Goods and Services Tax

C.C.E. & S.T. -Ltu Mumbai, C.C. -Mumbai (port-import) Versus Lupin Ltd & LUPIN LTD Versus CGST C.E & C. C-BHOPAL
Central Excise
2019 (2) TMI 937 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 14-2-2019
Excise Appeal No.56083, 56084/2014-EX(DB), Customs Appeal No.54528-54529/2015 & Excise Appeal Nos.50792-50793/2018 with Misc. No.50327-50328/2018 – A/50261-50266/2019-EX[DB]
Central Excise
MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL)
Shri S.K. Bansal, DR for Department/Appellant.
Shri Bharat Raichandani, Advocate for the assessees.
ORDER
PER ANIL CHOUDHARY:
The brief facts involved in the present case for both units i.e. 'Prill' & 'Oral' is tabulated respectively as under –
2. The facts (Prill Unit), in brief, are thus:
Date
Summary
Event
19.08.2010
Filing of de-bonding application
The applicant made an application to Development Commissioner ('DC'), Indore, SEZ, Mumbai for de-bonding of its Prill Unit EOU.
31.

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e stock verification has been completed by central excise officers and the appellant was directed to discharge central excise and custom duty at applicable rates.
11.02.2011
Computation of Liability
The appellant submitted the computation of liability to the DC-LTU and requested to confirm the proposed mode of payment of duties.
22.02.2011
Confirmation of mode of payment
DC-LTU confirmed the mode of payment proposed vide letter dated 11.02.2011.
04.03.2011
Payment of duty & request for NDC
The appellant submitted complete details of payment of duty on de-bonding along with other relevant documents to the DC-LTU and requested DC-LTU to issue No Dues Certificate ('NDC').
31.05.2011
NDC received
The DC-LTU issued NDC to exit from the EOU scheme.
23.06.2011
Final de-bonding order
The Development Commissioner issued final de-bonding order.
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DC-LTU objected mode of payment of duty
The DC-LTU, after a long gap of more than one year from the date of issuance of NDC, di

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15.01.2014
Reply filed
The appellant filed a detailed reply to the above show cause notice and refuted all the allegations contained therein.
07.04.2014
Additional submissions
The appellant filed additional submissions in response to the above show cause notice.
03.09.2014
O-I-O dropped SCN
The order-in-original issued by the Commissioner, CX & ST, LTU, Mumbai dropped the entire demand of central excise duty, custom duty and cenvat credit.
 
 
This resulted in the present Departmental appeal to CESTAT.
06.04.2015
Application for re-credit
Pursuant to above order dated 03.09.2014, the appellant filed an application of re-credit of cenvat credit reversed during the course of investigation.
09.07.2015
Refund application
The appellant also filed a refund claim of the duty & interest paid under protest during the course of investigation.
06.08.2015
Deficiency notice by department
The department issued deficiency letter to the appellant with respect to the abo

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peal against the above order, in as much as it was against the appellant, before the Commissioner (Appeals)
30.11.2017
O-I-A upheld the O-I-O
The impugned order-in-appeal passed by the Commissioner (Appeals) upheld the order-in-original dated 11.05.2017.
 
Present appeal
Hence, the present appeal, by assessee.
3. The facts (Oral Unit), in brief, are thus:
Date
Summary
Event
10.03.2011
Filing of de-bonding application
The Respondent made an application to Development Commissioner ('DC'), Indore, SEZ, Mumbai for de-bonding of its Oral Unit EOU and requested for extension of validity period of letter of permission and green card.
28.03.2011
Approval for exit from EOU scheme
The Development Commissioner extended validity period of letter of permission and green card. The Development Commissioner granted 'in-principle approval' for exit from EOU scheme.
01.04.2011
Intimation of effective date of de-bonding
The appellant applied to the Deputy Commissioner of Centr

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pto 30.04.2012, and the permission for 'in-principle de-bonding' was also extended by one month upto 27.04.2012.
17.04.2012
Request for NDC
The Respondent once again requested the DC-LTU to issue the NDC.
26.04.2012
NDC received
The Deputy Commissioner-LTU issued NDC to exit from the EOU scheme.
15.06.2012
Final de-bonding order
The Development Commissioner issued final de-bonding order.
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DC-LTU objected mode of payment of duty
The Deputy Commissioner-LTU, long after the entire process was over, disputed the mode of payment of excise and customs duty by the appellant and directed the appellant to discharge its duty liability in cash. Further, the Deputy Commissioner-LTU also directed to reverse cenvat credit availed on CVD and SAD paid on raw material and capital goods (indigenous as well as importer).
February, 2013 to March, 2013
Payment of duty in cash and reversal of credit under protest
The appellant again discharged the above liability in cash along with int

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t.
 
 
Hence, the present appeals by the Department
06.04.2015
Application for re-credit
Pursuant to above order dated 03.09.2014, the Respondent herein filed an application of re-credit of cenvat credit reversed during the course of investigation.
09.07.2015
Refund application
The Respondent also filed a refund claim of the duty & interest paid under protest during the course of investigation.
06.08.2015
Deficiency notice by department
The department issued deficiency letter with respect to the above refund claim.
20.10.2015
Reply to deficiency notice
The Respondent replied to the above queries of the department and submitted various documents in support of the claim.
28.10.2015
Re-credit sanctioned
In the meantime, the Assistant Commissioner, LTU, Mumbai sanctioned the above re-credit claim of the respondent filed on 06.04.2015.
07.01.2016
SCN issued for refund application
The department issued the show cause notice calling upon the respondent to show a

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filed against Order Number along with date
Unit
1.
Revenue
Order-in-Original
186/Commr/WLH/LTU-M/CX/2014 dated 03.09.2014
Prill
188/Commr/WLH/LTU-M/CX/2014 dated 03.09.2014
Oral
2.
Assessee
Order-in-Appeal
BHO-EXCUS-001-APP-510-17-18 dated 30.11.2017
Prill
BHO-EXCUS-001-APP-505-17-18 dated 30.11.2017
Oral
5. Personal hearing was held on 14.08.2018, Mr. Bharat Raichandani, Ld. Advocate, appeared on behalf of the appellant/respondent (M/s Lupin) and reiterated the submission made in their appeal memorandum.
6. We have carefully gone through the facts of the case on record, grounds of appeal in the Appeal Memorandum and submissions made by the respective parties.
APPEAL FILED BY THE REVENUE
7. We find that the Commissioner has passed a detailed and cogent order. The Commissioner has given finding on each and every point and decided the show cause notice judiciously.
8. The grounds of appeal do not dispute the factual position. The grounds of appeal are beyond the scope

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C)
(ii) CCE V/s Echjay Forging Private Limited 2015 (319) ELT 127
10. We find that during the course of hearing, however, the Ld. Authorized Representative for the Revenue relied upon one ground of appeal to submit that the finding on limitation has been challenged by the Revenue. The same reads thus:
“3.5) Para 6.18(e) provides that between “No dues certificate” issued by the Customs and Central Excise Authorities and final debonding order by the Development commissioner, unit shall not be entitled to claim any exemption for procurement of capital goods or inputs. It is seen that Lupin Oral has obtained advance authorization & EPCG License for duty free procurement of inputs and capital goods through advance license. M/s Lupin, after the cut off date procured the Advance authorizations and utilized the same for payment of import duty amounting to Rs. 75,34,044/- on raw material covered under Bill of Entry No.1 to 4 all dated 03.03.2011. Similarly, they also procured EPCG license a

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n 11A of the Central Excise Act or section 28 of the Customs Act is not correct. Hence, the reliance placed on the said ground is incorrect.
13. Second, in any event, the said ground of appeal is beyond the entire proceedings. The same is being raised for the first time during hearing before this Tribunal. This is clearly impermissible. The Revenue cannot make out a new case at this stage
14. Third, in any event, if the allegation that the advance license was obtained fraudulently is correct, then the Licensing authority (DGFT) would have taken action against the Respondent. No such action has been taken by the DGFT. There is no such proposal. The Revenue cannot go beyond the license and propose to deny benefit of exemption and demand duty. The Hon'ble Supreme Court in the case of Titan Medial Systems Private Limited V/s CC 2003 (15) ELT 254 (SC) held thus:
As regards the contention that the appellants were not entitled to the benefit of the exemption notification as they had misrep

