GST ITC on Land Development: Reverse Pro Rata for Plots Sold Post-Completion Certificate.
Case-Laws
GST
ITC – construction services – The Input Tax Credit availed in respect of the GST paid o
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GST Applies to Hospital Medical Instrument Placements: Supply Classification and Right to Use Goods Transfer Discussed.
Case-Laws
GST
Levy of GST – Supply or not? – naturally bundled services
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Intermediary Services Under GST: Classification Includes Facilitating Supply of Goods, Affecting Tax Implications for Providers.
Case-Laws
GST
Classification of service – Intermediary Services or not – The contract of services supplied are not pure and mere promotion and marketing services and the services provided is of the nature of facilitating the supply of goods, and hence would amount to “intermediary services”
TMI Updates – Highlights, quick notes, marquee, annotation, ne
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Small Business Exemption u/s 22 of GST Act Applies Individually to Co-Owners of Jointly Owned Property.
Case-Laws
GST
Renting of immovable property service – Small Business Exemption – Co-own
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E-WAY BILL
Query (Issue) Started By: – Rishabh Mishra Dated:- 11-10-2018 Last Reply Date:- 12-10-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Sir,
I want to send some material directly from my purchasing party in Dadra Nagar Haveli to another party in Gwalior, Madhya Pradesh. Party in Dadra Nagar haveli generated a e-way bill to Party in Gwalior. Do we have to generate a E-way bill?
What to be done in such circumstances.
Reply By SHIVKUMAR SHARMA:
The Reply:
Your Supplier from DNH can genereted an E Way bill as under:
Bill to Your Name & Ship to -Your Customer Name of Gwalior.
You need not to generate E way bill.
Reply By Ganeshan Kalyani:
The Reply:
Agreed, supplier in Dadra and Nagar Haveli shall bill on you bu
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y:
* 'A' is the person who has ordered 'B' to send goods directly to 'C'.
* 'B' is the person who is sending goods directly to 'C' on behalf of 'A'.
* 'C' is the recipient of goods.
2. In this complete scenario two supplies are involved and accordingly two tax invoices are required to be issued:
* Invoice -1, which would be issued by 'B' to 'A'.
* Invoice -2 which would be issued by 'A' to 'C'.
3. Queries have been raised as to who would generate the e-Way Bill for the movement of goods which is taking place from 'B' to 'C' on behalf of 'A'. It is clarified that as per the CGST Rules, 2017 either 'A' or &
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d to be filled
Case -2: Where e-Way Bill is generated by 'A', the following fields shall be filled in Part A of GST FORM EWB-01:
1. Bill From: In this field details of 'A' are supposed to be filled.
2. Dispatch From: This is the place from where goods are actually dispatched. It may be the principal or additional place of business of 'B'.
3. Bill To: In this field details of 'C' are supposed to be filled.
4. Ship to: In this field address of 'C' is supposed to be filled.
5. Invoice Details: Details of Invoice-2 are supposed to be filled."
Regards
Nitika Jindal
9999804960
Reply By Ganeshan Kalyani:
The Reply:
Agreed with the views expressed by Ms. Nikita , an expert.
Discussion
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Kotak Mahindra Bank Ltd. Versus Commissioner of CGST, Mumbai
Service Tax
2019 (1) TMI 1105 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 11-10-2018
ST/87083/2018 – A/88123/2018
Service Tax
Mr. S.K. Mohanty, Member (Judicial)
For the Appellant : Shri Chirag Shetty, Advocate
For the Respondent : Shri O.M. Shivdikar, Asst. Commr (AR)
ORDER
PER: S.K. MOHANTY
Heard both sides and perused the records.
2. The short question involved in this appeal for consideration by the Tribunal is, whether Central Excise duty paid on furniture can be considered as capital goods / inputs for the purpose of availment of Cenvat benefit. In this case, the appellant had availed CENVAT Credit on furniture, considering the same as capital
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se, the furniture purchased by the appellant for its business purpose, though is not confirming to the definition of capital goods, but the same should be considered as input, in absence of any restrictions provided in the statute. I find that in identical situation, this Tribunal in the case of ICICI Lombard General Insurance Co. Ltd. v. Commr. Of S.T – 2016 (42) STR 938 (Tri. – Mum) has allowed Cenvat benefit on furniture items, considering the fact that the said goods are required for the purpose of rendering the taxable service.
4. In view of above, I do not find any merits in the impugned order. Accordingly, after setting aside the same, I allow the appeal in favour of appellant.
