Goods and Services Tax

The Principal Commissioner of GST & Central Excise Versus M/s. Consolidated Construction Consortium Ltd., Chennai-4
Service Tax
2018 (12) TMI 934 – MADRAS HIGH COURT – TMI
MADRAS HIGH COURT – HC
Dated:- 27-11-2018
Civil Miscellaneous Appeal Nos.2745 to 2749 of 2018 And CMP.Nos.20855, 20857, 20860 & 20863 of 2018
Service Tax
Mr. Justice T.S. Sivagnanam And Mr.Justice N. Sathish Kumar
For the Appellant : Mr.T.Pramod Kumar Chopda
For the Respondent : Mr.N.Viswanathan and Mr.S.Baskaran
COMMON JUDGMENT
T.S.SIVAGNANAM, J
Mr.N.Viswanathan and Mr.S.Baskaran, learned counsel accept notice for the respondent. We have heard the learned counsel on either side and with consent, the above appeals are taken up for joint disposal.
2. These appeals are filed by the Revenue under Section 35G of the Central Excise Act, 1944 (hereinafter called the Act) challenging the common final order passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter called the Tr

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e assessee without verifying the claim of the assessee that they completed the services prior to 01.6.2007 and consequently, they are entitled for abatement.
5. We have perused the common order passed by the Tribunal and we find that the Tribunal took note of an earlier passed in the assessee's own case in Final Order No.40902/2016 dated 06.6.2016.
6. The learned Senior Standing Counsel appearing for the appellant has contended that the said final order passed by the Tribunal dated 06.6.2016 was an order remanding the matter with the specific direction to the Adjudicating Authority to examine the taxability of the services involved in the execution of the works contract and if such contracts were executed prior to 01.6.2007, the Adjudicating Authorities were directed to deal with such cases after taking note of the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise & Customs, Kerala Vs. Larsen & Toubro Limited [reported (2015) 39 STR 913].
7. It is a

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ed in the show cause notice dated 30.11.2010. It is further pointed out that in yet another assessment for the period from April 2011 to March 2012 and for the subsequent periods, show cause notices were issued and were adjudicated and Orders-in-Original dated 22.3.2018 were passed dropping the proposal in the relevant show cause notices by accepting the claim of the assessee with regard to abatement.
10. Though the learned counsel for the assessee is partially right in referring to the Orders-in-Original dated 27.1.2017 and 22.3.2018, still we cannot dispense with the verification process because the periods involved in these appeals are different from the periods involved in the other cases.
Therefore, to that extent, we are of the opinion that the Adjudicating Authority should verify the nature of transactions to ascertain as to whether the decision of the Hon'ble Supreme Court in the case of Larsen & Toubro Limited can be applied to the case of the assessee.
11. Accordingly, the

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M/s Integrated Tech 9 Labs Private Limited Versus State Of U.P. And 2 Others
GST
2018 (12) TMI 346 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 27-11-2018
Writ Tax No. – 1492 of 2018
GST
Pankaj Mithal And Pankaj Bhatia JJ.
For the Petitioner : Anand Kumar Pandey
For the Respondent : C.S.C.
ORDER
Heard learned counsel for the petitioner and Sri C.B. Tripathi, special counsel for the respondents.
The petitioner has preferred this writ petition for quashing the order dated 31.1.2018 passed by the Assistant Commissioner U.P. Goods and Service Tax, Mobile Squad, Fifth Unit, NOIDA respondent No. 3 and has prayed that he may not proceed any further in pursuance thereof.
The petitioner had previously fi

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writ petition. It is settled law that successive writ petitions for the same cause of action are not maintainable and all questions which could have been taken or ought to have taken and if not decided would be deemed to have been adjudicated or declined.
This apart the seized goods of the petitioner have already been released after deposit/ submission of security of the amount specified in the order under Section 129(3) in accordance with provision of Section 129(1) of the Act making the matter final as provided under Section 129(5) of the Act.
Accordingly we do not find any substance in this petition and dismiss this petition with liberty to petitioner to take the course to the appropriate remedy as may be available in law against the o

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M/s Hindon Machinery Tools Versus State Of U.P. And 3 Others
GST
2018 (11) TMI 1572 – ALLAHABAD HIGH COURT – 2019 (22) G. S. T. L. 4 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 27-11-2018
Writ Tax No. – 1494 of 2018
GST
Pankaj Mithal Versus Pankaj Bhatia JJ.
For the Petitioner : Ankur Agarwal,Suyash Agarwal
For the Respondent : C.S.C.,A.S.G.I.
ORDER
Heard Sri Suyash Agrawal and Sri C.B. Tripathi, learned counsel for the respondents.
The goods of the petitioner have been seized in transit on 5.11.2018 on the ground that on the E- Way Bill the number of tax invoice was incorrectly mentioned.
The submission Sri Suyash Agrawal, learned counsel for the petitioner is that the E- Way Bill only required mentioning of the do

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CARPENTERS CLASSICS INDIA PVT. LTD. Versus ASSISTANT STATE TAX OFFICER, STATE GOODS AND SERVICE TAX DEPARTMENT, MUTHANGA, COMMISSION OF STATE TAXES, THIRUVANNATHAPURAM AND STATE OF KERALA, THIRUVANANTHAPURAM
GST
2018 (11) TMI 1571 – KERALA HIGH COURT – [2019] 61 G S.T.R. 185 (Ker), 2019 (20) G. S. T. L. 714 (Ker.)
KERALA HIGH COURT – HC
Dated:- 27-11-2018
WP (C). No. 38306 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI. K. N. SREEKUMARAN SRI. N. SANTHOSHKUMAR AND SRI. P. J. ANILKUMAR
For The Respondent : DR. THUSHARA JAMES, GP
JUDGMENT
The petitioner, based at Bangalore, imports Kitchen cabinets, then, supplies and installs them in the houses of the customers, on their placing the orders. On 21.11.2018, the petitioner sent a consignment of three sets of kitchen cabinets to be installed in the houses of the customers in Thalassery and Kozhikode. The petitioner proposed to send them to Ernakulam and from there, it wanted to distribute to

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he GST Act, for the provisional release of the goods, the petitioner has filed this writ petition.
4. Sri K. N. Sreekumaran, the petitioner's counsel has advanced his arguments laced with emotion and a bit of rhetoric, too. He stressed that despite the change in tax regime, the authorities still refuse to change their mind set. According to him, the authority's literal approach is virtually stifling every industry and dampening the entrepreneurial spirit of the business people, as well.
5. Sri Sreekumaran also contends that even before the consignment could be dispatched from Bangalore, the petitioner generated the e-way bill online-and it is a verifiable fact. Though the driver carried the bill physically, as he is illiterate or semiliterate, he could not understand what the Assistant Tax Officer demanded. Perhaps panicked, he produced only the invoices and the local e-way bill, but not the e-way bill first generated for transporting the consignment from Bangalore to Ernakul

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the petitioner can put forward all its defences and may avoid any fine or penalty.
8. Heard Sri K. N. Sreekumaran, the learned counsel for the petitioner and Dr. Thusahara James, the learned Government Pleader for the respondents.
9. Indeed, I reckon the petitioner may have a genuine grievance. I also accept that it may not have tried to evade any tax. And the transaction, in that sense, could have been above board. That said, I must also note that the Assistant State Tax Officer followed only the law-especially, Rule 138A. And that rule reads thus:
138A. Documents and devices to be carried by a person- in-charge of a conveyance.-(1) The person in charge of a conveyance shall carry-
(a) the invoice or bill of supply or delivery challan, as the case may be; and (b) a copy of the e-way bill in physical form or the e-way bill number in electronic form or mapped to a Radio Frequency Identification Device embedded on to the conveyance in such manner as may be notified by the Commissi

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notification, require a class of transporters to obtain a unique Radio Frequency Identification Device and get the said device embedded on to the conveyance and map the e-way bill to the Radio Frequency Identification Device prior to the movement of goods.
(5) Notwithstanding anything contained in clause (b) of sub-rule (1), where circumstances so warrant, he Commissioner may, by notification, require the person-in-charge of the conveyance to carry the following documents instead of the eway bill.
(a) tax invoice or bill of supply or bill of entry; or
(b) a delivery challan, where the goods are transported for reasons other than by way of supply.”
10. As the learned Government Pleader has rightly contended, if online generation of e-way bill suffices, the Rule would not have insisted on the consignment carrying a copy of the bill or the number in electronic form. At any rate, the issue now concerns only the provisional release and the statute provides an efficacious mechanis

