Shafi Khan Khokhar Versus State of Maharashtra & Ors.

Shafi Khan Khokhar Versus State of Maharashtra & Ors.
GST
2018 (12) TMI 1354 – BOMBAY HIGH COURT – 2019 (20) G. S. T. L. 513 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 21-12-2018
WRIT PETITION NO. 2951 OF 2018
GST
AKIL KURESHI & M.S. SANKLECHA, JJ.
Mr. Anand Mishra i/by Mr. A.M.Saraogi for the Petitioner
Mr. Amit Shastri, AGP for Respondent No. 1
Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for Respondent Nos. 2 & 3  
P.C.:
1. This petition under Article 226 of the Constitution of India seeks to challenge an enquiry initiated by respondent No. 2 – The Superintendent of CGST & Central Excise (AE) Mumbai. This by issuing summons to him dated 28.9.2018 under Section 14 of the Central Excise Act, 1944 and Section 70 of th

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etitioner has taken registration under the CGST Act 2017 & Finance Act, 1994 (service tax) in Mumbai. Thus, having taken registration, he is subject to the jurisdiction of Mumbai authorities in respect of the business which he has carried out within jurisdiction of the authority. It is the case of the petitioner that primarily his business is at Jaipur. This, however, would not determine the issue of whether or not respondent No. 2 has jurisdiction. This is more particularly so as Section 25 of the CGST Act 2017 provides for a separate registration in respect of each state. Once registration has been taken in Mumbai and some services have been rendered in Mumbai, then the petitioner is subject to the jurisdiction of Mumbai Authorities. Thus

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Adlabs Entertainment Limited Versus Union of India

Adlabs Entertainment Limited Versus Union of India
GST
2018 (12) TMI 1353 – BOMBAY HIGH COURT – 2019 (27) G. S. T. L. 351 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 21-12-2018
WRIT PETITION NO. 3027 OF 2018
GST
AKIL KURESHI & M.S. SANKLECHA, JJ.
Mr. Abhishek Rastogi a/w Mr. Ankit Shah, Ms. Rashmi Deshpande i/by Khaitan & Co for the Petitioner
Mr. S.P. Bharti for Respondent No. 5
Mr. Himanshu Takke, AGP for Respondent Nos. 3 and 4
Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for Respondent Nos. 1 & 2  
P.C.:
1. Petitioner, a limited company, has set up a theme park and water park at Khalapur, Maharashtra by making sizable capital investment. As a part of the tourism policy of the State Government, the petitioner was o

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he petitioner would now have to pay tax @ 18% of GST at par with other entities. According to the petitioner, this made the petitioner's business totally unviable. The petitioner had borrowed funds from banks and financial institutions for making capital investment which the petitioner was unable to repay on time.
3. Learned counsel for the petitioner submitted that the petitioner was granted incentive under the state tourism policy. The petitioner was unable to recover even its capital investment because the entire tax structure changed with the advent of GST. Under similar circumstances, the State of Rajasthan has issued notification granting partial relief to the similar industries. Learned counsel states that even the State of Utta

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In Re: Pew Engineering Pvt. Ltd.

In Re: Pew Engineering Pvt. Ltd.
GST
2018 (12) TMI 1277 – AUTHORITY FOR ADVANCE RULINGS WEST BENGAL – 2019 (20) G. S. T. L. 660 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS WEST BENGAL – AAR
Dated:- 21-12-2018
29/WBAAR/2018-19 Case No. 27 of 2018
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY MEMBER
Applicant's representative heard: Sri Sandeep Choraria, Advocate Sri Akshat Agarwal, Advocate
1. The Applicant, stated to have received a tender from the Indian Railways (hereinafter referred to as “the Contractee”) for retro-fitment of Twin Pipe Air Brake Systems on wagons, seeks a Ruling as to whether such activity under contract is to be treated as Composite Contract or Works Contract, and If it is determined to be a Composite Contact, whether the Principal Supply will be the supply of the Twin Pipe Air Brake Systems or the supply of services of fitting these goods to the wagons, and what should be the appropriate classification of the supply and rate of tax.
Advance

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do on-site inspection of fabrication and assembly at various stages of the work in progress and also the final inspection of the complete wagon before issuance of the completion/inspection certificate for each wagon. The Applicant shall provide the necessary facilities for the inspection.
Scrap generated during fabrication and assembly work shall be retained by the Contractee.
3. The Applicant argues that the contract is a single indivisible contract for a Composite Supply, where the supply of goods (i.e. the twin pipe air brake systems) is the Principal Supply constituting about 90% of the contract value, and, hence, should be treated as the predominant element of the supply.
The service of fitting the brake to the wagon, the Applicant submits, is ancillary to the supply of these goods.
4. The contract is for retro-fitment of twin pipe air brake system on wagons. Retro-fitment of twin pipe air brake system involves supply of goods, the air brake system, and supply of service for

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y. No payment is made separately for the supply of goods. Also, the provision for on account payment based on progress of work indicates that the supply of goods is inseparably linked with the supply of service. Mere delivery of the Twin Pipe Air Brake Systems is not sufficient discharge of contractual obligation. Work is measured based on its assembling and fitting on the wagon. In fact, the contract is not only for supply of the air brake system, but also for its retro-fitment. It is, therefore, evident that the two supplies, as far as the terms of this contract, are naturally bundled in the ordinary course of business.
6. In the context of the contract, the supply of the service of fitting the Twin Pipe Air Brake Systems to the wagon cannot be made unless the goods have already been supplied. The supply of services of the fitting is, therefore, dependent upon and ancillary to supply of the Twin Pipe Air Brake Systems. Predominant supply is, therefore, of the Twin Pipe Air Brake Sys

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y of Twin Pipe Air Brake Systems.
8. Twin Pipe Air Brake System is classifiable under Tariff Head 8607 21 00 [Parts of Railway….Air Brakes and part thereof] which is taxable @ 5% under Serial No. 241 of Schedule I of Notification No. 01/2017 – CT (Rate) dated 28/06/2017 with no benefit of refund of the unutilized input tax credit (as per TRU Clarification issued under F.No.354/1/2018-TRU dated 25/01/2018).
In view of the foregoing we rule as under
RULING
The Applicant's contract for retro-fitment of Twin Pipe Air Brake System on Railway Wagons is to be treated as Composite Supply, where the Twin Pipe Air Brake System is the Principal Supply.
Twin Pipe Air Brake System is classifiable under Tariff Head 8607 21 00 and is taxable @ 5% [in terms of Serial No. 241 of Schedule I of Notification No. 01/2017 – CT (Rate) dated 28/06/2017] with no refund of the unutilized input tax credit [as clarified in TRU Clarification issued under F.No.354/1/2018-TRU dated 25/01/2018].
This Ruling i

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In Re: Swapna Printing Works Private Limited

In Re: Swapna Printing Works Private Limited
GST
2018 (12) TMI 1227 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (20) G. S. T. L. 663 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 21-12-2018
28/WBAAR/2018-19 Case No. 26 of 2018
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY MEMBER
Applicant's Representative: Indranil Das, CA
1. The Applicant, stated to be engaged primarily in the business of printing, seeks a ruling on whether activities undertaken by procuring orders from a foreign party to print religious texts and thereafter deliver them to various places in India can be classified as “supply of goods” or “supply of services”.
The Applicant also seeks a Ruling as to whether this activity can be classified as “export”.
Advance Ruling is admissible on the first question under section 97(2)(a) of the CGST/ WBGST Acts, 2017 (hereinafter referred to, collectively, as “the GST Act”).
The definition of “export” however, falls under sect

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inting and binding Bibles. The version of the Bible is specified by the customer under the Evangelistic version of the text.
Under the Berne Convention copyright is granted to the author on the creation of work, but in the case of religious texts copyrights are granted to editions if they are unique or are translations. In the United Kingdom, the King James' Version of the Bible is covered by a Crown Copyright.
The Gideons International uses the King James' version of the Bible and distributes various editions of the same. The versions the Applicant prints for The Gideons International mention the name of the organization and establish their rights on those versions.
3. It is clear from the above that the rights of the content of the printed matter do not lie with the Applicant. At best it can be said that the Applicant is providing a composite supply wherein the supply of printing a content, rights of which lie with another and thus debarring all likelihood of transfer of title fro

