Commissioner of Central Goods & Service Tax Versus M/s Fun Foods Pvt Ltd

Commissioner of Central Goods & Service Tax Versus M/s Fun Foods Pvt Ltd
Central Excise
2019 (2) TMI 82 – RAJASTHAN HIGH COURT – [2019] 64 G S.T.R. 176 (Raj), 2019 (366) E.L.T. 687 (Raj.)
RAJASTHAN HIGH COURT – HC
Dated:- 21-1-2019
D. B. Civil Miscellaneous Application No. 193/2018 In D.B. Central Excise Appeal No. 53/2017
Central Excise
Mr. Justice Mohammad Rafiq And Mr. Justice Goverdhan Bardhar
For the Applicant : Mr. Anuroop Singhi.
For the Respondent(s) : Mr. Yogendra Aldak with Mr. Arjun Singh on behalf of Mr. Sameer Jain.
ORDER
This application has been filed by the applicant-appellant seeking recall of order dated 11.04.2018 passed by this Court whereby the appeal filed by the Commissioner of Central Excise

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bmitted that the issue involved in the appeal was whether the Tribunal had erred in holding that the demand is beyond the period of one year from the relevant date and is time barred and further whether the Tribunal erred in dropping the penalty under Section 11AC of the Act on the assessee. Learned counsel submitted that the question before the Delhi High Court in Commissioner of Service Tax Vs. Ernest & Young Pvt. Ltd. (supra) was of determination of any question in relation to rate of duty and therefore, the appeal would have been maintainable before the Supreme Court in that case.
Even if the appellant-applicant had filed an appeal before the Supreme Court, it would not have been maintainable, argued the learned counsel for the applica

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e decided against the revenue and matter was remanded back. The aforesaid five issues identified by the Tribunal reads as under:
“(i) Classification of Milk Shake Mixes.
(ii) Classification of flavoured syrups/fruit syrups/Squashes.
(iii) Goods sold without brand name – Eligibility to claim benefit of exemption Notification No. 3/2005-CE dated 24.2.2005 (Sr. No. 9) in respect of chocolate syrup, Butter Scotch, Blue curacao. Grenadine, Mint, Orange, Triple Seed, Caramel, Natural Caramel, Vanila, Lime (all falling under Chapter Heading 2108.91/21069040) on the ground that the same do not bear brand name of the assessee/appellant.
(iv) Goods sold without brand name- Eligibility of exemption benefit under Notification No. 3/2005-CE (sup

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ITC accumulated due to inverted tax structure against supplies @.1%

ITC accumulated due to inverted tax structure against supplies @.1%
Query (Issue) Started By: – MohanLal tiwari Dated:- 19-1-2019 Last Reply Date:- 21-1-2019 Goods and Services Tax – GST
Got 6 Replies
GST
Dear Panelists,
We are supplying goods to indigenous customers including Indian railway as well direct exports and through merchant exporters. We have got huge ITC accumulated due to supplies of goods to Railway way parts (HSN 8607) and supplies to merchant exporters @.1%.
Kindly

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Service tax audits under the 1994 Act can continue post-GST implementation on July 1, 2017.

Service tax audits under the 1994 Act can continue post-GST implementation on July 1, 2017.
Case-Laws
Service Tax
Jurisdiction – service tax audit – an enquiry or an investigation or even a l

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Input Tax Credit against Stock Transfer from factory to godown

Input Tax Credit against Stock Transfer from factory to godown
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 19-1-2019 Last Reply Date:- 26-1-2019 Goods and Services Tax – GST
Got 4 Replies
GST
XYZ having manufacturing unit at Gujarat and godown in Maharashtra. When the goods are stock transferred from Gujarat to Maharashtra, GST is paid on it being distinct person concept under GST provisions and Maharashtra is taking credit of the GST charged by Gujarat. However, since b

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Physical filing for inverted duty structure Refund

Physical filing for inverted duty structure Refund
Query (Issue) Started By: – aayushi singhal Dated:- 19-1-2019 Last Reply Date:- 21-1-2019 Goods and Services Tax – GST
Got 10 Replies
GST
Is the option for filing refund application in RFD-01A for inverted duty structure refund still available. Or we have to go for online filing only.
Reply By SHARAD ANADA:
The Reply:
Till now file online and submit docs offline
Reply By KASTURI SETHI:
The Reply:
First requirement is to file online. If you find snag in the Common Portal System, then file manually with jurisdictional GST Division Office. After filing online, a copy of application along with acknowledgement is to be submitted manually. Actually both procedures are in force.

