Goods and Services Tax

In Re: M/s. C.P.R. Mill
GST
2018 (9) TMI 1336 – AUTHORITY FOR ADVANCE RULING, TAMILNADU – 2018 (17) G. S. T. L. 146 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, TAMILNADU – AAR
Dated:- 30-8-2018
TN/08/AAR/2018
GST
MS. MANASA GANGOTRI KATA S. VIJAYAKUMAR, MEMBER
Note : Any appeal against the advance ruling order shall be filed before the Tamil Nadu State Appellate Authority for Advance Ruling, Chennai under Sub-section (1) of Section 100 of CGST ACT/TNGST Act 2017 within 30 days from the date on which the ruling sought to be appealed against is communicated.
At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a reference to the same provisions under the Tamil Nadu Good

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r domestic animals as an essential raise for the maintenance of life, but also that feed which is supplied over and above the maintenance requirements for growth or fattening and for production purposes such as re-production, for production of milk meat and wool and in the case of animals, also for efficient output of work. The Applicants have produced the certificates of analysts of the product manufactured by them which is sold as “cattle feed” Cake Form, duly issued by the Department of Animal Institution, Veterinary College and Research Institute, Orathanadu, Thanjavur, both in respect of cattle feed Cake Form and groundnut oil cake. Additionally, a test report from the CSIR – Central Food Technological Research Institute, Mysore was also procured by the Applicant. The applicant has stated that there is a considerable difference in composition of the Applicant's cattle feed (in cake form) and that of groundnut oil cakes.
2.1 M/S. CPR Mill has stated that as per the proceedings

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is exempted for intrastate supplies of goods as under Schedule vide Notification No. 2 of 2017 in Serial No. 102.
3. The Authorized Representative of the Applicant was heard in the matter. They submitted that the raw material is groundnut oil cake and submitted invoice, test reports of both raw material and output / cattle feed and manufacturing process flowchart. They also provided video clipping of manufacturing process and costing details of the product.
4. The details and documents furnished were examined. From the various submissions of the applicant, it is seen that the product under consideration, 'Cattle Feed in Cake Form' is manufactured by pulverizing Groundnut oil cake, husked rice with broken and black broken rice pulverized separately, which are spread over and then jaggery, salt & water are added, mixed, thoroughly crushed and left for condensing itself into solid form and steamed to result in 'Cattle feed in Cake Form'. The breakup of the ingredients fo

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n to be answered is whether the product is classifiable under Ch. 2305 or under Ch. 2309. In terms of explanation (iii) and (iv) to Notification No. 1/2017 – Central Tax (Rate) dt. 28-06-2017, tariff heading, sub-heading, heading and chapter shall mean respectively a tariff item, subheading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 and the rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975, including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall be applied for the interpretation and classification of goods.
As per Harmonised System of Nomenclature Explanatory Notes 2017, the chapter notes for Chapter 23 and specifically heading 2305 and 2309 has been examined. The relevant extracts of the above are as under :
NOTE :
Heading 2309 includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal ma

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excludes :
(a) Oil dregs (heading 15.22)
(b) Protein concentrates obtained by the elimination of certain constituents of defatted soya-bean flour (used as additives in food preparations) and textured soya-bean flour (heading 21.06),
23.09 Preparations of a kind used in animal feeding.
2309.10 Dog or cat food, put up for retail sale
2309.90 Other
This heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed:
(1) to provide the animal with a rational and balanced daily diet (complete feed);
(2) to achieve a suitable daily diet by supplementing the basic farm-produced feed with organic or inorganic substances (supplementary feed); or
(3) for use in making complete or supplementary feeds,
The heading includes products of a kind used in animal feeding, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, for example, in

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ilding up bones and, in the case of poultry, making egg-shells. The most commonly used contain phosphorus, chlorine, sodium, potassium, iron iodine, etc.
(C) PREPARATIONS FOR USE IN MAKING THE COMPLETE FEEDS OR SUPPLEMENTARY FEEDS DESCRIBED IN (A) AND (B) ABOVE
These preparations, known in trade as “premixes”, are, generally speaking, compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required. These substances are of three types:
(1) Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health : vitamins or provitamins, amino-acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetisers, etc.
(2) Those designed to preserve the feeding stuffs (particularly the fatty components) until consumption by the animal : stabilisers, anti-oxidants, etc.
(3) Those which serve as carri

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e lost the essential characteristics of the original material. From the submissions of the applicant, it is seen that the product is not merely groundnut oil cake/residue but is manufactured by combining groundnut oil cake with broken rice, jaggery, salt and water and leaving the mixture for condensing itself into solid form and finally steamed. Further, the applicant states that the product is meant for domestic animals or birds as an essential raise for the maintenance of life, but also that feed which is supplied over and above the maintenance requirements for growth or fattening and for production purposes such as re-production, for production of milk, eggs, meat, wool or feathers and in the case of animals, also for efficient output of work. The product in hand, the 'Cattle feed' is manufactured using 'Groundnut oil cake' as a raw material along with other raw materials. Further, as per the test reports, the content of ash, protein, salt, fat, moisture, calcium, ph

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In Re: M/s. Goodwill Industrial Canteen
GST
2018 (9) TMI 1335 – AUTHORITY FOR ADVANCE RULING, TAMILNADU – 2018 (17) G. S. T. L. 171 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, TAMILNADU – AAR
Dated:- 30-8-2018
TN/09/AAR/2018
GST
MS. MANASA GANGOTRI KATA AND S. VIJAYAKUMAR, MEMBER
Note. Any appeal against the advance ruling order shall be filed before the Tamil Nadu State Appellate Authority for Advance Ruling, Chennai under Sub-section (1) of Section 100 of CGST ACT/TNGST Act 2017 within 30 days from the date on which the ruling sought to be appealed against is communicated.
At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a reference to the same provisions under

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hat, on interpretation of Notification 11/2017CT(R) dated 28/06/2017 as amended, they assume that GST for the catering services rendered by them is 5%.
3. The Authorised Representative of the Applicant was personally heard in the matter on 08.05.2018. In the first hearing, the Applicant submitted, that they enter into contracts with companies on whose rent free premises where food is supplied, no payment is taken from employees of the company. They submitted that it is a catering service and eligible for SI.No. 7(i) of Notification No. 11/17 as amended. In the subsequent hearing, the applicant submitted a copy of Contract which is indicative of all their contracts and stated that they are submitting a copy of Advance Ruling of Gujarat on similar issue which has held that Sl.No. 7(v) of Notification No. 11/17 is applicable and that in their case too Sl.No. 7(v) applies at 18%, that they are already raising invoices at 18%, they only supply to Industries/commercial entities and not to e

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th November 2017 to the case at hand. In the case at hand, the Applicant is engaged in supplying food and beverages at the canteen of their customers. From the contracts furnished, it is seen that the Applicant supplies the food in the place of business of the Service Recipient. The charges are received from the companies monthly basis on the coupons collected. In short, it is deciphered that the Applicant is vested with management of the canteen facilities. The Applicant himself does not get paid for by the consumers of the food and beverages. The Recipient of the services are the companies who enter into contract with the applicant. Supply of food is classified under 9963. The issue to be decided is whether the supply of the applicant falls under 7(i) of Notification No. 11/2017 dated 28.06.2017 or under 7(v) of the said Notification. The relevant extracts and the changes these entries underwent are detailed below:
5.1 Notification 11/2017-C.T. (Rate) dated 28th June 2017 provides t

