M/s H.M. INDUSTRIAL PVT. LTD. Versus THE COMMISSIONER, CGST AND CENTRAL EXCISE

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

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

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

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M/s Swees Gems & Jewellery, M/s Aaradhya Impex Versus CGST & CE, Jaipur-I

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

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

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

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

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

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

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

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at in case of Commissioner of Income Tax (Central-1), New Delhi vs. Vatika Township) [(2014) 0 SCC 670], Hon'ble Supreme Court has held that law enacted in absence of a provision in the statue about the same being with of retrospective effect in the Clause of Finance Act, the amendment will have prospective effect only. In view of that also we find that the impugned order is not sustainable as the new amended provision has been applied for the seizure made during period when the amendment was not there in the statue.
14. In view of above our analysis as above, we are of the considered opinion that there is no legality for dispensing with the Show Cause Notices to the affected party even under the amended provisions of Section 110(2) of the Act. The Adjudicating Authority has erroneously held that this is no need of issue of Show Cause Notice in the cases of extension at hand.
15. Accordingly, we set aside the impugned orders and allow appeals with consequential relief as per law.”
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Sanghavi Land Developers Pvt Ltd. Versus CCGST, Mumbai East

Sanghavi Land Developers Pvt Ltd. Versus CCGST, Mumbai East
Service Tax
2019 (2) TMI 1311 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 21-2-2019
APPEAL NO: ST/87344/2018 – A/85344/2019
Service Tax
Shri Ajay Sharma, Member (Judicial)
Appellant: Shri Jitu Motwani, Advocate
Respondent: Shri M.P. Damle, Assistant Commissioner (AR)
ORDER
The instant appeal has been filed against the impugned order dated 26.3.2018 passed by the Principal Additional Director General, DGPM, WRU, Mumbai in Order-in-Appeal No. MUM/DGPM/ WRU/APP-53/2017-18. The only issue to be decided in this appeal is whether the Appellants are liable for penalty u/s. 78 of the Finance Act, 1994.
2. The Appellant are engaged in the business of construction of residential complexes as well as renting of immovable property. The said construction activity has been brought under the service tax only w.e.f. 1.7.2010 by way of amendment in the existing Construction of Complex Services under section 65

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

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

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

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

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

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gst rate for employee recovery

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

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

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GST ITC on spondorship

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

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Court Denies Pre-Arrest Bail for Wrongful Input Tax Credit Case, Applicant Deemed Unworthy of Bail Protection.

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

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Rate of tax

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

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NIL RATED SUPPLY FROM SUPPLIER & NON GST SUPPLY

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

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Can Customer Hod GST Amount And Pay Base Price

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

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

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

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Input Tax Credit Reversal

Input Tax Credit Reversal
Query (Issue) Started By: – kodhanda Ramakrishna Dated:- 20-2-2019 Last Reply Date:- 23-2-2019 Goods and Services Tax – GST
Got 2 Replies
GST
A Company is a manufacturing company primarily manufactures Sponge Iron, Billets and TMT Bars which are falling under chapter 72 and applicable GST rate is 18%. Each product has separate manufacturing divisions namely Sponge Iron Division, Steel Melting Shop (SMS) Division and Rolling Mill Division respectively and collectively called as Integrated Steel Plant (ISP) and final product is TMT Bars. The company has a captive power plant with a capacity of 60 MWH. The basic raw materials for power plant are Coal/Coal fines, Char and Waste Heat generated from Sponge I

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FAQs on GSTR-3B

FAQs on GSTR-3B
By: – Ganeshan Kalyani
Goods and Services Tax – GST
Dated:- 20-2-2019