(Order dictated in Court)
Case laws, Decisions, Ju
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M/s. Luk Plastcon Ltd. Versus CCGST & CE, Nagpur
Central Excise
2018 (12) TMI 337 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 11-10-2018
Application No. E/COD/86245/2018 in Appeal No. E/88107/2018 – M/86182/2018
Central Excise
Mrs. Archana Wadhwa, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical)
Shri Hemant Suchak, Asstt. Manager (Comm) for the appellant
Shri D.S. Chauhan, Supdt. (AR) for the respondent
ORDER
Per: Archana Wadhwa
The delay in filing the present appeal is 215 days which stands attributed by the appellant to the concerned person having left the job without intimating the receipt of the Order-in-Appeal to the management. The appellants have submitted that they came to know about passing of the impugned order only when the revenue approached them for recovery of the dues in December 2017. Thereafter they approached the revenue for obtaining a copy of the order-in-original from the Range office and filed the appeal subsequent
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to benefit by resorting to delay and in fact he runs a serious risk.
Similarly, in the case of Namnath Sao Alias Ramnath Sahu & Ors. Reported in (2002) 3 Supreme Court Cases 195, the court observed that the expression “sufficient cause” should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. The Hon'ble Supreme Court further observed that one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception.
Further, in the case of Ummer reported in 2018 SCC Online SC 199, it was observed that “one cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since be
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ng of job by the concerned person, subsequent procurement of the copy from the Range office but keeping in view that the filing of appeal involves the right of the assessee to challenge the impugned order before the higher appellate forum and appreciating the fact the amount involved is only of Rs. 2.50 lakhs approx, as also by appreciating the prima facie merits of the case, and keeping in view the various Supreme Court decisions referred supra laying down that such refusal to condone the delay affects the assessee's right to appeal and as such a liberal approach should be adopted unless there are evidence to show that such delay was intentional, we are of the view that the delay should be condoned subject to the appellant paying some cost.
4. We also note that there is no evidence produced by the Revenue to establish the dispatch of the impugned order under registered AD or to establish the date of receipt of order by the appellant. In view of the foregoing and as the amount inv
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d in support of the contentions raised in the application for Condonation of Delay.
7. The appeal is a right but circumscribed certain condition. It is not an absolute right for the assessee. Appeal has to be filed within the prescribed period of limitation. In case of delay, appellant has to explain and thereafter only a Condonation of Delay can be allowed. In absence of plausible and just cause of delay, supported by necessary affidavits and document COD application should be dismissed and consequently the appeal.
In view of the difference between the two Members, the file is placed before the Hon'ble President for reference to Third Member for resolving the Difference of Opinion.
(Dictated in Court)
(Sanjiv Srivastava)
Member (Technical)
Difference of Opinion
Whether the delay has to be condoned subject to imposition of cost of Rs. 2000/- as held by the Member (Judicial) or the Condonation of Delay has to be rejected as the appellant has not given plausible and just explana
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Yash International Versus CCT, Medchal – GST
Central Excise
2018 (11) TMI 821 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 11-10-2018
E/30604/2018 – A/31313/2018
Central Excise
Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL)
Shri Lalit Mohan Chandra, Advocate for the Appellant.
Shri Dass Thavanam, Superintendent/AR for the Respondent.
ORDER
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-MDAP2-250-17-18 dated 19.02.2018.
2. The relevant facts that arise for consideration are the appellants are manufacturers of electrical fans; during the year 2007, officers of DGCEI registered an offence case on appellant on the charge of irregular availment of CENVAT credit without receiving the inputs. During the investigation proceedings, appellants were directed to deposit an amount of Rs. 25 lakhs which they have did so. Show cause notice dated 08.09.2008 was issued and was adjudicated by the adjudicating authority and by Order-in-Original No. 34/2009-A
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n amount of Rs. 43,96,019/- paid by them during the proceedings as also after the adjudication order was passed. The lower authorities after issuing show cause notice, restricted the refund claim to an extent of Rs. 18,96,019/- and rejected refund claim of Rs. 25 lakhs. Aggrieved by such adjudication order, an appeal was preferred before the first appellate authority. The first appellate authority in the impugned order has deprecated the findings of the adjudicating authority for two grounds raised for rejection as being technical in nature and held legally unsustainable, however, he agreed with the views of the adjudication authority that the amount of Rs. 25 lakhs for which credit was raised in PLA, was not debited during 2007 and was subsequently debited in 2017, hence refund claim filed on 23.02.2017 is premature, coming to such conclusion he rejected the appeal filed by the appellant.
