Goods and Services Tax

LAXMI NARAYAN SAHU, M/s P.K.M ERECTORS And M/s. MASCOT ENTRADE PVT. LTD. Versus UNION OF INDIA AND 2 ORS., THE COMMISSIONER CENTRAL GOODS AND SERVICES TAX DIBRUGARH, THE ASSTT. COMMISSIONER CENTRAL GOODS AND SERVICE TAX, THE UNION OF INDIA AND 2 ORS, THE COMMISSIONER CENTRAL GST AND CENTRAL EXCISE GHY-5, THE ADDL. COMMISSIONER CENTRAL GST AND CENTRAL EXCISE GHY-5 AND THE UNION OF INDIA and 2 ORS., THE COMMISSIONER GST and CENTRAL EXCISE, THE ASSISTANT COMMISSIONER OF GST AND CENTRAL EXCISE
Service Tax
2018 (10) TMI 904 – GAUHATI HIGH COURT – [2019] 60 G S.T.R. 14 (Gau), 2018 (19) G. S. T. L. 626 (Gau.)
GAUHATI HIGH COURT – HC
Dated:- 12-10-2018
Case No. : WP(C) 2059/2018, WP(C) 1868/2018, WP(C) 7729/2017
Service Tax
Mr. Justice Achintya Malla Bujor Barua
For the Petitioner : Mr. A K Gupta, Mr. S Chetia And Mr.M L Gope
For the Respondent : Asstt. S.G.I., Asstt.S.G.I. And Mr. B Sarma
JUDGMENT & ORDER (ORAL)
Heard Mr. K.N. Choudhury, learned senior counsel for th

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a determination of which would lead to an adjudication of the dispute raised therein, the writ petitions are taken up together for a final consideration.
4. Mr. KN Choudhury, learned Senior counsel for the petitioners raises an issue that Section 173 of the CGST Act of 2017 having omitted chapter V of the Finance Act of 1994, no proceeding initiated under Chapter V can further be continued, in view of the legal implication of a statutory provision being omitted, as laid down by the Supreme Court in its decision in Messrs Rayala Corporaion (P) Ltd., Vs. Director of Enforcement, New Delhi reported in 1969 (2) SCC 412 in paragraph Nos. 17 and 18 and in Kolhapur Canesugar Work Ltd. and Another -vs- Union of India and Others reported in (2000) 2 SCC 536 in paragraph 37, which was again reiterated in General Finance Co. and Another -vs- Assistant Commissioner of Income Tax, Punjab reported in (2002) 7 SCC 1.
5. Mr. SC Keyal, learned Assistant SGI appearing for the respondent authorities on

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pra):
17. Reference was next made to a decision of the Madhya Pradesh High Court in State of Madhya Pradesh v. Hiralal Sutwala(1), but, there again, the accused was sought to be prosecuted for 'an offence punishable under an Act on the repeal of which section 6 of the General Clauses Act had been made applicable. In the case before us, s. 6 of the General Clauses Act cannot obviously apply on the omission of R. 132A of the D.I.Rs. for the two obvious reasons that s. 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a Rule. If s. 6 of the General Clauses Act had been applied no doubt this complaint 'against the two accused for the offence punishable under R. 132A of the D.I.Rs. could have been instituted even after the repeal of that rule.
18.The last case relied upon is 1. K. Gas Plant Manufacturing Co., (Rampur) Ltd. and Others v. The King Emperor(2). In that case, the Federal Court had to deal with the

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e Court cited. with approval the decision in the case of Wicks v. Director of Public Prosecutions(4), and held that, in view s. 1 (4) of the Defence of India Act, 1939, as amended by Ordinance No. XII of 1946, the prosecution for a conviction for an offence committed when the Defence of India Act was in force, was valid even after the Defence of India Act had ceased to be in force. That case is, however, distinguishable from the case (1) A.I.R. 1959 M.P. 93. (2) [1947] F.C.R. 141. (3) A.I.R. 1951 All. 703. (4) (1947) A.C. 362.before us in two respects. In that case, the prosecution had been started before the Defence of India Act ceased to be in force and, secondly, the language introduced in the amended sub-s. (4) of s. 1 of the Act had the effect of making applicable the principles laid down in s. 6 of the General Clauses Act, so that a legal proceeding could be instituted even after the repeal of the Act in respect of an offence committed during the time when the Act was in force. A

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before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is ] introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.”
(iii) Paragraphs 8 and 9 of General Finance Co. and Another (supra):
“8.Though we find the submissions of the learned counsel to be forceful, we are constrained to follow the two decisions of the Constitution Benches of this Court in Messrs Rayala Corporation (P) Ltd. case (supra) and Kolhapur Canesugar Wo

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a provision in an Act but only to repeal, omission being different from repeal as held in the aforesaid decisions. In the Income Tax Act, Section 276DDstood omitted from the Act but not repealed and hence, a prosecution could not have been launched or continued by invoking Section 6 of the General Clauses Act after its omission.”
7. Mr. SC Keyal, learned Assistant SGI in order to substantiate his contention that an omission of the provisions of a statue do not render any proceeding initiated under it to be not maintainable any further, relies upon the provisions of Section 6 A of the General Clauses Act, which is as under:
“[6-A. Repeal of Act making textual amendment in Act or Regulation – Where any [Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of any [Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not

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Act, “omissions” made by the legislature would not be included. Assume, on the other hand, that the Constitution Bench had given two reasons for the non-applicability of Section 6 of the General Clauses Act. In such a situation, obviously both reasons would be ratio decidendi and would be binding upon a subsequent Bench. However, once it is found that Section 6 itself would not apply, it would be wholly superfluous to further state that on an interpretation of the word “repeal”, an “omission” would not be included. We are, therefore,l of the view that the second so-called ratio of the Constitution Bench in Royala Corpn. (P) Ltd. cannot be said to be a ratio decidendi at all and is really in the nature of obiter dicta.
32. Secondly, we find no reference to Section 6-A of the General Clauses Act in either of these Constitution Bench judgments. Section 6-A read as follows:
“6-A. Repeal of Act making textual amendment in act or Regulation- Where any Central Act or Regulation made afte

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, para 21) “… Now, it the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which Section 6 presumes where the word 'repeal' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principals of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals a

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of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 : (1991) 3 SCR 64, where a Division Bench of this Court held that once particular conclusion of a Bench of seven Judges [Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109] was per incuriam – see: the discussion at SCR pp.80, 81 and 91 : SCC pp. 151, 152 and pp.161-162, paras 36 to 42 of the said judgment.
By necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would, in our opinion, attract the incident of the saving found in Section 6 for the rules of construction embodied in the General Clauses act are, so to speak, the basic assumptions on which statutes are drafted.” (emphasis supplied.) 35. The two later Constitution Bench judgment also did not have the benefit of the aforesaid exposition of the law. It is clear that even an implied repeal of a statute would fall within the expr

