central Excise Law. In GST, ITC of the expense which are used in course or furtherance of business is allowed subject to section 17 of CGST Act.
Reply By KASTURI SETHI:
The Reply:
Pl. go through this order of AAR, ODISHA especially para No.5.3
2018 (18) G.S.T.L. 508 (A.A.R. – GST) = 2018 (1

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CGST and OGST Act. Similarly, services for maintenance of plant and gardens within the residential colony and other public utility created by the applicant will form part of the residential colony and in turn part of the perquisite provided to the employees. Services availed in relation to the plants and garden in the residential colony will not qualify for input tax credit for the reasons discussed in para 5.0. It was also found that the plantation and maintenance of gardens are undertaken within plant area and other business establishments like administrative building and guest houses. Services availed in relation to plantation and gardening within the plant area including mining area and the premises of other business establishment as m

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Solar Energy Water Pumping Systems Classified as Works Contract of Composite Supply Under GST Regulations.
Case-Laws
GST
Classification of supply – goods/services – the activity of supply, de

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Advance Ruling Denied: Input Tax Credit for FY 2017-18 Not Eligible for Review Under Current Rules.
Case-Laws
GST
Eligibility for Advance Ruling – Admissibility of input tax credit of tax pai

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RCM on Security Charges applicable on inward supply of security charges
Query (Issue) Started By: – chandan bera Dated:- 16-2-2019 Last Reply Date:- 18-2-2019 Goods and Services Tax – GST
Got 9 Replies
GST
Dear Sir/Madam,
We, register regular tax payer under GST Act, have received security service from a registered supplier and values of the total contract in a year exceed 2.5 lakh.
Q1) form 01/01/2019 as per Notification No. 29/2018- Central Tax (Rate) liable to pay GST on reverse charge?
Q2) forms 01/01/2019 as per Notification No. 29/2018- Central Tax (Rate) liable to deduct TDS as per GST Act?
Reply By KASTURI SETHI:
The Reply:
Reply to Q. No.1 : If your firm is body corporate business entity and you receive security service from any person i.e. Partnership firm, Proprietorship, LLP, One person co., individual etc. you are required to pay GST under RCM. No threshold exemption limit is admissible under RCM.
Reply to Q.No.2 : It is not relevant for you it is for GT

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eir outward invoice and we have to paid under RCM basics.
Reply By Ganeshan Kalyani:
The Reply:
You, being receiver of service, are a partnership firm. What is the status of service provider ?. Is he a body corporate? if yes, then he will charge GST on invoice and you need not have to pay GST under reverse charge. If he is not then you will have to pay GST under reverse charge.
Reply By Prudhvi Jakkula:
The Reply:
KASTURI SETHI sir
You said that if the firm is body corporate and service provider is any registered person RCM will not applicable. But if the service provider is also body corporate then the firm should pay tax in RCM.
Correct me if wrong
Reply By Ganeshan Kalyani:
The Reply:
If both service provider and the service receiver are body corporate then body corporate providing service will charge GST on the invoice. RCM will be applicable in this case. However, as desired by the querist, the views of Sri Kasturi Sir is welcomed.
Reply By Ganeshan Kalyani:
The Reply:
P

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rnment agencies which has taken registration under the GST only for the purpose of deducting tax under section 51 and not for making a taxable supply of goods or services; or
(4) A person registered under composition scheme (as per section 10 of CGST Act).
Reply to Q.2
TDS provisions under GST will be applicable only under Section 51 of CGST Act which says deduction of tax by the Government Agencies (Deductor) or any other person to be notified in this regard, from the payment made or credited to the supplier (Deductee) of taxable goods or services or both, where the total value of such supply, under a contract, exceeds two lakhs and fifty thousand rupees.
Presently, the persons liable to deduct TDS under GST are:-
1. a department or establishment of the Central Government or State Government;
2. Local Authority;
3. Governmental Agencies;
4. an authority or a board or any other body, –
a. Set up by an Act of Parliament or a State Legislature; or
b. Established by any Governme

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NO PROFITEERING WHEN BASE PRICE IS CONSTANT & SELLING PRICE REDUCED
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 16-2-2019

The complaint against profiteering came up recently before the National Anti-profiteering Authority (NAA) in a case involving supply of tiles. In Kerala State Screening Committee on Anti-profiteering & DGAP, CBIC New Delhi v. Asian Grantio India Ltd., Ahmedabad (2018) 12 TMI 1401; the NAA vide its Order dated 24.12.2018 ordered that where the business entity has duly passed on the benefit of reduction in the tax rate by keeping the base price constant thus reducing the selling price of the products in question, the anti-profiteering provisions contained in Section 171 (1) of the CGST Ta

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Rs.)
1101171B/G01063 dated 30.08.2017
28%
743.95
110/1716/G02733 dated 28.11.2017
18%
743.95
–
1110/1716/G01063 dated 28.11.2017
28%
650.93
1110/1716/G02733 dated 28.11.2017
18%
650.92
-0.01
The DGAP observed that the business entity had not increased the per unit base price (excluding GST) of both the products after GST rate reduction w.e.f. 15. 11.2017, which were ₹ 743.95 and ₹ 650.93 in both the periods. Thus, though the GST rate was reduced from 28% to 18% w.e.f. 15.11.2017, the absence of any upward change in the per unit base price (excluding GST) confirmed that the allegation of profiteering by the was not sustainable.
The NAA took up the matter to examine whether there was any reduction in the GST rate

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GST Revocation Technical Issue
Query (Issue) Started By: – Vishal Raheja Dated:- 15-2-2019 Last Reply Date:- 16-2-2019 Goods and Services Tax – GST
Got 3 Replies
GST
My concern is my GST No got cancelled due to non filling of Returns on 6/11/18 as per the process I got to know I have filled all my pending returns & I have applied for revocation on GST Portal on 26/11/18. It's been almost 3 Months my GST number has not been revocate yet I have visited my judiciary officer more then 10 times they say on their portal request is not reflecting. I have also spoke to CBEC Help Desk they are also help less. Can anyone suggest do you guys have any history of revocation done or shall I consider all the revocations are pending & govt has

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Reverse Osmosis Plant Project Classified as Works Contract of Composite Supply, Emphasizing Service Provision Over Goods.
Case-Laws
GST
The activity of supply, design, installation, commissio

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Polypropylene Leno Bags, laminated or not, classified as plastic under HS code 3923, incur 18% GST.
Case-Laws
GST
Polypropylene Leno Bags whether laminated with BOPP or not would be classifie

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Transfer of Goods for Mid-Day Meal Programs Classified as 'Supply' Under GST for Distinct Persons.
Case-Laws
GST
The transfer of goods / capital equipments, exclusively used for Mid-Day Meal

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Export of Services without renewal of Bond for export and without having Lut
Query (Issue) Started By: – Balkar Singh Dated:- 15-2-2019 Last Reply Date:- 16-2-2019 Goods and Services Tax – GST
Got 3 Replies
GST
Dear Sir,
We are doing business of IT export services in Mohali, Punjab. Our company has taken 'Acceptance of Bond' letter from Central excise dept date 22.9.2017 with bank guarantee which was valid up to 31.8.2018. We have taken Lut on 28.9.2018. We continue to export after 31st March 2018 till August 2018 on basis of bank guarantee and it was not in our knowledge to renew the bond after 31st March 2018 because validity period was not mentioned on 'Acceptance of Bond' letter .
My question is –
What is

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