Streamlined Procedure for GST Registration Cancellation Applications via FORM GST REG-16 to Enhance Efficiency and Compliance.
Circulars
GST – States
Processing of Applications for Cancellati
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Security Services for Pimpri Chinchwad Municipal Corporation Exempt from GST Under Article 243W; Classified as Pure Service.
Case-Laws
GST
Exemption from GST – Security Services rendered to P
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Commission for Intermediary Services Between Foreign Exporter and Indian Importer Subject to GST, Not “Export of Service.
Case-Laws
GST
Levy of GST – export of service or not – intermediary services – The “Commission” received by the Applicant in convertible Foreign Exchange for rendering services as an “Intermediary” between an exporter abroad receiving such services and an Indian importer Of an Equipment, is not an “export of service” and GST will be levied.
TMI Update
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Goods Sold Outside India Are Non-Taxable Until Customs Clearance u/s 12 of Customs Act, 1962. No GST Applied.
Case-Laws
GST
Levy of GST – sale of goods outside India – The goods sold in the subject transaction are non-taxable supply as no tax is leviable on them till the time of customs clearance in accordance with and compliance of Section 12 of the Customs Act, 1962 and Section 3 of the Customs Tariff act, 1975
TMI Updates – Highlights, quick notes, marquee, annotation, news, aler
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ocean freight paid rcm applicability
Query (Issue) Started By: – satbir singhwahi Dated:- 4-12-2018 Last Reply Date:- 9-12-2018 Goods and Services Tax – GST
Got 4 Replies
GST
EXPORTING GARMENTS FIRM , PAYING OCEAN FREIGHT ON IMPORTS AND EXPORTS. PLS GUIDE THE APPLICABILITY OF RCM FOR JULY 2017 TO TILL DATE.
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
Your query requires some more details.
Reply By satbir singhwahi:
The Reply:
SIR
GARMENTS EXPORTING FIRM :
1. PAYING OCEAN FR
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Status of GST Refunds
GST
Dated:- 4-12-2018
Total GST refunds to the tune of ₹ 91,149 crores have been disposed by CBIC and State authorities out of the total refund claims of ₹ 97,202 crores received so far. Thus, the disposal rate of 93.77 per cent has been achieved. The pending GST refund claims amounting to ₹ 6,053 crores are being expeditiously processed so as to provide relief to eligible claimants. Refund claims without any deficiency are being cleared expeditiously.
In case of IGST refunds, about 95 % (Rs 48,455 crores) of the total IGST refund claims (Rs. 50,928 crore) transmitted to Customs from GSTN as on 28.11.2018 have already been disposed. The remaining claims amounting to ₹ 2,473 crores
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Responsibilities of the management and GST auditor in GST audit
By: – Sandeep Rawat
Goods and Services Tax – GST
Dated:- 4-12-2018
Appointment of the GST Auditors under section 35(5) and section 44(2) of the CGST Act read with Rule 80(3) of the CGST Rules [read with the corresponding provisions of the State / Union Territory Goods and Services Tax Acts] is to certify the Reconciliation Statement in GSTR 9-C prepared for the financial year ended 31st March 2018.
In this context, clear responsibilities play a very important role to implement the bonafide purpose of the GST audit.
I have prepared the scope of the management as well as GST auditor responsibilities in GST audit under the GST laws.
Management Responsibilities
Compliance with GST laws and preparation of GSTR 9C in compliance of those laws
The Management is responsible for compliances with the GST laws, comprising the Union Territory Goods and Services Tax / Central Goods and Services Tax / State Goods and
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that they are free of any material mis-statement.
Audit- auditing standards generally accepted in India and in line with the requirements under the GST laws and assessing the accounting principles used and significant estimates made by the Management in the presentation of financial statements
The audit will be conducted in accordance with the auditing standards generally accepted in India and in line with the requirements under the GST laws. Those standards require that GST auditor plan and perform the audit to obtain reasonable assurance as to whether the relevant GSTR 9C is free of material mis-statements. An audit includes examination on a test basis, using the concept of materiality, evidence supporting the amounts and disclosures in GSTR 9C. The audit may also include assessing the accounting principles used and significant estimates made by the Management in the presentation of financial statements.
Consider- internal control.
GST auditor will consider, solely for the purpo
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nagement about the representations contained in the financial statements and other reports as may be applicable and the effectiveness of internal control over financial reporting. Auditing standards generally accepted in India also require that, at the conclusion of the audit, GST auditor obtain representation letters from certain members of management about these matters. The responses to those inquiries, the written representations, and the results of the audit tests comprise the evidential matter GST auditor will rely upon in forming an opinion on the GSTR 9C or other reports. Owing to the importance of Management's representations to an effective audit and review, the enterprise agrees liability and costs relating to the services under the letter attributable to any misrepresentations by Management. Management is responsible for providing him with all financial records and related information / documents on a timely basis, and its failure to do so may cause him to delay the report,
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Regarding Transfer Of Motor Vehicle Without Consideration.
Query (Issue) Started By: – Shyam Agarwal Dated:- 4-12-2018 Last Reply Date:- 5-12-2018 Goods and Services Tax – GST
Got 2 Replies
GST
Sir, Mr.A purchased a Motor Car as a business assets in GST Era. But as ITC is blocked,He has not taken the ITC of the same. Now, He wants to Gift the same to his relative WITHOUT CONSIDERATION.
