Goods and Services Tax

Governor of Assam appoints the 1st day of October, 2018, as the date on which the provisions of section 52 of the Assam Goods and Services Tax Act, 2017 shall come into force
FTX.56/2017/327 Dated:- 9-10-2018 Assam SGST
GST – States
Assam SGST
Assam SGST
GOVERNMENT OF ASSAM
ORDERS BY THE GOVERNOR
FINANCE (TAXATION) DEPARTMENT
NOTIFICATION
The 9th October, 2018
No.FTX.56/2017/327 – In exercise of the powers conferred by sub-section (3) of section 1 of the Assam Goods and Servi

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Sanjay Kumar Bhuwalka, Neeraj Jain Versus Union of India
GST
2018 (10) TMI 1241 – CALCUTTA HIGH COURT – 2018 (19) G. S. T. L. 591 (Cal.)
CALCUTTA HIGH COURT – HC
Dated:- 9-10-2018
CRAN 2698 of 2018, CRM 3327 of 2018 And CRAN 2700 of 2018, CRM 3328 of 2018
GST
Shivakant Prasad, J.
For the Petitioner : Mr. Sudipto Moitra, Mr. Abhra Mukherjee, Mr. D. Bhattacharyya, Mr. Prasun Mukherjee And Mr. Sauradeep Dutta
For the UOI : Mr. K.K. Maity
ORDER
This is the third round of prayer made for relaxation and/or modification and/or waiver of the conditions of the bail granted on July 9, 2018 and subsequently modified on July 12, 2018 in CRAN 1800 of 2018 whereby this Court granted the petitioners bail in connection with Case No. C 216 of 2018 under Section 131(1)(a)(b)(c) of the Central Goods and Services Tax Act, 2017 on condition of furnishing a bail bond of Rs. 50,00,000/- and on further condition to deposit Rs. 39 crore to the Government Exchequer through the Competen

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

ial Leave to Appeal (Crl.) No(s). 6269-6270 of 2018 dated September 12, 2018 whereby the petitioners were granted permission to withdraw the Special Leave Petitions, without prejudice to the liberty available to the petitioner(s) to take recourse to appropriate remedy before an appropriate forum.
Mr. Sudipto Moitra, learned advocate for the petitioners has invited my attention to the order dated August 8, 2018 passed in Criminal Misc. Case No. 4063 of 2018 before the learned Sessions Judge, South 24-Parganas, Alipore wherefrom it is revealed that a co-accused namely, Binod Kumar Kedia @ Vinod Kedia was admitted on anticipatory bail of Rs. 20,000/- with two sureties of Rs. 10,000/- each subject to the compliance of the provisions of Section 438(2) Cr.P.C.
My attention is also invited to an order of bail passed by the Hon'ble High Court of Jharkhand at Ranchi dated September 25, 2018 in B.A. No. 6909 of 2018 whereby the accused was admitted in connection with similar type offence commi

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

posed in the Bail Order. Their Lordships had emphasized that while exercising jurisdiction under Section 438(2) of the Cr.P.C, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. These conditions should not be intended or calculated to carry out and effect recoveries from the accused. In Sandeep Jain v. State of Delhi I(2000) SLT 368 a direction to deposit Rs. 2 lacs apart from furnishing of a bond of Rs. 50,000/- with two solvent sureties was held to be unreasonable.
In Sheikh Ayub v. State of M.P. (2004) 13 SCC 457 the Supreme Court deleted the direction to deposit a sum of Rs. 2,50,000/-, which was the amount allegedly misappropriated by the accused.
In Shyam Singh v. State (2006) 9 SCC 169 the condition that the accused should make a payment of Rs. 1,00,000/- per month after his release on bail was found by the Apex Court not to be justified. It is observed that while it is open to a Court to gra

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

under Section 145 of the Cr.P.C. to seek permission from the Court to deposit a sum of money or Government promissory notes in lieu of executing a bond. This is so because a mere deposit of money may in some cases prove to defeat the purpose behind sureties being made available since the source of the monetary deposit is untraceable and an accused can abscond if he finds the deposit to be trivially incommensurate to his freedom.”
Mr. Moitra submits with regard to the statutory right of the petitioners to be released on bail with reference to provisions of Section 167 of the Code of Criminal Procedure and points out that the petitioners though have been admitted on bail but they could not meet the stringent conditions imposed on them and also submitted that the GST Authority/ Investigating Officer has not yet submitted Charge Sheet.
To justify his argument, Mr. Moitra submits with regard to the statutory reReference is also made to a decision in Hitendra Vishnu Thakur & Ors. v. State

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

s to be released on bail on account o f the 'default' of the investigating/prosecuting agency and once such an application is made, the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the Court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of 'default'. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under 'default' clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends sof justice if both sides are heard on a petition for grant of bail on account of the prosecution's ' default'. Similarly, when a report is submitted by the public prosecutor

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party. We must as already noticed reiterate that the objection to the grant of bail to an accused on account of the 'default' of the prosecution to complete the investigation and file the challan within the maximum period prescribed under clause (b) of sub-section (4) of Section 20 TADA or within the extended period as envisaged by clause (bb) has to be limited to cases where either the factual basis for invoking the ' default' clause is not available or the period for completion of investigation has been extended under clause (bb) and the like. No other condition like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the Court at that stage to refuse the grant of bail to an accused under sub-section (4) of Section 20 TADA on account of the 'default' of the prosecution.”
I

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

he investigation associated therewith, any further investigation would continue to relate to the same arrest and hence the period envisaged in the proviso to Section 167(2) would remain unextendable.”
In the case of Union of India through C.B.I. v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, reported in AIR 2014 SC 3036 my attention is prayed to the observation made in paragraph 21 of the decision which reads thus:-
” Elaborating further, the Court held that if the charge sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished and, therefore, if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 Cr.P.C., makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the mater remains pending before the higher forum for considera