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ble to file the application because of snag, you can file the application manually in the office. There is Board's instructions to this effect.
Reply By aayushi singhal:
The Reply:
Thankyou Sir.
Is there any specific notification to this effect?
Reply By KASTURI SETHI:
The Reply:
I shall revert soon. But I am also of the view that Grievance Redressal Cell (help desk) must be contacted for expeditiously remedy as advised by M/s.Yagay and Sun, Sirs. Try both ways.
Reply By KASTURI SETHI:
The Reply:
Refunds under GST
Manual claims in respect of inverted duty structure
Refund claims on account of inverted duty structure shall be filed for a tax period on a monthly basis in FORM GST RFD-01A. However, the registered persons having a

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notified, it has been decided by the competent authority to sanction refund of provisionally accepted input tax credit at this juncture. However, the registered persons applying for refund is required to give an undertaking to the effect that the amount of refund sanctioned would be paid back to the Government with interest in case it is found subsequently that the requirements of clause (c) of sub-section (2) of section 16 read with sub-section (2) of section 42 of the CGST Act, 2017 have not been complied with in respect of the amount refunded. This undertaking should be submitted manually along with the refund claim till the same is available in FORM RFD-01A on the common portal. Further the prescribed statements – Statement 1 and Statem

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Case laws behinf Input Tax Credit

Case laws behinf Input Tax Credit
Query (Issue) Started By: – Ritesh Mehta Dated:- 19-1-2019 Last Reply Date:- 26-1-2019 Goods and Services Tax – GST
Got 5 Replies
GST
Can anyone please share some of the landmark judgements on Input Tax Credit ??
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
If you want case law for any specific matter or you may refer so many case laws in this site itself.
Reply By Ritesh Mehta:
The Reply:
I am looking for landmark judgement in relation to inp

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GST – RCM ITC QUERY

GST – RCM ITC QUERY
Query (Issue) Started By: – IRFAN MALIK Dated:- 19-1-2019 Last Reply Date:- 26-1-2019 Goods and Services Tax – GST
Got 5 Replies
GST
Have recd transportation service from GTA in dec 2018.
Now I have paid GST under RCM on 19th January 2019.
Query is when can I claim ITC of GST paid under RCM, whether at the time of filing GSTR 3B for Dec 2018 or whether at the time of filing GSTR 3B for Jan 2019??
Thanking you in anticpation….
Regards
-Irfan
Reply By KASTU

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Reverse charge on repairs carried out outside India

Reverse charge on repairs carried out outside India
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 19-1-2019 Last Reply Date:- 19-1-2019 Goods and Services Tax – GST
Got 2 Replies
GST
XYZ (Manufacturer from India) received back the goods from PQR (U.K.) after repairs under the cover of a Bill of Entry for the repaired goods and XYZ had taken credit of the IGST charged in the Bill of Entry. PQR had carried out the repairs outside India i.e. in U.K. PQR had issued a separate

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Issue of Tax Invoice Against Material Rejection by Customer instead of Debit Note

Issue of Tax Invoice Against Material Rejection by Customer instead of Debit Note
Query (Issue) Started By: – ACCOUNTS MANAGER Dated:- 19-1-2019 Last Reply Date:- 26-1-2019 Goods and Services Tax – GST
Got 2 Replies
GST
Hiii…
Few of our customer (OEM) has issued Tax Invoice against material rejection and also shown in their GSTR-1 as sales. And we issued Credit Note for the same and shown in GSTR-1 which is required as per GST.
Question is that they issued Tax Invoice as per GST Rules which is ok but how can they show in GSTR-1 as new sales???… Because same is reflected in our GSTR-2A which is wrong because it is not our purchase.
I want to understand treatment of Customer as why they show this transaction as Sales and n

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purchaser of same and asked him to accept the credit note, and documented the same and the purchaser should have sent the material back on delivery challan as per rule 55(1)(c) since you have filed your gstr-1 and reduced your output tax and the purchaser will also have to reduce his itc based on the revised GSTR-1 file which will be mirrored in the GSTR-2A.
however this leads us nowhere as compliance will remain an issue regarding itc reversal by purchaser etc.
Hence In terms of circular issued for pharma companies (in which they have mentioned that it can be used in other cases also ie other than pharma as principles remain same which they have mentioned in the ciruclar also) please refer to Circular No. 72/46/2018-GST
The value of th

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RECENT NOTIFICATIONS ON ‘IGST’ RATE

RECENT NOTIFICATIONS ON ‘IGST’ RATE
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 19-1-2019