1.Whether GST is payable on Gift of such car as clause 4(a) of Schedule-II says about applicabili
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GST – Shifting of location of Mettupalayam Range Office to Karamadai
TRADE NOTICE: 05/2018 Dated:- 4-12-2018 Trade Notice
Customs
OFFICE OF THE PRINCIPAL COMMISSIONER OF GST & CENTRAL EXCISE
6/7, ATD STREET, RACE COURSE ROAD, COIMBATORE – 641 018.
[Issued in FiIe C. No. IV/16/02/2017-GST. Pol.]
Date:04.12.2018
TRADE NOTICE: 05/2018
Sub: Reg.
The trade & industry are hereby informed that the CGST Mettupalavam Range falling under the jurisdiction of Coonoor Division, functioning in
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Namtel Technologies Pvt. Ltd. Versus CGST, CE & CC. Bhopal
Service Tax
2019 (1) TMI 373 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 4-12-2018
Service Tax Appeal No. ST/53071/2018-ST [SM] – FINAL ORDER NO. 53415/2018
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Pradeep Mutreja, CA
Present for the Respondent: Ms. Tamanna Alam, D.R.
ORDER
PER: RACHNA GUPTA
The appellant herein is engaged in providing taxable services as that of errection, commissioning and installation services and the works contract service. During the scrutiny of ST-3 Return of the appellants for the period July, 2012 to March, 2014, the Department observed a short payment of tax on the total value as declared by the appellant. Resultantly, vide show cause notice bearing No.7769 dated 25.09.2014, service tax amounting to Rs. 19,90,256/- allegedly short paid for the above mentioned period was proposed to be recovered alongwith the cenvat credit a
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t-coming occurred due to the error committed on account of the failure of the software but was not at all intentional on part of the appellant. It is submitted that the ST-3 Returns were timely been filed (half yearly returns) reflecting all the details as that of showing the details of opening balance, taxable value, tax paid and the availment and utilization of credit. In addition, at the time of personal hearing, the calculation chart alongwith those returns were provided to the Department. However, the Adjudicating authority below have not considered the same It is finally impressed upon that while undoing the software issue at their own level, the appellant noticed a short payment of Rs. 56,070/- which was also paid by him vide challan dated 5th October, 2013. The order under challenge is therefore prayed to be set aside.
4. While rebutting these arguments, ld. A.R. has submitted that no document was provided by the appellant before the adjudicating authorities below, despite tha
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pparent denial of rebutting the failure in the software of the appellant as is mentioned by them.
6. The perusal of order under challenge reflects that the demand as proposed in show cause notice has been confirmed only for want of the documents/ documentary proof and on the presumption that had there been error in filing ST 3 returns as per the plea of the appellant, the same would have been reflected online itself. However, the perusal of record even the order under challenge shows that the documents not only in the form of ST 3 returns but the calculation chart as well were produced before the adjudicating authorities below. These returns include the half yearly returns for the financial years under question. Perusal of these returns shows that the opening balance for the first half yearly return is same as that of second half yearly return. This perusal is sufficient to hold that the software has not appropriately picked up the value of opening balance. This perusal also makes it
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Khanduja Coal Transport Co. Versus CGST C.C & C. E-Jabalpur
Service Tax
2019 (1) TMI 322 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 4-12-2018
Appeal No. ST/50294/2016-CUS (DB) – ST/A/53422/2018-CU[DB]
Service Tax
Mr. Anil Choudhary, Member (Judicial) And Mr. C.L. Mahar, Member (Technical)
Shri H. Bansal, Advocate for the appellant
Shri G.R. Singh, DR for the respondent
ORDER
Per: C.L. Mahar
1. The brief facts of the matter are that the appellant is engaged in Goods Transporter Agency Service and for which they are duly registered with Service Tax Department. As per the various agreements entered by the appellant with M/s Western Coal Field Ltd. the appellant has been provided work contract for transportation of coal from mining area either to washery or to the railway siding by employing tippers and trucks for this purposes. The scope of work included loading of the coal from mining area to the washery or to the railway siding, transportation t
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hed Commissioner (Appeal) who has detoed the order of Joint Commissioner vide his order dated 30st November 2015 and now the appellant is before us against the above mention Order-in-Appeal.
2. The basic issue before us for adjudication is that whether the department is correct in holding a view that the service provided by the above mentioned appellants falls under the category of cargo handling services as defined under section 65 (105) (zr) read with section 105 (23) of the Finance Act, 1994 or whether the service tax has correctly been paid by recipient of the service under Goods Transportation Agency service on reverse charge basis. In this regard, it will be appropriate to have a look at the sample contracts which the appellant has entered with the service recipient, namely, M/s W.C.F. Ltd.
LOA No. WCL/KAN/SO(M)/P 175/2012-985 dated 6.01.2013
Description of work
Qty
Rate/Unit
Amount(Rs)
JOB No.1)
Transportation of coal form Bunker of Tandsi, mines to Nandan Washery by hir
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Coal from Takia Nallah OC Stock yard to Hiragarh Siding, Kanhan Area.
Minimum Daily rate of transportation 1000 Tonnes. Distance: 12.7 KMs.