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ce is for cash deferred payment or other valuable consideration.
9
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The tax rates under Sl.No. 7 came under Scrutiny and the same was taken up by the council for consideration. Tax Structure of different categories of Restaurants, with a view to their possible rationalization / reduction was mandated to be examined. The same was examined at the 23rd Meeting of the GST Council held on 10th November 2017. The council discussed the various aspects involved in respect of the rate of tax on the supply is reproduced below:
65.28. The Hon'ble Chairperson proposed a tax rate of 18% with input tax credit on the outdoor catering. The Hon'ble Chief Minister of Puducherry observed that a tax rate of 18% on outdoor catering was too high. The Hon'ble Chairperson observed that historically, this was the prevailing rate of tax on outdoor catering. The Hon'ble Deputy Chief Minister of Delhi stated that a tax rate of 18% on outdoor catering could lead to tax evasion. He cautioned th

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%. The Hon'ble Chairperson observed that low rate of tax for one sector would lead to demand for lowering tax for other services sector also. The Hon'ble Minister from Uttar Pradesh proposed to keep a uniform tax rate of 12% without input tax credit as it would be bad optics to charge tax at the rate of 18% on outdoor catering and 5% on restaurant. The Secretary stated that this proposal would not be acceptable to the trade. The Hon'ble Minister from Assam did not support this proposal and stated that this would lead to increase in prices.
65.29. Keeping in view the discussion as above, the Council agreed to apply tax rate of 5% tax without input tax credit on all standalone restaurants and a rate of tax of 18% with input tax credit on a restaurant in a hotel having room of declared tariff of more than Rs. 7,500 per night. The take-away food from a restaurant shall have similar tax treatment as that for the restaurant. Outdoor catering shall, however, attract tax at the r

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r lodging purposes having declared tariff of any unit of accommodation of seven thousand five hundred rupees and above per unit per day or equivalent.
Explanation.- “declared tariff” includes charges for all amenities provided in the unit of accommodation (given on rent for stay) like furniture, air conditioner, refrigerators or any other amenities, but without excluding any discount offered on the published charges for such unit.
2.5
Provided that credit of input tax charged on goods and services used in supplying the service has not been taken
[Please refer to Explanation no. (iv)].”;
And no amendment was made in Sl.No 7(v) of Notification No. 11/2017 CT (Rate)
5.2 The above amendment is based on the decision of the GST Council, in its 23rd meeting held on 10th November 2017 which is given supra. From the discussions, it is evident that the intention of having tax rate of 5% as in Sl.no 7(i) is only in respect of supply of foods in Standalone restaurants and other similar eatin

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o restaurants has been taken by the council. Therefore, the supply of food by the applicant in the premises of client, whether prepared in that place or brought and served is more appropriately covered by the description at Sl.No. 7(v) of the Notification No. 11/2017 -C.T. (Rate) dated 28.06.2017 and is liable to tax at 9% CGST and 9% SGST.
5.3 GST Council in the 27th Council Meeting held on 4th May 2018, discussed and on 21.07.2018, the following decision as given in the press note was taken and the same is reiterated below:
18. Rationalize entry relating to composite supply of food and drinks in restaurant, mess, canteen, eating joints and such supplies to institutions (educational, office, factory, hospital) on contractual basis at GST rate of 5%: and making it clear that the scope of outdoor catering under 7(v) is restricted to supplies in case of outdoor/indoor functions that are event based and occasional in nature.
To effect the above decision of the Council, the Notification

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teria or dining space of an institution such as a school, college, hospital, industrial unit, office, by such institution or by any other person based on a contractual arrangement with such institution for such supply, provided that such supply is not event based or occasional.
2.5
Provided that credit of input tax charged on goods and services used in supplying the service has not been taken [Please refer to Explanation no. (iv)]
From the above, it is clear that the instant case of the applicant is making supply of services in the dining space of the industrial units and offices which is squarely covered in the Explanation 1 to Sl.No 7(i) and SI.No 7(v) now only covers supply at functions which are occasional and event based. The supply of food to institutions which were earlier covered under entry at Sl.No. 7(v) has been included under Sl.No. 7(i) of the Notification No. 11/2017-CT (Rate) with effect from 27th July 2018 and thereupon is liable to tax at the rate of 5% subject to t

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Payment of taxes for discharge of tax liability as per FORM GSTR-3B.
F.A-3-28-2018-1-V-(76) Dated:- 30-8-2018 Madhya Pradesh SGST
GST – States
Madhya Pradesh SGST
Madhya Pradesh SGST
Commercial Tax Department
Mantralaya, Vallabh Bhawan, Bhopal
Bhopal, the 30th August 2018
No. F.A-3-28-2018-1-V-(76).- In exercise of the powers conferred by Section 168 of the Madhya Pradesh Goods and Services Tax Act, 2017 (No. 19 of 2017) (hereafter in this notification referred to as the said Act) read with sub-rule (5) of rule 61 of the Madhya Pradesh Goods and Services Tax Rules, 2017 (hereafter in this notification referred to as the said rules). the Commissioner, on the recommendations of the Council, hereby specifies that the return

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In Re: Erode Manjal Vanigarkal Matrum Kidangu Urimaiyalargal Sangam
GST
2018 (9) TMI 1258 – AUTHORITY FOR ADVANCE RULING, TAMILNADU – 2018 (17) G. S. T. L. 151 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, TAMILNADU – AAR
Dated:- 30-8-2018
TN/06/AAR/2018
GST
MS. MANASA GANGOTRI KATA AND THIRU S. VIJAYAKUMAR, MEMBER,
Note : Any appeal against the advance ruling order shall be filed before the Tamil Nadu State Appellate Authority for Advance Ruling, Chennai under Sub-section (1) of Section 100 of CGST ACT/TNGST Act 2017 within 30 days from the date on which the ruling sought to be appealed against is communicated.
At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a ref

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ermitted by the Erode Marketing Committee (hereinafter referred as EMC) Erode. The members permitted by EMC as agents own their godowns where the agriculturists produce are kept, stored in safe custody. A tender is conducted at the premises/ yard of the EMC. The tender is concluded when the selling price is agreed by the agriculturists. Thereafter the buyer raise a bill on the basis of weighment receipt in favour of the agriculturists with full details. An agreement among and between agriculturists, agents and buyer is executed for payment. The buyer issues a cheque for the sale of the agricultural produce to the agents as per the agreement. On realization, the agent takes his commission for service rendered, balance being returned to agriculturist. They have stated that the agent is neither a seller nor a buyer but is a supplier of service done to agriculturalist/producer and is exempt. The applicant stated that he is supplying service to agriculturist which is exempt under Heading 99

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t is seen that the applicant is society registered under Tamilnadu Societies Registration Act 1975 whose members are governed by Erode marketing Committee which an Agricultural is marketing committee licensed under Tamilnadu Agricultural Produce Marketing (Regulation) Act 1987.
Section 2(7) of 'The Tamilnadu Agricultural Produce Marketing (Regulation) Act 1987, defines 'Commission agent' in respect of agricultural produce marketing as follows:
2. (7). “Commission Agent” means a person who by himself or through his servants, buys and sells agricultural produce for another person keeps it to his custody and controls it during the process its purchase and sale, and collects payment therefore from the buyer and pays it to the seller, and receives by way of remuneration a commission or percentage upon the amount involved in each transaction.
Section 7(8) specifies that no person shall
(a) Set up, establish or use, or continue or allow to be continued any place for the purch