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

iately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period.
The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.”
In rebuttal Mr. Maity refers to a decision in the case of State of Bihar & Anr v. Amit Kumar @ Bachcha Rai, reported in (2017) 13 SCC 751 to content that where the economic offence is committed, the petitioners are required to be put behind the bar and to hold the trial.
I am unable to accept such contention in view of the fact that

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Scope of Principal-agent relationship in the context of Schedule I of the HGST Act.
Memo No. 3332/GST-2 Dated:- 9-10-2018 Haryana SGST
GST – States
HARYANA GOVERNMENT
EXCISE AND TAXATION DEPARTMENT
From
Excise & Taxation Commissioner,
Haryana, Panchkula.
To
All the Dy. Excise & Taxation Commissioner (ST), in the State of Haryana.
Memo No. 3332/GST-2
Panchkula, date the 09-10-2018
Subject: Scope of Principal-agent relationship in the context of Schedule I of the HGST Act- regarding.
In terms of Schedule I of the Haryana Goods and Services Tax Act, 2017 (hereinafter referred to as the “HGST Act”), the supply of goods by an agent on behalf of the principal without consideration has been deemed to be a supply. In this connection, various representations have been received regarding the scope and ambit of the principal-agent relationship under GST. In order to clarify some of the issues and to ensure uniformity in the implementation of the provisions of the law acros

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

other mercantile agent, by whatever name called, who carries on the business of supply or receipt of goods or services or both on behalf of another.
4. The following two key elements emerge from the above definition of agent:
a) the term “agent” is defined in terms of the various activities being carried out by the person concerned in the principal-agent relationship; and
b) the supply or receipt of goods or services has to be undertaken by the agent on behalf of the principal.
From this, it can be deduced that the crucial component for covering a person within the
ambit of the term “agent” under the HGST Act is corresponding to the representative character identified in the definition of “agent” under the Indian Contract Act, 1872.
5. Further, the two limbs of any supply under GST are “consideration” and “in the course or furtherance of business”. Where the consideration is not extant in a transaction, such a transaction does not fall within the ambit of supply. But, in cert

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

“supply or receipt of goods on behalf of the principal” has been retained in this entry.
7. It may be noted that the crucial factor is how to determine whether the agent is wearing the representative hat and is supplying or receiving goods on behalf of the principal. Since in the commercial world, there are various factors that might influence this relationship, it would be more prudent that an objective criteria is used to determine whether a particular principal-agent relationship falls within the ambit of the said entry or not. Thus, the key ingredient for determining relationship under GST would be whether the invoice for the further supply of goods on behalf of the principal is being issued by the agent or not. Where the invoice for further supply is being issued by the agent in his name then, any provision of goods from the principal to the agent would fall within the fold of the said entry. However, it may be noted that in cases where the invoice is issued by the agent to the c

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

imself in the supply or receipt of the goods. Hence, in accordance with the provisions of this Act, Mr. B is not an agent of Mr. A for supply of goods in terms of Schedule I.
Scenario 2
M/s. XYZ, a banking company, appoints Mr. B (auctioneer) to auction certain goods. The auctioneer arranges for the auction and identifies the potential bidders. The highest bid is accepted and the goods are sold to the highest bidder by M/S XYZ. The invoice for the supply of the goods is issued by M/S XYZ to the successful bidder. In this scenario, the auctioneer is merely providing the auctioneering services with no role played in the supply of the goods. Even in this scenario, Mr. B is not an agent of M/S XYZ for the supply of goods in terms of Schedule I.
Scenario 3
Mr. A, an artist, appoints M/S B (auctioneer) to auction his painting. M/s. B arranges for the auction and identifies the potential bidders. The highest bid is accepted and the painting is sold to the highest bidder. The invoice for

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

State. Mr. B dentifies the buyers and sells the agricultural produce on behalf of Mr. A for which he charges a commission from Mr. A. As per the APMC Act, the commission agent is a person who buys or sells the agricultural produce on behalf of his principal, or facilitates buying and selling of agricultural produce on behalf of his principal and receives, by way of remuneration, a commission or percentage upon the amount involved in such transaction.
In cases where the invoice is issued by Mr. B to the buyer, the former is an agent covered under Schedule I. However, in cases where the invoice is issued directly by Mr. A to the buyer, the commission agent (Mr. B) doesn't fall under the category of agent covered under Schedule I.
9. In scenario I and scenario 2, Mr. B shall not be liable to obtain registration in terms of clause (vii) of section 24 of the HGST Act. He, however, would be liable for registration if his aggregate turnover of supply of taxable services exceeds the thr

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

The Gujarat Goods and Services Tax (Twelfth Amendment) Rules, 2018.
54/2018-State Tax Dated:- 9-10-2018 Gujarat SGST
GST – States
Gujarat SGST
Gujarat SGST
NOTIFICATION
FINANCE DEPARTMENT.
Sachivalaya, Gandhinagar.
Dated the 9th October, 2018.
Notification No. 54/2018-State Tax
No. (GHN-99)/GSTR-2018(33)TH:- In exercise of the powers conferred by section 164 of the Gujarat Goods and Services Tax Act, 2017 (Guj.25 of 2017), the Government of Gujarat hereby makes the following rules further to amend the Gujarat Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Gujarat Goods and Services Tax (Twelfth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publication in

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

.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, 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, 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

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

ed 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 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, Subsection (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 Sche

