Goods and Services Tax

In Re: M/s. Shreeji Infrastructure India (P.) Ltd.,
GST
2018 (11) TMI 58 – AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH – 2018 (19) G. S. T. L. 128 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH – AAR
Dated:- 18-10-2018
Case Number 18/2018 and Orders No. 15/2018, No. 12/2018/AAR/R-28/39
GST
RAJIV AGRAWAL AND MANOJ KUMAR CHOUBEY, MEMBER
Present for the Behalf of Applicant: Anil Kumar Gupta
PROCEEDING
1. BRIEF FACTS OF THE CASE:
1.1 M/s. Shreeji Infrastructure Private Limited (herein after referred to as the 'applicant company'), having its registered office at 1180, University Road, South Civil Lines, Jabalpur, (MP) and CIN U45203CT1999PTC020826.
1.2 That, the applicant company is engaged in carrying out the works contract in relation to construction of road, bridges, buildings, civil structures of government, semi-government and private undertakings, secured through tenders in the case of government undertakings, and through personal n

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, rain water harvesting system, complete electrification system, etc. The contractor shall carry out all other miscellaneous work that will be necessary for completing this package on turnkey basis.
1.4. That, during the course of carrying out the construction work, the applicant company raised Running Bills (RA bills) for the portion of work completed at a point of time. To MPPGCL by charging CGST and SGST at the rate of 9% each, in view of Notification no. 11/2017Central Tax (rate) dated 28.06.2017 Chapter 99 Section 5 Heading 9954- entry 3(ii)
S.No.
Chapter, Section or Heading
Description of Service
Rate (per cent.)
Condition
1
Chapter 99
All Services
 
–
2
Section 5
Construction Services
 
–
3
Heading 9954 (Construction services)
(ii) composite supply of works contract as defined in clause 119 of section 2 of Central Goods and Services Tax Act, 2017.
9
–
1.5. Whereas, on the other hand, the service recipient, MPPGCL is of the opinion that in the work

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maintenance, renovation or alteration of-
(a) ………….
(b) ………….
(c) a residential complex predominantly meant for self use or the use of their employees or other persons specified in paragraph III of the CGST Act, 2017,
6
Provided that where the services are supplied to a government entity, they should have been procured by the said entity in relation to a work entrusted to it by the CG, SG or the Union Territory or local authority, as the case may be.
1.6 That, by arguing that the work contract carried out by the applicant company is covered under entry 3(vi)(c) of the notification (supra), MPPGCL released the GST payment only to the extent of 12 (6+6)% as against 18 (9+9)% as claimed by the applicant company in their bills.
1.7 In order to claim itself as a 'government entity', MPPGCL submitted its nature of constitution as under:
a. That, MPPGCL is a wholly owned company of MP Government engaged in generation of electricity in the state of Madhya Prade

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ification (Extraordinary) No. 226 notified order no. 3679/ FRS/ 18/13/2002 Dtd. 31-05-2005 to give effect to the reorganization of the Madhya Pradesh State Electricity Board. The Para2(a) of the said order is reproduced below :
k. “With effect from 01.06.2005 (the effective date) the function of Generation of electricity as specified in schedule A to the Transfer Scheme Rules, 2003, shall be conducted and shall be carried on by Madhya Pradesh Power Generating Company Limited as its own business and not as an agent of or on behalf of the Madhya Pradesh State Electricity Board”
l. The opening balance sheet of Madhya Pradesh Power Generating Company Limited as on 31.05.2005 has also been notified
m. Accordingly, the Company has started functioning independently, from 01-06-2005
n. The Corporate Identity Number(CIN) of MPPGCL is U40109MP2001SGC014882
1.8. That, as per explanation to the said Notification no. 11/2017Central Tax (rate) dated 28.06.2017, the term government entity is exp

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cribes that, the concessional rate of 12 (6+6)% is applicable on fulfillment of the following:
“where the services are supplied to a government entity, they should have been procured by the said entity in relation to a work entrusted to it by the CG, SG or the Union Territory or local authority, as the case may be.”
MPPGCL stated that construction of 599 residential quarters for its staff is the work procured by it from the MP state government, whose work contract for construction was then allotted to the applicant company.
1.11. On the ground as stated supra in para 7, 8 & 9, MPPGCL construed that:
That, MPPGCL is a “government entity”,
And the service supplied to it is a service procured by it from the state government. Therefore, it is squarely covered under entry 3(vi)(c) Chapter 99, heading 9954 of the Notification no. 11/2017 dated 28.06.2017 amended from time to time and the applicable rate of GST for such supply made to it is 12% (6+6), and applicant company is not correct

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of the CGST Act, 2017,
Provided that where the services are supplied to a government entity, they should have been procured by the said entity in relation to a work entrusted to it by the CG, SG or the Union Territory or local authority, as the case may be.”
1.13 That, in view of the above facts and circumstances, even if we consider MPPGCL to be a “Government Entity”, then also the moot question remains as to whether the construction work of 599 residential quarters as allotted to the applicant company by MPPGCL is the service which has been procured by MPPGCL entity in relation to a work entrusted to it by the MP state government.
1.14 The applicant company is of the view that, construction of 599 residential quarters is not a work which has been entrusted by the MP state government to MPPGCL. MPPGCL has carried out the construction activity to facilitate its staff and it is a part of furtherance of its business of generation of electricity.
1.15 In view of the applicant company,

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;Government Entity'?;
2.  If yes, whether the work contract service of construction of 599 residential quarters allotted to the Applicant company under the tender, will be charged under the GST rate of 12% (6+6) [as per entry 3(vi)(c)] or 18% (9+9) [under entry 3(ii)];
3.  Or otherwise if the works contract service is not covered under entry 3(vi)(c), in the facts and circumstances of the Applicant company, then what is the applicable rate of GST?
3. DEAPRTMENT'S VIEW POINT:
The CGST & Central Excise Commisionerate, Jabalpur has furnished its opinion vide letter C.No.GST/Party/lsssues/HQRS-JBP/2017-18 dtd. 05.09.2018 of the Joint Commissioner, CGST & Central Excise, Jabalpur. It has been opined that MPPGCL fulfils the conditions laid down in the definition of 'Government Entity' as defined in terms of Notification No.31/20107-Central Tax (Rate) dtd.13.10.2017, and accordingly it would be a 'Government Entity' for the purpose of CGST Act 2017. Howev

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submissions already made in the application. He urged for an early ruling in the matter.
5. DISCUSSIONS AND FINDINGS:
5.1 We have carefully considered the submissions made by the applicant in the application, the pleadings on behalf of the Applicant made during the course of personal hearing. At the outset, we find that the issue raised in the Application is squarely covered under Section 97(2)(b) of the CGST Act 2017 and MPGST Act 2017 being a matter related to applicability of exemption notification, and the applicant have complied with the all the requirements for filing this application as laid down under the law. We therefore admit the application for consideration on merits.
5.2. The moot questions to be answered in present application are as under:
i.  Whether M/s. Madhya Pradesh Power Generation Company Limited (MPPGCL) is a Government Entity for the purpose of GST law?
ii.  Whether the works contract service of construction of residential quarters provided by t

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t of Madhya Pradesh has a 100% shareholding in the company. The State Government is also exercising full control over the activities of the said company. Needless to say that in the given circumstances M/s MPPGCL qualifies to be called and termed as a 'Government Entity' for the purpose of GST law, as it fulfils the necessary and sufficient conditions laid down under notification supra.
5.5. Now, the said Government Entity i.e. MPPGCL has been entrusted with the work of power generation in the State of Madhya Pradesh. Though we do not have details of work entrusted by the State Government to MPPGCL, on the basis of facts brought on record through the present application, we safely conclude that the essential and sole work entrusted to MPPGCL by the Government of Madhya Pradesh is of electricity (power) generation. M/s.MPPGCL has awarded a works contract for construction of 599 residential quarters at Shri Singaji Thermal Power Project Stage-ll, Near Village Dongalia Distt Khan