3. Learned counsel after taking the bench through the relevant papers submits that the first app
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ounts deposited during the investigation has to be refunded merely on submission of a letter. It is his further submission that this proposal is well settled and reliance upon recent decisions of the Tribunal in the case of Parle Agro Pvt Ltd [2018 (360) ELT 1005 (Tri-All)], Tycon Automation Pvt Ltd [2017 (358) ELT 1058 (Tri-All)] and Usha International [2017 (357) ELT 532 (Tri-Mumbai)].
4. Learned departmental representative submits that current account/PLA which is maintained by the appellant was credited by an amount of Rs. 25 lakhs when they deposited the amount during the investigation of the records but they never debited the amount in order to show the receipt of the amount in the Government Treasury. It is his submission that till the refund claim was rejected by the adjudicating authority i.e., on April, 2017, appellant had not debited the PLA by the amount. It is his submission that on the contrary, appellant had been misguiding the higher judicial forum that they have depos
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amount stands accrued to the national exchequer only when the same is debited in PLA; therefore when the amount is available as credit in their PLA without being debited, the question of refund of the same does not arise. It is also mentioned that it would be a traversy, if the refund is granted for full amount of Rs. 43,96,019/- ignoring the availability of Rs. 25,00,000/- at their disposal as it would fetch double benefit to the appellants as they can utilize the balance of Rs. 25,00,000/- lying in their PLA post sanction of refund. In response to this, in the grounds of appeal the appellants have mentioned that they made a debit entry in the PLA, hence they are entitled for refund of the amount is cash. They enclosed a copy of a folio of PLA for the month of April, 2017 showing debit of Rs. 25,00,000/-”
7. It can be seen from the above reproduced Para, the only reason for rejecting the refund claim is that the appellant has not debited the PLA with the amount of Rs. 25 lakhs an deb
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M/s Futuristics Metal Trading Pvt. Ltd. Versus Union of India and others
GST
2018 (11) TMI 799 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 11-10-2018
CWP-26302-2018(O&M)
GST
MR RAJESH BINDAL AND MR MAHABIR SINGH SINDHU, JJ.
For The Petitioner : Mr. Lakhinder Bir Singh, Advocate
For The Respondent : Mr. Saurabh Goel, Advocate And Mr. Pankaj Gupta, Addl. AG, Punjab
ORDER
RAJESH BINDAL, J.
The petitioner has filed the present petiti
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Cases where IGST refunds have not been granted due to claiming higher rate of drawback OR where higher rate and lower rate were identical –reg.
138/2018 Dated:- 11-10-2018 Trade Notice
Customs
OFFICE OF COMMISSIONER OF CUSTOMS NS-II
JAWAHAR LAL NEHRU CUSTOM HOUSE, NHAVA SHEVA
TAL: URAN, DIST. RAIGAD, MAHARASHTRA-400707
F.No.S/12-Gen- Misc-07/2018-19 AM(X)
PUBLIC NOTICE NO.138/2018
Date: 11-10-2018
Sub: : Cases where IGST refunds have not been granted due to claiming higher rate of drawback OR where higher rate and lower rate were identical -reg.
Attention of all the importers, exporters, customs brokers, and all other stake holders is invited to the Board Circular No. 37/2018-Customs, dated 09.10.2018 on the subject mentio
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dule shall not be applicable to export of a commodity or product if such commodity or product is –
….
(d) exported claiming refund of the integrated goods and services tax paid on such exports.
2.2 Notes and Condition (12A) of Notfn.No.131/2016-Cus(NT), dated 31.10.2016 (as amended by Notfn.No.59/2017-Cus(NT), dated 29.06.2017 and 73/2017-Cus(NT), dated 26.07.2017) prescribed that 'The rates and caps of drawback specified in columns (4) and (5) of the said schedule shall be applicable to export of a commodity or product if the exporter satisfies the following conditions, namely:-
… … …
(ii) If the goods are exported on payment of integrated goods and services tax, the exporter shall declare that no refund of
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hanges made on 26.07.2017 were made applicable for exports made from 01.07.2017 onwards.
2.5 By declaring drawback serial number suffixed with A or C and by making above stated declarations, the exporters consciously relinquished their IGST / IT claims.
3. It has been noted that exporters had availed the option to take drawback at higher rate in place of IGST refund out of their own volition.
Considering the fact that exporters have made aforesaid declaration while claiming the higher rate of drawback, it has been decided that it would not be justified allowing exporters to avail IGST refund after initially claiming the benefit of higher drawback. There is no justification for re-opening the issue at this stage.