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ing is found to the contrary, will be leviable to GST @ 12% under Serial No. 27(i) of Notification No 11/2017-CT (Rate) dated 28.06.2017, as amended by Notification No 31/2017-CT(Rate) dated 13.10.2017.
5. The Applicant submits photocopies of purchase orders received from The Gideons International (PO18449 dated 23/02/2018 and PO18765 dated 31/08/2018), and Tax Invoice No. 29/08/2018 dated 29/08/2016, as a prototype of such invoices. The analysis of the transactions is, therefore, based on the Applicant's written submission and the above-mentioned purchase orders and prototypes of tax invoices.
It appears from the purchase orders that printed copies of the Bible are required to be delivered to the recipient's branch in India. This apart, as evident from the tax invoice and from the Applicant's written submission, persons specified by the recipient and located in India also take delivery on behalf of The Gideons International. Such persons, who receive the supply on belalf of the reci

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IGST Act.
Furthermore, both the purchase orders and the tax invoice are in INR. Although the Applicant argues that the consideration is being received in US dollars, he has not clarified nor produced any evidence of how payment for purchase orders in INR and tax invoice raised in INR are made in foreign currency. It raises doubt about violation of condition under clause (d) of Section 2(6) of the IGST Act as well.
The Applicant, therefore, is making domestic supplies, on which he is liable to pay GST.
In view of the foregoing, we rule as under
RULING
The Applicant's activity of printing the Bible under the specific orders received from The Gideons International is a supply of service classifiable under SAC 9989.
The above service is supplied to the recipient located in India and the consideration is apparently received in INR. The Applicant is, therefore, liable to pay GST under the appropriate Act on such supplies.
This Ruling is valid subject to the provisions under Section 10

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In Re: RITES Limited

In Re: RITES Limited
GST
2018 (12) TMI 1226 – AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2019 (20) G. S. T. L. 657 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAR
Dated:- 21-12-2018
27/WBAAR/2018-19 Case No. 28 of 2018
GST
SYDNEY D'SILVA AND PARTHASARATHI DEY MEMBER
Applicant's representative heard:  Shri Anmol Gupta, CA
1. The Applicant, stated to be a Consulting Engineer rendering services related to engineering consultancy and monitoring agency to a large number of projects, both of the Government and of the Private Sector, seeks a ruling on whether the rate of GST for the construction of railway siding will be under Sl. No 3(v)(a) or Sl No 3(xiii) of Notification no 11/2017-CT(Rate) dated 28.06.2017 (and analogous notification issued under the WBGST Act), as amended, as applicable (hereinafter referred to as “the Rate Notification”) under the CGST/WBGST Acts, 2017 (hereinafter referred to, collectively, as “the GST Act”).
Advance Ruli

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for passing the bills of the vendors and contractors after necessary scrutiny, and making the payments from a specially designated escrow account in which DVC deposits the requisite amount, and deduction of statutory taxes and deposit of the same, issuance of tax deduction certificates etc.
3. In support of his submissions, the Applicant has provided a copy of the agreement with DVC. It is an agreement to undertake Engineering and Construction Management Service for construction of Railway Infrastructure including commissioning of the railway system and advance procurement of railway section and P. way materials. The Construction Management includes procurement of Rails and PSC sleepers with fittings, points and crossings, track fitting etc, construction of railway formation and bridges and procurement of stone ballast as per specifications of the Indian Railways, laying of new P. way with Points and Crossings, procurement and installation of electrical equipment etc. Apart from track

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of original works pertaining to railways, including monorail and metro, is taxable @ 12%. Original work, as defined under para 2(zs) of Notification No. 12/2017-CT (Rate) dated 28/06/2017, means all new construction involving (i) all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable, and (ii) erection, commissioning or installation of plant, machinery or equipment or structures, whether pre-fabricated or otherwise.
The term “railways” is not defined in the GST Act. It, however, is defined under section 2(31) of the Railways Act, 1989, meaning “a railway, or any portion of a railway, for the public carriage of passengers or goods, and includes
(a) All lands within the fences or other boundary marks indicating the limits of the land appurtenant to a railway;
(b) All lines of rails, sidings, or yards, or branches used for the purpose of, or in connection with, a railway;
(c) All electric traction equipment, power supp

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en, but covers, Government Railway under section 2(20) and Non-Government Railway under section 2(25) of the Act. It, therefore, includes scope for railways under both Government and private administrations.
5. It is evident from the above discussion that the scope of work, as outlined in the Applicant's agreement with DVC, is that of works contract, as defined under section 2(119) of the GST Act, fit to be called an 'original work' within the meaning ascribed to the term in para 2(zs) of Notification No. 12/2017-CT (Rate) dated 28/06/2017, and pertains to 'railways', provided it is meant for public carriage of passengers or goods.
6. Whether the phrase “public carriage of passenger or goods” prevents a private siding from being included in the definition of 'railways' has repeatedly come up for judicial scrutiny. The courts generally held that the phrase 'public carriage of passengers or goods' cannot be construed in such manner as to exclude from the ambit of 'railways' the sidings

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y meaning that may add more exclusion than specifically provided under section 2(31)(ii) of the Railways Act, 1989.
DVC – a public sector undertaking – is the owner of the railway siding being built. It is meant for carriage of coal and oil fuel to RTPS. The purpose of the carriage of goods is, therefore, not recreation, but producing public goods like electricity. It is, therefore, not excluded under section 2(31)(ii) of the Railways Act, 1989.
The construction of the private siding that the Applicant refers to, therefore, pertains to 'railways'.
In view of the foregoing, we rule as under
RULING
Construction of a private railway siding for carriage of coal and oil fuel to Raghunathpur TPS, as described in the agreement between the Applicant and DVC, is a composite supply of works contract taxable @ 12% under Serial No 3(v)(a) of Notification no 11/2017-CT(Rate) dated 28.06.2017.
This Ruling is valid subject to the provisions under Section 103(2) until and unless declared void un

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SHRI SHIRDI SAI TRAVELS Versus CCT, CE&ST, MEDCHAL GST

SHRI SHIRDI SAI TRAVELS Versus CCT, CE&ST, MEDCHAL GST
Service Tax
2018 (12) TMI 1189 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 21-12-2018
APPEAL No. ST/31173/2018 – A/31589/2018
Service Tax
Mr. M.V. Ravindran, Member (Judicial)
Shri M.V.S. Sridhar, Advocate for the Appellant.
Shri Guna Ranjan, Superintendent /AR for the Respondent.
ORDER
Per: Mr. M.V. Ravindran
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-MD- AP2-0058-18-19-ST, dated 30.08.2018.
2. Heard both sides and perused the records.
3. On perusal of records, it transpires that the issue is regarding the amount of tax to be paid on the services rendered by the appellant to SEZ Unit.
4. Appellant herein, during the period in question from 01.04.2011 to 30.06.2012 rendered the services of Tour Operator Services/Rent-a-cab service to EI Dupont Services India Pvt. Ltd. The said EI Dupont Services India Limited was an unit situated and functioned as an SEZ and are enti

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nded interest. The first appellate authority also dismissed the appeal only on the ground that SEZ unit M/s EI Dupont had not filed the declaration required under notification No. 9/2009-ST to the authorised authorities and the same was not produced before the authorities.
5. On perusal of records, I find that the services is rendered by appellant to SEZ unit and the said SEZ unit is authorised to receive the services without payment of service tax. The provisions of Section 51 of the Special Economic Zone Act, 2005 mandates that the provisions of SEZ Act shall have overriding effect notwithstanding anything inconsistent in any act. The provisions of Section 26 of SEZ Act mandates for exemption of service tax, draw backs and concessions to developer. On holistic reading, the services rendered to an SEZ unit are not taxable, is the settled law. In my view, there being no dispute that the services rendered by the appellant to an unit in SEZ who was supposed to follow the provisions of t

