Goods and Services Tax

Goods and Services Tax – Started By: – Arjun Gopalakrishna – Dated:- 18-5-2018 Last Replied Date:- 22-6-2018 – INPUT CREDIT OF GST COLLECTED BY GOVERNMENT BODY ON FINES AND PENALTIES LEVIES FOR DELAY IN SUBMISSION OF FORMS.IS THERE ANY RESTRICTION FOR CLAIMING GST INPUT IN THIS CASE – Reply By KASTURI SETHI – The Reply = In my view ITC on penalty paid due to late submission of forms is not allowed. In my view such penalty is legal requirement and does not qualify to the criteria of in the business or furtherance of business. – Reply By Arjun Gopalakrishna – The Reply = Sir we appreciate you view on this query. SEBI has levied penalty for delay in submission of quarterly forms. There is no restriction of INPUT credit under section 16, 17 an

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ent of any consideration for supply, is mentioned. Only payment of penalty cannot constitute supply. Merely, non-mentioning in Section 16, 17 and 18 of Act, does not gives you liberty of all Taxes as credit, other factors are required to be considered before arriving at any conclusion. Our experts may correct me if mistaken. Thanks – Reply By DR.MARIAPPAN GOVINDARAJAN – The Reply = I endorse the views of Shri Arjun. – Reply By KASTURI SETHI – The Reply = If penalty is imposed upon an assessee for an offence (committed by assessee )by way of Adjudication Order, no ITC on that amount of penalty is admissible. In other words, such penalty is not to be treated in business or furtherance of business. The same analogy can be applied here. – Reply

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Goods and Services Tax – Started By: – Jayadevan K M Nair – Dated:- 18-5-2018 Last Replied Date:- 22-5-2018 – Our client is a timber merchant dealing in timber logs and they raise invoice to the customers mentioning the product HSN code of timber logs which is 4403. But the client B before transporting the timber, does sawing of timber B logs into chipped/sliced timber in near by saw mill.B For sawing services the Sawmill issues sawing bill with service HSN code 9988. After sawing of Timber log, the product is changed to chipped/sliced Timber and its HSN Code is 4407. HenceB the final item transported would be split timber which comes under HSN 4407. The sawing centre raises only a service bill towards sawing charges hence they would not i

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eference of their sale bill. Is the process is correct? If B a customer cut timber log from his on land or purchased from an unregistered dealerB and bring for sawing , then which are the documents to be attached while transporting the chipped/sliced timber. Shall E-way bill is to be taken. How fill the part A particulars in E-way bill. As he is having only GSTINB of the service provider. Please clarify as we are not able to give proper guidance to our client. with regards Jayadevan Muralidhar & Associates – Reply By YAGAY and SUN – The Reply = Consignment value and HSN needs to be determined for goods only not for services as only the goods are in movement and e-way bill needs to be generated accordingly. – Discussion-Forum – Knowledge

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Goods and Services Tax – Started By: – narendra patel – Dated:- 18-5-2018 Last Replied Date:- 11-12-2018 – Suppose a capital good (purely for business purpose) is purchased for 80,000. on 1.4.2018. So CGST part will be 7200. We avail 1/5 part (1440) for current year and put reversal entry of 5760. Now, in next year we claim next 1/5 part (1440). My question: 1. Do we claim next year ITC on 1.4.2019 or 31.3.2020 (ie exactly 1 year after purchase or at the end of next FY) 2. Under which section of GST, do we claim ITC of next year. 3. Under which section of GST, do we enter reversal enter of current year.Please advise. – Reply By KASTURI SETHI – The Reply = Restriction of one year is for availment and not for utilization. Can be used at any

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I SETHI – The Reply = Dear Querist, You can take full ITC on capital goods in one year. Reversal (you are talking) is required on account of usage of tax paid inputs/capital goods in the business or furtherance of business in respect of exempted as well as taxable supply of goods or services. Are you engaged in exempted as well as taxable supply ? – Reply By KASTURI SETHI – The Reply = Dr.Govindarajan Ji, Sir, What I want to say is as under :- During pre-GST era, Cenvat Credit on capital goods was allowed as 50% in first financial year and balance (50% ) in next financial year. In GST regime, ITC on capital goods can be taken in full in one year. (year of purchase). Earlier condition of taking credit in two installments has been dispensed w

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).Thank you very much.If my conclusion from above discussion is wrong, please advise. – Reply By Shashank Mutha – The Reply = Respected kasturi Sethi & Govindrajan ji I think that if we charge depreciation on capital goods at the end of financial year than we can't avail ITC . I refer Sec 17 (5) of CGST Act about BLOCK CREDIT If I am wrong than kindly guide us Thank you (waiting for reply) – Reply By Shashank Mutha – The Reply = #DR.MARIAPPAN GOVINDARAJAN – Reply By Shashank Mutha – The Reply = #KASTURI SETHI – Reply By Ganeshan Kalyani – The Reply = In case of capital goods used for taxable goods then full credit can be taken in one year. And in case of capital goods used partially for business and partially for other purpose or pa

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GST – States – (1-F/2018) – Dated:- 18-5-2018 – GOVERNMENT OF KARNATAKA FINANCE SECRETARIAT NOTIFICATION (1-F/2018) [NO.KGST.CR.01/17-18], Bengaluru dated: 18.05.2018 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 amendment is hereby made in the CCT Notification (1-C/2018) No.K

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GST – States – 8/2018 – Dated:- 18-5-2018 – GOVERNMENT OF NAGALAND OFFICE OF THE COMMISSIONER OF STATE TAXES NAGALAND: DIMAPUR Dated Dimapur, the 18th May, 2018 NOTIFICATION- 8/2018 In exercise of the powers conferred by section 168 of the Nagaland Goods and Services Tax Act, 2017 (4 of 2017) read with sub-rule (5) of rule 61 of the Nagaland Goods and Services Tax Rules, 2017, the Commissioner, on the recommendations of the Council, hereby makes the following amendment in the notification No.3/

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GST – States – 1357/GST-2 – Dated:- 18-5-2018 – Order Subject: Officer authorized for enrolling or rejecting application for Goods and Services Tax Practitioner under the Haryana Goods and Services Tax Act, 2017. In pursuance of clause (91) of section 2 of the Haryana Goods and Services Tax Act, 2017 and subject to sub-section (2) of the section 5 of the Haryana Goods and Services Tax Act, 2017, I, Ashima Brar, the Excise and Taxation Commissioner -cum-Commissioner of State Tax hereby specify t

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Shree Raipur Cement Plant (A unit of Shree Cement Limited) Versus State of Chhattisgarh, The Commissioner, Commercial Taxes Department, The Assistant Commissioner, Commercial Taxes Department, Union of India, Ministry of Finance (Department of Revenue) , The Under Secretary (ST-II) , Ministry of Finance – 2018 (5) TMI 1494 – CHHATTISGARH HIGH COURT – 2018 (17) G. S. T. L. 387 (Chhattisgarh) – Inter-state trade – purchase of high speed diesel in the course of manufacturing of cement – C-Form – Chhattisgarh Value Added Tax Act, 2005 – situation post GST-implementation.
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Whether the petitioner is entitled to be issued C-Form under the Central Sales Tax Act, 1956 read with the Central Sales Tax (Registration and Turnover) Rules, 1957 in respect of high speed diesel purchased by it in the course of inter-State trade and used by it in the course of manufacturing of cement, after the promulgation of the Central Goods and Services Tax Act, 2017 with effect from 1-7-2017?
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Held that:

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rect taxes that prevailed are the Central GST and the State GST – Section 174 of the CGST Act, 2017 contains a provision pertaining to repeal and saving. It is pertinent to notice that Section 174 of the CGST Act, 2017 does not include the CST Act, 1956 for the purpose of repealing and as such, the operation of the CST Act, 1956 is kept intact even after the enactment of the CGST Act, 2017 with effect from 1-7-2017.
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The Chhattisgarh Value Added Tax Act, 2005 has not been repealed qua the items specified under the amended Entry 54 of the State List of the Seventh Schedule to the Constitution, whereby high speed diesel is included.
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After the promulgation of the CGST Act, 2017 and the State Act, the items mentioned in the amended Entry 54 of the State List of the Seventh Schedule to the Constitution are governed by the CST Act, 1956, as no notification has been issued even under Section 9(2) of the CGST Act, 2017 by the Central Government or by the State Government under Secti