The Central Government issued seven notifications on IGST rate consequent the decisions taken by the GST Council. These notifications came into effect from 01.01.2019.
Notification No. 25/2018-Integrated Tax (Rate)
Vide Notification No.01/2017-Integrated Tax (Rate), dated 28.06.2017 notified 6 types of rates as detailed below-
* 5 per cent. in respect of goods specified in Schedule I,
* 12 per cent. in respect of goods specified in Schedule II,
* 18 per cent. in respect of goods specified in Schedule III,
* 28 per cent. in respect of goods specified in Schedule IV,
* 3 per cent. in respect of goods specified in Schedule V, and
* 0.25 per cent. in respect of goods specified in Schedule VI.
This Notification brings amendment to the first schedules in Notification No.01/2017-Integrated Tax (Rate).
Amendments in Schedule I – 5%
* This Noti

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the purposes of this entry shall be deemed as 70% of the gross consideration charged for all such supplies, and the remaining 30% of the gross consideration charged shall be deemed as value of the said taxable service.
* Sl. No. 234A is renumbered as 234B and a new entry 234A is inserted as detailed below-
* 234A – 871420 –
Amendments in Schedule II -12%
* After sl. No. 101, the sl. Nos. 101A, 101B and 101C are inserted as detailed below-
* 101A – 4502 00 00 – Natural cork, debacked or roughly squared, or in rectangular (including square) blocks, plates, sheets or strip (including sharp-edged blanks for corks or
* 101B – 4503 – Articles of natural cork such as Corks and Stoppers, Shuttlecock cork bottom
* 101C – 4504 – Agglomerated cork (with or without a binding substance) and articles of agglomerated cork
* This Notification omitted the entries No. 102 and 126.
* 102 – 4501 –
* 126 – 4904 00 00 – Music, printed or in manuscript, whether or not bound or illustrated

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ngs (including universal joints)” are substituted.
* A new entry 376AA is inserted after the entry 376A.The details of the new entry are as follows-
* 376AA – 8507 – Lithium-ion accumulators (other than battery) including lithium-ion power bank”
* Against S. No. 383, in the entry in column (3), after the words “television cameras”, the words, “digital cameras and video camera recorders”, are inserted.
* Against S. No. 384, in the entry in column (3), for the figures and word “20 inches”, the figures and word “32 inches” shall be substituted.
* Sl. No. 440A is renumbered as 440B and the new entry for 440A is inserted as detailed below-
* 440A – 9504 – Video game consoles and machines, articles of funfair, table or parlour games, including pintables, billiards, special tables for casino games and automatic bowling alley equipment [other than playing cards, ganjifa card, chess board, carom board and other board games of 9504 90 90 like ludo, etc.
Amendments in Schedule IV -28

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d accessories of vehicles of heading 8711.
Notification No. 26/2018-Integrated Tax (Rate)
Notification No.02/2017-Integrated Tax (Rate), dated 28.06.2017 granted exemption to certain supplies. The present Notification substituted entries for the entries 43A, 43B and inserted entries 121A and 153. The new substituted and inserted entries are as follows-
Sl.No.
Chapter/Heading/Sub-heading/Tariff item
Description of Goods
43A
0710
Vegetables (uncooked or cooked by steaming or boiling in water), frozen
43B
0711
Vegetables provisionally preserved (for example, by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions), but unsuitable in that state for immediate consumption.
121A
4904 00 00
Music, printed or in manuscript, whether or not bound or illustrated
153
Any Chapter
Supply of gift items received by the President, Prime Minister, Governor or Chief Minister of any State or Union territory, or any public servant, by way of public auction by t

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with Handbook of Procedures;
* the recipient shall export the jewellery made out of such gold within a period of 90 (ninety) days from the date of supply of gold to such recipient and shall provide copy of shipping bill or bill of export containing details of Goods and Services Tax Identification Number (GSTIN) along with the invoice for exports to the Nominated Agency within a period of 120 (one hundred and twenty) days from the date of supply by the Nominated Agency;
* wherever such proof of export is not produced within the period mentioned in condition (ii), the Nominated Agency shall pay the amount of integrated tax payable on the quantity of gold not exported, along with interest from the date when the said tax on such supply was payable, but for the exemption.
Notification No. 28/2018-Integrated Tax (Rate)
Notification No. 08/2017-Integrated Tax (Rate), dated 28.06.2017 prescribes the IGST tax rates on services. The present notification brings the following amendments to t