* What is GSTR-3B?
* GSTR-3B is a simplified summary return and the purpose of the return is for taxpayers to declare their summary GST liabilities for the tax period and the discharge of these liabilities in a timely manner.
* A normal taxpayer is required to file GSTR-1 & GSTR-3B returns for every tax period.
* Who needs to file the GSTR-3B?
* All normal taxpayers and casual taxpayers are required to file the GSTR-3B every time there is an extension of due dates of filing for GSTR-1 and GSTR-2.
* Where can I file GSTR-3B?
* GSTR-3B can be filed from the returns section of the GST Portal. In the post login mode, you can access it by going to Services > Returns > Returns Dashboard. After selecting the financial year and tax period, GSTR-3B, (if applicable), in the given period will be displayed.
* By when do I need to file GSTR-3B?
* Specified due dates for filing of GS

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re is no business in the particular tax period.
* One is required to Confirm after entering data in each section in GSTR-3B. Will the GST System save the confirmed data if a taxpayer exits without completing the form?
* No, to ensure that the furnished data is saved in a partially complete GSTR-3B, a tax payer is required to click on Save GSTR-3B before closing the form.
* I applied for GST registration on 25th September 2018 after crossing the threshold limit on 23rd August 2018. The registration certificate was issued to me on 5th October 2018. I am not able to select the return period of August 2018 on my Returns dashboard. Why?
* You cannot select the return period prior to the effective date of registration. In such case, effective date of registration is 25th September 2018. You should declare all your liabilities and other details (w.e.f. 23rd August 2018) in the first return filed by you.
* I have already filed GSTR-3B, but now I want to make some modifications. Can I

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lared in table 4.
* Where should I declare details of outward exempt/ nil rated/ non GST inward supplies?
* You can enter details of outward exempt/ nil rated/ non GST inward supplies in table 3.1(c) and 3.1(e) Exempt, nil and Non GST outward supplies.
* How can I file nil GSTR-3B?
* You can file nil GSTR-3B by navigating to Services → Returns → Returns Dashboard. Select the Financial Year and Returns Filing Period and click the GSTR-3B tile. Select Yes for option A 'Do you want to file Nil return?'. You can file nil GSTR-3B by affixing the applicable signature.
* Can I reset GSTR-3B?
* No, you cannot reset GSTR-3B.
* I am facing problem while filing Form GSTR-3B, even though I have entered all details in it. After submitting the form, all values are automatically reflecting as "Zero" and the status of the Form is showing submitted. Why?
* This issue has occurred because you have tried to make payment, without saving the details added in Form

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Extension of date of filing return in GSTR-3B for the month of January, 2019 till 22.02.2019

Extension of date of filing return in GSTR-3B for the month of January, 2019 till 22.02.2019
03/2019–C.T./GST – 09/2019 – State Tax Dated:- 20-2-2019 West Bengal SGST
GST – States
West Bengal SGST
West Bengal SGST
GOVERNMENT OF WEST BENGAL
DIRECTORATE OF COMMERCIAL TAXES
14, BELIAGHATA ROAD, KOLKATA -700015
NOTIFICATION BY THE COMMISSIONER OF STATE TAX
Notification No. 03/2019-C.T./GST
Dated: 20/02/2019
No. 09/2019 – State Tax
In exercise of the powers conferred by sec

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M/s. Lawrance Livingston Versus The Commercial Tax Officer, Thuckalay, Kanyakumari District.

M/s. Lawrance Livingston Versus The Commercial Tax Officer, Thuckalay, Kanyakumari District.
VAT and Sales Tax
2019 (3) TMI 342 – MADRAS HIGH COURT – TMI
MADRAS HIGH COURT – HC
Dated:- 20-2-2019
W.P.(MD)No.11401 of 2016 And W.M.P.(MD)No.8724 of 2016
CST, VAT & Sales Tax
Mr. Justice Abdul Quddhose
For the Petitioner : Mr.S.Karunakar
For the Respondent : Mr.M.Jeyakumar Additional Government Pleader
ORDER
The Instant Writ Petition has been filed challenging the order dated 08.10.2015 passed by the respondent in Tin.No. 33906161570/2008-09.
2.It is the case of the petitioner that the respondent has passed the impugned order under Section 27 of the TNVAT Act, 2006 revising the earlier deemed assessment without considering the objections raised by the petitioner in accordance with law.
3.The learned counsel for the petitioner submitted that the purchases effected by the petitioner were duly reported to the respondent. According to the petitioner, eventhough copies