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Sweetshop Edibles and Restaurant Bundled as Service for Tax: Pure Food Items Considered Part of Restaurant Operations.
Case-Laws
GST
Supply of pure food items such as sweetmeats, namkeens, co

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Early Payment Discounts by Del Creder Agents Not Liable for GST, Says Tax Authority.
Case-Laws
GST
Supply or not – amount passed on to the customer by Del Creder Agent (DCA) on account of the

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Job Work rules
Query (Issue) Started By: – MJ Enterprises Dated:- 26-11-2018 Last Reply Date:- 28-11-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Section 2(68) of the CGST Act, 2017 defines job work as 'any treatment or process undertaken by a person on goods belonging to another registered person'. The one who does the said job would be termed as 'job worker'. The ownership of the goods does not transfer to the job worker but it rests with the principal. The job worker is required to carry out the process specified by the principal, on the goods.
MyQuery is : It is immaterial as to whether the job worker undertakes job work in his premises or in the premises of service receiver.? and which say with Rules and section Pl

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one it will take of shape erstwhile BAS category/supply of Manpower.
Reply By KASTURI SETHI:
The Reply:
All the above factors are hinting at separate premises. Even separate registration is required for doing job work, if turnover exceeds threshold exemption limit.
Reply By Venkat Enterprises:
The Reply:
He'll sir,
Thank you for your reply, but sir if one job work forming work of principles and for some work he entered into contract with other and who performing there job on the premises of job worker. As job worker can employee other job worker for the completion of principles job as there is no provision in section of job work. Can this contract is treated as job work (supply of labour) and if not what will the treatment?
Reply

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CONTRACT BOTTLING A SERVICE
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 26-11-2018

It is now affirmed that beer bearing a brand or owned by brand owners which are manufactured by Contract Bottling Units or tie-up units (generally known in trade as CBUs) is a supply of service which attracts Goods and Services Tax (GST).
A recap
United Breweries Ltd. sought an advance ruling from the Authority for Advance Rulings (AAR), Karnataka on the following two issues:
* Whether beer bearing brand/s owned by Brand Owner manufactured by Contract Brewing Units (CBUs) out of the raw materials, packaging materials and other input materials procured by it and accounted by it and thereafter selling such beer to various parties under its invoicing would be considered as supply of services and whether GST is payable by the CBUs on the profit earned out of such manufacturing activity? and
Whether GST is payable by the Brand owner on the "Surplus Profit" t

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amount retained by the CBUs as their profit.
It was ruled that since the applicant is engaged in supply of service and the service does not find mention at any other entry in the Classification table it has to be placed in the residual entry. The applicable rate of Central Tax as per serial number 35 of the Notification No. 11/2017-CT(Rate) dated 28.06.2017.
It was also ruled that GST is payable by the Brand owner on 'Surplus Profit' transferred by the CBU to brand owner out of the manufacturing activity and the supply of service to the CBUs is classified under Service Code (Tariff) 999799 and liable to pay GST at 18% (CGST-9%, SGST-9%) on the amount received from the CBUs. [As reported in IN RE : M/S UNITED BREWERIES LIMITED (2018) 7 TMI 835; vide ruling dated 28.06.2018].
Appellate Affirmation
Industry leader, not being satisfied, approached the doors of Appellate Authority of Advance Ruling (AAAR), Karnataka for a review.
It was submitted against the said ruling that AAR

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f service under Central /State Goods and Service Tax Act, 20l7, whereas there is only a monetary transaction between the Appellant and the CBU by way of transfer of apportioned profit from supply of beer, which is excluded from the ambit of charge under provision of the said Act.
The Authority erred in not appreciating the fact that the arrangement between the Appellant and the CBU was in the nature of consortium for earning profit from operation of beer manufacture and supply, necessitated by the regulations governing the supply of beer.
That the Authority erred in not following the settled positions as cited in the relied upon decisions above wherein it was held that the activity of permitting the CBU to manufacture alcoholic beverages on behalf of the principal does not amount to rendering of taxable service under the category of IPR service.
The AAAR interpreted the scope of 'supply' as per section 7 and charging section 9 of the GST law. While section 9 clearly excludes the s

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ceived for a 'mixed supply'.
While in overall terms, at times the service supplied assumes the character of permitting the use of intellectual property rights, or of being a franchise service, at other times it takes on the colour and character of being secondment of personnel. The varied nature in the character of the services supplied by the Appellant, makes it difficult to determine the pre-dominancy in terms of characterisation since the consideration for some elements of the supply is being received in terms of a variable amount.
Since, the activity which the Appellant engages in with respect to contract does not essentially change, hut the volume of consideration can change in each tax period, it does pose a challenge in terms of giving one particular nomenclature to the activities of the Appellant that would remain unchanged over all tax periods.
There is a standard rate of 18% which applies across the whole range of services that are taxed under GST. However, this fact of ha

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ms of Section 9 of the CGST Act,
* The service supplied by the Appellant is classified under the Service Code 999799 as 'other services nowhere else classified'.
* The amounts received by the Appellant from the contracting units under the Agreement, in the nature of brand fee and reimbursement of expenses, is termed as a consideration for the supply of service and is chargeable to GST at the applicable rate of 18%.
End Note
To conclude, it can be said that it is now settled from the advance ruling perspective that activities of contract bottling of beer shall be eligible to levy of GST @ 18%. However, an assessee may still knock the doors of High Court or Supreme Court by way of a writ petition.
Further, since we have now an AAAR affirmed advance ruling which is atleast binding on the applicant and its jurisdictional tax officer, it indicates that the same analogy would apply to other bottling activities like alcoholic liquor (other than beer), pharma, FMCG and other industries

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Area wise working / checklist for annual return and GST audit
By: – Sandeep Rawat
Goods and Services Tax – GST
Dated:- 26-11-2018

Area wise working / checklist for annual return and GST audit
As this is first year of annual return and GST audit, registered person as well as professional are also in dilemma situation for fulfilling the compliance under GST law so that the requite information which is required in filing the annual return and GST audit could be prepared in time and order.
In this regards I have prepared areas wise working plan/checklist which prescribed the requisite documents and actions for the annual return and GST audit.
GST REGISTRATION CERTIFICATE
* Have you checked whether the Supplier has applied for New Registration or has he Migrated?
* Have you checked the registration details of: Registered Person, Business Verticals, Factory / Warehouse / Godown, ISD and in respect of other place of business?
* Whether GSTIN is displayed in Name Board

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* Whether refund voucher is issued for refund of advance received?
* Whether Credit note/ Debit notes are issued as per the provisions of the GST law as per section 34?
* Whether Credit note/Debit Note is issued before 30th September of the Subsequent Financial Year?
* Have you checked correctness of Tax Invoice /Bill of supply with the appropriate Supply Register/ GSTR 1?
* Whether the Tax Invoice/Bill of supply is cancelled for genuine reasons, if any like Name of party /details where applicable?
* Whether any Invoice cum Bill of supply is raised for specific transactions?
* Whether the transport documents are maintained and verified?
* Whether any copies of Credit Note and Debit Note are raised otherwise than as specified in section 34?
* Whether the Delivery challan/E- way bill Register is maintained?
* Whether Series of documents issued as per clause 13 of GSTR 1 matches with Books of Account from July 2017 to March 2018?
GOODS SENT TO JOB WORK
* Whether the

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xport and Merchant Export etc. are appropriately classified under GST law?
* Whether any transactions which falls within the scope of supply has not been identified by the registered person
* Have you checked Interstate supply as per section 7(5) of IGST Act 2017?
* Have you checked Intra State supply as per section 8 of IGST Act 2017?
* Whether the Zero-rated supply is verified as per the provisions of the law?
* Whether the supplies made by registered person falls within the meaning of Composite /non- composite/ Mixed supply? If yes, whether the same has been offered to tax as per section 8 of CGST Act?
* Have you checked for sale of capital goods and the GST charged and as to whether they are included in the returns filed ?
* Whether Interstate supply is regarded as Intra state supply and vice versa?
* Whether abatement provisions, if any, are applicable (like one third for land) is compiled with?
* Whether the transactions are correctly classified as supply of goo

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cked the inward supplies records with Monthly return and ascertained reasons for variations, if any?
* Have you made a list of restricted input tax credit items as per the GST law?
* Have you tallied monthly return with Input tax credit receivable, if any?
* Have you reconciled tax collections with payments and transfer of the balance to appropriate accounts?
* Have you checked adjustment of tax set-off by relevant journal entries?
* Have you checked that input tax credit on capital goods is correctly availed?
* Whether Input Tax credit is reversed for the sale of capital goods as specified in GST law?
* Any Reversal of input tax credit for the goods sent for job work?
* Whether the recipient of supply has effected payment for such inward supply within 180 days from the date of Invoice?
* Whether input tax credit availed is debited to recoverable account for availing re-credit?
* Whether the supplier has availed both benefits of depreciation and input tax credit?