4. Action to be taken in
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INDUSIND MEDIA COMMUNICATIONS LTD., GRANT INVESTRADE LIMITED Versus UNION OF INDIA, GST COUNCIL AND OTHERS
GST
2018 (10) TMI 1616 – KARNATAKA HIGH COURT – 2019 (20) G. S. T. L. 10 (Kar.)
KARNATAKA HIGH COURT – HC
Dated:- 11-10-2018
WRIT PETITION Nos. 28653/2018 & 29276/2018 (T-RES)
GST
Dr. VINEET KOTHARI J.
Mr. Monish Panda, Adv. for Mr. Harish Bindumadavan, Adv. for Petitioners
Mr. Vikram A. Huilgol, Sr. CGSC for R1 to R5
Mr. Vikram A. Huilgol, HCGP for R6 & R7
ORDER
1. The grievance raised by the petitioners – company in the present case is that certain practical and technical difficulties had arisen to the petitionerassessee and others when the change of Tax Regime from VAT/Service Tax Regime to GST Regime took
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ctional Officer, he has not been decided such representation after giving a proper and reasonable opportunity of hearing to the petitioner-assessee.
4. The learned counsel for the Respondent- Commercial Tax Department Mr. Vikram Huilgol however submits that a separate Nodal Officers at the level of Commissioner have been appointed by the Central Government in all the States and they can definitely look into the grievances of the petitioners regarding technical and administrative difficulties faced by the assessee and can pass appropriate orders in the matter. However, the assessee should comply with the condition of filing the requisite returns and declarations in this regard.
5. In view of the aforesaid submissions made at the bar
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h the directions of said authority and filing requisite returns and declarations as per the relevant applicable Rules, Circulars and Notifications etc.
6. The petitioners-company should appear before the concerned authority in the first instance on 05.11.2018 at 11 AM and a period of two months is allowed to the said Nodal Authority to pass appropriate orders. Against the impugned assessment orders, the assessee should avail the regular remedy by way of appeal u/S.107 of the KGST Act. The said appeal if so filed within a period of four weeks from today, it will be entertained without raising the objection of limitation.
7. It is made clear that if any prejudicial order is passed against the petitioners-company by the said Nodal Officer be
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KITEX GARMENTS LTD Versus ASSISTANT STATE TAX OFFICER STATE GOODS AND SEVICE TAX DEPARTMENT, KOCHI, COMMISSIONER OF STATE TAXES, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM AND STATE OF KERALA, THIRUVANANTHAPURAM
GST
2018 (10) TMI 1190 – KERALA HIGH COURT – 2019 (20) G. S. T. L. 326 (Ker.) , [2019] 62 G S.T.R. 276 (Ker)
KERALA HIGH COURT – HC
Dated:- 11-10-2018
WP (C). No. 32692 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : SRI. K. N. SREEKUMARAN, SRI.N. SANTHOSHKUMAR AND SRI.P.J.ANILKUMAR (A-1768)
For The Respondent : GP. DR. THUSHARA JAMES
JUDGMENT
The Petitioner, a dealer under the new GST regime, claims to 'manufacture and export readymade garments'. It also asserts that it pays no tax, for its supplies fall under the Section16 of the IGST Act. Recently, it imported some raw material from Switzerland and had it cleared on 1.10.2018 by the customs authorities.
2. On 1.10.2018, the petitioner generated the e-way bill at 5.52 pm. After generating
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navoidable circumstances. But the respondent's attitude is hypertechnical. He further draws my attention to Ext.P9 explanation, dt.4.10.2018, the petitioner submitted to the Assistant Sales Tax Officer. According to him, the petitioner issued the e-way bill as per the request from its customs broker, who must have cleared the consignment from the port and delivered it to the petitioner's factory as originally planned-on time. But the customs broker could remove the vehicle from the port only on 03.10.2018. The delay was because, first, the e-way bill was generated on 1st October late in the eveint ; then the next day was a holiday.
5. In the end, the learned counsel has submitted that if the authorities detained and confiscated the goods even for minor lapses, the commerce in the State would come to a standstill. According to him, if the lapse pointed out does not aim at evading the tax or does not amount to subtantial statutory infraction, the authorities ought to take a prag
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rom the Ext.P9, the petitioner may have faced a genuine difficulty. If this Court intervenes at this stage, it may become a precedent, throwing the departmental actions out of gear. Instead, she suggests an alternative: this Court may set aside the Ext.P2 and remand the matter to the Assistant State Tax Officer, who will consider the issue afresh, especially, keeping in view the petitioner's Ext.P9 explanation. She further assures the Court that the ASTO will pass orders within 24 hours, once the petitioner approaches him.