0.80 Lakh Tonnes
Rs.62.40
Rs.4999200.00
(Rupee Forty Nine Lakhs Ninety Nine Thousand Two Hundred only)
3. It can be seen from the above mentioned terms of the contract that rates which have been provided to the appellant is based on the distance for which transportation of the coal is to be undertaken by the service provider i.e. the appellant in these cases. The relevant prices as mentioned above is also subject to escalation of the transportation rates as per changes in the fuel price for the relevant period. This basically signifies that the rates are pre-dominantly for transportation of cargo rather than for handing of cargo. However, before proceeding further the relevant section 65 A of Finance Act, 1994 need to be looked into in detail for classification of the service rendered by the appellant. The provisions of section 65A provides
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s which equally merit consideration.]
4. It can be seen from a plain reading of 65A (2)(b) that the classification in the case of combined service is to be decided by analyzing the fact as to which service gives essential character to the service being performed. As can be seen from the above contract that the essential character of the service for which contract has been entered by the service provider is that the service received are for transportation of coal for mining area to the railway siding and the activity of loading/ unloading mechanically or otherwise is in our view, is only incidental to the activity of transportation of the cargo in these cases.
5. In view of the above, we hold that the service provided by the appellants have rightly been classified in the Goods Transportation Agency service.
6. We also feel that this issue has already been examined by the Hon'ble Supreme Court in their decision in the case of CCE & ST Raipur Vs Singh Transporters [(2017 (4) GSTL 3 (S
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RAI PREXIM INDIA PRIVATE LIMITED Versus STATE OF KERALA REPRESENTED BY ITS SECRETARY (TAXES), THIRUVANANTHAPURAM, THE COMMISSIONER OF STATE GST KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM, ASSISTANT STATE TAX OFFICER SQUAD NO. VII, KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD, AMITY ROCK PRODUCTS PVT. LTD., THE UNION OF INDIA REPRESENTED BY THE SECRETARY (REVENUE), NEW DELHI, GOODS AND SERVICE TAX COUNCIL THROUGH ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NEW DELHI, GOODS AND SERVICE TAX NETWORK THROUGH ITS CHAIRMAN, EAST WING, NEW DELHI, AND CHIEF COMMISSIONER OF CENTRAL TAXES CENTRAL GST OFFICE, KERALAD
GST
2018 (12) TMI 1004 – KERALA HIGH COURT – 2019 (23) G. S. T. L. 454 (Ker.)
KERALA HIGH COURT –
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d another e-Way bill produced as Ext.P5. In Ext.P5, the place of delivery was correctly shown as 'Pathanamthitta'. However, the value of the goods was mentioned as Rs. 388220/- instead of Rs. 3882200. Taking exception to this e-Way bill, goods have been detained.
2. If a human error which can be seen on naked eye is detected, such human error cannot be capitalised for penalisation. Normally, this Court could not have persuaded to accept the contention on prima facie value as it is a matter for decision by competent authority and this Court can only order release of the vehicle and goods as against Bank guarantee. But I am persuaded to adopt a different course for the simple reason that if the petitioner had paid the IGST in accorda
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M/s. Indian Oil Corporation Ltd. Versus Commissioner of GST & Central Excise Chennai
Service Tax
2018 (12) TMI 790 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 4-12-2018
Appeal No. ST/47/2011 – Final Order No. 43025/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri M.N. Bharathi, Advocate for the Appellant
Shri K. Veerabhadra Reddy, ADC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellant is a public sector undertaking under the Ministry of Petroleum and Natural Gas, Govt. of India. They were providing the facility of storage to IBP Co. Ltd. and received consideration for the services provided under 'Storage and Warehousing services'. They discharged service tax for such services. Later, the Ministry of Company Affairs accorded sanction to the scheme of amalgamation of M/s. IBP Co. Ltd. with the appellant's organization (M/s. IOC) vide order dated 30.4.2007. In view
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e providing storage services to M/s. IBP Co. Ltd. Both these entities were amalgamated by an order passed by Ministry of Company Affairs dated 30.4.2007. In such order, it is specifically stated that the amalgamation is to take effect from 1.4.2004. The amalgamation having taken effect from 1.4.2004, both these entities have become a single entity with effect from 1.4.2004. Therefore, the services provided by the appellant to M/s. IBP Co. Ltd. during the relevant period from April 2004 to August 2007 will be services, if any, provided to one self and therefore not subject to levy of service tax. The appellant has therefore filed the refund claim on 14.3.2008. The refund claim has been filed within one year as prescribed under section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1994. The authorities below have rejected the refund claim alleging that the service tax having been paid in 2004, the refund claim filed on 14.3.2008 is barred by limitation. He adve
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aim on14.3.2008 which is well within the time. Therefore, the rejection of refund claim on the ground of time-bar is erroneous. He relied upon the decisions in the following cases:-
a. Indian Oil Corporation Ltd. Vs. Commissioner of Service Tax, Mumbai – 2015 937) STR 575 (Tri. Mumbai)
b. Commissioner of Central Excise, Trichy Vs. IOC Ltd. – 2011 (23) STR 625 (Tri. Chennai)
c. Commissioner of Service Tax, Delhi Vs. ITC Hotels Ltd. – 2012 (27) STR 145 (Tri. Del.)
2.1 With regard to the issue of unjust enrichment, he submitted that there is no service provided at all as both the entities have been merged into one and therefore no question of unjust enrichment would arise. To support his argument, he relied upon the decision of the Tribunal in the case of Usha International Ltd. Vs. CST – 2016 (43) STR 552 (Tri. Del.)
3. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. He submitted that the relevant date for computing the limitation as prescribed
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r it is specifically stated that the amalgamation is to take effect from1.4.2004. The relevant paragraph of the amalgamation scheme is reproduced as under:-
“1. Para 27 of the above specifies the following:-
“Now, therefore, the sanction of the Central Government is hereby accorded to the Scheme (being Annexure A1 to the petition) of IBP (Transferor Company) with IOC (Transferee Company) under section 391(2) read with section 394 of the Act. The scheme shall be binding on the shareholders and creditors of the Transferor Company and Transferee Company and all concerned with effect from 1.4.2004 being the appointed date under the said scheme.
2. Part II of the Scheme of Amalgamation between IBP and IOC for which sanction has been accorded vide the Order of Central Govt. stated above specifies that the Amalgamation is with effect from the Appointed Date i.e.. 1.4.2004.”
From the above, it can be seen that the appointed date for the amalgamation to take effect is 1.4.2004. The order
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efund claim is not hit by time bar.
5.1 The issue of unjust enrichment in the case of amalgamation has been analyzed by the Tribunal in the case of Usha International Ltd. (supra). The Tribunal in the said case has referred to the decision in ITC Hotels Ltd. (supra). In the said case, the facts reveal that the service tax pertaining to refund was paid by the assessee for the period from 1.3.2007 to 31.8.2008. As a consequence of merger with effect from 1.4.2007, refund claims were filed. These were rejected by the authorities below on the ground that the assessee had not established that the incidence of duty was not passed on to another. Though the order of merger was passed High Court on 26.5.2008, the merger was to take effect from 1.4.2007. The Tribunal after analyzing the issue held that the assessee is eligible for refund as the service was rendered to self and the burden cannot be passed on to one self. Further, in the case of M/s. Sescot Sheet Metal Works Ltd. Vs. Commissioner
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In Re: M/s. OPTA Cabs Private Limited
GST
2018 (12) TMI 711 – APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA – 2019 (20) G. S. T. L. 161 (App. A. A. R. – GST)
APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA – AAAR
Dated:- 4-12-2018
KAR/AAAR/04/2018-19
GST
SHRI. A.K. JYOTISHI, AND SHRI. M.S. SRIKAR, MEMBER
Represented by: Sri Chandrashekar Reddy, Managing Director
PROCEEDINGS
(Under Section 101 of the CGST Act, 2017 and the KGST Act, 2017)
At the outset we would like to make it clear that the provisions of both CGST, Act 2017 and SGST, Act 2017 are in pari material and have the same provisions in like matter and differ from each other only on a few specific provisions, Therefore unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the KGST Act.
The present appeal has been filed under section 100 of the Central Goods and Service Tax Act 2017 an
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elf directly from the customer on the completion of the trip either through cash or through e-payment.
3. The appellant filed an application for Advance Ruling under section 98 of the CGST Act, 2017, and KGST Act, 2017 on the question as to whether the money paid by the customer directly to the driver of the cab for the service of the trip is liable to GST and whether the applicant is liable to pay GST on this amount.
4. It was decided by the Karnataka Advance Ruling Authority vide Ruling No. KAR/ADRG 14 OF 2018 July 27, 2018 = 2018 (8) TMI 933 – AUTHORITY FOR ADVANCE RULINGS, KARNATAKA that GST is leviable on the amounts billed by the appellant on behalf of the taxi operators for the services provided in the nature of transportation of passengers through it.
5. Aggrieved by the said Ruling of the Authority (herein after referred to as 'impugned order'), the appellant has filed an appeal under section 100 of the CGST Act, 2017 and KGST Act, 2017 on the following grounds.
i. T
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ellant Viz. OPTA shall provide a receipt of the total ride fee payable by customer at the end.
v. Section 9(5) of Central Goods and Service Tax Act 2017 states that:
“(5) The Government may, on the recommendations of the Council, by notification, specify categories of services the tax on intra-State supplies of which shall be paid by the electronic commerce operator if such services are supplied through it, and all the provisions of this Act shall apply to such electronic commerce operator as if he is the supplier liable for paying the tax in relation to the supply of such services:
Provided that where an electronic commerce operator does not have a physical presence in the taxable territory, any person representing such electronic commerce operator for any purpose in the taxable territory shall be liable to pay tax:
Provided further that where an electronic commerce operator does not have a physical presence in the taxable territory and also he does not have a representative i
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able in case services are not supplied through it. Hon'ble authority failed to make a distinction between such services being “supplied” through it as against such services being “booked” through it. In case of the words “supplied”, there has to be a “continuous link” of provision of service from start to end and there should be complete responsibility of the deemed supplier.
vii. OPTA model services of taxi are not supplied through it, due to following reasons:
* There is no privy of contract on account of payment between OPTA and customer. Customers pay directly to taxi drivers; and
* OPTA does not charge any trip commission from taxi drivers. Thereby there is no flow of consideration on account of any particular trip undertaken by the said taxi driver. OPTA charges monthly rentals to taxi driver for usage of IT platform. The responsibility of OPTA is limited to providing a stable and fully functional IT platform to taxi drivers, and provision of taxi driver services is the so
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service provided by OPTA is limited to IT platform service and is not required to be taxed under section 9(5) of the CGST Act, 2017 and prayed to set aside / modify the impugned advance ruling passed by the authority for advance ruling.