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STRIBUTOR
* Whether separate registration is taken as per Provisions of law?
* Whether any tax is payable under reverse charge and obtained separate Registration?
* Whether eligible and ineligible input tax credit is apportioned as per the GST law?
* Is there is any reversal of Input tax credit and credit note is issued?
* Whether the calculation of Turnover for allocating the input tax credit is as per the law?
* Whether the ISD invoice containing the relevant particulars is issued correctly as per the provisions of the law?
CLASSIFICATIONS
* Whether the classification of goods/ services is in conformity with the Schedules / Notifications?
* Whether the HSN classification is verified to confirm the rate of tax on goods and services?
* Whether the HSN details for inward and outward supply are verified?
* Whether the SAC code/HSN code is as per the law?
* Whether the HSN /SAC classification is same as followed in erstwhile law if applicable?
* Is there any speci

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ax payer charged wrongly IGST in place of CGST/SGST or vice versa?
* Have you followed the provisions of Rule 35 of the CGST Rules in respect of collection of taxes?
* Is there any excess collection of taxes?
REVERSE CHARGE
* Whether reverse charge tax is paid under 9(4) of the CGST Act 2017 up to 12th October 2017?
* Whether Reverse charge tax on notified supplies under section 9(3) and 9(5) of the CGST Act 2017 is duly paid?
* Whether reverse charge tax has been paid wrongly in lieu of CGST/SGST as IGST or vice versa?
* Whether corresponding input tax credit is availed on Reverse charge?
* Whether conditions of paying tax for RCM are fulfilled?
VALUE OF SUPPLY
* Whether all the inclusions to the value of supply as per section 15 of the Act have been verified?
* Whether discount offered to customers (pre/ post supply) is not included in the value of supply after fulfilment of conditions under section 15(3) of the Act?
* Whether valuation rules have been applied a

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export of goods are fulfilled?
* Whether the conditions are fulfilled for export of services?
* Whether there are any imports of goods/import of services?
* Whether the Zero-rated supply is with or without payment of taxes?
* Whether the conditions for location of supplier are fulfilled?
* Whether the supplier is intermediary under the GST Act and the conditions are fulfilled?
* Whether the supplier has declared sale in course of Imports, Non- territory supply, High Sea supply in the Return correctly?
* Whether the conditions for location of recipient are fulfilled?
* Whether the wrong payment of tax i.e. IGST in lieu of SGST/CGST is claimed as refund?
* Whether the wrong payment of tax i.e. SGST/CGST in lieu of IGST is claimed as refund?
* Whether the Supply by SEZ to DTA is treated as inter-State subject to fulfilment of conditions?
REFUND
* Whether the Supplier is eligible for Refund as per section 54?
* Whether the supplier has applied for Refund and wheth

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in inward supply records and GST return?
* Have you checked that inward supplies are classified between intra-State, inter-states, Imports etc.?
* Have you checked that purchases of capital goods are booked as fixed assets and the GST is paid thereon? Have you checked Assets which have depreciated 100%?
* Have you checked sale / deletion of fixed assets?
MAINTENANCE OF BOOKS OF ACCOUNTS
* Whether books of accounts are maintained as specified in section 35 r/w Rules 56, 57 and 58 of the GST Law?
* Whether Books of accounts are maintained electronically manually?
* Whether books of accounts are maintained at each place of business?
* Whether books of accounts are maintained manually or electronically? If the same is maintained electronically, whether the software used complies with the requirements of the law?
* Whether the copies of Agreements/Agent agreement and other supporting documents are obtained?
* Whether the copies of Audited Financial Statements for each reg

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ernal/ Statutory auditors or any other such reports?
* Have you checked for any adverse points in reports in the previous year?
* Have you checked that assessment orders /APPEAL orders/notices issued by the department if any?
* Is there any judicial pronouncement that could be applicable to the dealer?
* Have you discussed any adverse issues arising out of the audit with the client?
* Have you obtained the letter of appointment / issued the letter of acceptance of audit?
* Have you come across any unusual transactions?
* Have you checked miscellaneous receipts / other income?
* Have you come across any huge or unusual inward or outward supply transactions / tax credits /tax payments etc.?
* Have you noticed any comments on internal controls, periodicity of updation of accounts / records etc.?
* Whether the registered person has availed the facility of digital signature?
* Whether the Auditor has used appropriate Audit tools?
(Mr. Sandeep Rawat has vast experience

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Processing of Applications for Cancellation of Registration submitted in FORM GST REG-16
PUBLIC NOTICE No. 05/2018-Customs Dated:- 26-11-2018 Trade Notice
Customs
OFFICE OF THE COMMISSIONER OF GOODS & SERVICE TAX (GST)
N-5, TOWN CENTRE, CIDCO, AURANGABAD – 431003
F. No. VGN (30) 06/T.N/18-19
Date: 26.11.2018
PUBLIC NOTICE No. 05/2018-Customs
Sub :- reg.
Attention is invited to the Circular No. 69 / 43 / 2018-GST dated 26-10-2018 issued by the Commissioner (CST), Government of In

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In Re: M/s. Chinta Polu Philip
GST
2018 (12) TMI 1158 – AUTHORITY FOR ADVANCE RULINGS, CHHATTISGARH – TMI
AUTHORITY FOR ADVANCE RULINGS, CHHATTISGARH – AAR
Dated:- 26-11-2018
STC/AAR/07/2018
GST
SHRI S.K. BUXY AND SHRI RAJESH KUMAR SINGH, MEMBER

Sub:- Chhattisgarh GST Act, 2017 – Advance Ruling U/s 98 – Regarding the GST rates applicable in case of Dietary Services.

Read:-Application dated 13.09.2018 from M/s. CHINTA POLU PHILIP, SECTOR-1, KHAMTARAI, BEHIND TAGOR NAGAR, RAIPUR (C.G.)