9. For this proposal, the petitioner's counsel agrees.
10. So without adverting to the merits, I dispose of the writ petition settting aside the Ext.P10. I further clarify that the petitioner can approach the ASTO tomorrow. On the petitioners' approach, the authority will reexamine the issue, keeping in view the petitioner's Ext.P9 explanation and the other materials, and pass orders on the same day.
The writ petition stands disposed of.
Case l
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M/s. MALABAR STEEL INDUSTRIES Versus THE ASST. STATE TAX OFFICER STATE GST DEPARTMENT, KARUKUTTY
GST
2018 (10) TMI 1137 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 11-10-2018
WP(C). No. 33178 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : SRI.SANTHOSH P.ABRAHAM AND SMT.S.K.DEVI
For The Respondent : GP. DR. THUSHARA JAMES
JUDGMENT
The petitioner, a dealer under the CSGST Act, sold goods as seen from Ext.P1 invoice. The vehicle and the goods were detained because the validity of the Ext.P2 e-way bill expired and the invoice number was allegedly manipulated. Aggrieved, the petitioner filed this writ petition.
2. In the writ petition, the petitioner sought the following reliefs:
“(i) To is
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Vikas Forgings Pvt. Ltd. Versus Union of India and others
GST
2018 (10) TMI 997 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 11-10-2018
CWP-21823-2018 (O&M)
GST
MR RAJESH BINDAL AND MR MAHABIR SINGH SINDHU, JJ.
For The Petitioner : Mr.Balwinder Singh, Advocate for Mr.Rajiv Agnihotri, Advocate
For The Respondent : Mr.Tajender Joshi, Advocate Ms.Mamta Singh Talwar, DAG, Haryana
ORDER
RAJESH BINDAL, J.
The petitioner has filed the pre
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JAY CHEMICAL INDUSTRIES LIMITED Versus UNION OF INDIA
GST
2018 (10) TMI 876 – GUJARAT HIGH COURT – [2018] 59 G S.T.R. 307 (Guj), 2018 (19) G. S. T. L. 440 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 11-10-2018
R/SPECIAL CIVIL APPLICATION NO. 10828 of 2018
GST
MR AKIL KURESHI AND MR B.N. KARIA, JJ.
For The Petitioner (s) : MR.VINAY SHRAFF, ADVOCATE with MR.VISHAL J DAVE(6515), NIPUN SINGHVI(9653), MR.PRATEEK GATTANI, MS.HIRAL U MEHTA, ADVOCATES
For The Respondent (s): MR ANKIT SHAH (6371)
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner has made following substantive prayers in this petition:
“(a) Your Lordships may be pleased to issue writ of declaration and/or any other appropriate writ(s) declaring Rule 117 of the Central Goods and Services Tax Rules, 2017 and Form GST Tran1 as ultra vires to Section 140(5) and Section 164 of the Central Goods and Services Tax Act, 2017 and also offends Article 14, Article 19(1)(g), Article 265 and Arti
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nd (b) noted above.
3. He however pressed prayer( c) which arises in following factual background.
4. Petitioner no.1 is a company registered under the Central Goods and Service Tax Act, 2017 ('CGST Act' for short) as well as Gujarat Goods and Service Tax Act, 2017 ('GGST Act' for short). With the advent of Goods and Service Tax regime, certain transitional arrangements were made under the statute requiring the dealers and manufacturers to make declarations of the unutilised past tax credits, only upon which, the same would be migrated to the new regime. One of them was a declaration in terms of section 140 of CGST Act which is referred to as TRAN1. Initial time granted under the said provision for making such declaration was three months from the date of bringing the statute into existence i.e. 01.07.2017. Under representations, this time limit was extended from time to time. Final extension was granted till 27.12.2017.
5. The time limit provisions contained in rule
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corrected.
7. Counsel for the petitioner submitted that the statutory provisions concerning filing of the returns envisage scope for correction of the returns, for which, time is granted upto the due date for filing the returns. He submitted that during the transitory period, number of changes took place. It was legitimate that some of the transactions may have been overlooked by the assessees. Not granting opportunity to correct the declaration would result into substantial financial loss to the petitioner and other similarly situated dealers. Counsel relied on the decisions of Supreme Court in case of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Ors. reported in AIR 1987 SC 1023 and in case of Kailash Chandra and Ors. v. Mukundi Lal and Ors. reported in AIR 2002 SC 829 to contend that the statute must be read as a whole and harmonious interpretation of the provision should be granted. His attempt was therefore to persuade us to apply the provisions
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rror was spotted.