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has been held that Section 6 of the General Clauses Act is inapplicable in the case of omission of a statute for two reasons that Section 6 applies only in respect of repeals and not omissions and it applies when the repeal is of a Central Act or Regulation and not that of a Rule. Reliance has also been placed upon paragraph 18 of Rayala Corporaion (P) Ltd (supra), wherein a conclusion of the Allahabad High Court in the case of Seth Jugmendar Das and Others is referred to the effect that Section 6 of the General Clauses Act applies only to a repealed statute and not to expiring statues and that the general rules with regard to expiry of a temporary statute is that unless it contains some special provisions to the contrary after the temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect.
10. From the aforesaid propositions made in paragraph 17 of Rayala Corporaion (P) Ltd (supra) it is discernible that Section 6 of the General Clauses Ac

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ing observation in Rayala Corporaion (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra) that Section 6 of the General Clauses Act only applies to repeals and not to omissions, needs a reconstruction as omission of a provision results in abrogation or obliteration of that provision in the same way as it happens in a repeal.
13. The aforesaid aspect that Section 6 of the General Clauses Act applies only to repeals and not to omissions, and, therefore, in the event, a statute is omitted the pending proceedings initiated under it can no further be proceeded, and that such proposition laid down in Rayala Corporaion (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra) needs a reconstruction was considered by the Supreme Court in Fibre Board Pvt. Ltd. (supra).
In paragraph 29 of the judgment rendered in Fibre Board Pvt. Ltd. (supra), the aforesaid view expressed in the Principles of Statutory Interpretation by Justice GP Singh was taken note of.
14. In paragraph 30 of Fib

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Section 6 of the General Clauses Act does not apply to a Rule but only apply to a Central Act or Regulation and that Section 6 itself would apply only to a repeal and not to omission would have been considered as a ratio decidendi, but once it was found that Section 6 itself would not apply, therefore, it would be superfluous to state that the interpretation of the word 'repeal' would not include an omission. Accordingly, the Supreme Court was of the view that the second reasoning in Rayala Corporaion (P) Ltd (supra) that Section 6 of the General Clauses Act would apply only to a repeal and not to an omission would not be ratio decidendi at all and that it really is in the nature of an obiter dicta.
16. In paragraph 32 of Fibre Board Pvt. Ltd (supra) the Supreme Court also took note of the provisions of Section 6-A of the General Clauses Act which provides that where any Central Act or Regulation repeals any enactment by which the text of any Central Act or Regulation was amended by a

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and to that extent, the law that is applicable to the repeal of an enactment would also be applicable to that of an omission and no distinction can be made between the two. Thirdly, the proposition as regards inapplicability of Section 6 of the General Clauses Act in respect of an omission of an enactment resulting in an impermissibility to continue further a proceeding that had been initiated under omitted enactment, merely based upon the proposition laid down in Rayala Corporaion (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra) would also have to be looked from the perspective of the provisions of Section 6-A of the General Clauses Act and to that extent as has held in Fibre Board Pvt. Ltd (supra), the propositions laid down in Rayala Corporation (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra) are per incuriam judgments.
19. From the said point of view, the contention raised by Mr. SC Keyal, learned Assistant SGI that the provisions of Section 6-A of the Gen

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ry, learned Senior counsel that the pronouncement in Rayala and Kolhapur being a decision by the Constitution Bench would prevail over the pronouncement in FibreBoard Pvt. Ltd.(supra). The said contention of the learned Senior Counsel for the petitioner would have to be looked into from the point of view as to whether the decision rendered in FibreBoard Pvt. Ltd. is a decision which is in conflict with the view expressed in Rayala Corporation (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra).
21. To that extent, we take note of paragraph 30 of FibreBoard Pvt. Ltd, wherein the Supreme Court was conscious of the fact that in the event, a conflicting view is to be taken to an earlier pronouncement by a larger bench, it requires a reference to a larger bench. While dealing with the proposition laid down in Rayala Corporation (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra), the Supreme Court was conscious of the aspect of referring the matter to a larger bench, but

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that the pronouncement in Rayala Corporation (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra).
24. Whenever there is a conflict between the decision by a larger bench and that of a smaller bench, as provided in paragraph 22 of Ram Chandra Trivedi (supra) a view expressed by the larger bench is to be taken into consideration by ignoring the view taken by the smaller bench. But the said proposition would have to be viewed from a different perspective when the provisions of the smaller bench clarifies the earlier proposition of the larger bench where such clarification by itself cannot lead to a conclusion that there is a conflict between the views expressed by the larger bench and the smaller bench.
25. The Division Bench of the Supreme Court in Fibre Board Pvt. Ltd., (supra) had deliberated, discussed and explained the proposition laid down in Rayala Corporation (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra) and it is not a case where a contrary view had bee

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as to the future and the past largely depend upon the savings applicable. It also provided that in a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is entrusted without the savings clause in favour of the pending proceedings, it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue, although a fresh proceeding for the same purpose may be initiated under the new provision.
28. In other words, the proposition laid down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) is that the continuance of a further proceeding under an omitted Act depends upon as to whether a savings clause is provided in the enactment by which the earlier enactment was omitted. In the instant case, it is taken note of that the provisions of Chapter V of the Finance Act of 1994 were omitted by Section 173 of the CGST Act of 2017, where Section 173 is under the heading

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or enforced as if the Act had not been so amended or repealed.
30. The Constitution Bench of the Supreme Court in Kolhapur Canesugar Works Ltd. (supra) had also referred and followed the earlier pronouncement of the Constitution Bench in Rayala Corporation (P) Ltd (supra) and, therefore, the proposition laid down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) can either be a clarification or it can be argued to be in conflict with the pronouncement in paragraph 17 of Rayala Corporation (P) Ltd (supra). Even if it is taken to be a conflict, but the decision having been rendered by a Bench of equal strength, the proposition that is more appealing is to be taken into consideration. The proposition in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) providing that the proceedings under an omitted enactment continues to remain in the event of there being a savings clause in the enactment bringing about such omission appears to be more appealing that the proposition in Rayal

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visions laid down by the Constitution Bench of the Supreme Court in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra).
32. As already elucidated hereinabove, paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) provides that if a statute stood omitted with a savings clause, the savings clause would not render it impermissible for the proceedings initiated/to be initiated under Chapter V of the Finance Act of 1994, which stood omitted by Section 173 of the CGST Act of 2017 to be continued.
33. A conjoint reading of the provisions laid down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) and Section 173 and 174(2)(e) would lead to a conclusion that although Chapter V of the Finance Act of 1994 stood omitted under Section 173, but the savings clause provided under Section 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.
34. In view of such conclusion, we find the