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is matter by the Joint Commissioner, CGST & Central Excise, Jabalpur, as discussed in foregoing paras, and we express our agreement with the same. The activity in question definitely does not have any relation to the principal work of power generation entrusted by the state government to MPPGCL, and therefore the works contract service of construction of residential quarters would attract GST @18% (9% CGST + 9% SGST) in terms of Notification No.11/2017-CT Rate dtd.28.06.2017 and corresponding notification under MPGST Act 2017.
5.7. Thus in view of the discussions foregoing, we conclude that the impugned activity of the applicant would attract GST @18% (9% CGST + 9% SGST) classifiable under SAC 9954 read with Notification No.11/2017-Central Tax (Rate) and corresponding notification under MPGST Act 2017.
RULING
6. The Advance Ruling on question posed before the authority is answered as under:
i.  M/s. Madhya Pradesh Power Generation Company Limited is a Government Entity as defi

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M/s UPS Jetair Express Private Limited Versus Commissioner of CGST, Mumbai East
Service Tax
2018 (10) TMI 1554 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 18-10-2018
APPEAL NO. ST/87977/2018 – A/87664/2018
Service Tax
SHRI AJAY SHARMA, MEMBER (JUDICIAL)
Ms. Lata Bafna, Tax Manager, UPS for Appellant
Shri Sudhir B. Mane, Assistant Commissioner (AR) for Respondent
ORDER
Per: Ajay Sharma
The present appeal is arising from the impugned order dated 10.04.2018 passed by the Principal Additional Director General, DGPM, WRU, Mumbai in Order-in-Appeal No. MUM-DGPM-WRU/ APP-94/2017-18. In the present case CENVAT credit of Rs. 81,854/- has been denied to the Appellant on the ground that the service tax registration n

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allowed and recovered from them under Rule 14 of the CENVAT Credit Rules, 2004 read with the proviso to Section 73(1) of Finance Act, 1994.
(ii) Interest should not be demanded & recovered from them under Rule 14 of CENVAT Credit Rules, 2004 read with Section 75 of Finance Act, 1994;
(iii) Penalty should not be imposed upon them for failure to pay Service Tax under Rule 14 of the CENVAT Credit Rules, 2004 and Section 76 of the Act.
(iv) The penalty should not be imposed upon them under Rule 15(3) of the CENVAT Credit Rules, 2004 read with the provisions of Section 78 of Finance Act, 1994.”
2. The Adjudicating Authority vide Order-in-Original dated 30.12.2015 confirmed the demand of Service Tax along with interest and penalty under S

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s allowed to the vendor on 29.04.2005 i.e. much before the vendor issued invoices to the Appellant for the period in question. It is not the case of Revenue that the vendor has not paid the Service Tax which was collected by him from the Appellant, who have utilised their services. CENVAT credit is being denied to the Appellant only on the ground that the invoices were not having the registration number of the service provider. There is no allegation or finding to the effect that the input services were not received by the Appellant or that the said services were not covered under the scope of eligible input services in terms of CENVAT Credit Rules, 2004. It is not disputed that after pointing out by the Audit about non-mentioning of servic

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Sonodyne International Pvt. Ltd. Versus Commissioner of CGST, Mumbai East
Service Tax
2018 (10) TMI 1375 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 18-10-2018
ST/87531/2018 – A/87665/2018
Service Tax
Mrs. Archana Wadhwa, Member (Judicial)
For the Appellant : Shri Keval Shah, C.A.
For the Respondent : Shri Sudhir B. Mane, Assistant Commissioner (AR)
ORDER
After hearing both the sides duly represented by Shri Keval Shah, Chartered Accountant, for the appellant and Shri Sudhir B. Mane, Assistant Commissioner (AR), I find that the appellant is a unit located in SEZ area and was availing the benefit of Notification No. 17/2011-ST dated 1.3.2011 as also a subsequent identical Notification No.40/2012-ST dated 20.6.2012. In terms of the said notification, the input services, utilized by the SEZ developer, for the authorized operations, are exempt from payment of service tax. The modus operandi for implementation of the said notification stands explained in the no

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pect of various services so received.
3. Subsequently, they filed a refund claim for Rs. 8.60 lakhs approximately for claim of the said service tax so paid by them. However, inasmuch as the assessee had reflected the said service tax in their ST-3 returns, Revenue entertained a view that they have availed the cenvat credit of service tax so paid by them and as such, the condition of the notification stands violated by them. Accordingly, proceedings were initiated for denial of the refund claim, resulting in passing of the present impugned orders by the authorities below.
4. The appellant during the course of adjudication took a categorical stand that no cenvat credit stands taken by them or stands utilized by them. They have merely maintained a record of the service tax so paid by them in respect of various input services and the total amount of such service tax was reflected by them in their ST-3 returns so as to let the department know that the total service tax availed by them is

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mount to the fact that as if the assessee has taken and utilized the credit. Not only that the appellant in their subsequent ST-3 returns has again shown the opening balance of such account maintained by them as zero and has reflected the total service tax earned by them in that period. The appreciation of all the above facts leads to only one inevitable conclusion that no cenvat credit was availed by the assessee and as such, there was no violation of the condition of the notification.
6. Even the lower authorities in their impugned orders have nowhere disputed the fact that such amount of service tax reflected by them in their ST-3 returns was utilized by them. The condition of the notification, which grants refund of service tax paid on various services utilized for authorized operations on SEZ, is that no cenvat credit would be availed by the assessee. Such availment cannot be held to be there unless such service tax accumulated in the accounts of the assessee stands utilized by t

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Regarding RCM
Query (Issue) Started By: – Prateek Agrawal Dated:- 17-10-2018 Last Reply Date:- 22-10-2018 Goods and Services Tax – GST
Got 3 Replies
GST
WHETHER RCM is applicable on LAND DIVERSION FEE PAID TO GOVERNMENT BY THE BUSINESS ENTITY Under Section 9(3) of CGST Act ?
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
According to Sl. No. 5 of Notification No. 13/2017- Central Tax (Rate) dated 28.6.2017 as amended "Services supplied by the Central Government, State Gov

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Clarification on the manner of filing the Quarterly Return by Composition Dealers in FORM GSTR-4
GST
Dated:- 17-10-2018

Ministry of Finance
Posted On: 17 OCT 2018 3:10PM by PIB Delhi
It has been brought to notice that doubts regarding the manner of filing the quarterly return by Composition Dealers in FORM GSTR-4 in the absence of auto-population of the details of inward supplies (other than supplies attracting reverse charge) received from registered suppliers exist amongst taxp

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GST returns FY 17-18- omissions
Query (Issue) Started By: – mathur ramachandran Dated:- 17-10-2018 Last Reply Date:- 20-10-2018 Goods and Services Tax – GST
Got 3 Replies
GST
My client has raised supply invoices in the previous FY 17-18 – but his part-time accountant omitted to enter the values/particulars in GSTR 3B / 1 – But they have paid the tax due in relation thereto in May 18 in the next FY 18-19. Now one of the buyers is refusing to pay the GST amount since the purchase (my client's sale) is not reflected in his GSTR 2A.
Now please advise as to how my client can rectify his returns for the FY 17-18 now for including the omitted turnover. Is my understanding that there is no provision in GST for revision of returns?