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15 as well as to the impugned order passed by the respondent. He submitted, that a detailed reply was given by the petitioner to the respondent stating that the proposal to revise the assessment under Section 27 of the TNVAT Act, 2006 is unjustified.
According to him, though several objections were raised in reply by the petitioner, the said objections were considered by the respondent in the impugned order.
6.He also drew the attention of this Court to a Division Bench Judgment of this Court, in the case of Assistant Commissioner (CT), Presently Thiruverkadu Assessment Circle, Kolathur, Chennai Vs. Infiniti Wholesale Limited reported in [2017] 99 VST 341 (Mad) which confirming the order of the learned Single Judge, dated 06.11.2014, wherein, the Division Bench has accepted the findings of the learned Single Judge and observed as follows:-
…To say the least, the show-cause notice issued by the assessing officer proposing to reverse the I.T.C. Availed of by the respondent/writ pet

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ch is prima facie against the principle of law…”
7.According to the learned counsel for the petitioner, as per the aforesaid decision, if the sales effected by the writ petitioner are not disclosed by his seller either in the form of return filed monthly or the tax collected from the writ petitioner is not made over to the department by such seller, the action lies against such a defaulting seller but not against the purchaser. According to the petitioner, in the instant case, the petitioner is only a purchaser and he has also given copies of invoices raised by the seller to the respondent and therefore, he is not at fault and if at all any action can be initiated by the respondent, it can be initiated only against the other end seller.
8.Per contra, the learned Additional Government Pleader would submit that there is an alternative efficacious appellate remedy available to the petitioner as against the impugned order under Section 51 of the TNVAT Act, 2006. According to the respon

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ither in the form of return filed monthly or the tax collected from the writ petitioner/dealer is not made over to the department by such seller, action lies only against such a defaulting seller but not against the purchaser. In the instant case also the error, is not attributable to the petitioner who is the purchaser who has claimed Input Tax Credit (I.T.C.) based upon the invoice generated by seller. The genuineness of the purchase is also not disputed by the respondent.
In similar set of facts, this Court in the judgment referred to supra, quashed the impugned assessment order holding that the purchaser is not liable for non reporting of the sale by the seller.
13.In the result, the impugned order, dated 08.10.2015, passed by the respondent in Tin.No.33906161570/2008-09, is hereby quashed and the matter is remanded back to the respondent for fresh consideration and the respondent is directed to afford sufficient opportunity to the petitioner including the right of personal heari

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In Re: M/s. Maharashtra Rajya Sahakari Dudh Mahasangh Maryadit Mumbai.

In Re: M/s. Maharashtra Rajya Sahakari Dudh Mahasangh Maryadit Mumbai.
GST
2019 (3) TMI 147 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – TMI
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 20-2-2019
GST-ARA-100/2018-19/B-21
GST
SHRI B. TIMOTHY, ADDL.  AND SHRI B. V. BORHADE, MEMBER
PROCEEDINGS
(Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 by the Maharashtra Rajya Sahakari Dudh Mahasangh Maryadit Mumbai.
The preliminary hearing in the matter was held on Sh. Ashish Salvi, Acco

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Seeks to extend the due date for furnishing FORM GSTR-3B for the month of January,2019 to 22/02/2019

Seeks to extend the due date for furnishing FORM GSTR-3B for the month of January,2019 to 22/02/2019
21/2019-GST – CT/GST-14/2017/198 Dated:- 20-2-2019 Assam SGST
GST – States
Assam SGST
Assam SGST
GOVERNMENT OF ASSAM
ORDERS BY THE GOVERNOR
OFFICE OF THE COMMISSIONER OF STATE TAX :: ASSAM :: KAR BHAWAN
NOTIFICATION No. 21/2019-GST
The 20th February, 2019
No.CT/GST-14/2017/198.-In exercise of the powers conferred by section 168 of the Assam Goods and Services Tax Act, 2017, (A

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M/s Arya Sudharma Tradex Pvt. Ltd. Versus State of Punjab And ors.

