GST – Concept & Status (01-07-2018)

GST – Concept & Status (01-07-2018)
GST
Dated:- 3-7-2018

GOODS AND SERVICE TAX (GST):
CONCEPT & STATUS
 
CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS (CBIC)
DEPARTMENT OF REVENUE
MINISTRY OF FINANCE
GOVERNMENT OF INDIA
AS ON 1st JULY, 2018
The uniform system of taxation, which, with a few exceptions of no great consequence, takes place in all the different parts of the United Kingdom of Great Britain, leaves the interior commerce of the country, the inland and coasting trade, almost entirely free. The inland trade is almost perfectly free, and the greater part of goods may be carried from one end of the kingdom to the other, without requiring any permit or let-pass, without being subject to question, visit, or examination from the revenue officers. ……This freedom of interior commerce, the effect of uniformity of the system of taxation, is perhaps one of the principal causes of the prosperity of Great Britain; every great country being necessarily the best

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IA BEFORE GST :
2.1 Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. As per Article 246 of the Constitution, Parliament has exclusive powers to make laws in respect of matters given in Union List (List I of the Seventh Schedule) and State Government has the exclusive jurisdiction to legislate on the matters containing in State List (List II of the Seventh Schedule). In respect of the matters contained in Concurrent List (List III of the Seventh Schedule), both the Central Government and State Governments have concurrent powers to legislate.
2.2 Before advent of GST, the most important sources of indirect tax revenue for the Union were customs duty (entry 83 of Union List), central excise duty (entry 84 of Union List), and service tax (entry 97 of Union List). Although entry 92C was inserted in the Union List of the Seventh Schedule of the Constitution by the Constitution (Eighty-eighth Amendment) Act, 2003 for levy

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ON OF INDIRECT TAXATION IN POST-INDEPENDENCE INDIA TILL GST:
3.1 In post-Independence period, central excise duty was levied on a few commodities which were in the nature of raw materials and intermediate inputs, and consumer goods were outside the net by and large. The first set of reform was suggested by the Taxation Enquiry Commission (1953-54) under the chairmanship of Dr. John Matthai. The Commission recommended that sales tax should be used specifically by the States as a source of revenue with Union governments' intervention allowed generally only in case of inter-State sales. It also recommended levy of a tax on inter-State sales subject to a ceiling of 1%, which the States would administer and also retain the revenue.
3.2 The power to levy tax on sale and purchase of goods in the course of inter-State trade and commerce was assigned to the Union by the Constitution (Sixth Amendment) Act, 1956. By mid-1970s, central excise duty was extended to most manufactured goods. Cen

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n indirect tax sphere came with the New Economic Policy of 1991. The Tax Reforms Committee under the chairmanship of Prof. Raja J Chelliah was appointed in 1991. This Committee recommended broadening of the tax base by taxing services and pruning exemptions, consolidation and lowering of rates, extension of MODVAT on all inputs including capital goods. It suggested that reform of tax structure must have to be accompanied by a reform of tax administration, if complete benefits were to be derived from the tax reforms. Many of the recommendations of the Chelliah Committee were implemented. In 1999-2000, tax rates were merged in three rates, with additional rates on a few luxury goods. In 2000-01, three rates were merged into one rate called Central Value Added Tax (CENVAT). A few commodities were subjected to special excise duty.
3.5 Taxation of services by the Union was introduced in 1994 bringing in its ambit only three services, namely general insurance, telecommunication and stock br

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Rates of sales tax were more than ten in some States and these varied for the same commodity in different States. Inter-state sales were subjected to levy of Central Sales Tax. As this tax was appropriated by the exporting State credit was not allowed by the dealer in the importing State. This resulted into exportation of tax from richer to poorer states and also cascading of taxes. Interestingly, States had power of taxation over services from the very beginning. States levied tax on advertisements, luxuries, entertainments, amusements, betting and gambling.
3.7 A report, titled “Reform of Domestic Trade Taxes in India”, on reforming indirect taxes, especially State sales tax, by National Institute of Public Finance and Policy under the leadership of Dr. Amaresh Bagchi, was prepared in 1994. This Report prepared the ground for implementation of VAT in States. Some of the key recommendations were; replacing sales tax by VAT by moving over to a multistage system of taxation; allowing i

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EC). Haryana was the first State to implement VAT, in 2003. In 2005, VAT was implemented in most of the states. Uttar Pradesh was the last State to implement VAT, from 1st January, 2008.
INTERNATIONAL PERSPECTIVES ON GST / VAT:
4.1 VAT and GST are used inter-changeably as the latter denotes comprehensiveness of VAT by coverage of goods and services. France was the first country to implement VAT, in 1954. Presently, more than 160 countries have implemented GST / VAT in some form or the other. The most popular form of VAT is where taxes paid on inputs are allowed to be adjusted in the liability at the output. The VAT or GST regime in practice varies from one country to another in terms of its technical aspects like 'definition of supply', 'extent of coverage of goods and services', 'treatment of exemptions and zero rating' etc. However, at a broader level, it has one common principle, it is a destination based consumption tax. From economic point of view, VAT is considered to be a supe

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Provinces which administer their taxes separately are called 'non- participating provinces', whereas provinces which have teamed up with the Federal Government for tax administration are called 'participating provinces'.
4.3 The rate of GST varies across countries. While Malaysia has a lower rate of 6% (Malaysia though scrapped GST in 2018 due to popular uproar against it), Hungary has one of the highest rate of 27%. Australia levies GST at the rate of 10% whereas Canada has multiple rate slabs. The average rate of VAT across the EU is around 19.5%.
NEED FOR GST IN INDIA:
5.1 The introduction of CENVAT removed to a great extent cascading burden by expanding the coverage of credit for all inputs, including capital goods. CENVAT scheme later also allowed credit of services and the basket of inputs, capital goods and input services could be used for payment of both central excise duty and service tax. Similarly, the introduction of VAT in the States has removed the cascading effect by

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crue to the jurisdiction where consumption takes place. Despite remarkable harmonization in VAT regimes under the auspices of the EC, the national market was fragmented with too many obstacles in free movement of goods necessitated by procedural requirement under VAT and CST.
5.4 In the constitutional scheme, taxation powers on goods was with Central Government but it was limited upto the stage of manufacture and production while States have powers to tax sale and purchase of goods. Centre had powers to tax services and States also had powers to tax certain services specified in clause (29A) of Article 366 of the Constitution. This sort of division of taxing powers created a grey zone which led to legal disputes. Determination of what constitutes a goods or service is difficult because in modern complex system of production, a product is normally a mixture of goods and services.
5.5 As can be seen from the previous paragraphs, India moved towards value added taxation both at Central

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ect from April 1, 2010 and that the EC, on his request, would work with the Central Government to prepare a road map for introduction of GST in India. After this announcement, the EC decided to set up a Joint Working Group in May 10, 2007, with the then Adviser to the Union Finance Minister and Member-Secretary of the Empowered Committee as its Co-conveners and four Joint Secretaries of the Department of Revenue of Union Finance Ministry and all Finance Secretaries of the States as its members. This Joint Working Group got itself divided into three Sub-Groups and had several rounds of internal discussions as well as interaction with experts and representatives of Chambers of Commerce & Industry. On the basis of these discussions and interaction, the Sub-Groups submitted their reports which were then integrated and consolidated into the report of Joint Working Group (November 19, 2007).
6.3 This report was discussed in detail in the meeting of the EC on November 28, 2007, and the State

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d between the EC and the Central Government, the EC released its First Discussion Paper (FDP) on GST in November, 2009. This spelled out the features of the proposed GST and has formed the basis for discussion between the Centre and the States.
CHALLENGES IN DESIGNING GST:
7.1 In the discussion that preceded amendment in the Constitution for GST, there were a number of thorny issues that required resolution and agreement between Central Government and State Governments. Implementing a tax reform as vast as GST in a diverse country like India required the reconciliation of interests of various States with that of the Centre. Some of the challenging issues, addressed in the run up to GST, were the following:
7.2 Origin-based versus Destination-based taxation: GST is a destination based consumption tax. Under destination based taxation, tax accrues to the destination place where consumption of the goods or services takes place. The existing VAT regime was based on origin principle wher

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isdiction. Spending of this income on consumer goods expands the sales tax base of the producing states and thereby contributes to their revenues. In fact, to the extent that consumer expenditures are dependent on the level of income of the residents of a State, it is the producing States that stand to gain the most in additional sales tax revenues (even under the destination basis of consumption taxes) from increased export output.
7.3 Rate Structure and Compensation: There was uncertainty about gains in revenue after implementation of GST. Though attempts were made to estimate a revenue neutral rate, nonetheless it remains an estimate only. It was difficult to estimate accurately as to how much the States will gain from tax on services and how much they will lose on account of removal of cascading effect and phasing out of CST. In view of this, States asked for compensation during the first five years of implementation of GST.
7.3.1 A Committee headed by the Chief Economic Adviser

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armonized system of taxation necessarily required that all stakeholders stick to the decisions taken by the supreme body, which was later constituted as the Goods and Services Tax Council (the Council). However, the possibility of departure from the recommendations of such body cannot be completely ruled out. Any departure would definitely affect other stakeholders and in such circumstances there must be a statutory body to which affected parties may approach for dispute resolution. The nature of such dispute resolution body was a bone of contention. Under the Constitution (One Hundred Fifteenth Amendment) Bill, 2011, a Goods and Services Tax Dispute Settlement Authority was to be constituted for this purpose. This body was judicial in nature. The proposed constitution of this Authority was challenged because it's powers would override the supremacy of the Parliament and the State Legislatures. The Constitution (One Hundred Twenty Second Amendment) Bill, 2014 departed from the previous

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power to tax tobacco and tobacco products, though these are also under GST. Thus, to ensure smooth transition and provide fiscal buffer to States, it was agreed to keep alcohol completely out of the ambit of GST.
CONSTITUTIONAL AMENDMENT:
8.1 As explained above, unification of Central VAT and State VAT was possible in form of a dual levy under the constitutional scheme. Power of taxation is assigned to either Union or States subject-wise under Schedule VII of the Constitution. While the Centre is empowered to tax goods upto the production or manufacturing stage, the States have the power to tax goods at distribution stage. The Union can tax services using residuary powers but States could not. Under a unified Goods and Services Tax scheme, both should have power to tax the complete supply chain from production to distribution, and both goods and services. The scheme of the Constitution did not provide for any concurrent taxing powers to the Union as well as the States and for the pu

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uly, 2015. The Bill with certain amendments was finally passed in the Rajya Sabha and thereafter by Lok Sabha in August, 2016. Further the bill was ratified by required number of States and received assent of the President on 8th September, 2016 and has since been enacted as Constitution (101st Amendment) Act, 2016 w.e.f. 16th September, 2016.
8.4 The important changes introduced in the Constitution by the 101st Amendment Act are the following:
* Insertion of new article 246A which makes enabling provisions for the Union and States with respect to the GST legislation. It further specifies that Parliament has exclusive power to make laws with respect to GST on inter-State supplies.
* Article 268A of the Constitution has been omitted. The said article empowered the Government of India to levy taxes on services. As tax on services has been brought under GST, such a provision was no longer required.
* Article 269A has been inserted which provides for goods and services tax on suppli

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xclude alcoholic liquor for human consumption from the ambit of GST, and services have been defined.
* Article 368 has been amended to provide for a special procedure which requires the ratification of the Bill by the legislatures of not less than one half of the States in addition to the method of voting provided for amendment of the Constitution. Thus, any modification in GST Council shall also require the ratification by the legislatures of one half of the States.
* Entries in List I and List II have been either substituted or omitted to restrict power to tax goods or services specified in these Lists or to take away powers to tax goods and services which have been subsumed in GST.
* Parliament shall, by law, on the recommendation of the Goods and Services Tax Council, provide for compensation to the States for loss of revenue arising on account of implementation of the goods and services tax for five years.
* In case of petroleum and petroleum products, it has been provided

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may be exempted from GST;
* the rates including floor rates with bands of GST;
* any special rate or rates for a specified period to raise additional resources during any natural calamity or disaster;
* special provision with respect to the North- East States, J&K, Himachal Pradesh and Uttarakhand; and
* any other matter relating to the GST, as the Council may decide.
9.2 The Council shall recommend the date on which the goods and services tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel. While discharging the functions conferred by this article, the Goods and Services Tax Council shall be guided by the need for a harmonized structure of goods and services tax and for the development of a harmonized national market for goods and services.
9.3 One half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings. The Goods and Services Tax Cou

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e 23rd meeting of the Council, this limit shall be raised to Rs. 1.5 crore after necessary amendments in the Act. Composition scheme shall not be available to inter-State suppliers, service providers (except restaurant service) and specified category of manufacturers. For special category States (except J&K and Uttarakhand) enumerated in article 279A of the Constitution, threshold exemption limit has been fixed at Rs. 75 lakh.
(iii) Existing tax incentive schemes of Central or State governments may be continued by respective government by way of reimbursement through budgetary route. The schemes, in the present form, would not continue in GST. Further, 50% exemption of the CGST portion will be provided to CSD (Defense Canteens).
(iv) Recommending GST laws, namely CGST Law, UTGST Law, IGST Law, SGST Law and GST Compensation Law paving the way for implementation of GST.
(v) In order to ensure single interface, all administrative control over 90% of taxpayers having turnover below Rs.