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GST Council Approves Current Lottery Tax Rates; Differential Levy Allowed Under Council Authority.
Case-Laws
GST
Levy of GST on Lottery – is differential levy of tax permissible? – It was after extensive deliberations that, the GST Council had approved the rates as presently obtaining in respect of lottery. It is within the domain of such Council to decide the rate of tax – differential levy of tax is permissible.
TMI Updates – Highlights, quick notes, marquee, annotation, news, ale

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GST on Lotteries Upheld as Constitutionally Valid; Classified as Goods, Taxable Under Central and West Bengal GST Acts.
Case-Laws
GST
Constitutional validity of levy of GST on Lottery – a lot

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Service Tax Demands Valid Post-GST Transition Due to Section 174(2)(e) Savings Clause in Finance Act 1994.
Case-Laws
Service Tax
Validity of demand of service tax after migration to GST Regime – although Chapter V of the Finance Act of 1994 stood omitted u/s 173 of GST Act, but the savings clause provided u/s 174(2)(e) will enable the continuation of the investigation, enquiry, verification etc., that were made/to be made under Chapter V of the Finance Act of 1994.
TMI Updates – Hig

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SHABNAM PETROFILS PVT. LTD. Versus UNION OF INDIA
GST
2018 (10) TMI 1631 – GUJARAT HIGH COURT – TMI
GUJARAT HIGH COURT – HC
Dated:- 17-10-2018
R/SPECIAL CIVIL APPLICATION NO. 16213 of 2018
GST
MR AKIL KURESHI AND DR B.N. KARIA, JJ.
For The Petitioner (s) : RC JANI AND ASSOCIATE (6436)
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Draft amendment is allowed. Amendment shall be carried out latest by 25.10.2018.
2. The petitioner has challenged the provisions

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The Uttar Pradesh Goods and Services Tax (Twenty Second Amendment) Rules, 2018
KA.NI.-2-2023/XI-9(42)/17 Dated:- 17-10-2018 Uttar Pradesh SGST
GST – States
Uttar Pradesh SGST
Uttar Pradesh SGST
Uttar Pradesh Shasan
Sansthagat Vitta, Kar Evam Nibandhan Anubhag-2
NOTIFICATION
NO. KA.NI.-2-2023/XI-9(42)/17-U.P.GST Rules-2017, Order-(149)-2018
Lucknow : Dated : October 17, 2018
In exercise of the powers conferred by Section 164 of the Uttar Pradesh Goods and Services Tax Act, 2017 (U.P. Act no. 1 of 2017), read with section 21 of the Uttar Pradesh General Clause Act, 1904 (U.P. Act no. 1 of 1904), the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh Goods and Services Tax Rules, 2017, namely:-
THE UTTAR PRADESH GOODS AND SERVICES TAX (Twenty Second Amendment) RULES, 2018
Short name and commencement
1. (1) These rules may be called the Uttar Pradesh Goods and Services Tax (Twenty Second Amendment) Rules, 2018.
(2) Save as oth

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t the beginning of Financial Year
(+)
C
Unadjusted advances at the end of the Financial Year
(+)
D
Deemed Supply under Schedule I
(+)
E
Credit Notes issued after the end of the financial year but reflected in the annual return
(+)
F
Trade Discounts accounted for in the audited Annual Financial Statement but are not permissible under GST
(+)
G
Turnover from April 2017 to June 2017
(-)
H
Unbilled revenue at the end of Financial Year
(-)
I
Unadjusted Advances at the beginning of the Financial Year
(-)
J
Credit notes accounted for in the audited Annual Financial Statement but are not permissible under GST
(-)
K
Adjustments on account of supply of goods by SEZ units to DTA Units
(-)
L
Turnover for the period under composition scheme
(-)
M
Adjustments in turnover under section 15 and rules thereunder
(+/-)
N
Adjustments in turnover due to foreign exchange fluctuations
(+/-)
O
Adjustments in turnover due to reasons not listed above
(+/-)
P
An

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ount payable thereon
Tax payable
Description
Taxable Value
Central tax
State tax/UT tax
Integrated Tax
Cess, if applicable
1
2
3
4
5
6
A
5%
B
5% (RC)
C
12%
D
12% (RC)
E
18%
F
18% (RC)
G
28%
H
28% (RC)
I
3%
J
0.25%
K
0.10%
L
Interest
M
Late Fee
N
Penalty
O
Others
P
Total amount to be paid as per tables above




Q
Total amount paid as declared in Annual Return (GSTR-9)
R
Un-reconciled payment of amount
PT 1
10
Reasons for un-reconciled payment of amount
A
B
Reason 1
<< Text >>
Reason 2
<< Text >>
C
Reason 3
<< Text >>
11
Additional amount payable but not paid (due to reasons specified under Tables 6,8 and 10 above)
To be paid through Cash
Description
Taxable Value
Central tax
State tax/UT tax
Integrated tax
Cess, if applicable
1
2
3
4
5
6
5%
12%
18%
28%
3%
0.25%
0.10%
Interest
Late Fee
Penalty
Others (please specify)
Pt. IV
Reconciliation of Input Tax Credit

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oods (Including received from SEZs)
Rent and Insurance
Goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples
Royalties
H
I
J
K
L
M
Employees' Cost (Salaries, wages, Bonus etc.)
Conveyance charges
Bank Charges
Entertainment charges
Stationery Expenses (including postage etc.)
Repair and Maintenance
N
Other Miscellaneous expenses
O
P
Capital goods
Any other expense 1
Q
Any other expense 2
R
Total amount of eligible ITC availed
<>
S
ITC claimed in Annual Return (GSTR9)
T
Un-reconciled ITC
ITC 2
15
Reasons for un-reconciled difference in ITC
A
Reason 1
<< Text >>
B
C
Reason 2
<< Text >>
Reason 3
<< Text >>
16
Tax payable on un-reconciled difference in ITC (due to reasons specified in 13 and 15 above)
Description
Amount Payable
Central Tax
State/UT Tax
Integrated Tax
Cess
Interest
Penalty
Pt.V
Auditor's recommendation on additional Liability due to non-reconciliation
To be paid throu

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ification Number
2. The details for the period between July 2017 to March 2018 are to be provided in this statement for the financial year, 2017-18. The reconciliation statement is to be filed for every GSTIN separately.
3. The reference to current financial year in this statement is the financial year for which the reconciliation statement is being filed for.
4. Part II consists of reconciliation of the annual turnover declared in the audited Annual Financial Statement with the turnover as declared in the Annual Return furnished in FORM GSTR-9 for this GSTIN. The instructions to fill this part are as follows :-
Table No.
Instructions
5A
The turnover as per the audited Annual Financial Statement shall be declared here. There may be cases where multiple GSTINs (State-wise) registrations exist on the same PAN. This is common for persons / entities with presence over multiple States. Such persons / entities, will have to internally derive their GSTIN-wise turnover and declare the s

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ment shall be declared here.
5D
Aggregate value of deemed supplies under Schedule I of the CGST Act, 2017 shall be declared here. Any deemed supply which is already part of the turnover in the audited Annual Financial Statement is not required to be included here.
5E
Aggregate value of credit notes which were issued after 31st of March for any supply accounted in the current financial year but such credit notes were reflected in the annual return (GSTR-9) shall be declared here.
5F
Trade discounts which are accounted for in the audited Annual Financial Statement but on which GST was leviable (being not permissible) shall be declared here.
5G
Turnover included in the audited Annual Financial Statement for April 2017 to June 2017 shall be declared here.
5H
Unbilled revenue which was recorded in the books of accounts on the basis of accrual system of accounting during the current financial year but GST was not payable on such revenue in the same financial year shall be declared

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he CGST Act, 2017 and rules thereunder. Therefore, any difference between the turnover reported in the Annual Return (GSTR-9) and turnover reported in the audited Annual Financial Statement due to difference in valuation of supplies shall be declared here.
5N
Any difference between the turnover reported in the Annual Return (GSTR-9) and turnover reported in the audited Annual Financial Statement due to foreign exchange fluctuations shall be declared here.
5O
Any difference between the turnover reported in the Annual Return (GSTR-9) and turnover reported in the audited Annual Financial Statement due to reasons not listed above shall be declared here.
5Q
Annual turnover as declared in the Annual Return (GSTR-9) shall be declared here. This turnover may be derived from Sr. No. 5N, 10 and 11 of Annual Return (GSTR-9).
6
Reasons for non-reconciliation between the annual turnover declared in the audited Annual Financial Statement and turnover as declared in the Annual Return (GSTR-9)