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ensing authority to take steps in that behalf.
15. The above view has been re-iterated by the Hon'ble Bombay High Court in Autolite (India) Limited V/s Union of India 2003 (157) ELT 13 (Bom).
16. Fourth, in any case, there is no error in grant of the said license by the DGFT. There was no misrepresentation on facts. The basic grievance of the Revenue is utilization of the advance license for payment of duties. There is no bar against the same under the Policy. Para 6.8(e) is in a different context and cannot be relied upon.
17. Last, in any event, in the facts of the instant case, no suppression of facts can be alleged against the Respondent. The Respondent has paid the duties in respect of the stock as on cut-off date. The show cause notice merely disputes the mode of discharge of duty i.e. whether Excise duty on Customs duty ought to be paid. Hence, it cannot be said that the Respondent indulged in any collusion, willful misstatement or suppression of facts with intent to evade du

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of Pril EOU. At the time of de-bonding of the Pril EOU, the Respondent discharged the applicable duties. As the unit had submitted their letter dated 11.02.2011 showing the mode of payments, department was already aware of the duty positions adopted by the Respondent. Further, pursuant to discharge of the applicable duties, the Respondent intimated the Customs and Excise authorities regarding the mode and methodology of computation and payment of applicable duties on goods lying in exit stock in these units, vide letter dated March 2, 2012 and the appellant/assessee also submitted various documents. The same have been accepted by the department. There is no dispute about this factual position. There is no material to suggest that the Respondent had made any deliberate mis-statement or suppression to defraud the Government of its due revenue. No evidence has been produced by the Revenue on record. There is no such whisper in the present appeal as well. Hence, there exists no circumstanc

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id of any merit for the reasons stated herein below-
20. First, the Respondent is an EOU. It availed benefit of Notification No. 52/2003-Cus and Notification No. 22/2003-CX. Accordingly, imported goods and indigenously procured goods without payment of custom duty and excise duty respectively. Therefore, when a unit gives up its EOU status, the said benefit availed by the unit (ie, whatever duty foregone) should be given back. Hence, the EOU exiting from the EOU scheme shall be liable to pay customs duty and excise duty on imported goods and indigenously procured goods respectively lying in the stock as on cut-off date. This view is in line with the said notifications as well.
21. Second, the duty payable for clearance of goods from EOU to DTA unit is duty of Central Excise. Similarly, when the EOU converts to DTA the duty payable on finished goods and goods procured indigenously is central excise duty. This view has been taken by Larger Bench of this Tribunal in Vikram Ispat vs. CCE

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ty of law.
23. Fourth, Para 6.18 of Foreign Trade Policy ('FTP') 2009-14 provides for exit of EOU from EOU scheme on condition of payment of excise and customs duties. Further, Appendix 14-I-L of FTP 2009-14 prescribes guidelines for de-bonding of an EOU. Clause (a) of the said appendix provides that applicable customs and excise duties would be paid on imported and indigenous goods in stock. Therefore, if the contention of the department is accepted, the provisions of FTP would become redundant. The provisions shows that the legislature never intended to impose only customs duty on the goods lying in stock at the time of de-bonding of EOU.
24. Fifth, the department itself, in grounds of appeal at Para 2.6(Prill) &Para 2.3 (Oral), has contended that on de-bonding the respondent (appellant therein) is liable to pay customs duty on imported goods and excise duty on the indigenously procured goods and finished goods. Therefore, on this count alone, we find that the entire proceedings go

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cise duty paid on indigenous procured goods, SAD paid on capital goods imported and CVD and SAD paid on imported raw material
27. The Revenue contends that the respondent is not eligible to avail cenvat credit on the inputs and consumables as the cenvat credit of the same is available at the time when the inputs and consumables are procured in the factory of manufacture of final product. This contention is without any legal basis.
28. We find that as per Rule 3 of the Cenvat Credit Rules, 2004 allows cenvat credit of the duty paid on goods procured by the Respondent is available provided the following conditions are satisfied:
(i) the goods imported or indigenously procured qualify as 'inputs' or capital goods' in terms of definition under Cenvat Credit Rules, 2004;
(ii) capital goods and inputs are received in the factory of the manufacturer; and
(iii) the capital goods and inputs are used in the factory of the manufacturer for manufacture of excisable goods or used for providing

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f customs duty on such goods. Further, such cenvat credit of CVD has been allowed only for capital goods and not for raw materials, raw material content in work in progress, packing materials and consumables. This shows the dual stand taken by the Revenue itself. It is well settled that the department cannot blow hot and cold at the same time. The law does not permit blowing the bugle at both ends. Such arbitrary allowance of credit is grossly unjustified as, in terms of the Credit Rules, 2004, cenvat credit of SAD is available to a manufacturer of goods for not only the capital goods but also for other imports such as raw materials, packing materials and consumables. Hence, credit of SAD should also be extended to the respondent on all imported procurement and not only on capital goods.
Customs duty paid by debiting EPCG license and advance license is legal and proper
31. We find that the case of the department is that the customs duty paid, at the time of de-bonding, by the respond

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ty on imported capital goods from Development Commissioner on August 03, 2011, and thereafter, the DFGT granted EPCG license to the Respondent. As admitted in the show cause notice, the Respondent presented such EPCG licenses towards discharge of duty on imported capital goods; however, the same was rejected on the sole ground that these licenses were obtained pursuant to the cut-off date. These facts have been ignored by the department in their show cause notice as well as appeals filed by them. Hence, the entire case of the department is frivolous and based on incorrect facts. Thus, the payment of customs duty through EPCG and advance license is correct and is in accordance with procedure provided in the FTP 2009-14.
33. Second, Para 6.18 of the FTP 2009-14 prescribes that the Development Commissioner may submit an EOU to exit from the EOU scheme by availing the benefit under EPCG Scheme subject to fulfilment of the positive NFEE criteria. Similarly, Notification No.52/2003-Cus also

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ave liberalized the entire process, validily obtained EPCG license, cannot be denied on the ground that the same were obtained after the cut-off date. Denial of the benefit of payment of duty by debiting EPCG license is not justified.
34. Third, the EPCG and advance licenses are issued by Director General of Foreign Trade ('DGFT') subject to the terms of conditions mentioned in FTP and schemes made thereunder. The customs or excise department has no jurisdiction to question the legality of issuance of EPCG and advance license. Once the said licenses are procured legally, the same can be utilized to discharge custom duty liability.
35. In identical set of facts, this Tribunal in Welspun Zucchi Textiles V/s CCE 2006 (204) ELT 401, wherein the issue was utilization of EPCG license for payment of duties on second hand machinery, at the time of de-bonding of EOU, which was duly allowed by the Development Commissioner. In the said judgment, 'In principle' approval for de-bonding was obtain

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icate by the Deputy Commissioner. Further, the respondent discharged duty of Rs. 62,91,409/- (Prill) & Rs. 18,67,092/- (Oral) on the balance finished goods lying in stock at the time of payment of duty by debiting in their cenvat credit. In terms of note to Appendix 14-I-L of the HBP V1 which provides that a 100% EOU continues to be treated as EOU till the date of final exit order and such view is also expressed in various judicial precedents. The respondent cannot be placed in an indeterminate state in the intervening period till the NDC or final de-bonding order is obtained. Therefore, the respondent unit continues to remain an EOU till the date of final de-bonding order and is eligible to export finished goods without payment of duty under Bond B-17. This view has been taken by this Tribunal in Jubilant Life Sciences Limited Vs. CCE TS-182-Tribunal-2013-FTP, wherein the Tribunal held that no duty is payable on finished goods, lying in stock as on the date of de-bonding, provided the

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the EOU Scheme. The said appendix lays down the applicable customs and excise duties payable by the unit on imported and indigenous capital goods, raw materials, components, consumables, spares and finished goods. It does not provide for payment of duties on WIP. Obviously and logically so. Therefore, no duties of customs are payable on WIP at the time of debonding. This view has been taken by this Tribunal in Tirumala Seung Han Textiles Limited V/s CCE 2009 (237) ELT 145.
41. In light of the above findings, the department appeals are dismissed.
APPEAL BY THE ASSESSEE
42. We find that once the appeal filed by the Department is rejected, the action proposed by the Revenue on the refund application is negated. Hence, the payment of duties, in cash, subsequently, after the objection taken by the department, becomes refundable to the Respondent. The order-in-appeal passed by the Commissioner (Appeals), on consequential refund, becomes a nullity. In any case, there are several infirmitie

