Goods and Services Tax

M/s. Shivratna Udyog Ltd. Versus Commissioner of CGST & CX, Pune II
Central Excise
2018 (11) TMI 1513 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 20-11-2018
Appeal No. E/86537/2018 – A/87964/2018
Central Excise
Dr. Suvendu Kumar Pati, Member (Judicial)
Shri J.N. Somaiya, Advocate for the appellant
Shri D.S. Chavan, AC (AR) for the respondent
ORDER
Explanation 1 inserted to Rule 6(1) of Cenvat Credit Rules 2004 with effect from 01.03.2015 is held to be applicable to the electricity sold by the appellant that was being generated from bagasse, a waste product of sugar manufacturing and imposition of duty liability thereon by invoking Rule 6(3A) of Cenvat Credit Rules 2004 is under challenge before this Tribunal.
2. Factual backdrop of the case is that appellant is a manufacturer of sugar and molasses falling under chapter 17 of the Schedule to the Central Excise Tariff Act, 1985. It has a power generation plant in its factory where electricity is generate

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dmitted in the case of Gularia Chini Mills 2014 (34) STR 175 (HC-All) before the Hon'ble Allahabad High Court that bagasse were neither input nor input service used for generation of electricity and the same had attained finality in the decision of the Hon'ble Supreme Court reported in 2015 (322) ELT 769 (SC) in the case of DSCL Sugar Ltd. case. It was also held that since provision of Rule 6 is not for bagasse, the same will not apply to electricity generated by using bagasse only when no other input is used. Ld. Counsel for the appellant further submitted that department had not produced any evidence to prove use of any common input/ input services of the manufacture of dutiable goods for non-excisable electricity production for which he prays to set aside the order of the Commissioner (Appeals). He placed his reliance on the reported judicial decisions referred below:-
i) Jakarya Sugars Ltd. 2018 (5) TMI-1665 (Tri-Mum)
ii) Final order no. A/89563-89568/17/SMB dated 04.08.2017

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or input services used for generation of electricity to the extent duty free electricity is sold. Assessee is not eligible to take any cenvat credit of such inputs and input services having nexus with generation of electricity sold.
5. Heard from both sides at length. Perused the case records and the relevant decisions cited by the adversaries which are mostly related to the incidence prior to the insertion of proviso-1 to Cenvat Credit Rules wef. 01.03.2015 except Jakarya Sugars Ltd. Admittedly electricity, though not found in tangible form, is classifiable under Tariff item no. 27160000 of Central Excise Tariff Act, 1985. But it is a non-excisable goods and the process of generation of electricity though a manufacturing process is dutiable if it is generated from mineral oils, bitumen substance, mineral waxes etc. and electricity generated from bagasse is not covered under Chapter 27 like electricity generated through solar power, hydro power, wind power etc. Therefore, as has been

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Guidelines for Deductions and Deposits of TDS by the DDO under Meghalaya Goods and Services Tax (MGST) Act, 2017.
ERTS(T) 65/2017/Pt.I/261 Dated:- 20-11-2018 Meghalaya SGST
GST – States
GOVERNMENT OF MEGHALAYA
EXCISE, REGISTRATION, TAXATION & STAMPS
DEPARTMENT
CIRCULAR
No. ERTS(T) 65/2017/Pt.I/261
Dated Shillong the 20th November, 2018.
Subject: Guidelines for Deductions and Deposits of TDS by the DDO under Meghalaya Goods and Services Tax (MGST) Act, 2017.
Section 51 of the MGST Act 2017 and CGST Act 2017 provided for deduction of tax by the Government Agencies (Deductor) or any other person to be notified in this regard, from the payment made or credited to the supplier (Deductee) of taxable goods or services or both, where the total value of such supply, under a contract, exceeds two lakh and fifty thousand rupees. The amount deducted as tax under this section shall be paid to the Government by deductor within ten days after the end of the month in which such deducti

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tax deduction at source was not notified to come into force with effect from 1st July, 2017, the date from which GST was introduced. Government has recently notified that these provisions shall come into force with effect from 1st October, 2018, vide Notification No. 50/2018-State Tax, ERTS(T)65/2017/Pt-1/240, dated 13th September, 2018 and – Central Tax dated 13th September, 2018.
4. In order to give effect to the deduction of tax under GST and for making payment of the same from 01.10.2018, a process flow of deduction and deposit of TDS by the DDOs has been finalised in accordance with CGA guidelines for implementation by State Government Authorities. The process flow is described as under:
* Bunching of deductions and its deposit by the DDO
5. The DDO will have to deduct the TDS from each bill, for keeping it under the Suspense Head. However, deposit of this bunched amount from the Suspense Head can be made on a weekly, monthly or any other periodic basis.
6. Following process

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(iv) & (v) not applicable to cheque paying DDOs.
(vi) Payment of GST -TDS amount from one or multiple Bills which was booked earlier into suspense head can be made on a weekly, monthly or any other periodic basis which is convenient to-the DDO.
(vii) The DDO will be required to maintain the Record of the TDS so booked under the Suspense Head so that at the time of preparing the CPIN for making payment on weekly/monthly or any other periodic basis, the total amount could be easily worked out.
(viii) At any periodic interval, when DDO needs to deposit the TDS amount, he shall login into the GSTN Portal (using his GSTIN) and generate the CPIN (Challan). In the CPIN he shall have to fill in the desired amount of payment against one/many Major Head(s) (CGST/SGST/UTGST/IGST) and the relevant component (e.g. Tax) under each of the Major Head for the amount (already booked under the Suspense Head).
(ix) While generating the CPIN, the DDO will have to select mode of payment as either (a) NE