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, reverse charge etc.) declared in Table 7B, 7C and 7D above.
7F
Taxable turnover as declared in Table 4N of the Annual Return (GSTR-9) shall be declared here.
8
Reasons for non-reconciliation between adjusted annual taxable turnover as derived from Table 7E above and the taxable turnover declared in Table 7F shall be specified here.
5. Part III consists of reconciliation of the tax payable as per declaration in the reconciliation statement and the actual tax paid as declared in Annual Return (GSTR-9). The instructions to fill this part are as follows :-
Table No.
Instructions
9
The Table provides for reconciliation of tax paid as per reconciliation statement and amount of tax paid as declared in Annual Return (GSTR 9). Under the head labelled “RC”, supplies where tax was paid on reverse charge basis by the recipient (i.e. the person for whom reconciliation statement has been prepared) shall be declared.
9P
The total amount to be paid as per liability declared in Table 9A to

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e the same here. It may be noted that reference to audited Annual Financial Statement includes reference to books of accounts in case of persons / entities having presence over multiple States.
12B
Any ITC which was booked in the audited Annual Financial Statement of earlier financial year(s)but availed in the ITC ledger in the financial year for which the reconciliation statement is being filed for shall be declared here. This shall include transitional credit which was booked in earlier years but availed during Financial Year, 2017-18.
12C
Any ITC which has been booked in the audited Annual Financial Statement of the current financial year but the same has not been credited to the ITC ledger for the said financial year shall be declared here.
12D
ITC availed as per audited Annual Financial Statement or books of accounts as derived from values declared in Table 12A, 12B and 12C above will be auto-populated here.
12E
Net ITC available for utilization as declared in Table 7J of

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ere. Table 7J of the Annual Return (GSTR9) may be used for filing this Table.
15
Reasons for non-reconciliation between ITC availed on the various expenses declared in Table 14R and ITC declared in Table 14S shall be specified here.
16
Any amount which is payable due to reasons specified in Table 13 and 15 above shall be declared here.
7. Part V consists of the auditor's recommendation on the additional liability to be discharged by the taxpayer due to non-reconciliation of turnover or non-reconciliation of input tax credit. The auditor shall also recommend if there is any other amount to be paid for supplies not included in the Annual Return. Any refund which has been erroneously taken and shall be paid back to the Government shall also be declared in this table. Lastly, any other outstanding demands which is recommended to be settled by the auditor shall be declared in this Table.
8. Towards, the end of the reconciliation statement taxpayers shall be given an option to pay thei

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rules/notifications made/issued thereunder
*has not maintained the following accounts/records/documents as required by the IGST/CGST/<<>> GST Act, 2017 and the rules/notifications made/issued thereunder:
1.
2.
3.
3. (a) *I/we report the following observations/ comments / discrepancies / inconsistencies; if any:
…………………………………….
…………………………………….
3. (b) *I/we further report that, –
(A) *I/we have obtained all the information and explanations which, to the best of *my/our knowledge and belief, were necessary for the purpose of the audit/ information and explanations which, to the best of *my/our knowledge and belief, were necessary for the purpose of the audit were not provided/partially provided to us.
(B) In *my/our opinion, proper books of account *have/have not been kept by the regis

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ip;………………………………………………………………
(b) ……………………………………………………………………………………
(c) ……………………………………………………………………………………
………………………………………
………………………………………
**(Signature and stamp/Seal of the

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nce of the provisions of the …………………………….Act, and *I/we annex hereto a copy of their audit report dated ……………………………. along with a copy of each of:-
(a) balance sheet as on ………
(b) the *profit and loss account/income and expenditure account for the period beginning from ………..…to ending on …….,
(c) the cash flow statement for the period beginning from ……..…to ending on ………, and
(d) documents declared by the said Act to be part of, or annexed to, the *profit and loss account/income and expenditure account and balance sheet.
2. I/we report that the said registered person-
*has maintained the books of accounts, records and documents as required by the IGST/CGST/<<>> GST Act, 2017 and the rules/notifications made/issued thereunder

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p;…………….…………………………….………………………
(c) …………………………….…………………………….………………………
………………………………………
**(Signature and stamp/Seal of the Auditor)
Place: ……………
Name of the signatory …………………
Membership No………………
Date: ……………
Full address ………………………”.
By Order
(Alok Sinha)
Apar Mukhya sachi

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Zee Entertainment Enterprises Ltd., Versus The Commissioner of CGST & Central Excise
Central Excise
2018 (10) TMI 1416 – BOMBAY HIGH COURT – 2019 (365) E.L.T. 786 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 17-10-2018
Central Excise Appeal No. 82 of 2018
Central Excise
M. S. Sanklecha And Riyaz I. Chagla, JJ.
For the Appellant : Mr. V. Sridharan, Sr. Advocate with Mr. Rajesh Ostwal i/b. PROMPT Legal
For the Respondent : Mr. Pradeep S. Jetly with Mr. J.B. Mishra
ORDER
P.C:
This Appeal under Section 35G of the Central Excise Act, 1944 (the Act), challenges the order dated 2nd November, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal).
2 The Appellant urges the following question of law for our consideration:
“Whether in the facts and circumstances of the case and in law, the Tribunal was correct in remanding the matter to the adjudicating authority?
3 At the request of the parties, the Appeal itself is being disposed of finally

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sed without considering the issue at hand. This to conclude that the order of the Commissioner cannot be sustained.
Therefore, after setting aside the order restored the proceedings to the Commissioner, for fresh disposal.
7 Mr. Sridharan, learned Senior Counsel for the Appellant points out that neither in the Review Order or in the Appeal filed by the Revenue against the order dated 7th June, 2013 of the Commissioner, is any grievance made of it, being incomprehensible. The issues raised in the appeal, challenged the conclusion of the Commissioner that the demand is barred by limitation. It is pointed out that the impugned order does not record the dispute which requires adjudication nor does it record the grievance of the parties. It merely proceeds on its perusal of the order of the Commissioner and comes to the conclusion that the order has been passed without any reasons inasmuch as same does not exhibit the mind of the author.
8 On the other hand, Mr. Jetly, learned Counsel fo

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ay if it thinks fit”, is not an arbitrary or subjective satisfaction of the Tribunal but a satisfaction reached through the filter of reasons in the context of the grievance of the parties before it. In the impugned order, we find that the Tribunal has concluded that the order of the Commissioner in appeal is, incapable of understanding without itself referring to the dispute and any part of the finding of the order which are impossible to understand. Therefore, although the Tribunal is undoubtedly entitled to remand a matter for fresh consideration, the same cannot be at its whim and fancy or mere ispi dixit but a conclusion based on reasons.
10 Therefore, the impugned order is not sustainable. Mr. Jetly's submission that no prejudice is caused as the issue has only been remanded, is not correct. The party in whose favour the order is passed is certainly prejudiced if the order in its favour is being set aside without any reasons. Thus, prejudice is caused. Further, there is a ma

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M/s Shri Vitthalsai S.S.K. Ltd. Versus Commissioner of GST & Central Excise, Aurangabad
Central Excise
2018 (10) TMI 1153 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 17-10-2018
E/86639 & 86655/2018 – A/87647-87648/2018
Central Excise
Shri Ajay Sharma, Member (Judicial)
For the Appellant : Shri H.S. Shirsat, Consultant
For the Respondent : Shri A.B. Kulgod, Assistant Commissioner (AR), Shri M.R. Melvin, Superintendent (AR)
ORDER
PER: AJAY SHARMA
These appeals have been filed against the Order-in-Appeal Nos. NGPII/
APPL/17/2017-18 dated 08.03.2018 & NGP-II/APPL/21/2017-18 dated 09.03.2018 passed by the Commissioner, CGST & Central Excise, Nagpur-II.
2. The brief facts of the matter is that the Appellant is engaged in manufacture of Sugar & Molasses and they are availing facility of CENVAT credit under CENVAT Credit Rules, 2004, for input and capital goods credit as well as input service credit. During the course of manufacture of dutiable Sugar & Molasses