PROCEEDINGS

[U/s 98 of the Chhattisgarh Goods & Services Tax Act, 2017 (herein- after referred to as CGGST Act, 2017)]

No. STC/AAR/07/2018

Raipur, Dated 26.11.2018

The applicant M/s. CHINTA POLU PHILIP, SECTOR-1, KHAMT

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Anil Goel And Associates Versus Union of India & Ors.
GST
2018 (12) TMI 345 – DELHI HIGH COURT – 2019 (20) G. S. T. L. J143 (Del.)
DELHI HIGH COURT – HC
Dated:- 26-11-2018
W. P. (C) 9019/2017 & CM APPL. No. 36921/2017
GST
MR. SANJIV KHANNA AND MR. ANUP JAIRAM BHAMBHANI JJ.
Petitioner Through: Mr. Puneet Agrawal with Mr. Sai Prasanna, Advs.  
Respondents Through: Mr. Amit Bansal with Ms. Seema Dolo, Adv. for R3/GST.
Mr. Anurag Ahluwalia, CGSC for UOI.
Mr. Satyakam, ASC with Mr. Mohit Kumar, Adv. for R-2/GNCTD  
O R D E R
M/s. Anil Goel & Associates, a firm of Chartered Accountants has filed the present writ petition praying for multiple reliefs; but during the course of arguments, learned counsel for the

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Commissioner may, by notification specify that return may be filed under GSTR-3B. In other words, wherever the Commissioner has issued notification in terms of sub-rule 5 of Rule 61, the assessee would be required to file return in Form GSTR-3B and not in Form GSTR-3. Learned counsel for the petitioner is substantially satisfied as the statement made clarifies that Form GSTR-3B and not GSTR-3 is to be filed in case covered by Rule 61(5) of the Rules.
Counsel for the respondents has stated that notifications have been issued by the Commissioner, as per which the assessee are required to file returns in Form GSTR-3B till 31st March, 2019. Till then, returns are not required to be filled under Form GSTR-3.
Petitioner however submits that vid

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THE MADHYA PRADESH GOODS AND SERVICES TAX (AMENDMENT) ORDINANCE, 2018
19721-309-21/2018 Dated:- 26-11-2018 Madhya Pradesh SGST
GST – States
Madhya Pradesh SGST
Madhya Pradesh SGST
MADHYA PRADESH ORDINANCE
NO.11 OF 2018
THE MADHYA PRADESH GOODS AND SERVICES TAX (AMENDMENT) ORDINANCE, 2018
First published in the “Madhya Pradesh Gazette (Extra-ordinary)”. dated the November, 2018.
Promulgated by the Governor of Madhya Pradesh in the sixty-ninth year of the Republic of India,
An Ordinance further to amend the Madhya Pradesh Goods and Services Tax Act, 2017 (No. 19 of2017).
Whereas the State Legislature is not in session and the Governor of Madhya Pradesh is satisfied that circumstances exist which render it necessary for him to take immediate action;
Now, therefore, in exercise of the powers conferred by clause (1) of article 213 of the Constitution of India, the Governor of Madhya Pradesh is pleased to promulgate the following Ordinance:-
Short title and commencemen

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al”, the words, bracket and figures “the Appellate Authority, the Appellate Tribunal and the Authority referred to in sub-section (2) of section 171” shall be substituted;
(b) in clause (16) for the words “Central Board of Excise and Customs”, the words “Central Board of Indirect Taxes and Customs” shall be substituted;
(c) in clause (17), for sub-clause (h), the following sub-clause shall be substituted, namely:-
“(h) activities of a race club including by way of totalisator or a license to book maker or activities of a licensed book maker in such club; and”;
(d) clause (18) shall be omitted;
(e) with effect from the 1st day of July, 2017 clause (21) shall be deemed to have been omitted;
(f) with effect from the 1st day of July, 2017 clauses (22) to (111) shall be deemed to have been renumbered as clauses (21) to (110) respectively;
(g) in clause (35) as so renumbered, for the word, bracket and letter “clause (c)”, the word, bracket and letter “clause (b)” shall be substituted

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effect from the 1st day of July, 2017,-
(a) in sub-section (1), –
(i) in clause (b), after the words “or furtherance of business;”, the word “and” shall be inserted and shall always be deemed to have been inserted;
(ii) in clause (c), after the words “a consideration”, the word “and shall be omitted and shall always be deemed to have been omitted;
(iii) clause (d) shall be omitted and shall always be deemed to have been omitted;
(b) after sub-section (1), the following sub-section shall be inserted and shall always be deemed to have been inserted, namely:-
“(1A) Where certain activities or transactions constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II.”;
(c) in sub-section (3), for the words, brackets and figures “sub-sections (1) and (2)”, the words, brackets, figures and letter “sub-sections (1), (IA) and (2)” shall be substituted.
Amendment of secti

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existing proviso, for the words “one crore rupees”, the words “one crore and fifty lakh rupees” shall be substituted;
(iii) after the existing proviso, the following proviso shall be inserted, namely:-
“Provided further that a person who opts to pay tax under clause (a) or clause (b) or clause (c) may supply services (other than those referred to in clause (b) of paragraph 6 of Schedule II), of value not exceeding ten per cent of turnover in a State in the preceding financial year or five lakh rupees, whichever is higher.”;
(b) in sub-section (2), for clause (a), the following clause shall be substituted, namely:-
“(a) save as provided in sub-section (1), he is not engaged in the supply of services;”.
Amendment of section 12 8. In section 12 of the principal Act, in sub-section (2), in clause (a), the words, bracket and figure “sub-section (1) of' shall be omitted.
Amendment of section 13 9. In section 13 of the principal Act, in sub-section (2), the words, brackets and figur

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of the principal Act,-
(a) in sub-section (3), the following Explanation shall be inserted, namely:-
“Explanation.-For the purposes of this sub-section, the expression “value of exempt supply” shall not include the value of activities or transactions specified in Schedule III, except those specified in paragraph 5 of the said Schedule.';
(b) in sub-section (5), for clauses (a) and (b), the following clauses shall be substituted, namely:-
“(a) motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely:-
(A) further supply of such motor vehicles; or
(B) transportation of passengers; or
(C) imparting training on driving such motor vehicles;
(aa)vessels and aircraft except when they are used-
(i) for making the following taxable supplies, namely:-
(A) further supply of such vessels or aircraft;
or
(B) transportation o

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motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) except when used for the purposes specified therein, life insurance and health insurance:
Provided that the input tax credit in respect of such goods or services or both shall be available where an inward supply of such goods or services or both is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as an element of a taxable composite or mixed supply;
(ii) membership of a club, health and fitness centre; and
(iii) travel benefits extended to employees on vacation such as leave or home travel concession:
Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force.”.
Amendment of section 20. 12. In section 20 of the principal Act, in the Explanation, in clause (c), for the words and

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. In section 24 of the principal Act, in clause (x), after the words “commerce operator”, the words and figure “who is required to collect tax at source under section 52” shall be inserted.
Amendment of section 25. 15. In section 25 of the principal Act,-
(a) in sub-section (1), after the existing proviso and before the Explanation, the following proviso shall be inserted, namely:-
“Provided further that a person having a unit, as defined in the Special Economic Zones Act, 2005, in a Special Economic Zone or being a Special Economic Zone developer shall have to apply for a separate registration, as distinct from his place of business located outside the Special Economic Zone in the same State.”;
(b) in sub-section (2), for the existing proviso, the following proviso shall be substituted, namely:-
“Provided that a person having multiple places of business in a State may be granted a separate registration for each such place of business, subject to such conditions as may be prescrib

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tax invoices have” shall be substituted;
(ii) for the words “a credit note”, the words “one or more credit notes for supplies made in a financial year” shall be substituted;
(b) in sub-section (3),-
(i) for the words “Where a tax invoice has”, the words “Where one or more tax invoices have” shall be substituted;
(ii) for the words “a debit note”, the words “one or more debit notes for supplies made in a financial year” shall be substituted.
Amendment of section 35. 18 In section 35 of the principal Act, in sub-section (5), the following proviso shall be inserted, namely:-
“Provided that nothing contained in this sub-section shall apply to any department of the Central Government or a State Government or a local authority, whose books of account are subject to audit by the Comptroller and Auditor-General of India or an auditor appointed for auditing the accounts of local authorities under any law for the time being in force.”.
Amendment of section 39. 19. In section 39 of the pri

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such conditions and safeguards as may be specified therein.”;
(c) in sub-section (9),-
(i) for the words “in the return to be furnished for the month or quarter during which such omission or incorrect particulars are noticed”, the words “in such form and manner as may be prescribed” shall be substituted;
(ii) for the proviso, the following proviso shall be substituted, namely:-
“Provided that no such rectification of any omission or incorrect particulars shall be allowed after the due date for furnishing of return for the month of September or second quarter following the end of the financial year to which such details pertain, or the actual date of furnishing of relevant annual return, whichever is earlier.”.
Insertion of section 43A.
20. After section 43 of the principal Act, the following section shall be inserted, namely:-
“43A. Procedure for furnishing return and availing input tax credit.
(1) Notwithstanding anything contained in sub-section (2) of section 16, section