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M/s Aircheck India Pvt. Ltd. Versus CCGST, Mumbai West
Service Tax
2019 (2) TMI 879 – CESTAT MUMBAI – 2019 (24) G. S. T. L. 204 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 14-2-2019
APPEAL NO. ST/86391/2018 – A/85292/2019
Service Tax
DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL)
Shri Makarand Joshi, Advocate for Appellant
Shri O.M. Shivdikar, Assistant Commissioner (AR) for Respondent
ORDER
Refusal to grant rebate on the whole of duty paid on excisable inputs and taxable input services for providing export of services to the appellant by the Commissioner (Appeals) is assailed in this forum by the appellant.
2. Appellant's case, in brief, is that it had submitted a refund claim before the Dy. Commissioner of Service Tax, Division IV, Mumbai-II for refund of accumulated CENVAT credit due to export of service as per Rule 6A of Service Tax Rules, 1994 but the same was proposed to be rejected through a show-cause notice for non-submission of declaration as required u

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mitations for export of services and Rule 3 prescribes the procedure. The appellant could follow Rule 2 during the export of services, observance of Rule 3(1) in filing of declaration concerning description, quantity, value, rate of duty etc. of the inputs as well as inputs services actually required to be used in providing taxable service was almost impossible for the appellant to follow as it was engaged in data monitoring service that involved capturing the radio, television, cable and newspaper data received online from foreign clients and processing the same in terms of identifying variable before making the same fit for export and the market for such monitoring of radio, television, cable stations is fluid for which it was almost impossible for the appellant to credit the number of units that could be processed and exported in any given month. He also asserted that by its reply dated 29.01.2014 made in response to the show-cause notice, appellant had made its stand clear to the A

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grounds including the ground that refund claim was made for another period i.e. from October, 2013 to March, 2014 but CENVAT credit for a different period was availed by the appellant which also violates conditions and limitations prescribed in the said Notification No. 39/2012-ST. He further argued that limitations of one year being statutory stipulation for claiming refund, reference to it in the adjudication order cannot be considered to have been beyond the scope of show-cause, since the respondent-department cannot go against the prescribed rule for which interference in the order of the Commissioner (Appeals) is uncalled for.
5. Heard from both sides at length, perused the case record, relied upon judgments, written note of submission made by the appellant alone. Appellant is an exporter of services as per Export of Service Rules, 2005 read with Rule 6A of Service Tax Rules, 1994. Export of service is entitled to get rebate of Service Tax or duty paid on input services or inputs

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n whole or in part but it is quite confusing if the same notification indicates the filing of declaration before export or declaration under 3.4(a)(c) that such taxable services has been exported in terms of rule 3 of the said rules, along with documents evidencing such export! Further there is no stipulation in the notification that if the declaration prior to export is not made, then the same cannot be made in a future date or that departmental authority cannot call for the same in a subsequent day. Primary reason for grant of such rebate to the exporter is to encourage them for generation of foreign exchange for the country, where procedural requirement which is the handmade justice delivery, should not act as a stumbling block when such an irregularity of procedure is remediable. The decided case laws placed by the appellant support these observations.
6. The other ground of rejection found in the Commissioner (Appeals) is that the claim was time barred as the period under dispute

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e, Pune-III, in which Rule 5 and Section 11B were being analysed, refund filed on or after the last date of quarter, since to be filed on quarterly basis, is to be taken within the period of one year, since under Section 11B it cannot start on any date before the end of the quarter, the same has to be reckoned from next date when quarter ends. Therefore, without going into the intricacy of the issue as to if period of limitation can be invoked, if not cited in the show-cause as a ground for rejection of refund, there is no hesitation to hold a finding that appellant's refund claim was filed within the stipulated time. Hence the Order.
ORDER
7. The appeal is allowed and the order of the Commissioner of GST & CX (Appeals-III), Mumbai in Order-in-Appeal No. NA/GST AIII/ MUM/310-312/17-18 dated 27.12.2017 refusing refund claim of appellant for Rs. 4,78,969/- is here by set aside. Appellant is entitled to get the refund upon submission of such declaration for the disputed period and the r

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How to lock / freeze invoices uploaded
Query (Issue) Started By: – Gayathri K Dated:- 13-2-2019 Last Reply Date:- 17-2-2019 Goods and Services Tax – GST
Got 4 Replies
GST
After uploading of invoices by supplier (seller in his GSTR-1 return), details are reported in recipient's GSTR-2A. How to lock / freeze the invoices to ensure supplier is not making any changes and recipients can take ITC on the taxes paid. Please guide.
Reply By CASeetharaman KC:
The Reply:
As far as my knowledge goes there is no mechanism provided in the GSTN system by which a buyer can lock the invoices uploaded by the seller. In any case the mechanism of taking input credit is based on the tax invoice provided by the seller and hence this sort of fa

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How to know the GST rate for Exercise tools?
Query (Issue) Started By: – ram kumar Dated:- 13-2-2019 Last Reply Date:- 17-2-2019 Goods and Services Tax – GST
Got 3 Replies
GST
I have received the Gym equipments by the way of online. I have paid the amount already. But the price is very large and getting some of metals also. It is really nice and good condition. It is getting well to be work and all people in my family are using that for reducing the weight. I need to buy one more body fit products in online for my sister. She is getting more weight after marriage. So she asked me to choose the best product. How to i choose the best and good working. Please tell me the reviews and what are the products are available in online? G

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kitchen products in online. But some products are getting damages and also not working. How to replace that? Tax amount should be added for the all products in online. But i cannot find the GST percentage in my products. Please give me the exact and understandable nature of points here
Reply By KASTURI SETHI:
The Reply:
Physical Exercise Equipment falls unser Chapter/Heading/Sub-heading No.9506 9190 attracting GST @ 18% (9%+9%). Notification No.41/2017-CT(Rate) dated 14.11.17 effective from 15.11.17 (Serial No.441) substituting in Notification No.1/17-CT(Rate) dated 28.6.17.
GST Rate changes – Advise to consumers
C.B.E. & C. Press Release No. 120/2017, dated 16-11-2017
Government of India
Ministry of Finance (Department of Revenue)
C

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GST on Incentives recd
Query (Issue) Started By: – Ethirajan Parthasarathy Dated:- 13-2-2019 Last Reply Date:- 14-2-2019 Goods and Services Tax – GST
Got 4 Replies
GST
Petroleum Companies pay incentives (sort of quantity discount) for dealers, depending on their off take.
Are dealers liable to pay GST on such incentives received.
Reply By KASTURI SETHI:
The Reply:
Dear Querist,
Incentive on what supply of goods by the Petroleum Cos. ?
As per Section 15 (3) of CGST Act, 2017, discount shall not be included into the transaction value for the purpose of payment of GST. Hence GST is not payable on the element of discount. Relevant portion of section 15 is appended below:-
(3) The value of the supply shall not include an

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By CASeetharaman KC:
The Reply:
I agree with the views given by the experts.
This issue has also been a bone of contention during the erstwhile Service Tax Regime where there have been cases relating to Advertising Companies or Motor Vehicle Dealers etc where they have been given discounts based on the turnover achieved by them during the financial year . This discount normally is given after the end of the financial year. These discounts normally do not feature in Agreements and are generally decided by the company after the completion of the financial year based on their results.There are more than enough case laws in the erstwhile Service tax regime where attempts to charge service tax on incentives have been quashed by adjudicating au

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Whether filling chemical into drums treated as a job work?
Query (Issue) Started By: – Yatin Bhopi Dated:- 13-2-2019 Last Reply Date:- 15-2-2019 Goods and Services Tax – GST
Got 10 Replies
GST
Dear expert,
We are manufactures of chemicals. We sale our products in drums as well as in tanker. Now our drum filling machine is out of service. To complete the customer commitments, we wish to do this durm filling activity with job worker who is registered under GST.
my query is, whether sending finished goods to the job worker for filling drums construed as a job work activity? can we follow job work procedure?
Reply By CASeetharaman KC:
The Reply:
“job work” means any treatment or process undertaken by a person on goods belonging to another registered person and the expression “job worker” shall be construed accordingly. This is the definition of Job Work given in clause (68) of section 2 of the CGST Act, 2017. The above activity would fall under job work as filling drums co