M/s Arya Sudharma Tradex Pvt. Ltd. Versus State of Punjab And ors.
GST
2019 (2) TMI 1602 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 20-2-2019
CWP-29501-2018
GST
MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL, JJ.
For The Petitioner : Mr. Saurabh Kapoor, Advocate with Mr. Rishabh Kapoor, Advocate
For The Respondent : Mr. Pankaj Gupta, Addl. AG, Punjab
ORDER
Ajay Kumar Mittal, J.
The present writ petition has been filed under Articles 226 and 227 of the Constitution of India for issuance of writ of Certiorari for quashing the order dated 24.07.2018 (Annexure P-8) passed by respondent No.3 claiming to be illegal, arbitrary and against the provisions of PGST Act, 2017.
2. Upon

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Sai Industries Versus Commissioner of CGST Palghar

Sai Industries Versus Commissioner of CGST Palghar
Central Excise
2019 (2) TMI 1481 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 20-2-2019
Appeal No. E/88036/2018 – A/85363/2019
Central Excise
Mr. S.K. Mohanty, Member (Judicial)
Ms. Rima Sunit, Representative for appellant
Shri A.S. Parabh, Asst. Commr (AR) for respondent
ORDER
Per: S.K. Mohanty
Brief facts of the case are that the appellant is engaged inter-alia, in the manufacture of paints and varnishes falling under Chapter 32 of the CETA, 1985. The appellant avails CENVAT Credit of Central Excise duty paid on inputs & capital goods and service tax on input services. During the course of EA-2000 audit, the Central Excise Officers observed that the assessee had availed ineligible CENVAT Credit on input services. On the basis of objection raised by audit wing, the appellant had reversed the amount of Rs. 1,84,517/- and vide letter dated 07.09.2016 had intimated the department that due to inadvertence

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ue to inadvertence, CENVAT Credit was wrongly taken by the appellant and on detection of such mistake by the audit wing, such irregularly availed CENVAT Credit was reversed and due intimation of such effect was filed before the department. Thus, she submits that there was no suppression of facts on the part of the appellant, in defrauding the Government revenue. In this context, she has referred to the letter dated 07.09.2016 addressed to the Jurisdictional Range Superintendent intimating the particulars of reversal of CENVAT Credit, with the request for non-initiation of any proceedings in terms of Section 11A (2) of the Act. Further, learned authorized representative of the appellant also submits that out of the total liability of Rs. 1,85,104/-, the appellant had reversed the amount of Rs. 1,84,517/- before the issuance of show-cause notice and the balance liability was discharged before passing of the adjudication order. Thus, it is prayed that the show-cause notice issued and the

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hich were made known to the department through external sources or otherwise. Since the adjudged demand was proposed for recovery based on records maintained by the appellant, the demand notice should have been issued under Section 11A(4) of the Act, without taking recourse to Section 11A of the Act. Admittedly, there is no element of suppression, mis-statement, fraud etc, on the part of the appellant in defrauding the Government revenue. Therefore, in my considered opinion, the department has wrongly invoked the provisions of Section 11A(4) of the Act, for issuance of show-cause notice and confirmation of the adjudged demand.
6. In view of above, I do not find any merits in the impugned order, so far as it uphold the adjudged penalty confirmed in the adjudication order. Accordingly, after setting aside the same, I allow the appeal in favour of the appellant with regard to imposition of penalty only.
7. The appeal is disposed of in the above terms.
(Order dictated in Court)
Case

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Ikram Hameed Versus State of Punjab and others