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Tahnee Heights Co-operative Housing Society Limited Versus Commissioner of CGST, Mumbai South
Service Tax
2018 (10) TMI 901 – CESTAT MUMBAI – 2019 (21) G. S. T. L. 440 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 12-10-2018
ST/85823 to 85827/2018 & ST/85829/2018 – A/87626-87631/2018
Service Tax
Mr. S.K. Mohanty, Member (Judicial)
For the Appellant : Shri Prasad Paranjape, Advocate with Shri Mohit Raval, CA
For the Respondent : Shri M.K.Sarangi, Joint Commissioner (AR)
ORDER
Per: S.K. Mohanty
Brief facts of the case, leading to this appeal, are as under:-
1.1 The appellant is a co-operative housing society, registered under the Maharashtra Co-operative Act, 1960 (for short, “the Act of 1960”). The appellant is the owner of the building, known as “Tahnee Heights”, in which members of such society owns their residential flats. The members of the appellant's society contribute towards maintenance and up-keep of the building and common expenses, as per the bye-

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r contended that the appellant being a body corporate, its case will not be governed by explanation 3(a) appended to Section 65B(44) of the Finance Act, 1944 (effective from 01.07.2012).
1.3 The department initiated show cause proceedings against the appellant, seeking for rejection of the refund applications. The matter was adjudicated against the appellant, in rejecting the refund applications. The appellant had preferred separate appeals before the ld. Commissioner (Appeals), Mumbai against different adjudication orders passed by the original authority. All the appeals filed by the appellant were disposed of by the lower appellate authority vide the common impugned order dated 27.12.2017. The appeals were rejected inter alia, on the ground that in the light of explanation 3(a) to Section 65B(44) ibid, the appellant and its members are to be treated as distinct entities and therefore, the appellant has correctly paid service tax.
1.4 Feeling aggrieved with the impugned order, the a

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26.04.2018 of the Tribunal passed in Appeal No. ST/11732/2017, in the case of Commissioner of Service Tax, -Vs.- Rajpath Club Ltd., to state that both under the un-amended and amended provisions of Finance Act, 1994, service provided by the society/club to its members shall not be leviable to service tax, in view of mutuality.
3. On the other hand, the ld. AR appearing for the revenue reiterated the findings recorded in the impugned order. He further submitted that as per the concept of “negative list” of services defined under Section 66D ibid (w.e.f. 01.07.2012), any service if not categorized there under or specifically exempted under any notification, shall be considered as a taxable service, for the purpose of levy of service tax.
4. Heard the rival contentions and perused the records, including the written submissions filed by both sides.
5. The issue involved in these appeals for consideration is, whether the ld. Commissioner (Appeals) has correctly interpreted the statutory

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other amount. Explanation – For the purposes of this section, taxable service includes any taxable service provided or to be provided by any unincorporated association or body of persons to a member thereof, for cash, deferred payment or any other valuable consideration.
Period after 01.07.2012 (Negative list)
Section 65B(44) : “service” means any activity carried out by a person for another for consideration, and includes a declared service.
Explanation 3(a) : For the purposes of this chapter, an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons.
7. On reading of the above statutory provisions, it transpires that there is no much of difference for recognition of the taxable service in dispute, for levy of service tax, under both the un-amended and amended provisions of the service tax statute. In order to be categorized as a “taxable service”, there must be existence of two parties i.e. the service pr

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Tribunal in the case of Federation of Indian Chambers of Commerce & Industry (supra) has held that on application of the principle of mutuality, services provided by clubs/associations to their respective members would not fall within the ambit of the taxable “club or association” service. Further, in the case of Matunga Gymkhana (supra), this Tribunal has also taken the similar view.
Though the said decisions were rendered under the un-amended definition of taxable service (effective up to 30.06.2012), but the ratio laid down therein is squarely applicable to the post amended definition of “service' contained in the negative list regime (w.e.f. 01.07.2012), inasmuch as, in absence of presence of both service provider and service receiver, the transaction cannot be statutorily terms as taxable service and will not be exigible to service tax. Even under the negative list regime, for the period from 01.10.2015 to 31.03.2016, this Tribunal in the case of Rajpath Club Ltd. (supra) ha

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y taxes, water charges, common electricity charges, contribution to repair and maintenance fund, contribution to sinking fund, service charges etc. Clause 69 of the said Bye law also provides that the committee shall apportion the share of each member towards the charges of the society on the basis mentioned therein.
10. On perusal of the above statutory provisions, it reveals that upon registration of the society, the same is legally accepted as a body corporate and thereafter, its function and operation are strictly guided as per the laid down bye laws, provided for the purpose. In this case, it is no doubt, a fact that the appellant is a co-operative society and is duly incorporated under the Act of 1960. The appellant also do not provide any service to its members, who pay the amount towards their share of contribution, for occupation of the units in their respective possession. Further, the fact is also not under dispute that the appellant do not provide any facilities or advanta

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M/s Shiv Oil Agency Versus Union of India And 4 Others
GST
2018 (10) TMI 744 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 428 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 12-10-2018
Writ Tax No. – 1370 of 2018
GST
Bharati Sapru Versus Salil Kumar Rai JJ.
For the Petitioner : Vishwjit
For the Respondent : A.S.G.I.,C.S.C.
ORDER
Heard Sri Vishwjit, learned counsel for the petitioner and Shri O.P. Srivastava, learned counsel for the respondents no.1 to 3.
The petitioner seeks a writ of mandamus directing the GST council respondent no.2 to make recommendations to the State Government to extend the time period for filing of GST Tran-1 in the case of the petitioner because his application was not entertained on the last da

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Credit allowability in case of Builders
Query (Issue) Started By: – ROHIT GOEL Dated:- 11-10-2018 Last Reply Date:- 17-1-2019 Goods and Services Tax – GST
Got 2 Replies
GST
One of our client (assessee company) is engaged in the activity of building and developing commercial complex. Out of shops constructed therein some shops were sold out while construction on which service tax has been paid in full and some were sold after date of project completion on which no service tax has bee

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Special Drive Fortnight Launched to Resolve IGST Refund Errors and Enhance Tax Administration Efficiency.
Circulars
Customs
Special Drive Fortnight to rectify errors relating to IGST refunds.