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than (i), (ii), (iii), (iv), (v), and (vi) above – 18%
* Sl.No. 17 of the table deals with the Heading 9973 (
* (viia) Leasing or renting of goods – Same rate of integrated tax as applicable on supply of like goods involving transfer of title in goods
* (viii) Leasing or rental services, with or without operator, other than (i), (ii), (iii), (iv), (v), (vi), (vii) and (viia) above- 18%;
* This Notification substituted tax rate as 12%(18%) for item No. (iv) of 34.After amendment the revised entry is as below-
(ii) Services by way of admission exhibition of cinematograph films where price of admission ticket is one hundred rupees or less. – 12%
* This Notification inserted entry No. 38 as detailed below-
Sl.No.
Chapter, Section or Heading
Description of Service
Rate (per cent.)
Condition
38
9954 or 9983 or 9987
Service by way of construction or engineering or installation or other technical services, provided in relation of setting up of following, –
(a) Bio-gas plant

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fication No. 29/2018-Integrated Tax (Rate)
This Notification amended the Notification No. 09/2017- Integrated Tax (Rate), dated 28.06.2017 in which the Central Government exempted the inter-State supply of services of description as specified in column (3) of the Table given in the Notification from so much of the Integrated Tax leviable thereon under sub-section (1) of section 5 of the said Act, as is in excess of the said tax calculated at the rate as specified in the corresponding entry in column (4) of the said Table, unless specified otherwise, subject to the relevant conditions as specified in the corresponding entry in column (5) of the said Table.
The following are the amendments brought out in Notification No.09/2017-Integrated tax-
* The present Notification inserted item No. 22B, 28A and 77Aas detailed below-
Sl.No
Chapter, Section, Heading, Group or Service Code (Tariff)
Description of Services
Rate (per cent.)
Condition
22B
Heading 9965 or Heading 9967
Services

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y or an entity registered under section 12AA of the Income tax Act, 1961.
NIL
NIL
* Entry No. 35A indicates -Services supplied by Central Government, State Government, Union territory to their undertakings or Public Sector Undertakings (PSUs) by way of guaranteeing the loans taken by such undertakings or PSUs from the financial institutions.
The present Notification inserted the words 'banking companies and' after the words 'PSU from the'.
* This notification substitutes the Heading for the entry No. 69 – 9992.The newly substituted headings are 'Heading 9992 or Heading 9963'.
* This notification omitted serial No. 70 and the entries relating thereto. The entry 70 deals with the Services provided by the Indian Institutes of Management, as per the guidelines of the Central Government, to their students, by way of the following educational programmes, except Executive Development Programme.
* Para 2 of the Notification No. 09/2017-Integrated Tax (Rate) gives definition for vari

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ation inserted a proviso after the item No. 2(g) which provides that nothing contained in this entry shall apply to services provided by a goods transport agency, by way of transport of goods in a goods carriage by road, to, –
* a Department or Establishment of the Central Government or State Government or Union territory; or
* Local Authority; or
* Government Agencies,
which has taken registration under the Central Goods and Services Tax Act, 2017 only for the purpose of deducting tax under section 51 and not for making a taxable supply of goods or services.
* This Notification inserted 3 entries from 14 to 16 as detailed below
Sl.No.
Category of Supply of Services
Supplier of service
Recipient of Service
Services provided by business facilitator (BF) to a banking company
Business facilitator (BF)
A banking company, located in the taxable territory
Services provided by an agent of business correspondent (BC) to business correspondent (BC)
An agent of business corresp

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Amendment in Notification No. F.I-11(91)-TAX/GST/2017(Part) dated the 9th November, 2017

Amendment in Notification No. F.I-11(91)-TAX/GST/2017(Part) dated the 9th November, 2017
F.1-11(91)-TAX/GST/2018(Part II) Dated:- 19-1-2019 Tripura SGST
GST – States
Tripura SGST
Tripura SGST
GOVERNMENT OF TRIPURA
FINANCE DEPARTMENT
(TAXES & EXCISE)
NO. F.I-11(91)-TAX/GST/2018(Part II)
Dated, Agartala, the 19th January, 2019
NOTIFICATION
In exercise of the powers conferred by section 147 of the Tripura State Goods and Services Tax Act, 2017 (Tripura Act No. 9 of 2017), the State Government, on the recommendations of the Council, hereby makes the following amendment in the notification of the Government of Tripura in the Finance Department No. F.I-11(91)-TAX/GST/2017(Part) dated the 9th November, 2017 published in the T

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Tax Invoice for supply of goods and service

Tax Invoice for supply of goods and service
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 18-1-2019 Last Reply Date:- 19-1-2019 Goods and Services Tax – GST
Got 3 Replies
GST
XYZ (Manufacturer) is making and supplying “Hanging Banner Assembly” attracting 18% GST. In the same invoice he is also charging separately, installation charges, freight charges and scaffolding charges and charging same GST rate i.e. 18%. Is it the correct way of issuing the invoice or for installati