DISCUSSIONS AND FINDINGS
9. We have gone through the records of the case and taken into account the submissions made by the Appellant in their written submissions as well as at the time of personal hearing. Briefly stated the facts are that the Appellant is in the business of operating taxi aggregation service wherein the Appellant provides an IT platform whereby services of information technology is provided to both the customers and the taxi operators for the usage of service. The business model of the Appellant is that a potential customer would book the taxi by using the IT platform provided by the Appellant and the taxi operator would be intimated about the potential customer through the same IT platform. On completion of the journey, the Appel
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including digital products over digital or electronic network.
As per Section 2(45) of the CGST Act, 2017, electronic Commerce operator means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce.
In the instant case the transportation of passenger service is provided by the taxi drivers by using a software application. Transportation of passengers is a taxable service liable to GST. The provision of this service by the taxi driver to the passenger is a 'supply' within the scope of supply given in Section 7 of the CGST Act since the service is provided for a consideration. The Appellant on the other hand has developed a digital platform which aggregates the taxi drivers on one common platform. The service of transportation of passengers is supplied by the taxi drivers using the digital application developed by the Appellant. The Appellant manages the digital application which facilitates the supply of the service of transportatio
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otification, specify categories of services the tax on intra-State supplies of which shall be paid by the electronic commerce operator if such services are supplied through it, and all the provisions of this Act shall apply to such electronic commerce operator as if he is the supplier liable for paying the tax in relation to the supply of such services.”
13. Under the provisions of sub-section (5) of section 9 of the CGST Act and Notification No. 17/2017 – Central Tax (Rate) dated 28th Junes 2017 was issued whereby, the services by way of transportation of passengers by a radio-taxi, motorcab, maxicab and motor cycle was notified as the category of services, the tax on intra-State supplies of which shall be paid by the electronic commerce operator.
14. Section 9(5) of the CGST Act shifts the liability to pay the tax from the actual supplier of the notified services to the e-commerce operator. The provisions of Section 9(5) Of the CGST Act do not in any way imply that the Supplier of
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In this case, booking for a taxi ride on the digital application is a part of the activity of the supply of the service of transportation of passengers. Without the booking no service can be supplied. Every supply begins with a request for the supply. The request can be in the form of a written request like a purchase order, a verbal request or a request made on the digital application which is in the nature of 'booking'. Honouring such requests by the supplier of the goods or services, in return for a consideration, is the taxable event of 'supply'. Therefore, booking for a service is also an integral part of the supply chain and hence there is no merit in the argument of the Appellant that the service has merely been 'booked' on their platform and not 'supplied through it'. We reiterate here that the supply of the service of transportation of passengers has been provided 'through' the digital platform and by virtue of the provisions of Section 9(5) of the CGST Act, the e-commerce op
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SHAKTI HORMANN PVT. LTD. Versus CCT, CE&ST, MEDCHAL GST
Service Tax
2018 (12) TMI 426 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 4-12-2018
APPEAL No. E/30502/2018 – A/31495/2018
Service Tax
Mr. M.V. Ravindran, Member (Judicial)
Shri Karan Talwar, Advocate for the Appellant.
Shri Moin. Anwar, Asst. Commissioner/AR for the Respondent.
ORDER
Per: Mr. M.V. Ravindran
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-MD- AP2-0228-17-18-CE, dated 25.01.2018.
2. The relevant facts that arise for consideration are appellant herein is the manufacturer and sale of steel doors and also provides taxable services; is engaged in trading of hardware items. Appellant availed CENVAT credit of common input services as also input services and inputs; had not availed CENVAT credit of service tax paid on services utilised for exempted services and reversed the CENVAT credit attributable to trade activity based upon the turnover as provided under Rule
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ppellate authority also disposed of the appeal upholding the view of the adjudicating authority.
3. Ld. Counsel after drawing my attention to the facts of the case submits that the issue is covered by the decisions of the Tribunal in the case of Sify Technologies Ltd. vs. CST, Chennai [2016-TIOL-911- CESTAT], Sanjay Automobile Engineering Pvt. Ltd. vs. CCE, Pune-III [2016-TIOL-1314-CESTAT-MUM] and Trans Asian Shipping Services Pvt. Ltd. [2018(9) TMI 922-CESTAT-Bangalore]. It is his submission that the first appellate authority has tried to deviate/distinguish the judgment of the Tribunal in the case of Sify Technologies Ltd. only on the ground that the provisions of Rule 6(2) were worded differentially at that time and used differentially during the period in question in this appeal. He draws my attention to the provisions of Rule 6(2) which is to be interpreted in the case in hand. He would submit that they are covered by the provisions of Rule 6(2). Further, it is his submission tha
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ns made by both sides, I find that there is no dispute as to the fact that appellant is eligible to avail CENVAT credit of various input services; has maintained separate accounts for the services which are received exclusively for exempted services; that they are undertaking trading activity for which common services were received. Appellant during the period in question i.e. March 2012 to March 2015 had reversed the CENVAT credit, attributable to the trading activity (exempted services) on a mathematical formula which was followed by him which is the turnover of the trading activity of the total turnover multiplied by CENVAT credit availed on common input services, that every month they have been filing the returns with the authorities giving all the details of such reversals; that many audits have taken place in the factory premises and only in subsequent audit, had brought out this anomaly.