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Composition GSTR4 Return
Query (Issue) Started By: – Ravikumar Doddi Dated:- 11-10-2018 Last Reply Date:- 11-10-2018 Goods and Services Tax – GST
Got 2 Replies
GST
Dear sir,
Is it mandatory to file invoice wise details registered inward as mentioned table 4A , there are 17 points to answer to open the Form GSTR-4. Table 6 showing rate of tax wise outward viz., 0%,5%,2% and 1%, Where to mention the GST exempted/nil rated outward where there is no column, only '0' rated was m

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ANTI-PROFITEERING CHARGES ON TAX RATE DEDUCTION
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 11-10-2018

In one of the recent cases, In Re: Lifestyle International Pvt. Ltd. (2018) 9 TMI 1640 (NAA), National Anti-Profiteering Authority vide its order dated 25.09.2018 has confirmed Anti-profiteering charges on sale of goods and penalty imposed.
In the instant case, the applicant alleged that the respondent had not passed on the benefit of reduction in the rate of tax by lowering the price of 'Maybelline FIT Me foundation' (product), which she had purchased, when the Goods and Services Tax (GST) was reduced from 28% to 18% on this product on 15.11.2017. She had also alleged that she had bought the above product from the Respondent @ ₹ 525/- per unit vide tax invoice, which included GST @ 18%. She had also claimed that the Respondent had indulged in profiteering in contravention of the provisions of Section 171 of the CGST Act, 2017 and hence approp

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l he was liable to revise his retail selling price as he had taken the benefit of Input Tax Credit (ITC) on the purchase of the product, therefore he was required to reduce the Retail Selling Price (RSP) to pass on the benefit of reduction in the rate of GST from 28% to 18% w.e.f. 15.11.2017 to his customers. It was also found by the DGAP that earlier the MRP of the product was ₹ 550/- which was revised to ₹ 575/- post 20.06.2017 and the RSP of the product was decided by the Respondent within the MRP which was printed on the back of the product.
The Authority observed and concluded that the Respondent had enhanced the basic price of both the shades of the product which was exactly equal to the amount by which the GST on them had been reduced and hence there is no doubt that the Respondent had resorted to profiteering amounting to ₹ 15,861/- which includes profiteering of ₹ 41/- made by him from the Applicant, which constitutes violation of the provisions of Sec

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visited penalty.
Accordingly, the Respondent was directed to reduce the price of both the shades of the product to ₹ 410/- and ₹ 449/- respectively excluding GST. He was also directed to refund an amount of ₹ 41/- along with interest @ 18% to the Applicant No. 1 from the date when this amount was realised by him from her till the date of refund. Since rest of the recipients were not identifiable, the DGAP was directed to get the balance amount of profiteering of ₹ 15,820/- deposited in the Consumer Welfare Fund of the Central and the Concerned State Govt. as per the provisions of Rule 133 (3) (c) of the CGST Rules, 2017 along with interest @ 18% till the amount is paid. Any amount ordered to be refunded or to be deposited shall be refunded or deposited within a period of 3 months by the Respondent from the date of receipt of this order failing which the same shall be recovered by the DGAP as per the provisions of the CGST Act, 2017 and shall be refunded or dep

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Maggi – the 10th case for National Anti-Profiteering Authority
By: – Prasanna CP
Goods and Services Tax – GST
Dated:- 11-10-2018

SHRI ANKUR JAIN, DIRECTOR GENERAL ANTI-PROFITEERING, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, VERSUS M/S. KUNJ LUB MARKETING PVT. LTD. [ 2018 (10) TMI 510 – NATIONAL ANTI-PROFITEERING AUTHORITY ]
The National Anti-Profiteering Authority has issued several order in the consumer sector addressing issues with respect to passing the benefits of reduction in GST rates to consumer by way commensurate reduction in selling price. Let us discuss about the recent order issued by the authority on sale of Maggi.
Background of the case:
A consumer has purchased Maggi Noodle packs, each weighing 35 grams having MRP of ₹ 5 from the seller. Prior to 15.11.2017, the seller was charging 18% GST on the product's base price of ₹ 3.96 per pack, however, after the GST rate was reduced from 18% to 12% with effect from 15.11.2017, the Seller had st

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of GST rate reduction in respect of the product bearing MRP of ₹ 5 through other packs of Maggi Noodles having different basic weights. The Respondent had further submitted that in the case of the product the price reduction would have been around 21 paise to the retailer and around 25 paise to the ultimate consumer which would have been inconvenient to both the retailer and the consumer due to legal tender issue, whereas on Maggi Noodles pack of 70 grams bearing MRP of ₹ 12 per pack, the benefit on account of GST rate reduction for the retailer would have been approximately 56 paise against which the respondent had reduced the price by 92 paise with reduced MRP of ₹ 11 and thus, the benefit in respect of ₹ 5 MRP pack had been passed on by reducing the price of other packs of Maggi Noodles by more than what was required. Therefore, the Respondent had claimed that the benefit of GST rate reduction had been passed on in respect of Maggie Noodles as a whole.
Abse

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uct or not?
2) Whether there was any violation of the provisions of Section 171 of the CGST Act, 2017 in this case? If yes, then what was the quantum of profiteering?
After careful examination of DGAP's report and submissions from both applicant and respondent, the following observations were made by the Anti-Profiteering Authority.
Product of concern
MRP per pack
Period of sales: 1st Nov to
14th Nov 2017
Period of sales: 15th Nov 2017
to 28th Feb 2018
Amount charged
Base price
GST rate
Amount charged
Base price
GST rate
Maggi 35 grams
5
4.67
3.96
18%
4.67
4.17
12%
* The respondent is required to reduce the MRP of the product by taking into effect of the reduction in rate of tax. The respondent further required to fix the MRP as per the provisions of the Legal Metrology (Packaged Commodities) Rules, 2011.
* As per rule 2(m) “retail sale price” means the maximum price at which the commodity in packaged form may be sold to consumer and the price shall be print

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er cannot be given or denied to another nor can the benefit given to one set of customers arbitrarily enhanced and set off against the another.
* Based on the perusal of the facts and sales figures it is clear that the respondent has not passed on the benefits of reduction in the GST rates to the consumers by way of commensurate reduction in prices, since the actual buyers of product Maggi 35 grams doesn't get reduced price benefit. This amounts to violation of section 171 of the CGST act, 2017.
* With reference to the above observations the quantum of profiteering for the period of concern 15th November to 28th Feb 2018 is computed as follows:
Qty Sold
Amount charged
Commensurate price per unit
Profiteering per unit
Total profiteering
382,048
₹4.67
₹4.43
₹0.24
₹91,692
Order:
The National Anti-Profiteering Authority vide order no. 10 dated 9th October directed the respondent (retail seller Kunj Lub Marketing Private Limited) to settle/deposit

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GST Rates Differ: Government Works Contracts at 12%, Biotech Lab Construction by Company in Trivandrum at 18.
Case-Laws
GST
Supply of works contracts awarded by Government attracts 12% GST. –

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GST ITC on Land Development: Reverse Pro Rata for Plots Sold Post-Completion Certificate.
Case-Laws
GST
ITC – construction services – The Input Tax Credit availed in respect of the GST paid o

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GST Applies to Hospital Medical Instrument Placements: Supply Classification and Right to Use Goods Transfer Discussed.
Case-Laws
GST
Levy of GST – Supply or not? – naturally bundled services