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ase of commission sales, no allowance other than a trade allowance separately prescribed shall be charged either to seller or to buyer. If commission is charged to both buyer and seller, the total thereof shall not exceed the maximum prescribed in sub -clause (14).
The applicant submitted the criteria for the Commission Charges subject to the Bye-Laws 24(14) are as follows:
Sl. No.
Month
Commission Amount
1.
Up to 12 Months
3%
2.
Up to 24 Months
4%
3.
Above 24 Months
5%
Also from the agreement note between agriculturist, buyer and agent, weighment slip and invoices furnished, it is seen that the invoice is raised by the agent on the buyer wherein the agriculturist is mentioned as the seller and is signed by the Farmer, agent and the buyer. All the three documents mention the weight of the goods and the sale price and separately indicate the commission amount. Further, it is seen that the buyer pays the agent who after deducting his commission for the services rendered pas

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Board or services provided by a commission agent for sale or purchase of agricultural produce”
NIL
 
Explanation 4 (vii) and (viii) of the Notification No. 11/2017-CT (Rate) states that:
(vii) “agricultural produce” means any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fibre, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market.”
(viii) “Agricultural Produce Marketing Committee or Board” means any committee or board constituted under a State law for the time being in force of the purpose of regulating the marketing of agricultural produce.
Section 2(5) of CGST Act defines 'agent' as
(5) “agent” means a person, including a factor, broker, commission agent, arhatia, del credere agent, an au

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al produce must take place on in notified areas which are licensed from a Market Committee under that Act. These Commission agents provide the space for storage, weighment and facilitate buying and selling of the produce. The word 'Commission agent' under SI.No. 24 of the Notification No. 11/2017-CT (Rate) is not specifically defined in the said notification but Section 2(5) of the CGST Act defines 'agent' as a person, including commission Agent who carries on the business of supply or receipt of goods or services or both on behalf of another. From the supporting documents and materials filed by the applicant and the various statutory provisions discussed above, it is clear that the activities of the applicant are those services provided by an agent to the farmer, generally provided in relation to agricultural produce in the primary market regulated by a marketing committee. Sub clause 24(14) of the Bye-Laws also specifies that the commission charges are towards Godown

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RAJ SANJAYBHAI TANNA Versus UNION OF INDIA
GST
2018 (9) TMI 610 – GUJARAT HIGH COURT – 2018 (17) G. S. T. L. 370 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 30-8-2018
R/WRIT PETITION (PIL) NO. 161 of 2018
GST
MR. AKIL KURESHI AND MR.B.N. KARIA JJ.
Appearance:
MR. RAJ S TANNA (10010) for the PETITIONER(s) No. 1,2 for the RESPONDENT(s) No. 1,3,4
MR PRANAV TRIVEDI, AGP (99) for the RESPONDENT(s) No. 2
ORAL ORDER
(PER : MR. AKIL KURESHI)
1. This petition, in the nature of public interest, is filed by two petitioners. Petitioner No.1 is a practicing advocate, we are informed, mainly on the taxation side. Petitioner No.2 is also a tax consultant though we are informed not a practicing advocate. The petitioners have challeng

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day of delay subject to a maximum of an amount calculated at a quarter per cent of his turnover. Principal contentions of the petitioners are that the Government is trying to recover penalty in the guise of late fee charges. As a result, the dealers losing their valuable right of appeals as well as right to point out that there was sufficient cause preventing them from filing the return within the due date. It was argued before us that in all previous laws which have been repealed by the statutes enacted under the new GST regime, such charges were categorized as penal in nature. Various practical difficulties in filing the returns including such as malfunctioning of the official portal which often times, prevents uploading of the returns we

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o knock the door of justice. The public interest jurisdiction of the High Court and the Supreme Court, over a period of time, has been considerably expanded to take within its sweep range of issues not confined to the assertion of rights of weaker sections of the society or the marginalized groups.
Nevertheless, even after such expansion, public interest is confined to environmental issues, the issues of public accountability and such like. The reference in this respect can be made to the decision of Supreme Court in case of State of Uttaranchal vs. Balwant Singh Chaufal and ors reported in (2013) 3 SCC 402.
3. In the present petition, the petitioners who are themselves active tax consultants and tax practitioners have challenged the vire

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IWI CRYOGENIC VAPORIZATION SYSTEM (INDIA) PVT. LTD. Versus COMMISSIONER OF CGST AND CENTRAL EXCISE VADODARA-I
Central Excise
2018 (9) TMI 173 – GUJARAT HIGH COURT – [2018] 59 G S.T.R. 329 (Guj)
GUJARAT HIGH COURT – HC
Dated:- 30-8-2018
R/TAX APPEAL No. 1079 of 2018
Central Excise
MR. AKIL KURESHI AND MR. B.N. KARIA, JJ.
For The PETITIONER : Mr DHAVAL SHAH, Advocate
For The RESPONDENT : Ms. MANISHA LAVKUMAR with Ms SHRUTI S PATHAK, AGP
ORAL ORDER
(PER : HONOURABLE Mr. JUSTICE AKIL KURESHI)
This Appeal is filed by the assessee challenging the judgment of the Customs, Excise & Service Tax Appellate Tribunal, Ahmedabad [“the Tribunal” for short] rejecting the application for rectification of an order of the Tribunal.
Brief facts are as under :
The assessee was served with a show cause notice for recovery of unpaid dues with interest and penalty under the service tax regime. Despite opposition by the assessee, the same were confirmed. The issue travelled to th

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tion of law and facts, we do not permit same before us for the first time. However, if it is open for the appellant to file a rectification application before the Tribunal on such basis, we do not prevent him from doing so. Tax Appeal is therefore dismissed.”
The assessee thereupon approached the Tribunal again in an application filed for rectification. Such rectification application came to be dismissed by the impugned order in which the Tribunal held that the assessee had not raised such a contention before the Tribunal, or even before the lower authorities earlier and any exercise by the Tribunal to entertain such a contention to modify the order would amount to review- a power which the Tribunal does not possess.
When we took up the appeal for hearing, two questions were discussed – First was, whether the application for rectification could have been presented beyond the period of limitation prescribed and the second question was-whether the Tribunal was correct in dismissing th

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ing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and make orders under the Central Excise Act, 1944. Thus, the jurisdiction, scope and procedure to be followed by the Tribunal while hearing the appeals under Section 86 of the Finance Act, 1994 are borrowed by reference from the Central Excise Act, 1944. It is undisputed that Section 35C of the Central Excise Act, 1944 which pertains to “Orders of Appellate Tribunal” provides under sub-section [2] thereof that the Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section [1] and would make such amendments, if the mistake is brought to its notice by the Department, or any other party to the appeal. Thus, the power of the Tribunal while disposing of appeals in terms of

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er. Even after the High Court dismissed the appeal on 28th January 2016, it appears from the recored that the rectification application was filed nearly six months later. Therefore, only on the question of limitation, rectification application could have been dismissed by the Tribunal; though Tribunal did not advert to this aspect of the matter. When the High Court dismissed the appeal of assessee in the earlier round of litigation, it merely kept liberty open to the assessee to approach the Tribunal by filing rectification application; if it was open for the appellant to do so. The High Court did not mandate the Tribunal to either entertain such an application or open an avenue; which otherwise may have been closed.
Even otherwise, we do not think that the Tribunal has committed any error. The Tribunal recorded that all along, the assessee had never raised such a contention. Before the lower authorities or before the Tribunal, no such ground was raised. Learned advocate Shri Shah dre