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Act, 1944 read with Rule 14 of CENVAT Credit Rules, 2004.
(c) The penalty should not be imposed upon them under the provisions of Rules 15(2) of CENVAT Credit Rules, 2004.”
4. The adjudicating authority vide Order-in-Original dated 28.12.2016 dropped the demand for the period from September, 2014 to February, 2015, in view of the decision of Hon'ble Supreme Court in the matter of Union of India and Others Vs. DSCL Sugar Ltd. reported in 2015 (322) ELT 769 (S.C.) but confirmed the demand of Rs. 5,48,023/- for the period from March, 2015 to June, 2015, in view of the amendment made in Rule 6 of CENVAT Credit Rules, 2004 w.e.f. 01.03.2015, along with interest and penalty. On filing the appeal by the Appellant, the Learned Commissioner, CGST & Central Excise, Nagpur-II upheld the order passed by the adjudicating authority and rejected the appeal.
5. I have heard Learned Consultant for the Appellant and Learned Authorised Representative for the Revenue and perused the records.
Lea

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9 (233) ELT 301 (HC-Bom.)
(iii) M/s Indreshwar Sugar Mills Ltd. & Others etc. Vs. CCE, Pune-III – Final Order No. A/90687-90703/17/SMB, dated 15.11.2017
(iv) Athani Sugars Ltd. & Others etc. Vs. CCE, Pune-III 2017-TIOL-4280- CESTAT-MUM
(v) Sahakar Shiromani Vasantrao Kale SSK Ltd. Vs. CCE, Pune-III – 2017- TIOL-4127- CESTAT-MUM
(vi) M/s. ECO Cane Sugar Energy Ltd. & Others etc. Vs. CCE, Kolhapur – 2017 (12) TMI 950- CESTAT-MUMBAI
(vii) M/s Shivratna Udyog Ltd. & Others etc. Vs. Commissioner of Customs & Central Excise – 2017 (9) TMI 985- CESTAT MUMBAI
(viii) Shree Narmada Khand Udyog, Sahakari Mandli Ltd. Vs. Commissioner (Appeals) – 2018 (8) TMI 1075 – CESTAT AHMEDABAD
(ix) M/s Simbhaoli Sugar Ltd. Vs. CCE, Noida – 2018 (8) TMI 160 – CESTAT ALLAHABAD
(x) M/s Triveni Engineering & Industries Ltd. Vs. C.C. & C.E. & S.T. – Noida – 2018 (8) TMI 6 – CESTAT ALLAHABAD
6. The Learned Authorised Representative on behalf of the Revenue reiterated the finding in the impugned ord

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e 6 read as under:-
“Rule 6(1) The Cenvat credit shall not be allowed on such quantity of inputs used in or in relation to the manufacture of exempted goods or for provision of exempted services, or input service used in or in relation to the manufacture of exempted goods and their clearance upto the place of removal or for provisions of exempted service except in the circumstances mentioned in sub-rule(2): Provided that the CENVAT credit on inputs…………..
Explanation 1:- For the purposes of this rule, exempted goods or final products as defined in clauses (d) and (h) of Rule 2 shall included non-excisable goods cleared for a consideration from the factory.”
Reading the aforesaid explanation-I reveals that non-excisable goods cleared for consideration, would fall within the scope of the said Rule. The contention of the Revenue is that since, the “exempted goods”, “final products” defined under the CENVAT Credit Rules, 2004 in clause (d) and clause (h), respectively include n

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into existence during the crushing of the sugarcanes and is an unavoidable agricultural waste. For two reasons the Board's Circular dated 25.04.2016 has no application on the facts of the instant case, firstly no Circular can override the Rules as well as the law laid down by the Hon'ble Supreme Court and the orders of this Tribunal, and secondly the said Circular was issued on 25.04.2016 i.e. on a later date, whereas the period in dispute is March, 2015 to June, 2015.
9. Almost all the decisions cited by Learned Counsel for the appellant are on identical issue and in all the decisions, this Tribunal has taken a consistent view that Rule 6 of CENVAT Credit Rules, 2004 has no application in given facts. For instance, in the matter of M/s Shivratna Udyog Ltd. & Others (supra), while allowing the appeal, the following order has been passed by this Tribunal :-
“I have carefully considered the submissions made by both sides. The fact of the case is that the appellants' goods in dispu

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nder Rule 6 of Cenvat Credit Rules 2004 is not correct. In view of the above judgments the issue whether Rule 6(3) is applicable in case of removal of non-dutiable waste or by product is settled in favour of the assessee. As regard the submissions made by Ld. ARs that after insertion of explanation in Rule 6(1), even in case of non-excisable goods, the reversal under Rule 6(3) is required. In this regard he referred to the Hon'ble Supreme Court judgment in the case of DSCL Sugar Ltd.(supra). Wherein the Hon'ble Supreme Court has held that in case of non-manufactured/non-excisable goods under Rule 6(3) would not apply and after the amendment in Rule 6(1) by inserting explanation, the ratio of the Hon'ble Supreme Court judgment will not applicable for the period after amendment. On careful consideration of this submission, I find that the issue before the Hon'ble Supreme Court in DSCL Sugar Ltd. was that whether Rule 6(3) is applicable in case of non-excisable goods.
However, in the pr

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PRIVI ORGANICS INDIA LIMITED Versus UNION OF INDIA
GST
2018 (10) TMI 1043 – GUJARAT HIGH COURT – TMI
GUJARAT HIGH COURT – HC
Dated:- 17-10-2018
R/SPECIAL CIVIL APPLICATION NO. 16106 of 2018
GST
MR AKIL KURESHI AND MR B.N. KARIA, JJ.
For The Petitioner (s) : Mr Dhaval Shah (2354)
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioners' main prayer is for a direction to the respondents to allow the petitioners to file revised declaration in Form TRAN1 for the left over CENVAT Credit amounting to Rs. 1,06,08,998/. In this context, the petitioners have also challenged the vires of Rules117 and 120A of the Central Goods and Service Tax Act, 2017 (“CGST Act” for short) insofar as they prescribe time li

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ypographical error, the CENVAT Credit admissible in ITC was shown as “Nil”. On account of this wrong declaration, the petitioners would not be able to migrate the left over CENVAT Credit as on 30.06.2018 to the GST regime. Counsel pointed out that the last date by extension for filing Form TRAN1 was 27.12.2017, before which date, the petitioners had attempted to make correction in the said Form.
4. A letter was written to the authorities on 25.11.2017 stating as under;
“Referring to our telecommunication on help desk at the time of filling TRANS 1 in the head of Amount of Tax Credit Carried Forward, We missed to enter the amount in Column Cenvat Credit admissible as ITC and as a result Cenvat Credit is not carried over. Moreover we do no

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Credit admissible as ITC. Later we have lodged a complaint to GST Helpline on 16th November 2017. Till date nothing has happened. Our “Service Request Number” is 201712191829221.”
7. Counsel for the petitioners would contend that the TRAN1 declaration was filed within time and attempt was also made before the last date, i.e. 27.12.2017, to correct a pure typographical error. However, the system did not accept such correction. The petitioners would, thus, lose the entire CENVAT Credit balance of Rs. 1,06,08,998/.
8. It would, prima facie, appear that the extended time for making declaration, which was extended upto 27.12.2017, would take within its fold, any typographical or such other corrections, which may be noted in the declaration al

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Query on Refund of IGST on export of services
Query (Issue) Started By: – Archna Gupta Dated:- 16-10-2018 Last Reply Date:- 18-10-2018 Goods and Services Tax – GST
Got 3 Replies
GST
Dear Sir
Please reply to the query specified below:
According to the new release on GST portal we can file application for refund for multiple tax periods and the facility to upload Statement 1 in case of export of services with payment of tax. The screen shots for filing are also provided on the site.