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all be liable and are directed to issue C-Form to the petitioner in respect of high speed diesel to be purchased by the petitioner and used in the course of manufacture of cement and for that, it is further directed to rectify and remove the error on their official website and entertain the petitioner's application submitted on-line on the official website seeking issuance of C Form to the petitioner for said goods.
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Petition allowed. – Writ Petition (T) No. 83 of 2018 Dated:- 18-5-2018 – Hon'ble Shri Justice Sanjay K. Agrawal For the Petitioner: Mr. Ramit Mehta, Mr. Saurabh Maheshwari and Mr. Anumeh Shrivastava, Advocates For the Respondents : State of Chhattisgarh: – Mr. Anand Dadariya, Deputy Government Advocate For the Respondents : Union of India: – Mr. Vaibhav P. Shukla, Advocate, appears on behalf of Mr. B. Gopa Kumar, Assistant Solicitor General of India ORDER 1. The short question involved in this writ petition is, whether the petitioner is entitled to be issued C-Fo

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ner was also having registration certificate under the provisions of the Chhattisgarh Value Added Tax Act, 2005 and with the introduction of the Central Goods and Services Tax Act, 2017 (for short, the CGST Act, 2017), the petitioner has also been registered under the CGST Act, 2017 with effect from 1-7-2017. It is the case of the petitioner that the respondent Department had been issuing C-Forms to the petitioner Company till 30-6-2017 for the goods covered under Section 2(d) of the CST Act, 1956 and as specified in the certificate of registration of the dealer for use in terms of Section 8 of the CST Act, 1956, but with effect from 1-7-2017, from coming into force of the CGST Act, 2017, C-Form is not being issued and / or withheld by showing error message that ED9: Invoice date should be less than 1st July, 2017 . 3. The petitioner has filed this writ petition stating inter alia that its registration certificate is with regard to High Speed Diesel covered under the definition of good

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5. After the roll-out of the Central Goods and Services Tax Act, 2017, the petitioner / dealer has been migrated to the GST regime by virtue of the provisions contained in Section 139 of the CGST Act, 2017 and the provisions of the CGST Act, 2017 as such, the petitioner's previous registration under the CST Act, 1956 is no more valid and, therefore, the petitioner has rightly been denied the privilege of C-Form, as under the provisions of the CST Act, 1956, C-Form has to be issued only to the registered dealer under the said Act. Therefore, the petitioner's registration under the CST Act, 1956 stood cancelled upon the petitioner's registration under the CGST Act, 2017 and thus, the petitioner is not entitled for the privilege of C-Form under the CST Act, 1956 read with the Rules of 1957. It has further been stated that the petitioner has not availed the facility of C-Form so far as High Speed Diesel is concerned, till 30-6-2017, therefore, the petitioner Company cannot be p

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effect from such date as may be notified on the recommendations of the Council. The GST Council till this date, admittedly and undisputedly, has not notified high speed diesel bringing it under the purview of the CGST Act, 2017. Therefore, the petitioner is entitled for issuance of C-Form under the CST Act, 1956 and its migration to the registration under the CGST Act, 2017 will be confined excluding the goods (high speed diesel), as there is no provision even under the CGST Act, 2017 that his registration under the CGST Act, 2017 would automatically cancel his registration under the CST Act, 1956 particularly, the goods which are included in Section 2(d) of the CST Act, 1956 and those have been excluded from the purview of the CGST Act, 2017 by Section 9(2) of the CGST Act, 2017, as by issuance of C-Form the petitioner would be entitled for concessional rate of tax. Therefore, the writ petition be allowed and the respondent State be directed to issue C-Form to the petitioner for the g

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e of C-Form for high speed diesel prior to 1-7-2017 and as such, high speed diesel is used by the petitioner for the purpose of operation of drill machine at mines, lifting and loading of limestone in dumper, use of diesel as fuel in dumper and other equipments for extraction of limestone from mines and its transportation, use of diesel in plant and machinery such as kiln and other machineries used in manufacture of clinker and cement etc.. Therefore, the petitioner is otherwise also not entitled for issuance of C-Form as he does not fulfill the criteria under Section 8(3)(b) of the CST Act, 1956 and as such, issuance of C-Form to the petitioner is not permissible and the writ petition is liable to be dismissed. He would finally submit that after coming into force of the CGST Act, 2017, the petitioner has not filed any return under the CST Act, 1956, as such, the writ petition deserves to be dismissed. 7. In rejoinder submission, Mr. Mehta would submit that the CST Act, 1956 and the Ru

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he CST Act, 1956. Replying to the submission of not filing return under the CST Act, 1956 after coming into force of the CGST Act, 2017, he would submit that C-Form has not been issued to the petitioner, despite request, therefore, he could not file return and the petitioner's representation has not been replied / answered. 8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and went through the record with utmost circumspection. 9. In order to judge the correctness of the plea raised at the Bar, it would be appropriate to notice the broad features of the CST Act, 1956 before entering into the merits of the matter. 10. The CST Act, 1956 has been enacted to formulate principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or commerce or outside a State or in the course of import into or export from India, to provide for the levy, collection and distribution of taxes on sales of go

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appropriate State under the Sales Tax Law of that State. 12. Under Section 7(1) of the CST Act, 1956, every dealer, who is liable to pay tax under the CST Act, 1956, should make an application for registration under the Act, to such authority in the appropriate State, as the Central Government may specify. The certificate of registration so issued is liable to be cancelled under sub-section (4) (b) of Section 7, if the dealer fails to pay any tax or penalty payable under the CST Act, 1956. 13. Sub-section (1) of Section 8 of the CST Act, 1956 carves out an exception. If the sale is to a registered dealer and if the sale is of the goods described in sub-section (3), the dealer need not pay tax at the rate prescribed by the local Sales Tax Law of the State in terms of sub-section (2). It is enough if such a person pays only 2%. Under sub-section (4) of Section 8, the dealer is obliged to furnish to the prescribed authority, a declaration duly filled and signed by the registered dealer to

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-section (1) of Section 13 of the CST Act, 1956, the Central Government has framed Rules known as the Central Sales Tax (Registration and Turnover) Rules, 1957. Rule 12 of the said Rules provides as under:- 12. (1) The declaration and the certificate referred to in sub-section (4) of Section 8 shall be in Forms C and D respectively: Provided that Form C in force before the commencement of the Central Sales Tax (Registration and Turnover) (Amendment) Rules, 1974, or before the commencement of the Central Sales Tax (Registration & Turnover) (Amendment) Rules, 1976, may also be used up to the 31st December, 1979 with suitable modifications: Provided further that a single declaration may cover all transactions of sale which take place in one financial year between the same two dealers: Provided also that where, in the case of any transaction of sale, the delivery of goods is spread over to different quarters in a financial year or of different financial years, it shall be necessary to

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he forms of declarations so lost. (3) Where a declaration form furnished by the dealer purchasing the goods or the certificate furnished by the Government has been lost, the dealer selling the goods, may demand from the dealer who purchased the goods or, as the case may be, from the Government, which purchased the goods, a duplicate of such form or certificate, and the same shall be furnished with the following declaration recorded in red ink and signed by the dealer or authorised officer or the Government, as the case may be, on all the three portions of such form or certificate,- I hereby declare that this is the duplicate of the declaration form/certificate No…………………..signed on……………and issued to………………………………who is a registered dealer of……………..(State) and whose registration certificate