Ikram Hameed Versus State of Punjab and others
GST
2019 (2) TMI 1450 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 20-2-2019
Civil Writ Petition No. 4263 of 2019
GST
MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL, JJ.
For The Petitioner : Mr. Anil Kumar Garg, Advocate
ORDER
AJAY KUMAR MITTAL, J. (ORAL)
The prayer in this petition filed under Articles 226/227 of the Constitution of India is for issuance of a writ in the nature of mandamus directing respondent No.3 to release the vehicle of the petitioner bearing No. UP-11-AT-7039.
2. The services of the petitioner's vehicle for transporting the goods were availed by M/s Durga Logistic and the goods were being supplied by M/

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nnexure P-3) and direction was issued to deposit the entire amount of tax and penalty for release of the same. Thereafter, the petitioner moved a representation to respondent No.3, being registered owner of the vehicle in question, for its release after unloading the goods but no response has been received till date. Hence, the present writ petition.
3. Learned counsel for the petitioner submitted that for the relief claimed in the writ petition, the petitioner has moved a representation dated 25.01.2019 (Annexure P-2) to respondent No.3, but no action has so far been taken thereon.
4. After hearing learned counsel for the petitioner, perusing the present petition and without expressing any opinion on the merits of the case, we dispose of

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Broadridge Financial Solutions India Pvt. Ltd Versus CCT, Secunderabad GST

Broadridge Financial Solutions India Pvt. Ltd Versus CCT, Secunderabad GST
Service Tax
2019 (2) TMI 1252 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 20-2-2019
Appeals No. ST/30064/2018, ST/30065/2018, ST/30066/2018 – A/30222 – 30224/2019
Service Tax
Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL)

Shri Purushotham Reddy, CA for the Appellant.

Shri Arun Kumar, Jt. Commissioner /AR for the Respondent.

ORDER

Per: Mr. P.V. Subba Rao

1. All these appeals are on the same issue in respect of the same appellant and hence are being disposed of together.

2. The appellant herein exports software services. They avail the CENVAT Credit on inputs and input services under CCR 2004. After so availing, they have filed a refund claim under Rule 5 of CENVAT Credit Rules, 2004 in respect of inputs and input services which were used in export of services. These refund claims were allowed partly and rejected partly by the original authority. Aggrieved, the app

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ract service was excluded from Rule 2(l) of the CCR 2004; he asserts that the exclusion was related to construction of buildings and they had hired the services to paint the building which is not the same as construction of building and therefore they are entitled to the benefit of this credit as well as consequential refund. Insofar as the third issue of submission of documents is concerned, he admits that they were not able to substantiate their claims with proper documentation during the relevant period because they had misplaced their records but have since been able to find all the records and will be able to justify each of their claim with proper documentation as required.

4. Ld. DR reiterates the findings of the first appellate authority and explains that to the extent relief was admissible, they were given relief by the first appellate authority. Insofar as the credit which is sought to be denied on the ground that it is specifically excluded under Rule 2(l), it is his asse

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ppellant claimed refund of Rs. 2,33,33,967/-, of which the lower authority sanctioned an amount of Rs. 2,22,21,689/- and rejected an amount of Rs. 11,12,278/- on the ground of lack of nexus with the output service and non production of documents. The first appellate authority in the impugned order allowed their appeal except that to the extent of Rs. 10,15,812/- on the ground as listed in table-I of the Order-in-Appeal, as follows.

(b) Appeal No. ST/30065/2018: This appeal involved denial of credit of Rs. 70,881/- on the ground of lack of nexus with the output service and an amount of Rs. 7,05,215/- on the ground that the documents were not submitted or that they were excluded under Rule 2(l) as input services. The first appellate authority has allowed refund of Rs. 57,786/- which was rejected on the lack of nexus and denied refund of Rs. 13,095/- on the ground that the appellants have not insisted on the input credit. Of the credit of Rs. 7,05,215/- rejected by the lower authority,

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refund on this count. Insofar as the allegation that there is no nexus between the input service and the output service is concerned, once the credit of CENVAT is allowed, refund of the same cannot be denied. In fact when the CENVAT credit is wrongly availed, the same needs to be recovered from the appellant, by issuing of an appropriate show cause notice. As far as the cases where credit was taken when the specific service clearly excluded from Rule 2(l) of CCR 2004 is concerned, it is true that the credit first be denied. However, where the appellant is not entitled to the credit in the first place, it is inconceivable to refund the same. This pertains to such cases where the rule specifically excludes certain types of services from the scope of input service. As far as the cases where the invoices were not in the name of the appellant are concerned, what is relevant is whether the appellant had received those services in production of their output services, even if there is some er

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giving refund of the same under Rule 5 of CCR 2004.