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MAINTAINABILITY OF ADVANCE RULING APPLICATIONS
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 16-10-2018

An application for Advance Ruling is to be filed in Form GST ARA -1. The application shall be made on the common portal. A fee of ₹ 5000/- is to be deposited for filing Advance Ruling. The fee shall be paid by internet banking or by using credit or debit cards or National Electronic Fund Transfer or Real Time Gross Settlement or by such other mode and subject to such conditions and restrictions as may be prescribed, shall be credited to the electronic cash ledger of such person to be maintained in such manner as may be prescribed. The application shall state the question on which the Advance Rulings is sought. The Authority for advance ruling constituted under the provisions of a State Goods and Services Tax Act or Union Territory Goods and Services Tax Act shall be deemed to be the Authority for advance ruling in respect of that State or

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case, such records shall, as soon as possible, be returned to the said concerned officer.
The Authority may, after examining the application and the records called for and after hearing the applicant or his authorized representative and the concerned officer or his authorized representative, by order, either admit or reject the application. The Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act. No application shall be rejected under this sub-section unless an opportunity of hearing has been given to the applicant. Where the application is rejected, the reasons for such rejection shall be specified in the order.
The maintainability of the application is nothing but the admission of the application by the Authority to decide the question sought by the applicant for advance ruling. There are various factors for the non maintainability

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, the Applicant is an Engineering consultancy organization, providing Engineering Services, mainly Design and Drawings to power and other projects, operating from Chennai and Bengaluru. The question for Advance Ruling is whether CGST & SGST or IGST is payable on the said supply. i.e., whether the transaction is an inter-state supply or intra-state supply? The Authority held that Section 97 of the CGST Act and Tamil Nadu GST Act (TNGST) has given the scope of Advance Ruling Authority, i.e., the question on which the Advance Ruling can be sought. Apart from list provided in Section 97(2), no other issue can be decided by the Advance Ruling Authority and therefore the Acts limit the Advance Ruling Authority to decide the issues earmarked for it under Section 97(2). The Application is therefore rejected without going into the merits of the case, on the issue of lack of jurisdiction.
In re 'Lambda Therapeutic Research Limited'- 2018 (10) TMI 303 – ARA, Gujarat, the applicant has requested

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uthority is a creature of statute and has to function within the legal boundary mandated by the Act. As the 'place of supply' is not covered by Section 97(2) of the Acts, this authority is helpless to answer the question raised in the application, as it is lacking jurisdiction to decide the issues. The jurisdiction of this authority does not extend to the questions on determination of 'place of supply'. The Authority rejected the application.
In re 'Kandla Port Trust (Deenadayal Port Trust)' – 2018 (10) TMI 448 – ARA, Gujarat, the fact of the case is as follows-
* The applicant owns substantial amount of land at Gandhidham and Adipur location of Kutch District, which has been given on lease to various commercial and other organization for long time period, for which it had entered into lease agreements with various lessees long ago.
* The applicant revised rate of lease as per directions of Tariff Authority of Major Port, however, many lease holders have challenged the revised rat

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he Acts. Whether the applicant shall continue to pay GST on disputed claims do not require determination of any issue enumerated under Section 97(2) of the Acts. Further, the issue of refund claim in case of conclusion o dispute after more than 2 years is also not covered by Section 97(2) of the Acts. The jurisdiction of the authority does not extend to the questions on determination of these issues.
Pending proceedings
Section 98(2) of the Act provides that the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act
In re 'Mosaic India Private Limited' – 2018 (9) TMI 478 – ARA – Maharastra, the Authority held that in view of admission by the applicant at the time of Personal Hearing that in the present GST regime also, their import consignments have been provisionally assessed for classification and accordingly, applicability Of Custom

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ust' – 2018 (9) TMI 698 – ARA, Tamil Nadu, the applicants are engaged in activities related to providing of education to Mentally Retarded Children. They have preferred an application seeking Advance Ruling on the following question.
“Since they are coming under exempted category, as per GST provisions, are they, liable to pay GST for the materials bought and construction services availed.”
The Advance Ruling sought is whether the Trust is liable to pay GST on receipt of Goods/Services, when the Charitable Trust is exempted under the GST Act 2017. It is made clear that the applicant does not make any of the supplies in question, but are in fact the recipients of the various supplies as stated in their application. Thus, the question is on the liability to pay tax on their purchase and not on the supply.
The Authority held that an applicant can seek an Advance Ruling Authority in relation to supply of goods or services or both undertaken or proposed to be undertaken by the applicant

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in terms of Schedule I provisions?
* If GST is not payable separately on the excess length, whether the Company is required to reverse proportionate credit to the extent of supply such excess length?
The jurisdictional officers have raised the objection with regard to admission of this advance ruling application and requested that it is to be rejected as the same issue is pending before the investigation authority on the same questions as raised in the application put forth before ARA Authority. The Authority held that the application filed by the applicant is not maintainable as per the provisions of Section 98 of the CGST Act, as proceedings are already initiated against them before the filing of their present application.
Other grounds
In re 'Ramway Foods Limited' – 2018 (10) TMI 343 – ARA, UP, the Authority held that the applications for the advance ruling should be directly related to applicant in respect of supply of goods or services. In the instant case applicant is a rec

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Court Rules No Amendments Allowed for Submitted TRAN-1 Declarations in GST Transition Case.
Case-Laws
GST
Correction of errors in the TRAN-1 declarations – migration to GST Regime – transitio

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Arihant Solvex Pvt Ltd Versus CGST, C.C. & C.E., Jodhpur 1
Central Excise
2019 (1) TMI 235 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 16-10-2018
Excise Appeal No. E/52742/2018 [DB] – A/53337/2018-EX[DB]
Central Excise
MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Rahul Tangri, Advocate
Present for the Respondent: Mr. R.K. Mishra, DR
ORDER
PER: RACHNA GUPTA
The appellant has challenged the Order of Commissioner (Appeals) bearing No. 148-149 dated 01.06.2018. The facts in brief relevant for the impugned adjudication are that the appellants are engaged in manufacture of refined edible oil falling under Chapter No. 15 of the Schedule to the Central Excise Tariff Act, 1985. Appellants are also engaged in oil refining and manufacturing of gad, sludge, acid oil and spent earth falling under Tariff Item No. 15211090 and 38231900 respectively of the first Schedule of the said Tariff. Departmen

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and for the normal period of limitation only and the penalty was reduced to Rs. 5 lakhs instead of penalty of Rs. 46,18,619/- + Rs. 3 lakhs. Still being aggrieved, the appellant is here before this Tribunal.
2. We have heard Mr. Rahul Tangre, Ld CA for the appellant and Mr. R.K. Mishra, Ld. DR for the Department.
3. It is submitted on behalf of the appellant that both the Show Cause Notices were duly replied by the appellant vide their letters dated 12.03.2014 and 09.02.2015 respectively duly contesting the allegations in both the Show Cause Notices. It was specifically submitted that the goods in question were waste and since the final goods i.e. refined oil was exempted vide Notification No. 3/2006-CE, the goods in question were eligible for exemption under Notification No. 89/95-CE and as such no duty was payable on clearance even of the disputed goods. It is submitted that though the Commissioner(Appeals) has reduced the demand to the normal period and has also reduced the penalt

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processing of crude oil and in course of refining of said crude vegetable oils, gad, sludge, acid oil and spent earth, etc. emerge as unavoidable by-products. During the period of dispute, the refined vegetable oil, the final manufactured products of the appellant was exempted from duty under the exemption Notification No. 3/2006-CE and as such was to be treated as exempted goods. Accordingly, the only point of dispute is: “whether for the purpose of exemption Notification No. 89/95-CE dated 18.05.1995 which exempt wastage parings and scrap arising in course of manufacture of exempted goods falling within the Schedule to Central Excise Tariff Act from the whole of the duty of excise leviable thereon, the impugned by-products are to be treated as waste or not.”
6. This issue has been dealt with by this Tribunal in Ricela Health Foods Ltd. Vs. CCE, Chandigarh & Allahabad 2016 (331) ELT 313 (Tri. – Del.) wherein vide the interim Order No. 8-11/2018 dated 30.01.2018 it was held that the r

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ted materials resulting in products like gums, waxes and fatty acid with odour cannot be called as a process of manufacture of these gums, waxes and fatty acid with odour. The process of manufacture is for refined rice bran oil. As such, we note that these incidental products are nothing but waste arising during course of refining of rice bran oil and applying the ratio of Apex court, as discussed above, these cannot be considered as manufactured excisable goods. Noting that the reference is to decide whether these are to be treated as waste for the purpose of exemption Notification 89/95-CE we note though the excisability of the product itself is seriously in dispute as per the opinion expressed by us, as above, these cannot be considered as anything other than waste and as such will be covered by the exemption Notification No. 89/95-CE.”
In a prior decision in the case of CCE, Hyderabad Vs. Priyanka Refineries Ltd. 2010 (249) ELT 70 (Tri. – Bang.) has also held that the goods like