6. Relevant provisions of Rule 6 which is applicable for the period in question, needs to b
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dutiable final products or in providing output service and the quantity of input meant for use in the manufacture of exempted goods or services and take CENVAT credit only on that quantity of input or input service which is intended for use in the manufacture of dutiable goods or in providing output service on which service tax is payable.”
7. It is seen from the above reproduced provisions that the intention of the Legislature was that a manufacturer or a service provider should not avail the entire CENVAT credit of the service tax paid on common input services and should avail proportionate credit attributable to the taxable output service for which the CENVAT credit Rules provides for maintaining separate accounts. In my view, appellant herein has followed this rule by taking the credit of only an amount which is attributable to the taxable services provided by him and not availing the CENVAT credit of the input services which are attributable to the trading activity. By availing
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They have produced Chartered Accountant certificates before the learned Commissioner, however, out of above five appeals, only in one case the Commissioner has caused a factual enquiry and has stopped the proceedings. It is not understood as to why such an enquiry was not conducted in respect of other show-cause ST/1252/2010; ST/1721/2011; ST/1700-3466/2012; & ST/21676/2014 12 notices. Understandably, the appellants are a big entity spread over different countries and different places in India as there is no prescribed manner for maintenance of records under CENVAT Credit Rules, the records maintained by the appellants have to be accepted as records for the purpose of observing the conditions of CENVAT Credit Rules. Moreover, we find that the Chartered Accountant has given a categorical certificate that the appellants are maintaining separate records and have been making reversals of the balance amounts at the end of every month.”
In the case of Sify Technologies Limited, the issue i
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rows light that appellant has chosen a way of maintaining its record which enabled it to substantially allocate the cenvat credit of service tax suffered by the departments in Table-C and partly to the department in Table-B. It has complied to the provisions of sub-rule (2) of Rule 6. Once the conduct of the appellant in the manner indicated by the material facts stated above is very clear because of the proportionality of the credits allocated, due to its division of the department and maintenance of records, there cannot be any presumption by Revenue that the appellant's case falls under Rule 6 (3) of CCR 2004. It is also apparent from record that the order passed by the Authority below is unreasonable for the reason that as against credit of Rs. 6,66,423/- allocated to the department in Table- B which provided exempted service, disallowance of entire credit of Rs.1,11,07,075/- allocated to Departments in Table-A providing taxable service is contrary to the principal of proportio
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The Commissioner, Goods And Service Tax Act, Up Versus M/s. Aneja Cargo
GST
2018 (12) TMI 416 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 4-12-2018
WRIT TAX No. – 1538 of 2018
GST
SAUMITRA DAYAL SINGH, J.
Counsel for Petitioner :- Bipin Kumar Pandey
1. Present writ petition has filed against the order passed by the the Appellate Authority dated 05.11.2018, by which the penalty imposed by the Assistant Commissioner (Mobile Squad), Jhansi under Section 129 of the Uttar Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as the 'Act') has been deleted.
2. Learned Standing Counsel for the petitioner revenue submits that, in the first place, in the absence of any Tribunal having b
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iscrepancy in quantity of goods has been found to be established and, therefore, in his submission, the first Appellate Authority has erred in overlooking that vital aspect of the matter and in deleting the penalty.
5. Matter requires consideration.
6. Shri Subham Agarwal, learned counsel for the assessee (respondent) may file counter affidavit within four weeks. Rejoinder affidavit may be filed within two weeks thereafter.
7. List thereafter.
8. In the meanwhile, subject to the respondent depositing Rs. 4,00,000/- in cash and furnishing security, other than cash and bank guarantee, for another Rs. 4,00,000/-, the goods in question alongwith vehicle shall be released in favour of the respondent.
Case laws, Decisions, Judgements, Ord
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Nelcast Ltd Versus Commissioner of GST & Central Excise, Chennai-Outer Commissionerate
Central Excise
2018 (12) TMI 367 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 4-12-2018
Appeal No. E/41556/2018 – FINAL ORDER No. 42990/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial)
Sh. K. Vijayasimhudu, Sr. Advisor – Indirect Tax. For the Appellant
Shri K. Veerabhadra Reddy, ADC (AR) For the Respondent
ORDER
Brief facts are that the appellants are engaged in manufacture of Machined and Unmachined Iron Castings. They avail the facility of Cenvat credit on inputs, goods and input services. During the course of scrutiny of records, it was noticed that they availed Cenvat credit of service tax paid on Employe
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hudu appeared and argued the matter. He submitted that the insurance policies are aimed to compensate the workforce in the event of any accident or untoward incident that may lead to injury or demise during the course of employment. Such insurance is not merely a welfare measure, but the appellant is duty bound to have such policies as envisaged under Workmen Compensation Act. Even the policy is specifically taken as under the Workmen Compensation Insurance Scheme. Therefore the credit is eligible. He further submitted that in the appellant's own case for the period after 1/4/2011 also, vide OIA No.58/2013 (M-II) dated 21.10.2013 the said services were held to be eligible for credit. This was not considered by the lower authority.