9. This Court in case of Willowood Chemicals Pvt. Ltd.(supra) had occasion to examine the scheme under the GGST Act and CGST Act. The transitional provision and in particular of filing TRAN1 declarations and the time limit provisions contained in respect thereof. The challenge of the petitioner in the said case to the time limit provision was mainly twofold. Firstly, that the subordinate legislature did not have the authority to prescribe time limit which was not envisaged in the parent Act and secondly, that in any case such time limit provision should be seen as directory and not mandatory. The Court rejected both the contentions and upheld the time limit prescribed under rule 117 of the Rules.
10. The Court, in the process, made following observations:
“24. It is in exercise of this rule making power, the Government has framed the CGST Rules, 2017 in which; as noted, subrule (1) of Rule 117 has prescribed, besides other things, the time limit for making declara
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ld and observed that how much tax credit has to be given and under what circumstances is a domain of the legislature. In case of Godrej & Boyce Mfg. Co. Pvt. Limited [Supra], the Supreme Court had upheld a rule which restricts availment of MODVAT credit to six months from the date of issuance of the documents specified in the proviso. The contention that such amendment would take away an existing right was rejected.
26. While the entire tax structure within the country was thus being replaced by a new framework, it was necessary for the legislature to make transitional provisions. Section 140 of the CGST Act, which is a transitional provision, essentially preserves all taxes paid or suffered by a dealer. Credit thereof is to be given in electronic credit register under the new statute, only subject to making necessary declarations in prescribed format within the prescribed time. As noted, subsection [1] of Section 164 of the CGST Act authorizes the Government to make rules for carry
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without any reference to the time limit, such credits should be allowed to be transferred during the process of migration. Any such view would hamper the effective implementation of the new tax structure and would also lead to endless disputes and litigations. As noted in case of USA Agencies [Supra], the Supreme Court had upheld the vires of a statutory provision contained in the Tamil Nadu Value Added Tax Act which provided that the dealer would have to make a claim for input tax credit before the end of the financial year or before ninety days of purchase; whichever is later. The vires was upheld observing that the legislature consciously wanted to set up the time frame for availment of the input tax credit. Such conditions therefore must be strictly complied with. Thus, merely because the rule in question prescribes a time frame for making a declaration, such provision cannot necessarily be held to be directory in nature and must depend on the context of the statutory scheme.
27
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to the new regime. Under the new GST laws, the existing tax structure was being replaced by the new set of statutes, through an exercise which was unprecedented in the Indian context. The claims of carry forward of the existing duties and credits during the period of migration, therefore, had to be within the prescribed time. Doing away with the time limit for making declarations could give rise to multiple largescale claims trickling in for years together, after the new tax structure is put in place. This would besides making the task of matching of the credits impractical if not impossible, also impact the revenue collection estimates. It is in this context that the Supreme Court in the case of Mafatlal Industries Limited (Supra), after rejecting the contention that a person can move proceedings for recovery of tax paid upon success of some other person before the Tribunal or Court in getting such tax collection declared illegal, was further influenced by the fact that any such situa
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M/s. Mars Plywood Industries Pvt. Ltd. Versus Commissioner of CGST & CX
Central Excise
2018 (10) TMI 833 – CALCUTTA HIGH COURT – TMI
CALCUTTA HIGH COURT – HC
Dated:- 11-10-2018
CEXA 55 of 2018, GA 825 of 2018, GA 826 of 2018
Central Excise
I. P. MUKERJI AND AMRITA SINHA JJ.
Appearance:
Mr. P. K. Das, Adv. Mr. C. K. Dutta, Adv. Mr. Rohan Sengupta, Adv. For the appellant
Mr. Somnath Ganguli, Adv. Mr. Sudipta Ghosh, Adv. Mr. Sabnam Basu, Adv. For the respondent
Re : GA 825 of 2018
The Court: Sufficient cause is shown. The delay in preferring the appeal is condoned. Let this appeal be registered by the department forthwith.
The application (GA 825 of 2018) is allowed.
Re: GA 826 of 2018, CEXA 55 of 2018:
This is an
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of Rs. 2, 45, 850.09/- along with interest and penalty of Rs. 4, 00, 292.00/- has been wrongly imposed on the appellant by the respondent authority by rejecting their argument that this stock of unlabelled and unstamped plywood was to be entered in the Daily Stock Account and accounted for.