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Intermediary Services Under GST: Classification Includes Facilitating Supply of Goods, Affecting Tax Implications for Providers.
Case-Laws
GST
Classification of service – Intermediary Services or not – The contract of services supplied are not pure and mere promotion and marketing services and the services provided is of the nature of facilitating the supply of goods, and hence would amount to “intermediary services”
TMI Updates – Highlights, quick notes, marquee, annotation, ne

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Small Business Exemption u/s 22 of GST Act Applies Individually to Co-Owners of Jointly Owned Property.
Case-Laws
GST
Renting of immovable property service – Small Business Exemption – Co-own

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E-WAY BILL
Query (Issue) Started By: – Rishabh Mishra Dated:- 11-10-2018 Last Reply Date:- 12-10-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Sir,
I want to send some material directly from my purchasing party in Dadra Nagar Haveli to another party in Gwalior, Madhya Pradesh. Party in Dadra Nagar haveli generated a e-way bill to Party in Gwalior. Do we have to generate a E-way bill?
What to be done in such circumstances.
Reply By SHIVKUMAR SHARMA:
The Reply:
Your Supplier from DNH can genereted an E Way bill as under:
Bill to Your Name & Ship to -Your Customer Name of Gwalior.
You need not to generate E way bill.
Reply By Ganeshan Kalyani:
The Reply:
Agreed, supplier in Dadra and Nagar Haveli shall bill on you bu

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y:
* 'A' is the person who has ordered 'B' to send goods directly to 'C'.
* 'B' is the person who is sending goods directly to 'C' on behalf of 'A'.
* 'C' is the recipient of goods.
2. In this complete scenario two supplies are involved and accordingly two tax invoices are required to be issued:
* Invoice -1, which would be issued by 'B' to 'A'.
* Invoice -2 which would be issued by 'A' to 'C'.
3. Queries have been raised as to who would generate the e-Way Bill for the movement of goods which is taking place from 'B' to 'C' on behalf of 'A'. It is clarified that as per the CGST Rules, 2017 either 'A' or &

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d to be filled
Case -2: Where e-Way Bill is generated by 'A', the following fields shall be filled in Part A of GST FORM EWB-01:
1. Bill From: In this field details of 'A' are supposed to be filled.
2. Dispatch From: This is the place from where goods are actually dispatched. It may be the principal or additional place of business of 'B'.
3. Bill To: In this field details of 'C' are supposed to be filled.
4. Ship to: In this field address of 'C' is supposed to be filled.
5. Invoice Details: Details of Invoice-2 are supposed to be filled."
Regards
Nitika Jindal
9999804960
Reply By Ganeshan Kalyani:
The Reply:
Agreed with the views expressed by Ms. Nikita , an expert.
Discussion

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Kotak Mahindra Bank Ltd. Versus Commissioner of CGST, Mumbai
Service Tax
2019 (1) TMI 1105 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 11-10-2018
ST/87083/2018 – A/88123/2018
Service Tax
Mr. S.K. Mohanty, Member (Judicial)
For the Appellant : Shri Chirag Shetty, Advocate
For the Respondent : Shri O.M. Shivdikar, Asst. Commr (AR)
ORDER
PER: S.K. MOHANTY
Heard both sides and perused the records.
2. The short question involved in this appeal for consideration by the Tribunal is, whether Central Excise duty paid on furniture can be considered as capital goods / inputs for the purpose of availment of Cenvat benefit. In this case, the appellant had availed CENVAT Credit on furniture, considering the same as capital

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se, the furniture purchased by the appellant for its business purpose, though is not confirming to the definition of capital goods, but the same should be considered as input, in absence of any restrictions provided in the statute. I find that in identical situation, this Tribunal in the case of ICICI Lombard General Insurance Co. Ltd. v. Commr. Of S.T – 2016 (42) STR 938 (Tri. – Mum) has allowed Cenvat benefit on furniture items, considering the fact that the said goods are required for the purpose of rendering the taxable service.
4. In view of above, I do not find any merits in the impugned order. Accordingly, after setting aside the same, I allow the appeal in favour of appellant.
(Order dictated in Court)
Case laws, Decisions, Ju

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M/s. Luk Plastcon Ltd. Versus CCGST & CE, Nagpur
Central Excise
2018 (12) TMI 337 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 11-10-2018
Application No. E/COD/86245/2018 in Appeal No. E/88107/2018 – M/86182/2018
Central Excise
Mrs. Archana Wadhwa, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical)
Shri Hemant Suchak, Asstt. Manager (Comm) for the appellant
Shri D.S. Chauhan, Supdt. (AR) for the respondent
ORDER
Per: Archana Wadhwa
The delay in filing the present appeal is 215 days which stands attributed by the appellant to the concerned person having left the job without intimating the receipt of the Order-in-Appeal to the management. The appellants have submitted that they came to know about passing of the impugned order only when the revenue approached them for recovery of the dues in December 2017. Thereafter they approached the revenue for obtaining a copy of the order-in-original from the Range office and filed the appeal subsequent

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to benefit by resorting to delay and in fact he runs a serious risk.
Similarly, in the case of Namnath Sao Alias Ramnath Sahu & Ors. Reported in (2002) 3 Supreme Court Cases 195, the court observed that the expression “sufficient cause” should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. The Hon'ble Supreme Court further observed that one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception.
Further, in the case of Ummer reported in 2018 SCC Online SC 199, it was observed that “one cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since be

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ng of job by the concerned person, subsequent procurement of the copy from the Range office but keeping in view that the filing of appeal involves the right of the assessee to challenge the impugned order before the higher appellate forum and appreciating the fact the amount involved is only of Rs. 2.50 lakhs approx, as also by appreciating the prima facie merits of the case, and keeping in view the various Supreme Court decisions referred supra laying down that such refusal to condone the delay affects the assessee's right to appeal and as such a liberal approach should be adopted unless there are evidence to show that such delay was intentional, we are of the view that the delay should be condoned subject to the appellant paying some cost.
4. We also note that there is no evidence produced by the Revenue to establish the dispatch of the impugned order under registered AD or to establish the date of receipt of order by the appellant. In view of the foregoing and as the amount inv

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d in support of the contentions raised in the application for Condonation of Delay.
7. The appeal is a right but circumscribed certain condition. It is not an absolute right for the assessee. Appeal has to be filed within the prescribed period of limitation. In case of delay, appellant has to explain and thereafter only a Condonation of Delay can be allowed. In absence of plausible and just cause of delay, supported by necessary affidavits and document COD application should be dismissed and consequently the appeal.
In view of the difference between the two Members, the file is placed before the Hon'ble President for reference to Third Member for resolving the Difference of Opinion.
(Dictated in Court)
(Sanjiv Srivastava)
Member (Technical)
Difference of Opinion
Whether the delay has to be condoned subject to imposition of cost of Rs. 2000/- as held by the Member (Judicial) or the Condonation of Delay has to be rejected as the appellant has not given plausible and just explana