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job work pre gst period

job work pre gst period
Query (Issue) Started By: – Madhavan iyengar Dated:- 18-1-2019 Last Reply Date:- 20-1-2019 Goods and Services Tax – GST
Got 3 Replies
GST
Where material was sent out for job work by A in pre gst period to B the job worker and scrap is generated at B job workers end in GST period
Now during Dec 18 A has raised a debit note on B in GST period for scrap with out any taxes
kindly clarify the treatment to be given by A
Reply By KASTURI SETHI:
The Reply:
A is

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Credit of GST paid on Hotel Bill (Inter State / Intra State)

Credit of GST paid on Hotel Bill (Inter State / Intra State)
Query (Issue) Started By: – ACCOUNTS MANAGER Dated:- 18-1-2019 Last Reply Date:- 20-1-2019 Goods and Services Tax – GST
Got 4 Replies
GST
Hi….
My query is regarding availment of GST paid on Hotel Bill situated outside the sate. Because they charge
CGST+SGST instead of IGST. Also we are not able to view credit on portal in our GSTR-2A.
Also in case of Hotel bill of Intra state in that case also we are not able to view credit in our GSTR-2A.
Hence, from above for which credit we are eligible and if not then why???
Regards,
Devendra
Reply By Ramaswamy S:
The Reply:
The hotel has charged correctly. The place of supply is within the state for the Hotel.
The hot

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Commission and Shipping charges on exempted goods

Commission and Shipping charges on exempted goods
Query (Issue) Started By: – Satya Sharma Dated:- 18-1-2019 Last Reply Date:- 19-1-2019 Goods and Services Tax – GST
Got 4 Replies
GST
I need to know if ITC can be claimed on commission and shipping charged on supply of exempted goods. To be specific, Amazon is online selling our exempted goods and charging their commission and shipping fee being delivered to all over India, can we claim GST charged on commission and shipping fee provided we have monthly invoice from Amazon for Commission and Shipping Fee.
Reply By KASTURI SETHI:
The Reply:
You have Tax Invoice from Amazon. You can claim ITC on account of GST paid on the amount of commission paid for the supply of exempted good

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How to claim refund for reverse ITC in import

How to claim refund for reverse ITC in import
Query (Issue) Started By: – aayushi singhal Dated:- 18-1-2019 Last Reply Date:- 23-1-2019 Goods and Services Tax – GST
Got 8 Replies
GST
As per the prevalent practise, customs duty along with IGST is paid by the importer himself at the time of importing the goods. The procedure for filing refund application requires the importer to enter the Purchase details in the Excel Utility. However, the said Utility mandatorily requires the GSTIN of the Supplier, obtaining which is not possible in case of import since the Supplier is a foreign entity and as such there is no mechanism for establishing nexus between the customs EDI and GSTN.
Further, in the absence of any provision for filing r

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ble to claim refund ITC.
Reply By aayushi singhal:
The Reply:
A company X is getting imported certain hardware from country Y. At the time of importation, X is paying custom duty along with IGST. After importation, X in the capacity of Supplier is supplying the hardware to Research Organization (along with other customers) at the rate of 5% GST. Since the Input is greater than output rate, X is eligible for ITC refund. At the time of filing for online refund application, the excel utility requires X to enter GSTN number of the Supplier, which cannot be obtained for imports since the taxes are paid to customs, because of which the application does not get completed and hence fails to submit.
On the contrary, if X tries to get the same t

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Tour Operators GST Rate

Tour Operators GST Rate
Query (Issue) Started By: – JIGAR SHAH Dated:- 18-1-2019 Last Reply Date:- 18-6-2019 Goods and Services Tax – GST
Got 4 Replies
GST
Our client is into the business of tour operators. His total tour operating income is say ₹ 40 lakhs and total tour cost is say ₹ 35 lakhs. Is he allowed to charge GST @18% on the profit i.e. 18% on 5 lakhs (40-35)?
Another scenario is, is it allowed to charge 18% on total tour operating income i.e. 18% on 40 lakhs, along with Input tax credit (like GST paid on Hotel booking, transportation cost)?
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
According to Para 2 (zzm) of Notification No.12/2017-Central Tax (Rate) dated 28.6.2017 [with effect from 01.07.20

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t charged in the bill is the gross amount charged for such a tour including the charges of accommodation and transportation required for such a tour.
If service provided is only for hotel booking and of hotel charges are recovered separately on actual basis, then GST will be payable @18% treating such service as suppport service of tour operator service.
Reply By Ganeshan Kalyani:
The Reply:
GST@5% on tour operator service is applicable provided that credit of input tax charged on goods and services used in supplying the tour operator service, other than the input tax credit of input service in the same line of business (i.e. tour operator service procured from another tour operator)] has not been taken & the bill issued for supply of th

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Joint Development Agreement GST rate

Joint Development Agreement GST rate
Query (Issue) Started By: – JIGAR SHAH Dated:- 18-1-2019 Last Reply Date:- 11-5-2019 Goods and Services Tax – GST
Got 2 Replies
GST
A developer has entered into a joint development agreement with the land owner. As per the agreement the developer has the right to sell the developed land into plots to the final customer. The developer receives the total sale consideration and out of that he gives the agreed proportionate land cost on sales conside

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Pathology laboratory service provided by doctor is exempted or not?