(c) Wherever refund was denied because of the appellant's inability to produce the necessary documents, but which the appellant now claims to be able to produce, need to be examined and credit should be allowed to the extent that they are able to substantiate their claims.

7. All the appeals are remitted to the adjudicating authority to decide the refund claims as indicated herein above.

(Pronounced in open court on 20.02.2019)

=============
Document 1
TABLE-1

Sl.No.

Disputed input Amt.

service

involved

Rs.

Lower

authority's

findings

Appellant's contentions

Decision of Appellate forum.

1

2

3

4

1

Business Support

1081

Services/

Business Auxiliary

services-

(meal

2.

coupons)

Management,

maintenance

or

service

Services

utilized not

in or in

relation to

the output

services

rendered.

Services

utilized not

in

in o

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; hence

service tax paid on such

services is directly in nexus

with the services exported by

the appellants and is eligible.

The categorized services are

specifically used for providing

output services and not

covered in exclusion part of

the definition of input service';

the services are required for

the maintenance or upkeep of

the hardware equipment and

other infrastructure of the

appellant without which they

cannot perform their business

operations;

केन्द्रीय

32412

yeas

एक

जी एस टी

आयुक्त का

Commissioner of Central Excise &

का कार्यालय

GST

bad *

6

The service pertains to meal coupons

which are for personal consumption of

the employees of the company and

specifically excluded from the

definition of input s

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IA

TECHNOLOGY SERVICES [2016

(43) S.T.R. 438 (Tri. Hyd.)] (pest

control service and Photo copying

service) ;Denial of refund to this extent

is not legally sustainable and therefore

set aside with consequential relief and

the impugned order stands modified to

this extent.

OIA NO.: HYD-SVTAX-000-AP2-0192-17-18-ST DT 28.08.2017
Document 2
Total

87,016

3.

Works

Service

Contract 8,48,391

4

General

Insurance

1,27,118

Exclusion

clause of

rule 2(1) of

the CCR,

5.

Chartered

Accountant's

Service

9450

No Invoice

6

Installation

equipment

of 39,222

Total

11,12,278

Exclusion

clause of

rule 2(1) of

the CCR,

2004

2004

No proper

invoice

These services are used by

the appellants in the

renovation and modernization

of the premises and the

services are specifically

covered in the inclusive part of

the definition of the input

service as per Rule 2 (I) of th

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r

The denial of credit /refund was on

the ground of Exclusion clause under

Rule 2(1) of the CCR, 2004; the

appellants have not substantiated their

claim with documentary evidence;

the onus casts with the appellants to

prove their eligibility to avail the said

credit; thus the appellants have not

discharged their onus in term of Rule

9(6) of the CCR, 2004; Denial of

refund to this extent is legally

sustainable and accordingly is upheld.

The denial of credit /refund was on the

ground of Exclusion clause under Rule

2(1) of the CCR, 2004; the appellants

have not substantiated their claim with

documentary evidence; the document

dated 12.01.2016 submitted in respect

AGC Networks Ltd., indicates the

category of service as WCS in which

case the onus casts with the

appellants to prove their eligibility to

avail the said credit; thus the

appellants have not discharged their

onus in term so Rule 9(6) of the CCR,

2004; D

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Seeks to extend the due date for furnishing FORM GSTR-3B for the month of January, 2019 to 28.02.2019 for registered persons having principal place of business in the state of J and 22.02.2019 for the rest of the States