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n case of the OTC mode, the DDO will have to issue a Cheque in favour of one of the 25 authorized Banks. The Cheque may then be deposited along with the CPTN with any of branch of the authorized Bank so selected by the DDO.
(xiv) Upon successful payment, a CIN will be generated by the RBI/Authorized Bank and will be shared electronically with the GSTN Portal. This will get credited in the electronic Cash Ledger of the concerned DDO in the GSTN Portal. This can be viewed and the details of CIN can be noted by the DDO anytime on GSTN portal using his Login credentials.
(xv) The DDO should maintain a Register as per proforma given in Annexure 'A' to keep record of all TDS deductions made by him during the month. This Record will be helpful at the time of filing Monthly Return (FORM GSTR-7) by the DDO. The DDO may also make use of the offline utility available on the GSTN Portal for this purpose.
(xvi) The DDO shall file the Return in FORM GSTR-7 by 10th of the following month.
(xvii)

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M/s. Hindusthan National Glass & Industries Ltd. Versus Commissioner of CGST &CE, Howrah
Central Excise
2018 (11) TMI 1379 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 20-11-2018
Appeal No. E/78319/2018 – FO/76966/2018
Central Excise
Shri P.K. Choudhary, Member (Judicial)
Shri Ankit Kanodia, CA for the Appellant (s)
Shri A.K. Biswas, Suptd.(AR) the Respondent (s)
ORDER
Per Shri P.K. Choudhary
This appeal is listed for admission today. After hearing both sides and despite the amount involved in this case being less than Rs. 2.00 lakhs, the appellant intends to contest the issue on merit, which is admitted and since the issue lies in a narrow compass, with the consent of both sides the same is taken up for disposal.
2. The appellant is engaged in the manufacture of Glass & Glassware classifiable under Chapter 70 of the Central Excise Tariff Act, 1985. During the audit of the records and documents it was observed that the appellant had cleared old and

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seventy eight) only on the assessee under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. However, I allow the benefit for payment of reduced penalty of 25% (Twenty five percent) of the duty amount to the assessee subject to fulfillment of the conditions as laid down in Section 11AC(1)(c ) of the Central Excise Act, 1944.
4. I order for appropriation of Rs. 1,02,678/- (Rupees one lakh two thousand six hundred and seventy eight) only already paid vide RG- 23A Pt II entry Sl.No.416 dt. 28.04.2015.”
Against the adjudication order, both the assessee and the Revenue were in appeal before the lower appellate authority and the ld. Commissioner of CGST & CX, upheld the Order-in-Original to the extent of confirmation of duty and imposition of penalty and rejected the appeal filed by the assessee and allowed the revenue's appeal by ordering for recovery of interest under Section 11AA of the Central Excise Act, 1944. Hence the present appeal

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td. [2016(341) ELT 607 (All.)].
4. Ld. DR reiterates the discussions and findings of the impugned order.
5. Heard both sides and perused the appeal records.
6. The dispute in the present case is regarding the payment of interest and imposition of penalty. It is the case of the appellant that ld. Adjudicating Authority accepted the fact that the appellant had reversed the amount of cenvat credit of Rs. 1,02,678/- before issuance of the show cause notice. He also observed that since sufficient balance was always lying in their cenvat account since the date of credit taken till the reversal of the same, he waived the payment of interest. However, penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 was imposed.
7. I find that the issue is covered by the decision of the Hon'ble High Court at Allahabad in the case of Commr. Of Cus. & C.Ex., Noida vs. Supreme Industries Ltd. (supra). The relevant portions of the aforesaid decisi

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under Section 11AC and interest under Section 11AB is issued, this would show that there was no question of any fraud, misrepresentation or suppression of fact hence penalty and interest should not be levied. In Rashtriya Ispat Nigam Ltd. v. Commissioner of Central Excise, Visakhapatnam, 2003 (161) E.L.T. 285 (Tri. – Bang.), took this view. The department preferred appeal in Supreme Court and vide judgment dated 7-5-2003, appeals are dismissed and judgment is reported in 2004 (163) E.L.T. A53 (S.C.). Thereafter, Madras High Court in Commissioner v. Kjon Engineering (P) Ltd., 2005 (67) RLT 157, Karnataka High Court in Commissioner, Central Excise, Mangalore v. Shree Krishna Pipe Industries, 2004 (165) E.L.T. 508, Bombay High Court in Commissioner of Central Excise-I v. Gaurav Mercantiles Ltd., 2005 (129) ECR 386 = 2005 (190) E.L.T. 11 (Bom.) and Rajasthan High Court in Union of India and Others v. T.P.L. Industries Ltd., 2007 (214) E.L.T. 506, have taken the same view.
5. Confronted

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Modern India Concast Ltd. Versus Commissioner of CGST &CE, Siliguri
Central Excise
2018 (11) TMI 1378 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 20-11-2018
Appeal No. E/78353/2018 – FO/76967/2018
Central Excise
Shri P.K. Choudhary, Member (Judicial)
Shri Arun Kumar Nandy, Consultant for the Appellant (s)
Shri A.K. Biswas, Suptd.(AR) the Respondent (s)
ORDER
Per Shri P.K. Choudhary
This appeal is listed for admission today. After hearing both sides and despite the amount involved in this case being less than Rs. 2.00 lakhs, the appellant intends to contest the issue on merit, which is admitted and since the issue lies in a narrow compass, with the consent of both sides the same is taken up for disposal.