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details.
Reply By Alkesh Jani:
The Reply:
Hon'ble Experts,
Please give your valuable views that can HSN Code "998540", Packaging services of goods for others, be applicable in the instant case?
This query is to enrich my knowledge, through your guidance.
Thanks,
With due regards
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
I endorse the views of the experts.
Reply By KASTURI SETHI:
The Reply:
Sh.Alkesh Jani Ji,
Pl. refer to a query dated 13.2.19 (Serial No.3 above). It is pertinent to know what is packaging service and what is packing service and what is the difference between both activities. There is a lot of difference between the two. It is amply clear from legal definition of 'packing' and 'Packaging'. If we see the definition of packaging service provided in the erstwhile Section 65(76b) of the Act read with Board's Instruction under F.No.B1/6/2005-TRU dated 27.7.2005 and the present definition of packaging service under GST, the act

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nputs after completion of the job work provided again that the Principal declares the place of business of the job worker as his additional place of business except in a case-
(i) where the job worker is registered under section 25; or
(ii) where the principal is engaged in the supply of such goods as may be notified by the Commissioner.
Hence even though the material supplied by you is a finished product the same is an input for the job worker as without filling the drums the finished product does not come into existence. As such there is a clear provision where the goods can even be supplied from the premises of the job worker. Point to be noted here is that the Principal would be ultimately responsible to maintain proper accounts and ensure that proper duty has been paid on the final product
Reply By KASTURI SETHI:
The Reply:
Goods cannot be called finished goods until and unless these are packed/packaged properly so that these become marketable. Goods are neither safe nor mark

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invoice cancelation
Query (Issue) Started By: – Sandhya Kashyap Dated:- 13-2-2019 Last Reply Date:- 17-2-2019 Goods and Services Tax – GST
Got 3 Replies
GST
we have despatch material in aug 2018 but 100 % material reject by customer than we have supply again material to customer by challan but now in the month of feb 2019 cutomer not accepting the august invoice and asking for new invoice. pls suggest what should we do with august 2018 invoice and should we issue current date invoic

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GST Input Tax Credit on construction services in case the expenditure is not capitalized
By: – Ganeshan Kalyani
Goods and Services Tax – GST
Dated:- 13-2-2019

Section 17 of Central Goods and Services Act, 2017, provides for apportionment of credit and blocked credits. Explanation to clause (c) and (d) of sub-section 5 of said section 17, states as the expression “construction” includes re-construction, renovation, additions or alterations or repairs, to the extent of capitalization, to the said immovable property. Clause (c) and (d) of the said section is reproduced below for the sake of discussion:
(c) works contract services when supplied for construction of an immovable property (other than plant and machinery) except wh

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he books of accounts, then it is not covered in the section 17 i.e. the credit is not blocked.
In other words, the GST paid on inward works contract services or goods or services received for the purpose of carrying out construction work including new construction or re-construction or renovation or additions / alternations or repair is eligible for credit, if they are not added to respective fixed assets block in the balance sheet of the books of accounts. They are instead debited to profit and loss account of the books of account.
In the case of M/s. GGL Hotel and Resort Company Limited = 2019 (1) TMI 488 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL, the Authority for Advance Ruling, West Bengal has held that the Input Tax Credit is not

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cquired asset, and it is usually the same as the cost of constructing an asset for sale. When an immovable property like a building is sold the profit is computed after deducting from the sale proceeds the cost of the property, including the land. The cost of constructing the immovable asset, therefore, includes the lease rental paid for right to use the land on which the asset is built. Being an integral part of the cost of the immovable property the lease rental paid for the service of right to use the land is a supply for construction of the said property.”
The Applicant will admittedly capitalize the lease premium [refer to the fixed assets schedule:
Note 12 to the Balance Sheet as on 31/03/2018, the Application and the Applicant's

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SATAVAHANA ISPAT LIMITED Versus CCT, TIRUPATI GST
Central Excise
2019 (3) TMI 100 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 13-2-2019
APPEAL No. E/30725/2018 – A/30206/2019
Central Excise
Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL)
Ms. S. Vishnu Priya, Advocate for the Appellant.
Shri N. Bhanu Kiran, Asst. Commissioner /AR for the Respondent.
ORDER
Per: Mr. P.V. Subba Rao
1. This appeal is filed against Order-in-Appeal No. TTD-EXCUS-000- APP-175-17-18, dated 28.03.2018. The facts of the case in brief are that the appellant is engaged in the manufacture of pig iron from iron ore and avail CENVAT Credit under CCR 2004. The process of manufacture of pig iron involves breaking lumps of iron ore into smaller parts and feeding them into the blast furnace for manufacture of pig iron. In this process, very small fine particles of the ore fall out which are known as Iron Ore Fines. The appellant was served a notice stating that in the process of manuf

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ith Rule 15(2) of CCR 2004. Aggrieved, the appellant appealed to the first appellate authority who upheld the Order-in-Original in toto and rejected the appeal. Hence this appeal.
3. Ld. Counsel for the appellant submits that the two tests which must be passed before a product gets charged to central excise duty are (a) manufacture and (b) marketability. As far as the products in question are concerned, there is no doubt that iron ore fines which emerge during the process of manufacture in their factory are marketable and are indeed sold. The second test is the process of manufacture. They have no intention to manufacture iron ore fines and they are not undertaking any process to manufacture fines. The fines only emerge as a by product during the process of manufacture of their final product namely sponge iron. Therefore, they cannot be held to have manufactured iron ore fine even though iron ore fines are specifically listed as an excisable product under Central Excise tariff. She ar

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ule 6(3) of CCR 2004 with respect to the iron ore fine sold by such manufacture. She asserts that their case is identical. She also contests the demand on the question of limitation and draws the attention of the Bench to the para No. 13 of the show cause notice which shows that the only basis for issuing the show cause notice is their own letter to the department dated 17.04.2015. Thus, they themselves have disclosed their activity which forms the basis of the demand and that they cannot be alleged to have suppressed or misstated any facts to invoke the extended period of limitation. On the same ground, they are also not liable to any penalty. She therefore prays that the appeal may be allowed and the impugned order may be set aside.
4. Ld. DR reiterates the findings of the lower authority and the first appellate authority. He submits that notification No. 6/2015-CE (NT), was issued on 01.03.2015, para 4 of which inserted an explanation to Rule 6(1) of the CCR 2004 as follows:
“Expl

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iron. The iron ore fines have also been specifically mentioned in the Central Excise Tariff and therefore should be considered s excisable goods. But for the exemption notification, they would have been liable to pay excise duty. Because of the exemption notification, they were exempted and therefore the appellant is liable to reverse the proportionate amount of CENVAT Credit or pay the amount under Rule 6(3) of CCR 2004 for using common input and input services. He therefore prayed that the appeal may be rejected.
6. I have considered the arguments on both sides and perused the records. The issue to be decided in brief is whether the iron ore fines are to be treated as excisable goods manufactured by the appellant which are exempted by virtue of exemption notification and correspondingly whether an amount needs to be reversed under Rule 6(3) of CCR 2004. It is the case of the appellant that they are not manufacturing iron ore fines which only emerged during the process of manufacture

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BOSCH LIMITED Versus THE ASSISTANT COMMISSIONER SPECIAL CIRCLE-II, STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM AND THE COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM
VAT and Sales Tax
2019 (3) TMI 22 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 13-2-2019
WP (C). No. 38606 of 2018
CST, VAT & Sales Tax
JUDGMENT
The petitioner, an assessee under the Kerala Value Added Tax Act, has sought the following reliefs:
“(i) To issue a W