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uct and is therefore, eligible for the benefit of Notification No. 89/95.”
The goods in dispute herein i.e. gad (gum), sludge (soap stock), acid oil and spent earth merely emerge during the manufacture of refined oil and are completely unintentional by products. Hence, they do not classify the definition of manufactured excisable goods. Since refined oil was exempted good during the relevant period, these by-products are entitled to be treated as exempted by virtue of Notification No. 89/95-CE. The moot controversy therefore stands decided in affirmative.
Further, we observe that Ld. Commissioner has already dropped the demand for the extended period. However, while confirming the demand for the normal period, he has relied upon M/s AG Fats and Ors. 2012 (277) ELT 96 (Tri. – Del.) but the said matter received a contradictory opinion in Maheshwari Solvent Extraction Ltd. Case 2014 (299) ELT 116 (Tri. – Mum.). It is thereafter that the Larger Bench of this Tribunal in Ricela Health Fo

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M/s Varun Motors Versus Commissioner of Customs & Central Excise, Visakhapatnam – GST
Service Tax
2018 (11) TMI 1523 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 16-10-2018
Appeal No. ST/22099/2014 – A/31388/2018
Service Tax
Mr. M. V. RAVINDRAN., MEMBER (JUDICIAL)
Shri V. Ravindranath, Advocate for the Appellant.
Shri AVLN Chary, Superintendent (AR) for the Respondent.
ORDER
Per: M. V. Ravindran.
This appeal is directed against Order-in-Appeal No. 20/2014 (V-I) ST dated 21.03.2014.
2. Heard both sides and perused the records.
3. On perusal of records, it transpires that the issue is regarding demand of service tax from the appellant of a service tax an amount of Rs. 20,116/- interest thereof. On t

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e. 28.05.2012. He submits that the First Appellate Authority has not considered the payment of service tax and not set aside the penalty involved. As regards the CENVAT credit availed on various input services, he draws my attention to the chart prepared by them. The CENVAT credit of service tax paid on various input services like Telephone charges, Mobile Charges, Advertisement, Vehicle Servicing and Polishing, Travels, Insurances, Cleaning, Courier and Security Services. He draws my attention to the specimen invoices enclosed and produced before the Bench and submits that the lower authority has taken a view in respect of Telephone charges, Telephone charges are not in the name of appellant. He would submit that the documents which were p

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2012 specifically mandates from the penalty if the amount of service tax liability and the interest in respect of Renting of immovable property services is discharge within six months from 28.05.2012. In view of this, I find that having discharge of service tax liability within time there was no reason to visit the appellant on any penalty. The penalty imposed on appellant is set aside.
7. As regards the confirmation of the demand of ineligible CENVAT credit, I find both the lower authorities have not recorded any findings as to the submissions made by the Learned Counsel before them on the eligible to avail the CENVAT credit of service tax paid on various services like telephone, Mobile charges etc. On causal perusal of the documents enc

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N.V.K. MOHAMMED SULTHAN RAWTHER AND SONS AND WILLSON Versus UNION OF INDIA THROUGH ITS SECRETARY (REVENUE), MINISRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI, THE COMMISSIONER, GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM, THE STATE TAX OFFICER CIRCLE II, COMMERCIAL TAX DEPARTMENT, DINDIGUL, ASSISTANT STATE TAX OFFICER SQUAD NO. 11, STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD
GST
2018 (11) TMI 1503 – KERALA HIGH COURT – [2019] 61 G S.T.R. 307 (Ker), 2019 (20) G. S. T. L. 708 (Ker.)
KERALA HIGH COURT – HC
Dated:- 16-10-2018
WP (C). No. 32324 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADVS. SRI. K. I. MAYANKUTTY MATHER KUM. NARAYANI HARIKRISHNAN AND SRI. R. JAIKRISHNA SREEKALA ASOKAN
For The Respondent : ADV. MR. R. PREMSANKAR, CGC BY DR. THUSHARA JAMES, GOVERNMENT PLEADER
JUDGMENT
The first petitioner is a manufacturer of “Ground Betel Nuts (Arecanuts)” with the brand name “Roja”. The second petitioner is a registered dealer o

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misdescribing the product.
4. Served with the Exhibit P11 detention notice, dated 26.09.2018, the petitioners' authorised representative met the ASTO and explained about the genuineness of the transport. He tried to impress upon the authority that there was neither misclassification nor evasion of tax. But the ASTO remained unconvinced. Aggrieved, the petitioners filed this Writ petition.
5. The petitioners seek the Court to (a) declare that the petitioners' “Arecanut Ground” with HSN 0802 attracts GST only at 5%, as in item falling under Serial No. 28 of Schedule I of G.O.(P) No. 62/2017/TAXES, as amended; (b) direct the authority not to detain the petitioners' commodity en route alleging that the rate of tax is 18% and not 5% as shown in the invoices; (c) direct the ASTO to release the lorry and goods (arecanut) covered by the Exts.P9 and P10, as carried in Lorry No. TN-37-BS-9384, forth with.
Submissions:
The Petitioners':
6. In the above factual backdrop, Sri Mayankutty Mat

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r Works v. Commissioner of Customs and Central Excise, Tirupati (2007) 4 SCC 155. He also contends that ASTO's detaining the consignment is arbitrary, unjust, and without jurisdiction, too.
9. To elaborate, Sri Mather submits that the detention power conferred on the officers, either under Section 68 or Section 129, must be exercised only under the circumstances and grounds set out in those provisions. He also submits that Section 122 of the GST Act defines the offences warranting imposition of penalty. Misclassification of goods in the invoice, according to him, is not an offence falling under either Section 122, 67, or 68 of the Act.
10. About the HSN Code, too, Sri Mather has extensively argued. But I reckon the adjudicatory scope of this writ petition confines itself to detention and release of goods. Classification-or rather misclassification-of a commodity is not within the scope of this writ; that issue goes beyond it.
11. In the end, Sri Mather underlines the difficulties th

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ailed. Referring to the Exts.P8 and P8(a) returns, Dr. James contends that returns are filed under the statutory mandate. Unless those returns are subjected to scrutiny and upheld, they remain, according to her, the assessee's mere self-declaration. She thus asserts that a return can only mean a true and correct return, accepted by the authorities on scrutiny and verification.
15. To elaborate on the tax regime and the statutory scheme, Dr. James has taken me through various provisions including Sections 31, 95, and 122, besides Rule 46 of the KSGST Rules. She repeatedly stressed that the petitioners have an efficacious alternative remedy and that they ought to have taken recourse to it. For her, the petitioners' effort before this Court is premature, and any adjudication at this stage will stultify the statutory authority's efforts at fair adjudication.
16. Heard Sri Mayankutty Mather, the petitioners' counsel, and Dr. Thushara James, the Government Pleader.
Discussion:
17. The f

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n on its classification. Is it simple betel nut ground to a particular size with certain additions for easy human consumption? Has the product lost its character as betel nut? On the other hand, is the petitioners' product supari, which is distinctively a different product, having betel nut as one of its ingredients?
20. Granted, Mr. Mather relied on the Supreme Court's Crane Betal Nut Powder Works. Further granted, the Supreme Court in that has held that “by crushing betel nuts and processing them with spices and oils, a new product could be said to have come into being which attracted duty separately under the Schedule to the Tariff Act.”
21. Then, the Court has held that the process of manufacture employed by the appellant company did not change the nature of the end product: “The betel nut remains a betel nut”. Sri Mather has also produced literature before the Court, besides the brochures of supari producers, to underline what supari is and how it differs from mere betel nut pow