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Yash International Versus CCT, Medchal – GST
Central Excise
2018 (11) TMI 821 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 11-10-2018
E/30604/2018 – A/31313/2018
Central Excise
Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL)
Shri Lalit Mohan Chandra, Advocate for the Appellant.
Shri Dass Thavanam, Superintendent/AR for the Respondent.
ORDER
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-MDAP2-250-17-18 dated 19.02.2018.
2. The relevant facts that arise for consideration are the appellants are manufacturers of electrical fans; during the year 2007, officers of DGCEI registered an offence case on appellant on the charge of irregular availment of CENVAT credit without receiving the inputs. During the investigation proceedings, appellants were directed to deposit an amount of Rs. 25 lakhs which they have did so. Show cause notice dated 08.09.2008 was issued and was adjudicated by the adjudicating authority and by Order-in-Original No. 34/2009-A

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n amount of Rs. 43,96,019/- paid by them during the proceedings as also after the adjudication order was passed. The lower authorities after issuing show cause notice, restricted the refund claim to an extent of Rs. 18,96,019/- and rejected refund claim of Rs. 25 lakhs. Aggrieved by such adjudication order, an appeal was preferred before the first appellate authority. The first appellate authority in the impugned order has deprecated the findings of the adjudicating authority for two grounds raised for rejection as being technical in nature and held legally unsustainable, however, he agreed with the views of the adjudication authority that the amount of Rs. 25 lakhs for which credit was raised in PLA, was not debited during 2007 and was subsequently debited in 2017, hence refund claim filed on 23.02.2017 is premature, coming to such conclusion he rejected the appeal filed by the appellant.
3. Learned counsel after taking the bench through the relevant papers submits that the first app

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ounts deposited during the investigation has to be refunded merely on submission of a letter. It is his further submission that this proposal is well settled and reliance upon recent decisions of the Tribunal in the case of Parle Agro Pvt Ltd [2018 (360) ELT 1005 (Tri-All)], Tycon Automation Pvt Ltd [2017 (358) ELT 1058 (Tri-All)] and Usha International [2017 (357) ELT 532 (Tri-Mumbai)].
4. Learned departmental representative submits that current account/PLA which is maintained by the appellant was credited by an amount of Rs. 25 lakhs when they deposited the amount during the investigation of the records but they never debited the amount in order to show the receipt of the amount in the Government Treasury. It is his submission that till the refund claim was rejected by the adjudicating authority i.e., on April, 2017, appellant had not debited the PLA by the amount. It is his submission that on the contrary, appellant had been misguiding the higher judicial forum that they have depos

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amount stands accrued to the national exchequer only when the same is debited in PLA; therefore when the amount is available as credit in their PLA without being debited, the question of refund of the same does not arise. It is also mentioned that it would be a traversy, if the refund is granted for full amount of Rs. 43,96,019/- ignoring the availability of Rs. 25,00,000/- at their disposal as it would fetch double benefit to the appellants as they can utilize the balance of Rs. 25,00,000/- lying in their PLA post sanction of refund. In response to this, in the grounds of appeal the appellants have mentioned that they made a debit entry in the PLA, hence they are entitled for refund of the amount is cash. They enclosed a copy of a folio of PLA for the month of April, 2017 showing debit of Rs. 25,00,000/-”
7. It can be seen from the above reproduced Para, the only reason for rejecting the refund claim is that the appellant has not debited the PLA with the amount of Rs. 25 lakhs an deb

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M/s Futuristics Metal Trading Pvt. Ltd. Versus Union of India and others
GST
2018 (11) TMI 799 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 11-10-2018
CWP-26302-2018(O&M)
GST
MR RAJESH BINDAL AND MR MAHABIR SINGH SINDHU, JJ.
For The Petitioner : Mr. Lakhinder Bir Singh, Advocate
For The Respondent : Mr. Saurabh Goel, Advocate And Mr. Pankaj Gupta, Addl. AG, Punjab
ORDER
RAJESH BINDAL, J.
The petitioner has filed the present petiti

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Cases where IGST refunds have not been granted due to claiming higher rate of drawback OR where higher rate and lower rate were identical –reg.
138/2018 Dated:- 11-10-2018 Trade Notice
Customs
OFFICE OF COMMISSIONER OF CUSTOMS NS-II
JAWAHAR LAL NEHRU CUSTOM HOUSE, NHAVA SHEVA
TAL: URAN, DIST. RAIGAD, MAHARASHTRA-400707
F.No.S/12-Gen- Misc-07/2018-19 AM(X)
PUBLIC NOTICE NO.138/2018
Date: 11-10-2018
Sub: : Cases where IGST refunds have not been granted due to claiming higher rate of drawback OR where higher rate and lower rate were identical -reg.
Attention of all the importers, exporters, customs brokers, and all other stake holders is invited to the Board Circular No. 37/2018-Customs, dated 09.10.2018 on the subject mentio

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dule shall not be applicable to export of a commodity or product if such commodity or product is –
….
(d) exported claiming refund of the integrated goods and services tax paid on such exports.
2.2 Notes and Condition (12A) of Notfn.No.131/2016-Cus(NT), dated 31.10.2016 (as amended by Notfn.No.59/2017-Cus(NT), dated 29.06.2017 and 73/2017-Cus(NT), dated 26.07.2017) prescribed that 'The rates and caps of drawback specified in columns (4) and (5) of the said schedule shall be applicable to export of a commodity or product if the exporter satisfies the following conditions, namely:-
… … …
(ii) If the goods are exported on payment of integrated goods and services tax, the exporter shall declare that no refund of

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hanges made on 26.07.2017 were made applicable for exports made from 01.07.2017 onwards.
2.5 By declaring drawback serial number suffixed with A or C and by making above stated declarations, the exporters consciously relinquished their IGST / IT claims.
3. It has been noted that exporters had availed the option to take drawback at higher rate in place of IGST refund out of their own volition.
Considering the fact that exporters have made aforesaid declaration while claiming the higher rate of drawback, it has been decided that it would not be justified allowing exporters to avail IGST refund after initially claiming the benefit of higher drawback. There is no justification for re-opening the issue at this stage.
4. Action to be taken in

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INDUSIND MEDIA COMMUNICATIONS LTD., GRANT INVESTRADE LIMITED Versus UNION OF INDIA, GST COUNCIL AND OTHERS
GST
2018 (10) TMI 1616 – KARNATAKA HIGH COURT – 2019 (20) G. S. T. L. 10 (Kar.)
KARNATAKA HIGH COURT – HC
Dated:- 11-10-2018
WRIT PETITION Nos. 28653/2018 & 29276/2018 (T-RES)
GST
Dr. VINEET KOTHARI J.
Mr. Monish Panda, Adv. for Mr. Harish Bindumadavan, Adv. for Petitioners
Mr. Vikram A. Huilgol, Sr. CGSC for R1 to R5
Mr. Vikram A. Huilgol, HCGP for R6 & R7
ORDER
1. The grievance raised by the petitioners – company in the present case is that certain practical and technical difficulties had arisen to the petitionerassessee and others when the change of Tax Regime from VAT/Service Tax Regime to GST Regime took