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ication No. 9/2009- S.T., dated 3-3-2009 for the services provided inside SEZ. Before this amendment also, exemption was available to the service recipient by way of refund by the service recipient subject to certain conditions. In this regard, appellant has relied upon the judgment of Tata Consultancy Services Ltd. v. CCE & ST (LTU), Mumbai (supra), under which it was held that even if a service provider was not required to pay duty as per the amended provisions of Notification No. 9/2009-S.T. but paid for some reasons then the service provider was entitled to refund under Section 11B of the Central Excise Act, 1944. On the same analogy when services supplied to SEZ are considered as services provided inside a SEZ unit, there is no Service Tax liability on such deemed export as held by CESTAT in the case of Sujana Metal Products Ltd. v. CCE, Hyderabad [(T.-Bang.)].
6.The appellant has further relied upon the judgment of Intas Pharma Ltd. v. CST, Ahmedabad (supra) holding that in vie

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of Service Tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so Interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the Service Tax, wherever assessed and collected by Revenue or remitted otherwise by the taxable service provider, inadvertently. Considered in the light of this analysis, the substituted provisions, of clause/sub-paragraph 'C' of Notification No. 15/2009 cannot be inferred to have imposed any disability on the recipient of services consumed wholly within the SEZ, from seeking refund of Service Tax remitted on such transactions, by the providers of such services.”
It is also relevant to quot

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PRECISION ELECTRONIC COMPONENTS MANUFACTURING COMPANY Versus CCT, SECUNDERABAD GST

PRECISION ELECTRONIC COMPONENTS MANUFACTURING COMPANY Versus CCT, SECUNDERABAD GST
Central Excise
2018 (12) TMI 1177 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 21-12-2018
APPEAL No. E/30418/2018 – A/31590/2018
Central Excise
Mr. M.V. Ravindran, Member (Judicial)
Shri P. Venkata Prasad, Chartered Accountant for the Appellant.
Shri A.V.L.N. Chary, Superintendent /AR for the Respondent.
ORDER
Per: Mr. M.V. Ravindran
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-SC- AP2-0173-17-18-ST, dated 09.01.2018.
2. Heard both sides and perused the records.
3. The relevant facts that arise for consideration, after filtering out unnecessary details are appellants are manufacturers of Wire Wound Resistors and Potentiometers; were availing the CENVAT credit of the duty paid on inputs, capital goods and input services as per the provisions of CENVAT Credit Rules, 2004; during an audit it was noticed that appellants had availed irregular CENVA

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llate authority also held the same view.
4. On careful consideration of the submissions made by both sides, I find that identical issue came up before the Bench of the Tribunal in the case of CCE vs. Imperial Auto Industries [2017-TIOL-2446-CESTAT-CHD]. The entire judgment of the Tribunal is reproduced.
“The Revenue is in appeal against the impugned order.
2. The facts of the case are that the respondent is engaged in the manufacture of motor vehicles parts. During the course of scrutiny of the records, it was observed that the respondent availed credit on courier/freight services used for delivery/transportation of the goods from port of export to foreign buyers premises. Thereafter, the show cause notice issued to deny the credit to the respondent. The adjudication took place and the demand was confirmed along with interest and penalty was also imposed. On appeal, the Commissioner (Appeals) has held that the goods have been sold by the appellant on Delivered Duty Paid (DDP) basis

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Cx dt.28.2.2015 and the decision of the Tribunal in the case of Khanna Industrial Pipes Pv.Ltd.-2016 (43) STR 209 (Tri.-Mum.).
4. On the other hand, learned Counsel for the respondent opposed the contention of the learned AR an submits that the case of Khanna Industrial Pipes Pv. Ltd. is not relevant to the facts of the present case as in that case, the assessee took the credit on business support service, namely, terminal handling charges and documentation charges. In the said case, it is not coming out whether the goods have been delivered to the destination of the buyer or not and delivered the goods upto the premises of the buyers. The ownership remains with the seller or not. Therefore, the said decision is not applicable to the facts of this case. She further submits that in the case of Ambuja Cements (Supra), the Hon'ble High Court has relied on the CBEC circular No.999/6/2015-Cx dt.28.2.2015 wherein it has been stated that if the cost of service has been included by the asses

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ding over of the goods to the carrier/transporter for further delivery of the goods to the buyer, with the seller not reserving the right of disposal of the goods, would lead to passing on of the property in goods from the seller to the buyer and it is the factory gate or the warehouse or the depot of the manufacturer which would be the place of removal since it is here that the goods are handed over to the transporter for the purpose of transmission to the buyer. It is in this backdrop that the eligibility to Cenvat Credit on related input services has to be determined.
7. It is clarified in the above circular that if the seller does not reserve its right for delivery of the goods then destination in the case is the port of export is place of removal of the goods. The same is not in the case in hand. In fact, the respondent has sold the goods on Delivered Duty Paid basis which means that the seller bear all the cost and risks involved in bringing the goods to the place of destinatio

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GST on Sales Incentive

GST on Sales Incentive
Query (Issue) Started By: – Raja Sekhar Dated:- 20-12-2018 Last Reply Date:- 21-12-2018 Goods and Services Tax – GST
Got 2 Replies
GST
I am Distributor of Engine oils, i received Sales inventive amount through Cheque, is gst applicable on sales incentive, if yes what is the section and rule ,rate of tax and HSN Code
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
If incentive/discount is agreed to between by the seller and the buyer in writing it is exempted.

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Input credit on Capital goods and Furniture & Fixture & Repair of Building & others

Input credit on Capital goods and Furniture & Fixture & Repair of Building & others
Query (Issue) Started By: – Sanjoy Das Dated:- 20-12-2018 Last Reply Date:- 23-12-2018 Goods and Services Tax – GST
Got 5 Replies
GST
Pls clarify the input credit is available under GST of below mentioned queries :
a. Repairing of Office building / Guest house/ Employees building.
b. Painting of office building / Guest House/ Employees Building
c. Furniture & Fixture used in office purpose.
d. Furniture & Fixture used for employee benefit purpose.
Regards
Sanjoy Das
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
In my view, if the said expenses are met for furtherance of business, then input tax credit is allowed.
Reply By KASTURI SETHI

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basic requirements for running the business.It is not possible to run business without these goods and services. One has to read carefully legal definition of 'Plant & Machinery,' 'Business' ''in the course of business' and ''furtherance of business'. If any capital goods or services falls in the exclusion clause, ITC will not be allowed even though fitted in the definition of above terms. Definitions of Plant & Machinery and business have been provided in GST Acts but no definition has been given for "in the course of business" and "furtherance of business". Legal definitions can be resorted to for these. After a lot of deliberations, I am of the view that the party can prove the

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NON – PASSING OF ITC BENEFIT IS PROFITEERING UNDER GST

NON – PASSING OF ITC BENEFIT IS PROFITEERING UNDER GST
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 20-12-2018

In yet another complaint against M/s Theco India Pvt. Ltd. for contravention of section 171 of the CGST Act, 2017 on anti-profiteering measures, the National Anti-Profiteering Authority (NAA) vide its Order dated 28.11.2018 has ordered that the company had wrongly charged higher price without reducing the base price to the extent of Counter- Veiling Duty (CVD) @ 12.5 percent in pre-GST regime and ITC being allowed under GST regime on IGST paid on products. It also directed for imposition of penalty and directed further investigation by the DGAP to cover all products supplied by the company to unearth and quantify the benefit which it might have failed to pass on to the customers.
Brief Facts
In Crown Express Dental Lab, Ranchi & DGAP, Delhi v. Theco India Pvt. Ltd., Chennai 2018 (12) TMI 135 – NATIONAL ANTI-PROFITEERING AUTHORITY ; a comp

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ice (C=A+B)
59,06,000/-
Freight (D= 2% of 'C' above)
1,18,120/-
Price (including Freight = C+D)
60,24,120
Plus CST (2%)
Further, tax invoice dated 06.09.2015 (in GST regime) revealed as under:
Description
Price (in Rs.)
Lava Mill CNC 240 and accessories (A)
45,55,320/-
Lava Materials approved Sintering Furnace D664 (B)
14,68,800/-
Total price (C=A+B)
60,24,120/-
IGST (18%)
10,84,342/-
Price (including Tax)
71,08,462/-
Company Submissions
The company denied the allegations in complaint and submitted that:
* In GST regime, Custom Duty was reduced to 7.5% and its benefit was given to buyer.
* ITC can be claimed by buyer and it is wrong to claim that not price had increased.
* An additional discount was offered to offset any adverse GST impact, as such product was sold for the first time.
* It had imported goods under GST regime and had not claimed any transitional credit thereon.
* There had been an increase in taxable value of machine w.e.f. January