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of taxpayers shall be exempted from obtaining registration:
* Suppliers of services, having turnover upto Rs. 20 lakhs, making inter State supplies;
* Suppliers of services, having turnover upto Rs. 20 lakhs, making supplies through e-commerce platforms.
(xi) The reverse charge mechanism under sub-section (4) of section 9 of the CGST Act, 2017 and under sub-section (4) of section 5 of the IGST Act, 2017 has been suspended till 30.09.2018.
(xii) There shall be no requirement on payment of tax on advance received for supply of goods by all taxpayers.
(xiii) Supply from GTA to unregistered persons has been exempted from tax.
(xiv) Registration and operationalization of TDS/TCS provisions has been postponed till 30.09.2018.
(xv) E-Wallet Scheme shall be introduced for exporters from 01.10.2018 and till then relief for exporters shall be given in form of broadly existing practice.
(xvi) All taxpayers are required to file return FORM GSTR-3B & pay tax on monthly basis.
(xvii) Taxp

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ation.
(xxii) Supply of services to Nepal and Bhutan shall be exempted from GST even if payment has not been received in foreign convertible currency – such suppliers shall be eligible for input tax credit.
(xxiii) Centralized UIN shall be issued to every Foreign Diplomatic Mission / UN Organization by the Central Government.
(xxiv) Rate of interest on delayed payments and delayed refund has been recommended.
THE DESIGN OF INDIAN GST:
10.1 Concurrent dual model of GST: India has adopted dual GST model because of its unique federal nature. Under this model, tax is levied concurrently by the Centre as well as the States on a common base, i.e. supply of goods or services or both. GST to be levied by the Centre would be called Central GST (Central tax / CGST) and that to be levied by the States would be called State GST (State Tax / SGST). State GST (State Tax / SGST) would be called UTGST (Union territory tax) in Union Territories without legislature. CGST & SGST / UTGST shall be lev

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he respective governments to transfer the funds.
The major advantages of IGST Model are:
a) Maintenance of uninterrupted ITC chain on inter-State transactions.
b) No upfront payment of tax or substantial blockage of funds for the inter-State supplier or recipient.
c) No refund claim in exporting State, as ITC is used up while paying the tax.
d) Self-monitoring model.
e) Model takes 'Business to Business' as well as 'Business to Consumer' transactions into account.
10.3 Tax Rates: Owing to unique Indian socio-economic milieu, four rates namely 5%, 12%, 18% and 28% have been adopted. Besides, some goods and services are exempt also. Rate for precious metals is an exception to 'four-tax slab-rule' and the same has been fixed at 3%. In addition, unworked diamonds, precious stones, etc. attracts a rate of 0.25%. A cess over the peak rate of 28% on certain specified luxury and demerit goods, like tobacco and tobacco products, pan masala, aerated water, motor vehicles is imposed to com

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taxes on advertisements, etc. However, any revenue among these taxes arising related to supply of alcohol for human consumption, and five specified petroleum products, will not be accounted as part of the base year revenue. A GST Compensation Cess is levied on the supply of certain goods and services, as recommended by the GST Council to finance the compensation cess.
10.5 E-Way Bill System: The introduction of e-way (electronic way) bill is a monumental shift from the earlier “Departmental Policing Model” to a “Self-Declaration Model”. It envisages one e-way bill for movement of the goods throughout the country, thereby ensuring a hassle free movement for transporters throughout the country. The e-way bill system has been introduced nation-wide for all inter-State movement of goods with effect from 1st April, 2018. As regards intra-State supplies, option was given to States to choose any date on or before 3rd June, 2018. All States have notified e-way bill rules for intra-State supp

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e rate of tax or the benefit of input tax credit has been passed on to the recipient by way of commensurate reduction in prices. It can order reduction in prices, imposition of penalty, cancellation of registration and any other decision as may deem fit, after inquiry into the case.
10.7 Concept of Supply: GST would be applicable on supply of goods or services as against the present concept of tax on manufacture of goods or on sale of goods or on provision of services. It includes all sorts of activities like manufacture, sale, barter, exchange, transfer etc. It also includes supplies made without consideration when such supplies are made in certain specified situations.
10.8 Threshold Exemption: A common threshold exemption would apply to both CGST and SGST. Taxpayers with an annual turnover of Rs. 20 lakh (Rs. 10 lakh for special category States (except J&K) as specified in article 279A of the Constitution) would be exempt from GST. The benefit of threshold exemption is not availab

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ying SGST or IGST.
The credit would be permitted to be utilized in the following manner:
(a) ITC of CGST allowed for payment of CGST & IGST in that order;
(b) ITC of SGST allowed for payment of SGST & IGST in that order;
(c) ITC of UTGST allowed for payment of UTGST & IGST in that order;
(d) ITC of IGST allowed for payment of IGST, CGST & SGST/UTGST in that order.
ITC of CGST cannot be used for payment of SGST/UTGST and vice versa.
10.12 Settlement of Government Accounts: Accounts would be settled periodically between the Centre and the State to ensure that the credit of SGST used for payment of IGST is transferred by the originating State to the Centre. Similarly, the IGST used for payment of SGST would be transferred by Centre to the destination State. Further the SGST portion of IGST collected on B2C supplies would also be transferred by Centre to the destination State. The transfer of funds would be carried out on the basis of information contained in the returns filed by th

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g two per cent of net value of taxable supplies, out of payments to suppliers supplying goods or services through their portals. The provision for TCS has not been operationalized yet.
10.17 Self-assessment: Self-assessment of the taxes payable by the registered person shall be the norm. Audit of registered persons shall be conducted on selective basis. Limitation period for raising demand is three (3) years from the due date of filing of annual return or from the date of erroneous refund for raising demand for short-payment or non-payment of tax or erroneous refund and its adjudication in normal cases. Limitation period for raising demand is five (5) years from the due date of filing of annual return or from the date of erroneous refund for raising demand for short-payment or non-payment of tax or erroneous refund and its adjudication in case of fraud, suppression or willful mis-statement.
10.18 Recovery of Arrears: Arrears of tax to be recovered using various modes including detain

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dditional Duties of Excise (Textiles and Textile Products), Additional Duties of Customs (commonly known as CVD), Special Additional Duty of Customs (SAD), Service Tax and cesses and surcharges insofar as they related to supply of goods or services were subsumed. As far as taxes levied and collected by States are concerned, State VAT, Central Sales Tax, Purchase Tax, Luxury Tax, Entry Tax, Entertainment Tax (except those levied by the local bodies), Taxes on advertisements, Taxes on lotteries, betting and gambling, cesses and surcharges insofar as they related to supply of goods or services were subsumed.
GST LEGISLATIONS:
11.1 Four Laws namely CGST Act, UTGST Act, IGST Act and GST (Compensation to States) Act were passed by the Parliament and since been notified on 12th April, 2017. All the other States (except J&K) and Union territories with legislature have passed their respective SGST Acts. The economic integration of India was completed on 8th July, 2017 when the State of J&K al

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C:
12.1 CBIC is playing an active role in the drafting of GST law and procedures, particularly the CGST and IGST law, which will be exclusive domain of the Centre. This apart, the CBIC has prepared itself for meeting the implementation challenges, which are quite formidable. The number of taxpayers has gone up significantly. The existing IT infrastructure of CBIC has been suitably scaled up to handle such large volumes of data. Based on the legal provisions and procedure for GST, the content of work-flow software such as ACES (Automated Central Excise & Service Tax) would require re-engineering. The name of IT project of CBIC under GST is 'SAKSHAM' involving a total project value of Rs. 2,256 crores.
12.2 Augmentation of human resources would be necessary to handle large taxpayers' base in GST scattered across the length and breadth of the country. Capacity building, particularly in the field of Accountancy and Information Technology for the departmental officers has to be taken up i

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lementation challenges faced by the taxpayer and act as an active interface between the taxpayer and the Government.
GOODS & SERVICES TAX NETWORK:
13.1 Goods and Services Tax Network (GSTN) has been set up by the Government as a private company under erstwhile Section 25 of the Companies Act, 1956. GSTN would provide three front end services to the taxpayers namely registration, payment and return. Besides providing these services to the taxpayers, GSTN would be developing back-end IT modules for 27 States who have opted for the same. Infosys has been appointed as Managed Service Provider (MSP). GSTN has selected 73 IT, ITeS and financial technology companies and 1 Commissioner of Commercial Taxes (CCT, Karnataka), to be called GST Suvidha Providers (GSPs). GSPs would develop applications to be used by taxpayers for interacting with the GSTN. The diagram below shows the work distribution under GST.
13.2 Central Government holds 24.5 percent stake in GSTN while the state government h

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ces and phasing out of Central Sales Tax (CST) would reduce the cost of locally manufactured goods and services. This will increase the competitiveness of Indian goods and services in the international market and give boost to Indian exports. The uniformity in tax rates and procedures across the country will also go a long way in reducing the compliance cost.
14.3 Benefits to small traders and entrepreneurs: GST has increased the threshold for GST registration for small businesses. Those units having aggregate annual turnover more than Rs. 20 lakhs (10 lakhs in case of North Eastern States) have be registered under GST. Unlike multiple registrations under different tax regimes earlier, a single registration is needed under GST in one State. An additional benefit under Composition scheme has also been provided for businesses with aggregate annual turnover upto Rs. 75 lakhs. With the creation of a seamless national market across the country, small enterprises will have an opportunity to

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en of tax on goods would, in general, fall under GST and that would benefit the consumers.
14.6 Promote “Make in India”: GST will help to create a unified common national market for India, giving a boost to foreign investment and “Make in India” campaign. It will prevent cascading of taxes and make products cheaper, thus boosting aggregate demand. It will result in harmonization of laws, procedures and rates of tax. It will boost export and manufacturing activity, generate more employment and thus increase GDP with gainful employment leading to substantive economic growth. Ultimately it will help in poverty eradication by generating more employment and more financial resources. More efficient neutralization of taxes especially for exports thereby making our products more competitive in the international market and give boost to Indian Exports. It will also improve the overall investment climate in the country which will naturally benefit the development in the states. Uniform CGST & S

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portal, therefore, less public interface between the taxpayer and the tax administration. It will improve environment of compliance as all returns to be filed online, input credits to be verified online, encouraging more paper trail of transactions. Common procedures for registration of taxpayers, refund of taxes, uniform formats of tax return, common tax base, common system of classification of goods and services will lend greater certainty to taxation system.
EXPERIENCE OF REGISTRATION & RETURN FILING:
15.1 Registration & Returns Snapshot:
S. No.
Details
As on 1st July, 2018
1.
No. of transited (migrated) taxpayers
66,17,573
2.
Total No. of new applications received for registration
55,22,786
3.
No. of applications approved
47,95,045
4.
No. of applications rejected
6,80,241
5.
Total No. of taxpayers; new + migrated (1 + 3)
1,14,12,618
6.
No. of taxpayers who have opted for composition scheme
17,66,517
7.
No. of 3 (B) returns filed for July, 2017
64,47,614

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1 returns filed for January, 2018
22,65,978
25.
No. of GSTR 1 returns filed for February, 2018
22,10,827
26.
No. of GSTR 1 returns filed for March, 2018
56,73,321
27.
No. of GSTR 1 returns filed for April, 2018
20,32,081
28.
No. of GSTR 1 returns filed for May, 2018
18,34,250
29.
No. of GSTR 2 returns filed for July, 2017
25,72,552
30.
No. of GSTR 4 returns filed for quarter July-September, 2017
9,45,718
31.
No. of GSTR 4 returns filed for quarter October-December, 2017
13,96,721
32.
No. of GSTR 4 returns filed for quarter January-March, 2018
13,60,204
CHALLENGES & FUTURE AHEAD:
16.1 Any new change is accompanied by difficulties and problems at the outset. A change as comprehensive as GST is bound to pose certain challenges not only for the government but also for business community, tax administration and even common citizens of the country. Some of these challenges relate to the unfamiliarity with the new regime and IT systems, legal challenges, return fil

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CBIC and States in this regard. The government has put in place an IT grievance redressal mechanism to address the difficulties faced by taxpayers owing to technical glitches on the GST portal.
16.3 The introduction of GST is truly a game changer for Indian economy as it has replaced multi-layered, complex indirect tax structure with a simple, transparent and technology-driven tax regime. It will integrate India into a single, common market by breaking barriers to inter-State trade and commerce. By eliminating cascading of taxes and reducing transaction costs, it will enhance ease of doing business in the country and provide an impetus to “Make in India” campaign. GST will result in “ONE NATION, ONE TAX, ONE MARKET”.
*****
Note: This write-up is for education purposes only
=============
Document 1
Harmonization of Business
Processes and Formats
Common & Shared
IT
IT Infrastructure
Interfaces
Core Services

Registration
Returns
Payments
Helpdesk support
Information on

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Tripartite agreement on dairying development clarifies transactions aren't between related parties; Schedule-1 GST Act provisions not applicable.