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In Re: M/s. Indian Institute of Science Education and Research
GST
2019 (2) TMI 1526 – AUTHORITY FOR ADVANCE RULINGS, ODISHA – 2019 (22) G. S. T. L. 535 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, ODISHA – AAR
Dated:- 13-2-2019
07/ODISHA-AAR/2018-19
GST
SRI ANAND SATPATHY, AND SRI NILANJAN PAN, IRS, MEMBER
Present for the Applicant – Pramod Kumar Panda, FCA
ORDER NO. 07/ODISHA-AAR/2018-19 DATED 13.02.2019
Subject: GST Act, 2017-Advance Ruling U/s 98 on 'Applicability of Notification issued under the provisions of GST Act' and 'Determination of the liability to pay tax on any goods or services or both'
1.0 M/s. Indian Institute of Science Education and Research, Berhampur (hereinafter referred to as the 'Applicant') assigned with GSTIN 21AABA10732K1Z5 having registered address At- Transit Campus, Govt. ITI, Engineering School Road, Berhampur, Odisha-760010 have filed an application on 06.12.2018 under Section 97 of CGST Act, 2017 & OGST Act, 2017 read with

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ported Equipments delivered to the Eligible Institutions and the Applicant is not liable to pay the IGST charged on such imported Equipments by the OEM suppliers of imported equipment,” and,
b) “Whether the decision of the GST Council granting the exemption is binding on the Department in the absence of non-issuance of corresponding Notification by the Central/State Government to give effect to such decision of the Council,” and
c) “Whether the concessional rate of GST/IGST at the 5% vide Notification No-45- CGST(Rate), Dt:14.11.2017 and Notification No-47-lGST(Rate), Dt:14.11.2017 are applicable only for supply of specified Indigenous Equipments to the eligible Institutions fulfilling conditions as specified under Column-(4) of the said notification with effect from 15.11.2017.'
3.0 The facts of the case having a bearing on the questions.
3.1 As submitted by the Applicant, it is engaged in imparting Science Education and Research training to students and has commenced BS-MS (for

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essional rate of custom duty was applicable not only for all directly imported equipments but also on import of goods by OEM suppliers for supply to eligible institutions.
3.6 The Government of India vide Notification No. 43/2017-Customs, Dt: 30.06.2017, amended the said Notification No-51/1996, Dt: 23.07.19 by substituting the words, brackets and figures, “Integrated Tax leviable thereon under sub-section (7) of Section-3” for the words and figures “additional duty leviable thereon under Section-3”.
3.7 It is importing Scientific Equipment's either directly from Original Equipment Manufacturer or through the Agent of the OEM suppliers in India. In case of direct import, the Applicant is availing concessional Customs Duty and exemption of IGST as per NN-43/2017-Customs, Dt:30.06.2017. However, in case the same imported Equipments are procured through the OEM Agents in India, the Applicant is denied with the IGST exemption by the OEM Suppliers due to non-issuance of any specific exemp

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as import of such equipments for delivery to such Institutions as notified by the Central Government.
4.2 The Applicant further understands that, in view of amendment of the Notification No. 51/1996-Customs, Dated. 23.07.1996 read with Minutes of the 14th.GST Council meeting, ICS T should not be levied on equipments imported by the OEM Agents located in India for delivery to the specified institutions including the Applicant.
4.3 The concession granted vide NN-45-CGST-Rate, Dt: 14.11.2017 notified under Section-11(1) of the Central Goods and Services Act, 2017 and NN-47-lGST-Rate, Dt: 14.11.2017 notified under Section 6(1) of the Integrated Goods and Services Act, 2017 which came into force from 15.11.2017 is applicable to supply of all specified equipments, imported or otherwise, to the specified Institutions with effect from 15.11.2017.
5.0 Personal Hearing was fixed on 22.01.2019. Shri Pramod Kumar Panda, FCA and Shri Una Sujit, Representative of the Applicant appeared for perso

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understanding/interpretation of law in respect of the issue.
6.1.0 Ruling is sought for in respect of the following questions:-
a) “Whether the Notification No-51/1996-Customs, Dt: 23.07.1996 read with Notification No-43/2017-Customs, Dt: 30.06.2017 and Minutes of the 14th GST Council Decision Dt: 18th. 119th. May,2017 is applicable for specified Imported Equipments delivered to the Eligible Institutions and the Applicant is not liable to pay the IGST charged on such imported Equipments by the OEM suppliers of imported equipment,”;
b) “Whether the decision of the GST Council granting the exemption is binding on the Department in the absence of non-issuance of corresponding Notification by the Central/State Government to give effect to such decision of the Council,” and
c) 'Whether the concessional rate of GST/IGST at the 5% vide Notification No-45-CGST(Rate), DI 14.11.2017 and Notification No-47-lGST(Rate), Dt: 14.11.2017 are applicable only for supply of specified Indigenous Equi

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of the aforesaid notifications.
6.1.3 Proviso to Section 5(1) of the IGST Act authorizes levy of IGST on goods imported in to India in accordance with the provision of Section 3 of the Customs Tariff Act 1975 and the point of taxation is same as the point of levy of customs duty. Section 2(10) of the IGST Act defines 'import of goods' meaning bringing goods into India from a place outside India. Accordingly, levy of IGST on goods imported under Proviso to Section 5(1) is strictly limited to import of goods into India and such levy has to happen at the time of customs clearance only. Hence, Notification No.51/96-Customs dated 23.07.1996 is very much applicable to the Applicant in case of import of goods.
6.1.4 The applicability of Notification No. 51/96-Customs dated 23.07.1996 as amended vide Notification No-43/2017-Customs, Dt: 30.06.2017 to “OEM Suppliers” needs to be examined. In this case, the OEM supplier is a supplier located in India and the supply of equipments by such suppli

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IGST Act, since the said OEM supplier is not entitled for the exemption provided in the Notifications under consideration. On the subsequent domestic transaction, there will be levy of either IGST or CGST and SGST depending on the nature of the supply transaction as per the location of the supplier. In both the cases, the liability to pay GST is on the supplier and not on the Applicant. In the absence of liability there cannot be a claim for exemption. The Applicant can avail the exemption benefit only if it goes for direct import or purchase before the goods being imported into the country cross the Customs frontier of India.
In that case, the 'GST liability will be on the importer (in this case the Applicant) and exemption from the said liability can be claimed and availed. The Applicant cannot claim exemption from the liability of another taxable person.
6.1.5 Further, Notification No. 51/96-customs dated 23.07.1996 is restricted to importers like Public funded research instituti

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for exemption from levy of IGST on import of goods. GST council is a constitutional body to formulate GST policies and to make recommendation to the Union and the State. Accordingly, every notification, circular or orders issued by the Central and State Governments are duly vetted by the GST Council. However issues pertaining to rate of tax and tax concessions/ exemption have to be as per the statutory notifications.
6.3.0 The last question of the Applicant is “Whether the concessional rate of GST/IGST at the rate of 5% vide Notification No-45-CGST(Rate), Dt:14.11.2017 and Notification No-47-IGST(Rate), Dt:14.11.2017 are applicable only for supply of specified Indigenous Equipments to the eligible Institutions fulfilling conditions as specified under Column-(4) of the said notification with effect from 15.11.2017.” In this regard, it is clarified that Government of India, Ministry of Finance (Department of Revenue) vide the aforesaid notifications exempts in access of 5% (2.5% in case

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-Customs, dated 23.07.1996 read with Notification No-43/2017-Customs dated 30.06.2017 and Minutes of the 14th.GST Council Decision dated 18th./19th. May, 2017 is applicable to the Applicant for import of specified Equipments as listed under column (3) of the aforesaid notifications and the said notifications are not applicable to the OEM suppliers of imported equipment.
2. The scope of issuing a ruling u/s 98 of the OGST/CGST Act is limited to the extent prescribed in sub-section (2) of Section 97 of the OGST/CGST Act. A ruling on whether the decision Of the GST Council granting the exemption is binding on the Department in the absence of non-issuance of corresponding Notification by the Central/State Government is not within the competence and mandate of the Authority of Advance Ruling constituted u/s 96 of the OGST Act.
3. Concessional rate of GST/IGST at 5% vide Notification No-45-CGST (Rate), Dt. 14.11.2017 and Notification No-47-IGST (Rate), Dt 14.11.2017 is applicable to the go