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have formed part of the cost of the above items.
However, import was made on 31.08.2018 in GST period when CVD and SAD were subsumed in IGST and entire amount of IGST @ 18% paid on import was eligible for Input Tax Credit (ITC). DGAP opined that company should have reduced the base price to the extent of the CVD that was no longer to be paid as well as to the extent of the IGST, the credit of which was available to it.
Thus, it was proved that the base price of the above items had remained the same, i.e., ₹ 60,24,120/- as per the quotation dated 28.11.2016 and the base price was not reduced to the extent of CVD that was not to be paid after the implementation of the GST.
Further, since the import had taken place post GST, company was not required to pay CVD and therefore taxable value should have been reduced commensurately. The amount of profiteering done by the supplier company was ₹ 478085.
NAA Findings
NAA observed that though company had argued for supply of add

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id in order to neutralise the impact of ITC which was available to the company. The NAA therefore, concluded that amount profiteered by the supplier for two machines was ₹ 4,78,085.
It profiteered at the expense of buyer and had violated provisions of section 171 of the CGST Act, 2017 and thus also rendered itself liable to penal action in line with the provisions of section 122 of the CGST Act, 2017 apart from its liability to refund the profiteered amount along with the applicable interest in terms of the provisions of the CGST Rules, 2017.
It is clear from the facts that the company was fully aware of the GST provisions and availability of ITC on account of IGST charged on import of goods. It was also fully aware of the provisions of section 171 of the CGST Act whereby it was bound to pass on the benefit arising due to ITC availability on import of the said product. However, it had deliberately acted in defiance of the above law and hence he is guilty of the conduct which is

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d quantify the benefit that the company has failed to pass on to his customers.
The outcome of NAA order is thus,
* Establishment of profiteering to the extent of ₹ 4,78,085 in terms of section 171 of the CGST Act, 2017
* Liable to be penalized in term of section 122 of the CGST Act, 2017
* Direction to reduce the sale price of the said items immediately, commensurate to the reduction in the price due to ITC of erstwhile chargeable CVD which is now available in the form of IGST and pass on this benefit to his customers.
* Direction to refund an amount of ₹ 4,78,085/- along with interest @ 18% to the complainant from the date when this amount was realised by it till the date of refund within a period of 3 months from the date of receipt of the order failing which the same shall be recovered by the DGAP as per the provisions of the CGST Act, 2017 and shall be refunded as has been directed in the order.
* For levy of penalty u/s 122 of the CGST Act, 2017, keeping in

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Key Initiatives for Industrial Development Post GST and Demonetisation

Key Initiatives for Industrial Development Post GST and Demonetisation
News and Press Release
Dated:- 20-12-2018

Government is continuously taking steps to facilitate industrial development in the country though no specific year-wise targets for industrial development are assigned. Key initiatives include Make in India under which thrust sectors have been identified to provide a push to manufacturing and Start-up India to strengthen the start-up ecosystem. The Ease of Doing Business initiative aims to create a conducive environment by streamlining existing regulations and processes and eliminating unnecessary requirements and procedures.
Foreign Direct Investment policy and procedures have been simplified and liberalised prog

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GIFT UNDER SALE SCHEME

GIFT UNDER SALE SCHEME
Query (Issue) Started By: – mohan sehgal Dated:- 20-12-2018 Last Reply Date:- 21-12-2018 Goods and Services Tax – GST
Got 8 Replies
GST
We have floated a Quarterly scheme to our dealers ……. On an aggregate purchase of our goods amounting to ₹ 6 lakhs per quarter;we will conduct a lucky draw amongst our dealers ;who are eligible(bought goods worth ₹ 6 Lakhs) and award a Two Wheeler as a Prize to the lucky winner among the eligible dealers.
Would we able to book ITC on The GST paid on the TWO WHEELER Price..given as a gift to the dealer who has bought the fixed amount of goods within the stipulated period of time.Please note that this gift is directly related to the invoiced amount of goods

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39; and how it is applicable under GST Acts.
Reply By mohan sehgal:
The Reply:
The gift is being given against an agreement on record…
As far as I understand if an obligation attached to an agreement of sale is attached…the commodity loses its identity as a "GIFT" and no denial of ITC can arise under section 17(5) in such cases.
The dealer is entitled to the commodity described as a GIFT,only when achieves the sale target within the stipulated period..
Sir,Please elaborate.THANKS
Reply By KASTURI SETHI:
The Reply:
If it is so, it has to be examined afresh in view of your views.
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
No. You yourself admitted it is a gift. It is not an obligation of future contingencies.
Repl

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P P Leno Bags reclassified under GST Tariff Heading 3923 29 90 instead of 63053300.

P P Leno Bags reclassified under GST Tariff Heading 3923 29 90 instead of 63053300.
Case-Laws
GST
Classification of goods – P P Leno Bags – whether classified under Tariff code 63053300 or ot

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Claim ITC on IGST Paid Under 'Bill to Ship to' Model: Applicant Entitled to Benefits.

Claim ITC on IGST Paid Under 'Bill to Ship to' Model: Applicant Entitled to Benefits.
Case-Laws
GST
Input tax credit – Whether ITC of IGST paid on bill to ship to’ model admissible to the a

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Transport Service Provider Must Apply 18% GST on Food and Transportation Charges for Training Institute.

Transport Service Provider Must Apply 18% GST on Food and Transportation Charges for Training Institute.
Case-Laws
GST
Where the applicant provides transport services to a training institute for carting food from one building to another for service/sale and the applicant charges a separate transport charges, the applicant needs to discharge GST on the gross amount (cost of Food + cost of Transportation) at the rate of 18% GST.
TMI Updates – Highlights, quick notes, marquee, annotati

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Office and Industrial Canteen Food Services Taxed at 5% GST When Not Linked to Specific Events or Occasions.

Office and Industrial Canteen Food Services Taxed at 5% GST When Not Linked to Specific Events or Occasions.
Case-Laws
GST
The activity of supply of food in canteens of office, factory, hospi

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GST REFUND – INVERTED DUTY STRUCTURE.

GST REFUND – INVERTED DUTY STRUCTURE.
Query (Issue) Started By: – SAFETAB LIFESCIENCE Dated:- 20-12-2018 Last Reply Date:- 5-1-2019 Goods and Services Tax – GST
Got 1 Reply
GST
Dear Experts,
We are eligible for applying refund of ITC accumulated in Credit Ledger. What is the current proceedure. We will submit RFD-01A by online and RFD-01 manually with required documents such as Form 1-A, Credit Ledger copy, filed returns copy etc. physically. We know the calculations of elegible re

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Annual Membership and Registration Fees to Corpus Fund Subject to GST, Not Covered by Mutuality Principle.

Annual Membership and Registration Fees to Corpus Fund Subject to GST, Not Covered by Mutuality Principle.
Case-Laws
GST
Levy of GST – supply of services or not – contribution made by Members

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Transferring capital goods like machines and moulds between job-workers is a “supply” under GST, Section 141, CGST Act.