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For HSN CODE
Query (Issue) Started By: – Vijaykumar Boora Dated:- 29-8-2018 Last Reply Date:- 29-8-2018 Goods and Services Tax – GST
Got 1 Reply
GST
Hello sir,
Thank you for your reply.But sir in this regards circular is comed Circular No. 1054/03/2017-CX dated 27th March,2017 on sarees that further processing of 'Saree' does not change the essential characteristics of the fabric as that of 'Saree', it should continue to be classified as 'Saree'. So if any embroidery work done on d

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GST applicability on subsidized Food and pick up & drop off transport facility to employees
Query (Issue) Started By: – RS SIMHA Dated:- 29-8-2018 Last Reply Date:- 31-8-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Can experts in the forum comment on applicability of GST on the subsidized food and pick up and drop off transport facility provided by employer to employee.
Reply By KASTURI SETHI:
The Reply:
Both activities are taxable under GST.
Reply By Ramaswamy S:
The Reply:
Reference to the Advance Ruling of Kerala
Sub:- GST Act, 2017 – Advance Ruling U/s 98 – whether recovery of food .~ expenses from employees for the canteen provided by company comes under the definition of outward supplies are taxable under GST

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Reg.: GST Refumd
Query (Issue) Started By: – Yash Jain Dated:- 29-8-2018 Last Reply Date:- 11-9-2018 Goods and Services Tax – GST
Got 15 Replies
GST
Dear Sir/Madam,
We had exported goods as zero rated in FY 2017-18 against which we had accumulated significant ITC (input tax credit), in form of CGST and SGST.
But in FY 2018-19, due to strong domestic sales (inter state) we have utilized full ITC (CGST) portion , leaving us with balance of SGST only.
Now my question in this regard is as follows,
1. Can I claim CGST credit portion from SGST balance apart from SGST refund.
2.If I m not eligible for CGST refund from sgst portion, then can I apply for SGST portion atleast.
Please reply
Rgds
Reply By Ramaswamy S:
The Reply:
SGST can be utilised for payment of IGST.
SGST cannot be utilised for CGST.
Regards,
S.Ramaswamy
Reply By Yash Jain:
The Reply:
Dear Sir,
Thanks for the Reply.
But my query is that as to whether Can i Claim "ITC Refund" For SGST Only

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om my "SGST Input" .(Reason : As we can offset SGST Liability by IGST Input Or IGST Liability from SGST Input).
The main purpose of Claiming Refund is to convert Input into cash and Save CC Interest, please.
Reply By KASTURI SETHI:
The Reply:
Why you say IGST refund from SGST input specifically ? This is question is not correctly phrased.
Reply By KASTURI SETHI:
The Reply:
Read, "This question is not properly drafted".
Reply By Yash Jain:
The Reply:
Dear Sir,
I Regret for Inconvenience caused if any.
Sir, at Present in My Electronic Credit Ledger I only have SGST Input (My CGST & IGST Input are "zero").
But while making Exports Sir, I had procured Goods by Paying IGST. (At present My IGST Input is "Nil").
Now, In Offset Meachanism, Leaving Set Off of CGST and SGST among themselves, all other combination are permissible i.e Offsetting of
1. IGST Liability (by Way of IGST (First) + CGST (Second) + SGST (Third)) and similarly for
2.CG

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e exports, I Had procured the Goods under CGST and IGST say for ₹ 50.
So my Question is that whether from my SGST input of ₹ 100/- can I get Refund of CGST of ₹ 50/- .
The government has issued the Circular No.:349/21/2016-GST Dated 04th September,2018 were in vide para 3.2 (part b) (Page No.:2)
The abstract of the Circular is as under,
“3.2 After calculating the Least of three amounts, as detailed above, the equivalent amount is to be debited from the Electronic Credit Ledger of the claimant in the following order,;
a. Integrated tax to the extent of Balance Available
b. Central Tax and State Tax/UT Tax equally to the extent of the balance available and in the event of short fall in the balance available in a particular electronic credit ledger (say Central Tax), the differential amount is to be debited from the Electronic Credit Ledger, in this case”
Hence please inform us that whether I can claim CGST Input from my Available SGST Input Balance in Electronic

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GST AAR ruling in the Columbia Asia judgment – needs reconsideration!
By: – pranav deshpande
Goods and Services Tax – GST
Dated:- 29-8-2018

Brace for more hiccups.
The AAR have given a ruling in the case of Columbia Asia Hospitals Pvt. Ltd. = 2018 (8) TMI 876 – AUTHORITY FOR ADVANCE RULINGS, KARNATAKA
Before we analyze the ruling, let us look at some facts:
Columbia Asia Hospitals Pvt Ltd (hereafter, referred to as "applicant") is a private company, rendering health care services. They are operating in 6 States, with 11 hospitals or units. They have 6 units in Karnataka alone. They have their corporate office in Karnataka. Accounting, administration and IT systems are maintained from this office, by employees ap

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per AAR).
Instead of becoming emotionally agitated by this ruling, which would doubtless have far reaching consequences, it may be useful to analyze certain definitions of 'employer' and 'employee'.
The fact is – 'employer' 'employee' and 'in the course of employment' are not defined under CGST Act.
But they are defined, elsewhere.
'Employer' is defined under section 2(1)(e) of Employees' Compensation Act and Section 2(e) of the Minimum Wages Act and in both these definitions, employer as a general entity, has a separate existence and location is not relevant.
Similarly, 'Employee' is defined under section 2(f) of the Employees' Provident Fund Act, 1952 and there too,

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9;salaries' under Income tax Act and TDS is deducted accordingly. To hold that he is also partly acting as a 'consultant' to the employer's branch offices would change the character of his income and other related obligations, as well.
Further, nowhere in the labour laws, is the employment location-based. Because if that logic is applied, even the MD or CEO of a company, who is technically the company's employee, would be regarded as a 'consultant' to other offices, in the performance of his executive duties.
I have the highest regard and respect for the august offices of the AAR and the judiciary. However, with all due respect, I believe that in light of the above, the ruling needs reconsideration.
Schol

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Bill to and ship to – applicability
Query (Issue) Started By: – Yash Jain Dated:- 29-8-2018 Last Reply Date:- 29-8-2018 Goods and Services Tax – GST
Got 2 Replies
GST
Dear Esteemed Members,
One of our customers outside state, has placed order with us to supply the goods at a port (for export) within our state in which he is not registered.
He is informing us to charge igst, and now my query is.
1. Can this be treated as bill to (billing to customer outside state) and ship to (shipping to same customer within state – in which he is not registered), transaction.{shipping being done to unregistered person}
2.If answer to aforesaid is affirmative, then what documentation should we take from customer.
3.Can the customer claim

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M/s. Sky Automobiles Versus Commissioner of CGST, BBSR
Service Tax
2018 (12) TMI 74 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 29-8-2018
Appeal No. ST/76237/2018 – FO/76610/2018
Service Tax
Shri P.K. Choudhary, Member (Judicial)
Shri Ravi Raghavan, Advocate & Shri Harsh Shukla, CA for the Appellant (s)
Shri S. Mukhopahdyay, Suptd.(AR) for the Respondent (s)
ORDER
Per Shri P.K. Choudhary
Briefly stated the facts of the case are that the appellant is engaged in the business of Authorized Dealer of Maruti Suzuki Four Wheeler and also providing services of authorized service station and is registered with the service tax under category of 'Authorized Service Station (Servicing of Motor Vehicles)' and 'Business Auxiliary Service'. Pursuance to the Department audit, an audit observation was issued demanding service tax on various issues such as service tax on DSE incentive, Registration Fee, Cancellation Charges and Legal Fee paid to advocate. In reply t