Tripartite agreement on dairying development clarifies transactions aren't between related parties; Schedule-1 GST Act provisions not applicable.
Case-Laws
GST
Tripartite Agreement – scope of supply – developing dairying in the respective states – the supply cannot be treated as between the related parties. – Provisions of Schedule-1 of GST Act, relating to free supply (without consideration) to related party does not attract.
TMI Updates – Highlights, quick notes, marquee, annotati

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Cryo Containers Classified Under Heading 9617 for GST: “Vacuum Flask and Other Vacuum Vessels.

Cryo Containers Classified Under Heading 9617 for GST: “Vacuum Flask and Other Vacuum Vessels.
Case-Laws
GST
Classification of Cryo Container, also known as Liquid Nitrogen Containers – Cryo

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Cast Iron Brackets and Clamps Classified Under Chapter Heading 7325 for Rust-Protected, Non-Machined Products.

Cast Iron Brackets and Clamps Classified Under Chapter Heading 7325 for Rust-Protected, Non-Machined Products.
Case-Laws
GST
Classification of brackets and clamps of cast iron – the applicant

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IN RE: PRAJAPATI DEVELOPERS

IN RE: PRAJAPATI DEVELOPERS
GST
2018 (9) TMI 236 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (16) G. S. T. L. 320 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 3-7-2018
GST-ARA-02/2018-19/B-58
GST
Shri B.V. Borhade, And Shri Pankaj Kumar, Member
PROCEEDINGS
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by PRAJAPATI DEVELOPERS, the applicant, seeking an advance ruling in respect of the following question :
“Whether the construction services provided under the project “Prajapati Magnum” qualifies for the reduced CGST Rate of 6% as provided in Sl. No 3 – item (v)- sub item (da) vide Notification 01/2018- CT (Rate) dated 25.01.2018?”
At the outset, w

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rcial complex.
2. Presently the applicant is undertaking development of residential apartments under a project called 'Prajapati Magnum'  in Dronagiri, Navi Mumbai.
3. The details of the project are as follows:
a) Project Magnum was started in December 2013 and expected to complete in December 2022.
b) The Project Magnum has five wings with 19 floors in each wing.
c) Total number of flats in the projects are 352.
d) The flats are being developed over 12099 sq mtrs of Land. The Total FSI consumed is 18,099.50 Sq.Mtrs of area out of which 13,145.26 Sq.Mtrs of FSI are consumed in the flats having carpet area below 60 Sq.Mtrs.
e) Cost of flats ranges from Rs. 41.00.000/- to Rs. 87,00,000/-
4. Applicant has discharged Service Tax on the consideration received from the flat owners till 30.06.2017 at the applicate rate of service tax and later GST is being discharged at the effective rate of 12% after availing the 1/3rd deduction towards the land portion as provided in explanati

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o the total amount charged for such supply less the value of land or undivided share of land, as the case may be. The value of land/undivided share of land in such supply shall be deemed to be one third of the total amount charged for Such supply”
3. The rate Notification 11/2017- CT (Rate) has been amended from time to time to change the rate of GST towards supply of various goods and or services or both. Recently on 25.01.2018, it has been amended again vide Notification 01/2018-CT (Rate) to reduce the rate of GST on specified Construction Services from the earlier 18% to 12% (effectively '8%' after availing 1/3rd deduction towards value of land].
4. With effective from 25.01.2018, new item (v) sub item (da) has been inserted in Sl. 3 vide Notification 01/2018-CT (Rate) to specify the rate of CGST as 6% in case of following service:
“Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017, supplied by way of constr

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ontract”
Discussion on Affordable Housing Project:
7. The reduced rate of 12% (8% after reducing 1/3rd towards land) is applicable only for the low-cost houses up to a carpet area of 60 Square Meters per house in an affordable housing project. Further the benefit is available only to those Affordable housing projects which have been given infrastructure status by Government of India vide F. No. 13/ 6/2009-INF, dated the 30th March, 2017.
8. “Affordable Housing” is defined as a housing project using at least 50% of the Floor Area Ratio (FAR)/Floor Space Index (FSI) for dwelling units with carpet area@ of not more than 60 square meters.
9. Accordingly, a housing project using at least 50% of the Floor Area Ratio (FAR)/Floor Space Index (FSI) for dwelling units with carpet area@ of not more than 60 square meters has been given the infrastructure status by the GOI and therefore would be eligible for the benefit of reduced rate.
10. Further it was also mentioned in the above referred n

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rper area usage in the project under consideration. As per the said Architect's Certificate, it is evident that the project 'Prajapati Magnum' has total consumed/ Permissible F.S.I. of 18099.50 Sq.Mtrs. Out of which 13145.26 Sq.Mtrs F.S.I area are consumed by flats having carpet area below 60 Sq.Mtrs, Therefore, the said housing project is using around 73% of the total Floor Area Ratio (FAR)/ Floor Space Index (FSI) for dwelling units with carpet area@ of not more than 60 square meters.
14. Architect's Certificate on carpet area usage and also flat wise FSI issued for the given project is enclosed for your kind consideration,
15. Further, following statements made in the press release by the Ministry of Finance, Government of India on completion of 25th GST council meeting dated 18.01.2018 would be relevant:
a) “The Fourth Recommendation of the Council is to extend the concessional rate of 12% to services by way of construction of low cost houses up to a carpet area of 60 sqm in a h

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Notification No. 11/2017-CT (Rate) dated 28.06.2017.
17. It would be relevant to note that the GST law do not provide any separate meaning to define the term 'low cost houses'- Thereby, applicant is of the understanding that the houses with carpet area of not more than 60 square meters could itself be considered as low-cost houses for determining the rate of GST.
Applicant's viewpoint:
18. The project “Prajapati Magnum” qualifies to be an Affordable Housing Project which has been given infrastructure status vide notification of Government of India.
19. Accordingly, Service by way of Construction of houses with carpet area up to 60 Square Meters per house in the said housing project would attract GST at 12% [CGST- 6% and SGST-6%] w.e.f. 25.01.2018. The effective tax rate would be 8% after reducing 1/3rd towards value of land.
03. CONTENTION – AS PER THE CONCERNED OFFICER
Vide letter dated 14.05.2018, the concerned officer has submitted a report as under:
Point No. 14 states that

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of 8% GST is only applicable to low cost houses/ flats only, not to the project which includes other dwelling units as well. Project Prajapati Magnum is an ongoing project since December, 2013. It is obvious that many of the dwelling units would have been sold out to different categories of buyers viz. prospective buyers, promoters, investors and partners which may or may not include low income groups and economically weaker section. The key conditions to qualify for taking the benefits of the said Notification are:
i) Low cost houses up to a carpet area of 60 square metre.
ii) Housing project using at least 50% of the FAR/FSI for dwelling units with carpet area of not more than 60 square metre.
Here, CGST Act 2017 does not define “low cost house”. There are different definitions given by various agencies like RBI and MOHUPA, etc. Therefore, cost is the most important factor while deciding the benefits of said Notification. The second condition is being fulfilled here as the perc

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different category of buyers viz prospective buyers, promoters and investors?
b) How many flats are there in each category i.e. a) 41 Lacs, b) 87 Lacs, c) In between 41 Lacs to 87 Lacs?
iv) Issue of Anti Profiteering:-Since there is no GST on second sale of flats. It is our apprehension that significant number of flats would be owned by promoter/ investor/partners may be sold to prospective buyers, thereby coming out of ambit of GST as there is no GST on second sale of flat. Consequently; it will be further Out of purview of Anti profiteering Authority also as this transaction does not involve in GST. This may become potential revenue loss for Government of India, Moreover, such a step will undermine the large objective of social welfare which is behind the recommendations and amendment in the Notification 1/ 2018-Central Tax (Rate) dt.25.01.2018.
04. HEARING
The Preliminary Hearing was held on date 15.05.2018. Shri Vasant K Bhatt, Chartered Accountant, duly authorized appeared al

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Notification No. 01/2018-CT (Rate) dated 25.01.2018.
This issue is with respect to the housing project called “Prajapati Magnum” in Dronagiri, Navi Mumbai which has been undertaken by them. The applicant has submitted that the said project was started in December 2013 and is expected to be completed in December 2022. They have also submitted that the total FSI consumed in the said project is 18,099.50 sq.mtrs out of which 13,145.26 sq mtrs. of FSI are consumed for flats having carpet area below 60 sq mtrs. They have, whilst submitting Architect's Certificate in support, submitted that their housing project is using around 73% of the total Floor Area Ratio (FAR)/ Floor Space Index and therefore their project falls under the definition of “Affordable Housing” as mentioned in notification issued by Government of India, Ministry of Finance, Department of Economic Affairs vide F. NO. 13/6/2009-INF, dated the 30th March, 2017.
Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, h

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works pertaining to the “In-situ rehabilitation of existing slum dwellers using land as a resource through private participation” under the Housing for All (Urban) Mission/Pradhan Mantri Awas Yojana, only for existing slum dwellers;
(d) a civil structure or any other original works pertaining to the “Beneficiary led individual house construction / enhancement” under the Housing for All (Urban) Mission/Pradhan Mantri Awas Yojana;
(e)…………………………………; or
(f)……………………………………
6
-]
 
 
(v) Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017, supplied by way of construction, erection, commissioning, or installation of original works pertaining to,-
(a)…………………………………;
(b)………………………………….;
(c) low-cost houses up to a carpet area of 60 square metres per house in a housing project approved by competent autho

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taining to the “'In-situ redevelopment of existing slums using land as a resource, under the Housing for All (Urban) Mission/ Pradhan Mantri Awas Yojana (Urban);';
(II) after sub-item (d), the following sub-items shall be inserted, namely: –
'(da) a civil structure or any other original works pertaining to the “Economically Weaker Section (EWS) houses” constructed under the Affordable Housing in partnership by State or Union territory or local authority or urban development authority under the Housing for All (Urban) Mission/Pradhan Mantri Awas Yojana (Urban);
(db) a civil structure or any other original works pertaining to the “houses constructed or acquired under the Credit Linked Subsidy Scheme for Economically Weaker Section (EWS)/ Lower Income Group (LIG)/ Middle Income Group-1 (MIG-1)/ Middle Income Group-2 (MIG-2)” under the Housing for All (Urban) Mission/ Pradhan Mantri Awas Yojana (Urban);';
(III)……………………………………………………”;
(B) in it

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authority or urban development authority.
According to sub item (db) in item iv “a civil structure or any other original works pertaining to the “houses constructed or acquired under the Credit Linked Subsidy Scheme for Economically Weaker Section (EWS)/Lower Income Group (LIG)/ Middle Income Group-1 (MIG-1)/ Middle Income Group-2 (MIG-2)” under the Housing for All (Urban) Mission/ Pradhan Mantri Awas Yojana (Urban). This clause also shall not be applicable to the applicant since this clause states that the houses should be constructed or acquired under the Credit Linked Subsidy Scheme of the Government.
According to sub item (da) of item (v), “low-cost houses up to a carpet area of 60 square metres per house in an affordable housing project which has been given infrastructure status vide notification of Government of India, in Ministry of Finance, Department of Economic Affairs vide F. No. 13/6/2009-INF, dated the 30th March, 2017 would attract a tax rate of 12%. This clause will be