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

The Gujarat Goods and Services Tax (Eleventh Amendment) Rules, 2018.
53/2018-State Tax Dated:- 9-10-2018 Gujarat SGST
GST – States
Gujarat SGST
Gujarat SGST
NOTIFICATION
FINANCE DEPARTMENT.
Sachivalaya, Gandhinagar.
Dated the 9th October, 2018.
Notification No. 53/2018-State Tax
No. (GHN-98)/GSTR-2018(32)TH:- In exercise of the powers conferred by section 164 of the Gujarat Goods and Services Tax Act, 2017 (Guj.25 of 2017), the Government of Gujarat hereby makes the following rules further to amend the Gujarat Goods and Services Tax Rules, 2017, namely:-
(1) These rules may be called the Gujarat Goods and Services Tax (Eleventh Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from th

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

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 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.”.
By order and in the name of the Governor of Gujarat,
K H Pathak
Joint Secretary to Government.
Note : The principal rule

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Partho Kumar Nath Versus The State of Assam And 7 Ors.
GST
2018 (10) TMI 779 – GAUHATI HIGH COURT – 2018 (19) G. S. T. L. J74 (Gau.)
GAUHATI HIGH COURT – HC
Dated:- 9-10-2018
WP(C) 7169/2018
GST
MR. ACHINTYA MALLA BUJOR BARUA J.
Advocate for the Petitioner: MR. A SARMA
Advocate for the Respondent: GA, ASSAM
ORDER
Heard Mr. A. Sarma, learned counsel for the petitioner. Also heard Mr. S.R. Barua, learned counsel for the respondent Nos. 1, 4, 5 and 6 as well as Mr. B. Choudhury, learned counsel for the respondent Nos. 2 and 3.
Issue notice, returnable in four weeks. Extra copy be furnished within three days. Steps on the respondent Nos. 7 and 8 by registered post within three days. The petitioner was allotted a contr

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

under the GST regime and the transaction were not accounted under the VAT, therefore, the provisions of deduction of tax under the Assam Vat Act, 203 shall not be applicable.
By taking such a stand, the respondent Hailakandi Municipal Board is neither adding the tax amount in the bills of the petitioner nor deducting it thereafter from the bills.
In the consequence, because of such inaction on the part of the respondent Hailakandi Municipal Board, the petitioner is now being exposed to the risk of being subjected to some coercive action by the taxing authorities.
In such view of the matter and being prima facie satisfied and also considering the balance of convenience and the irreparable loss the petitioner may suffer, it is provided th

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Bihar Goods and Services Tax (Twelfth Amendment) Rules, 2018
S.O. 261 Dated:- 9-10-2018 Bihar SGST
GST – States
Bihar SGST
Bihar SGST
Commercial Tax Department
Notification
The 9th October 2018
S.O. 261, Dated 9th October 2018-In exercise of the powers conferred by section 164 of the Bihar Goods and Services Tax Act, 2017 (12 of 2017), the Governor of Bihar hereby makes the following rules further to amend the Bihar Goods and Services Tax Rules, 2017, namely:-
1. Short title and commencement.- (1) These rules may be called the Bihar Goods and Services Tax (Twelfth Amendment) Rules, 2018.
(2) It shall come into force with effect from 9th October, 2018.
2. In the Bihar Goods and Services Tax Rules, 2017 (hereinafter ref

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

) 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, 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,
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

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

3rd 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 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.”.

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Bihar Goods and Services Tax (Eleventh Amendment) Rules, 2018
S.O. 260 Dated:- 9-10-2018 Bihar SGST
GST – States
Bihar SGST
Bihar SGST
Commercial Tax Department
Notification
The 9th October 2018
S.O. 260, Date 9th October, 2018- In exercise of the powers conferred by section 164 of the Bihar Goods and Services Tax Act, 2017 (12 of 2017), the Governor of Bihar hereby makes the following rules further to amend the Bihar Goods and Services Tax Rules, 2017, namely:-
1. Short title and commencement.-
(1) These rules may be called the Bihar Goods and Services Tax (Eleventh Amendment) Rules, 2018.
(2) It shall be deemed to have come into force with effect from the 23rd October, 2017.
2. In the Bihar Goods and Services Tax R

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

e), 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 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.”.
[(File No. Bikri kar/GST/vividh-21/2017(Part-3)-3001)]
By order of the Governor of Bihar,
DR. PRATIMA,
Commissioner State Tax-cum-Secretary,

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Himachal Pradesh Goods and Services Tax (Thirteenth Amendment) Rules, 2018
54/2018 – State Tax Dated:- 9-10-2018 Himachal Pradesh SGST
GST – States
Himachal Pradesh SGST
Himachal Pradesh SGST
EXCISE AND TAXATION DEPARTMENT
NOTIFICATION No. 54/2018 – State Tax
Shimla-2, the 9th October, 2018
No. EXN-F(10)-28/2018.-In exercise of the powers conferred by section 164 of the Himachal Pradesh Goods and Services Tax Act, 2017 (10 of 2017), the Governor of Himachal Pradesh is pleased to make the following rules further to amend the Himachal Pradesh Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Himachal Pradesh Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
(2) They shall come in

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

zette of India, Extraordinary, 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, 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,
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 in

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

of Himachal Pradesh, vide number EXN-F(10)-40/2017, dated the 21st November, 2017 or notification No. 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 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), da

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Himachal Pradesh Goods and Services Tax (Twelfth Amendment) Rules, 2018
53/2018—State Tax Dated:- 9-10-2018 Himachal Pradesh SGST
GST – States
Himachal Pradesh SGST
Himachal Pradesh SGST
EXCISE AND TAXATION DEPARTMENT
NOTIFICATION No. 53/2018-State Tax
Shimla-2, the 9th October, 2018
No. EXN-F(10)-28/2018.-In exercise of the powers conferred by section 164 of the Himachal Pradesh Goods and Services Tax Act, 2017 (10 of 2017), the Governor of Himachal Pradesh is pleased to make the following rules further to amend the Himachal Pradesh Goods and Services Tax Rules, 2017, namely :-
1. (1) These rules may be called the Himachal Pradesh Goods and Services Tax (Twelfth Amendment) Rules, 2018.
(2) They shall be deemed to hav