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g authority confirmed the demand of duty amounting to Rs. 2,28,032/- alongwith interest and imposed penalty of equal amount under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. On appeal, the ld. Commissioner (Appeals) upheld the adjudication order to the extent of demand of duty and interest. He reduced the imposition of penalty to 50% of the duty amount confirmed i.e. 1,14,016 (50% of Rs. 2,28,032/-). Hence, the present appeal before this Tribunal.
3. Ld. Consultant appearing on behalf of the appellant submits that the adjudication order has been passed without scrutinizing the transport documents of the appellant. He strongly argued that the adjudicating authority ought to have worked

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% of the penalty of Rs. 77,885/- vide GAR-7 Challan No.00166 dt. 30.05.2013. Ld. Consultant cited various decisions where it was held that penalty is not imposable when dispute related to interpretation of statutory provisions.
4. Ld. DR reiterates the order of the lower authorities.
5. Heard both sides and perused the appeal record.
6. I find that the appellant is not disputing the demand of duty and interest and have also paid 50% of the penalty of the admitted demand. However, they are claiming that there is some discrepancy in the demand confirmed to the tune of Rs. 2,28,032/-, whereas as per their calculation, the total demand should have been Rs. 1,55,768/-. I find that the issue is covered by the judgment of the Hon'ble Supreme Co

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M/s. Utkarsh India Ltd. Versus Commissioner of CGST, Haldia
Central Excise
2018 (11) TMI 1377 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 20-11-2018
Appeal No. E/78043/2018 – FO/76968/2018
Central Excise
Shri P.K. Choudhary, Member (Judicial)
Shri N.K. Chowdhury, Advocate for the Appellant (s)
Shri A.K. Biswas, Suptd. (AR) the Respondent (s)
ORDER
Per Shri P.K. Choudhary
This appeal is listed for admission today. After hearing both sides and despite the amount involved in this case being less than Rs. 2.00 lakhs, the appellant intends to contest the issue on merit, which is admitted and since the issue lies in a narrow compass, with the consent of both sides the same is taken up for disposal.
2. The appellant is engaged in the manufacture of M.S. Pole Black Pipe, G.I. Pipe, S.T. Pole Accessories, G.I. H.M. Pole, G.I. Tower, PVC/SWR Pipe & Fittings, Hand Pump etc. classifiable under Chapter 73,39 and 84 of the First Schedule to the Central Excise Ta

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present appeal before this Tribunal.
3. Ld. Advocate appearing on behalf of the appellant submits that the entire amount of cenvat credit alleged to have irregularly availed, was already reversed in the month of August, 2012 and the same was duly reflected in their ER I Returns. Subsequently, the interest amounting to Rs. 18,552/- was also paid vide Challan Sl.No.00053470609201205144 dated 06.09.2012. I find from the records that this fact has been mentioned in the show cause notice dated 11.01.2013. Ld. Advocate further submits that he is only challenging the imposition of penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 before the Tribunal since the appellant had already reversed the credit taken by them and have also paid the interest thereon. I find from the records that the said credit was adjusted before issuance of the show cause notice and this fact also finds mention in the show cause notice itself. Hence, there

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n as the same was pointed out by the department, much before the issuance of the show cause notice, therefore, no penalty is attracted in this case in view of the various decisions of the Tribunal.
8. I find that the cenvat credit taken by the appellant was reversed much before issuance of the show cause notice and the same has already been appropriated by the adjudicating authority. Though there is allegation in the show cause notice regarding suppression, but it has not been specifically explained in the show cause notice as well as in the adjudication order as to how the intent to evade payment of the Central Excise duty is established taking into consideration that the appellant is subjected to periodical audit by the department and the documents on the basis of which credit has been taken was available for inspection of the audit.
9. In view of the above discussions and relied upon judicial decisions, it is held that penalty imposed under Rule 15(2) of the Cenvat Credit Rules, 2

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Link Autotech Pvt Ltd Versus CCT, CE & ST, Medchal – GST
Central Excise
2018 (11) TMI 1376 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 20-11-2018
E/30608/2018 – A/31485/2018
Central Excise
Mr. P. Venkata Subba Rao, Member (Technical)
Shri G. Prahlad, Advocate for the Appellant.
Shri V.R. Pavan Kumar, Superintendent/AR for the Respondent.
ORDER
Per: P.V. Subba Rao.
1. This appeal has been filed against Order-in-Appeal No. HYD-EXCUS-MDAP2- 0273-17-18 dated 01.03.2018.
2. The appellant herein is a manufacturer of high security registration plates for vehicles registered under the States of Telangana and Andhra Pradesh. An audit was conducted at the premises of the appellant in period April, 2012 to March, 2016 and a show cause notice dated 23.05.2017 was issued to the appellant for recovery of credit of Rs. 1,71,944/- along with interest and it was also proposed to impose penalty. This denial was on five grounds. The lower authority confirmed th

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ioning the address of the appellant should not disentitle them to CENVAT Credit. He relied on the following decisions of the Tribunal.
(i) CCE Vapi Vs DNH Spinners [2009 (16) STR 418 (Tri-Ahm)]
(ii) Deloitte Haskins & Sales Vs CCE Thane [2015 (38) STR 1220 (Tri-Mumbai)]
(iii) Kemwell Biopharma Pvt Ltd Vs CCE, Bangalore [2017 (47) STR 70 (Tri-Bangalore)]
(b) Denial of Rs. 29,766/- in respect of invoice issued by M/s Strategic International for providing business support services on the ground that the name of the appellant itself does not figure in the invoice. Learned counsel submits that they have received these services and not mentioning the name of the recipient in the invoice is a technical lapse for which they should not be denied CENVAT Credit.
(c) Denial of Rs. 73,571/- on input services during the availment of SSI benefit. The appellant submits that they had availed the benefit of Exemption Notification No. 08/20013 which provides for exemption based on the value of cr

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atsoever to show that this service was used by the appellant in their premises in Hyderabad. Insofar as the denial of Rs. 29,766/- provided by M/s Strategic International is concerned, it is his submission that the services in question do not pertain to the appellant at all and hence, credit cannot be allowed. Insofar as the denial of credit of Rs. 73,571/- is concerned, learned departmental representative states that the credit was not sought to be denied on the ground that they have availed SSI exemption under Notification No. 8/2003 and hence, credit on input services is not available. He asserts that the credit was sought to be denied in terms of the transitional provisions under Rule 11 of the CENVAT Credit Rules. He, therefore, asserts that CENVAT Credit is not admissible to the appellant.
4. I have gone through the records of the case and considered the arguments on both sides. In so far as the credit of Rs. 28,523/- in respect of the invoices which were in the name of corporat