3. The L
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udicating authority dropped the demand. In the appellant's own case for the period October 2007 to May 2011, the department has allowed credit as per OIA No.58/2013 (M-II) dt.21.2.2013. The Commissioner (Appeals) have totally disregarded this decision. Instead of analysing the reason for allowing credit on such services after 1/4/2011, the Commissioner (Appeals) has brushed aside this order stating that major part is prior to 1/4/2011. I do not think this is sufficient reason to deviate from abiding the judicial discipline. The mechanical approach to issues without application of mind increases litigations.
6. The Hon'ble High Court of Madras in the recent decision in Civil Miscellaneous Appeal No.2926/2017 dt.19/9/2018 in the case of M/s.
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Pappu Construction Versus CGST, C.C. & C.E., Jabalpur
Service Tax
2018 (12) TMI 366 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 4-12-2018
Excise Appeal No. E/52523/2018 [SM] – FINAL ORDER NO. 53351/2018
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Z.U. Alvi, Advocate
Present for the Respondent: Mr. K. Poddar, DR
ORDER
PER: RACHNA GUPTA
The Appeal in hand has been filed being aggrieved of Order of Commissioner(Appeals) No. 18-19 dated 20.04.2018. Relevant facts for the adjudication are that the appellants are registered for providing services in the category of mining of mineral, oil or gas services. On the basis of intelligence gathered, it was noticed that the appellant is providing the said services to Madhya Pradesh State Mining Corporation Ltd. (hereinafter called as Corporation), however is not discharging the whole tax liability. Notices were accordingly served to the appellant to provide the requisite do
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ppellant proposing the aforesaid demand and a late fee of Rs. 7,200/-. In addition, the interest at the appropriate rate and the penalty of the same amount was also proposed to be levied. The said Show Cause Notice was initially adjudicated vide Order No. 22-34 dated 12.01.2018 vide which the demand of alleged short amount of service tax of Rs. 11,43,240/- was dropped. However, all the remaining demands were confirmed. Being aggrieved, the Appeal was filed before Commissioner(Appeals) who vide the Order under challenge has upheld the initial Order. Still being aggrieved, the Appeal is before this Tribunal.
2. We have heard Mr. Z.U. Alvi, Ld. Advocate for the appellant and Mr. K. Poddar, Ld. DR for the Department.
3. It is submitted on behalf of appellant that during the relevant period of time, appellant were executing mining contracts at Hirapur, District Sagar as well as at Megh Nagar District Jhabua. For the purpose of excavation of rock phosphate and crushing the same, appellant
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Del.). He has also relied upon Circular No. 211/45/96-CX dated 14.05.1996 clarifying about the problem faced in availing modvat in the name of registered office/ head office but actually availed by the factory. The Order to the extent of denial of the availment of cenvat credit and imposition of late fee alongwith the penalties is therefore prayed to be set aside, Appeal is prayed to be allowed.
4. Ld. DR has justified the Orders of adjudicating authorities below. It is impressed upon that the proposed demand has partially been dropped by the authorities below. The demand confirmed has sufficient reasoning in the Order under challenge. There is the apparent non compliance of Rules 9, 7 and 12 of Cenvat Credit Rules, 2002 on part of the appellant. There is no infirmity, as alleged, in the Order under challenge. Appeal is prayed to be dismissed.
5. After hearing both the parties and perusing the entire record, we are of the opinion that the demand of alleged short levy has already been
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ines though were purchased for Megh Nagar site however were diverted to Hirapur site. The ST-3 returns for both the sites are not denied to be produced by the appellant on record. Perusal thereof makes it abundantly clear that the cenvat credit for both these machines has been availed only with respect to Hirapur site. There is no dispute about these machines to be the capital goods used for providing the output service. The only controversy remains is as to whether the invoices bearing different address of the service provider than the one for which the credit has been availed is the violation of Rule 9 of CCR, 2004. We are of the opinion that the service provider for both the sites is same and has been commonly registered for both the sites. In the given circumstances, the credit is rather permissible to be taken on both these machines by the appellants in another unit irrespective of the invoices showing the different address of the appellant. We draw our support from the decision o
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ed in captive consumption for manufacture of final product merely because original and duplicate copy as required by Rules were lost, the claim could not be defeated. The Larger Bench of this Tribunal in the case Kamakhya Steel Vs. C.C.E. 2000 (121) E.L.T. 247 has consistently held that once duty paid character of goods, receipt at works and utilisation thereof stood established, credit ought not to be denied on procedural lapses/ minor deviations. Based thereupon we are of the opinion that findings of Commissioner(Appeals) that the invoices produced by appellant are not containing correct address of the appellants registered premises but are having address of their other premises has wrongly been considered as a ground to deny the availment of cenvat credit on the capital goods used by the appellants for providing the output service. Similarly, the findings about absence of all the particulars as prescribed under Central Excise Rules, 2002 / Rule 9(2) of CCR, 2004 are not sustainable.
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Amendment in the order number F16 (21) Tax/Juris(GST)/CCT/2017/3261 dated 11.07.2017.