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ould issue C Form, he has to maintain a detailed account of such C Forms obtained from the department prescribed under the State's taxation law. The C Form is a declaration to be issued only by the Sales Tax Authorities of the States concerned. By issuing declaration in C Form the purchasing dealer would be benefited as he is entitled to purchase goods by paying only concessional rate of tax of 4% as prescribed by the State concerned of the purchasing dealer otherwise the purchasing dealer has to pay tax at a higher rate besides additional taxes on such sales effected within the State where the selling dealer is situated. 18. Thus, the declaration (C Forms) are required by the registered dealer to purchase goods from other States at concessional tax rate under the CST Act, 1956. C Form is prescribed under Rule 12(1) of the Rules of 1957 as a declaration form for the purpose as specified under Section 8(4) of the CST Act, 1956 and if the registered dealer fails to procure C Form fro

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under: – (d) Goods means- (i) petroleum crude; (ii) high speed diesel; (iii) motor spirit (commonly known as petrol); (iv) natural gas; (v) aviation turbine fuel; and (vi) alcoholic liquor for human consumption 21. Thus, the amended definition of goods under the CST Act, 1956 includes high speed diesel and by virtue of the said amendment, the definition of goods given under the CST Act stands amended whereby high speed diesel was kept under the meaning of goods amongst other five items. 22. The Central Goods and Services Tax Act, 2017 was promulgated and brought into force with effect from 1-7-2017, which is an Act to make a provision for levy and collection of tax on intra-State supply of goods or services or both by the Central Government and the matters connected therewith or incidental thereto. Likewise, the Chhattisgarh Goods and Services Tax Act, 2017 (for short, 'the Chhattisgarh GST Act, 2017') was promulgated and brought into force with effect from 1-7-2017 which is a

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s connected therewith or incidental thereto. 23. At this juncture, it would be appropriate to notice the repeal and saving provision of the CGST Act, 2017 i.e. Section 174 of the CGST Act, 2017, which provides as under: – 174. Repeal and saving.-(1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), and the Central Excise Tariff Act, 1985 (5 of 1986) (hereafter referred to as the repealed Acts) are hereby repealed. xxx xxx xxx xxx xxx xxx xxx xxx xxx 24. The aforesaid provision of the CGST Act, 2017 contains a provision pertaining to repeal and saving

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ax Act, 1936 (30 of 1936), (hereinafter referred to as the repealed Acts) are hereby repealed. 26. The aforesaid provision of the State Act clearly provides that the Chhattisgarh Value Added Tax Act, 2005 shall apply only in respect of goods included in Entry 54 of the State List of the Seventh Schedule to the Constitution. Entry 54 of the State List of the Seventh Schedule to the Constitution of India as amended by the Constitution (One Hundred and First Amendment) Act, 2016, states as under: – 54. Taxes on the sale of petroleum, high speed diesel, motor spirit (commonly known as petrol), natural gas, aviation turbine fuel and alcoholic liquor for human consumption, but not including sale in the course of inter- State trade of commerce or sale in the course of international trade or commerce of such goods. 27. Thus, from the aforesaid analysis, it is quite vivid that the Chhattisgarh Value Added Tax Act, 2005 has not been repealed qua the items specified under the amended Entry 54 of

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Government on the recommendations of the Council. 30. Sub-section (2) of Section 9 of the CGST Act, 2017 and the Chhattisgarh GST Act, 2017 clearly provide that GST on crude oil, high speed diesel, aviation turbine, motor spirit (petrol) shall be levied with effect from the date as may be notified by the Government on the recommendations of the GST Council. Therefore, the CGST Act, 2017 has kept the aforesaid six goods away from the ambit of the CGST Act, 2017 and no notification has been issued by the Central Government on the recommendation of the GST Council imposing GST on high speed diesel at a prescribed rate. 31. Thus, the net effect of the aforesaid discussion is that after the promulgation of the CGST Act, 2017 and the State Act, the items mentioned in the amended Entry 54 of the State List of the Seventh Schedule to the Constitution are governed by the CST Act, 1956, as no notification has been issued even under Section 9(2) of the CGST Act, 2017 by the Central Government or

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ed to be issued 'C' Forms in respect of the natural gas purchased by it in the course of interstate sales and used by it for the generation of electricity. … 33. The Division Bench speaking through Avneesh Jhingan, J, held at the end of para 17 as under: – It is pertinent to note that till date, the Government has not issued a notification under either the CGST Act or the HGST Act. Hence inter-state sale of natural gas continues to be governed by the CST Act. 34. Their Lordships finally directed the State authorities to issue 'C' Forms by holding as under: – 28. In these circumstances, the writ petition is allowed. It is held that the respondents are liable to issue 'C' Forms in respect of the natural gas purchased by the petitioner from the Oil Companies in Gujarat and used in the generation or distribution of electricity at its power plants in Haryana. … 35. I respectfully agree and follow the principle of law laid down in the afore-stated judgment. 36. Th

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ecessary to be notified by the Central Government, neither the GST Council has recommended levy of GST on high speed diesel nor it has been notified by the Central Government particularly when prior to introduction of GST with effect from 1-7-2017, the competent legislature has already amended the definition of goods under Section 2(d) of the CST Act, 1956 and purposefully amended the definition of goods mentioning the same items which are barred under Section 9(2) of the CGST Act, 2017 whereby high speed diesel is included. 37. Next submission of the learned State counsel is that after introduction and promulgation of GST, the registration certificate of the petitioner issued under the provisions of the CST Act, 1956 and the rules made thereunder would automatically stand cancelled after his migration to the GST regime, has no legs to stand. The registration certificate issued under the CST Act, 1956 can be cancelled only after the initiation of proceeding as prescribed under Section

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ection 2(d) of the CST Act, 1956 including high speed diesel. 38. Further submission of the learned State counsel that since the petitioner did not avail the facility / privilege of 'C' Form with respect to high speed diesel prior to 1-7-2017, now, he cannot be allowed to use 'C' Form qua high speed diesel, deserves to be rejected, as if the petitioner is lawfully entitled and eligible for issuance of 'C' Form, he cannot be declined such facility, merely on the count that he did not avail such facility prior to 1-7-2017 as the CGST Act, 2017 or the CST Act, 1956 do not bar to avail such facility on the said ground. Non-furnishing of return by the petitioner raised by the State is equally fallacious. Even otherwise, there is no bar in the CGST Act, 2017 that the petitioner Company after migrating from the CST regime to the GST regime cannot hold registration certificate under the CST Act, 1956 confining it to the goods defined in Section 2(d) of the CST Act, 1956

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rnment has not notified high speed diesel to be within the ambit and sweep of the CGST Act, 2017. Thus, the petitioner's registration certificate under the CST Act, 1956 is still valid for the goods defined in Section 2(d) of the CST Act, 1956, including high speed diesel, and the petitioner is entitled for issuance of C-Form for inter-State purchase / sale of high speed diesel against the said C-Form. Accordingly, the respondents shall be liable and are directed to issue C-Form to the petitioner in respect of high speed diesel to be purchased by the petitioner and used in the course of manufacture of cement and for that, it is further directed to rectify and remove the error on their official website and entertain the petitioner's application submitted on-line on the official website seeking issuance of C Form to the petitioner for said goods. 40. The writ petition is allowed to the extent outlined herein-above leaving the parties to bear their own cost(s). – Case laws – Dec

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2018 (5) TMI 1409 – CESTAT NEW DELHI – TMI – Valuation – inclusion of subsidy in assessable value – Department is of the view to include such subsidy amounts in the value of the goods cleared by the appellants and demanded the differential duty – Held that: – identical issue has came up before the Tribunal in the case of M/s. Shree Cement Ltd. & other vs. CCE, Alwar [2018 (1) TMI 915 – CESTAT NEW DELHI], where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans – appeal allowed – decided in favor of appellant. – Excise Appeal No. 50675 of 2018, Excise Appeal No. 50692 of 2018 – Final Order No. 51951-51952 /2018 – Dated:- 18-5-2018 – Hon ble Mr. Justice ( Dr. ) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member ( Technical ) Shri G G Gupta, Advocate and Shri Mohit Gohlyan, CA for the Appellants Shri M R Sharma, AR for the Respondent ORDER Per: Justice ( Dr. ) Satish Chandra The prese