Seeks to extend the due date for furnishing FORM GSTR-3B for the month of January, 2019 to 28.02.2019 for registered persons having principal place of business in the state of J and 22.02.2019 for the rest of the States
09/2019 Dated:- 20-2-2019 Central GST (CGST)
GST
CGST
CGST
Government of India
Ministry of Finance
(Department of Revenue)
Central Board of Indirect Taxes and Customs
Notification No. 09/2019 – Central Tax
New Delhi, the 20th February, 2019
G.S.R. 136 (E).-In exercise of the powers conferred by section 168 of the Central Goods and Services Tax Act, 2017 (12 of 2017) read with sub-rule (5) of rule 61 of the Central Goods and Services Tax Rules, 2017 (hereafter in this notification referred to as the said

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Input Tax Credit Available Only Upon Receipt of Goods; Timing of Supply and Tax Invoice Crucial for Access.

Input Tax Credit Available Only Upon Receipt of Goods; Timing of Supply and Tax Invoice Crucial for Access.
Case-Laws
GST
Input tax credit – time of supply vis-å-vis raising the tax invoice

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Businesses Cannot Claim ITC on GST for Employee Transportation via Hired Buses or Cars, Says Tax Authority.

Businesses Cannot Claim ITC on GST for Employee Transportation via Hired Buses or Cars, Says Tax Authority.
Case-Laws
GST
Input tax credit – GST charged by the Contractor for hiring of buses

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Proprietorship Merger with Private Company Not Supply of Goods Under CGST/SGST; Transfer Unused Input Tax Credit Allowed.

Proprietorship Merger with Private Company Not Supply of Goods Under CGST/SGST; Transfer Unused Input Tax Credit Allowed.
Case-Laws
GST
Levy of CGST/SGST Act – merger of entities – merger of

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GST implication on goods stored in warehouse under excise regime

GST implication on goods stored in warehouse under excise regime
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 19-2-2019 Last Reply Date:- 23-2-2019 Goods and Services Tax – GST
Got 2 Replies
GST
XYZ(Manufacturer) had transferred the goods from factory to warehouse under a specific permission without payment of excise duty in Excise Regime and they are still lying there. 1) Now if they divert these goods to other customers, can they pay GST on sales price even if sale pric

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Value for charging GST

Value for charging GST
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 19-2-2019 Last Reply Date:- 23-2-2019 Goods and Services Tax – GST
Got 4 Replies
GST
XYZ (Client from Delhi) had entered in to a Contract with PQR (a chartered accountant from Mumbai) to carry out audit of their records. As per the contract, the amount payable by XYZ to PQR towards professional fees will be ₹ 100000/- + the amount to be paid towards hotel stay, air fare etc. which will be directly paid by XYZ to hotel and the airlines. PQR is required to pay GST on ₹ 100000/- only or ₹ 100000/- + amount paid by XYZ towards hotel stay, air fare etc. directly to the hotel and the airlines?
Reply By Rajagopalan Ranganathan:
The Reply

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able to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both;
(c) incidental expenses, including commission and packing, charged by the supplier to the recipient of a supply and any amount charged for anything done by the supplier in respect of the supply of goods or services or both at the time of, or before delivery of goods or supply of services;
(d) interest or late fee or penalty for delayed payment of any consideration for any supply; and
(e) subsidies directly linked to the price excluding subsidies provided by the Central Government and State Governments.
Explanation. – For the purposes of

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ation you need to verify the agreed arrangement between XYZ and PQR. Based on the agreement the reply may vary as follows :-
If XYZ has agreed to arrange all the facilities like travelling, accomodation etc. to PQR; then PQR needs to charge GST only on ₹ 1,00,000/-
If XYZ doesn't agreed for any such agreement but still he pays from his pocket then clause (b) of sub-section (2) of section 15 comes into effect which says – "any amount that the supplier is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both" In this case, PQR has to discharge GST on ₹ 1,00,000 + expenses incurred b

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