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

imachal Pradesh, vide number EXN-F(10)-40/2017, dated the 21st November, 2017 or notification No. 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 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.”.
By order,
JAGDISH CHAN

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

M/s Hindupur Bio-Energy Pvt. Ltd., Versus Commissioner of Central Tax, Hyderabad – GST
Service Tax
2018 (10) TMI 661 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 9-10-2018
ST/30605/2018 – A/31293/2018
Service Tax
Mr. P. Venkata Subba Rao, Member (Technical)
For the Appellant : Shri Y. Sreenivasa Reddy, Advocate
For the Respondent : Shri Guna Ranjan, Superintendent (AR)
ORDER
PER: P. VENKATA SUBBA RAO
The appellant herein is a supplier of Ready Mix Cement (RMC) and is providing site formation and clearance, excavation, earth moving and demolition services. On investigation, authorities found that they have short paid the service tax on services and they have also not paid service tax on advances received from their customers. The appellant had subsequently discharged the service tax liability on the advances received by them in two instalments. It appeared that there was a delay in paying service tax. Accordingly, the Original Authority after issue

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

e elements have not been proved and therefore, demand of payment of interest on service tax is time barred. He relied on the circular of CBEC No. 1053/2/2017-CX, dated 10.03.2017 in which it has been, inter alia “Applicability of limitation in demanding interest: In cases where duty and interest is demanded, it is quite clear that limitation prescribed in Section 11A applies. However, it may be noted that in cases where the duty has been paid belatedly and interest has not been paid, interest needs to be demanded and recovered following the due process of demand and adjudication. In such cases, the period of limitation as prescribed in Section 11A applies for demand of interest. Section 11A(15) may be referred in this regard”. On a specific query from the bench, he confirmed that the circular by the CBEC was issued in the context of Section 11A (15) which reads as follows “the provisions of subsections 1 1A(4) shall apply mutatis mutandis to the recovery of the interest whether interes

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

athialagan Vs. Commissioner of Central Excise, Puducherry [2018-TIOL-1509-CESTAT-MAD]
Even on merits, the appellants argued that the activities which they have under taken were in relation to their supplies of ready mix concrete and hence they are not liable to payable service tax.
3. Learned Departmental Representative argues that on merits the appellant had not taken this stand of non taxability before the lower authority and hence cannot take this stand now. He further argued that the activities undertaken by the appellants are taxable as it includes not only pumping of RMC but also survey and other activities related to the site formation. Hence they are liable to pay service tax. At any rate, the service tax has already been paid and the only point of dispute left is the question of interest. He asserts that the demand of interest is sustainable and the appellant's plea of time bar does not hold as there is no time limit for demand of interest on service tax. The circular issued

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

M/s. Sify Technologies Ltd. Versus Commissioner of GST & Central Excise Chennai South
Service Tax
2018 (10) TMI 563 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 9-10-2018
ST/41189/2018 – 42550/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial)
For the Appellant : Ms. Sridevi , Advocate
For the Respondent : Shri L. Nandakumar, AC (AR)
ORDER
Brief facts are that the appellants are engaged in providing various taxable services namely telecommunication service, online information and data processing retrieval services, internet café services, franchisee services, information technology software services etc. On verification of records, it was noticed that they had availed input service credit on insurance services for an amount of Rs. 7,73,832/- for the period from April 2014 to March 2015. It appeared to the department that general insurance / insurance auxiliary services are not covered within the definition of input service and therefore the

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

nancial loss. Thus the insurance facility availed in terms of errors and omission insurance helps the appellant with regard to indemnify the financial loss which may occur due to the failure of the software products supplied by the appellant.
The said services have direct nexus with the output service provided and therefore are eligible for credit. She relied upon the decision in the case of M/s. Rane brake Lining Ltd. Vs. Commissioner of Central Excise – 2018 (7) TMI 611 and Granules India Ltd. Vs. Commissioner of Central Excise – 2017 (5) TMI 1079.
2. The other issue is with regard to the disallowance of credit on transit insurance policy to the tune of Rs. 3,57,232/-. She submitted that the said insurance services were availed for moving of goods for installation. The appellant provides telecommunication services and for such services the erection and commissioning services of various parts required for the output services are to be moved from their factory premises to the custome

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

policy taken by the appellant for indemnifying the errors / omissions or defects in the software products supplied by them.
In the decision relied by the appellant, the Tribunal has allowed credit on product liability insurance. The very same analogy can be applied for the software products which are supplied by the appellant. Further on analyzing the definition of input services, it can be seen that only those type of insurance services which fall under the category of life insurance, health insurance etc. which are availed for personal consumption are excluded from the ambit of the definition. These policies which are for covering the product liability in case of defect to the products supplied would definitely come within the inclusive part of the definition.
The conclusion arrived by the authorities below that these are post-manufacturing activities cannot be agreed. Even on analysis of the definition, the inclusive part specifically mentions the services which can be availed up

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

M/s Gatiman Auto Pvt. Limited Versus CCE&CGST, Indore
Central Excise
2018 (10) TMI 534 – CESTAT NEW DELHI – 2019 (365) E.L.T. 330 (Tri. – Del.)
CESTAT NEW DELHI – AT
Dated:- 9-10-2018
Ex. Appeal Nos. 50809, 51323- 51324 of 2018 – Final Order Nos. 53087–53089/2018
Central Excise
Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical)
For the Appellant : Sh. Sagar Kulkarni, Advocate
For the Respondent : Sh. H. C. Saini, AR
ORDER
PER: BIJAY KUMAR:
The present appeals are directed against the Order-in-Appeal No. IND-EXCUS-000-APP-256-258-17-18 dated 25.10.2017 passed by the Commissioner (Appeals), CGST & C. Ex., Indore wherein he has upheld the order passed by the primary adjudicating authority. In the impugned order, the Commissioner (Appeals) has held that tractor cess is imposable on the parts and accessories of the tractors in terms by Notification dated 06.09.1985 issued by the Department of Heavy Industries, New Delhi amended by Notif