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leared by the appellants and demanded the differential duty. Being aggrieved, the appellants have filed the present appeals. 3. With this background, heard Shri G G Gupta, Shri Mohit Gohlyan and Shri M R Sharma, learned representatives for the parties and gone through the material available on record. 4. After hearing both sides and on perusal of material available on record, it appears that identical issue has came up before the Tribunal in the case of M/s. Shree Cement Ltd. & other vs. CCE, Alwar [ Final Order Nos. 50189- 50191/2018 dated 18.1.2018] as also in M/s. UltraTech Cement Ltd. vs. CCE, Jaipur I [Final Order No. 51129/2018 dated 28.3.2018] wherein it was observed that : 4. After hearing both sides and on perusal of record, it appears that identical issue has come up before the Tribunal in the case of Shree Cement Ltd. vs. CCE, Alwar (Final Order No. 50189 – 50191/2018 dt. 18.01.2018) where it was observed that: 7. We have heard both sides at length and perused the appeal

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s cannot be considered as actual payment of VAT. 8. Both sides have referred to the decision of the Apex Court in the case of Super Synotex India Ltd. In the above decision the Apex Court has categorically held that after 01/07/2000, unless the sales tax/VAT is actually paid to the good, no benefit towards excise duty can be given in terms of Section 4(3)(d). However, we note that the Tribunal in the case of Welspun Corporation Ltd. (Supra) has distinguished the decision of the Apex Court in the light of Gujarat VAT Act, 2003. In the Welspun Corporation Ltd. case, the assesse had opted for remission of tax scheme under which a portion of the VAT paid was remitted back to the assessee. The Tribunal held that such subsidy amounts are not required to the included in the transaction value. 9. In the present case we know that for the initial period the assessees are required to remit the VAT recovered by them at the time of sale of the goods manufactured. A part of such VAT is given back to

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ompetent Authority was required to necessarily pass order for remission of such tax separately for each tax period. The remission of tax is thus directly related to capital investment in fixed asset. There was no option to claim exemption from payment of sales tax. The quantum of remission was based upon the investment made in the fixed assets. The condition of the remission amongst others included to remain in production, employment of certain percentage of persons in assessee unit, and numerous other conditions as brought out in Para 9 of the impugned Order-in-Appeal. 11. By following the decision of the Tribunal in the Welspun Corporation Ltd. case we conclude that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans. 12. In the result, the impugned orders are set aside and the appeals are allowed. 5. By following our earlier orders (supra), we set aside the impugned order and allow the appeals filed by the appe

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GST – States – 09/2018–C.T./GST – Dated:- 18-5-2018 – GOVERNMENT OF WEST BENGAL DIRECTORATE OF COMMERCIAL TAXES 14, BELIAGHATA ROAD, KOLKATA-700015 NOTIFICATION BY THE COMMISSIONER OF STATE TAX Notification No. 09/2018-C.T./GST Dated: 18.05.2018 Notification No. 23/2018 – State Tax In exercise of the powers conferred by section 168 of the West Bengal Goods and Services Tax Act, 2017 (West Ben. Act XXVIII of 2017) read with sub-rule (5) of rule 61 of the West Bengal Goods and Services Tax Rules,

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Goods and Services Tax – 9/2018 – Dated:- 18-5-2018 – MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION No. 9/2018-Union Territory Tax New Delhi, the 18th May, 2018 G.S.R. 465(E).-In exercise of the powers conferred under sub-section (1) of Section 22 of the Union Territory Goods and Services Tax Act, 2017 (No. 14 of 2017) and section 164 of Central Goods and Services Tax Act, 2017 (No. 12 of 2017) read with clause (d) of sub-rule 14 of rule 138 of the Central Goods and Services Tax Rule

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Goods and Services Tax – 8/2018 – Dated:- 18-5-2018 – MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION No. 8/2018-Union Territory Tax New Delhi, the 18th May, 2018 G.S.R. 464(E).-In exercise of the powers conferred under sub-section (1) of Section 22 of the Union Territory Goods and Services Tax Act, 2017 (No. 14 of 2017) and section 164 of Central Goods and Services Tax Act, 2017 (No. 12 of 2017) read with clause (d) of sub-rule 14 of rule 138 of the Central Goods and Services Tax Rule

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Goods and Services Tax – 7/2018 – Dated:- 18-5-2018 – MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION No. 7/2018-Union Territory Tax New Delhi, the 18th May, 2018 G.S.R. 463(E).-In exercise of the powers conferred under sub-section (1) of Section 22 of the Union Territory Goods and Services Tax Act, 2017 (No. 14 of 2017) and section 164 of Central Goods and Services Tax Act, 2017 (No. 12 of 2017) read with clause (d) of sub-rule 14 of rule 138 of the Central Goods and Services Tax Rule

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Goods and Services Tax – 23/2018 – Dated:- 18-5-2018 – Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs Notification No. 23/2018 – Central Tax New Delhi, the 18th May, 2018 G.S.R. 462 (E).- In exercise of the powers conferred by section 168 of the Central Goods and Services Tax Act, 2017 (12 of 2017) read with sub-rule (5) of rule 61 of the Central Goods and Services Tax Rules, 2017, the Central Government, on the recommendations of the C

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Goods and Services Tax – Started By: – Amlan Mohanty – Dated:- 17-5-2018 Last Replied Date:- 22-6-2018 – Sir, I am a civil contractor.I work with Police Housing corporation. I receive bill almost in every month and 12 % GST for construction work is allocated for GST purpose and which is given ro me. I file my GST return every month till March 18 GSTR 3B has also been filed, but by mistakenly during filing i filed it B2C instead of B2B by putting the GSTIN NO OF POLICE HOUSING corporation . Now the corporation is telling me as i had filed in B2C so the GST AMMOUNT is not visible in their GST NO and they will not be able to get input tax credit for the GST I filed. For this reason they have withhold my payment . I have already filed March 20

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Issue related to taxability. of tenancy rights under GST. – GST – States – 12-28/2017-18-EXN-GST-(528)-15710-727 – Dated:- 17-5-2018 – Circular No. 12-28/2017-18-EXN-GST-(528)-15710-727 Government of Himachal Pradesh, Excise and Taxation Department To 1. The Additional Excise and Taxation Commissioner, South Zone. Shimla-9, H.P. 2. The Jt. Commissioner of State Taxes and Excise Central zone, North zone, Flying squad NZ/ SZ/ CZ. 3. The Director (Directorate Treasuries, Accounts and Lotteries) Block No-23 SDA Complex, Kasumpati, Shimla- 171009. 4. The Dy. Commissioner of State Taxes and Excise, Shimla, Solan, BBN Baddi, Sirimour, Bilaspur, Hamirpur, Mandi, Kullu, Chamba, Kangra, Revenue Distt Nurpur and Una, H.P 5. The Asstt. Commissioner of

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ch is also known as pagadi system the tenant acquires, tenancy rights in the property against payment of tenancy premium (Pagdi). The landlord be owner of the property but the possession of the same lies with the tenant. The tenant pays periodic rent to the landlord as long as he occupies the property. The tenant also usually has the option to sell the tenancy right of the said property and in such a case has to share a percentage of the proceed with owner of land. as laid down in their tenancy agreement. Alternatively, the landlord pays to tenant the prevailing tenancy premium to get the property vacated. 3. As per section 9(1) of the HPGST Act there shall be levied state tax on the intra-State supplies of services. The scope of supply inc

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such transaction thus should not be subjected to GST. is not relevant. Merely because a transaction or a supply involves execution of documents which may require registration and payment of registration fee and stamp duty would not preclude them from the scope of supply of goods and services and from payment of GST. The transfer of tenancy rights cannot be treated as sale of land or building declared as neither a supply of goods nor of services in para 5 of Schedule III to HPGST Act. 2017. Thus a consideration for the said activity shall attract levy of GST. 5. To sum up, the activity of transfer of tenancy rights' is squarely covered under the scope of supply and taxable per-se. Transfer of tenancy rights to a new tenant against consid