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M/s. CHERIAN VARKEY CONSTRUCTION CO (P) LTD. Versus STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM AND ASSISTANT COMMISSIONER (WORKS CONTRACT) OFFICE OF THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM
GST
2019 (2) TMI 1524 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 13-2-2019
WP(C). No. 656 of 2019
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI.A.KUMAR JOB ABRAHAM SMTG.MINI(1748) SRI.AJAY V.ANAND SRI.P.J.ANILKUMAR SRI.P.S.SREE PRASAD
For The Respondents : GP SMT. M.M. JASMINE
JUDGMENT
The petitioner, a private limited company, has sought the following reliefs:
“For these and other grounds to be urged at the time

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rvices Act 2017 (Act 20 of 2017) in so far as it provides for application of Section 4 of the Interpretation and General Clauses Act 1125 (Act VII of 1125) providing for saving of the Kerala Value Added tax Act, 2003 and with regard to the effect of the repeal of the statutes specified in Section 174(1) (I) is illegal, ultra vires Article 246A of the Constitution of India and Section 19 of the Constitution (One Hundred and First Amendment) Act, 2016 and also beyond the scope and scheme of the Kerala State Goods and Services Act, 2017 (Act 20 of 2017) and is therefore to be rendered void and un-enforceable.
C. Declare that the authorities under the Taxes Department of the State of Kerala have no jurisdiction or powers to levy, assess and

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E. Issue a Writ of Certiorari, or such other appropriate Writ, Order or direction, quashing Exts.P3 and P4 assessment orders.
F. Issue a Writ of Prohibition, or such other appropriate Writ, Order or direction, restraining the respondent Sate of Kerala and the Taxation authorities under the first and second respondents from initiating any proceedings for collection of tax including realization of any amounts under Exts.P3 and P4 assessment orders under the Kerala Value Added Tax Act, 2003 in relation to the assessment years covered by Exts.P3 and P4 assessment orders.
Pass such other appropriate writ, order or direction as this Hon'ble court may deem just and fit in the circumstances of the case”.
In the light of the judgment i

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Kyal Trading Pvt Ltd Versus Commissioner of GST Mumbai-V
Service Tax
2019 (2) TMI 1492 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 13-2-2019
APPEAL NO: ST/87617/2018 – A/85291/2019
Service Tax
Shri Ajay Sharma, Member (Judicial)
Shri Tejal Patil, Advocate for Uber Legal for appellant
Shri O.M. Shivdikar, Assistant Commissioner (AR) for respondent
ORDER
The present appeal has been filed from the impugned order dated 01/03/2018 passed by the Commissioner, CGST & Central Excise, Thane Rural, Mumbai. The core of the dispute in this appeal is liability to pay interest on delayed payment.
2. The relevant facts are that the appellant had given space in their malls to various retailors/ persons who sold their goods by using the infrastructure of the mall/outlets. For using this facility, the retailors/persons had entered into Minimum Guarantee agreement with the Appellant, according to which they have to pay a fixed percentage of sales or a Minimum Guarantee M

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s Seventy three thousand Six hundred and Ninety eight only] at the rate applicable should not be recovered and demanded from them under provisions of Section 75 of the Finance Act 1994.
ii) Penalty should not be imposed on them under Section 76 and 78 of the Finance Act, 1994.
3. The adjudicating authority vide order-in-original dated 18/05/2016 confirmed the demand of interest of Rs. 13,73,698 and also imposed penalty under Section 78 ibid. On appeal filed by the appellant, the learned Commissioner reduced the interest liability from Rs. 13,73,698/- to Rs. 10,38,028/- and dropped the penalty under section 78 ibid.
4. I have heard Learned Counsel for Appellant and Learned Authorised Representative for the Revenue and perused the record. Learned Counsel for Appellant submitted that he is confining his arguments towards interest liability only and not challenging the Service Tax liability which has already been paid by the appellant. He further submitted that no demand has been raised

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and confirmation of demand and Service Tax and appropriation of the amount paid as Service Tax was not warranted. So far as the liability to pay interest on delayed payment of Service Tax is concerned, I would like to reproduce Rule 6 of Service Tax Rules, 1994 and Rule 3(4) of CENVAT Credit Rules, 2004 which are as under.
Rule 6 of Service Tax Rules, 1994 reads as under:
“(l) The service tax shall be paid to the credit of the Central Government,-
i) By the 6th day of the month, if the duty is deposited electronically through internet banking; and
ii) By the 5th day of the month, in any other case,
Immediately following the calendar month in which the payments are received, towards the value of taxable services:
Provided also that the service tax on the value of taxable services received during the month of March, or the quarter ending in March, as the case may be, shall be paid to the credit of the Central Government by the 31st day of March of the calendar year.”
Rule 3(4) of

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act payment of interest. I completely agree with the finding of the ld. Commissioner that in view of the law laid down by the Hon'ble Supreme Court in the matter of Union of India vs. Ind-Swift Laboratories Ltd. 2011 (265) E.L.T. 3 (S.C.) the defence put forth by the appellant is not tenable that since they had sufficient balance in their Cenvat account at all time during the period of dispute, no interest is payable. In the aforesaid matter, the Hon'ble Supreme Court has had that Rule 14 of the Cenvat credit Rules, 2004 specifically provided that where Cenvat credit has been taken or utilized or has been erroneously refunded, the same along with interest would be recovered from the manufacturer or the provider of the output service. Therefore, on the happening of the any of the three aforesaid circumstance such credit becomes recoverable with interest.
6. Admittedly, there is delay in payment of Service Tax and once the duty is admitted, interest cannot be detached from the d

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West Bengal Goods and Services Tax (Second Removal of Difficulties) Order, 2019
Order No. 02/2019-State Tax Dated:- 13-2-2019 West Bengal SGST
GST – States
West Bengal SGST
West Bengal SGST
GOVERNMENT OF WEST BENGAL
FINANCE DEPARTMENT
REVENUE
THE WEST BENGAL GOODS AND SERVICES TAX (SECOND REMOVAL OF DIFFICULTIES) ORDER, 2019
No. 236-F.T.
Dated, Howrah, the 13th day of February, 2019
Order No. 02/2019-State Tax
WHEREAS, sub-section (4) of section 52 of the West Bengal Goods and Services Tax Act, 2017 (West Ben. Act XXVIII of 2017) provides that every operator who collects the amount specified in sub-section (1) shall furnish a statement, electronically, containing the details of outward supplies of goods or services or

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by section 172 of the West Bengal Goods and Services Tax Act, 2017, the Governor, on recommendations of the Council, is pleased hereby to make the following Order, to remove the difficulties, namely: –
1. Short title. – This Order may be called the West Bengal Goods and Services Tax (Second Removal of Difficulties) Order, 2019.
2. In section 52 of the West Bengal Goods and Services Tax Act, 2017, in sub-section (4), in the Explanation, for the figures, letters and word "31st January, 2019", the figures, letters and word "07th February, 2019" shall be substituted.
2. This Order shall be deemed to have come into force with effect from the 1st February, 2019.
By order of the Governor,
RAJSEKHAR BANDYOPADHYAY,
Additi

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West Bengal Goods and Services Tax (Removal of Difficulties) Order, 2019
Order No. 01/2019-State Tax Dated:- 13-2-2019 West Bengal SGST
GST – States
West Bengal SGST
West Bengal SGST
GOVERNMENT OF WEST BENGAL
FINANCE DEPARTMENT
REVENUE
THE WEST BENGAL GOODS AND SERVICES TAX (REMOVAL OF DIFFICULTIES) ORDER, 2019
No. 235-F.T.
Dated, Howrah, the 13th day of February, 2019
Order No. 01/2019-State Tax
WHEREAS, sub-section (1) of section 10 of the West Bengal Goods and Services Tax Act, 2017 (West Ben. Act XXVIII of 2017) (hereinafter in this Order referred to as the said Act) provides that-
(i) a registered person engaged in the supply of services, other than supply of service referred to in clause (b) of paragraph 6 of S

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tending deposits, loans or advances, in so far as the consideration is represented by way of interest or discount, is resulting in their ineligibility for the aforesaid scheme, causing hardships to a lot of small businesses and because of that, certain difficulties have arisen in giving effect to the provisions of section 10;
NOW, THEREFORE, in exercise of the powers conferred by section 172 of the West Bengal Goods and Services Tax Act, 2017 and in supersession of the West Bengal Goods and Services Tax (Removal of Difficulties) Order, 2017, No. 1803-F.T. [Order No. 01/2017-State Tax], dated the 13th October, 2017, published in the Kolkata Gazette, Extraordinary, except as respects things done or omitted to be done before such supersession