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ssuance of the show cause notice by the department and the facts of payment has been acknowledged in the show cause notice itself and accordingly the proceedings should have been completed on payment of tax amount alongwith interest under provision of Section 73(3) of the Finance Act, 1994. He strongly argued that when the amount stood paid alongwith interest much before the issuance of the show cause notice, no proceedings could have been initiated. In support of his submission he relied upon the decision of the Tribunal in the case of C.Ramachandran vs. Commissioner of Service Tax, Chennai [2016(46) STR 866].
3. Ld. DR reiterates the orders of the lower authorities.
4. Heard both sides and perused the appeal records.
5. I find that the issue involved in the appeal relates to waiver of penalty under Section 77 & 78 invoking Section 73(3) of the Finance Act, 1994. I find that the appellant had paid the service tax and interest before issuance of show cause notice. I also observed th

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der sub-section (1) in respect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid :
…. …..
….. …..”
I also find that an explanation was inserted to Section 73(3) of the Finance Act, 1994 which is reproduced below :
“Explanation 2. – For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon.”
6. In the case of Tamil Nadu Small Inds. Corporation Limited v. Commissioner of Central Excise Chennai – 2009 (234) E.L.T. 413, it was held that where an amendment has been introduced to clarify the intention of a notification, the said amendment shall be retrospective in nature. Applying the analogy to the facts of the present case, I am of the view that the

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M/s. Mahindra Holiday & Resorts India Ltd. Versus Commissioner of GST & Central Excise Chennai
Service Tax
2018 (11) TMI 1216 – CESTAT CHENNAI – 2019 (29) G. S. T. L. 343 (Tri. – Chennai)
CESTAT CHENNAI – AT
Dated:- 29-8-2018
Appeal No. ST/522/2011 – Final Order No. 42343/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri S. Thirumalai, Advocate for Appellant
Shri K. Veerabhadra Reddy, Addl. Commr. AR) for Respondent
ORDER
Per Bench
The facts of the case are that the appellants are engaged in providing Club or Association service and are registered with the department under the said category. Pursuant to audit, it appeared to the department that the appellant had received certain services such as Management Consultancy Service etc. from various persons located outside India. It further appeared that expenses shown as “Branch Office Expense” in foreign currency were in relation to providing holi

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,43,60,316/- with interest and also imposed penalties under Sections 76, 77 and 78 of the Finance Act. Hence this appeal.
2. Today, when the matter came up for hearing, on behalf of the appellant, ld. counsel Shri S. Thirumalai made oral and written submissions which can be broadly summarized as under:-
2.1 The demand raised under club or association service for levying service tax under import of services is not taxable since nowhere in the show cause notice, any evidence has been put forth to show that the services involved were partly or wholly performed in India.
2.2 Ld. counsel adverted to Board Circular dated 19.4.2006 (para 4.2.8) to submit that in the context of club or association service, the same should be physically performed in India (wholly or partly). The impugned services have not been physically performed in India either partly or wholly.
2.3 The value of the services alleged as taxable has been shown in the show cause notice as Rs. 4,21,56,951/-. Ld. counsel submi

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h Mahindra Ltd. Vs. Commissioner of Central Excise – 2016-VIL-625-CESTAT-MUM-ST and 3i Info Tech Ltd. Vs. Commissioner of Service, Mumbai – II – 2017-VIL-04-CESTAT-MUM-ST.
2.7 The demand of Rs. 16,75,189/- in regard to professional fees pertains to legal expenses that is provided by service providers outside India. The said services were also for investment activities outside India though the amount was borne by the appellant. Merely because the appellant has borne the amount as a service provider as well as service recipient outside India, such demand on professional / legal fees cannot be subject to service tax.
2.8 The proceedings per se are hit by limitation for the reason that the transaction becomes revenue neutral. Ld. counsel adverted to the case law of Jet Airways Ltd. [2016-TIOL-2072-CESTAT-MUM] to support his contention. For the same reasons, ld. counsel submits that the penalties imposed are also unjustified.
3. On the other hand, ld. AR Shri K. Veerabhadra Reddy reitera

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rge of service tax under reverse charge. Rule 3(iii) specifies the residuary list of taxable services and those services as are received by a recipient located in India for use in relation to business and commerce. From the facts on record, we find that the impugned services provided outside India will fall within the ambit of Rule 3(ii). Para 4.2.8 of the Board Circular dated 19.4.2006 has clarified that to attract service tax levy, such services will be required to be physically performed partly or wholly in India. Even as per the show cause notice, it is alleged that the services provided in Thailand and other places are leviable to service tax since it is intended for members in India. Thus, department does not have a case that the impugned services are physically performed in India. In the instant case, from the table found in para 15 of the impugned order and the analysis thereof, we find that all the services listed therein are such that they have not been physically performed i

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M/s. Sky Automobiles Versus Commissioner of CGST, BBSR
Service Tax
2018 (11) TMI 831 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 29-8-2018
ST/76238 & 76239/2018 – . FO/76649-76650/2018
Service Tax
Shri P.K.Choudhary, Member (Judicial)
Shri Ravi Raghavan, Advocate & Shri Harsh Shukla, CA for the Appellant (s)
Shri S.Mukhopahdyay, Suptd.(AR) for the Respondent (s)
ORDER
Per Shri P.K.Choudhary
Briefly stated the facts of the case are that the appellants are engaged in the business of Authorized Dealer of Maruti Suzuki Four Wheeler and also providing services of authorized service station and is registered with the service tax under category of 'Authorized Service Station (Servicing of Motor Vehicles)' and 'Business Auxiliary Service'. Pursuance to the Department audit, an audit observation was issued demanding service tax on various issues such as service tax on DSE incentive, Registration Fee, Cancellation Charges and Legal Fee paid to advocate.
Sl.No.

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Rule 6(3)(c ) of the Rules on the said services. On this issue he relied upon the decision of the Tribunal in the case of CCE, Goa vs. V.M.Salgaonkar & Bros. Pvt. Ltd. [2008(10) STR 609(Tri.-Mum)]. Ld. Advocate also submits that they have reversed the credit amount in terms of Rule 6 of the Cenvat Credit Rules, 2004, however, this fact has not been accepted nor examined by the Department and the amount has been upheld without any verification.
5. Ld. DR reiterates the orders of the lower authorities.
6. Heard both sides and perused the appeal records.
7. I find that the appellant has not denied the fact that they have been availing cenvat credit on the service tax paid on the common input services for trading goods. However, it has been contended that the trading of goods has come into the exempted category only since 31.03.2011 and therefore the explanation adding 'trading' in the exempted service category cannot be made retrospectively applicable. It is also observed that the appe

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Rules, 2004 which clearly states that unless and until the input service is exclusively used for the provision of exempted service, it will be allowed in manner prescribed under Rule 6(3) of the CENVAT Credit Rules, 2004.
11. It is submitted that for the purpose of Rule 6, exempted service provided by the appellant shall be the trading of goods by virtue of Rule 2(e) of the CENVAT Credit Rules as read with explanation (I) (c) to the said Rule. It is further, submitted that prior to 01.04.2011, trading of goods was not covered under the definition of exempted services, it was first introduced w.e.f. 01.04.2011 and at the time the exempted services were defined as:
“Exempted Services” means taxable services which are exempt from the whole of the service tax leviable thereon, and includes service on which no service tax is leviable under Section 66 of the Finance Act, 1994 and taxable services whose part of the value is exempted on the condition that no credit of inputs and input servi

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the provision of taxable or exempted services up to 31st March 2011. The table as submitted is being reproduced as under:
Relevant Rule
2008-09
2009-10
2010-11
Total
Other than Rule 6(5)
67,923
35,236
166,601
269,761
Rule 6(5)
151,158
154,885
192,963
499,007
Grand Total
2,19,082
1,90,121
3,59,565
7,68,768
13. I find from the details submitted, that based on the above computation, the Appellant have already reversed Rs. 4,93,236/- as portion of Common CENVAT Credit attributable to both taxable as well as for trading activity in view of provision of Rule 6 of the CENVAT Credit Rules, 2004. The amount arrived as above has been deposited along with interest and copy of challans have also been submitted.
The Appellant has submitted that during the FY 2013-14, the total amount of CENVAT credit availed by the appellant is Rs. 14,77,261/- which includes CENVAT Credit of taxes paid on Capital Goods, Services exclusively used for taxable services and common input services.