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

period of limitation was also applied as per Central Excise Act (supra).
3. Ld. Advocate appearing on behalf of the appellant submitted that on perusal of the notification regarding imposition of tractors cess, it is evident that cess is leviable on tractor and not on the parts, components and accessories thereof to tractor cess as the Government of India has not notified the same by the independent notification. It is also impressed upon by the ld. Advocate that the tractor cess is applicable to the tractors only and is not leviable to parts and accessories thereof. In support of the argument, he has relied upon the case laws in the case of CCE, Jamshedpur vs. Tata Motors Ltd. -2016 (336) ELT 208 regarding the imposition of automobile cess alongwith the other decision namely S. M. Kannappa Automobiles P. Ltd. vs. CCE, Bangalore – 2008 (224) ELT 467 (Tri. Bang.). He also referred to Circular No. 41/88, dated 31.08.1988 issued by the Ministry of Finance, New Delhi regarding levy of ce

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

“.
3.1 It was therefore argued by the ld. Advocate that the ratio laid down in the aforesaid judgments are mutatis-mutandis applicable for imposition of tractor cess on the parts, components and accessories of tractor is to be treated at par with that of automobile cess and the levy on the component and part of the automobile. He further stated that Commissioner (Appeals) has not considered the relevant provision of the IRDA Act regarding the imposition of cess on the tractor notifications in proper perspective and not decided the issue regarding the application thereof on the parts/ components of tractor.
4. On the other hand, ld. AR appearing for the Revenue reiterated the ground contended in the aforesaid order.
5. Heard the parties and perused appeal record.
6. The issue before us is to decided as to whether the tractor cess is leviable on the part and component of the tractor cleared by the appellant. After going through the case laws cited and circular issued by the Ministry

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Central Goods and Services Tax (Twelfth Amendment) Rules, 2018
54/2018 Dated:- 9-10-2018 Central GST (CGST)
GST
CGST
CGST
Government of India
Ministry of Finance
(Department of Revenue)
Central Board of Indirect Taxes and Customs
Notification No. 54/2018 – Central Tax
New Delhi, the 9th October, 2018
G.S.R. 1011 (E). – In exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government hereby makes the following rules further to amend the Central Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Central Goods and Services Tax (Twelfth Amendment) Rules, 2018.
(2) They shall come into force on the date of their publicati

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

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; 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, 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,
the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax cre

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Goods Scheme or notification No. 40/2017-Central 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 1320 (E), dated the 23rd October, 2017 or notification No. 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 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-Cu

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Central Goods and Services Tax (Eleventh Amendment) Rules, 2018.
53/2018 Dated:- 9-10-2018 Central GST (CGST)
GST
CGST
CGST
MINISTRY OF FINANCE
(Department of Revenue)
(CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS)
NOTIFICATION No. 53/2018 – Central Tax
New Delhi, the 9th October, 2018
G.S.R. 1007(E).-In exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government hereby makes the following rules further to amend the Central Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Central Goods and Services Tax (Eleventh Amendment) Rules, 2018.
(2) They shall be deemed to have come into force with effect from the 23rd Octob

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

ed in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1320 (E), dated the 23rd October, 2017 or notification No. 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 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 (

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

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.
37/2018 Dated:- 9-10-2018 Circular
Customs
Circular No. 37/2018-Customs
F. No. 450/119/2017-Cus IV
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Indirect Taxes & Customs)
Room No. 229 A, North Block
New Delhi, dated the 9th October 2018
To
All Principal Chief Commissioner/Chief Commissioner of Customs/ Customs & Central Tax / Customs (Preventive)
All Principal Commissioner/Commissioner of Customs/ Customs & Central Tax / Customs (Preventive)
All Director Generals under CBIC.
Sub: Cases where IGST refunds have not been granted due to claiming

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

to 30.9.2017), prescribed that 'The rates and caps of drawback specified in columns (4) and (5) of the said Schedule 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 29.6.2017 and 73/2017-Cus(NT) dated 26.7.2017) 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 t

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

ipping bills. In fact, for period 1.7.2017 to 26.7.2017, a manual declaration was also required to be given as the changes made on 26.7.2017 were made applicable for exports made from 1.7.2017 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/ITC 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

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Rate of GST on RO Booster Pumps
Query (Issue) Started By: – DEEPAK SHARMA Dated:- 8-10-2018 Last Reply Date:- 9-10-2018 Goods and Services Tax – GST
Got 2 Replies
GST
Please advice us HSN code and rate of duty of
Reverse Osmosis (RO) Booster Pumps
Reply By SHIVKUMAR SHARMA:
The Reply:
HSN Code is 84139190 & Rate of GST is 18% on R O Booster Pump.
Reply By DEEPAK SHARMA:
The Reply:
Sir, 84139190 belong to hand pumps and applicable GST on the same is @ 5%, if i am not wrong.