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2018 (8) TMI 485 – CESTAT KOLKATA – TMI – Classification of services – the appellant is rendered by various services, which the Revenue is attempting to classify under the Builders Special Services classifiable under Chapter Heading 65(105)(zzzu) of the Finance Act,1994 – Principles of Natural Justice – Held that:- On going through the various documents enclosed in the appeal memorandum, as such, agreement of sale, bank statement, bills provided by the various vendors, it is found that the appellant has returned excess amount to the flat owners after collection of various fees, as such, Association formation deposit, Common meter deposit, common maintenance deposit, common electricity charges etc. The same has been rendered after collection of actual amount spent for payment of this deposit/fees/base area on behalf of 120 flat owners – thus, this payments are only actual charges paid to the various statutory bodies and for electricity maintenance in common area and the same is therefo

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bh Bhutra, Adv. for the Appellant (s) Shri S. S. Chattopadhyay, Supdt. (A.R.) for the Revenue ORDER Per Shri Bijay Kumar : The present appeal has been filed the Appellant against the impugned Order-in-Appeal No.219/ST-I/KOL/2017 dt.-26.09.2017 passed by Commissioner of CGST & Ex. (Appeals), Kolkata, vide which the ld.Commissioner (Appeals) has modified the order passed by the adjudicating authority to the extent that he set aside the demand of ₹ 46,814/- under Rule 14 and penalty under Rule 15 of Cenvat Credit Rules, 2004. He has also ordered the appellant to pay interest for intervening period under Section 75 of the Act and imposed penalty of ₹ 10,000/- under Section 77 of the Act. The rest of the order was upheld. 2. Briefly facts of the case are that the appellant is engaged in providing taxable service as well as recipient of taxable service as per Section 68 (1) & 68 (2) of the Finance Act, 1994 (hereinafter referred to as the said Act) respectively read with

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sold by the appellant pertaining to (i) Association formation deposit, (ii) Common meter security deposit, (iii) Deposit for common maintenance for six months, (iv) Deposit for electricity charges for common areas of six months. The appellant-assessee discharged the service tax liability on the total sale price, but did not discharge the service tax liability on the amount received on account of different head as mentioned above. It was felt by the Department that the services provided under the aforesaid head is to be categorized under Builders Special Service and such deposit is to be added in the gross amount in the service tax. The Department relied upon the audited balance sheet. 3. The ld. Counsel appearing on behalf of the appellant submitted that the service tax has been raised for the period from 2010-2011 to 2013 on account of aforementioned services under the category of (a) Builders Association Special Service to the extent of ₹ 3,59,844/- (b) Availment of Cenvat Cred

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g adjustment towards various fees. The ld.Advocate also submitted that the impugned order classifying the services under Reverse Charge Mechanism (RCM) under Manpower Recruitment Services is not sustainable on the ground that the appellant has availed various services from vendors as plumbing services, pipe laying and fittings, tap box fitting etc. and the payment has been late against the plumbing bill. In providing of services discharging service tax on this service, the appellant is not in receipt of manpower recruitment services. The ld.Advocate also stated that the impugned demand is barred by limitation as the extended period of limitation is not invokable in this case. As there is no malafide intention, suppression of facts and willful mis-statement, the ld.Advocate relied upon the decision of the Hon ble Apex Court in the case of Continental Foundation Jt. Venture Vs. CCEx., Chandigarh I : 2007 (216) ELT 177 (SC). He has also relied upon the decision of the Hon ble Supreme Cour

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in the notice the period for which the escaped duty may be reclaimed would be confined to one year and in the absence of such a finding in the order passed under Section 11A(2) there would be no application of the penalty provision in Section 11AC of the Act. He has also relied upon the decision of the Tribunal in the case of Saboo Coating Ltd. Vs. CCEx, Chandigarh : 2016 (36) STR 447 (Tri.- Del.), wherein the Tribunal has held as under : 4. As regards limitation, I find that there is no dispute by the lower authorities that the credit was availed and duly reflected in the returns. If there is no column in the returns to show the nature of the input services, the assessee cannot be blamed for not providing the details of the input services. It is well settled that non-disclosure of the fact which is not required to be disclosed in the law, cannot attribute any suppression to the assessee. As such, the reasoning of the Commissioner (Appeals) that appellants have not disclosed the digit

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ppellant has returned excess amount to the flat owners after collection of various fees, as such, Association formation deposit, Common meter deposit, common maintenance deposit, common electricity charges etc. The same has been rendered after collection of actual amount spent for payment of this deposit/fees/base area on behalf of 120 flat owners. 7. In view of the above, we are of the view that this payments are only actual charges paid to the various statutory bodies and for electricity maintenance in common area and the same is therefore, not liable to service tax and if so, abatement is available to them under the Service Tax Law. 8. Further, we find that the adjudicating authority has passed not speaking order without discussing the submissions made by the Appellant and passed very cryptic order and has not quantified the demand in respect of penalty imposed under Sections 75, 77 of the Act and Rule 15 of Cenvat Credit Rules, 2004. In the impugned order, the Commissioner (Appeals

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2018 (6) TMI 1407 – CESTAT HYDERABAD – TMI – CENVAT credit – input services – food provided to the workers outsourced by the appellant – whether or not the credit of service tax on outdoor catering services should be allowed in view of the statutory requirement under the Factories Act? – Held that:- Tribunal being a creation of law, has no power to amend, enlarge, restrict or otherwise modify the Act or Rules. This position does not change even if the appellant has an obligation under the Factories Act or any other law and Tribunal cannot enlarge the scope of CENVAT Credit Rules.
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The matter should be referred to Hon'ble President for constituting a Larger Bench to resolve the issue – matter referred to Larger Bench. – Appeal No. E/31224/2017 – IO/27/2018 – Dated:- 17-5-2018 – Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Y. Srinivasa Reddy, Advocate for the Appellant. Shri Das Thavanam, Superintendent/AR for the Respondent. [Order per: P.VENKATA SUBBA RAO] 1. Heard both sides and

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pears that the canteen contractor is paid by the man power service provider for the subsidised food although it is not evident from the records. In turn, the man power service provider bills the appellant for the food subsidy including the service tax thereon. The issue in dispute is the credit of the service tax element on this food subsidy. It is the case of the Revenue that this food subsidy amounts to outdoor catering services for employees and the credit of the service tax thereon is inadmissible in view of the specific exclusion in the Rules. The appellant argued that although it is called food subsidy, in fact, it is manpower outsourcing service and it is also a component of the charges paid to the manpower supplier. The department, on the other hand, argues that the bill is raised specifically for food subsidy which is provided by outside canteen contractor and paid for by the appellant. Although the beneficiaries of the food subsidy are not regular employees of the appellant,

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matter was referred to Hon'ble President for constituting Larger Bench to resolve the conflict between the decisions of different Benches. Hence, this case should also be referred to Larger Bench. 3. I have gone through the records of the case and I find one of the elements to be decided is whether or not the credit of service tax on outdoor catering services should be allowed in view of the statutory requirement under the Factories Act. This was specifically argued by the appellant. I am of the view that the Tribunal being a creation of law, has no power to amend, enlarge, restrict or otherwise modify the Act or Rules. This position does not change even if the appellant has an obligation under the Factories Act or any other law and Tribunal cannot enlarge the scope of CENVAT Credit Rules. However, as the case of Wipro Limited (supra) has been referred to Larger Bench, I find no reason to take a different stand in this case. Accordingly, I find that the matter should be referred to

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2018 (6) TMI 235 – CESTAT MUMBAI – TMI – Penalty u/s 11AC of CEA, 1944 – trading activity of bought out items – CENVAT credit in respect of common input service – The case of the department is that the appellant was supposed to reverse the CENVAT credit under Rule (3A) of the CCR 2004 attributed to the trading activity being an exempted service – applicability of Rule 14 – Held that:- As per Rule 6(3A), it can be seen that the only requirement is to pay the proportionate cenvat credit along with interest @ 24%. There is no provision for imposition of penalty.
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Rule 14 is applicable only in case where the cenvat credit is wrongly taken and utilized. In the present case, it is not a case of wrong availment/utilization of cenvat credit but the demand under Rule 6(3A). Therefore, Rule 14 is not applicable – there is no specific provision unlike in the case of duty evasion or wrong availment of credit for imposition of penalty under Section 11AC.
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Revenue relied upon the case of