Transferring capital goods like machines and moulds between job-workers is a “supply” under GST, Section 141, CGST Act.
Case-Laws
GST
Supply or not – Transitional provisions – Section 141 of the CGST Act, 2017 – The transfer of machines & moulds (being capital goods), from the premises of the job-worker to another job-worker, which were originally received by said job-worker under the erstwhile Central Excise Act, 1944 will constitute as “supply” under GST.
TMI Updates – Highlig

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EA-2000service tax audit under GST Regime

EA-2000service tax audit under GST Regime
Query (Issue) Started By: – Vishal Shekhar Dated:- 20-12-2018 Last Reply Date:- 18-1-2019 Service Tax
Got 8 Replies
Service Tax
Is service tax audit under EA-2000 in GST regime is possible, what does the savings clause in GST mentions about it? Will the service tax be covered in the GST audits beginning April 2019?
Reply By KASTURI SETHI:
The Reply:
Dear Querist,
Query-wise reply is as under:-
(i) Yes. 100%.
(ii) Section 174 of CGST Act, 2017 (Appended below)
(iii) Yes.
Saving Section is for all purposes in order to safeguard revenue. On 12.10.18, Gauhati High Court has held in favour of the department on this issue in the case of M/s. Mascote Entrade Pvt. Ltd. Vs.UOI & two othe

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2018 passed by the Supreme Court, in which, the reference to the said order of this Court is made and the proceedings before the High Court have stayed. After analyzing Section 173 of the CGST Act, Justice Akil Kureshi and Justice B N Karia noted that “clause of Subsection (2) of Section 174 and other clauses would, prima facie, show that there was no saving of Rule 5A in such manner that fresh proceedings for audit could be initiated in exercise of powers under the said Rule. We, therefore, have serious doubts whether, with the aid of Rule 5A of the Service Tax Rules, 1994, the CAG can carry out compulsory Service Tax audit of private agencies like the petitioner.” “Under the circumstances, issue Notice, returnable on 28.11.2018. By way of

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ed in Service Tax
Reply By DR.MARIAPPAN GOVINDARAJAN:
The Reply:
If the threshold limit exceeds register with GST now. However you have to face the consequences for non registration, non levying of tax etc
Reply By KASTURI SETHI:
The Reply:
Rightly advised by Sh.Govindarajan Sir. I further add that if any rule is set aside by any court the department does not sit idle. The department fights such cases up to Supreme Court. Meanwhile, all assessees comply with in routine manner till the final decision of the Supreme Court. Latest news is that Delhi High Court has fixed date on this very issue.. Litigation will go on. Govt work will not suffer. Neither any court wants that Govt work should suffer.
Reply By KASTURI SETHI:
The Reply:
Deci

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In Re: Biostadt India Limited

In Re: Biostadt India Limited
GST
2019 (3) TMI 540 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2019 (22) G. S. T. L. 551 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 20-12-2018
GST-ARA- 72/2018-19/B-165
GST
SHRI B. TIMOTHY, AND SHRI B. V. BORHADE, MEMBER
PROCEEDINGS
(Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by BIOSTADT INDIA LIMITED, the applicant, seeking an advance ruling in respect of the following questions.
1.1. The question or issue before Your Honor for determination is whether Input Tax Credit (“ITC”) can be claimed by the applicant on procurement of Gold coins which are to be distributed to the customers at the end of scheme period for

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G IS SOUGHT
1. This Application is being filed by M/s. Biostadt India Limited ('the Applicant'/the Company'). The Applicant, having Good and Service Tax (GST) Registration No. 27AACCB1830G123 is inter alia engaged in the business of developing, manufacturing and distributing crop protection chemicals and hybrid seeds.
2. Biostadt India Limited has been serving the farming community for over three decades. The company provides a helping hand to the farmers by providing them with top-of-the-Iine agricultural inputs and services.
3. Over a period of time, the applicant has diversified into a range of seaweed-based biotechnological inputs using fermentation technology, under the well-known brand 'Biozyme'. They also deal in crop protection chemicals – insecticides and pesticides and has made its foray in hybrid seeds market.
4. The manufacturing facilities of the applicant are multi-locational and are very well-equipped with state-of-the-art technology and testing equipment which produ

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al Excise law, Service tax legislation and respective State Value Added Tax laws and now is registered under Good and Service Tax (GST).
8. This Application is being filed by M/s. Biostadt India Limited which inter-alia has launched a new sales promotion scheme namely the “Kharif Gold Scheme 2018” for their customers. The said sales promotion scheme helps the company in achieving their sales and collection targets.
9. The terms and conditions of the scheme are as under:
a. The said scheme will be in force for the period June 2018 to August 2018.
b. The scheme is divided into two parts:
Lifting of products:
Customers who purchase the below mentioned products on or above their below mentioned quantity shall be entitled to one 10 grams Gold coin. The products that need to be lifted during the scheme are as under:
Products
Qty.(kgs/Itrs)
Biozyme Liquid
250
Biozyme Granules
1000
Amaze-X
200
Rejoice
30
Roko
50
Biomycin
50
Maiden
20
Collections:
If the customers after

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e procuring gold coins from jewelers which are to be distributed at the end of the scheme. As per notification 1/2018 – CGST (Rate) dtd. 28.06.2017, gold is leviable to GST at the rate of 3 percent.
11. The applicant intends to maximize their sales and minimize their outstanding collection through the operation of “Kharif Gold Scheme 2018”.
Statement of relevant facts having a bearing on the question(s) raised.
1. ISSUE FOR DETERMINATION
1.1. The question or issue before Your Honor for determination is whether Input Tax Credit (“ITC”) can be claimed by the applicant on procurement of Gold coins which are to be distributed to the customers at the end of scheme period for achieving the stipulated lifting or payment criteria?
1.2 The question or issue before Your Honor is not restricted to the said scheme only. The applicant notifies schemes with similar conditions periodically. So whether the ITC can be claimed in all such similar schemes.
STATEMENT CONTAINING THE APPLICANT'S INTER

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tion 25 of the CGST Act.
As stated earlier, the applicant is registered under the GST law.
Input Tax:
Input tax as defined under section 2(62) of the CGST Act includes CGST, respective SGST and UTGST, IGST and so on.
Section 2(63) of the CGST Act defines Input tax credit as the credit of input tax.
Inputs is defined under Section 2(59) of the CGST Act to mean any goods other than capital goods which are used or intended to be used by a supplier in course or furtherance of business.
Gold coins are inputs for the applicant and GST levied on such purchase qualifies to be an input tax for the purpose of Section 16(1) read with Section 2(62) of the CGST Act.
In course or furtherance of business:
The notable requirement under Section 16(1) of the CGST Act is that the credit of input tax claimed on a supply of goods or services should be used in course or furtherance of the business. While the term business is defined under CGST act, the phrase “in course or furtherance of business” i

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ces or both. These conditions are with respect to possession of tax invoice, receipt of goods, payment of tax and filing of returns.
The applicant contends that he has satisfied the conditions as laid down in Section 16(2) and is eligible to claim ITC on purchase of gold coins.
2.5. In accordance with the above paras, applicant strongly feels that he is eligible to claim ITC on procurement of gold coins as the requirements of Section 16(1) and 16(2) have been fulfilled. The only criteria that's need to be evaluated is the restrictions laid down in Section 17 which provides for apportionment of credits and blocked credits.
2.6. Section 17(5) of the CGST Act provides for blocked credits. Section 17(5) contains a non-obstante clause with respect to Section 16(1) of the CGST Act. Hence if any of the clause under Section 17(5) is satisfied then ITC shall be specifically disallowed even if it was eligible at the first stage i.e. under Section 16(1).
2.7. The applicant reproduces the rele

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he Gift-Tax Act (18 of 1858) had defined the word gift to mean transfer by one person to another of any existing movable or immovable property voluntarily and without consideration in money or money's worth.
The Honorable Supreme Court cited the definition of 'gift' from Corpus Juris Secundum, Volume 38 in the case of Sonia Bhatia v. State of UP [1981 SCR (3) 239,1981 SCC (2) 585) = 1981 (3) TMI 250 – SUPREME COURT as follows:
“A 'gift' is commonly defined as a voluntary transfer of property by one to another, without any consideration or compensation therefor. A 'gift' is a gratuity and an act of generosity and does not require a consideration, but there can be none; if there is a consideration for the transaction, it is not a gift.
2.10. On the basis of above jurisprudence, one can reasonable conclude that gift is a gratuity and does not require any consideration. If a consideration is attached to a transaction, then it cannot be termed as a gift. Emotional consideration such as l

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sfies the criteria laid under the scheme. Giving away gold coins to customer cannot be termed as “voluntary” act of the applicant.
2.12. The applicant strongly contends that the gold coins distributed to customers at the end of scheme period cannot be qualified as “gift”. Since they cannot be qualified as gift, disallowance under Section 17(5) will not be attracted. Hence, the applicant should be entitled to claim ITC of gold coins purchased for effective implementation of the scheme.
3. PRAYER
In light of the above, a Ruling is sought from the Honorable Authority on eligibility of ITC on procurement of gold coins for distribution to customers under the sales promotion scheme.
Kharif Gold Scheme 2018
Scheme Period: June to Aug 2018
Scheme Benefit
Products
Qty.(kgs/ltrs)
 