Pathology laboratory service provided by doctor is exempted or not?
Query (Issue) Started By: – KANUBHAI PATEL Dated:- 18-1-2019 Last Reply Date:- 19-1-2019 Goods and Services Tax – GST
Got 2 Replies
GST
Pathology laboratory service provided by doctor to its individual customers is exempted or not?
Reply By Alkesh Jani:
The Reply:
Sir,
In terms of Sl. No.74 Notification No.12/2017 dated 28.06.2017 (as amended from time to time) "(a) health care services by a clinical establi

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Mode of Delivery of Show Cause Notice

Mode of Delivery of Show Cause Notice
By: – CA Akash Phophalia
Goods and Services Tax – GST
Dated:- 18-1-2019

Introduction
Concept of show-cause notice finds its roots in the birth of laws. The system of issuing show-cause notice is prevailing in all the legal frameworks throughout the world in the same manner or the other following the principle of natural justice. The importance of delivery of show-cause notice is equally important. In this article the author aims to highlight the importance of proper mode of servicing of show cause notice through a recent decision held by Allahabad high Court in the case of Kashi Bartan Bhandar v State of UP 2018 (11) TMI 556 – ALLAHABAD HIGH COURT
Meaning of Show-cause notice
Show cause notice means an order issued by a Court, Competent Authorities or an Organization asking an individual or a group of people to explain or to "show cause" in writing as to why the disciplinary action should not be taken against the indiv

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or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or
(b) by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or
(c) by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or
(d) by making it available on the common portal; or
(e) by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or (f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if

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ause notice was served by the proper officer through affixation. But, there was nothing on record that had been brought to notice to establish the time, date and place and the manner in which service by affixation was resorted to.
Discussion and Findings
The notice under the Act is required to be served in accordance with the provisions of Section 169 of the Act which provides that it can be served by giving or tendering it directly or by messenger to the person concerned or to a person regularly employed by him in connection with his business or to an adult member of the family residing with him; or by registered or speed post or courier with acknowledgement due by sending at the last known place of business or residence of the person concerned; or by sending a communication at its email address provided at the time of registration and amended from time to time; or by making it available on the common portal; or by publication in a newspaper circulating in the locality in which the

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Draft audit programme for GST Audit

Draft audit programme for GST Audit
By: – Rajagopalan TS
Goods and Services Tax – GST
Dated:- 18-1-2019

AUDIT PROGRAM FOR GST AUDIT
1 Preliminary
* Check GST registration certificate
* Cross check the name of the entity with PAN or Company incorporation certificate
* Check for single registration or multiple registration – ask for documentation
* Name board to contain GST registration
* Ask client to log on to GST portal and verify whether it is active still
2 Transition
* Verify the June 2017 returns of Service tax, Excise and VAT
* Take stock of the closing balances as per those returns
* Verify whether it is reflecting in the Trans 1 statement
* Verify the documentation for Trans 1 filing with the department
* Correspondence with department on Trans 1 credit disallowance if any (specifically ask for it and record)
* Capital goods credit balance 50% under Excise and 1/3rd or 2/3 rd under VAT should be verified
* How Cess is handled in the tr

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* Check the 3B return status in the portal, submitted or filed status
* Check the GST portal for any queries raised by the department on line and what action taken by the client
4 GSTR1
* Whether GSTR1 has been filed for all months – July 2017 to date
* Verify the physical copy with the portal numbers for correct upload of data
* Check all the returns for correct filling of all the columns, IGST not updated as local and vice versa
* Verify how the purchases from unregistered dealers handled
* Verify how the SEZ or Export transactions are reported
* Cross verify the rate of tax applied with the tariff headings
* State code – whether correctly filled up
* On a random basis check the GST registration of customers in the portal for correctness of the same
* Check the status of the return – Submitted or filed
* Open the dash board and verify whether all the returns are appearing in the portal
* How the data is extracted from the company's books – manually or downloa