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) of the Cenvat Credit Rules, 2004 attributed to the trading activity being an exempted service. The demand of cenvat credit was confirmed and a penalty of equal amount was imposed under Section 11AC. The learned Commissioner (Appeals) upheld the order-in-original. Therefore, the appellant is before me. 3. Shri Rajesh Ostwal, learned counsel appearing on behalf of the appellant, submits that the appellant has been availing cenvat credit on common input service prior to 1.4.2012 and manufacturing the excisable goods as well as doing the trading activity. From 1.4.2012, the trading activity was made exempted service in terms of clause (e) of Rule 2 of the Cenvat Credit Rules, 2004. Since the appellant was not aware of the trading activity being an exempted service from 1.4.2012, they continued the practice adopted prior to 1.4.2012. Therefore, there was no mala fide intention to evade any payment of duty. Therefore, there was no suppression of fact on the part of the appellant. He furthe

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bmits that the appellant has recorded the trading activity and availment of cenvat credit in their books. Therefore, the case was also made out on the basis of records. As per Section 11AC(1B) of the Central Excise Act, 1944 if the case is made out on the basis of records, penalty shall stand reduced to 50%. Therefore, in any case, 100% penalty is not correct. 4. Shri M.R. Melvin, learned Superintendent (AR) appearing on behalf of the Revenue, reiterates the finding of the impugned order. He placed reliance on the following judgments:- (i) Bajaj Hindustan Ltd. vs. UOI – 2013 (295) ELT 20 (All.). (ii) CCE, Chennai-II vs. SRF Ltd. – 2014 (305) ELT 519 (Mad.). 5. I have carefully considered the submissions made by both the sides and perused the records. I find that in the present case, the demand is under Rule 69(3A) of the Cenvat Credit Rules, 2004, which reads as under:- (3A) For determination of amount required to be paid under clause (ii) of sub-rule (3), the manufacturer of goods or

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s and input services lying in balance as on the date of exercising the option under this condition; (b) the manufacturer of final products or the provider of output service shall determine the credit required to be paid, out of this total credit of inputs and input services taken during the month, denoted as T, in the following sequential steps and provisionally pay every month, the amounts determined under sub-clauses (i) and (iv), namely :- (i) the amount of CENVAT credit attributable to inputs and input services used exclusively in or in relation to the manufacture of exempted goods removed or for provision of exempted services shall be called ineligible credit, denoted as A, and shall be paid; (ii) the amount of CENVAT credit attributable to inputs and input services used exclusively in or in relation to the manufacture of non-exempted goods removed or for the provision of non-exempted services shall be called eligible credit, denoted as B, and shall not be required to be paid; (ii

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roducts were manufactured or no output service was provided in the preceding financial year, the CENVAT credit attributable to ineligible common credit shall be deemed to be fifty per cent. of the common credit; (v) remainder of the common credit shall be called eligible common credit and denoted as G, where,- G = C – D; Explanation.- For the removal of doubts, it is hereby declared that out of the total credit T, which is sum total of A, B, D, and G, the manufacturer or the provider of the output service shall be able to attribute provisionally and retain credit of B and G, namely, eligible credit and eligible common credit and shall provisionally pay the amount of credit of A and D, namely, ineligible credit and ineligible common credit. (vi) where manufacturer or the provider of the output service fails to pay the amount determined under sub-clause (i) or sub-clause (iv), he shall be liable to pay the interest from the due date of payment till the date of payment of such amount, at

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denoted as B(Annual); (iii) common credit left for further attribution shall be denoted as C(Annual) and calculated as, – C(Annual) = T(Annual) – [A(Annual) + B(Annual)]; (iv) common credit attributable towards exempted goods removed or for provision of exempted services shall be called Annual ineligible common credit, denoted by D(Annual) and shall be calculated as, – D(Annual) = (H/I) x C(Annual); where H is sum total of- (a) value of exempted services provided; and (b) value of exempted goods removed; during the financial year; where I is sum total of – (a) value of non-exempted services provided, (b) value of exempted services provided, (c) value of non-exempted goods removed; and (d) value of exempted goods removed; during the financial year; (d) the manufacturer or the provider of output service shall pay on or before the 30th June of the succeeding financial year, an amount equal to difference between the total of the amount of Annual ineligible credit and Annual ineligible com

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eligible common credit, namely, [{(A+D) aggregated for the whole year)} – {A(Annual) + D(Annual)}], where the former of the two amounts is greater than the later; (g) the manufacturer of the goods or the provider of output service shall intimate to the jurisdictional Superintendent of Central Excise, within a period of fifteen days from the date of payment or adjustment, as per the provisions of clauses (d), (e) and (f) , the following particulars, namely :- (i) details of credit attributed towards eligible credit, ineligible credit, eligible common credit and ineligible common credit, month-wise, for the whole financial year, determined as per the provisions of clause (b); (ii) CENVAT credit annually attributed to eligible credit, ineligible credit, eligible common credit and ineligible common credit for the whole of financial year, determined as per the provisions of clause (c); (iii) amount determined and paid as per the provisions of clause (d), if any, with the date of payment of

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t Rule 14 is applicable only in case where the cenvat credit is wrongly taken and utilized. In the present case, it is not a case of wrong availment/utilization of cenvat credit but the demand under Rule 6(3A). Therefore, Rule 14 is not applicable. Therefore, there is no specific provision unlike in the case of duty evasion or wrong availment of credit for imposition of penalty under Section 11AC. The judgments relied upon by the learned counsel also support this view. As regards the judgment relied upon by the Revenue, it is observed that in the case of Bajaj Hindustan Ltd. (supra), the appellant had wrongly availed the cenvat credit. In the case of SRF Ltd. (supra), the issue is demand of differential duty. Therefore, in none of these two cases, the issue of demand under Rule 6(3A) is involved. Therefore, these judgments are entirely on the different facts as compared to the facts of the present case. 6. As per my discussion made hereinabove, the penalty was wrongly imposed under Sec

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2018 (5) TMI 1650 – PUNJAB AND HARYANA HIGH COURT – TMI – Implementation of GST – e-bill on Renting Shuttering Material to builders, contractors and individuals – invocation of writ jurisdiction – Held that: – Learned counsel for the petitioners was unable to demonstrate that any cause of action arises in favor of the petitioners at this stage to invoke the extra ordinary writ jurisdiction of this Court under Articles 226/227 of the Constitution of India – petition dismissed. – CWP No.12490 of 2018 (O&M) Dated:- 17-5-2018 – MR. AJAY KUMAR MITTAL, ACJ. AND MR. TEJINDER SINGH DHINDSA, J. For The Petitioners : Mr. Brijesh Nandan, Advocate ORDER AJAY KUMAR MITTAL, ACJ.(ORAL) The petitioner has approached this Court under Articles 226 /227 of

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2018 (5) TMI 1246 – CESTAT HYDERABAD – TMI – SAD Refund – N/N. 102/97-Cus. – Jurisdiction – refund applied before wrong officer – Held that: – Special Additional Duty (SAD) @ 4% was introduced to provide a level playing field to the domestic manufacturers who suffer VAT (which is not leviable on the imports). If the imported goods are further sold on payment of VAT, the SAD is refunded as per the notification 102/97-Cus.
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The technical fault of the assessee in applying for the refund to the wrong officer and the fault of the departmental officers in sanctioning the refund are both Revenue neutral.
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Appeal dismissed – decided against Revenue. – Appeal No. E/31339/2017 – FINAL ORDER No. A/30566/2018 – Dated:- 17-5-2018 – Hon ble Mr. P. V. Subba Rao, Member ( Technical ) Shri P.S. Reddy, Asst. Commissioner/AR for the Appellant None for the Respondent ORDER [ Order Per : P. Venkata Subba Rao ] 1. When this matter was called, nobody appeared on behalf of the respondents. The Ld.