Biozyme Liquid
250
Biozyme Granules
1000
10 GM Gold Coin for lifting Products
Amaze-X
200
Rejoice
30
Roko
50
Biomycin
50
Maiden
20
Collections:
 
Month
Collection Amount (Rs.)
8

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upplier in the course or furtherance of business.
2. Input Tax [Section 2(62)1:
“Input tax” in relation to a registered person, means the central tax, State tax, integrated tax or Union territory tax charged on any supply of goods or services or both made to him and includes
(a) the integrated goods and services tax charged on import of goods;
(b) the tax payable under the provisions of sub-sections (3) and (4) of section 9;
(c) the tax payable under the provisions of sub-sections (3) and (4) of section 5 of the Integrated Goods and Services Tax Act;
(d) the tax payable under the provisions of sub-sections (3) and (4) of section 9 of the respective State Goods and Services Tax Act; or
(e) the tax payable under the provisions of sub-sections (3) and (4) of section 7 of the Union Territory Goods and Services Tax Act, but does not include the tax paid under the composition levy;
3. Input Tax Credit (Section 2(63)1:
“Input tax credit” means the credit of input tax
4. Registe

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ther tax paying documents as may be prescribed;
(b) he has received the goods or services or both.
Explanation. For the purposes of this clause, it shall be deemed that the registered person has received the goods where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise;
(c) subject to the provisions of section 41, the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilization of input tax credit admissible in respect of the said supply; and
(d) he has furnished the return under section 39:
7. Blocked credits (Section 17(5):
Notwithstanding anything contained in sub-section (1) of section 16 and subsection (1) of section 18, input tax credit shall not be available in respect of the following, namely:
(a) motor

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law for the time being in force; or
(B) such inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as part of a taxable composite or mixed supply; and
(iv) travel benefits extended to employees on vacation such as leave or home travel concession;
(C) works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service;
(d) goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business.
Explanation.- For the purposes of clauses (c) and (d), the expression “construction” includes re-construction, renovation, additions or alterations or repairs, t

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isions under the Gift Tax Act, 1958:
1. Gift (Section 2(xii):
“Gift” means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money's worth, and includes the transfer or conversion of any property referred to in section 4, deemed to be a gift under that section;
[Explanation.-A transfer of any building or part thereof referred to in clause (iii), clause (iiia) or clause (iiib) of section 27 of the Income tax Act, by the person who is deemed under the said clause to be the owner thereof made voluntarily and without consideration in money or money's worth, shall be deemed to be a gift made by such person;]
Additional submissions dated 19.11.2018
We reiterate our submissions dated 23.08.2018, 10.09.2018 & in the course of preliminary hearing wherein we have sought ruling on admissibility of input tax credit of tax paid on purchase of gold coins for our sales scheme.
Without rejudice to written su

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nother of any existing movable or immovable property voluntarily and without consideration in money or money's worth.
Honorable Supreme Court cited the definition of 'gift' in the case of Sonia Bhatia v. State of UP [1981 SCR (3) 239, 1981 SCC (2) 585] = 1981 (3) TMI 250 – SUPREME COURT as a voluntary transfer of property by one to another, without any consideration or compensation therefor. A gift' is a gratuity and an act of generosity and does not require a consideration, but there can be none; if there is a consideration for the transaction, it is not a gift.
It is a settled principle that “Gift cannot arise out of a contractual obligation” and “nothing comes free in business”.
The Australian High Court in the case of commissioner of Taxation (Cth) v. McPhail [1968] 41 ALUR 346 held that to constitute a 'gift' the property should be transferred voluntarily and not as a result of a contractual obligation. The copy of said judgement is enclosed at Annexure “B”. – Please refer t

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are not related and price is the sole consideration for the supply.
Related persons is defined in explanation to section 15 of CGST AGNES
Our customers do not fall under any of the said criteria of related person
Price of all the products are pre-defined and customers are obliged to pay that price for purchase of products.
Price is the sole consideration received from the customers for sales made by us.
Section 15(1) criteria is satisfied in our case and hence value of supply of goods should include only the price that is payable by the customer. Value of gold coins cannot be clubbed with value of supply made by us.
Moreover, cost of gold coin to be distributed at the end of scheme is factored in sales price charged by us. As a result, we are indirectly discharging GST liability on gold coin supplied by us.
Further none of the conditions mentioned U/s 15(2) are satisfied to include the value of gold coin in the value of supply.
We would further submit that when a 'comme

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er.
03. CONTENTION – AS PER THE CONCERNED OFFICER
The submission, as reproduced verbatim, could be seen thus-
It is submitted that, Issue on which advance ruling is required:
Reference Application No:72 Dated 23.08.2018
I. Comments on Annexure-1 of Submission
1. Annexure I contains 'Statement of Relevant Facts Having a Bearing on the Questions on which the Advance Ruling is sought. This office offers no comments.
II. Comments on Annexure-II of Submission
1. Annexure II contains 'Issues for Determination'. This office offers no comments.
III. Comments on Annexure-Ill of Submission
Para 2.1: No comments,
Para 2.2: No comments.
Para 2.3 & Para 2.4 :
1. This office contends that the 'Gold coins' to be distributed to customers of M/s Biostadt India Limited at the end of the kharif Gold Scheme described in Annexure I of their submission are NOT INPUTS and hence, GST paid on such a purchase does not qualify to be an input tax for the purpose of Section 16(1) read with Section 2(6

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, based on its facts, on the touchstone of the definition of inputs'.
5. In the course or furtherance' is not defined, but is broad enough to cover any supplies made in connection with the business. It is important to note that only supplies received by a taxable person that are used/ consumed in the course or furtherance of business are eligible for claiming input tax credit. This impacts the eligibility to claim input tax: credit. Hence, it becomes important for an entity to justify that a particular act is done in the course and furtherance of its business goals and intentions.
6. We can determine whether a activity is undertaken in the course or furtherance of business on the basis of few principles:
a. Was the activity undertaken in line with the basic business model?
b. Is the activity needed for continuity in the supply?
c. Is the activity' mainly concerned with the making taxable supply for consideration?
7. Therefore, if some supply is either used exclusively in the cour

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consideration unless we look as this distribution as a hidden discount'.
9. The conditions, laid down in Section 16(2) of the Act have been satisfied but not the basic requirement as per Section 16(1) of the Act. Hence, the contention of the Applicant is not acceptable.
Para 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11 and 2.12:
1. Clause (b) of Section 17(5) of CGST Act 2017 stipulates that the input tax credit with respect to the “goods” disposed of by way of gift shall not be allowed. Or in other words, it is stipulated that no ITC on any goods can be availed, if they are given as gifts, whether or not in course of furtherance business.
2. ITC on goods given away or disposed as “gifts” should not be available when no tax is being paid on their disposal. The logic of satisfying Section 16 is of no avail to earn this credit lawfully, because Section 17(5) itself starts with a non obstante clause, which means even if Section 16 allows, Section 17(5) shall block. Moreover, Section 17 (5) is

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efits or exchange consideration in kind (in lieu of cash) in the garb of gifts to avoid valuation and thus avoid levy of tax, In the instant case, the Gold Coins are gifts/ free supplies in course of business. If consideration for these goods is not charged directly; they shall qualify as “gifts” and ITC shall not be eligible.
4. If these 'gold coins' are not treated as gifts, another argument can be considered then as 'discount'/ 'hidden discount and the said discount satisfies the conditions under Section 15(3), i.e. the discount (whether in full or in part) arises and is recorded as a contractual obligation under specific invoice(s), TC shall be available on such goods. It may be worthwhile to show such goods under the respective invoice/credit note after establishing on record, the agreement under which it arises. As soon as an obligation is attached, the commodity loses its identity as a “gift” and no denial of ITC can arise under Section 17(5) in such case:
5. If it is so opine