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The assesee has taken Cenvat Credit of Rs. 28,523/- on the said invoices as input services credit. Since the said invoices were raised on the address of the assesee located at New Delhi and that there is no document evidencing that the said office holds ISD registration and issued required invoices as prescribed there under, it has to be presumed that the services have not been received and used by the assesee in or in relation to the manufacture of their final products. Thus, Cenvat Credit on the said invoices is not eligible to the assesee under Rule 9(2) of the Cenvat Credit Rules, 2004.
(b) In respect of Invoice dt.03.07.2015 issued by M/s Strategic International, 14-2-340, Pan Mandi, Agapura, Hyderabad pertaining to claiming of charges for Business Support services involving input service credit of Rs. 29,766/-, it is observed that the invoice is in the name of M/s Link Point Infrastructure Pvt Ltd., thus, it does not pertain to the services provided to M/s Link Autotech Pvt Lt

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period from April, 2014 to October, 2014 in contravention of the provisions of the Notification No.8/2003-CE dated 01.03.2003″ should not be denied and recovered. This demand was confirmed in the Order-in-Original on this ground alone as below:
“11(3) Wrong availment of Cenvat Credit on inputs/ input services during the SSI exemption during the period i.e., 2014-15:
On verification of the ER-1 returns filed by the assesee, they have started manufacturing activity from December, 2013 and they have availed SSI exemption for the year 2013-14 and also during the year 2014-15. As per the said records, it was observed that they came out of the SSI exemption in the month of October, 2014, but availed Cenvat Credit of Rs. 73,571/- during the said period. I find that the assesee has availed SSI exemption from April, 2014 to September, 2014 under Notification No.8/2003-CE dated 01.03.2003 and also availed Cenvat credit during the said period, which is gross violation of the provisions of Noti

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Corrigendum regarding TSGST (13th Amendment) Rules, 2018
F.1-11(91)-TAX/GST/2018(Part-II) Dated:- 20-11-2018 Tripura SGST
GST – States
Tripura SGST
Tripura SGST
GOVERNMENT OF TRIPURA
FINANCE DEPARTMENT
(TAXES & EXCISE)
NO.F.1-11(91)-TAX/GST/2018(Part-II) Dated, Agartala, the 20th November, 2018
CORRIGENDUM
In the notification of the Government of Tripura, in the Finance Department, No.F.1-11(91)-TAX/GST/2018(Part-II), dated the 3rd November, 2018, published in the Tripura Gaz

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PRISM CEMENT LTD Versus CGST C.C & C. E-JABALPUR CGST C.E & C. C-BHOPAL
Central Excise
2018 (11) TMI 1035 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 20-11-2018
E/50161, 50421/2018-EX(DB) – Final Order No: 53303-53304/2018
Central Excise
Mr. Bijay Kumar, Member (Technical) and Mr. Ajay sharma, Member (Judicial)
Smt. Sukriti Das, Adv for the appellant
Shri M.R.Sharma,(DR) for the respondent
ORDER
Per: Bijay Kumar
1. Both the appeals are being disposed of by the common order as the issue involved in both the appeals are identical in nature
2. The appellant is in appeal against the impugned order where the Cenvat Credit has been denied to them towards outward transportation charge under GTA service for the period in January, 2005 to December, 2011 and July, 2013 to February, 2016.
3. The brief facts of the case are that the appellant is engaged in the manufacture of cement and clinker falling under chapter heading 25 of the First Schedule to the Cent

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up to period March, 2008, the definition of input service contained the phrase “from the place of removal”. The Cenvat credit availability “From place of removal” has been settled in their favour in view of Hon'ble Supreme Court order dated 17/1/2018 and 5/2/2018 in case of CCE vs. Vasavaddatta Cement Ltd., 2018(11) GSTL3 (SC) and in the case of CC, CE & ST, Guntur vs. The Andhra Sugar Ltd., 2018-TIOL-45-SC-CX.
The definition of the input service during the relevant period is reproduced as under;
(1) ” input service” means any service-
(i) used by a provider of taxable service for providing an input service, or
(ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal,
and includes services used in relation to setting up, modernization, renovation or repair of a factory, premises of provider of output service or an office relating to such factory or premises, adver

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definition of „input service‟ as existed on that date i.e. it related to unamended definition. Relevant portion of the said circular is as under :
“ISSUE : Up to what stage a manufacturer/consignor can take credit on the service tax paid on goods transport by road?
COMMENTS: This issue has been examined in great detail by the CESTAT in the case of M/s. Gujarat Ambuja Cements Ltd. vs. CCE, Ludhiana [2007 (6) S.T.R. 249 (Tri-D)]. In this case, CESTAT has made the following observations :-
“the post sale transport of manufactured goods is not an input for the manufacturer/consignor. The two clauses in the definition of „input services‟ take care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transpor

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transport of goods up to the place of removal and not beyond that.
In this connection, the phrase „place of 8.2 removal‟ needs determination taking into account the facts of an individual case and the applicable provisions. The phrase „place of removal‟ has not been defined in CENVAT Credit Rules. In terms of sub-rule (t) of Rule 2 of the said rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT Credit Rules as assigned to them in those Acts. The phrase „place of removal‟ is defined under Section 4 of the Central Excise Act, 1944. It states that, –
 “place of removal” means –
(i) a factory or any other place or premises of production or manufacture of the excisable goods;
(ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to

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e goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the Service Tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under Section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place.”
11. As can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd., 2007 (6) S.T.R. 249 (Tribunal) and M/s. Ultratech Cement Ltd., 2007 (6) S.T.R. 364 (Tri.- Ahd.). Those judgments, obviously, dealt with unamended Rule

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upshot of the aforesaid discussion would be to hold that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer‟s premises was not admissible to the respondent. Accordingly, this appeal is allowed, judgment of the High Court is set aside and the Order-in-Original dated August 22, 2011 of the Assessing Officer is restored.
7. It was further contended while Ld. Advocate that the demand is not sustainable for period beyond normal period of limitation (one year) on the ground that there was wide spread confusion about the availability of Cenvat Credit on this score.
They have acted in accordance with the provision of the law as prevalent during the relevant time. The issue was contentious issue and which has resulted into the various conflicting judgements from the various judicial fora including High Courts and Supreme Court such as;
10 September 2004
The Cenvat Credit Rules, 2004 were brought into force vide Notification N