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ctional Officer, he has not been decided such representation after giving a proper and reasonable opportunity of hearing to the petitioner-assessee.  
4. The learned counsel for the Respondent- Commercial Tax Department Mr. Vikram Huilgol however submits that a separate Nodal Officers at the level of Commissioner have been appointed by the Central Government in all the States and they can definitely look into the grievances of the petitioners regarding technical and administrative difficulties faced by the assessee and can pass appropriate orders in the matter. However, the assessee should comply with the condition of filing the requisite returns and declarations in this regard.
5. In view of the aforesaid submissions made at the bar

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h the directions of said authority and filing requisite returns and declarations as per the relevant applicable Rules, Circulars and Notifications etc.
6. The petitioners-company should appear before the concerned authority in the first instance on 05.11.2018 at 11 AM and a period of two months is allowed to the said Nodal Authority to pass appropriate orders. Against the impugned assessment orders, the assessee should avail the regular remedy by way of appeal u/S.107 of the KGST Act. The said appeal if so filed within a period of four weeks from today, it will be entertained without raising the objection of limitation.
7. It is made clear that if any prejudicial order is passed against the petitioners-company by the said Nodal Officer be

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KITEX GARMENTS LTD Versus ASSISTANT STATE TAX OFFICER STATE GOODS AND SEVICE TAX DEPARTMENT, KOCHI, COMMISSIONER OF STATE TAXES, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM AND STATE OF KERALA, THIRUVANANTHAPURAM
GST
2018 (10) TMI 1190 – KERALA HIGH COURT – 2019 (20) G. S. T. L. 326 (Ker.) , [2019] 62 G S.T.R. 276 (Ker)
KERALA HIGH COURT – HC
Dated:- 11-10-2018
WP (C). No. 32692 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : SRI. K. N. SREEKUMARAN, SRI.N. SANTHOSHKUMAR AND SRI.P.J.ANILKUMAR (A-1768)
For The Respondent : GP. DR. THUSHARA JAMES
JUDGMENT
The Petitioner, a dealer under the new GST regime, claims to 'manufacture and export readymade garments'. It also asserts that it pays no tax, for its supplies fall under the Section16 of the IGST Act. Recently, it imported some raw material from Switzerland and had it cleared on 1.10.2018 by the customs authorities.
2. On 1.10.2018, the petitioner generated the e-way bill at 5.52 pm. After generating

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navoidable circumstances. But the respondent's attitude is hypertechnical. He further draws my attention to Ext.P9 explanation, dt.4.10.2018, the petitioner submitted to the Assistant Sales Tax Officer. According to him, the petitioner issued the e-way bill as per the request from its customs broker, who must have cleared the consignment from the port and delivered it to the petitioner's factory as originally planned-on time. But the customs broker could remove the vehicle from the port only on 03.10.2018. The delay was because, first, the e-way bill was generated on 1st October late in the eveint ; then the next day was a holiday.
5. In the end, the learned counsel has submitted that if the authorities detained and confiscated the goods even for minor lapses, the commerce in the State would come to a standstill. According to him, if the lapse pointed out does not aim at evading the tax or does not amount to subtantial statutory infraction, the authorities ought to take a prag

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rom the Ext.P9, the petitioner may have faced a genuine difficulty. If this Court intervenes at this stage, it may become a precedent, throwing the departmental actions out of gear. Instead, she suggests an alternative: this Court may set aside the Ext.P2 and remand the matter to the Assistant State Tax Officer, who will consider the issue afresh, especially, keeping in view the petitioner's Ext.P9 explanation. She further assures the Court that the ASTO will pass orders within 24 hours, once the petitioner approaches him.
9. For this proposal, the petitioner's counsel agrees.
10. So without adverting to the merits, I dispose of the writ petition settting aside the Ext.P10. I further clarify that the petitioner can approach the ASTO tomorrow. On the petitioners' approach, the authority will reexamine the issue, keeping in view the petitioner's Ext.P9 explanation and the other materials, and pass orders on the same day.
The writ petition stands disposed of.
Case l

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M/s. MALABAR STEEL INDUSTRIES Versus THE ASST. STATE TAX OFFICER STATE GST DEPARTMENT, KARUKUTTY
GST
2018 (10) TMI 1137 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 11-10-2018
WP(C). No. 33178 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : SRI.SANTHOSH P.ABRAHAM AND SMT.S.K.DEVI
For The Respondent : GP. DR. THUSHARA JAMES
JUDGMENT
The petitioner, a dealer under the CSGST Act, sold goods as seen from Ext.P1 invoice. The vehicle and the goods were detained because the validity of the Ext.P2 e-way bill expired and the invoice number was allegedly manipulated. Aggrieved, the petitioner filed this writ petition.
2. In the writ petition, the petitioner sought the following reliefs:
“(i) To is

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Vikas Forgings Pvt. Ltd. Versus Union of India and others
GST
2018 (10) TMI 997 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 11-10-2018
CWP-21823-2018 (O&M)
GST
MR RAJESH BINDAL AND MR MAHABIR SINGH SINDHU, JJ.
For The Petitioner : Mr.Balwinder Singh, Advocate for Mr.Rajiv Agnihotri, Advocate
For The Respondent : Mr.Tajender Joshi, Advocate Ms.Mamta Singh Talwar, DAG, Haryana
ORDER
RAJESH BINDAL, J.
The petitioner has filed the pre

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JAY CHEMICAL INDUSTRIES LIMITED Versus UNION OF INDIA
GST
2018 (10) TMI 876 – GUJARAT HIGH COURT – [2018] 59 G S.T.R. 307 (Guj), 2018 (19) G. S. T. L. 440 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 11-10-2018
R/SPECIAL CIVIL APPLICATION NO. 10828 of 2018
GST
MR AKIL KURESHI AND MR B.N. KARIA, JJ.
For The Petitioner (s) : MR.VINAY SHRAFF, ADVOCATE with MR.VISHAL J DAVE(6515), NIPUN SINGHVI(9653), MR.PRATEEK GATTANI, MS.HIRAL U MEHTA, ADVOCATES
For The Respondent (s): MR ANKIT SHAH (6371)
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner has made following substantive prayers in this petition:
“(a) Your Lordships may be pleased to issue writ of declaration and/or any other appropriate writ(s) declaring Rule 117 of the Central Goods and Services Tax Rules, 2017 and Form GST Tran1 as ultra vires to Section 140(5) and Section 164 of the Central Goods and Services Tax Act, 2017 and also offends Article 14, Article 19(1)(g), Article 265 and Arti