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(5) The amount of tax specified in the outward supplies for which the details have been furnished by the supplier under sub-section (3) shall be deemed to be the tax payable by him under the provisions of the Act.
(6) The supplier and the recipient of supply shall be jointly and severally liable to pay tax or to pay the input tax credit availed, as the case may be, in relation to outward supplies for which the details have been furnished under sub-section (3) or sub-section (4) but return thereof has not been furnished.
(7) For the purposes of sub-section (6), the recovery shall be made in such manner as may be prescribed and such procedure may provide for non-recovery of an amount of tax or input tax credit wrongly availed not exceeding one thousand rupees.
(8) The procedure, safeguards and threshold of the tax amount in relation to outward supplies, the details of which can be furnished under sub-section (3) by a registered person,-
(i) within six months of taking registration

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, the following proviso shall be inserted, namely:-
“Provided that the input tax credit on account of Union territory tax shall be utilised towards payment of integrated tax only where the balance of the input tax credit on account of central tax is not available for payment of integrated tax;”.
Insertion of sections 49A and 49B. 23. After section 49 of the principal Act, the following sections shall be inserted, namely:-
“49A. Utilisation of input tax credit subject to certain conditions.
Notwithstanding anything contained in section 49, the input tax credit on account of State tax shall be utilised towards payment of integrated tax or State tax, as the case may be, only after the input tax credit available on account of integrated tax has first been utilised fully towards such payment.
49B. Order of utilisation of input tax credit.
Notwithstanding anything contained in this Chapter and subject to the provisions of clause (e) and clause (f) of sub-section (5) of section 49, th

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refund of unutilised input tax credit under clause (ii) of the first proviso to sub-section (3), the due date for furnishing of return under section 39 for the period in which such claim for refund arises;”.
Amendment of section 67. With effect from the day of July, 2017, in sub-section (2) of section 67 of the principal Act, for the opening paragraph, the following paragraph shall be substituted, namely:-
“Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under sub-section (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorise in writing any other officer of State tax to search and seize or may himself search and seize such goods, documents or books or things:”.
Amendment of section 79. 27. In section 79 of the principal Act, afte

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, subject to a maximum of fifty crore rupees.”.
Amendment of section 129. 30. In section 129 of the principal Act,-
(a) with effect from first day of July, 2017, in sub-section (1), for clause (b), the following clause shall be substituted, namely:-
“(b) on payment of the applicable tax and penalty equal to the fifty per cent. of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent of the value of goods or twenty five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty;”
(b) in sub-section (6), for the words “seven days”, the words “fourteen days” shall be substituted.
Amendment of section 140. 31. With effect from the 1st day of July, 2017, in section 140 of the principal Act,-
(a) in sub-section (4), for the opening paragraph, the following paragraph shall be substituted, namely:-
“A registered person, who was engaged in

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ime of sale thereof, not being earlier than six months prior to the appointed day, are returned to any place of business on or after the appointed day, the registered person shall be eligible for refund of the tax paid under the existing law where such goods are returned by a person, other than a registered person, to the said place of business within a period of six months from the appointed day and such goods are identifiable to the satisfaction of the proper officer:”;
(b) in sub-section (7), for clause (a), the following clause shall be substituted, namely:-
“(a) Every proceeding of appeal, revision, review or reference relating to any output tax liability initiated whether before, on or after the appointed day under the existing law, shall be disposed of in accordance with the provisions of the existing law, and if any amount becomes recoverable as a result of such appeal, revision, review or reference, the same shall, unless recovered under the existing law, be recovered as an

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, namely:-
“166. Laying of rules, regulations and notifications.
Every rule made by the Government, every regulation made by the Government and every notification issued by the Government under this Act, shall be laid, as soon as may be after it is made or issued, before the State Legislature, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, the State Legislature agrees in making any modification in the rule or regulation or in the notification, as the case may be, or the State Legislature agrees that the rule or regulation or the notification should not be made, the rule or regulation or notification, as the case may be, shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without pr

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ct, 1957 (No. 3 of 1958) with regard to the effect of repeal.”.
Amendment of Schedule I. 37. In Schedule I of the principal Act, in paragraph 4, for the words “taxable person”, the word “person” shall be substituted.
Amendment of Schedule II. 38. In Schedule II of the principal Act, in the heading, after the word “ACTIVITIES”, the words “OR TRANSACTIONS” shall be inserted and shall always be deemed to have been inserted with effect from the 1st day of July, 2017.
Amendment of Schedule III. In Schedule III of the principal Act, –
(a) after paragraph 6, the following paragraphs shall be inserted, namely:-
“7. Supply of goods from a place outside India to another place outside India without such goods entering into India.
8. (a) Supply of warehoused goods to any person before clearance for home consumption;
(b) Supply of goods by the consignee to any other person, by endorsement of documents of title to the goods, after the goods have been dispatched from the port of origin located

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Sunaiba Industries Versus State Of U.P. And 2 Others
GST
2018 (12) TMI 295 – ALLAHABAD HIGH COURT – 2019 (22) G. S. T. L. 180 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 26-11-2018
Writ Tax No. – 1480 of 2018
GST
Pankaj Mithal And Pankaj Bhatia JJ.
For the Petitioner : Shubham Agrawal
For the Respondent : C.S.C.
ORDER
Heard Sri Subham Agrawal, learned counsel for the petitioner.
The petitioner is the selling dealer of the goods. The goods were being transported from Delhi to Kanpur in 30 builties. Only on account of improper invoice in respect of some of the builites, the goods have been seized and directed to be released on furnishing security and indemnity bond as provided under Section 129 (1) (b) of the U.P. Good

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In Re: The Association of Inner Wheel Clubs in India
GST
2018 (11) TMI 1574 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (20) G. S. T. L. 119 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 26-11-2018
Case No. 24 of 2018 Order No. 23/WBAAR/2018-19
GST
VISHWANATH AND PARTHA SARATHI DEY MEMBER
Present for the Applicant Vinay Kumar Shraff, Advocate
1. The Applicant, stated to be affiliated to International Inner Wheel and the administrative body for all Inner Wheel Clubs spread in 27 Inner Wheel Districts all over India (two of which fall within West Bengal), seeks a Ruling on whether the activities that are undertaken by them maybe termed as “business” and “supply of services” as defined under the WBGST/CGST Act, 2017 (hereinafter referred to as “the GST Act”).
Under Section 97 of the GST Act, Advance Ruling cannot be pronounced on the determination and definition of “business”.
The question regarding whether or not the activities

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live better lives.
Members of the Clubs which fall under the Applicant organize events which combine personal service, fundraising, fellowship and fun, united by friendship and to serve the local community. They provide financial and other practical support to the financially disadvantaged classes, including people suffering from natural disaster or in war-torn regions. The club accumulates funds through subscriptions, sponsorship fees, the sale of souvenirs etc.
The Application also states that if the Association dissolves the liabilities and assets will be distributed to other organisations having like objectives.
The Clubs which fall under the Applicant do not provide any facility or benefit to any of its members. The subscriptions/membership fees collected from the members are utilised entirely for funding charitable work.
The Applicant submits that although funds are collected through sponsorship fees, advertisements, sale of souvenirs etc, such activities do not fall within t

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herance of business;
(b) import of services for a consideration whether or not in the course or furtherance of business;
(c) the activities specified in Schedule I, made or agreed to be made without a consideration; and
(d) the activities to be treated as a supply of goods or supply of services as referred to in Schedule II.”
4. The Application, as well as the literature subsequently submitted by the Applicant regarding the Constitution, workings and objectives of the International Inner Wheel and the Bye-Laws of the Association of Inner Wheel Clubs in India, the Applicant, does not provide for any “import of services”, nor for any of the supplies of goods or services, with or without consideration, as enumerated in Schedules I and II.
The activity of the Applicant, therefore, is to be considered in the light of Section 7(1)(a) of the GST Act.
5. Upon careful perusal of the documents as mentioned above, it is seen that there are well laid down objectives of the Applicant, as well