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Rajasthan's Family Assistance Scheme Offers Support for Accidental Deaths of Registered Dealers and Traders Under VAT/GST.
Circulars
GST – States
Family assistance scheme (in case of Accident

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

“Abhivahan Shulk” Not Toll Tax; Classified Under Service Code 9997 with 18% GST Applicable.
Case-Laws
GST
Levy of GST – “Abhivahan Shulk” is different from toll tax and is covered under Servi

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Long-term lease services with upfront charges may be GST-exempt if all notification conditions are satisfied.
Case-Laws
GST
Levy of GST – services by way of granting Long Term Lease – upfront

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

ANTI-PROFITEERING ESTABLISHED ON SALE OF FLATS
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 8-10-2018

[IN RE. PYRAMID INFRATECH PVT. LTD.(2018) 9 TMI 1107 (NAA);], the National Anti-Profiteering Authority vide its order dated 18.09.2018 has confirmed Anti-profiteering charges on sale of flats and also imposed penalty.
In the instant case, 36 applications were filed alleging that the benefit of Input Tax Credit (ITC) had not been passed on to the Applicants in respect of the construction service supplied by the Respondent.
They had booked flats with the Respondent under the Haryana Affordable Housing Policy 2013, notified by the State of Haryana vide Notification No. PF-27/48921 dated 19.08.2013. They had alleged that before coming in to force of the CGST Act, 2017 w.e.f. 01.07.2017, Excise Duty and Value Added Tax (VAT) were being collected from them as Service Tax was exempted, however, after the implementation of the above Act, 12% Goods & Service

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

nd it was decided to forward these applications to the Standing Committee on Anti-profiteering for further necessary action. The Standing Committee in its meeting held on 07.11.2017 after confirming that prima facie there was evidence of non-compliance of the provisions of Section 171, had forwarded these applications to the Director General of safeguards (DGSG), now Director General of Anti-profiteering(DGAP) for detailed investigation.
On the other hand, the Respondent had claimed that the provisions of Section 171 of the CGST Act, 2017 were not applicable in as much as there was no reduction in the rate of tax as earlier the “Affordable Housing Schemes” (AHS) executed under the 'Affordable Housing Policy 2013' (Policy) notified by the State of Haryana vide its Notification No. PF-27/48921 dated 19.08.2013 were exempt from the payment of Service Tax and only VAT was leviable @ 5.25%, however after 1.07.2017 an enhanced tax @12% had been imposed in the GST regime. The Respondent had

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

ring the pre-GST period, the amount spent on construction during this period was only 25% of the total cost and hence he would receive 37.50% of total payment due during the post-GST period when he would have to spend 75% of the total cost on construction. The initial consideration paid by the Applicants was towards the cost incurred/ to be incurred by it against the cost of land, licenses, approvals, administrative and financial expenses which amounted to 40-45% of the total revenue from the Applicants. He has also submitted that while calculating the ITC against the taxable value during the pre-GST period, the taxable value should be accordingly adjusted by giving effect to the above issues during the pre-GST and post-GST period and percentage of ITC should be accordingly recalculated.
It also demanded that:
a). The taxable value should be readjusted and ratio of ITC to taxable value should be recalculated during the pre-GST and post-GST period.
b). The cost of construction has in

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

with the interest @ 18% per annum to be calculated from the date of the receipt of the excess amount from each buyer, within a period of 3 months from the date of receipt of this order.
The Respondent had denied benefit of ITC to the buyers of the flats being constructed by it under the Policy in contravention of the provisions of Section 171(1) of the CGST Act, 2017 and has thus realized more price from them than he was entitled to collect and has also compelled them to pay more GST than that they were required to pay by issuing incorrect tax invoices and hence he has committed an offence under section 122 (1) (i) of the CGST Act, 2017 and therefore, he is liable for imposition of penalty. Accordingly, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under Section 122 of the above Act read with rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
Further, the Authority, as per Rule 136 of the CGST Rules 2017 directed the Com

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

CCT, Guntur GST Versus Ashapura Minechem Ltd., Stcl Limited, Trimex Minerals Pvt. Ltd., Beml Midwest Ltd. and Prathyusha Associates Shipping Pvt. Ltd.
Customs
2018 (11) TMI 987 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 8-10-2018
C/228/2009, C/259/2009, C/289/2009, C/290/2009, C/428/2009 – A/31305-31309/2018
Customs
Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL)
Shri Bhanu Kiran, Superintendent/AR for the Appellant.
None for the Respondent.
ORDER
[Order per: Mr. M.V. Ravindran]
1. All the appeals raise a common question of law, hence they are being disposed of by this order together, the details are as under.
Appeal No.
Appellant
Respondent
Impugned order No. and Date
C/228/2009
CCT, Guntur GST
Ashapura Minechem Ltd.
OIA No. 03/2008 (G) (D) Cus, dt. 12.12.2008
C/259/2009
CCT, Guntur GST
Stel Limited
OIA No. 04/2008 (G) (D) Cus, dt. 31.12.2008
C/289/2009
CCT, Guntur GST
Trimex Minerals Pvt. Ltd.
OIA

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

he appellants are less than 62% Fe and they are liable to pay export duty only at the rate of Rs. 50/- per MT. Aggrieved by such an order, an appeal was preferred before the first appellate authority. The first appellate authority also came to the same conclusion.
3. In appeal Nos. C/228/2009 and C/259/2009, the adjudicating authority has held that refund claims needs to be allowed as per the Dy. Chief Chemist report on the iron ore contents of the shipment and the assessment was done subject to outcome of such report. The first appellate authority also rejected the appeal filed by Revenue authorities.
4. The basic point of the argument of Revenue is that if the contents of consignments of iron ore exported if it is more than 62% Fe, the export duty is payable at Rs. 300/- per MT and if the Fe content is less than 62%, the export duty is Rs. 50/- per MT; undisputedly, appellant paid the export duty at Rs. 300/- per MT, but the shipping bill being finally assessed and unchallenged, th