F16 (21) Tax/Juris(GST)/CCT/2017/1377 Dated:- 4-12-2018 Rajasthan SGST
GST – States
Government of Rajasthan
Commercial Taxes Department
Order
Jaipur, Dated: December 4, 2018
In exercise of the powers conferred by sub-section (1) of Section 5 of the Rajasthan Goods and Service Tax Act, 2017(Act No. 9 of 2017), I, Alok Gupta, Commissioner of State Tax, Rajasthan, hereby, make the following amendment
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Vaibhav Global Ltd. Versus CGST & CE, Jaipur
Service Tax
2018 (12) TMI 341 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 4-12-2018
Service Tax Appeal Nos. ST/52143, 52144 & 52145/2018 [SM] – FINAL ORDER NO. 53352-53354/2018
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Sanjiv Agarwal & Mr. MB Maheshwari, Advocates
Present for the Respondent: Mr. P.R. Gupta, DR
ORDER
PER: RACHNA GUPTA
Three of the above mentioned Appeals are disposed of vide this Order as the Commissioner (Appeals) has passed a common Order with respect to three Show Cause Notices in three of these Appeals. Common Order dated 16.02.2018 has been challenged before this Tribunal.
2. Relevant facts for the purpose are:
The appellant herein is engaged in manufacturing and export of gems and jewellery. He had filed a refund claim under Rule 5 of Cenvat Credit Rules, 2000 and Notification No. 27/2012-CE dated 18.06.2012 in respect of the cenvat credit
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are as follows:-
Appeal No.
SCN
Period
Refund amount & date
Ex-parte OIO No./ Date
Common OIA No./ Date
ST/52143/2018
C.No. V(71)R-5/Ref/246/2015/5603 dated 10.12.2015
July 2014 to September 2014
Rs.5,14,709/- 30.09.2015
380/Ref./2015 dated 31.12.2015
37 to 39 (NG) ST/JPR/2018 dated 16.02.2018
ST/52144/2018
C.No. V(71)R-5/Ref/261/2015/5601 dated 10.12.2015
October 2014 to December 2014
Rs.4,97,807/-
08/Ref./2016 dated 05.01.2016
37 to 39 (NG) ST/JPR/2018 dated 16.02.2018
ST/52145/2018
C.No. V(71)R-5/Ref/307/2015/5827 dated 21.12.2015
January 2015 to March 2015
Rs.1,11,374/-
09/Ref./2016 dated 11.01.2016
37 to 39 (NG) ST/JPR/2018 dated 16.02.2018
3. I have heard Mr. Himanshu Bansal, Ld. Advocate for the appellant and Mr. P.R. Gupta, Ld. DR for the Department.
4. It is submitted on behalf of the appellant that the refund claim was filed of accumulated cenvat on inputs/ input services used for export under Rule 5 of CCR, 2004 read with Notification No. 27 d
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ted goods. Thus, the goods of the appellants may be excluded from the scope of exempted goods and may be made eligible to the refund claim under Rule 5 read with Rule 7 of CCr, 2004.
4.2 Ld. Counsel has also mentioned that as per the definition of exempted goods in Rule 2(d) of CCR, 2004 those goods which are under entry no. 67 and 128 of Notification No. 12 dated 17.03.2012 (as has been relied upon by the Commissioner(Appeals) by the Adjudicating Authorities below) but the goods of the appellant fall under none of those categories for this reason also the goods cannot be held as exempted goods and the claim cannot be rejected in accordance thereof.
The Order under challenge is therefore prayed to be set aside; Appeal is prayed to be allowed.
5. Ld. DR on the other hand has justified the order and prayed for the dismissal of Appeal.
6. After hearing both the parities my observations and opinion is as follows:-
The appellant had filed the refund claim under Rule 5 of Cenvat Credit
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tantly, any manufacturer who clears a final product or an intermediary product for export is entitled for credit subject to above conditions. The appellant in the present case admittedly is engaged in clearing excisable goods however the controversy is whether the goods i.e. gems and jewellery were fully exempted or not. The appellant has drawn attention to the Ministry of Law advice dated 29.10.1974 as circulated vide CBEC Circular No. 278/112/96-CX dated 11.12.1996 which reads as follows:-
Under Central Excise, “exemption” means exemption by Notification No. under Section 5A of Central Excise Act, 1944 thus goods exported under bonds are not exempted from duty. A conjoint reading of this Circular with the above requirements of Rule 5 makes it clear that a manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking which is exported without payment of service tax shall not be an exempted goods and as such s
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Interest on late payment of GST
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 3-12-2018 Last Reply Date:- 6-12-2018 Goods and Services Tax – GST
Got 4 Replies
GST
XYZ making late payment of monthly GST and therefore liable to pay Interest. E.g. if he is paying GST today and total GST payable is ₹ 100/- while today he has got balance of unutilized input tax credit of ₹ 80/-, therefore he will be paying ₹ 20/- in cash. As far as interest is concerned, he ha
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Providing Buses with Driver and Fuel to Municipality is a Service Supply, Subject to GST.
Case-Laws
GST
Classification of services – Supply of Services or not – Services to NMC by providing t
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No GST on goods sold to Indian customers if goods remain outside India and aren't brought in.
Case-Laws
GST
Levy of GST – The applicant is not liable to pay GST on the supply of goods located
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Mono Calcium Phosphate in Poultry Feed Not Exempt from GST Under HSN Codes 2301, 2302, 2308, 2309.
Case-Laws
GST
Classification of goods – various poultry feed products – whether covered unde
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E-way Bill Incomplete: Goods Detained; Interim Release Requires Compliance with Section 129.
Case-Laws
GST
Detention of goods with vehicle – goods detained on the ground Part B of the accompa
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