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akes a Capitation Fee increase necessary, the Governing Body is authorised to increase the Capitation Fee with the same percentage as the increase in the cost of living index in the UK, but not exceeding 5%.
The Applicant, as a National Governing body of, and, being affiliated to the International body, is bound by these laws. And the Applicant's bye-laws also mention the annual subscription fees payable by each member. Voting rights are withdrawn from Clubs in arrears with dues.
Similar requirements regarding Membership fees and/or subscriptions and voting powers are in the District Committee Rules as well as in the Club Rules.
As per the information available in the public domain, members of Inner Wheel Clubs can access various programmes including those in the UN, a privilege not available to non-members.
6. It is thus, clear, from the above reads that the Inner Wheel Clubs have specific objectives and members are granted various facilities and/or benefits, enabling them to atte

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eel Clubs.
It appears that the fund collected is mainly spent on organising meetings and conventions like Triennial etc. Clearly, such meetings and gatherings provide facilities and benefits to the members in the form of a platform for social mixing, networking, promotion of friendship etc.
8. The term “business” under the GST Act includes, under Section 2(17), subclause (e) “provision by a club, association, society, or any other body (for a subscription or any other consideration) of the facilities or benefits to its members. It is, thus, clear that the Applicant is doing “business” as defined under section 2(17)(e) of the GST Act.
The subscription and membership fee is to be considered as consideration for the supply of such services, which are classifiable under SAC Heading 99959 under the category 'Services furnished by other membership organization'.
9. The Application also states that the Inner Wheel Clubs falling under the Applicant take part in a wide range of work for cha

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of Section 7(1) of the GST Act.
Such services are classifiable under SAC Heading 99836 under the category 'Advertising services'.
Sale of souvenirs is to be treated as a supply of goods.
11. The decision of the apex court in Sai Publication Fund (supra) is clearly not applicable in the present context, as the main activity is to be treated as a business.
In view of the foregoing, we rule as below
RULING
The Applicant's activities involve supply of services classifiable under SAC Heading 99959 against consideration received in the form of subscription and membership fees.
Services classifiable under SAC Heading 99836 are also supplied.
Sale of souvenirs is to be considered as a supply of goods.
The nature of supply for miscellaneous income as recorded in the Financial Accounts is to be determined by the nature of the supply.
This Advance Ruling is valid subject to the provisions under Section 103(2) until and unless declared void under Section 104(1) of the GST Act.
Case

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In Re: Skipper Ltd.
GST
2018 (11) TMI 1573 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (20) G. S. T. L. 110 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 26-11-2018
Case No. 25 of 2018 Order No. 22/WBAAR/2018-19
GST
VISHWANATH AND PARTHASARATHI DEY MEMBER
Applicant's representative heard Sonam Bhandari, FCA
1. The Applicant, stated to be engaged in the manufacturing, installation and other ancillary services of integrated transmission towers has entered into a Joint Venture (hereinafter referred to as “JV”) with M/s C & C Constructions Ltd, Gurgaon, and, as JV has executed a contract with M/s Power Grid Corporation of India (hereinafter referred to as “PGCIL”) for construction and commissioning of 400 kV D/C (Quad) Jigmeling-Alipurduar line (Indian portion – NER) under transmission system for transfer of power from Mangdechhu Hydroelectric Project in Bhutan (hereinafter the Tower Package), has sought a Ruling, in Amendment to Ap

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ely for ex-factory supply of materials, but for the composite supply, namely works contract service for construction, erection and commissioning of the Tower Package, of which freight and transportation is merely a component and not a separate and independent identity, and GST is to be paid at 18% on the entire value of the composite supply, including supply of materials, freight and transportation, erection, commissioning etc.
The Applicant states that while the modus operandi of entering into a contract with PGCIL is similar to that adopted by EMC Ltd, insofar as the contract with PGCIL has been split up into two separate parts – one for ex-factory supply of materials (hereinafter referred to as “the First Contract”), and the other for supply of allied services like erection of towers, testing and commissioning of transmission lines etc. (hereinafter referred to as “the Second Contract”), which also includes inland/local transportation, insurance, delivery of materials and storage o

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ble property.
Judgments passed by the High Courts and the Supreme Court in the cases of Essar Telecom Infrastructure Pvt Ltd [(2012) 25 STR 16 (Kar)] = 2011 (4) TMI 234 – KARNATAKA HIGH COURT; Sri Velayuthaswamy Spinning Mills (P) Ltd (WP Nos. 4434, 4435, 13652, 13653 of 2009) = 2013 (3) TMI 681 – MADRAS HIGH COURT; Solid & Correct Engineering Works [(2010) 252 ELT 481 (SC)] = 2010 (4) TMI 15 – SUPREME COURT are referred to by the Applicant in support of his Argument.
3. On a careful reading of the contracts between the JV and PGCIL it is seen that, in the present context, the contractual obligation between the JV and PGCIL is for construction, erection and commissioning of the Tower Package and not for the erection of a standalone tower. It includes fabrication and supply of all types of transmission line towers and accessories, supply of earth wire, hardware fittings and conductors, earth wire accessories and OPGW and associated fittings and accessories and Tower Earthing required

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esult in construction, erection and commissioning of the Tower Package.
It, therefore, needs to be ascertained whether the Tower Package, which includes the erection of a series of transmission towers and commissioning of the transmission line, is an immovable property.
4. “Immovable property” is not defined under the GST Act. The term 'goods' is defined under Section 2(52) of the GST Act as all kinds of moveable properties other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply.
Property other than goods, money and securities should, therefore, be considered as 'immovable property' under the GST Act.
However, in the absence of a definitive explanation under the GST Act, recourse is being taken to other allied Acts dealing with “property” to determine the definition of “Immovable property”.
It is seen that Section 3(26) of the Ge

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supply or under a contract of supply.
5. In Triveni Engineering & Industries Ltd [(2000) 120 ELT 273 (SC)] = 2000 (8) TMI 86 – SUPREME COURT OF INDIA the Apex Court observes that while determining whether an article is permanently fastened to anything attached to the earth both the intention as well as the factum of fastening has to be ascertained from the facts and circumstances of each case. In S/S Triveni N L Ltd [RN – 910, 911 & 912 of 2001 (All)] = 2014 (4) TMI 842 – ALLAHABAD HIGH COURT Allahabad High Court observes that 'permanently fastened to anything attached to the earth' has to be read in the context for the reason that nothing can be fastened to the earth permanently so that it can never be removed. If the article cannot be used without fastening or attaching it to the earth and is not removed under ordinary circumstances, it may be considered permanently fastened to anything attached to the earth.
Furthermore, in the context of the GST Act, if the article attached to th

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structed is, therefore, an immovable property.
7. The Applicant has referred to several case laws and judgments in support of the argument that the Towers, so constructed under contract, are not “immovable property”.
a) In Sri Velayuthaswamy Spinning Mills P Ltd (supra) the Madras High Court based its judgment on Section 3 of the Transfer of Property Act, 1882, and held that a windmill is a moveable property, being of the view that if a thing is embedded in the earth or attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached, it becomes an immovable property. On the other hand, if the attachment is made for the beneficial enjoyment of the chattel itself, which in this case is the windmill, then it remains a chattel even though fixed for the time being so that it may be enjoyed. This view of the Madras High Court does not take into consideration the intention of the parties while attaching the chattel to the foundation embedded in the ear

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property. The emphasis is on the intention of the party. The Apex Court observes that the machine in question can be moved and has indeed been moved after the road construction and repair project, for which it was installed, is completed. However, if a machine is intended to be fixed permanently to a structure embedded in the earth, the moveable character of the machine, according to the Supreme Court, becomes extinct.
In the present context, it has already been pointed out that the series of transmission towers are being erected under the Tower Package with no intention of removing or shifting them in foreseeable future. They are, therefore, clearly intended to be fixed permanently to the foundation embedded in the earth. The moveable character of the towers, therefore, becomes extinct.
c) In the case of Essar Telecom Infrastructure Pvt Ltd (supra), the Karnataka High Court, differing with Bombay High Court's judgment in Hutchison Max Telecom P Ltd [(2008) 224 ELT 191 (Bom)] = 2007