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upra)
18 May 2009
ABB Ltd. vs. CCE, 2009 (15) S.T.R. 23(Tri-LB)
The Larger Bench held that transportation of final product must be considered in light of the requirement of the business.
15 June 2009
The Department accepted the order of the Hon'ble Punjab and Haryana High Court and decided not to file an SLP.
23 March 2011
CCE v. ABB Ltd., 2011(23) S.T.R.97(Kar.)
The Hon'ble High Court affirmed the decision of the larger bench in ABB (supra).
6 April 2011
CCE v. Parth Poly Woven Pvt. Ltd. 2012(25) S.T.R 4(Guj)
The Hon'ble Gujarat High Court held that transportation of finished goods is inextricably linked with the manufactured process.
3 October 2012
Commissioner vs Grey Gold Cement Ltd., 2014(34) S.T.R. 809(A.P)
The Hon'ble Andhra Pradesh High Court affirmed the order of the larger bench in ABB ltd.
18 November 2012
Ultratech Cement Ltd. v. CCE, 2014(35) S.T.R. 752(Tri-Del.)
The Hon'ble Tribunal held that the Assessee would be entitled to credit if the sales

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ment Ltd., 2016(44) S.T.R. 227(Kar)
The Hon'ble High Court held that credit on FOR destination sales is admissible Appealed before SC (Civil Appeal No. 11261 of 2016)
17 January 2018
CCE, Belgaumn vs. Vasavadatta Cement Ltd., 2018(11)GSTL 3(SC)
The Hon'ble Supreme Court held that the credit would be admissible for the period prior to the amendment in 2008
-01 February 2018
CCE & ST vs. Ultratech Cement Ltd. 2018(9) GSTL 337(SC)
The Hon'ble Supreme Court held that credit is inadmissible for the period after the amendment in 2008
05 February 2018
 
Commissioner vs. The Andhra Sugar Ltd., 2018 TIOL 45 SC CX
The Hon'ble Supreme Court held that the credit would be admissible for the period prior to the amendment in 2008
8. Ld. Ld. Advocate further submitted that the various decisions of High Courts and Tribunal, were also in the favour of appellant, and therefore, in such a circumstances it cannot be held that the appellant had any malafide intention to avail the Cenva

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Back office support services for overseas clients, like payroll processing, are subject to GST, including post-transaction services.
Notes
GST
Levy of GST on providing back office support ser

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Levy of GST on providing back office support services, payroll processing, to main records of employees and after finalization of purchase / sale between the client and its customers.
Section 13 – Place of supply of services where location of supplier or location of recipient is outside India. INTEGRATED GOODS AND SERVICES TAX ACT, 2017
GST
Act-Rules
Dated:- 19-11-2018
Section 2 – Definitions.
Section 13 – Place of supply of services where location of supplier or location of recipient is outside India.
INTEGRATED GOODS AND SERVICES TAX ACT, 2017
2018 (11) TMI 959 – AUTHORITY FOR ADVANCE RULING
Levy of GST – palace of supply of services – providing back office services to overseas clients – scope of the definition and ter

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s of employees to overseas companies i.e. clients and after finalization of purchase / sale between the client and its customers.
Applicant is clearly covered and falls within in the definition of an intermediary as defined under the IGST Act. – Section 13(8) of the IGST is applicable in this case to determine place of supply – In the instant case and as per the applicant's own admission, the applicant is supplier of services. – The place of supply in case of services provided by the applicant being intermediary would be the location of supplier of services.
To qualify a transaction of supply of services as export of services that transaction has to satisfy all five ingredients of the definition of export of services simultaneously. In th

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Prototyping Services in India Subject to IGST Despite Zero-Rated Supply Status Due to Local Provision.
Case-Laws
GST
Levy of IGST – Zero-rated supply – the said services of testing of the pro

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Applicant Liable for IGST on Lottery Tickets via Reverse Charge Mechanism u/s 5(3) of IGST Act 2017.
Case-Laws
GST
Levy of IGST u/s 5 (3) of IGST act, 2017 – supply of lottery tickets by the

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GST Applies to DFIA License Transactions; Distinct from Duty Credit Scrips and Not Classified as Such.
Case-Laws
GST
Levy of GST – Sale and/or Purchase of DFIA licenses – DFIA is distinguisha

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Penal Interest on EMI Defaults is Taxable Supply Under GST; Subject to GST as Supply of Services.
Case-Laws
GST
Levy of GST – collected penal interest for default in repayment of EMI – The ac

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GST Applies to Education and Training Programs by Cooperative Centers; No Exemption for These Services Under GST Rules.
Case-Laws
GST
Levy of GST – education and training programmes conducted

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DISCOUNTS Credit Notes
Query (Issue) Started By: – BALAKRRISHNA PATNAIK Dated:- 19-11-2018 Last Reply Date:- 21-11-2018 Goods and Services Tax – GST
Got 6 Replies
GST
My co. operating Super distributor set up, where in My Co. Invoices to the Super distributors also we some time ask to supply to selected supply in discounted rate. The price difference being claimed to us by super distributors.
My question is while settling of the price difference claim as a Mfg co. can we take GST on such price difference ?
please respond.
Thanks
Balakrrishna Patnaik
Reply By Ganeshan Kalyani:
The Reply:
Yes, you can take GST benefit on the discount amount given by you. The condition is the buyer has to reverse the input tax credit claimed

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w the GST impact on this transaction.
Thanks & Best regards,
Balakrishna Patnaik
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
If there is an agreement between the parties regarding to discount then such discount may be given. No time limit is in law for this. Earlier is advisable.
Reply By Ganeshan Kalyani:
The Reply:
Restriction on taking input tax credit on purchase invoice /debit note is given in section 16. However, the word credit note is not mentioned in it. Hence, I am also of the view that discount can be given in the timlines as mentioned in your query.
Reply By Ganeshan Kalyani:
The Reply:
In view of section 34 which states as under :
(2) Any registered person who issues 2[one or more credit notes for supplies made in a