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Authority, an updated Harmonized Master List of Infrastructure Sub-sectors (Annexure-I) is hereby notified. The new list incorporates the following change to the notification dated 1st August, 2016;
1. Under the category of “Social and Commercial Infrastructure” a new sub-sector – “Affordable Housing” is added.
Annexure-I
Updated Harmonized Master List of Infrastructure Sub-sectors
Sl. No.
Category
Infrastructure sub-sectors
 
Transport
* Roads and bridges
* Ports
* Shipyards
* Inland Waterways
* Airport
* Railway Track, tunnels, viaducts, bridges
* Urban Public Transport (except rolling stock in case of urban road transport)
 
Energy 
* Electricity Generation
* Electricity Transmission
* Electricity Distribution
* Oil pipelines
* Oil/ Gas/ Liquefied Natural Gas (LNG) storage facility
* Gas pipelines
 
Water and Sanitation
* Solid Waste Management
* Water supply pipelines
* Water treatment plants
* Sewage collection, tr

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…….
4. ……………………………….
5. ………………………..
6. ………………………..
7. ………………………..
8. ………………………..
9. ………………………..
10. “Affordable Housing” is defined as a housing project using at least 50% of the Floor Area Ratio (FAR)/Floor Space Index (FSI) for dwelling units with carpet area of not more than 60 square meters.
@ “Carpet Area” shall have the same meaning as assigned to it in clause (k) of section 2 of the Real Estate (Regulation and Development) Act, 2016.
One of the recommendations made by the GST Council in its 25th meeting held on 18th January 2018 at Delhi was to extend the concessional rate of 12% (8% CST after deducting value of land) to services by way of construction of low cost houses up to a carpet area of 60 sqm in a housing project which has been given infrastructure status under notification No. 13/06/2009 dated 30th March, 2009. The said notification of Departmen

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factoring in the full ITC available in the CST regime and reduces the ex-GST price of flats.” The CST Council has also mentioned that the builders/ developers are expected to follow the principles laid down under Section 171 of the CST Act (Anti-Profiteering Rules) scrupulously.
In response to a request for clarification to enable availing 8% GST on Affordable Housing made by the builders association namely , CREDAI vide their letter no. CREDAI/MOF/2018/14 dated 19th March, 2018, the Government vide F.No. 354/52/2018-TRU, Government of India Ministry of Finance Department of Revenue (TRU) dated 7th May, 2018 has clarified that “Low cost houses up to a carpet area of 60 .square metres per house in an affordable housing project, which has been given infrastructure status under notification F. No. 13/6/2009-INF, dated the 30th March, 2017 of MOF (DEA), attract concessional GST of 8% (the value of the undivided share of land is included in the price of the house). Whether the housing proj

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which Notification 1/2018-CentraI Tax (Rate) was issued and the benefit of this reduced rate would be applicable in case of only those flats which are of carpet area upto 60 sq mtrs. In this scheme which is covered in the category of affordable housing. In case of other flats which have carpet area more than 60 sq.mtrs. the applicant would be required to pay GST at normal applicable rate.
06. In view of the deliberations as held hereinabove, we pass an order as follows:
ORDER
(under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
NO. GST-ARA-02/2018-19/B-58 
Mumbai, dt.03/07/2018
For reasons as discussed in the body of the order, the question in answered thus-
Question : Whether the construction services provided by the applicant under the project “Prajapati Magnum” qualifies for the reduced CGST rate of 6% as provided in Sr. No. 3 – item (v) –  sub item (da) of Notification No. 01/2018-CT (Rate) dated

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Circular regarding Clarification of certain issues under GST.

Circular regarding Clarification of certain issues under GST.
2185/GST-2 Dated:- 3-7-2018 Haryana SGST
GST – States
=============
Document 1
From
To
Subject:
Addl. Excise & Taxation Commissioner (GST)
Haryana, Panchkula.
All the Dy. Excise & Taxation Commissioners (ST),
in the State of Haryana.
Memo No. 2185
Panchkula, dated the
/GST-2,
3-7178
Circular regarding Clarification of certain issues under GST.
MEMORANDUM
Please find enclosed herewith a copy of circular on the above mentioned
subject as issued by the Central Government.
It is requested to bring this to the knowledge of all the officers working under your
control for their information and necessary action.
Addl. Excise and Taxation Commissioner (GST),
O/o Excise & Taxation Commissioner,
Haryana, Panchkula
Endst. No. 2186 / GST-2, Panchkula, dated the
3-7-18
A copy alongwith a copy of guidelines regarding refund under HGST Act is
forwarded to the following for information and necessary action:-

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2017-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
New Delhi, Dated the 08th June, 2018
To,
The Principal Chief Commissioners/ Chief Commissioners/Principal Commissioners/
Commissioners of Central Tax (All)/
The Principal Directors General/ Directors General (All)
Madam/Sir,
Subject: Clarifications of certain issues under GST- regarding
Representations have been received seeking clarification on certain issues under the
GST laws. The same have been examined and the clarifications on the same are as below:
Sl.
Issue
No.
1
Whether moulds and dies owned by
Original Equipment Manufacturers
(OEM) that are sent free of cost
(FOC) to a component manufacturer
is leviable to tax and whether OEMs
are required to reverse input tax
credit in this case?
Clarification
1.1 Moulds and dies owned by the original
equipment manufacturer (OEM) which are
provided to a component manufacturer (the
tw

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vail input tax credit?
shall not be added to the value of such
supply because the cost of moulds/dies was
not to be incurred by the component
manufacturer and thus, does not merit
inclusion in the value of supply in terms of
section 15(2)(b) of the Central Goods and
Services Tax Act, 2017 (CGST Act for
short).
1.3 However, if the contract between OEM and
component manufacturer was for supply of
components made by using the moulds/dies
belonging to the component manufacturer,
but the same have been supplied by the
OEM to the component manufacturer on
FOC basis, the amortised cost of such
moulds/dies shall be added to the value of
the components. In such cases, the OEM
will be required to reverse the credit
availed on such moulds/ dies, as the same
will not be considered to be provided by
OEM to the component manufacturer in the
course or furtherance of the former's
business.
2.1 The taxability of supply would have to be
determined on a case to case basis looking

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e
4
In case of transportation of goods by
railways, whether goods can be
delivered even if the e-way bill is
not produced at the time of
delivery?
5 Whether e-way bill is required in the
following cases-
(i) Where goods transit through
another State while moving from
one area in a State to another area in
the same State.
purpose of auction of tea, coffee,
rubber etc., or the principal and the
auctioneer for the purpose of supply of
tea through a private treaty, are
required to maintain the books of
accounts relating to each and every
place of business in that place itself in
terms of the first proviso to sub-section
(1) of section 35 of the CGST Act.
However, in case difficulties are faced
in maintaining the books of accounts, it
is clarified that they may maintain the
books of accounts relating to the
additional place(s) of business at their
principal place of business instead of
such additional place(s).
(c) The principal and the auctioneer for the
purpo

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M/s Birla Corporation Ltd. Versus CGST, CC & CE, Jabalpur

M/s Birla Corporation Ltd. Versus CGST, CC & CE, Jabalpur
Central Excise
2018 (7) TMI 1264 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 3-7-2018
Excise Appeal No. 50308/2018 – FINAL ORDER NO. 52486/2018
Central Excise
HON'BLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) And HON'BLE SHRI C.L. M AHAR, MEMBER (TECHNICAL)
For the Petitioner : Shri Bipin Garg, Advocate
For the Respondent : Shri N.R. Shaima, DR
ORDER
Per Anil Choudhary:
The issue involved in this appeal relates to objection by Revenue on taking of cenvat credit on the supplementary invoices, raised by M/s. South Eastern Coalfields Ltd., for supply of coal made to the appellant.
2. Coal is one of the important input of the appellant used in the manuf

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ges”, “clean energy cess” and “transit fee” in respect of coal earlier supplied by them. They had paid additional amount of duty & cess Rs. 1,62,39,182/- and taken credit in their cenvat credit register on 31.07.2014, which, it appeared, are not valid documents for availing cenvat credit in terms of Rule 9(1) (b) of the CCR, 2004.Accordingly, a show cause notice No.42/Commr/CEX/REWA/2015-16 dated 3.7.2015 was issued to the appellant and subsequently proceeding was finalized by the adjudicating authority vide order-in-original no.58/JC/CEX/JBP/2016-17 dated 28.03.2017 wherein Cenvat Credit was disallowed and ordered to recover the same along with interest and penalty.
4. Subsequently, Revenue issued another show cause notice on the ground t

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sputed by the Revenue, the fact of deposit of such duty collected by SECL, with the Govt. exchequer.
5. Ld. Counsel appearing for the appellant argues that in view of the admitted facts that the demand of duty on such charges like royalty charges, etc. is subjudice before the Hon'ble Supreme Court in Civil Appeal No.4056-5064/1999 (Mineral Area Development Vs. Steel Authority of India) and as such, the issue is debatable as to inclusion of aforesaid charges in the assessable value and as such, denial of cenvat credit by the Revenue on the ground of fraud, suppression is not tenable and have legs to stand.
6. Ld. AR for the Revenue have reiterated the findings of the impugned order.
7. Having considered the rival contentions of both the s

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The Himachal Pradesh Goods and Services Tax (Sixth Amendment) Rules, 2018.

The Himachal Pradesh Goods and Services Tax (Sixth Amendment) Rules, 2018.
EXN-F(10)-5/2018-28/2018-State Tax Dated:- 3-7-2018 Himachal Pradesh SGST
GST – States
Himachal Pradesh SGST
Himachal Pradesh SGST
Government of Himachal Pradesh
Excise and Taxation Department
No. EXN-F(10)-5/2018 Dated: Shimla-171002, the 3rd July, 2018
Notification No. 28/2018-State Tax
In exercise of the powers conferred by section 164 of the Himachal Pradesh Goods and Services Tax Act, 2017 (10 of 2017), the Governor of Himachal Pradesh is pleased to hereby make the following rules further to amend the Himachal Pradesh Goods and Services Tax Rules, 2017, namely:-
1. (1) These rules may be called the Himachal Pradesh Goods and Services Tax (Six

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ommunicated to the said transporter:
Provided that where the said transporter has obtained a unique common enrolment number, he shall not be eligible to use any of the Goods and Services Tax Identification Numbers for the purposes of the said Chapter XVI.”;
(ii) in rule 138, after sub-rule(1), the following proviso shall be inserted, namely:-
“Provided that where the circumstances so warrant, the Commissioner, or any other officer authorised by him, may, on sufficient cause being shown, extend the time for recording of the final report in Part B of FORM EWB-03, for a further period not exceeding three days.
Explanation.- The period of twenty four hours or, as the case may be, three days shall be counted from the midnight of the date on

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M/s. Shiv Shakti Mandir Sanchalan Samiti Versus Commissioner Of Central Goods And Services Tax & Ors.