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cting mobile towers, the Tower Package is not being constructed with the contemplation of such relocation. The judgment of Karnataka High Court in the matter of Essar Telecom Infrastructure P Ltd (supra) is, therefore, not applicable in the present context.
8. The Applicant further argues that separate contracts, executed with the explicitly defined separate scope of work and price, should be construed as separate distinct agreements with each of the supplies being separate supplies and refers to several judgments in support of his argument. The cases referred to are: Hindustan Aeronautics Ltd [(1984) SCR (2) 248] = 1983 (12) TMI 259 – SUPREME COURT OF INDIA; Gannon Dunkerley & Co [(1959) SCR 379] = 1958 (4) TMI 42 – SUPREME COURT OF INDIA; Associated Hotels of India [(1972) SCR (2) 937] = 1972 (1) TMI 80 – SUPREME COURT OF INDIA; Power Grid Corporation of India Ltd [(2007) 112 TTJ Hyd 654] = 2006 (7) TMI 262 – ITAT HYDERABAD-B.
Reference is also made to Circular No. 47/21/2018-GST

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inafter referred to as “KAAR”) in the case of M/s Giriraj Renewables Pvt Ltd. wherein the contract is for setting up a solar power plant, where the contractee imports the solar photovoltaic module (PV Module) and supplies them free of cost to the contractor at the work site. The Ld KAAR observes that the contractor cannot, therefore, claim that he is supplying the PV Module and the other supplies are ancillary to this principal supply. As the goods belong to the contractee at the time of provisioning the services, it cannot be said that the supplies of materials and services are naturally bundled and a composite supply. Drawing an analogy the Applicant argues that ex-works supply of materials results in the transfer of title of the goods to PGCIL at the factory gate, and all subsequent activities, including transportation etc., are services performed on the goods supplied by the contractee. As the goods belong to the contractee at the time of provisioning the services, it cannot be sai

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tion. Final payment of the balance 10% shall be made after the erection of all the towers of the transmission line subject to submission of an unconditional and irrevocable bank guarantee covering the above 10% amount, valid till scheduled date for testing and commissioning of the transmission line. If there is an increase in Contract price due to price adjustment, 90% of it shall be paid on receipt of the respective shipment at the site.
Appendix-3 to the First Contract describes the Insurance Requirements. It mandates the JV to provide insurance cover for the transit risk from the manufacturing works of the JV to the project warehouse at final destination and also the risk from the date of receipt at the site and till the date of operational acceptance, indicating that PGCIL does not own up risk in the goods till they are applied to construction, erection and commissioning of the Tower Package.
It is, therefore, abundantly clear that neither the risk in the goods passes to PGCIL at

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ed to the site for assembly or installation [refer to Section 10(1)(a) & (d) of the IGST Act, 2017]. The First Contract, however, does not include the provision and cost of such transportation and delivery. It, therefore, does not amount to a contract for 'supply of goods' unless tied up with the Second Contract. In other words, the First Contract has “no leg' unless supported by the Second Contract. It is no executable contract unless tied up with the Second Contract.
The contractee is aware of such interdependence of the two contracts. Although awarded under two separate agreements, clauses under both of them make it abundantly clear that notwithstanding break-up of the contract price, the contract shall, at all times, be construed as a single source responsibility contract and the Applicant shall remain responsible to ensure execution of both the contracts to achieve successful completion and taking over of the facilities. Any breach in any part of the First Contract shall be treat

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gins subsequent to transfer of property in the goods to PGCIL under the First Contract, but are indivisible contracts for the bundled supply of goods and services. The ruling of KAAR in the matter of M/s Giriraj Renewables Pvt Ltd is, therefore, not relevant in the present context.
It is thus a single source contract for bundled supplies of goods and services for construction, erection and commissioning of the Tower Package – an immovable property.
11. The Applicant's reference to several judgments of the apex court is also of little relevance since they are all delivered in the context of situations prior to the 46th Amendment to the Constitution, and are focused on devising the parameters to distinguish between a contract for the sale of goods and works contract. A careful reading of these judgments reveals that the prevailing view of the Apex Court at that time was that no straitjacket formula can be devised that might be applicable under all conditions for distinguishing a contra

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s a composite contract involving contracts for both service and sale of goods irrespective of dominant intention. Rejecting the traditional view espoused by several earlier judgments of the same court, wherein the focus lied on examining the substance of the contract, Apex Court now holds that the distinction between a contract for the sale of goods and contract for service has almost diminished in the matter of such composite contracts. All that is required is the existence of a contract for construction, erection, commissioning etc. of an immovable property, and execution of the contract must involve the transfer of property in goods (as goods or in some other form), whether or not the goods have been transferred by way of accretion. In its judgment dated 06/05/2014 in Kone Elevator India Pvt Ltd [Writ Petition (Civil) No. 232/2005 and other cases = 2014 (5) TMI 265 – SUPREME COURT], a five member Constitution Bench of the Supreme Court concurs with the above decision.
12. After 101

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ion, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract.
Discussion in the preceding paragraphs establishes that the Applicant is executing an indivisible composite contract for construction, erection and commissioning of an immovable property, namely the Tower Package, execution of which involves bundled supply of both goods and services. It is, therefore, works contract, as defined under Section 2(119) of the GST Act.
13. The contract for the Tower Package as above, being works contract is service in terms of paragraph 6(a) to Schedule II to the GST Act. Activities covered under Schedule II are to be treated as a supply of the nature described under section 7(1)(d) of the GST Act. Reference to Circular No. 47/21/2018-GST dated 08/06/2018 of CBIC or the e-flyer is, therefore, not relevant in the present context.
The price components of both the First and t

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Refund of IGST paid on exports of goods done from Non-EDI sites-reg.
Instruction No. 20/2018 Dated:- 26-11-2018 Order-Instruction
Customs
Instruction No. 20/2018-Customs
F. No. 450/119/2017-Cus IV(Pt.I)
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Indirect Taxes& Custom)
Room No. 227B, North Block
New Delhi, dated the 26th November, 2018
To
All Principal Chief Commissioner/Chief Commissioner of Customs/ Customs (Preventive),
All Principal Chief Commissioner/ Chief Commissioner of Customs and GST,
All Principal Commissioner/ Commissioner of Customs/ Customs (Preventive)
Sub: Refund of IGST paid on exports of goods done from Non-EDI sites-reg.
Sir/Madam,
The procedure for refund of

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on by the Customs officer in ICES at the nearest EDI site.
(iii) The refund scroll is then generated for the verified SBs after these are matched with the GST Returns data received from GSTN;
(iv) Detailed advisories have been issued from time to time on these steps. Further, a public enquiry has been made available on ICEGATE website for checking the details and IGST status of manual SBs verified in ICES.
(v) Specific IGST related errors or mismatches can also be checked by an importer/Customs Broker for his SBs using his ICEGATE login.
(vi) It is only when a SB is verified by the Customs officer in ICES does it become ready for the IGST validation procedure.
(vii) Data has been uploaded in ICES for verification of exports made upto M

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Late Delivery Charges
Query (Issue) Started By: – Kaustubh Karandikar Dated:- 25-11-2018 Last Reply Date:- 3-12-2018 Goods and Services Tax – GST
Got 8 Replies
GST
XYZ is receiving from PQR amount towards late delivery charges which will fall under the category of agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act and therefore XYZ will be liable to pay GST on the amount received. In this example, recipient of service is XYZ or PQR?
Reply By KASTURI SETHI:
The Reply:
Tolerating, refraining from, agreeing to etc.is a service under GST. Who is tolerating ? Who is refraining from ? Who is agreeing to ? . XYZ is tolerating, refraining from, agreeing to by way of imposing late

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iew, the person booking the expenses shall always be recipient (PQR) and one booking income (XYZ) shall always be supplier.
As per section 15(2)(d) value of supply include interest or late fee or penalty for delayed payment of any consideration for any supply.
Therefore the POS for late payment charges shall be equivalent to original supply.
Reply By Alkesh Jani:
The Reply:
Dear Kaustubh Karandikar,
In this regards, first of all it is to be decided that, late delivery charges received by the XYZ, is in relation to any Supply i.e. Goods or Services?. If this is the case, than PQR has already raised an Invoice and XYZ will deduct the amount of late delivery charges, this amount is to be included for valuation purpose, as per above menti