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VST Industries Ltd Versus CCT, Secunderabad – GST
Central Excise
2019 (2) TMI 403 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 19-11-2018
Appeal No. E/30609/2018 – A/31566/2018
Central Excise
Mr. P. Venkata Subba Rao, Member (Technical)
Shri S. Thirumalai, Advocate for the Appellant.
Shri N. Bhanu Kiran, Asst. Commissioner/AR for the Respondent.
ORDER
Per: P.V. Subba Rao.
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-SCAP2- 0247-17-18 dated 09.02.2018.
2. The appellant herein is a manufacturer of cigarettes and the dispute is regarding the CENVAT credit availed on BOPP film and paper which are used for packing the cigarettes. Some part of the BOPP film and the paper become waste

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vision of exempted services or input services as is used in or in relation to the manufacture of exempted goods and their clearance up to the place of removal. Explanation (1) has been added to this Rule as follows.
“For the purpose of this Rule, exempted goods or final products as defined in clauses 'd' and 'h' of Rule 2 shall include non-excisable goods cleared for consideration from the factory.”
4. The department's contention is that in view of the explanation (1) to Rule 6 of CENVAT Credit Rules, 2004, the BOPP film and waste paper scrap, both of which are admittedly waste materials, should be treated as non-excisable goods cleared for consideration and proportionate amount of CENVAT credit has to be reversed.
5. Learned counsel wo

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as been held by the Hon'ble Tribunal in the aforesaid case laws.
6. Learned departmental representative reiterates the findings of the lower authorities and seeks to rely on the CBEC Circular No.1027/15/2016- CX dated 25/04/2016 in which it was clarified in Para 4.2 as follows.
“Consequently, Bagasse, Dross and Skimmings of non-ferrous metals or any such by-product or waste, which are non-excisable goods and are cleared for a consideration from the factory need to be treated like exempted goods for the purpose of reversal of credit of input and input services, in terms of rule 6 of the CENVAT Credit Rules, 2004.”
7. In view of the above, learned departmental representative would argue that the legal position with respect to reversal of

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M/s K.L. Concast P. Ltd. Versus Commissioner, Central GST, Ghaziabad
Central Excise
2019 (1) TMI 701 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 19-11-2018
APPEAL No. E/71246/2018-EX[SM] – A/72643/2018-SM[BR]
Central Excise
Mrs. Archana Wadhwa, Member (Judicial)
Shri Rajesh Chhibber (Advocate) for Appellant
Shri Pawan Kumar Singh (Superintendent) AR for Respondent
ORDER
Per: Archana Wadhwa
After hearing both the side duly represented by Shri Rajesh Chhibber, Advocate for the appellant and Shri Pawan Kumar Singh, Superintendent, AR for the Revenue. I find that the appellant was engaged in the manufacture of MS Shapes and Sections. As per the audit conducted in their factory it was found that the appel

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the assessee by observing that they have paid the duty along with interest even before the issuance of the show cause notice.
3. The said order was appealed against by the Revenue before Commissioner (Appeals) for the purpose of imposition of penalty. The Appellate Authority observed that inasmuch as the appellant cleared the said goods without reflecting the same in their ER-1 return and without paying any duty on the same, they are guilty of mala fide suppression. Accordingly, by taking into account the provisions of Section 11AC (c) of the Central Excise Act he imposed penalty of Rs. 1,33,910/-, being 50% of the total demand of duty.
The said penalty is being challenged before Tribunal.
4. It is appellant's contention that they were n

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former was by raising an invoice in which case, it cannot be said that there was any mala fide on the part of the assessee to suppress the fact of clearance of the transformer. Non-payment duty by itself cannot lead to ipso facto presence of any mala fide. Tribunal in the case of Commissioner of Central Excise & Customs, Aurangabad vs. Shrigonda Sahakari Sakhar Karkhana Ltd. reported at 2015 (327) E.L.T. 429 (Tri-Mumbai) in similar circumstances, set aside the penalty imposed upon the assessee.
6. In view of the foregoing discussions I find no justifiable reason to impose penalty upon the appellant. Accordingly, the impugned order of Commissioner (Appeals) is set aside and appeal is allowed by restoring the order of the Original Adjudicati

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KM Trading & Agencies Pvt. Ltd. Versus C.C.E. & CGST, Jaipur
Service Tax
2019 (1) TMI 320 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 19-11-2018
Service Tax Appeal No. ST/51602/2018 [SM] – A/53340/2018-SM[BR]
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Chirag Jain, CA
Present for the Respondent: Mr. P.R. Gupta, DR
ORDER
PER: RACHNA GUPTA
Present is an Appeal directed against the Order-in-Appeal No. 27 dated 01.02.2018. The appellants are engaged in providing renting of immovable property services. Department during an audit, on scrutiny of ST-3 returns/ challan observed that the appellant had made delayed payment of service tax for the period w.e.f. April 2008 to September 2012. However, no interest was paid on the said delayed payment. Accordingly, a Show Cause Notice No. 10060 dated 01.08.2014 was served upon the appellants proposing the recovery for Rs. 2,87,881/- as an interest to be paid on delayed paymen

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Specifically due to the decision of Hon'ble Delhi High Court in the case of Home Solutions Retails India Ltd. & others Vs. Union of India 2009(14) STR 433 vide which the levy of service tax on renting of renting of immovable property was struck down. Observing that renting in itself is not a service as it does not involve any value addition. It is submitted that due to this decision the tenants stopped paying service tax amount and therefore the liability could not be discharged for the said period by the appellant. It is further submitted that entire above facts were very well to the notice of the Department. Still the Show Cause Notice as has been issued on 19.08.2014 is very much beyond the one year period as is prescribed for the issuance thereof. It is submitted that in view of the reason mentioned above there was no intention of the appellant to evade the duty. Department was not entitled to invoke the extended period of limitation. The Show Cause notice is alleged by barred by t