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r private software used – if private software used then carefully check whether all transactions are uploaded properly in the portal
* The liability quantified in GSTR 1 – local and IGST must match with the liability quantified in GSTR 3B
* Cut off procedure – last document no. for each month as per books accounts and first document no. for the next month – take for Aug 2017, Nov 2017, Jan 2018 and March 2018.
* Check whether Tally is closed each month and verify the same for three months during the period of audit
* In case of SAP please verifiy whether period closing is done and ask the concern to open the system and show that the period closure is done. Take a screen shot for our records
5 Input credits
* Verify the input credit disclosed in GSTR 3B under CGST, SGST and IGST
* Verify whether the same reflects in company's books of account and matches
* If there is difference record the same and ask for explanations
* If rectified subsequently document the same – to

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t entail credit availment unless he provides GST invoice
* Import IGST will be eligible for credit and verify the same with Bill of entries
* Take a listing of vendors of the client with GST nos and check whether client has such a list and updation frequency to be verified
* How does the client verify whether the vendors have filed their GSTR 1 returns – Process to verify and document
* For those not filing the returns what steps the company takes to ensure that they file and the credit availed is legal and correct
* Is there any check for ensuring the vendors making GST payments on monthly basis – If so record the same
* Rejection of materials – How handled in GST – Whether the client raises the rejection debit note with GST and reverses the credit or not
* In the alternative for full rejection of invoice client need not avail credit and also raise debit note for rejection. In this case the transportation of materials could be a problem and how handled – verify this
*

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M/s NORTH WESTERN CARRYING CORPORATION, NIKUNJ BHARAT KASERA Versus UNION OF INDIA

M/s NORTH WESTERN CARRYING CORPORATION, NIKUNJ BHARAT KASERA Versus UNION OF INDIA
GST
2019 (2) TMI 1083 – GUJARAT HIGH COURT – TMI
GUJARAT HIGH COURT – HC
Dated:- 18-1-2019
R/SPECIAL CIVIL APPLICATION NO. 496 of 2019
GST
MS HARSHA DEVANI AND DR A. P. THAKER, JJ.
For The Petitioner (s) : MR ANAND NAINAWATI (5970)
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Mr. Anand Nainawati, learned advocate for the petitioner, inter alia, submitted that the impugned s

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M/s. Island Aviation India Pvt. Ltd. Versus Commissioner of GST & Central Excise Chennai

M/s. Island Aviation India Pvt. Ltd. Versus Commissioner of GST & Central Excise Chennai
Service Tax
2019 (2) TMI 678 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-1-2019
Appeal Nos. ST/706 & 707/2012 – Final Order Nos. 40156-40157/2019
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri V.S. Manoj, Advocate for the Appellant
Shri K. Veerabhadra Reddy, ADC (AR) for the Respondent
ORDER
Per Bench
The appellants are functioning as General Sales Agent of Malaysian Airlines in the territory of South India for cargo transportation and other services provided by Malaysian Airlines. They are registered with the Service Tax Department. During the course of audit of accounts, it was noticed that the appellant had entered in a General Sales Agency Agreement (Cargo) with Malaysian Airlines Systems, Berhad on 30.3.2007 for functioning as General Sales Agent for cargo transportation and other services pro

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les Agent. The appellant has discharged the service tax on the entire commission received by them as General Sales Agent. This agreement between the parties also provide for a specific arrangement wherein the appellant is entitled to purchase cargo slot at the rater specified / agreed and make profit from sale of such cargo space to exporter. He submitted that the agreement specifically provides that when there is a purchase and sale, the appellant is not entitled for any commission. In the present proceedings, the demand is not raised on the commission received by the appellant as General Sales Agent. The demand is confined to the amount calculated as a difference between the purchase price and sale price of the cargo space. In such purchase of cargo space, the appellant is not acting in the capacity of a General Sales Agent for Malaysian Airlines and therefore is not receiving any commission from them. In fact, it is only a specific arrangement whereby the appellant is entitled to pu

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slot from the Malaysian Airlines and not as General Sales Agent. He adverted to the annexure to the show cause notice and argued that the annexure would show that the alleged amount of taxable value is arrived by department only from the difference of the sale price and purchase price of the cargo slot. The adjudicating authority confirmed the demand observing that the issuance of the airway bill by the appellant indicates that there is no trade of cargo space. In fact, the adjudicating authority has not considered the specific arrangement that the appellant is responsible to make payment of freight irrespective whether customer makes the payment. In such specific arrangement, the appellant may make profit or sell the slot at a price less than the purchase price which may result in loss to the appellant. In any case the price received by the appellant is only trading profit and not commission. The issuance of the House Airway Bill by the appellant will also prove that the transaction