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

as made provisionally by the assessing officer, although the word “provisionally assessed” was not mentioned on the face of the shipping bill. On the other hand, if the assessment is taken to be final, the calculation of the duty is certainly wrong because the rate of duty on iron ore with Fe content less than 62% was only Rs. 50/MT and not Rs. 300/MT. It was the responsibility of the assessing officer to correctly assess the export duty payable and he made a mistake. The customs officers are well within their powers to correct these mistakes under Sec.154 of the Customs Act. The Orderin- Original clearly states that learned Asst. Commissioner amended the shipping bill in exercise of the powers conferred under Sec.154 of the Customs Act and calculates the correct rate of export duty. We therefore, find no infirmity in the order of the Asst. Commissioner or in the order of the (4) Appeal No: C/439/2009 first appellate authority upholding the Order-in-Original. The appeal filed by the re

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Kei Rsos Maritime Limited Versus CCT, Visakhapatnam GST
Service Tax
2018 (11) TMI 836 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 8-10-2018
ST/ROM/30591/2017, ST/447/2007, ST/448/2007 – M/30485/2018
Service Tax
Mr. M.V. Ravindran, Member (Judicial) And Mr. P.V. Subba Rao, Member (Technical)
None for the Appellant.
Shri Guna Ranjan, Superintendent/AR for the Respondent.
ORDER
Per: Mr. M.V. Ravindran
1. This application is filed by Revenue for rectification of mistake in the Final Order No. A/30852-30853/2017, dated 21.06.2017.
2. It is the case of Revenue that the appeal numbers mentioned in the final order should be “ST/257/2007 and ST/258/2007” instead of ST/447 & 448/2007.
3. We find that these t

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

transferred to Bangalore Bench. When these appeals were received at Bangalore Bench, they were re-numbered, as is the procedure. The re-numbered are “ST/447, 448 of 2007”, which have been listed and disposed of.
4. In view of the foregoing, we hold that there is no error in mentioning the appeal numbers in the final order dated 21.06.2017 of the Tribunal.
5. Yet, another error brought to the notice of the Bench is that in the Final Order No. A/30852-30853/2017, dated 21.06.2017 of the Tribunal, it did not mention the Order-in-Original No. 12/2007(ST), dated 24.08.2007 passed by CCE, Trichy. We do find that this is a typographical error and accordingly, the above said Order-in-Original is to be included on the first page of the Final Order

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

Shri Trilok Singh Khanduja Versus CGST, CE & ST, Bhopal
Service Tax
2018 (11) TMI 174 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 8-10-2018
Service Tax Appeal No. 53994 of 2014 – FINAL ORDER No. 53198/2018
Service Tax
Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial)
Shri Manish Saharan, Advocate for the Appellants
Shri G R Singh, AR for the Respondent
ORDER
Per C L Mahar:
The appellants are engaged in providing taxable services under the category of “Goods Transport Agency Services” to M/s. Western Coal Field Ltd. during the period January 2009 to March 2011. Show Cause Notice dated 27.09.2010 for the period April 2009 to March 2010 was issued on the ground that the appellants were doing loading, transport and unloading of coal from mining under the category of “Cargo Handling Services”.
2. The basic issue before us for adjudication is that whether the department is correct in holding that the service provided by the ab

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

ed terms of the contract that rates which have been provided to the appellant is based on the distance for which transportation of the coal is to be undertaken by the service provider i.e. the appellant in these cases. The relevant prices as mentioned above is also subject to escalation of the transportation rates as per changes in the fuel price for the relevant period. This basically signifies that the rates are pre-dominantly for transportation of cargo rather than for handing of cargo. However, before proceeding further the relevant section 65 A of Finance Act, 1994 need to be looked into in detail for classification of the service rendered by the appellant. The provisions of section 65A provides as follows:-
SECTION 65A. Classification of taxable services – (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clause (105) of Section 65;
(2) When for any reason, a taxable service, is prima facie, classifia

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

above contract that the essential character of the service for which contract has been entered by the service provider is that the service received are for transportation of coal for mining area to the railway siding and the activity of loading/ unloading mechanically or otherwise is in our view, is only incidental to the activity of transportation of the cargo in these cases.
5. In view of the above, we hold that the service provided by the appellants have rightly been classified in the Goods Transportation Agency service.
6. We also feel that this issue has already been examined by the Hon'ble Supreme Court in their decision in the case of CCE & ST Raipur Vs Singh Transporters [(2017 (4) GSTL 3 (SC)] wherein the Hon'ble Supreme Court has held that activity undertaken by the assessee of transporting of coal from the pithead of the mines to railway siding is more appropriately classifiable under service head of Transport of Goods by road services. The relevant extract of the above ju

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

A. Ganesan Versus Commissioner of GST & Central Excise Chennai North Commissionerate
Central Excise
2018 (10) TMI 635 – ITAT CHENNAI – TMI
ITAT CHENNAI – AT
Dated:- 8-10-2018
E/239/2009 – 42528/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
For the Appellant : Shri S. Jaikumar, Advocate
For the Respondent : Shri A. Cletus, Addl. Commissioner (AR)
ORDER
PER BENCH
Brief facts are that the appellant is the Proprietor of M/s.Lakshmi Scaff situated at Ambattur, Chennai and M/s. Vel Scaff situated at Balaji Nagar, Ambattur, Chennai. These firms were not registered with the Central Excise Department. Based on the information received, the Preventive Unit of Central Excise visited the factory premises of both M/s. Lakshmi Scaff and M/s. Vel Scaff on 8.12.2006. During the course of visit, the officers noticed that in addition to sale of scaffoldings / propping equipments, these firms had also undertaken m

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

re the Tribunal.
2. On behalf of the appellant, ld. counsel Shri S. Jaikumar appeared and argued the matter. His submissions can be broadly summarized as under:-
2.1 That the manufacturing of scaffolding/shuttering etc., was carried out through independent job workers after procuring purchase orders for such items from the customers.
2.2 The appellant concern being proprietary concern does not have any machinery and facility to manufacture any of the items in question. There is no allegation in the entire notice that the appellant possesses required machineries for manufacture of the above items;
2.3 No panchanama was drawn evidencing machineries available at appellant's premises for manufacture for goods such as drilling machine, shuttering machine, welding machine, cutting machine etc., and further the adjudicating authority has recorded in the impugned order that there was lacuna in the investigation as establishing the presence of machinery in appellant's premises.
2.4 In para