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a certificate was not appended on the sale invoices. 3. Aggrieved, the assessee appealed before the Commissioner (Appeals) who, vide OIAs No. 36-42/2014(V-I)CE dated 10.10.2014 allowed the appeal on the ground that if goods are exempted from BCD and CVD these duties are not applicable to such goods and hence if they are not paid there is no violation of condition in Para 2 (a) of the Notification. He held that as far as condition in para 2(b) of the notification is concerned, where goods are sold on a commercial invoice, no such endorsement is required and merely not mentioning the SAD on the invoice would suffice as laid down by the Principal Bench of the Tribunal in the case of RKG International Pvt. Ltd. Vs Commissioner of C.Ex. &Cus. Noida [2013 (290)ELT 253 (Tri-Del)] and remanded it back to the Assistant Commissioner to decide the refund. The appeal of the Commissioner (Appeals) was not contested by the Department on grounds of monetary limits and therefore, has become final.

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Department that the assessee is not entitled to the SAD refund but only that it was sanctioned by an unauthorised officer and hence needs to be set aside. 5. I have heard the arguments of the Ld. DR and perused the records of the case. In this case, the only condition in dispute is that the refund application should have been filed with the jurisdictional officer of Customs. The application was filed with the wrong officer, viz., Assistant Commissioner, Vizianagaram. He could have returned the application directing it to be filed before the jurisdictional officer. Instead, he considered it on merits and passed an order rejecting it. The department appealed to Commissioner (Appeals) and it does not emerge from the OIA that the department raised this issue of jurisdiction before the Commissioner (Appeals) either. When the Commissioner (Appeals) remanded the matter back to the to the lower authority for sanction of refund, this order of the Commissioner (Appeals) was also not contested b

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2018 (5) TMI 1205 – CESTAT HYDERABAD – TMI – CENVAT credit – it was found that the appellant had not reversed the CENVAT credit under Rule 6(3) on the exempted goods – What is the meaning of expression “which are exempt from the duties of customs” under rule 6(6)(vii) of CENVAT Credit Rules, 2004 – does it include only goods which are fully exempted or it also includes the goods which are partially exempted from the customs duty? – is the appellant required to reverse the credit as per Rule 6(3) of CENVAT credit Rules?
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Held that: – The harmonious interpretation of the expression “goods which are exempted from duties” with the remaining part of the scheme of CENVAT credit rules would require one to interpret as the goods which are fully exempted from duty. Hence, even 2.5% duty of customs will not make the goods “which are exempted from duty’ – the appellant is not exempted from reversing the credit as per Rule 6(3) of CENVAT Credit Rules.
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Whether the assessee has resorted

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. A/30567/2018 – Dated:- 17-5-2018 – Hon ble Mr. P.V. Subba Rao, Member (Technical) Shri V.S. Sridhar & Shri P. Venkata Prasad, CAs for the Appellant Shri B. Guna Ranjan, Superintendent /AR for the Respondent ORDER [ Order Per : P. Venkata Subba Rao ] 1. Appellant assessee are manufacturers of hydraulic/fluid couplings and they availed credit of duty paid on inputs/tax paid on input services under CENVAT Credit Rules (CCR), 2004. Their final goods are cleared both on payment of duty and without payment of duty to M/s NTPC Limited under an exemption notification. During audit by Central Excise authorities, it was found that the appellant had not reversed the CENVAT credit under Rule 6(3) on the exempted goods. It was pointed out and the appellant reversed an amount of ₹ 24,18,000/- which is 6% of the value of exempted goods and also paid interest applicable thereon. Thereafter, a show cause notice dated 29.09.2015 was issued to the appellants seeking to appropriate the aforesa

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11A(2) as they have reversed the credit and paid the interest, no show cause notice should have been issued against them. Hence, the SCN is not valid. ii) Rule 6(6) of CENVAT Credit Rules, 2004 reads as follows: (6) The provisions of sub rules (1), (2), (3), and (4) shall not be applicable in case the excisable goods removed without payment of duty are either – (i) …………………; or (ii) ………………..; or (iii) ………………..; or (iv) ……………….;or (v) ………………..; or (vi) ………………..; or (vii) ………………..; or (viii) All goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under sub-section (1) of Section 3 of the said Customs Tariff Act when imported into India and are supplied, – (a) Against International Competitive Bidding; or (b) To a power project from which power supply has been tied up through tariff based competi

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ion. 4. The extended period of limitation is not invokable as the appellant have not wilfully contravened any Rule with intent to avoid payment of duty and had, in fact, provided all relevant information in their returns for the relevant period. Hence, wilful suppression of facts and violation of any Act or Rules with the intent to avoid payment of duty cannot be invoked. 5. The appellants are under bonafide belief that they are eligible to the impugned credit in terms of Rule 6(6)(vii) and hence extended period of limitation cannot be invoked. Interest and penalty are not payable or imposable as CENVAT Credit itself is not liable to be reversed. 6. During the hearing, Ld. Consultant appeared on behalf of the appellant and strongly reiterated the above arguments. 7. Ld. DR, on the other hand, vehemently contested this position and argued that appellant is not entitled to CENVAT credit since he was not covered by the exemption under rule 6(6)(vii) inasmuch as similar goods if imported t

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per Rule 6(3) of CENVAT credit Rules? (ii) Has appellant resorted to fraud, wilful misstatement, suppression of facts or violated any provisions of the Act of the Rules with an intention to avoid payment of duty resulting in extended period of limitation? (iii) Is the appellant liable to pay interest and penalty? 9. I proceed to decide these issues. The words goods which are exempted are not defined in CENVAT Credit Rules 2004. However, the words exempted goods and exempted services are defined in the Rules. Both these expressions would mean that they are exempted on the whole of the duty or tax or chargeable to nil rate of duty. The expression exempted goods is used at several places in CENVAT Credit Rules, 2004 and in Rule 5(a) the words products which are exempted is used and in Rule 6(6)(viii) the expression goods which are exempted is used. I could not find any legal precedent in which this expression under rule 6(6)(vii) has been interpreted. It has been held by Hon ble Supreme

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are chargeable nil rate of duty, no CENVAT credit is admissible. This principle has been well established and the rates of duty on the inputs and final products are immaterial. Even if the rate of duty of final products is merely 1% the credit of duty paid on inputs is available. However, if the final products are exempted or chargeable to nil rate of duty, no credit is admissible. This has been made clear in Rule 6(1) of CENVAT credit Rules 2004. Provisions have been made under sub rules 2, 3 & 4 of Rule 6, to ensure that where some inputs are used for exempted goods while others are used for goods on which duty has been paid, credit is available only to the extent the imports are used in dutiable goods. The harmonious interpretation of the expression goods which are exempted from duties with the remaining part of the scheme of CENVAT credit rules would require one to interpret as the goods which are fully exempted from duty. Hence, even 2.5% duty of customs will not make the good

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r Rules, with an intent to avoid payment of duty. I find from the records presented during hearing that the assessee in fact had filed returns in ER-I in which under the head duty payable for clearance , they have declared that they have availed the benefit of notification No. 12/2012. Under the head details of CENVAT credit taken and utilised, they have shown the credit utilised for payment of amount in terms of Rule 6 of CENVAT credit Rules as zero. Thus, it is evident that the assessee had declared both the fact that they have availed the exemption notification and also that they have not reversed any CENVAT credit, in their ER-I returns filed with the department. I do not find that they have suppressed any facts or misstatement or violated any act of Rules with an intent to evade payment of duty. It appears that the Officer who scrutinised the returns, has not pointed out that they have not reversed the credit and only audit discovered and pointed it out. I, therefore, find that th

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Goods and Services Tax – Levy of GST – composite contracts – The applicant supplies works contract service, of which freight and transportation is merely a component and not a separate and independent

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Goods and Services Tax – Works Contract – transaction of setting up and operation of a solar photovoltaic plant is in the nature of a works contract – cannot be bifurcated for levy of GST @ 5% on good