Mr. Das said that according to the respondent such entry should be ignored and was ignored by them.
Learned counsel appearing for the respondent Commissioner submitted that at all stages of the proceeding, the adjudicating bodies have come to the conclusion that the appellant was guilty of clandestine removal of the goods for the purpose of evasion of duty.
On a bare perusal of the records of this case, we find that there was a stock of unlabelled an
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urt is of the view that these questions of fact and law can be best answered by the tribunal or the adjudicating authorities below.
In those circumstances, we formally admit the appeal.
By consent of the parties, we have heard it out dispensing with all formalities. Instead of hearing out this appeal on questions of law, it would be proper if the above issues are remanded back to the Tribunal for de novo adjudication upon hearing the parties within four months from the date of communication of this order. We order accordingly.
The Tribunal will be at liberty to further remand the matter to a lower over adjudicating authority for fact finding purposes.
The Tribunal will not be bound by any observation made herein.
As affidavits were not
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J.K. Tyre & Industries Ltd. Versus Commissioner of GST & Central Excise, Chennai Outer Commissionerate
Central Excise
2018 (10) TMI 697 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 11-10-2018
E/41550/2018 – 42582/2018
Central Excise
Ms. Sulekha Beevi, C.S., Member (Judicial)
For the Appellant : Shri Sai Prasanth, Advocate
For the Respondent : Shri L. Nandakumar, AC (AR)
ORDER
The brief facts of the case are that appellants are engaged in manufacture of tyres, tubes and flaps. They are selling the manufactured goods, through their depots / dealers located all over India at the net dealer price since the quantum of various discounts are not known at the time of clearance they requested for provisional assessment under Rule 7 of Central Excise Rules 2002 for the period from October 2012 to December 2012 and from January 2013 to March 2013.
The provisional assessment was finalised vide Order-in-Original No.71/2013 (Prov. Ass.) dated 23.12.2013. The short pai
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e OIO No. 13/2017-RF and the refund was sanctioned but the original authority again directed to credit the amount to the Consumer Welfare Fund. In appeal, the Commissioner (Appeals) again upheld such order. Thus appellants are once again before the Tribunal.
2. On behalf of the appellant, Ld.Counsel Shri Sai Prasanth appeared and argued the matter. He submitted that vide order of finalization of provisional assessment the excess amount of Rs. 22,98,934/- (Rs.23,40,314 (-) Rs. 41,380) was ordered to be credited to the Consumer Welfare Fund on the ground that the amount has not passed the test of unjust enrichment. He submitted that it is settled that duty short paid and duty excess paid during the provisional assessment can be adjusted against each other; that it is also settled law that test of unjust enrichment is not applicable for the purpose of such adjustment. He relies upon the decision of Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. Vs CC
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unt after such adjustment. In Toyota Kirloskar Auto Parts stated (supra) the Hon'ble High Court of Karnataka had occasion to analyse the issue and has held that such adjustment is permissible. The relevant portion of the Hon'ble High Court order is reproduced as under :
“8. Therefore, it is clear that after a final assessment order is passed, if the duty paid in terms of provisional assessment is less than the duty payable after the final assessment, the assessee is liable to pay the interest on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken i
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M/s. Pepsico India Holdings Pvt. Ltd. Versus Commissioner of GST & Central Excise Chennai Outer
Central Excise
2018 (10) TMI 696 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 11-10-2018
E/41589/2018 – 42584/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial)
For the Appellant : Ms. Krithika Jaganathan , Advocate
For the Respondent : Shri R. Subramaniam, AC (AR)
ORDER
Brief facts are that the appellants who are engaged in manufacture of aerated water without containing sugar, aerated water and sweetening beverage etc. were also availing the facility of CENVAT credit of duty paid on inputs, capital goods and service tax paid on input service. During the course of audit and scrutiny of the credit availed, it was noticed that the appellants had availed CENVAT credit of Rs. 11,48,094/- vide sl. No. 52 in the CENVAT account register for the month of July 2014 without any supporting documents as prescribed under CENVAT Credit Rules, 2004. The appellants
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inadvertently mentioned higher amount of Rs. 11,84,033/- as CENVAT credit utilizing for paying excise duty and disclosing in their ER-1 returns, though they had adjusted only lesser amount for payment of duty. She explained the calculation / error as given in the Table below:
S. No.
Particulars
Amount (July 2012)
Amount (November 2012)
1.