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Supply not reported correctly in GST3B and GSTR-1 return
Query (Issue) Started By: – Prakash Gupta Dated:- 24-11-2018 Last Reply Date:- 27-11-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Dear Expert,
Need your view on below mentioned issues:
Facts of the case
Say a Company namely ABC forgot to mention a supply as well as GST liability thereon in form GSTR-3B and GSTR-1 in the month of Aug 2017, the GST liability was ₹ 100,000/-. The Company has noticed this mistake only in the month of the November 2018, while finalizing the annual return for the FY 2017-18. Further, The Company has always input tax credit balance exceeding ₹ 150,000/- during the period July 2017 to November 2018.
Query
1. Now how to rec

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y after match both returns. So wait for a new proforma for Annual Return on Common Portal.
Reply By Prakash Gupta:
The Reply:
Kasturi Sir,
Thanks for your reply. But please further light on liability of Interest question, keeping the fact that assessee has already had excess credit on supply GST in books of the accounts as well as on portal from the date of its liability , even till date it has not been utilized.
There was a bonafide mistake by the accountant while filling GSTR-3B and GSTR-1 return. However, due to mistakes of the assessee , there was no loss to revenue.
If my logic is not correct, please quote provision of the GST law, which say that set off liability on portal is GST is payment.
Reply By KASTURI SETHI:
The Reply:
D

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GIST OF RECENT PRONOUNCEMENTS ON GST (PART-XVIII)
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 24-11-2018

Goods and Services Tax (GST), introduced from July 1, 2017 is seventeen months old now but has resulted in operational and implementation disruptions affecting all stakeholders. GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council is however, making regular changes to fix the anomalies and hardships faced by taxpayers. 30 meetings of GST Council have been held till 31st October, 2018.
Taxpayers have already challenged various provisions of GST laws and rules framed thereunder with our 200 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. In recent past, CBIC had issued directions to be officers to defend the writs.

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Delhi.
One consigner, dispatched two consignments of goods which were covered by invoices for supply to consignees of Telangana and Dehradun. The aforesaid consignments were loaded from the premises of the consignor in small vehicle and were to be brought to transshipment branch situated at Greater Noida, UP where the goods were to be reloaded in two different trucks for transportation for Telangana and Dehradun. The distance between the business place of consignor and the Greater Noida Branch of transporter was approximately 25-30 Km.
The petitioner had downloaded two national e-way bills, one for Telangana and another for Dehradun and the consignor had duly filled the part of the aforesaid national e-way bill which contains the details of consignor as well as consignee and further the details and description of goods to be supplied. 'Part B' which pertains to details of truck/vehicle number was left blank to be filled by the transporter when the goods would be reloaded in r

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aded in other vehicles and then to proceed to its ultimate destination, namely, Telangana and Dehradun. Until and unless the goods/vehicle reached at the place of transport company from where it was required to be transported to its ultimate destination, no one can fill up the details of vehicle when admittedly the details are not known or available to the consignor or the driver.
In view of the aforesaid facts and circumstances of the case, the order of seizure passed under section 129(1) was held liable to be set aside and the authorities were to be ordered for release of the goods and the vehicle upon furnishing of the indemnity bond to the extent of proposed tax and penalty.
* In S.B.G.C Logistics v State of U.P. 2018 (5) TMI 697 – ALLAHABAD HIGH COURT, where the assessee, a transporter, was transporting the goods of its customers from New Delhi to Assam and Nagaland. The Competent Authority of the U.P. Goods and Services Tax Department had seized the above goods as well as the

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al proceedings initiated under section 129(3) and further in view of the Notification No. 12 of 2018, dated 7-3-2018 and the Clarification dated 31-3-2018, the seized goods in question as well as the vehicle were ordered to be released forthwith. It was held that in the instant case, the seizure proceedings were carried out illegally and the same are wholly without jurisdiction as also against the Government Notification and Central Government decision. Hence, both the seizure order and consequential penalty proceedings under section 129(3) were set aside.
* In VSL Alloys (India) (P.) Ltd. v State of U.P. (2018) 5 TMI 455 (Allahabad); where the petitioner is a private limited company and is engaged in manufacture and supply as well as export of industrial SS Tube, fittings and pipe fittings etc. The petitioner is registered under the provision of GST. The movement involved inter-State movement of goods and the validity of e-way bill showed that it is not valid for movement is pat B i

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Meghraj Moolchand Burad Versus Directorate General of GST Intelligence, Pune & Anr.
GST
2018 (11) TMI 1585 – BOMBAY HIGH COURT – TMI
BOMBAY HIGH COURT – HC
Dated:- 24-11-2018
Anticipatory Bail Application No. 2333 Of 2018
GST
A. S. Gadkari, J.
Mr. Ritesh Ratnam for the Applicant.
Mr. Mr. Bhyam Walve I/by Ram Ochani And Amit Palkar APP, for the Respondent-State.
P.C.:-
At the request of the learned counsel appearing for the Applicant, stand over to 10th December, 2018.

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REVOCATION OF CANCELLATION APPLICATION
Query (Issue) Started By: – Charan N Dated:- 23-11-2018 Last Reply Date:- 30-11-2018 Goods and Services Tax – GST
Got 8 Replies
GST
Der Sir/Madam,
I applied revocation of cancellation application for one my client and the same is showing under pending for processing and allotted to Center. We contacted concerned Jurisdictional officer and he is saying that he is not getting anything regarding revocation to process the application. I want to know whether revocation process started and any applications approved or processed by the department.
I am in very serious situation and want to revoke the application ASAP
Thanking you in advance
Reply By KASTURI SETHI:
The Reply:
First action is

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By KASTURI SETHI:
The Reply:
Sh.Kishan Barai Sir is totally correct. Here is relevant Board's instruction.
Extract of Board's Flyer no.1 dated 1.1.18
Cancellation of Registration
The GST law provides for two scenarios where cancellation of registration can take place; the one when the taxable person no more requires it (voluntary cancellation), and another when the proper officer considers the registration liable for cancellation in view of certain specified defaults (Suo motu cancellation) like when the registrant is not doing business from the registered place of business or if he issues tax invoice without making the supply of goods or services. The taxable person desirous of cancellation of Registration will apply on the co

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cancelled and it has to by restored on Common Portal System with the recommendation of jurisdictional GST Officers.
Reply By Kishan Barai:
The Reply:
Thank you very much sir for your appreciation.
Reply By Charan N:
The Reply:
Thank you one and all for your valuable suggestions.
Reply By Pavan Mahulkar:
The Reply:
As per proviso to rule 20
"Provided that no application for the cancellation of registration shall be considered in case of a taxable person, who has registered voluntarily, before the expiry of a period of one year from the effective date of registration."
[The following proviso was Omitted vide Notf no.03/2018-CT dt 23.01.2018]
So now the voluntarily registered person can apply for cancellation of RC before

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Court Finds Detention of Goods and Vehicle Unlawful Due to Non-Applicability of E-Way Bill Requirement.
Case-Laws
GST
Detention of goods alongwith vehicle – Since the requirement of the E-way

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Hotel & Resturant services
Query (Issue) Started By: – DIVYAM JAIN Dated:- 23-11-2018 Last Reply Date:- 1-1-2019 Goods and Services Tax – GST
Got 1 Reply
GST
What are the provisions & rate applicable for hotel & Resturant industry
Wharther a Service Reciepient can take credit for amount paid to hotels
Who can charge tax@5% and who can charge @18%
Reply By HIREGANGE& ASSOCIATES:
The Reply:
1. Rate applicable for standalone Restaurant service is 5% ;
2. Restaurant service loca

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Regarding Combined contract for Supply and Installation of CCTV Cameras and Fire Extinguishers – Works contract or Supply of goods?
Query (Issue) Started By: – Shyam Agarwal Dated:- 23-11-2018 Last Reply Date:- 24-11-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Sir, whether Combined contract for Supply and Installation of CCTV Cameras and Fire Extinguishers in Residential building is treated as works contract under GST or supply of goods?
Reply By YAGAY andSUN:
The Reply:
Supply and installation of CCTV would fall under the category works contract as without installation and link it with control room it would not work whereas there is no need to install the fire extinguishers as it may work without such installation h

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