M/s. Shiv Shakti Mandir Sanchalan Samiti Versus Commissioner Of Central Goods And Services Tax & Ors.
Service Tax
2018 (7) TMI 1134 – DELHI HIGH COURT – TMI
DELHI HIGH COURT – HC
Dated:- 3-7-2018
W.P.(C) 4798/2018 & CM APPL. 18469/2018
Service Tax
MR. S. RAVINDRA BHAT AND MR. A. K. CHAWLA JJ.
Petitioner Through: Mr. D.S. Chadha, Adv.  
Respondents Through: Mr. Anil Soni, CGSC with Mr. Abhinav Tyagi, Advs. for R-1/UOI.
Mr. Saurav Agrawal with Ms. Aakriti Dawar, Advs. for R-2/IGL.
Mr. Amit Bansal with Mr. Akhil Kulshrestha, Advs. for R-3.  
O R D E R
We have heard counsel for the parties.
The present petition challenges the direction of the CESTAT which required pre-deposit of 10% of the interest amount

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Refund of ITC u/r 89(4) of the CGST Rules, 2017

Refund of ITC u/r 89(4) of the CGST Rules, 2017
Query (Issue) Started By: – Amit Khurana Dated:- 2-7-2018 Last Reply Date:- 3-7-2018 Goods and Services Tax – GST
Got 2 Replies
GST
Dear Members,
As per Rule 89(4) of Central Goods and Services Tax Rules, 2017 (CGST Rules), refund of Input Tax Credit (ITC) shall be granted as per following formula, in case of zero-rated supply of services without payment of IGST under bond or letter of undertaking (LUT) in accordance with Section 16(3) of the Integrated Goods and Services Tax Act, 2017 (IGST Act):
Refund Amount = (Turnover of zero-rated supply of goods + Turnover of zero-rated supply of services) x Net ITC ÷ Adjusted Total Turnover
Where, –
(A) “Refund amount” means the maximum refund that is admissible;
(B) “Net ITC” means input tax credit availed on inputs and input services during the relevant period other than ITC availed for which refund is claimed under sub-rules (4A) or (4B) or both;
(C) “Turnover of zero-

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xcluding –
(a) the value of exempt supplies other than zero-rated supplies and
(b) the turnover of supplies in respect of which refund is claimed under sub-rules (4A) or (4B) or both, if any,
during the relevant period;
(F) “Relevant period” means the period for which the claim has been filed.
As per Section 2(112) of CGST Act, “turnover in State” or “turnover in Union territory” means the aggregate value of all taxable supplies (excluding the value of inward supplies on which tax is payable by a person on reverse charge basis) and exempt supplies made within a State or Union territory by a taxable person, exports of goods or services or both and inter-State supplies of goods or services or both made from the State or Union territory by the said taxable person but excludes CGST, SGST, UTGST, IGST and cess.
In the case where an Assessee is only engaged in supply of services outside India for which payment is received by it in later months. The amount received by assessee in a part

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ro-rated supply of services as per Clause(D) i.e. payments received for zero-rated supply of services during the relevant period.
It may be noted that taking the value of invoice raised for export services might give absurd & unintended results, in case of assessees where the amount received is less than value of invoice raised during any tax period, as its refund would get restricted to the extent of payment received. The said assessee would not be able to claim the said refund amount in any future tax periods. Thus, the assessee who is an 100% Export Oriented Undertaking would not be able to claim 100% refund of GST paid by it on inputs & input services received for providing export services, which is not the intention of law. The same is explained with the help of an example below:
Value of Export invoice raised in July, 2017 – 1,00,000/-
Payment received during July, 2017 – 80,000/-
ITC taken in July, 2017 – 10,000/-
Refund amount = 10000 x 80000 / 100000 = 8000/-
In the abov

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e state or union territory is ₹ 1,00,000/-.
Total ITC availed by you is ₹ 10,000/-.
Therefore the refund amount is 1,00,000X10,000 divided by 1,00,000.
Payment received by you do not have any significance for filing the refund claim. By the above calculation myour eligible refund will be Ra. 10,000/-
Reply By Amit Khurana:
The Reply:
Dear Sir,
Thank you for your reply. However, I would like to draw your attention to the definition of "Turnover of Zero-Rated Supply of Services" as mentioned in Rule 89(4):
“Turnover of zero-rated supply of services” means the value of zero-rated supply of services made without payment of tax under bond or LUT, calculated in the following manner, namely :-
Zero-rated supply of services is the aggregate of the payments received during the relevant period for zero-rated supply of services and zero-rated supply of services where supply has been completed for which payment had been received in advance in any period prior to the r

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No IGST on High Seas Sales; Input Tax Credit Must Be Reversed for In-Transit Goods Sales Before Customs Clearance.

No IGST on High Seas Sales; Input Tax Credit Must Be Reversed for In-Transit Goods Sales Before Customs Clearance.
Case-Laws
GST
Levy of IGST – High Seas Sale – Goods purchased from overseas related party situated abroad based on purchase order received from its customers and sold when in transit to its customers before the goods are entered for customs clearance in India – NO IGST – However, ITC is required to be reversed.
TMI Updates – Highlights, quick notes, marquee, annotation,

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In Re: Amaravathi Metro Rail Corporation Limited

In Re: Amaravathi Metro Rail Corporation Limited
GST
2018 (11) TMI 400 – AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH – 2018 (18) G. S. T. L. 851 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH – AAR
Dated:- 2-7-2018
AAR/AP/07(GST)/2018 in Application No. AAR/12(GST)/2018
GST
SRI. J.V.M SARMA AND SRI. AMARESH KUMAR, MEMBER
Present for the Applicant: Sri R. Narasimha Murthy
Present for the Jurisdictional Officer: Remarks Remarks
Note: Under Section 100 of the APGST Act'2017, an appeal against this ruling lies before the appellate authority for advance ruling constituted under section 99 of APGST Act'2017, within a period of 30 days from the date of service of this order.
M/s. AMARAVATHI METRO RAIL CORPORATION LIMITED, # 40-3-18, Floor, Gummadi Gopala Rao Street, Labbipet, Vijayawada, Andhra Pradesh, India (hereinafter also referred as applicant/AMRCL), having GSTIN: 37AANCA9264G1Z8 is incorporated under the Companies Act,2013 to undertake the deve

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, NMT plan and consultancy services of transaction advisors/preparation of DPRs comes within the purview of the functions of Municipality under article 243W read with Twelfth Schedule to the constitution of India, to fall within the purview of the aforesaid exemption notification.
As per the Section 98(1) of CGST/ APGST Act' 2017, copy of the said application is forwarded to the Jurisdictional Tax Officer, i.e Assistant Commissioner (State Tax), Krishna lanka Circle, Vijayawada to offer their remarks if any, as the taxpayer was allotted to 'STATE' in the bifurcation of taxpayers between the 'CENTRE' and the 'STATE'. A mail dated 21st June 2018 is received from the jurisdictional officer indicating that no issues / proceedings are pending on the questions raised by the applicant in his application.
3. A personal hearing is fixed on 25th June 2018, wherein Shri. R.Narasimha Murthy, an authorized representative of the applicant attended and made submissions on the issues raised in their

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We have observed that AMRCL is a SPV which is set up vide Government of Andhra Pradesh G.O. Ms. 141 of MA &UD. The applicant has also submitted that it is 100% owned by state of A.P.; that it is answerable to Government of Andhra Pradesh; that its Chairman is the Principal Secretary. The Government of Andhra Pradesh, issued G.O. Rt.No: 599, MA&UD(H2) Department, dated 14.09.2015, in which, the Government of Andhra Pradesh has decided that the special purpose vehicle for Vijayawada Metro Rail Project, hence forth be called as AMARAVATHI METRO RAIL CORPORATION LIMITED (AMRC)'. Based on above facts, it is evident that the applicant is a Government authority as per the Notification No. 12/2017 – Central Tax dated 28th June 2017.
4.3.1 Now we will examine Whether the consultancy services for preparation of transport studies such as Comprehensive Mobility plan, Transit Oriented Development Plan, Integrated Public Transport Plan and Non Motorized Transport plan (IPT &NMT )plan and consultan

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luding those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.
List of items covered under 12th Schedule of Indian Constitution:
1. Regulation of land use and construction of land buildings.
2. Urban planning including the town planning.
3. Planning for economic and social development
4. Urban poverty alleviation
5. Water supply for domestic, industrial and commercial purposes
6. Fire services
7. Public health sanitation, conservancy and solid waste management
8. Slum improvement and up-gradation
9. Safeguarding the interests of the weaker sections of society, including the physically handicapped and mentally unsound
10. Urban forestry, protection of environment and promotion of ecological aspects
11. Construction of roads and bridges
12. Provision of

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nsport remains an integral part of urban planning at all the times and cities are planned in a wholistic manner. Therefore, we held that Urban Transportation also is a part of Urban Planning.
4.3.3 Further more, the proposed activity of AMRCL also appears to be getting covered under following items of the 12th Schedule:
“Public amenities including street lighting, parking spaces, bus stops and public conveniences”
4.3.4 As submitted by the applicant, AMRCL has entrusted the following transport studies,
(a) The Transit Oriented Development Plan for Vijayawada.
(b) Transit Oriented Development Plan for Visakhapatnam.
(c) Comprehensive Mobility plan for Vijayawada.
(d) Comprehensive mobility plan for Visakhapatnam.
(e) CMPs for nine (9) Municipalities in the AP state.
(f) Integrated public transport plan and non-motorized transport plan for Vijayawada.
(g) Transaction Advisory services for Visakhapatnam Metro.
(h) DPR for high speed sub-urban Rail (Circular Rail) in Capital Re

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All India Liquid Bulk Importers & Exporters Association Versus Union of India & Ors.

All India Liquid Bulk Importers & Exporters Association Versus Union of India & Ors.
GST
2018 (9) TMI 1641 – BOMBAY HIGH COURT – TMI
BOMBAY HIGH COURT – HC
Dated:- 2-7-2018
WRIT PETITION NO. 1226 OF 2018
GST
S.C. DHARMADHIKARI & SMT. BHARATI H. DANGRE, JJ.
Mr. Prakash Shah with Mr. Nikhil Rungta and Mr. Jas Sanghvi i/b P.K. Shetty for the Petitioners.
Ms. Jyoti Chavan, AGP, for the Respondent Nos.1 and 2. Mr. Pradeep S. Jetly with Jitendra B. Mishra for the Respondent Nos.3 and 4.
P.C. :
1 After this writ petition was argued for some time, rather at great length, and detailed affidavits being placed on record, we indicated to Mr. Prakash Shah, learned counsel appearing for the petitioner that it is not for this Cou

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The Mizoram Goods and Services Tax (Sixth Amendment) Rules, 2018.

The Mizoram Goods and Services Tax (Sixth Amendment) Rules, 2018.
28/2018-State Tax Dated:- 2-7-2018 Mizoram SGST
GST – States
Mizoram SGST
Mizoram SGST
No.J.21011/2(ii)/2018-TAX/Pt
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
….
NOTIFICATION
No. 28/2018-State Tax
Dated Aizawl the 2nd July, 2018
In exercise of the powers conferred by section 164 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Governor of Mizoram hereby makes the following rules further to amend the Mizoram Goods and Services Tax Rules, 2017, namely:-
(1) These rules may be called the Mizoram Goods and Services Tax (Sixth Amendment) Rules, 2018.
(2) Save as otherwise provided in these rules, they shall come into force on the

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number, he shall not be eligible to use any of the Goods and Services Tax Identification Numbers for the purposes of the said Chapter XVI.”;
(ii) in rule 138C, after sub-rule (1), the following proviso shall be inserted, namely:-
“Provided that where the circumstances so warrant, the Commissioner, or any other officer authorised by him, may, on sufficient cause being shown, extend the time for recording of the final report in Part B of FORM EWB-03, for a further period not exceeding three days.
Explanation.- The period of twenty four hours or, as the case may be, three days shall be counted from the midnight of the date on which the vehicle was intercepted.”;
(iii) in rule 142, in sub-rule (5), after the words and figures “of section 7

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The Mizoram Goods and Services Tax (Fifth Amendment) Rules, 2018.