Excise duty liability (A)
1,62,96,444
1,42,32,775
2.
Amount paid through cash (B)
95,50,000
45,00,000
3.
Amount paid through CENVAT credit (C)
73,99,642
1,02,63,610
4.
Excess CENVAT credit shown as adjusted inadvertently (D) = (A) – (B) – (C)
6,53,198/-
5,30,835/-
Total credit shown as utilized
11,84,033/-
2.1 That only during internal verification done in July 2014, the mistake came to light and the appellant then took recredit of the excess CENVAT credit shown to have been utilized by the appellant incorrectly. The amounts were not actually utilized against payment of excise duty and the entry of adjustment / debit wa
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o moto credit by the assessee. She also relied upon the decision of the jurisdictional High Court in the case of ICMC Corporation Ltd. Vs. Commissioner of Central Excise – 2014 (302) ELT 45 (Mad.) and argued that suo moto credit involves only an account entry reversal and there being no outflow of funds, it is not required to file refund claim.
3. The ld. AR Shri R.Subramaniam supported the findings in the impugned order. He submitted that when the appellants have availed the credit by suo moto recredit, the same is ineligible because, credit is not availed on any supporting documents as prescribed under Rule 9 of the CENVAT Credit Rules, 2004. Further, if any excess duty has been paid, the only remedy available is to file refund claim. The appellant instead of filing refund claim has taken suo moto credit to circumvent the limitation prescribed under Section 11B of the Central Excise Act. He emphasized that there is no procedure for taking suo moto credit under the Act.
4. Heard bot
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y the assessee later. Further, the jurisdictional High court in the case of ICMC Corporation Ltd. (supra) had occasion to analyse the very same and has held as under:-
“13. We do not subscribe to the view expressed by the Revenue. Admittedly, the assessee originally availed the Cenvat credit on Service Tax for discharging its liability.
However, for sound reasons, it reversed the credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty. The contention of the Revenue that even in reversal of the entry there is bound to be an unjust enrichment has no substance or based on any legal principle, since, what is availed off by the assessee is only a credit on the duty paid on the services rendered. Further, the assessee is entitled to take note of as per Rule 6(5) of the Cenvat Credit Rules, 2004.
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Rule 96(10) CGST Rules 2017: Streamlined Refund Process for Integrated Tax on Exported Goods and Services.
Act-Rules
GST
Refund of integrated tax paid on goods or services exported out of Ind
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Rule 89(4B) CGST Rules: Claim Refunds on Unutilized Input Tax Credit for Zero-Rated Supplies Without Tax Payment.
Act-Rules
GST
Refund of unutilised input tax credit on account of zero rated
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Examination for Confirmation of Enrollment of GST Practitioners; Last date of registration now extended up to 15th October 2018
GST
Dated:- 10-10-2018
The National Academy of Customs, Indirect Taxes and Narcotics (NACIN) is conducting an examination for confirmation of enrollment of Goods and Services Tax Practitioners (GSTPs) enrolled on the GST Network under sub-rule (2) of Rule 83 and covered by clause (b) of sub-rule (1) of Rule 83 of Central Goods and Service Tax Rules, 2017.
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Vehicle Dealers Can Claim Input Tax Credit on Demo Cars as Capital Goods Under GST Rules.
Case-Laws
GST
Input tax paid by a vehicle dealer on the purchase of motor car used for demonstration
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Computers and Laptops Not Eligible as Inputs for Transitional ITC u/s 140(3) of KSGST Act.
Case-Laws
GST
Input tax credit – migration to GST regime – transitional provisions – Whether compute
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Hospital Pharmacy: In-Patient Medicine Supply Not Taxable Under GST, Out-Patient Supply Subject to Taxation.
Case-Laws
GST
Levy of GST – The supply of medicines and allied items provided by the hospital through the pharmacy to the in-patients is part of composite supply of health care treatment and hence not separately taxable – The supply of medicines and allied items provided by the hospital through the pharmacy to the out-patients is taxable.
TMI Updates – Highlights, quick notes
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Company Faces Charges for Overcharging Customers on Maggi, Violating Section 122(1)(i) of CGST Act 2017.
Case-Laws
GST
Profiteering – Benefit of reduction in the rate of tax – Maggi – realized more price from them than he was entitled to collect and had also compelled them to pay more GST than that they were required to pay by issuing incorrect tax invoices and hence he has committed offence under section 122 (1) (i) of the CGST Act, 2017
TMI Updates – Highlights, quick notes, marqu
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