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ails to deposit service tax or any part thereof within the period prescribed.
5. After hearing both the parties and perusing the entire record, I am of the opinion as follows:-
In the impugned case, it is the demand of interest on the delayed payment of service tax in accordance of Section 75 was initially proposed and subsequently confirmed. The admitted facts apparent from the record including the Orders of both the Adjudicating Authorities below are:
(i) That out of the entire disputed period as mentioned in the Show Cause Notice, the payment of service tax for the period of April 2008 to March 2009 and for April 2012 to September 2012 has been made in time.
(ii) With respect to the remaining period of April, 2009 to March, 2012 the same could not be deposited due to not being received from tenants in view of Delhi High Court decision as above. However, the full tax was deposited by the appellant before the issuance of the Show Cause Notice.
I observed that there has been an am

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or the said amendment but since the amendment is beneficial in nature, retrospect effect can be given to the said amendment. Therefore, no question of imposition of penalty at all arises.
6. The appellant has otherwise challenged the Show Cause Notice on the ground of limitation more than on the ground of merits. In view of the above discussion and the facts on record as far as the period and date of Show Cause Notice is concerned, Show Cause Notice is apparently beyond the normal period of one year. There is the apparent acknowledgment on the part of the Adjudicating Authority about the decision of Delhi High Court as has been impressed upon by the appellant. In the given circumstances, the non-payment was actually due to the said prevalent confusion. There is nothing on record which may be considered as an evidence qua positive act of the appellant of having an intention to evade the duty for the said period. Once there is no such intention apparent, Department was not entitled to i

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M/s. Hindustan Petroleum Corporation Ltd. Versus Commissioner of CGST, Kolkata (North)
Central Excise
2018 (12) TMI 163 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 19-11-2018
Appeal No. E/78022/2018 – FO/76969/2018
Central Excise
Shri P.K. Choudhary, Member (Judicial)
Shri Madhusudan Lila, Manager for the Appellant (s)
Shri A.K. Biswas, Suptd.(AR) the Respondent (s)
ORDER
Per Shri P.K. Choudhary
This appeal is listed for admission today. After hearing both sides and despite the amount involved in this case being less than Rs. 2.00 lakhs, the appellant intends to contest the issue on merit, which is admitted and since the issue lies in a narrow compass, with the consent of both sides the same is taken up for disposal.
2. The only dispute in this appeal is regarding the demand of Rs. 47,544/-, demanded on account of interest in terms of Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AA of Central Excise Act, 1944.
4. Ld. Representative app

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the Board's Circular dated 03.09.2009 observed that interest is payable even when credit has not been utilized. I find that the Larger Bench of the Tribunal in the case of J.K. Tyre & Industries Ltd. v. Asst. Commr. of C.Ex., Mysore [2016 (340) E.L.T. 393 (Tri.-LB)] held that wrong availment of Cenvat Credit, interest is not payable, if reversed before utilization. The Tribunal in the case of Garden Silk Mills Ltd. v. Commissioners of Central Excise, Customs & Service Tax- Surat-I [2015 SCC Online CESTAT 2361] on the identical issue held in favour of the assessee. The relevant portion of the said decision is reproduced below:-
“4. The learned Authorised Representative for the Revenue strongly refutes the arguments of the learned Counsel and submits that the appellants had reversed the Credit only after the audit pointed out the same and after persuasion by the officers. He also submits that on the issue of interest, there are other decisions by the Hon'ble High Court of Madras and als

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t of the said Cenvat Credit by any other unit. It is also observed that the appellants had reversed the Cenvat Credit on being pointed out by the audit. The appellants have not seriously contested the necessity or correctness of reversal of the Cenvat Credit before the lower authorities. However, they are seriously contesting the levy of interest and penalty. On the issue of levy of interest, there are conflicting decisions by various Hon'ble High Courts and different Benches of the Hon'ble Tribunal. It is seen that the Hon'ble High Court of Gujarat has observed in Para 7 in the case of Dynaflex Pvt. Ltd. (supra), as under :
“7. In this regard it may be germane to refer to the decision of the Apex Court in the case of Commissioner of C. Ex., Mumbai-I v. Bombay Dyeing & Mfg. Co. Ltd., 2007 (215) E.L.T. 3 (S.C.), wherein it has held been that when an entry has been reversed before utilization the same amounts to not taking credit. Rule 14 of the Rules makes provision for recovery of i

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ill the time of reversal of the same. Therefore, the decision of Hon'ble Jurisdictional High Court, relying upon the decision of the Hon'ble Supreme Court on the very same issue is applicable in this case. We, therefore, hold that no interest is payable in the present case. On the issue of penalty under Section 11AC, it is seen that the same is not leviable as there were no intention to evade duty, as is evident from the facts of the case.
7. In the light of the above analysis, we set aside the demand of interest under the provisions of Rule 14 of Cenvat Credit Rules 2004, and penalty under Section 11AC of Central Excise Act 1944. Order-in-Original is upheld with the above modifications. The appeal is allowed on these terms.”
6. Hence, the demand of interest on unutilised Cenvat Credit, cannot be sustained.
7. In view of the above discussion, and as per the submission made by the ld. Representative of the appellant company, the impugned order is modified to the extent, the demand

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Commissioner of GST and Central Excise J&K Versus Cadila Pharmaceuticals Ltd.
Central Excise
2018 (12) TMI 101 – JAMMU AND KASHMIR HIGH COURT – TMI
JAMMU AND KASHMIR HIGH COURT – HC
Dated:- 19-11-2018
MCC No. 267/2018 c/w CEA No. 21/2018, IA No. 01/2018
Central Excise
The Chief Justice And Mr. Justice Rajesh Bindal, Judge
For the Petitioner : Mr. Jagpaul Singh, Advocate.
For the Respondent : None
ORDER
MCC NO. 267/2018
For the reasons stated in the application which is supported by an affidavit, the same is allowed. Accordingly, providing of the certified copy of the impugned order is dispensed with.
CEA No. 21/2018
It is submitted that the issue raised in the present case is subject matter of consideration in L