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

partment also cross examined these persons but proved nothing contrary to the above.
2.6 Appellant submitted letters obtained from land owners where the appellants' office are situated, who confirmed that the premises was let out for godown purpose and no machineries were erected therein. Also submitted a certificate from Jurisdictional Village administrative officer of M/s.Lakshmi Scaff and M/s. Vel Scaff, who certified that there were no machineries installed in the said premises.
2.7 Entire demand is arrived based on the sale value mentioned in the file captioned “Lakshmi 04-05 sales bills” maintained by the appellant at the premises of M/s. Lakshmi Scaff without any other corroborative evidence.
2.8 The show cause notice has failed to record the fact as to whether the appellant had sufficient manpower/ purchase and consumption of raw materials/ basic infrastructure/machineries to manufacture such goods;
2.9 The affidavits submitted by the job workers would also support the cont

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

t. The department has vaguely alleged that the appellant suppressed the fact of the manufacture and had intention to evade payment of excise duty.
2.13 The appellant submits that demands of duty cannot be confirmed based on assumption and presumption and it requires cogent evidence to establish manufacture.
2.14 The department had miserably failed to produce even a single evidence to prove that the appellant had actually engaged in manufacture of the said goods at their premises.
2.15 It is a settled principle of law that suppliers of raw materials cannot be held as manufacturers to levy excise duty on the goods manufactured by Job workers.
3. The ld. AR Shri A. Cletus appeared and argued on behalf of the department. He submitted that the contention of the appellant that there were no machineries at the time of inspection by the officers and therefore the allegation that the appellant has not manufactured scaffoldings / propping equipments is without any basis. He submitted that th

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

rnover of the goods supplied which exceeds more than one crore in a year is manufactured by the appellant. The contention of the appellant that they have engaged job workers to manufacture the goods is only an afterthought after issue of the show cause notice. He relied upon the statement of Shri A. Ganesan and argued that in the statement dated 8.12.2006, he has admitted that they were manufacturing and supplying scaffoldings / propping equipments on job work basis. In fact, the construction companies had given order to the appellant for manufacturing the goods which is very much clear from the statements recorded at the time of inspection. The contention of the appellant that they have supplied the raw materials to job workers who had in fact manufactured the finished goods has been proved to be false by the very fact that many of the job workers given in the list provided by the appellant did not exist at all. On investigation conducted by the investigative team, as per the directio

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

s are manufactured by the job workers. On perusal of records, we find that there is no mahazar drawn up to show that there were any machinery at the premises at the time of inspection. It is also not noted anywhere whether there were raw materials or finished products in the said premises of M/s. Lakshmi Scaff and Vel Scaff on the date of inspection i.e. 8.12.2006. If the department had conducted inspection in the premises, they should have drawn up a mahazar showing the stock of raw materials and finished products lying in the premises. So also the activities carried out in the premises should reflect in the documents prepared at the time of inspection. There is nothing before us to show that there were machines in the premises or raw materials and finished products. The appellants contend that they were only suppliers to the construction companies and the premises were used as godown only. The appellant has furnished a certificate of the concerned Village Officer in which it is state

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

t these activities / operations. Though the operations may be less complicated but it is essential for a manufacturer to have certain machines to carry out these operations. Mere fact that there were no machines in the premises at the time of inspection would lead to the strong inference that the appellant has not carried out any manufacturing activity in both the premises.
5.1 The argument of the ld. AR is that since the appellant has sold such goods to various construction companies, the only inference that can be made is that the appellant has manufactured such goods. We are not able to agree with this argument. The appellant has given list of 16persons who had done the manufacturing activity as job workers. The adjudicating authority formed an investigation team to carry out inquiry with regard to these 16 persons. Statements were recorded from some of these persons. Six out of them admitted to have done the job work and supplied goods to appellant but denied to have issued / sign

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

ot indicate anything clearly to show that the appellant has himself manufactured the goods. In para 12 of the impugned order, the adjudicating authority notes that no panchanama was drawn on the date of inspection to reflect the activities if any carried out in the premises. The said para is reproduced as under:-
“Although as per records, the premises was visited by the Departmental Officer on8.12.2006, yet it does not appear whether any pnachanama etc. of the activities carried on in these premises was drawn by the officers. There is no further investigation by the department on this count.”
5.3 So also in para 16, it is seen noted that the investigation team had traced many of the job workers out of the 16 job workers given by the appellant. The relevant portion reads as under:-
“The investigation team reported that out of 16 job workers six job workers (Category A) were traced in their location given in the affidavit who accepted to having done job work for the noticee and gave

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =

e clear details as to whether he engaged in manufacture of impugned goods. From such statement, not supported by any document, the adjudicating authority has vaguely presumed that Shri A. Ganesan has manufactured the impugned goods. In our view, the statement given by Shri A. Ganesan does not put forth any evidence that he has manufactured such goods. In para 22, the adjudicating authority has noted as under:-
“No doubt there are certain lacuna in the investigation as to the establishment of presence of machinery, manufacturing activities etc. in the premises of the noticee. It is settled law that defence case cannot be advanced by pin pointing loop holes / deficiencies in the investigation. Moreover, the inculpatory statements of the noticee in the very beginning of the investigation perhaps stalled further investigation in this direction. In view of the aforesaid discussions, I hold that Shri A. Ganesan, the noticee has failed to prove that he has not manufactured the impugned good

= = = = = = = =

Plain text (Extract) only
For full text:-Visit the Source

= = = = = = = =