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Himachal Pradesh Goods and Services Tax (Removal of Difficulties) Order, 2019
ORDER No. 1/2019-State Tax Dated:- 13-2-2019 Himachal Pradesh SGST
GST – States
Himachal Pradesh SGST
Himachal Pradesh SGST
GOVERNMENT OF HIMACHAL PRADESH
EXCISE AND TAXATION DEPARTMENT
ORDER/ No. 1/2019-State Tax
Shimla-2 the 13th February, 2019
No. EXN-F(10)-33/2018.-WHEREAS, sub-section (1) of Section 10 of the Himachal Pradesh Goods and Services Tax Act, 2017 (10 of 2017) (hereafter in this Order referred to as the said Act) provides that-
(i) a registered person engaged in the supply of services, other than supply of service referred to in clause (b) of paragraph 6 of Schedule II to the said Act, may opt for the scheme under the said sub-s

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of interest or discount, is resulting in their ineligibility for the aforesaid scheme, causing hardships to a lot of small businesses and because of that, certain difficulties have arisen in giving effect to the provisions of Section 10;
NOW, THEREFORE, in exercise of the powers conferred by Section 172 of the Himachal Pradesh Goods and Services Tax Act, 2017 and in supersession of the Himachal Pradesh Goods and Services Tax (Removal of Difficulties) Order, 2017, No. 01/2017-State Tax, dated the 15th November, 2017, published in the Gazette of Himachal Pradesh, vide No. EXN-F(10)- 39/2017, dated the 18th November, 2017, except as respects things done or omitted to be done before such supersession, the State Government, on recommendations o

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Tirupati Pipe & Allied India Pvt. Ltd. Versus CCGST, Nasik
Central Excise
2019 (2) TMI 936 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 13-2-2019
APPEAL NO: E/87658/2018 – A/85278/2019
Central Excise
Shri Ajay Sharma, Member (Judicial)
Appellant: Shri Mayur Shroff, Advocate
Respondent: Shri A.B. Kulgod, Assistant Commissioner (AR)
ORDER
The issue to be decided in this Appeal is whether the Appellant is required to reverse/pay back the amount equivalent to the Cenvat Credit contained in respect of inputs received for use in the manufacture of final product, which are lying in stock as on 1.4.20007, as per the proviso of Rule 11(2) & 11(3) of the Cenvat Credit Rules, 2004, before exercising the option for exemption of Excise duty, under notification No.8/2003-CE dated 1.3.2003?
2. The facts of the matter are that the appellant are availing the benefit of Notification No.8/2003-CE dated 1.3.2003 as amended. During the Financial Year 2006-07, the appellant

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t lying with them as on 31.3.2007.
3. As per the department, the appellant after given the option letter to the competent authority, have cleared the excisable goods so manufactured at nil rate of duty of central excise including Ed. Cess & H.S. Ed. Cess from their factory by availing the benefit of aforesaid notification, even though they did not fulfill the condition laid down under Rule 11(2) & (3) ibid. The appellant is thus ineligible for benefit of exemption under the aforesaid notification. Accordingly a show cause notice dated 29/30.4.2008 was issued to the Appellant as to why:-
(i) Central excise duty on the excisable goods cleared without payment of duty from the factory by the assessee valued at Rs. 1,50,00,000/- on which central excise duty Rs. 24,62,478/- including Ed.& H.S.Ed Cess should not be demanded and recovered under Section 11A of Central Excise Act, 1944.
(ii) interest should not be charged/ demanded and recovered under the provisions of section 11AB of Central

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ommissioner (Appeals), Central Tax and Central Excise, Nasik vide impugned order dated 27.3.2018 partly allowed the Appeal filed by Revenue and reduced the demand to Rs. 8,26,078/- alongwith interest.
4. I have heard ld. Counsel for the appellant and ld. Authorised Representative for the Revenue and perused the records. Ld. Counsel for the Appellant submitted that although on identical issue for the earlier financial year this Tribunal has held in favour of the Appellant but still the ld. Commissioner did not rely upon the same only on the ground that in view of Section 35R (1) & (2) of the Central Excise Act, 1944 the appeal filed by the department against the said order before the Hon'ble High Court of Judicature at Bombay was withdrawn and therefore the said decision of this Tribunal is not binding. He also submitted that the conduct of the ld. Commissioner, amounts to judicial indiscipline. He further submitted that although the issue involved in this matter is also covered in fav

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ed. Nothing of this sort has happened in the present case. It is true that the department has preferred an Appeal before the Hon'ble High Court against the order of this Tribunal. However, the Appeal was dismissed as withdrawn due to monetary limits. This fact itself is not sufficient to empower the Commissioner to take different view and not to follow the order passed by this Tribunal. The ld. Commissioner was bound to follow the decision of the Tribunal as per the demands of judicial propriety and the impugned order is nothing but the breach of doctrine of judicial discipline and judicial propriety. I am surprised to notice the reasoning given by the ld. Commissioner for not following the decision of this Tribunal in Appellant's own case on identical issue for the earlier financial year. Otherwise also, the Hon'ble Supreme Court in the matter of Dai Ichi Karkaria (supra) has laid down that the Cenvat credit is indefeasible and there is no one to one correlation between the input cred

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of Modvat credit already utilised correctly. If the Rule contemplated additional cash payment on account of balance in Cenvat credit being insufficient, the Rule would not have qualified the credit balance as balance “if any”. The addition of those words make it clear that Cenvat credit balance alone is contemplated and no additional payment. An interpretation that requires additional payment if the balance in the credit account is not sufficient to meet debit of Cenvat credit on inputs in stock etc. would be to permit recall of Modvat credit correctly utilised. Such an interpretation goes against the scheme of Cenvat credit and the language of Rule 9(2).”
The aforesaid order of the Tribunal was affirmed by the Hon'ble Punjab & Haryana High Court in the Appeal filled by Revenue in the matter of CNC Commercial Ltd.(supra) and while following the law laid down by the Hon'ble Supreme Court in Dai Ichi Karkaria case (supra), the Hon'ble High Court held as under:-
“5. We have heard the

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is thus no merit in these appeals which are accordingly dismissed.”
6. This Tribunal also while deciding the appeal filed by the appellant for the earlier financial year, vide order No.A/797/09/SMB/C-IV, dated 15.12.2009, relied upon the decision of the Hon'ble High Court in the matter of CNC Commercial Ltd.(supra) and held as under:-
“5. I have gone through the submissions made by both the parties and find that the case of the respondent is squarely covered by the decision of Punjab & Haryana High Court in Commissioner of Central Excise, Chandigarh vs. CNC Commercial Ltd.-2008 (224) ELT 239 (P&H), wherein the Hon'ble High Court has held that in these facts and circumstances, while opting for SSI exemption the assessee is not required to reverse the CENVAT Credit. Following the same ratio, I do not find any merits in the Appeal filed by the Revenue. Accordingly, the impugned order is upheld and the appeal is rejected.”
7. Although the Revenue filed the Appeal against the aforesaid

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M/s Torque Pharmaceuticals Pvt. Ltd. Versus Union Of India And 5 Others
GST
2019 (2) TMI 920 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 13-2-2019
Writ Tax No. – 655 of 2018
GST
Bharati Sapru And Piyush Agrawal JJ.
For the Petitioner : Nishant Mishra,Vipin Kumar Kushwaha
For the Respondent : A.S.G.I.,Anant Kr. Tiwari,C.S.C.,Om Prakash Srivastava
ORDER
Rejoinder affidavit filed today is taken on record.
In this matter learned counsel for the G.S.T.Cou