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s applicable to their case. The facts of the case were totally different and also the said judgment was delivered under a different legislation and therefore, the same cannot be made applicable to the facts of this case which is being adjudicated under GST ACT. In the case of KONE ELEVATOR INDIA PVT LTD VS. STATE OF TAMIL NADU as reported in (2014(304) ELT 161. (SC) = 2014 (5) TMI 265 – SUPREME COURT it has been held that, it should be strict and literal, what is applicable in one taxing statute may not be applied to another taxing statute (Per: F.M. Ibrahim Kalifulla.] (Para-84). Hence, the case law. cited by the applicant in this respect is not acceptable.
8. In case the Advance Ruling Authority' accepts the contention of the applicant and allows the availment of ITC on gold coins, then the accounting of the stock and disbursement of gold coins should be required to be maintained.
Para : in the light of the above discussion, we pray that the Honorable Advance Ruling Authority may p

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e written submissions.
05. OBSERVATIONS
We have gone through the facts of the case. The issue put before us is in respect of a future transaction which would be on the lines thus –
The applicant is engaged in the business of developing, manufacturing and distributing crop protection chemicals and hybrid seeds and in order to achieve sales and marketing objectives, they have launched various target based – sales incentive schemes for their distributors and retailers (customers) to achieve a specified target and in turn helps the company to achieve their targets. The subject application is in respect of a sales promotion scheme known as “Kharif Gold Scheme 2018”, which has been floated by them for their customers and is of two types. In the first case, their Customers who purchased certain products on or above a certain quantity would be entitled to one 10 grams Gold coin. In the second scenario, their customers who, after lifting the products from the applicant, made certain minimum

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n of gold coins is not in line with the basic business model, the gold coins are not essential for continuity in supply and the distribution of gold coins are not concerned with the making of taxable supply for consideration unless the distribution is looked as a hidden discount.
We find that the applicant has floated the subject scheme for the period June, 2018 to August, 2018 only, by way of which gold coins of different denominations would be given to those customers who lifted a certain quantity of products or made a certain amount of payment. Thus it is seen that it is only those specific customers who fulfill the conditions would be able to avail the benefit of the subject scheme. The applicant has submitted that the said Gold coins are inputs for them and GST levied on such purchase qualifies to be an input tax for the purpose of Section 16(1) read with Section 2(62) of the CGST Act.
We find that the provisions of ITC are governed by Sections 16 and 17 of the CGST Act, 2017. I

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ift or not. The word 'gift' has not been defined in the CGST Act and the Gift-Tax Act (18 of 1858) had defined the word gift to mean transfer by one person to another of any existing movable or immovable property voluntarily and without consideration in money or money's worth. It is seen from the definition that the transfer i.e the gift given in such a case has to be voluntary. The applicant has submitted that they have a contractual arrangement with the customer wherein if he purchases certain amount of company's product or makes payment in a prescribed manner then he shall be entitled to a gold coin of specific weight. A contractual arrangement implies especially in view of the magnitude and area of the applicant's business that, it should also be agreed by the customer in writing to such scheme floated by the applicant. We find that they have not submitted any such contract/agreement and in support of their contention, as Exhibit 'A' they have only submitted a brochure/writeup/invi

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s case gold coins, will be given to customers who satisfy certain conditions is nothing but assurance of giving away gifts on those conditions being achieved by the customers. Under the GST laws the intention for non-granting/denial of setoff is envisaged in situations where there is no tax on output supply. In cases where the goods are procured with levy of input tax and are supplied without tax being paid on such output supplies, the scheme of the GST Act provides no input tax credit, except export.
Schedule I to the CGST Act, 2017 deals with activities to be treated as supply even if made without consideration. As per Entry Number 2 to Schedule I (2), Supply of goods or services or both between related persons or between distinct persons as specified in section 25, when made in the course or furtherance of business:
Provided that gifts not exceeding fifty thousand rupees in value in a financial year by an employer to an employee shall not be treated as supply of goods or services

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excluded from the scope of being a supply, then the provisions of the Valuation Rules come into play. Thus in such cases it can safely be assumed that the purchase value and output supply value of the 'gift' shall be the same and therefore the ITC would be the same as the output GST payable. In other words if the giverof the gift does not pay output tax on the same then the compensation to the department would be the foregoing of the ITC on such gifts.
In the instant case it is seen that the applicant has assigned a value to the gold coins to be given gifts and the value is Rs. 3,200/- per gm. They have not explained as to how they have arrived at the value because value of gold changes everyday. Secondly the Scheme announced by them states that “customers who lifted the products as per the scheme and made payments as per the scheme are invited for the meeting.”
We now deal with one of the contention of the applicant that they have a contractual arrangement with the customer wherein

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t 2017 does not mean that they are entitled to credit since Section 17(5) starts with “Notwithstanding anything contained in sub-section (1) of Section 16 ………” The implication is that in the subject case even if it seems, as per the applicant, that Section 16 (1) is applicable in their case and allows them credit, Section 17(5) shall block such credits.
In view of all above deliberations, the questions can be answered thus –
05. In view of the extensive deliberations as held hereinabove, we pass an order as follows :
ORDER
(Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
NO.GST-ARA- 72/2018-19/B-165
Mumbai, dt. 20.12.2018
For reasons as discussed in the body of the order, the questions are answered thus –
Question :- The question or issue before Your Honor for determination is whether Input Tax Credit (“ITC”) can be claimed by the applicant on procurement of Gold coins which are to be distributed to t

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CGST, C.E. & C.C., Bhopal Versus Akansha Sales Promoters I Pvt Ltd

CGST, C.E. & C.C., Bhopal Versus Akansha Sales Promoters I Pvt Ltd
Service Tax
2019 (1) TMI 974 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 20-12-2018
Service Tax Appeal No. ST/60538/2013 [DB] – IO/ST/101/2018-CU[DB]
Service Tax
MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. G.R. Singh, DR
Present for the Respondent: Mr. JM Sharma, Consultant & Ms. Pooja Agarwal, CA
ORDER
PER: RACHNA GUPTA
This matter has been taken up in furtherance of the Order of Hon'ble High Court Madhya Pradesh dated 29.10.2018. The adjudication in this case began with a SCN of 20.04.2010. The proposed demand therein was confirmed however the penalty proposed therein wa

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to the absence of the respondent-assessee and the circumstances as detailed and the order dated 12.12.2017 that the Miscellaneous Application of the respondent assessee was dismissed and the Appeal of Revenue was listed for final hearing on 12.01.2018.
3. This Tribunal vide the Order dated 02.07.2018 has allowed the impugned Appeal of the Revenue vide the Final Order No. 52378/2018 dated 02.07.2018 holding :
“6. From the record of the case, we find that the demand stands raised for the period 01.10.2004 to 31.03.2010. The amendment in Section 78 was carried out w.e.f. 10.05.2008. hence, in the light of the Tribunal decision above, penalty under Section 76 is imposable for the period 01.10.2004 to 09.05.2008. The lower authority is directe

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ledge of the disposal of the main Appeal vide Order dated 02.07.2018 as such:
“After going through the order sheet and the proceedings recorded by the Tribunal on 22.11.2017, we are satisfied that the order passed by the Tribunal on 12.12.2017 is contrary to the facts available on record. The Tribunal failed to see that the appellant was directed to furnish the details or the chronological events on 22.11.2017 and the case was posted on 12.12.2017. On the said date request was made for an adjournment on the ground of illness of the counsel of the appellant. Heavens would not have fallen if the case was adjourned for a week or so to enable the appellant to put forth his case before the Tribunal.
In view of the foregoing we cannot sustain

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M/s. Bright Road Logistics Pvt. Ltd. Versus The Commercial Tax Officer (ENF-21)