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es as enumerated under Rule 6(5) of the Cenvat Credit Rules, 2004 are to be allowed. It can be noticed that Rule 6(5) starts of non-obstante clause 'notwithstanding', which would indicate that the provisions of Rule 6(3) are not applicable for the provisions of Rule 6(5) of Cenvat Credit Rules, 2004. It is undisputed that the service tax credit availed is on the services as mentioned in Rule 6(5), the credit of the entire whole amount of service tax has to the appellant. When the differential amount has been paid by appellants under Rule 6 of Cenvat Credit Rules, 2004 and discharged the service tax has pointed out by the department before issuance of the show cause notice. Under the provisions of 73(3) of the Finance Act, 1994, the proceedings should have been completed on payment of tax amount along with interest. The credit amount which has been reversed by the appellants has neither been accepted or examined by the department and the amount has been upheld without any verification.

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M/s. Alstom T and D India Ltd. Versus Commissioner of GST and Central Excise Chennai
Service Tax
2018 (9) TMI 1671 – CESTAT CHENNAI – 2019 (370) E.L.T. 625 (Tri. – Chennai)
CESTAT CHENNAI – AT
Dated:- 29-8-2018
Appeal No. ST/687/2012 – Final Order Nos. 42322/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri Joseph Prabhakar, Advocate for the Appellant
Shri A. Cletus, Addl. Commissioner (AR) for the Respondent
ORDER
Per Bench
The appellants are registered for payment of service tax under various categories such as erection, commissioning or installation service, works contract service etc. They were availing the facility of CENVAT credit on inputs an

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emand, interest and imposed penalties. Hence this appeal.
2. On behalf of the appellant, Id. Counsel Shri Joseph Prabhakar submitted that the appellant had reversed the credit attributable to the exempted services. This fact is not being disputed by the department. The demand has been raised alleging that the appellant has failed to intimate the department about exercising to opt as to reversing the proportionate credit. He submitted that this is as procedural lapse and substantial benefit cannot be denied and therefore the appellant cannot be put to terms by demanding the amount already reversed. He relies upon the decision of the Tribunal in the case of Aster Pvt. Ltd. Vs. Commissioner of Central Excise, Hyderabad-2016(43) STR 411 (Tri.

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R. Rajendran, Civil Engineering Contractor Versus Commissioner of GST and Central Excise Tirunelveli
Service Tax
2018 (9) TMI 1670 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 29-8-2018
Appeal No. ST/155/2012 – Final Order No. 42323/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Ms. Radhika Chandrasekar, Advocate for the Appellant
Shri A. Cletus, Addl. Commissioner (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellant is a building contractor and was engaged in construction of residential complex service. It was noticed that they executed works contract pertaining to construction of police quarters and according to the depar

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y is a composite contract and involves transfer of property of goods during the execution of contract and therefore for the period prior to 1.6.2007, levy cannot sustain as per the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Kerala Vs. Larsen and Toubro Ltd. – 2015 (39) STR 913 (SC).
3. In respect of the period after 1.6.2007, she submits that there is no liability to pay service tax since the entire construction is for the Government of Tamil Nadu and therefore is no commercial purpose involved in the construction. TNPHCL engages the appellant for construction of such quarters and the ownership of the house constructed vests with the Government of Tamil Nadu. TNPHCL being an extended arm of the Gov

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M/s. Alstom T and D India Ltd. Versus Commissioner of GST and Central Excise Chennai
Service Tax
2018 (9) TMI 1669 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 29-8-2018
Appeal Nos. ST/26 and 44/2012 – Final Order Nos. 42320-42321/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri Joseph Prabhakar, Advocate for the Appellant
Shri A. Cletus, Addl. Commissioner (AR) for the Respondent
ORDER
Per Bench
The issue involved in both these appeals being the same, they are heard together and are disposed by this common order.
2. Brief facts are that the appellant is engaged in manufacture of transformers and other electrical switchgear which are supplied to various Electricity Boards. On scrutiny of ST-3 returns, it was observed that the appellant was paying service tax at the rate of 4% for the services rendered by them under works contract service. In the returns filed by them for earlier periods

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st and also imposed penalties. Hence these appeals.
3. On behalf of the appellant, ld. counsel Shri Joseph Prabhakar submitted that the issue with regard to the bifurcation of the contract into supply contracts, erection, commission and installation and civil structure works and the liability to service tax as well as to their abatement under Notification 1/2006 was considered by the Tribunal in the appellant's own case as reported in 2018-VIL-385-CESTAT-CHE-ST. With regard to the second issue as to the requirement of exercising option for payment of service tax under the composition scheme, he submitted that it was only a procedural lapse and that the Tribunal in the case of Vaishno Associates Vs. Commissioner of Central Excise, Jaipur – 2018-TIOL-1486-CESTAT-DEL has considered the issue and held the same in favour of the assessee.
4. The ld. AR Shri A. Cletus supported the findings in the impugned order.
5. Heard both sides.
6. The first issue is with regard to the allegation tha

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s taken together form a turnkey project and has proceeded to deny abatement on the civil works portion by observing that the tax payer cannot pay full rate on one portion and avail abatement on the other portion. But, it is seen that the Revenue has made no attempt to combine the three contracts into one mega turnkey project. No attempt has been made to assess such a composite contract as a single works contract. Hence we are of the view that the supply contract, erection contract as well as civil works contract are required to be assessed independently since the same have been executed separately by the two parties.
7.2 Considering the civil works contract, the adjudicating authority has blindly gone by the classification declared in the ST3 returns under 65 (105) (zzd). The execution of civil works no doubt involves supply of materials in the form of steel, cement 7 etc. Consequently, such contracts merit classification under 65 (105) (zzq) under commercial or industrial constructi

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To extend the due date for filing of FORM GSTR -1 for taxpayers having aggregate turnover above 1.5 crores.
F.A-3-27-2018-1-V-(75) Dated:- 29-8-2018 Madhya Pradesh SGST
GST – States
Madhya Pradesh SGST
Madhya Pradesh SGST
Commercial Tax Department
Mantralaya, Vallabh Bhawan, Bhopal
Bhopal, the 29th August 2018
No. F.A-3-27-2018-1-V-(75).- In exercise of the powers conferred by Section 148 of the Madhya Pradesh Goods and Services Tax Act, 2017 (19 of 2017) (hereafter in this notification referred to as the said Act), the State Government, on the recommendations of the Council, hereby notifies the registered persons having aggregate turnover of up to 1.5 crore rupees in the preceding financial year or the current financial