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Sachin Arun Karpe Versus CCGST, Kolhapur
Service Tax
2019 (2) TMI 878 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 13-2-2019
APPEAL NO: ST/87915/2018 – A/85277/2019
Service Tax
Shri Ajay Sharma, Member (Judicial)
Appellant: Shri Saurabh P. Rairikar, Chartered Accountant
Respondent: Shri Onil Shivdikar, Assistant Commissioner (AR)
ORDER
This appeal has been filed from the impugned order dated 07/11/2017 passed by the Commissioner (Appeals-I), Central Tax, Pune.
2. The Appellants are engaged in providing taxable services falling under category “rent-a-cab service” under Section 65(195) of Finance Act, 1994. They have provided the said services to M/s Suzlon Energy Ltd. during the period from 2010-2011 to 2014-2015. As per the department, during the course of investigation they found that the Appellant failed to obtain Service Tax registration for providing such taxable service and also failed to pay service tax as well as filling of periodical ST-3 Return

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the Appellant and also paid the interest before the service of the order passed by the Adjudicating Authority. It is a specific case of the Appellant that he has not recovered Service Tax from his clients but despite that as soon as he comes to know about his service tax liability he pays the same from his own pocket.
5. According to him, initially he was not aware about the Service Tax liability and hence, neither paid service tax nor filed ST-3 Returns. He obtained the Service Tax Registration under category of “rent-a-cab” and have paid service tax of Rs. 50,000 vide Challan dated 27/10/2014. He has also not availed any Cenvat credit and as per the provisions of Notification No. 13/2012-ST dated 20/06/2012, his firm being a proprietary firm in nature, is not required to pay service tax from 01/07/2012 onwards as the person receiving the service is a body corporate. The Learned Authorised Representative appearing on behalf of Revenue reiterated the findings record in the impugned or

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liability to pay service tax have been readily accepted and discharged his liability in full and the same is not disputed. The law laid down by the Hon'ble Supreme Court which has been referred to by the learned Commissioner in the impugned order clearly mentions that penalty under Section 78 of the Finance Act is mandatory subject to the caveat that non-payment of service tax was a conscious and/or deliberate act on the part of the assessee. For imposing penalty under Section 78 ibid the Revenue has to prove fraud or collusion or willful misstatement or suppression of facts on the part of the Appellant. Merely because the Appellant failed to obtain the service tax registration and discharge the service tax liability within time, will not lead to the conclusion that there was intention to evade payment of service tax. It is not the case of the department that the Appellant has received service tax from his client and despite that he has not paid it. All the facts and figures in the boo

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le grounds. The reason cited by the Appellant for non-payment of service tax at the relevant time is ignorance of the provisions of service tax liability. He has also claimed that due to misunderstanding, he has neither collected any service tax from his clients nor paid the service tax to the Government. This fact clearly establishes the fact that the Appellant had no malafide intention not to pay service tax. It is also on record that the full service tax demands and interest stands paid by the Appellant and he has not challenged the same before the appellate authority.
7. Having regard to the facts and circumstances of this case which shows that the Appellant although has not charged service tax from his clients but despite that paid the entire service tax amount prior to the receipt of the Show Cause Notice and also paid the entire interest before the issuance of the order-in-original, I find that this is a fit case to invoke the provision of Section 80 ibid. I also find that this

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M/s. MALIKA VEETIL AGENCIES Versus THE STATE TAX OFFICER SGST DEPARTMENT, PUNALUR, THE NODAL OFFICER FOR STATE GST STATE GOODS AND SERVICE TAXES, TAX TOWER, KILLIPPALAM, THIRUVANANTHAPURAM, THE NODAL OFFICER/DEPUTY COMMISSIONER CENTRAL GST AND CENTRAL EXCISE, KOCHI, THE COMMISSIONER OF STATE TAX STATE GOODS AND SERVICE TAXES, TAX TOWER, KILLIPPALAM, THIRUVANANTHAPURAM AND UNION OF INDIA THROUGH ITS SECRETARY (REVENUE), MINISTRY OF FINANCE, NEW DELHI
GST
2019 (2) TMI 916 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 12-2-2019
WP (C). No. 41337 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI. AJI V. DEV AND SRI. H. ABDUL LATHIEF
For The Respondent : ADV. SRI. P. R. SREEJITH, SC, GOODS A

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9/13/2018-GST, dated 03.04.2018, for “setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal.” Paragraph 5 of the circular outlines the procedure the Nodal Officers is to follow. It reads:
5. Nodal officers and identification of issues
5.1 GSTN, Central and State government would appoint nodal officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the Common Portal. This would be publicized adequately.
5.2 Taxpayers shall make an application to the field officers or the nodal officers where there was a demonstrable glitch on the Common Portal in relation to an identified issue, due to which the due process as envisaged in

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s technical glitch and approached this Court. Both the learned counsel submit that this Court on earlier occasions permitted the petitioner to apply to the Nodal Officer concerned to have the issue resolved.
5. So, here too, the petitioner may apply to the Nodal Officer, the second respondent. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner's uploading FORM GST TRAN-1, without reference to the time-frame. Ordered so.
6. I may also observe that if the petitioner applies within two weeks after receiving this judgment, the Nodal Officer will consider it and take steps within a week thereafter. If the uploading of FORM GST TRAN-1 is not possible for reasons not attributable to the petitioner,

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M/s. SANGEETHA JEWELLERY Versus THE STATE TAX OFFICER S.G.S.T. DEPARTMENT, ADIMALI, IDUKKI, THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO TAXES, THE CENTRAL BOARD OF INDIRECT TAXES CUSTOMS REPRESENTED BY ITS CHAIRMAN, NEW DELHI, THE UNION OF INDIA REPRESENTED BY ITS PRINCIPAL SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI
GST
2019 (2) TMI 829 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 12-2-2019
WP(C). No. 27023 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI. AJI V. DEV SMT. O. A. NURIYA SRI. ALAN PRIYADARSHI DEV
For The Respondents : GP. SMT. M. M. JASMINE. , SC SRI SREELAL WARRIER AND ASGI SRI P. VIJAYAKUMAR
JUDGMENT
The petitioner, a partn

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ey are ultravires to the Constitution of India.
iv. To declare that the powers under erstwhile Entry 54 do not exist post 15.09.2017 and therefore the provisions of the Kerala Value Added Tax Act cannot be enforced after 15.09.2017 so long as the old Entry 54 has not been saved.
v. To declare that when the provisions of Constitution are inconsistent with the provisions of a statute, the provisions of Constitution will prevail over the provisions of statute and so provisions of Section 174 of the Kerala Goods and Service Tax Act, 2017 to the extent to which they are in conflict with the provisions of Constitution, are bad in law.
vi. To declare that as section 19 of the Constitution Amendment Act is having supremacy over the rest of

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GST on exchange rate flutuation gain
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 11-2-2019 Last Reply Date:- 1-7-2019 Goods and Services Tax – GST
Got 4 Replies
GST
Against supply of services for export, the amount is received by the supplier in foreign currency. There is a gain in this transaction to the supplier due to exchange rate fluctuation. Is the supplier liable to pay GST on the gain due to exchange fluctuation? If no under which provisions?
Reply By SANJAY JAI

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Notification/order/circular of removal of bank details in GST Registration
Query (Issue) Started By: – Ravikumar Doddi Dated:- 11-2-2019 Last Reply Date:- 12-2-2019 Goods and Services Tax – GST
Got 2 Replies
GST
Dear sir,
In GST Portal while filing for GST Registration bank account details were removed, in our case department has issued show cause notice for non furnish of bank details, how can we submit where there is no facility to provide the bank details, is there any order/ no

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Joint Development Agreement valuation
Query (Issue) Started By: – JIGAR SHAH Dated:- 11-2-2019 Last Reply Date:- 11-2-2019 Goods and Services Tax – GST
Got 1 Reply
GST
If a land owner has entered into a joint development agreement with the builder and has also registered himself under GST, but the receipts are not certain, what will be taken as taxable value to charge GST and what will be time of supply?
Should we consider date of joint development agreement as time of supply, if s

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GST Input Write Off
Query (Issue) Started By: – Ethirajan Parthasarathy Dated:- 11-2-2019 Last Reply Date:- 12-2-2019 Goods and Services Tax – GST
Got 3 Replies
GST
Query
A dealer has some unutilized GST input tax in electronic credit ledger. From a particular date, the goods dealt by him becomes non taxable and hence writes off the balance of input tax in electronic ledger.
Can this write off be disallowed u/s 43B , since relevant input taxes were incurred in earlier years or can

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