The Mizoram Goods and Services Tax (Fifth Amendment) Rules, 2018.
26/2018-State Tax Dated:- 2-7-2018 Mizoram SGST
GST – States
Mizoram SGST
Mizoram SGST
No.J.21011/2/2018-TAX/Pt
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
….
NOTIFICATION
No. 26/2018-State Tax
Dated Aizawl the 2nd July, 2018
In exercise of the powers conferred by section 164 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Government of Mizoram hereby makes the following rules further to amend the Mizoram Goods and Services Tax Rules, 2017, namely:-
(1) These rules may be called the Mizoram Goods and Services Tax (Fifth Amendment) Rules, 2018.
(2) Save as otherwise provided, they shall come into force on the date of their publication in the Official Gazette.
2. In the Mizoram Goods and Services Tax Rules, 2017, –
(i) in rule 37, in sub-rule (1), after the proviso, the following proviso shall be inserted, namely:-
“Provided further that the value of supplies on accoun

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which refund is claimed under sub-rules (4A) or (4B) or both; and
(b) Adjusted Total turnover shall have the same meaning as assigned to it in sub-rule (4).”
(iv) with effect from 01st July, 2017, in rule 95, in sub-rule (3), for clause (a), the following shall be substituted, namely:-
“(a) the inward supplies of goods or services or both were received from a registered person against a tax invoice;”;
(v) in rule 97, in sub-rule (1), after the proviso, the following proviso shall be inserted, namely:-
“Provided further that an amount equivalent to fifty per cent. of the amount of cess determined under sub-section (5) of section 54 read with section 11 of the Goods and Services Tax (Compensation to States) Act, 2017 (15 of 2017), shall be deposited in the Fund.”;
(vi) in rule 133, for sub-rule (3), the following shall be substituted, namely:-
“(3) Where the Authority determines that a registered person has not passed on the benefit of the reduction in the rate of tax on the

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tration under the Act.
Explanation: For the purpose of this sub-rule, the expression, “concerned State” means the State in respect of which the Authority passes an order.”;
(vii) in rule 138, in sub-rule (14), after clause (n), the following clause shall be inserted, namely:-
“(o) where empty cylinders for packing of liquefied petroleum gas are being moved for reasons other than supply.”;
(viii) in FORM GSTR-4, in the Instructions, for Sl. No. 10, the following shall be substituted, namely:-
“10. For the tax periods July, 2017 to September, 2017, October, 2017 to December, 2017, January, 2018 to March, 2018 and April, 2018 to June, 2018, serial 4A of Table 4 shall not be furnished.”;
(ix) with effect from 01st July, 2017, in FORM GST PCT-01, in PART B,
(a) against Sl. No. 4, after entry (10), the following shall be inserted, namely:-
“(11) Sales Tax practitioner under existing law for a period of not less than five years
(12) tax return preparer under existing law for a

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(b) for Statement 5B, the following Statement shall be substituted, namely:-
“Statement 5B
[see rule 89(2)(g)]
Refund Type: On account of deemed exports
(Amount in Rs)
Sl.No.
Details of invoices of outward supplies in case refund is claimed by supplier/Details of invoices of inward supplies in case refund is claimed by recipient
Tax paid
GSTIN of the supplier
No.
Date
Taxable Value
Integrated Tax
Central Tax
State Tax /Union Territory Tax
Cess
1
2
3
4
5
6
7
8
9
;”
(xi) in FORM GST RFD-01A, in Annexure-1,
(a) for Statement 1A, the following Statement shall be substituted, namely:-
“Statement 1A
[see rule 89(2)(h)]
Refund Type: ITC accumulated due to inverted tax structure [clause (ii) of first proviso to section 54(3)]
Sl.No.
Details of invoices of inward supplies received
Tax paid on inward supplies
Details of invoices of outward supplies issued
Tax paid on outward supplies
GSTIN of the supplier
No.
Date
Taxable Value
Integrated Tax
Central Tax

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The Delhi Goods and Services Tax (Fourth Amendment) Rules, 2018.

The Delhi Goods and Services Tax (Fourth Amendment) Rules, 2018.
21/2018-State Tax Dated:- 2-7-2018 Delhi SGST
GST – States
Delhi SGST
Delhi SGST
GOVERNMENT OF THE NATIONAL CAPITAL TERRITORY OF DELHI
FINANCE (REVENUE-1) DEPARTMENT
NOTIFICATION
Delhi, the 2nd July, 2018
No. 21/2018-State Tax
No. F. 3 (2)Fin(rev.-I)/2018-19/DS-VI/294.-In exercise of the powers conferred by section 164 of the Delhi Goods and Services Tax Act, 2017 (Delhi Act 03 of 2017), the Lt. Governor of National Capital Territory of Delhi, hereby makes the following rules further to amend the Delhi Goods and Services Tax Rules, 2017, namely:-
(1) These rules may be called the Delhi Goods and Services Tax (Fourth Amendment) Rules, 2018.
(2) Save as otherwise provided, they shall come into force from 18th April, 2018.
2. In the Delhi Goods and Services Tax Rules, 2017, –
(i) in rule 89, for sub-rule (5), the following shall be substituted, namely:-
“(5). In the case of refund on account of inver

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f the amount of integrated tax determined under sub-section (5) of section 54 of the Central Goods and Services Tax Act, 2017, read with section 20 of the Integrated Goods and Services Tax Act, 2017, shall be deposited in the Fund.
(2) Where any amount, having been credited to the Fund, is ordered or directed to be paid to any claimant by the proper officer, appellate authority or court, the same shall be paid from the Fund.
(3) Accounts of the Fund maintained by the Central Government shall be subject to audit by the Comptroller and Auditor General of India.
(4) The Government shall, by an order, constitute a Standing Committee (hereinafter referred to as the 'Committee') with a Chairman, a Vice-Chairman, a Member Secretary and such other members as it may deem fit and the Committee shall make recommendations for proper utilisation of the money credited to the Fund for welfare of the consumers.
(5) (a) The Committee shall meet as and when necessary, generally four times in a year;

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documents, instruments, or commodities in custody and control of the applicant, as may be necessary for proper evaluation of the application;
(c) to require any applicant to allow entry and inspection of any premises, from which activities claimed to be for the welfare of consumers are stated to be carried on, to a duly authorised officer of the State Government, as the case may be;
(d) to get the accounts of the applicants audited, for ensuring proper utilisation of the grant;
(e) to require any applicant, in case of any default, or suppression of material information on his part, to refund in lump-sum along with accrued interest, the sanctioned grant to the Committee, and to be subject to prosecution under the Act;
(f) to recover any sum due from any applicant in accordance with the provisions of the Act;
(g) to require any applicant, or class of applicants to submit a periodical report, indicating proper utilisation of the grant;
(h) to reject an application placed before it o

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) for making available grants (on selective basis) for reimbursing legal expenses incurred by a complainant, or class of complainants in a consumer dispute, after its final adjudication;
(d) for making available grants for any other purpose recommended by the Central Consumer Protection Council (as may be considered appropriate by the Committee);
(e) for making available up to 50% of the funds credited to the Fund each year, for publicity/consumer awareness on GST, provided the availability of funds for consumer welfare activities of the Department of Consumer Affairs is not less than twenty five crore rupees per annum.
Explanation.- For the purposes of this rule,
(a) 'applicant' means,
(i) the Central Government or State Government;
(ii) regulatory authorities or autonomous bodies constituted under an Act of Parliament or the Legislature of a State or Union Territory;
(iii) any agency or organization engaged in consumer welfare activities for a minimum period of thre

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specified by the Standing Committee from time to time;
(c) 'Central Consumer Protection Council' means the Central Consumer Protection Council, established under sub-section (1) of section 4 of the Consumer Protection Act, 1986 (68 of 1986), for promotion and protection of rights of consumers;
(d) 'Committee' means the Committee constituted under sub-rule (4);
(e) 'consumer' has the same meaning as assigned to it in clause (d) of sub-section (1) of section 2 of the Consumer Protection Act, 1986 (68 of 1986), and includes consumer of goods on which central tax has been paid;
(f) 'Fund' means the Consumer Welfare Fund established by the State Government under section 57 of the Delhi Goods and Services Tax Act, 2017 (03 of 2017);
(g) 'proper officer' means the officer having the power under the Act to make an order that the whole or any part of the state tax is refundable;
(iii) in FORM GST ITC-03, after entry 5 (e), for the instruction against “**”,

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ery
Unit Quantity Code (UQC)
Qty
Value (As adjusted by debit/credit note)
Input tax credit/Tax payable (whichever is higher) (Rs.)
No.
Date
Central tax
State/Union territory tax
Integrated tax
Cess
1
2
3
4
5
6
7
8
9
10
11
12
8 (a) Inputs held in stock (where invoice is available)
8 (b) Inputs contained in semi-finished or finished goods held in stock (where invoice is available)
8 (c) Capital goods/plant and machinery held in stock
8 (d) Inputs held in stock or inputs as contained in semi-finished /finished goods held in stock ( where invoice is not available)
9. Amount of tax payable and paid (based on Table 8)
Sr.No.
Description
ITC reversible/Tax payable
Tax paid along with application for cancellation of registration (GST REG- 16)
Balance tax payable (3-4)
Amount paid through debit to electronic cash ledger
Amount paid through debit to electronic credit ledger
Central Tax
State/Union territory Tax
Integrated Tax
Cess
1
2
3
4

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uct tax at source under section 51; and
(v) Persons required to collect tax at source under section 52.
2. Details of stock of inputs, inputs contained in semi-finished or finished goods and stock of capital goods/plant and machinery on which input tax credit has been availed.
3. Following points need to be taken care of while providing details of stock at Sl. No.8:
(i) where the tax invoices related to the inputs held in stock or inputs contained in semi-finished or finished goods held in stock are not available, the registered person shall estimate the amount under sub-rule (3) of rule 44 based on prevailing market price of the goods;
(ii) in case of capital goods/ plant and machinery, the value should be the invoice value reduced by 1/60th per month or part thereof from the date of invoice/purchase taking useful life as five years.
4. The details furnished in accordance with sub-rule (3) of rule 44 in the Table at Sl. No. 8 (against entry 8 (d)) shall be duly certified by a pr

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M/s. Kasturi & Sons Ltd. Versus Principal Commissioner of GST & Central Excise Chennai North Commissionerate

M/s. Kasturi & Sons Ltd. Versus Principal Commissioner of GST & Central Excise Chennai North Commissionerate
Service Tax
2018 (7) TMI 702 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 2-7-2018
ST/Misc. /40867/2017 and ST/40543/2017 – Final Order No. 41939/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial)
Shri T.R. Ramesh, Advocate for the Appellant
Shri R. Subramaniam, AC (AR) for the Respondent
ORDER
Brief facts are that the appellants is a publisher of newspapers 'The Hindu, Business Line' and magazines such as 'Front Line' and 'Sports Star' and also engaged in providing various other services. During the course of audit, it was observed that the appellant had conducted various competitive programmes for kids and students in the field of painting and quiz competition etc. They had received sponsorship from various sponsors for conducting the above programme and collected service tax for the sponsorship services provided by them. It appeared that

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or decorator service, quiz master service etc. were availed for conducting events such as quiz competition, painting competition etc. The appellant had provided sponsorship services for conducting all these events. By mistake, the appellant had collected the service tax in respect of sponsorship service but had remitted the same to the Central Government. The department now alleges that the input services availed for providing the sponsorship services are not eligible for credit. Merely because the appellant had wrongly discharged the service tax on sponsorship services instead of the service recipient, the input services cannot be held to be ineligible for credit. Since the sponsorship services are taxable services, for which the input services were used by the appellant, the department has wrongly denied the credit. He submitted that there are several decision which have held that even though the process does not amount to manufacture, the credit availed on the inputs cannot be denie

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ent of service tax. At the most, it was only an erroneous payment of service tax on the part of the appellant. Instead of the service tax being discharged by the service recipient in the case of sponsorship services, the appellant discharged the service tax by collecting the same from the service recipient. The input services were used for the output services and therefore the credit availed is eligible.
3. The ld. AR Shri R.Subramaniam supported the findings in the impugned order. He submitted that the appellant is not liable to pay service tax on sponsorship services. The service recipient ought to have paid the same. The appellant has wrongly collected the service tax on sponsorship services and utilized the credit on various input services to discharge the payment of service on sponsorship service. Thus, the input services used for providing the output service namely sponsorship services are not eligible for credit. He relied on the decision of the Tribunal in the case of Jaipur I

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s not paid the service tax on these input services nor is there a case that they are not used for providing sponsorship service. The only allegation is that the appellant ought not to have collected the service tax on sponsorship service. Generally, it is the output service provider who has to pay the service tax and in some cases like sponsorship services, the Service Tax Rules provide that the liability to pay service tax is upon the service recipient. Appellant has collected service tax wrongly from service recipient and paid to Central Government instead of the service recipient paying it directly to Central Government for sponsorship services. For the mere same reason, it is alleged that the credit has been wrongly availed on various input services used for providing sponsorship services. In para 3.15 of the adjudication order, it is brought out that the appellant has declared the credit of service tax paid on input services in their ST-3 returns. Thus, the credit availed as well

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In Re : M/s JSW Energy Limited

In Re : M/s JSW Energy Limited
GST
2018 (7) TMI 511 – APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (14) G. S. T. L. 571 (App. A. A. R. – GST), [2019] 69 G S.T.R. 88 (AAAR)
APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAAR
Dated:- 2-7-2018
MAH/AAAR/SS-RJ/01/2018-19
GST
Rajiv Jalota (Member) and Smt. Sungita Sharma, (Member)
PROCEEDINGS
(under Section 101 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the MGST Act.
The present appeal has been filed under Section 100 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter