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Seeks to extend the due dates for filing FORM GSTR-3B for the months of July, 2018 and August, 2018.
(01-M/2018) No. KGST.CR.01/2017-18 Dated:- 29-8-2018 Karnataka SGST
GST – States
Karnataka SGST
Karnataka SGST
Office of the Commissioner of Commercial Taxes (Karnataka)
Vanijya Therige Karyalaya, Gandhinagar, Bengaluru,
NOTIFICATION (01-M/2018)
No. KGST.CR.01/17-18, Dated: 29.08.2018.
In exercise of the powers conferred by section 168 of the Karnataka Goods and Services Tax Act, 2017 (Karnataka Act 27 of 2017) read with sub-rule (5) of rule 61 of the Karnataka Goods and Services Tax Rules, 2017, on the recommendations of the Council, the following further amendment is hereby made in the notification (1-K/2018) No. KGST.CR

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Seeks to prescribe the due dates for furnishing of FORM GSTR-1 for those taxpayers with aggregate turnover of more than 1.5 crores for the months of July, 2018 and August, 2018.
(01-N/2018) No. KGST.CR.01/2017-18 Dated:- 29-8-2018 Karnataka SGST
GST – States
Karnataka SGST
Karnataka SGST
Office of the Commissioner of Commercial Taxes (Karnataka)
Vanijya Therige Karyalaya, Gandhinagar, Bengaluru,
NOTIFICATION (1-N/2018)
No. KGST.CR.01/ 17-18, Dated: 29.08.2018
In exercise of th

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MR A.B. PRINT PACK Versus THE PRINCIPAL CHIEF COMMISSIONER AND ANR.
GST
2018 (9) TMI 1260 – DELHI HIGH COURT – 2018 (16) G. S. T. L. 353 (Del.)
DELHI HIGH COURT – HC
Dated:- 29-8-2018
W. P. (C) 9059/2018, CM APPL. 34887/2018
GST
MR S. RAVINDRA BHAT AND MR A. K. CHAWLA, JJ.
For The Petitioner : Mr. M.P. Arora, Adv.
For The Respondents : Mr. Sanjeev Narula, Sr. Standing Counsel for Revenue with Mr. Abhishek Ghai, Adv. Mr. Abhay Prakash Sahay, CGSC with Mr. Shivam Wadhwa, Mr. Suraj Kumar, Advs
ORDER
Mr. Sanjeev Narula, Senior Standing Counsel on behalf of the Revenue.
The petitioner's grievance is that the credit of input tax in relation to capital goods which was permitted inadvertently in the TRANS I Form filed on

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CCGST, Mumbai West Versus Reliance Capital Ltd.
Service Tax
2018 (9) TMI 755 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 29-8-2018
Application No. ST/S/86030/2018 In Appeal No. ST/87548/2018 – M/85762/2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
Shri N.N. Prabhudesai, Supdt. (AR) for the appellant
Ms. Ginita Badani, Advocate for the respondent
ORDER
Heard on the stay petition filed by the appellant department for stay of operation of the order passed by the Commissioner (Appeals-III), GST & CX, Mumbai on 29.12.2017 setting aside the order-in-original no. ADC/MM/6 and 7/2012-13 dated 16.10.2012 that confirmed duty demand against cenvat credit to the tune of Rs. 27,83,751/- holding the same as in

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ondent and therefore not staying of proceedings would not cause any material gain to the respondent. She further submits that no such recurrence of invoicing which was considered to be improper has been made in the subsequent financial years for which grant of stay is uncalled for.
3. Perused the case records and it is observed that cenvat credit availed by the respondent/OP was held to be inadmissible and duty demand as made, was confirmed by the first adjudicating authority with ancillary relief but the same was set aside by the Commissioner (Appeals) holding that such finding on invoicing procedure was too technical. Be that as it may, bereft of discussion on the merit of the case, it is apparently clear that no such inconvenience would

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COMMISSIONER OF GOODS AND SERVICE TAX, DELHI (EAST) Versus ASHUTOSH METAL INDUSTRIES
Central Excise
2018 (9) TMI 496 – DELHI HIGH COURT – 2019 (366) E.L.T. 1019 (Del.)
DELHI HIGH COURT – HC
Dated:- 29-8-2018
CEAC 29/2017
Central Excise
MR. S. RAVINDRA BHAT AND MR. A. K. CHAWLA JJ.
Petitioner Through: Mr. Harpreet Singh, Sr. Standing Counsel.
Respondent Through: Mr. V.S. Negi and Mr. Satish Chander Kaul, Advocates.
MR. S. RAVINDRA BHAT (ORAL)
The questions of law framed in this case read as follows:-
“(1) Whether the Customs, Excise and Service Tax Appellate Tribunal was right in rejecting and not taking into consideration computer printouts and holding them as inadmissible for failure to meet the conditions specified in Section 36B of the Central Excise Act?
(2) Whether the decision of the Customs, Excise and Service Tax Appellate Tribunal is contrary to facts and perverse?
(3) Whether the Customs, Excise and Service Tax Appellate Tribunal was right in excl

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ementioned, and duly corroborated by the statement dated 18.11.2005 of Smt. Janki Sharma, reveal that it contains the details of transactions of ATM (and SHIVA), which is abbreviated to mean Ashutosh Metal Industries, and Shri Jatinder Kumar Aggarwal is the proprietor of M/s. ATM. The papers of ATM are page numbered from 1 to 165. Shri Manish Sethi, however, retracted his statement vide his letter no. Nil dated 02.02.06 received through post on 07.02.06. In response to the aforesaid letter, DGCEI vide letter F.No. DZU/INV/169/2005/474 dated 15.02.06 had advised him to co-operate in the investigation. I find that the retraction was sent after almost 3 months of it being recorded and appears to be more in the nature of an after thought and it appears to have been done with a motive to mislead the investigation.
39. The documents of M/s. ATM show the party-wise details of transaction and a consolidated details of sale and purchase made by M/s. ATM. The scrutiny of the seized printouts an

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It is seen that ATM account are maintained up to 06.05.05 and thereafter for the subsequent period the account is maintained in the name of 'SHIVA'. The documents show the party-wise transaction details and consolidated details of both sale and purchase by M/s. ATM. On scrutiny of the printouts marked as “SHIVA”, the description mentioned from page 1 to 135 and from page no. 151 to 209 was party-wise ledger account of payment details, purchase of copper scrap, purchase account, sale of copper ingots/rods and receipt of payment in cash. The details mentioned at page no.136 to 150 were in respect of parties to whom copper ingots/rods were sold clandestinely and the total sale of copper ingots/rods was worth Rs. 35,02,87,889/- as shown at page no.150 for the period from 07.05.05 to 16.09.05.
39.2 From scrutiny of the documents in the made up file page numbered 1 to 56 showing 9th transaction details of clandestine removal of copper ingots/rods, purchase of scrap and payments & r

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count of clandestine sale of ingots/rods, as reflected in the account of 'ATM' and 'SHIVA' were actually the transactions of M/s. ATM only as corroborated by the statement of Smt Janki Sharma and this indicates that a huge quantity of unaccounted ingots were manufactured and cleared clandestinely. The details of quantity reflected/written on the kachhi parchi can be seen from the sample kachhi parchies as evidence recovered during search from Smt. Janki Sharma. However, while entering these data in the computer, only relevant information such as receipt & payment details were entered and hence the printouts of ledger did not show the quantity.
40. Further, a huge quantity of unaccounted production and subsequent clearance thereof is corroborated from the evidence of higher consumption of LDO used in furnace which was purchased unaccounted; however some surreptitious purchases were recorded in computer data base as seen from the printouts recovered.
40.1 On scrutiny of