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nd (b) noted above.
3. He however pressed prayer( c) which arises in following factual background.
4. Petitioner no.1 is a company registered under the Central Goods and Service Tax Act, 2017 ('CGST Act' for short) as well as Gujarat Goods and Service Tax Act, 2017 ('GGST Act' for short). With the advent of Goods and Service Tax regime, certain transitional arrangements were made under the statute requiring the dealers and manufacturers to make declarations of the unutilised past tax credits, only upon which, the same would be migrated to the new regime. One of them was a declaration in terms of section 140 of CGST Act which is referred to as TRAN1. Initial time granted under the said provision for making such declaration was three months from the date of bringing the statute into existence i.e. 01.07.2017. Under representations, this time limit was extended from time to time. Final extension was granted till 27.12.2017.
5. The time limit provisions contained in rule

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corrected.
7. Counsel for the petitioner submitted that the statutory provisions concerning filing of the returns envisage scope for correction of the returns, for which, time is granted upto the due date for filing the returns. He submitted that during the transitory period, number of changes took place. It was legitimate that some of the transactions may have been overlooked by the assessees. Not granting opportunity to correct the declaration would result into substantial financial loss to the petitioner and other similarly situated dealers. Counsel relied on the decisions of Supreme Court in case of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Ors. reported in AIR 1987 SC 1023 and in case of Kailash Chandra and Ors. v. Mukundi Lal and Ors. reported in AIR 2002 SC 829 to contend that the statute must be read as a whole and harmonious interpretation of the provision should be granted. His attempt was therefore to persuade us to apply the provisions

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rror was spotted.
9. This Court in case of Willowood Chemicals Pvt. Ltd.(supra) had occasion to examine the scheme under the GGST Act and CGST Act. The transitional provision and in particular of filing TRAN1 declarations and the time limit provisions contained in respect thereof. The challenge of the petitioner in the said case to the time limit provision was mainly twofold. Firstly, that the subordinate legislature did not have the authority to prescribe time limit which was not envisaged in the parent Act and secondly, that in any case such time limit provision should be seen as directory and not mandatory. The Court rejected both the contentions and upheld the time limit prescribed under rule 117 of the Rules.
10. The Court, in the process, made following observations:
“24. It is in exercise of this rule making power, the Government has framed the CGST Rules, 2017 in which; as noted, subrule (1) of Rule 117 has prescribed, besides other things, the time limit for making declara

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ld and observed that how much tax credit has to be given and under what circumstances is a domain of the legislature. In case of Godrej & Boyce Mfg. Co. Pvt. Limited [Supra], the Supreme Court had upheld a rule which restricts availment of MODVAT credit to six months from the date of issuance of the documents specified in the proviso. The contention that such amendment would take away an existing right was rejected.
26. While the entire tax structure within the country was thus being replaced by a new framework, it was necessary for the legislature to make transitional provisions. Section 140 of the CGST Act, which is a transitional provision, essentially preserves all taxes paid or suffered by a dealer. Credit thereof is to be given in electronic credit register under the new statute, only subject to making necessary declarations in prescribed format within the prescribed time. As noted, subsection [1] of Section 164 of the CGST Act authorizes the Government to make rules for carry

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without any reference to the time limit, such credits should be allowed to be transferred during the process of migration. Any such view would hamper the effective implementation of the new tax structure and would also lead to endless disputes and litigations. As noted in case of USA Agencies [Supra], the Supreme Court had upheld the vires of a statutory provision contained in the Tamil Nadu Value Added Tax Act which provided that the dealer would have to make a claim for input tax credit before the end of the financial year or before ninety days of purchase; whichever is later. The vires was upheld observing that the legislature consciously wanted to set up the time frame for availment of the input tax credit. Such conditions therefore must be strictly complied with. Thus, merely because the rule in question prescribes a time frame for making a declaration, such provision cannot necessarily be held to be directory in nature and must depend on the context of the statutory scheme.
27

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to the new regime. Under the new GST laws, the existing tax structure was being replaced by the new set of statutes, through an exercise which was unprecedented in the Indian context. The claims of carry forward of the existing duties and credits during the period of migration, therefore, had to be within the prescribed time. Doing away with the time limit for making declarations could give rise to multiple largescale claims trickling in for years together, after the new tax structure is put in place. This would besides making the task of matching of the credits impractical if not impossible, also impact the revenue collection estimates. It is in this context that the Supreme Court in the case of Mafatlal Industries Limited (Supra), after rejecting the contention that a person can move proceedings for recovery of tax paid upon success of some other person before the Tribunal or Court in getting such tax collection declared illegal, was further influenced by the fact that any such situa

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M/s. Mars Plywood Industries Pvt. Ltd. Versus Commissioner of CGST & CX
Central Excise
2018 (10) TMI 833 – CALCUTTA HIGH COURT – TMI
CALCUTTA HIGH COURT – HC
Dated:- 11-10-2018
CEXA 55 of 2018, GA 825 of 2018, GA 826 of 2018
Central Excise
I. P. MUKERJI AND AMRITA SINHA JJ.
Appearance:
Mr. P. K. Das, Adv. Mr. C. K. Dutta, Adv. Mr. Rohan Sengupta, Adv. For the appellant
Mr. Somnath Ganguli, Adv. Mr. Sudipta Ghosh, Adv. Mr. Sabnam Basu, Adv. For the respondent
Re : GA 825 of 2018
The Court: Sufficient cause is shown. The delay in preferring the appeal is condoned. Let this appeal be registered by the department forthwith.
The application (GA 825 of 2018) is allowed.
Re: GA 826 of 2018, CEXA 55 of 2018:
This is an

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of Rs. 2, 45, 850.09/- along with interest and penalty of Rs. 4, 00, 292.00/- has been wrongly imposed on the appellant by the respondent authority by rejecting their argument that this stock of unlabelled and unstamped plywood was to be entered in the Daily Stock Account and accounted for.
Mr. Das said that according to the respondent such entry should be ignored and was ignored by them.
Learned counsel appearing for the respondent Commissioner submitted that at all stages of the proceeding, the adjudicating bodies have come to the conclusion that the appellant was guilty of clandestine removal of the goods for the purpose of evasion of duty.
On a bare perusal of the records of this case, we find that there was a stock of unlabelled an

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urt is of the view that these questions of fact and law can be best answered by the tribunal or the adjudicating authorities below.
In those circumstances, we formally admit the appeal.
By consent of the parties, we have heard it out dispensing with all formalities. Instead of hearing out this appeal on questions of law, it would be proper if the above issues are remanded back to the Tribunal for de novo adjudication upon hearing the parties within four months from the date of communication of this order. We order accordingly.
The Tribunal will be at liberty to further remand the matter to a lower over adjudicating authority for fact finding purposes.
The Tribunal will not be bound by any observation made herein.
As affidavits were not

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