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Appellant's power plant is divided into four units and the said Job Work Arrangement is pertaining to Unit III and Unit IV of the power plant. These are in the nature of captive power units and by virtue of the arrangement, JSL would be construed as Principal and JEL would be working as Job Worker.
D In terms of the proposed arrangement, JSL would procure coal or any other inputs (herein after collectively referred to as 'inputs') and supply the same to the Appellant for the purpose of carrying out the activity of generation of power. On receipt of the same, Appellant would, undertake certain processes to convert the said inputs into power. The detailed process is explained in Exhibit – 1 to the Appeal. The power generated from the aforesaid process on inputs will be supplied back to JSL for which the Appellant would be receiving job work charges as per the rate that would be agreed as per the Job Work Arrangement. During the whole process under the Job Work Agreement, the

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lso made additional written submissions on 20.02.2018 reiterating all the submissions made in the application and certain additional grounds including response to queries raised by AAR. A copy of the additional submissions was enclosed as Exhibit – 3 to the Appeal.
Order passed by AAR
H. The Order dated 05.03.2018, received by the appellant on 09.03.2018, has been passed by AAR holding that the proposed transaction amounts to manufacture and therefore it would not qualify as 'job work' under GST on account of the following:
i. The proposed activity of the Appellant is manufacture which cannot be read into the words 'treatment or process' as found in the definition of 'job work'.
ii. The Impugned Order, relying on the decision of Manganese Ore India Ltd. V. State of M.P. [(2017) 1 SSC 81] has held that intent of the legislation is not to cover such 'treatment or process' into the ambit of the 'job work' which results into a distinct commodit

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GROUNDS OF APPEAL
JOB WORK WIDER IN SCOPE TO ALSO INCLUDE MANUFACTURE
The AAR has grossly erred in passing the Impugned Order in law while attempting to interpret job work as a process or treatment which does not result in manufacture of a distinct commodity.
2. On perusal of the relevant provisions of CGST Act, it is submitted that if all of the following conditions are fulfilled, the transaction would qualify as an activity of job work and consequently the Principal will be allowed to send the goods without payment of tax viz:
 (i) Treatment or process should be undertaken by a person;
 (ii) Such treatment or process should be on goods; and
 (iii) These goods should belong to another registered person
3. The Impugned Order does not dispute the fact that the conditions stated above are getting fulfilled in respect of the transaction between JSL and the Appellant, except condition (i) as stated above. The entire edifice on which the Impugned Order stands is

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nput goods into a new commodity. For this proportion, we draw support from the decision of the Hon. Supreme Court in Manganese Ore India Ltd. v. State of M.P., (2017) 1 SCC 81 : 2016 SCC Online SC 1280 which has very lucidly explained the meaning of the term 'treatment and processing'.
……..
……..
Page 10 of the Impugned Order after the definition of 'manufacture' under the CGST Act,
As can be seen the definition itself says that the emergence of a new product from the processing of the inputs would be a manufactured product. In the Instant case the end product i.e. “electricity” has a distinct name, character and use than the inputs i.e. “coal”. Thus, when the Legislature has provided for the definition of 'job work' as well as 'manufacture', the meaning as understood by the definition of 'manufacture' cannot be read into the words 'treatment or process' as found in the definition of 'job work'. 'Treatment',

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” means processing of raw material or inputs in any manner that results in emergence of a new product having a distinct name, character and use and the term “manufacturer” shall be construed accordingly;”
5. The harmonious interpretation of the above definitions, in order to understand the meaning of job work' can be explained by way of the following diagram –
6. On perusal of the definition as illustrated by way of above diagram, it is evident that every processing activity when carried out on the raw material or inputs belonging to another person will qualify as job work. However, when such job work results in emergence of a new and distinct commodity, only then it falls within the ambit of manufacture. Therefore, the way terms have been defined under the CGST Act, manufacturing activity is a sub-set of job work. That is to say if a person undertakes processing of raw material / inputs belonging to another person then the said activity would qualify as job work, which if result

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VAT Credit Rules, 2004 ('Cenvat Rules').
9. The Appellant wants to place reliance on the FAQ on GST issued by the CBEC updated till January 1, 2018, in which CBEC clarified that the definition under CGST Act is much wider than the one given under the Notification. The copy of the FAQ is enclosed with the Appeal as Exhibit – 5. The relevant extract of the FAQ is reproduced herein:
“Q1. What is job work?
Ans. Job work means undertaking any treatment or process by a person on goods belonging to another registered taxable person. The person who is treating or processing the goods belonging to other person is called 'job worker' and the person to whom the goods belongs is called 'principal'.
This definition is much wider than the one given in Notification No. 214/86 – CE dated 23rd March 1986. In the said notification, job work has been defined in such a manner so as to ensure that the activity of job work must amount to manufacture. Thus, the definition of job w

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processing. Many facilities, procedural concessions have been given to the job workers as well as the principal supplier who sends goods for job-work. The whole idea is to make the principal responsible for meeting compliances on behalf of the job-worker on the goods processed by him (job-worker), considering the fact that typically the job-workers are small persons who are unable to comply with the discrete provisions of the law.
The GST Act makes special provisions with regard to removal of goods for job-work and receiving back the goods after processing from the job-worker without the payment of GST. The benefit of these provisions shall be available both to the principal and the job-worker.”
11. Given the above, it is evident that CBEC itself emphasize on the widening of the scope of job work under the GST Regime which inter-alia includes every kind of processing activity, whether resulting into manufacture or not. Therefore, taking any contrary view would lead to an incongruous

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to manufacture, and just because activities undertaken result in a new commodity, it cannot be said that there was no job work involved. The relevant paragraph is reproduced below
“We observe that there is no dispute by the Revenue on the duty payments made on the finished products, namely, hydraulic power pocks by the appellant which were cleared from the job workers' premises. There is also no allegation of undervaluation of the finished products either in the show cause notice nor any such findings has been recorded in the impugned order. Once the finished product has correctly discharged the liability there cannot be any leakage of revenue. Cenvat credit envisages that duty/tax paid on the input/input services will be available for discharge of duty liability on the finished products. It is not in dispute that the inputs were used in the fabrication/assembly of the finished products. Similarly, it is also not in dispute thot finished products did emerge at the job-workers'

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of the Hon'ble Tribunal is clearly applicable in the facts of the present case in as much as the Impugned Order has held that the proposed activity of the Appellant cannot amount to job work since the activities undertaken by the Appellant would result into a distinct commodity. In view of the above decision, the proposed activity would amount to job work even if it amounts to manufacture.
14. In case of Commissioner of Central Excise, Mumbai-IV vs Ruby Mills Ltd. (2016 (343) E.L.T. 395 (Tri. Mumbai)) while considering the valuation method for an activity undertaken by the job worker, the Mumbai Bench of Tribunal upheld findings of the First Appellant Authority that job worker may undertake an activity which results in manufacture. The relevant extract of the judgment is reproduced below:
“11. We also find that the first appellate authority has correctly enunciated the law as to the activity of job work as to how it should be understood and the valuation of the said goods to be

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is submitted that the processing activity carried out on inputs owned by another person amounts to job work even if the resultant product is a distinct commodity.
ELECTRICITY CAN BE GENERATED ON JOB WORK IS A SETTLED LAW
17. The Appellant submits that it is well settled inter-alia in terms of the below mentioned judgments of the Courts that electricity being intermediate goods used in the manufacture of final product, can be generated on job work basis:
* Commissioner of Central Excise, Nagpur vs Indorama Textiles Ltd. (2010 (260) ELT 382 (Bom HC))
* Haldia Petrochemicals Ltd vs CCE, Haldia (2006(197) ELT 97 (Tri.- Delhi))
* Sanghl Industries Limited vs CCE, Rajkot (2006(206) ELT 575 (Tri.- Delhi))
* Sanghi Industries Limited vs CCE, Rajkot (2014(302) ELT 564 (Trl.- Ahmd.))
18. The above judgments cover Instances where materials (such as naphtha, light diesel oil, furnace oil, etc.) were supplied to the job worker for carrying out a specified process for the purpose of gener

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ate goods. There is no challenge to understanding/agreement between Respondent No. 1 and M/s. IRSL. We do not find anything perverse in findings recorded in paragraph 6 of the order No. A/67/2007/EB-C-ll, dated 31-1-2007 in Appeal No. E/3701/05-Mum. These reasons hold good even for second matter.”
19. Further the Supreme Court dismissed the appeal petition filed by the Commissioner of Central Excise Nagpur against the order of the Hon'ble Bombay High Court in the matter of Indorama Textiles Ltd (supra) – Commissioner of Central Excise, Nagpur vs Indorama Textiles Ltd.( 2010(260) E.L.T. A83(SC))
CGST Act does not provide for Restrictive Meaning of the word 'process' used in the Definition of Job Work
20. The Impugned Order has held that the word 'process' used in the definition of job work has to be read narrowly so as to exclude activities resulting in manufacture. The Appellant submits that wherever the intention of the law maker is to give a restricted meaning

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tute a composite supply”
21. The 'job work' definition does not provide any exclusion to 'manufacture' and hence should not be read narrowly. It is a settled law that the Act should be read as it is written without adding words not mentioned thereunder.
22. in view of the above submissions, the findings and assertions made by the Impugned Order as regards the differential meaning being assigned to the term 'process' used in job work as well as manufacture is based on erroneous understanding of fact and law and is unsustainable.
Commercial Parlance and Dictionary Meaning
23. The Appellant submits that since the terms 'treatment' or 'process' have not been defined under the GST legislation, reference is sought to the dictionary meaning which explain the said terms and are reproduced as follows:
Process
* a natural or involuntary operation or series of changes; handle or deal with by a particular process (The Oxford English Reference Dictionary 1

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g to Oxford Dictionary one of the meanings of the word process' is “a continuous and regular action or succession of actions taking place or carried on in a definite manner and leading to the accomplishment of some result.” The activity contemplated by the definition is perfectly general requiring only the continuous or quick succession. It is not one of the requisites that the activity should involve some operation on some material in order to its conversion to some particular stage. There is nothing in the natural meaning of the word 'process' to exclude its application to handling. There may be a process which consists only in handling and there may be a process which involves no handling or not merely handling but use or also use. It may be a process involving the handling of the material and it need not be a process involving the use of material…
25. In light of the above cited meanings and judicial interpretation, it is submitted that the term process is wide enoug

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ent relied upon in the Impugned Order, suggests a different application of the word 'process' very specific to the term used in relation to the mining activity and has no relevance in the current context.
28. It is a well settled position in law inter alia by the judgment of the Hon'ble Supreme Court in Bharat Petroleum Corporation Ltd. & Another vs. N.R. Vairamani & Another (AIR 2004 SC 4778) that reliance cannot be placed on decisions without discussing as to how the factual situation of a case fits in with the facts of the decision on which reliance is placed. Further in the case of Pan Parag India Ltd vs. DGFT (2016 (3 36) ELT 625 (Del))it was held that it is a settled law that precedent decisions are binding only when factual situation therein fits case under decision. Further, the observations of Courts must be read in the context in which they appear to have been stated.
29. The factual matrix in the Manganese Ores India Limited (Supra) can clearly be distinguished

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ps. In the Explanation, 'processing' is used in conjunction with other words i.e. crushing, treating and transporting and therefore, it was preferred to interpret the said word in the Explanation with reference to the words before and after it i.e. to be understood with the associated words. Further, it was held that the words 'crushing', 'treating' and 'transporting' are words of narrower significance and hence, the word 'processing' used between these words should also be given a narrower significance.
31. The Impugned Order fails to recognize the fact that in the same judgment the Hon'ble Apex Court held that the word 'processing' can have a wider meaning which would also include manufacturing. However, in the context of that case the word 'processing' has to be interpreted as per the Mines Act, 1952 and therefore will be restricted to the sense conveyed by the words 'crushing', 'treating' and 'transpor

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product…[Para 20)”
32. Therefore, it is submitted that the Impugned Order has erred in referring to the above decision, which was rendered in different factual and legal context while considering diverse issues, and which do not advance or support the findings in the Impugned Order.
Without prejudice, the HSN Code applicable to certain Job Work uses the word 'Manufacturing Service'
33. Without prejudice to any other submissions, the Impugned Order failed to appreciate that the HSN Code applicable for the certain specified job work activity clearly uses the word 'Manufacturing services'.
34. The applicable rate of tax in respect of services are provided in the Notification No. 11/ 2017 -Central Tax (Rate) dated 28.06.2017 (as amended from time to time) ('Rate Notification'). For certain specified job work services, the applicable HSN Code under the Rate Notification is '9988'.
SI No.
Chapter, Section or “heading
Description of Service
Rate (per