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sm. Now, we focus on the release of the product, and it lies in narrow confines. Suffice it for me to examine this singular issue: Can the State Tax Officer invoke Section 129 of the Act and detain goods on the ground the tax paid on the product is less? Here, the documents are in order and the product description accords with what the first petitioner has already declared, say, in his returns before the assessing authority. Then, can the ASTO still hold up the consignment because the declaration already made does not suit his notion of what the product is?
25. True, a literal reading of Section 129 of the Act presents a different picture and, perhaps, lends support to the State's view. But purposive interpretation and the practical commercial considerations trump that view.
26. Chapter XVI of the Combined Acts deals with inspection, search, and seizure. Section 129 under Chapter XIX provides the mechanism for detention, seizure, and release of goods and conveyances in transit. It be

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first petitioner's purchase and supply invoices.
28. The Exts.P8 and P8(a) are important; they are the first petitioner's recent GST returns for June and August, 2018. In those returns, the first petitioner has assigned the same HSN Code, as he did reflect in the Ext.P9 invoice. He paid tax only at 5%. Thus the documents before the assessing authority and those that accompanied the consignment accord with one another.
29. In this context, we may examine J.K. Synthetics Limited v. Commercial Taxes Officer (1994) 4 SCC 276. On how to interpret Tax Statutes, the Supreme Court has held that charging provisions must be construed strictly, but not the machinery provisions, “which should be construed like any other statute”. It has also held that “the power to levy and collect interest is substantive law though part of machinery provision”.
30. In J.K. Synthetics Limited the issue was whether the appellant should pay interest on the additional sales tax. The Revenue, as it has done here,

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n. Of course, the tax so deposited is to be deemed to be provisional and subject to necessary adjustments under the final assessment.
31. To support its ratio, J.K. Synthetics Limited accepts the minority of view in Associated Cement Co. Ltd.. v. CTO (1981) 4 SCC 578. And it has finally held that if the assessee pays the tax, which according to him is due based on the information supplied in his return, there would be no default on his part to meet his statutory obligation. Therefore, it would be difficult to hold that the 'tax payable' by him 'is not paid' and that he is liable for consequences.
32. The correctness of the Exts.P8 and P8(a) accepted, as held in J. K. Synthetics Limited, we will examine what amounts to statutory violation or contravention under Section 129 of the Act. Apt is the case decided by this Court: Rams v. Sales Tax Officer. The petitioner in Rams contracted with the Government of India to print and supply a large number of telephone directorie

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ute whether there was any taxable sale at all. Rams, then, further observes:
“In such cases it is not for the check-post authority to act on mere suspicion and to find that there is any attempt at evasion of payment of tax, which alone vests him with the jurisdiction to act under S. 29A. At best, he can only alert the assessing authority in Ernakulam to initiate proceedings for assessment of any alleged sale, at which the petitioner will have all his opportunities to put forward his picas on law and on fact. The process of detention of the goods at the check post, cannot be resorted to in such cases when there is a bona fide dispute regarding the very existence of a sale and exigibility for tax. S. 29 A is not intended to subserve such an object.
35. I may examine the impugned Ext.P11 notice, or in other words the act of detention, in the light of the dicta in J.K. Synthetics Limited and Rams. In the former, the Supreme Court has emphatically held that if the dealer furnishes all p

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s, at best the inspecting authority can alert the assessing authority to initiate the proceedings “for assessment of any alleged sale, at which the petitioner will have all his opportunities to put forward his pleas on law and on fact.” Indeed, emphatic is the enunciation of law in Rams that the process of detention of the goods cannot be resorted to when the dispute is bona fide, especially, concerning the exigibility of tax and, more particularly, the rate of that tax.
Conclusion:
37. I reckon that the case before me falls within the adjudicatory ambit of both J.K. Synthetics Limited and Rams. I, accordingly, hold that the Ext.P11 is arbitrary and unsustainable, and is accordingly set aside. As a result, the Assistant State Tax Officer will release the goods forthwith.
38. I, however, clarify that this Court has not given any judicial imprimatur to the petitioners' classification of goods or the HSN Code they have applied. The Revenue is at liberty to initiate appropriate proc

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The Rajasthan Goods and Services Tax (Eleventh Amendment) Rules, 2018.
F.12(46)FD/Tax/2017-Pt-V-122 Dated:- 16-10-2018 Rajasthan SGST
GST – States
Rajasthan SGST
Rajasthan SGST
GOVERNMENT OF RAJASTHAN
FINANCE DEPARTMENT
(TAX DIVISION)
NOTIFICATION
Jaipur, dated: October 16, 2018
In exercise of the powers conferred by section 164 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), the State Government hereby makes the following rules further to amend the Rajasthan Goods and Services Tax Rules, 2017, namely;-
1. Short title and commencement.- (1) These rules may be called the Rajasthan Goods and Services Tax (Eleventh Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect

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The Rajasthan Goods and Services Tax (Twelfth Amendment) Rules, 2018.
F.12(46)FD/Tax/2017-Pt-V-123 Dated:- 16-10-2018 Rajasthan SGST
GST – States
Rajasthan SGST
Rajasthan SGST
GOVERNMENT OF RAJASTHAN
FINANCE DEPARTMENT
(TAX DIVISION)
NOTIFICATION
Jaipur, dated: October 16, 2018
In exercise of the powers conferred by section 164 of the Rajasthan Goods and Services Tax Act, 2017 (Act No. 9 of 2017), the State Government hereby makes the following rules further to amend the Rajasthan Goods and Services Tax Rules, 2017, namely
1. Short title and commencement.- (1) These rules may be called the Rajasthan Goods and Services Tax (Twelfth Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from

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rdinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321(E), dated the 23rd October, 2017; or
(b) availed the benefit of notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299(E), dated the 13th October, 2017,
the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services t

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ication number 41/2017-Integrated Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321 (E), dated the 23rd October, 2017 has been availed; or
(b) availed the. benefit under notification number 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goods by

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Modification to the Guidelines for Deductions and Deposits of TDS by the DDO under GST as clarified in Circular NoJ.21011/2(i)/2018-TAX/Pt dated 26.09.2018
J.21011/2/2018-TAX/Pt Dated:- 16-10-2018 Mizoram SGST
GST – States
No.J.21011/2/2018-TAX/Pt
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
Aizawl, the 16th Oct., 2018
Subject: reg
Circular No.J.21011/2(i)/2018-TAX/Pt dated 26.09.2018, vide which Guidelines for Deductions and Deposits of TDS by the DDO under GST had been issued by th

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Mizoram Goods and Services Tax (Eleventh Amendment) Rules, 2018
53/2018 – State Tax Dated:- 16-10-2018 Mizoram SGST
GST – States
Mizoram SGST
Mizoram SGST
No.J.21011/2(1)/2018-TAX/Part
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
NOTIFICATION No. 53/2018 – State Tax
Dated Aizawl the 16th Oct., 2018
In exercise of the powers conferred by section 164 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Governor of Mizoram hereby makes the following rules further to amend the Mizoram Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Mizoram Goods and Services Tax (Eleventh Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from the 23rd October,

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), vide number G.S.R 1321 (E), dated the 23rd October, 2017 or notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E) dated the 13th October, 2017.”.
Sd/-VANLAL CHHUANGA
Commr. & Secretary to the Govt. of Mizoram,
Taxation Department.
Note:- The principal rules were published in the Government of Mizoram notification No. J.21011/1/2014-TAX-Loose, dated the 29th June,2017, and last amended vide notification No.

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Mizoram Goods and Services Tax (Twelfth Amendment) Rules, 2018
54/2018 – State Tax Dated:- 16-10-2018 Mizoram SGST
GST – States
Mizoram SGST
Mizoram SGST
No.J.21011/2(ii)/2018-TAX/Part
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
NOTIFICATION No. 54/2018 – State Tax
Dated Aizawl the 16th Oct., 2018
In exercise of the powers conferred by section 164 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Governor of Mizoram hereby makes the following rules further to amend the Mizoram Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Mizoram Goods and Services Tax (Twelfth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gaze

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f notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299(E), dated the 13th October, 2017,
the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted.”.
3. In the said rules, in rule 96, for sub-rule (10), the foll

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led the benefit under notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme.”.
Sd/-VANLAL CHHUANGA
Commr. & Secretary to the Govt. of Mizoram,
Taxation Department.
Note:- The principal rules were published in the Government of Mizoram notification No. J.21011/1/2014-T

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