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SREE GANESH GEARS PVT. LTD. Versus ASSISTANT STATE TAX OFFICER, SQUAD NO. IV, STATE GST DEPARTMENT, PALAKKAD, KERALA, STATE TAX OFFICER, KERALA, COMMISSIONER, STATE TAX DEPARTMENT, GOVT. OF KERALA, TRIVANDRUM, STATE OF KERALA, REP. BY SECRETARY TO GOVT., GOODS AND SERVICE TAX AUTHORITY, TRIVANDRUM AND M/s KERALA AGRO MACHINERY CORPORATION LTD., ERNAKULAM
GST
2018 (11) TMI 1191 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 19-11-2018
WP (C). No. 37609 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADV. SRI.C.K.SREEJITH
For The Respondents : SMT. M.M.JASMINE, GP
JUDGMENT
The petitioner, a consignor, had its goods detained. With the proceedings under Section 129 of GST Act pending before the S

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LG Electronics India Pvt. Ltd. Versus State of U.P. And 03 Others
GST
2018 (11) TMI 1130 – ALLAHABAD HIGH COURT – TMI
ALLAHABAD HIGH COURT – HC
Dated:- 19-11-2018
Writ Tax No. – 620 of 2018
GST
Pankaj Mithal  And Ashok Kumar JJ.
For the Petitioner : Atul Gupta,Utkarsh Malviya
For the Respondent : C.S.C.,Gyan Prakash
ORDER
Heard Sri Atul Gupta, learned counsel for the petitioner and Sri C.B. Tripathi, learned counsel appearing for the respondents.
The goods of the petitioner in movement from Haryana to Greater NOIDA were seized on 26.3.2018 on the ground that they were not accompanied with the E-way bill.
The submission of Sri Gupta, learned counsel for the petitioner is that during the period from 1.2.2018 t

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Afflatus International Versus Union of India and others
GST
2018 (11) TMI 1129 – PUNJAB AND HARYANA HIGH COURT – 2018 (19) G. S. T. L. 577 (P & H)
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 19-11-2018
CWP-28035-2018
GST
MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL
For The Petitioner : Mr. Rajesh Mahna, Advocate, Mr. Umesh Sarwal, Advocate and Mr. Ramanand Roy, Advocate
ORDER
AJAY KUMAR MITTAL, J.
1. In this writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus directing the respondents to release its refund along with interest.
2. The petitioner is engaged in the business of export of garments and is having GSTN No.06AAGFA0878E1ZO

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dent No.2 for re-credit of Input Tax Credit in electronic credit ledger, but to no effect. Thereafter, the reminders 31.8.2018, 28.8.2018 and 14.9.2018 (Annexures P-15 to P-18 respectively) were sent for the similar relief, but no response has been received till date. Hence, the present writ petition.
3. Learned counsel for the petitioner submitted that for the relief claimed in the writ petition, the petitioner has moved a representation dated 30.8.2018 (Annexure P-14) followed by the reminders (Annexures P-15 to P-18, respectively) to the respondents, but no action has so far been taken thereon.
4. After hearing learned counsel for the petitioner, perusing the present petition and without expressing any opinion on the merits of the case

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Supply and Installation of Electric Overhead Travelling Crane – a works contract or Supply of goods?
Query (Issue) Started By: – Shyam Agarwal Dated:- 18-11-2018 Last Reply Date:- 6-1-2019 Goods and Services Tax – GST
Got 12 Replies
GST
Query is regarding Combined contract for Supply and Installation of Electric Overhead Travelling Crane. Whether the same should be considered as a works contract under GST or supply of Goods that is Crane.
As per recent Advance Rulling of Maharashtra – In case of M/s Mukund Ltd-GST AAR Maharashtra = 2018 (10) TMI 1243 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA , it is held that EOT Grab Cranes r liable for GST@5% as these are used for waste to energy product as a Renewable Energy. In this it was also discussed that Electric Overhead Travelling Grab Crane attached to the fixed support classifiable under Tariff heading 84261100.Is it mean that AAR held EOT Cranes as a goods? But after Installation the same should be considered as a works co

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e Reply:
In my view, it is a works contract.
Reply By Shyam Agarwal:
The Reply:
Will your reply differ if gantry beam over which EOT Cranes run is already affixed by client himself with his structure (actually building design itself require some specification if there will be Installation of Electronic Overhead Travelling Crane) and we supply the EOT Crane and install the same on Gantry Beams which is already affixed by client and we do only supply, install and Commissioning the crane.
Reply By Vamsi Krishna:
The Reply:
Under GST laws, the definition of “Works Contract” has been restricted to any work undertaken for an “Immovable Property” unlike the existing VAT and Service Tax provisions where works contracts for movable properties were also considered.
The Works Contracts has been defined in Section 2(119) of the CGST Act, 2017 as “works contract” means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modificatio

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y to install EOT Crane on the Gantry Beams.
Reply By Ganeshan Kalyani:
The Reply:
In my view, it is works contract service. The definition of works contract service is clear.
Reply By Ganeshan Kalyani:
The Reply:
In re. 'Precision Automation And Robotics India Limited' – 2018 (9) TMI 1106 – AAR, Maharashtra
Reply By Shyam Agarwal:
The Reply:
Thanks Sir for your reply please also clear 2nd issue where in Gantry Beams which is attached to Building is in the scope of customer and our scope is to supply the EOT Crane and install the same on the pre fabricated Gantry beams where in the wheels of the EOT Cranes are installed so that they can run and Complete Commissioning of the same then still it remains works contract..
Reply By Ganeshan Kalyani:
The Reply:
I will compare this with lift. In case of lift the final assembling of the lift parts happens at customer sight. This falls under works contract service. Similar would be the case of yours.
Reply By kollengode venkitaraman:
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