M/s. Bright Road Logistics Pvt. Ltd. Versus The Commercial Tax Officer (ENF-21)
GST
2019 (1) TMI 678 – KARNATAKA HIGH COURT – 2019 (21) G. S. T. L. 150 (Kar.) , [2019] 66 G S.T.R. 235 (Kar)
KARNATAKA HIGH COURT – HC
Dated:- 20-12-2018
Writ Petition No. 47450 of 2018(T-RES)
GST
Mr. Justice G. Narendar
For the Petitioner : Smt. Veena J. Kamath, Advocate
For the Respondent :  Sri. Vikram Huilgol, HCGP
ORDER
Heard the learned counsel for the petitioner and Sri. Vikram Huilgol, learned HCGP for respondent.
2. The petitioner is before this Court calling in question the detention order dated 10.08.2018 (Annexure-A) issued under Section 129(1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act' for short), the order of confiscation of goods and conveyance and demand of tax, fine and penalty dated 19.09.2018 (Annexure-A2) issued under Section 130 of the CGST Act and the rectification order dated 25.09.2018 (Annexure-A3) issu

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an attempt to avoid paying tax to the Government and same is liable to be levied as mandated under Section 129(1) of the CGST Act.
4. Learned counsel for the petitioner contends that the order stands vitiated on the sole ground that there is non-compliance of the mandate under the provisions of Section 129(4) of the Act and hence the same warrant interference at the hands of this Court.
5. It is contended that the order of detention under Section 129(1) of the CGST Act vide Annexure-A, the order of confiscation vide Annexure-A2 and rectification order vide Annexure-A3 to the writ petition have been passed without affording an opportunity of hearing to the petitioner. It is further contended that the objections put forth by the petitioner had not been taken into consideration while passing the orders, which are impugned herein. The arguments put forth are required to be rejected for the following reasons:
1) The petitioner is a transporter; and
2) The detention and seizure order h

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Hobli, Bengaluru Urban, Karnataka, pin-560098. GSTIN 29CKOPP0258F3ZR for the goods covered by the LR No.707, 801, 791, 769, 793, 790, 792, 796, 2733, 798, 794, 810, 797, 783, 768 and 800 total 16 LRs covering 24 Bundles of goods along with original photocopies of the connected LRs and cash bills. The contents of the letter are reproduced.”
7. From a plain reading of the order, it is apparent that the contention raised by the learned counsel for the petitioner, that no opportunity has been afforded under Section 129 (4) of the CGST Act stands falsified.
That apart, the petitioner has also placed reliance on the document marked as Annexure-H, which is allegedly addressed to the Commercial Tax Officer and by the said letter, the petitioner states as under:
“Kindly take this confirmation letter on record and pass the order under Section 129(1)(a) of the Act. The consignee will agree to pay the tax and penalty. Do the needful and oblige.”
8. From the above, it is apparent that the all

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y the same hand. These are factual aspects that has to be gone into and adjudicated by the fact finding authority. This Court does not find any good ground warranting interference with the impugned orders by exercising its jurisdiction under Article 226 of the Constitution of India.
11. The petitioner has placed reliance on the ruling of the Division Bench of the Kerala High Court reported in 2018 SCC Online Ker 2696 in the case of The Assistant State Tax Officer Vs. M/s. Indus Towers Limited, with particular reference to the observations made by the Court at Paragraph Nos. 26and 27, wherein the Division Bench at para 27 after taking note of the fact of declaration having been made even prior to the commencement of transport found it necessary to order for release of goods.
12. In the instant case, no declaration has been made by the consignees either prior to the commencement of transport or even after the goods have been seized. Hence, the case put forth by the petitioner does not

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M/s. S.S. Construction Versus CGST, Mumbai West

M/s. S.S. Construction Versus CGST, Mumbai West
Service Tax
2019 (1) TMI 509 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 20-12-2018
Appeal No. ST/86629/2018 – A/88157/2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
Ms. Kranti Rathi, Advocate with Shri J.R. Gawde, Consultant for the appellant
Shri Dilip Shinde, AC (AR) for the respondent
ORDER
Imposition of penalty under Section 78 of the Finance Act, 1994 against non-payment of service tax collected for providing telecom services and work contract services by the adjudicating authority which has attained finality in the order of the Commissioner (Appeals) is assailed by the appellant company before this forum.
2. Brief fact of the appellant's case is that it has been providing works contract services and telecommunication services since 03.11.2006. It has provided services like laying of cables and dock lines for telecommunication companies namely Tata Telecommunications, BSNL etc. as its ma

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promptly to the government after its collection. Reply of appellant was filed before the adjudicating authority who confirmed the duty liability interest and penalty invoking the extended period and after unsuccessfully challenging the same before the Commissioner (Appeals), the appellant has filed this appeal in the Tribunal.
3. In the memo of appeal and during course of hearing of the appeal, ld. Counsel for the appellant Ms. Kranti Rathi submitted that appellant was not extended the benefit provided under Section 73(3) of the Finance Act, 1994 after payment of duty, interest and penalty component accordingly and was put to show-cause almost two years after the visit of the departmental officials. In citing judicial decisions in Ford India Pvt. Ltd. vide Final order no. 40182- 40183/2018 dated 23.01.2018, CCE vs. Mahindra & Mahindra Ltd. 2018-TIOL-187-SC-MUM-CX, Thirumurugan Enterprises 2015 (14) STR 681 (Mad.), A.N. Impex 2016 (42) STR 793 (Bom), Amway India Enterprises Pvt. Ltd.

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reference to case laws reported in CCE vs. Neminath Fabrics Pvt. Ltd. 2010 (256) ELT 369 (Guj) that as department acquired knowledge of irregularity, fact of suppression cannot be obliterated. He strenuously argued that unless anti-evasion team had not raided the premises of the appellant, the fact of suppression by way of evasion of tax would not have been known. Referring to the order passed by the Commissioner (Appeals) in para 6.1, 6.2 and 7 where reference to order-in-original is made by the Commissioner (Appeals), ld. AR argued that the appellant had collected service tax amount during the period April 2010 to June 2011 but had not deposited the same in government exchequer nor disclosed the same on its own to the department and the statement of one of its partners indicates that such service tax liability was not discharged due to cash flow and fund problem which itself indicates that tax liability was well within the knowledge of the appellant firm who had intentionally withhe

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ing material facts, had there been no intervention by the department. This being the factual aspect, it cannot be said that appellant had a bonafide intention to discharge duty liability and it could not do so due to incapacity. The other ground cited by the appellant in placing reliance to the statement of the partner is that they did not get payment against work done for Tata Telecommunications but nowhere in the reply to the show-cause notice or personal hearing, they had established that in between raid conducted on 16.08.2011 and payment made on 18.08.2011 the appellant had in fact received such payment and promptly discharged its duty liability. Further, appellant wants its case to be covered under Section 73(3) but to being it to its preview, the fact of duty liability should not have been in its knowledge and should have been brought to its notice by the central excise officer. In that context, no such material is forthcoming that appellant was ignorant of its duty liability an

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M/s AMIT COTTON INDUSTRIES THROU PARTNER, VELJIBHAIVIRJI BHAI RANIPA Versus PRINCIPAL COMMISSIONER OF CUSTOMS

M/s AMIT COTTON INDUSTRIES THROU PARTNER, VELJIBHAIVIRJI BHAI RANIPA Versus PRINCIPAL COMMISSIONER OF CUSTOMS
GST
2019 (1) TMI 303 – GUJARAT HIGH COURT – 2019 (23) G. S. T. L. 463 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 20-12-2018
R/SPECIAL CIVIL APPLICATION NO. 20126 of 2018
GST
MS HARSHA DEVANI AND DR A. P. THAKER, JJ.
For The Petitioner (s) : MR D K TRIVEDI (5283)
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. The learned advocate for the petitioner has tendered a draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith.
2. The learned advocate for the petitioner invited the attention of the court to the provisions of section 16 of the Integrated Goods

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the present case. Reference was made to the e-mail dated 28.11.2018 issued by the IGST Section, Customs House, Mundra drawing the attention of the petitioner to the Board Circular No.37/2018-Customs dated 9.8.2018 wherein it is clearly mentioned that by declaring drawback claim serial number suffixed with A or C, the exporters consciously relinquished their IGST/ITC claim. Reference was made to Circular No.37/2018-Customs dated 9.10.2018 to submit that the same does not relate to IGST and would have no applicability to the facts of the present case. It was submitted that in any case, the petitioner has already returned back the differential drawback amount, and hence, there is no impediment in the way of the respondents in granting the ref

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