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2018 (10) TMI 257 – AUTHORITY FOR ADVANCE RULING – UTTAR PRADESH – 2018 (17) G. S. T. L. 45 (A. A. R. – GST) – Classification of Supply – composite or mixed supply? – supply of comprehensive annual maintenance service – principal supply – place of provision of service – service recipient – taxability.
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Whether supply of comprehensive annual maintenance service which may also involve incidental supply of spare parts/ goods should be classified as a composite supply or mixed supply?
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In case the said contract is considered as composite supply, what is the principal supply between goods or services?
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In case goods are considered as principal supply, how the taxability should be determined considering: i. The contract would entail supply of various goods falling under different tax brackets; ii. These goods would be supplied on a need basis as and when required at different point(s) of time and iii. There is no fixed value ascribed for goods in the contract considering the

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should be naturally bundled; c. The taxable supplies should be supplied in conjunction with each other; and d. One taxable supply should be a principal supply – In such case, the supply which is the principal supply is treated as the main supply and the entire transaction should be eligible to GST as per the principal supply.
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Where the service provider and service recipient of a service are located in India, the provisions of Section 12 of the of IGST Act, 2017 determine the place of supply of services. Sub-section (10) of Sec. 12 ibid enjoins that place of supply if service on-board a train shall be the first scheduled points of departure of the convenience. If the location of the supplier and place of are not in the same State or Union territory, it shall be treated as inter-State supply of Services and IGST shall be levied, otherwise CGST & SGST shall be levied – If the supply of services is not made on-board a train, the location of a registered service recipient shall be th

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alue, SGST @ 9% of the taxable value or IGST @ 18% of the taxable value.
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Where the service provider and service recipient of a service are located in India, the provisions of Section 12 of the IGST Act, 2017 determine the place of supply of services – The place of supply of services on board a conveyance, including a vessel, an aircraft, a train or a motor vehicle, shall be the location of the first scheduled point of departure of that conveyance for the journey. – Order No. 4 Dated:- 16-5-2018 – Shri Sanjay Kumar Pathak, Member (State Tax) and Dinesh Kumar, Member (Central Tax) ORDER M/s. GE Diesel Locomotive Private Limited, Locomotive Shed Roza, Post Roza RS, Shahjanpur, Uttar Pradesh (hereinafter called the applicant) is a registered assessee under GST having GSTN : 09AAGCG1589HIZA. 2. The applicant is engaged in the business of import and manufacture of rail locomotive engines for supply to Indian Railways. The applicant had made a bid for a tender floated by the Indian Rai

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i. The contract would entail supply of various goods falling under different tax brackets. ii. These goods would be supplied on a need basis as and when required at different point(s) of time. iii. There is no fixed value ascribed for goods in the contract considering these goods would be supplied depending upon condition of the locomotive at the time of maintenance. (d) In case services are considered as principal supply, what tax rate should be applicable? (e) In case of the said contract, what is the relevant place of supply and type of tax which needs to be discharged (i.e. CGST & SGST or IGST)? 4. The applicant was granted a personal hearing on 20-4-2018. Shri Ankush Goel, Tax Head, M/s. GE Diesel Locomotive Private Ltd., and Rjeev Dewan, Consultant, M/s. GE Diesel Locomotive Private Ltd. appeared on behalf of the applicant. In the written submission, the applicant has submitted that they are engaged for supplying 1000 locomotives as well as ensuring comprehensive annual maint

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lly bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply" Illustration – Where goods are and transported with insurance, the supply of goods, packing materials, transport and insurance is a composite supply and supply of goods is a principal supply. And as per Section 2(74) of the CGST Act, 2017/SGST Act, 2017 has defined the term 'mixed supply' to mean – "two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply" Illustration – A supply of a package consisting of canned foods, sweets, chocolates, cakes, dry fruits, aerated drinks and fruit juices when supplied for a single price is a mixed supply. Each of these items can be supplied separately and is not dependent on any other. It shall not be a mixed supply if these items are supplied sepa

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, namely- (a) a composite supply comprising two or more supplies, one of which is a principal supply, shall be treated as a supply of such principal supply;". 7. The essential conditions for a supply to qualify as composite supply can be highlighted as under : a. Two or more taxable supplies of goods or services or both; b. The taxable supplies should be naturally bundled; c. The taxable supplies should be supplied in conjunction with each other; and d. One taxable supply should be a principal supply. In such case, the supply which is the principal supply is treated as the main supply and the entire transaction should be eligible to GST as per the principal supply. 8. Section 10(1)(a) of the Integrated Goods and Services Tax Act, 2017 ("the IGST Act") provides for determination of the place of supply of goods. In case of supply involving movement of goods, the place of supply would be the place where the goods are handed over to the recipient. The relevant extract has be

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GST@ 9% of the taxable value or IGST @ 18% of the taxable value. Where the service provider and service recipient of a service are located in India, the provisions of Section 12 of the of IGST Act, 2017 determine the place of supply of services. Sub-section (10) of Sec. 12 ibid enjoins that place of supply if service on-board a train shall be the first scheduled points of departure of the convenience. If the location of the supplier and place of are not in the same State or Union territory, it shall be treated as inter-State supply of Services and IGST shall be levied, otherwise CGST & SGST shall be levied. If the supply of services is not made on-board a train, the location of a registered service recipient shall be the place of supply of service as per Section 12(2) ibid. 11. The jurisdictional Commissioner, CGST i.e. the Commissioner, CGST & CX, Lucknow has also submitted views on the above said Advance Ruling application which are as under – The activity of the party is a s

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ce the supply of maintenance service is for a one and fixed price with or without supply of spare parts/goods and supply of service and goods is made in conjunction with each other in the ordinary course as per maintenance contracts, this maintenance service to the extent of presence of all the necessary ingredients cited in the legal provisions quoted supra, is naturally bundled with the incidental supply of goods., it is case of composite supply of service, (b) In case the said contract is considered as composite supply, what is the principal supply between goods or services ? Ans. – The said contract merits to be considered to be a composite supply of service, and principal supply is service inasmuch as the supply of goods is merely incidential to the maintenance contract in the given facts and circumstances. (c) In case goods are considered as principal supply, how the taxability should be determined considering the following : i. The contract would entail supply of various goods f

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2018 (8) TMI 78 – CESTAT MUMBAI – TMI – CENVAT Credit – input services – pest control services – telephone services – repair and maintenance of air conditioner – export related services – Held that:- It is not the case of Revenue that appellant had used/utilised the disputed services for the personal benefit or consumption of its employees. Since the disputed services were used in or in relation to the manufacture of the final product and having nexus with the ultimate final product manufactured by the appellant, CENVAT Credit on the disputed services cannot be denied by the department – appeal allowed – decided in favor of appellant. – Appeal No. E/85320/2018 – A/86920/2018 – Dated:- 16-5-2018 – Mr. S.K. Mohanty, Member (Judicial) Shri Pr

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agraph 6.1, has recorded the submissions of the appellant regarding entitlement of Cenvat benefit on the disputed services, considering the same as input service . 3.1 With regard to pest control service, the submissions of the appellant were that to maintain cleanliness in the factory premises and to maintain a healthy environment by preventing pests from entering and breeding in the factory premises, the appellant had adopted the safety measures by applying pest control. 3.2 With regard to telephone services, the contentions of the appellant were that such services were availed by the appellant for effective communication and negotiation between company employees with the suppliers/ customers, and thus, such service has been used/utilised

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ces used by the manufacturer directly or indirectly in the manufacture of excisable goods, should be considered as input service. The said definition excluded the taxable services, which are to be used primarily for personal use or consumption of the employees. From the submissions made by the appellant before the lower authorities as well as before this Tribunal, I find that it is not the case of Revenue that appellant had used/utilised the disputed services for the personal benefit or consumption of its employees. Since the disputed services were used in or in relation to the manufacture of the final product and having nexus with the ultimate final product manufactured by the appellant, CENVAT Credit on the disputed services cannot be den

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