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of search conducted separately, the duty demanded to the tune of Rs. 8,30,53,761/- could not be sustained. The CESTAT noticed that the show cause notice itself showed that the daily production from the appellant's factory was 5 tonnes and that it runs in a single shift and works for about 10-15 days in a month. It was concluded that the calculations regarding production in the appellant's factory deduced by the Revenue Authorities in the order-in-original in the form of a chart, which was the basis of the duty liability, was entirely fanciful. The CESTAT thereafter elaborately analysed both the digital material and the evidence as well as the statement of Ms. Janki Sharma. The CESTAT thereafter pointed out the improbabilities in the conclusions arrived at by the Adjudicating Authority and observed as follows:-
“11. It is settled law that documents recovered from a third party can be used against the manufacturer to prove clandestine removal only when these are supported with corrobor

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books, nor carried out any investigation on the buyers who are alleged to have purchased these finished goods, in cash without payment of duty. From the records recovered from the factory, there is no evidence of any physical receipt of raw materials used in production of such a huge quantity of finished goods. In fact on the date of search, no discrepancy was recorded in respect of stock of raw materials and finished goods vis-a-vis that recorded in statutory records. The Revenue has also not bothered to investigate about the transportation of raw materials as well as finished products. The total quantum of alleged clandestine. production and clearance also show an over estimation, keeping in view the production capacity estimated by the Commissioner himself in the impugned order.
12. It is true that the evidence which is required to be produced in quasi judicial proceedings should be such that the charges get established on the basis of preponderance of probability. The standard of

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rs (P) Limited vs. CCE, Chennai – 2004 (165) ELT 291 (Tri. Chennai.) and Hon'ble Allahabad High Court decision in the case of Continental Cement Company vs. UOI- 2014 (309) ELT 411 (All.). We have gone through the above case laws which support the arguments of the appellant.
14. In view of the discussions in above paragraphs, we find that the evidences produced by the Revenue for sustaining the duty demand has not been corroborated by detailed investigation. The allegation of clandestine manufacture and clearance cannot be sustained on the basis of such flimsy evidences. Accordingly, the impugned order is set-aside and the appeal is allowed. Miscellaneous application also disposed of.”
5. Learned counsel for the Revenue urged that the Tribunal erred in interfering with the finding of fact that in the absence of any concurrent material connecting the assessee with the recoveries made, duty liability could not be imposed. It is submitted that the statement of Ms. Janki Sharma clear

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ssion as well as complete reading of the orders of the Adjudicating Officer and the CESTAT that the case built up against the assessee is entirely based on the evidence procured from third party. The lynchpin of the Revenue's case is the statement of Ms. Janki Sharma. Concededly, there was nothing recovered from the premises of assessee connecting it with her-either as an employee or as a consultant. It is not even Revenue's claim that during the course of adjudication, it asked any query from the assessee for directing her to furnish the bank statement etc. to find out possible connection with respect to any payments made or other financial connection with Ms. Janki Sharma. In these circumstances, the word of Ms. Janki Sharma against the respondent/assessee was entirely hearsay one. In such event, the Revenue could have yet proceeded to establish its case provided some link with its allegations of clandestine removal and excess production had been there. The only material it was able

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o
12.11.05
5,16,58,179.00
4,44,10,401.47
71,05,66 4.25
1,42,113.28
72,47,777.53
TOTAL
59,19,61,613.30
50,89,07,851.88
8,14,25,2 56.29
16,28,505.13
8,30,53,761.42″
7. The inference that the Revenue sought to draw a reference to “ATM”; the link it sought to make by the statement of Ms. Janki Sharma. As observed earlier, there was no scrap of paper or evidence linking the assessee with any allegations levelled against it vis-à-vis excess production and clandestine removal. On the other hand, the CESTAT noticed that the assessee's installed capacity was the production of five ton of copper ingots. Apparently, the assessee was able to function only half the month i.e. for about 15 days. Given this established and known capacity, the mere circumstance that the assessee had procured diesel equivalent to Rs. 29,00,000/- without any further calculation could not have led the Adjudicating Authority to conclude that clandestine removal to the extent of Rs. 8,30,53,

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M/s Viraat Traders Versus The State of Punjab and others
GST
2018 (9) TMI 432 – PUNJAB AND HARYANA HIGH COURT – TMI
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 29-8-2018
CWP No. 21604 of 2018(O&M)
GST
Mr. Rajesh Bindal And Mr. Harinder Singh Sidhu, JJ.
For The Petitioner : Dr. Naveen Rattan, Advocate
ORDER
Rajesh Bindal, J.
Challenge in the present writ petition is to the order dated 23.05.2018 passed by Excise and Taxation Officer Ludhiana-3 cancelling the registration

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M/s. Mahindra Holiday & Resorts India Ltd. Versus Commissioner of GST & Central Excise, Chennai
Service Tax
2018 (9) TMI 316 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 29-8-2018
Appeal Nos. ST/516/2011 and ST/354/2012 – Final Order Nos. 42324-42325 / 2018
Service Tax
Hon'ble Ms. Sulekha Beevi C.S., Member (Judicial) And Hon'ble Shri Madhu Mohan Damodhar, Member (Technical)
Shri S. Thirumalai,, Advocate for Appellant
Shri K. Veerabhadra Reddy, Addl. Commr. AR) for Respondent
ORDER
Per Bench
The issue involved in both these appeals being the same, they are heard together and are disposed by this common order.
2. The appellants are engaged in providing taxable services of club or association services and are also registered for services such as health and fitness service, tour operator service, air and railway travel agency service etc. They had availed common input services for taxable service as well as for trading. Since they had not maintained separa

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e 15(4) r/w section 78 of the Finance Act, 1994
3.
Date of SCN
596/2006 dated 23.10.2009
217/2011 dated 20.11.2011
4.
Date of OIO
185/2011 dated 17.6.2011
95/2012 dated 19.3.2012
 
4. He argued that the appellant has reversed the credit as per the formula contained in Rule 6(3A) for computing the credit that has to be reversed attributable to trading. The Explanation so added to Rule 2(e) of CENVAT Credit Rules, 2004 is whether it was provided that trading is an exempted service with effect from 1.4.2011. Corresponding amendment was introduced in Rule 6(3A) wherein the method for computing the amount that has to be reversed in case of trading as an exempted service was also provided. The appellant has adopted the said formula to reverse the credit. However, the demand has been raised on the turnover of the traded goods. The appellant has already suffered VAT on the traded goods and therefore the demand made on turnover traded goods will not sustain. He relied upon the de

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the period prior to 1.4.2011, there was much confusion as to whether trading is an exempted service or can be considered as service at all. In Ruchika Global Interlinks Vs. Commissioner of Central Excise – 2017-VIL-323-MAD-ST, the jurisdictional High Court has held that the trading is to be considered as an exempted service prior to 1.4.2011 also. After going through the records and hearing the submissions made by both sides, we find that the Tribunal in the case of TFL Quinn India (supra) has adopted the formula that has been laid in CENVAT Credit Rules with effect from 1.4.2011 to be more appropriate to be applied for the period prior to 1.4.2011 also. We find ourselves in agreement with such view of the Tribunal. Therefore, in our view, the appellant is required to reverse the credit as per the formula in Rule 6(3D)(c) of CENVAT Credit Rules, 2004 in respect of trading. However, the said amount has to be quantified. The appellant also contends that they have reversed the said amoun

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