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e where Malaysian Airlines and the appellant have prior specific rate arrangements, the appellant who is a general sales agent is not entitled to any commission. It is clear from the above clauses that the appellant is rendering services as air cargo agent of Malaysian Airlines. It is also clear from the said clauses that income is received by the appellant from Malaysian Airlines in the form of commission at the rate of 5% of IATA published rates or in the form of difference between the rates specified by Malaysian Airlines and the rates collected from the shipper / customer. Thus, the consideration is termed in a different manner and it is actually a commission received by the appellant.
4. Heard both sides.
5.1 The service tax demand is raised under BAS. The appellant has countered the allegations in the show cause notice stating that they are engaged not only as general sales agent but also receive income in the form of trading of cargo space. For whatever commission received as

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gent is not entitled to any commission.”
6. As per clause 9, it is seen that the Malaysian Airlines and the appellant has some arrangement with regard to the rates of the cargo slots which can be sold by the appellant. For slots, for which there is specific rate arrangement between the parties, the appellant is not entitled to any commission. Thus, the appellant purchases the cargo slots and thereafter sells the same to customer / exporters. The difference between sale price and the purchase price of the cargo slot is sought to be brought within the ambit of commission by the department. In such transaction, it is specifically stated in clause 9 that the appellant is not entitled to commission. In fact, for transactions as a General Sales Agent, the appellant is entitled to commission as per IATA regulations. In other transaction of sale of cargo space of specific agreed rates, it is not specified that appellant is eligible for any consideration. This means the appellant can sell suc

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M/s Shailendra Eat Udyog Versus State Of U.P. And 3 Others

M/s Shailendra Eat Udyog Versus State Of U.P. And 3 Others
GST
2019 (1) TMI 1418 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 18-1-2019
Writ Tax No. – 1712 of 2018
GST
Saumitra Dayal Singh,J.
For the Petitioner : Digvijay Tiwari
For the Respondent : C.S.C.
ORDER
SAUMITRA DAYAL SINGH,J.
1. Supplementary affidavit filed today is taken on record.
2. Admittedly, the period of limitation to file a first appeal under Section 107 of the U.P. Goods and Services Tax Rules, 2017 is three months and the period for which the delay may be condoned is thirty days from the expiry of normal period of limitation. Clearly, no application for condonation of delay may have been entertained by the appellate authori

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Full Bench decision of this Court in Commissioner of Income Tax I; Commissioner of Income Tax Central; Janpad Thok Kendriya Upbhokta Sahkari Bhandar Limited Vs. Mohd Farooq; New Cawnpore Floor Mills Pvt Ltd; Commissioner of Income Tax reported in 2009 (317) ITR 305, the delay condonation application filed beyond the period of thirty days could not be condoned and it was clearly not maintainable by the appellate authority.
6. Consequently, there is no error in the order of the appellate authority dismissing the appeal as time barred.
7. Learned counsel for the petitioner then submitted that if the remedy of appeal is held to be non-existant, still jurisdiction of the writ Court against the original order dated 03.12.2018 may not be ousted.

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M/s Shanti Eat Udyog Surir Kala Tehsil Mant District Mathura Versus State Of U.P. And 3 Others

M/s Shanti Eat Udyog Surir Kala Tehsil Mant District Mathura Versus State Of U.P. And 3 Others
GST
2019 (1) TMI 1347 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 18-1-2019
Writ Tax No. – 1711 of 2018
GST
Saumitra Dayal Singh, J.
For the Petitioner : Digvijay Tiwari
For the Respondent :  C.S.C.
ORDER
1. Supplementary affidavit filed today is taken on record.
2. Admittedly, the period of limitation to file a first appeal under Section 107 of the U.P. Goods and Services Tax Rules, 2017 is three months and the period for which the delay may be condoned is thirty days from the expiry of normal period of limitation. Clearly, no application for condonation of delay may have been entertained by the

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o. 8 as also the Full Bench decision of this Court in Commissioner of Income Tax I; Commissioner of Income Tax Central; Janpad Thok Kendriya Upbhokta Sahkari Bhandar Limited Vs. Mohd Farooq; New Cawnpore Floor Mills Pvt Ltd; Commissioner of Income Tax reported in 2009 (317) ITR 305, the delay condonation application filed beyond the period of thirty days could not be condoned and it was clearly not maintainable by the appellate authority.
6. Consequently, there is no error in the order of the appellate authority dismissing the appeal as time barred.
7. Learned counsel for the petitioner then submitted that if the remedy of appeal is held to be non-existant, still jurisdiction of the writ Court against the original order dated 03.12.2018 m

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