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ds falling under Chapter 48 or 49, which attract CGST @ 6 per cent.
6
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(iii)…
2.5

(iv) Manufacturing services on physical inputs (goods) owned by others, other than (i), (ia), (ii), (iia) and (iii) above.
9
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35. It is submitted that the above mentioned HSN Code describe the service as “Manufacturing services on physical inputs (goods) owned by others” which inter-alia includes various different kind of job work services. The description itself indicates that the activity undertaken by the job worker can amount to manufacture. Considering this, it is the submission of the Appellant that the Impugned Order holding that proposed activity of the Appellant does not amount to job work since it amounts to manufacture is bad in law and must be set aside.
36. In view of the various submissions made above and on the harmonious reading of the CBEC clarifications, judgments cited in earlier paragraphs to this Appeal, definitions under CGST Act and dictionary meanings

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ifies as job work even if it amounts to manufacture may be confirmed.
any other consequential relief that this Appellate Authority may deem proper be granted.
Hearing and submissions
37. The representative who appeared on behalf of the appellant during the hearing proceedings deposed that AAR has misinterpreted the definition of Job work and construed that the treatment and process undertaken by a person on goods belonging to the other registered person should not result into distinct manufactured commodity and accordingly concluded that electricity generated by the appellant using the coal supplied by JSL is a different commodity with different name and use, thereby rendering the entire process/activities undertaken by the appellant as manufacture in terms of the definition as provided under Section 2(72) of the CGST Act, 2017. Thus, the process/treatment performed by the appellant on the coal supplied by JSL would not be covered under the Job work. The Appellant's representati

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osed;
(i) that processing of raw materials/inputs belonging to another registered person under job work procedure may or may not result into the emergence of new commodity.
(ii) That the definition of the 'Job work' under the GST Act, 2017 has widened the scope of the activities covered under the 'Job work' as compared to the definition provided under Notification No. 214/86-C.Ex. dated 23.03.1986
(iii) That any treatment or process by a person on goods belonging to another registered person is 'Job work', the person who treats or processes the inputs is called 'Job worker' and person to whom the goods belong is called 'Principal';
(iv) That Job work sector includes outsourced activities that may or may not culminate into manufacture
The appellant in their support referred to 2nd Edition : 31st March, 2017 (updated as on 1st January, 2018 of FAQ on GST issued by CBIC and the clarification issued by CBEC on Job work)
The appellant further de

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 (v) Sanghi Ind. Ltd. Vs. CCE, Rajkot (Tri-Ahmd.)
The above four judgements cover instances where goods/materials such as Naphtha, Light Diesel Oil, Furnace Oil etc. were supplied to the job worker for the purpose of generation of electricity
The appellant further referred to the following judgements
 (i) Collector of C.Ex. V/s. Rajasthan State Chemical Works (S.C.)
Para 2B – Bharat Petroleum, Pan Parag
Also, the representative of the appellant deposed that service codes have been given in the Chapter 99 of GST Tariff – Services and In Section 8, Heading No. 9988 at Sr.No. (iv), the services have been described as “manufacturing services” on physical inputs (goods) owned by others. During the course of hearing, when being asked about the present system for supply of electricity to their manufacturing units and whether they have any captive coal-run power plant in their manufacturing units for generation and supply of electricity, the appellant's representative

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nt's representative concluded his arguments with prayer that the impugned order passed by the Authority for Advance Ruling be set aside and appeal may be allowed.
38. Shri K.K. Srivastava, Addl. Commissioner, Kolhapur, CGST & C. Ex. Commissionerate who appeared on behalf of the concerned/jurisdictional Commissionerate representative contended the submissions/arguments offered by the appellant's representative saying that M/s. JEL are the manufacturer of electricity where coal is one of the main raw materials which is used as fuel in their coal fired power plant, whereas M/s. JSL are the manufacturer of steel and coal is not an input for the manufacture of steel as per the Standard Input Output Norms specified as per the Import Export Policy. The jurisdictional officer deposed that M/s. JSL are not having 'in-house coal fired power plant' for production of electricity for captive consumption and hence coal cannot be considered as input and hence cannot be sent for furth

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f the coal i.e the input has been completely lost. He further deposed that the coal neither being the raw material for the manufacture of steel or steel products by M/s. JSL nor being used as inputs for generation of electricity in the in-house coal fired power plant for captive consumption as discussed above does not qualify to be 'goods' for furtherance of business of M/s. JSL and hence cannot be supplied to M/s. JEL on the Job work basis.
39. As per the deposition made before the appellate authority during the hearing dated 19.06.2018, the appellant vide their letter dated 22.06.2018 made further additional submissions which are as under:
 (1) The appellant inter-alia submitted that the Power Plant owned by them where the proposed Job work activity on the coal supplied by M/s. JSL Is to be undertaken Is a Captive Power Plant of JSW group. In respect of this, the appellant have enclosed the following documents
(i) A copy of the Board Resolutions dated 03.03.2011 where

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r sent back to the Principal or supplied by the appellant as per the direction of JSL.
 (4) They further submitted that coal Is an Input for JSL placing their reliance upon the definition of the input as provided under Section 2 (59) of the CGST Act, 2017.
 (5) In para 5.6, they further submitted that JSL has its own power plants for generation of electricity from different fuels at various locations including Dolvi, Maharashtra and Vijaynagar, Karnataka.
 (6) In para 5.7, they submitted that the definition of the term 'inputs', read with the definition of business as provided in the CGST Act, 2017 indicates that scope of the term 'input' is very wide and would cover all goods used in the course or furtherance of business. To substantiate this claim, they cited various court and tribunal judgments.
 (7) In para 5.9,they relied upon various Courts and tribunals judgments wherein credit have been allowed on inputs which have been used in the genera

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. 639(Tri.- Bang.)
 (d) Bharat Commerce and Industries Ltd. V/s. Collector [1997 (94) E.L.T. A136]
Discussions
40. We have heard both the parties and gone through the submissions made by them. The Issue before us is to decide whether the activity undertaken by M/s JEL on behalf of M/s JSL is job work or otherwise. The answers to other questions will follow.
41. The Authority for Advance Ruling in their order dt. 05.03.2018 has decided that since M/s JSL are not the applicant in the proceedings, the ruling sought by M/s JEL on behalf of M/s JSL was not entertained. In respect of ruling sought by the applicant i.e. M/s JEL regarding conversion of coal (to be supplied by M/s JSL) into electricity, the Authority decided the same as supply of goods and not as job work. The main ground for decision of the Authority lies in the fact that definition of Job Work covers 'process and Treatment' on goods, whereas in the instant case the operations carried out by M/s JEL are beyond

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r not. Here, we are inclined to agree with the formulation laid down vide C. B.E.& C. Circular No. 38/12/2018 dt. 26.03.2018 on issues related to Job Work vide para 5, that
“…….the job work is expected to work on the goods sent by the principal and whether the activity is covered within the scope of job work or not would have to be determined on the basis of facts and circumstances of each case (emphasis supplied).
We now proceed further in the matter to examine whether the activity proposed to be conducted by M/S JEL on the goods supplied by M/s JSL would be covered under Job Work or not.
44. The Applicant has cited various judgments in support of their argument that the job work involved manufacturing and credit of duty was allowed even in respect of the inputs utilized in manufacture of intermediate goods used in the manufacture of final product. In this case, M/s. JSL are manufacture of Steel and steel products and M/s JEL are engaged in production of electricity, using coal

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and Rule 45 of the CGST Rules. In terms of Section 143(1)(a):
 (1) A registered person (hereafter in this section referred to as the “principal”) may under intimation and subject to such conditions as may be prescribed, send any inputs or capital goods, without payment of tax, to a job worker for job work and from there subsequently send to another job worker and likewise, and shall,-
 (a) bring back inputs, after completion of job work or otherwise, or capital goods, other than moulds and dies, jigs and fixtures, or tools, within one year and three years, respectively, of their being sent out, to any of his place of business, without payment of tax.
On a harmonious reading of the definition of Job Work and the procedure for the same, it is construed that the principal will send the inputs to the job worker for conducting any treatment/process/ which may, or may not amount to manufacture) and shall bring back the same after completion of job work or otherwise Therefore the

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l submission have provided the copies of Bills of Entry evidencing the Import of Coal for Dolvi Plant of M/s. JSL as well as Karnataka plant. A perusal of the said two documents leads us to understand that, though the two coal Items are geologically same, they are two different types, and that the Coal imported by M/s JSL Is coking coal and has a different usages compared to steam coal, being used by power plants for generation of electricity which is much cheaper as well. This shows that the inputs being utilized by M/s JSL for the manufacture of their final product i.e. Steel are not the same which they intend to send to M/s JEL for undertaking process on the same. Rather they are proposing to procure the steam coal which are inputs for the power plant of M/s JEL, the job worker and Intend to avail the credit of duty on the same which is otherwise not available to M/s JEL as their final product, i.e. electricity, does not fall in the ambit of the GST law.
47. Assuming that the steam

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h may change at any point of time, thus affecting the uninterrupted supply of such goods. This clearly shows that Principal will not be in a position to bring back the inputs after processing by the proposed job-worker independent of a third person or entity, who in turn is in the role of regulator and there is no option with the Principal but to follow the laid down regulations. So much so, the return of the inputs after processing is not guaranteed if not allowed by the regulator or third person/entity. Further, no one-to-one co-relation can be established vis-a-vis the receipt of the processed goods due to involvement of the third party. Under the facts as brought out above, the condition of the definition of Job Work involving only two persons is not fulfilled. Nor is the condition of the Section 143(1)(a), namely to bring back the inputs to the premises of the principal, fulfilled.
49. The facts of the case cited by the Appellant in the matter of M/s Essar Steel Ltd. said to havi

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rk means goods produced out of materials supplied by customer and where the job workers contribute mainly their labour and skill though done with the help of their own tools, gadgets or machinery – But when the job worker contributes his own raw material to the article supplied by the customers and manufactures different goods it does not amount to job work however addition or application of minor items by job worker would not detract it being a job work – Like a tailor stitching a shirt or suit out of the cloth supplied by his customer, may use his own buttons, thread and lining cloth and such ah activity would amount to job work.”
51. In para 17 of the said judgment, Hon'ble Court has explained the definition of Job work which is reproduced below-
“Now, what does the expression 'job work' mean? On this question, the Explanation is not of much assistance. The Concise Oxford Dictionary assigns several meanings to the expression job' but the relevant meaning having reg

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ers, soles etc. by the customer and the factory applies its own thread or bonding material and manufactures shoes therefrom and supplies them back to the customer, charging only for its work. The nature of its work does not cease to be job-work. Indeed, this aspect has been stressed in all the decisions of High Courts referred to hereinbefore. ”
Thus what we see from the above observations is that, the Supreme Court has held that additions or application of minor items is permissible in job work. But such is not the case here.
Also, In the E-flier published by the CBEC on 'job work', it is mentioned that' the whole ides in job work is to make the principal responsible for meeting compliances on behalf of the job worker of the goods processed by him (job worker) considering the fact that typically the Job workers are small persons who are unable to comply with the discrete provisions of the law. Therefore, we hold that job work on the scale as in this case before us could

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an nevertheless be seen from the details provided by the appellant that coal is not the only input used for the production of electricity. There is large quantity of water and air being uitilized in the process. The other materials being used by the job worker are not minor solutions to the Inputs and all Inputs are not provided by the principal. Accordingly It Is seen that the process cannot be considered as Job work following the ratio of the above judgment.
53.  To elaborate further, in para 19 of the said judgment, it is observed as below:
” Now, let us look at the process involved in this appeal. All that Modipon does is to supply steel pipes. The appellant purchases guide rings and strengthening rings from the market. It fits these rings Into those steel pipes by itself or gets them fitted In another unit. Thereafter, adopters are fitted on the sides of the cops and then the plastic sleeves are fitted on the cylinders of the cops. This is not a case where the rings and the

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job work if principal sends minor inputs to the job worker and all other inputs/goods utilized in the final product are being procured/purchased by the job worker. This will defeat the very purpose and idea of job work. For example, the process where a principal sending only buttons and thread to a job worker to get the shirts manufactured by the job worker by utilizing the fabric purchased by the job worker cannot be considered as job work-in light of the above judgment of Apex Court. Similarly, In the Instant case If M/s JSL sent only water tankers to M/s JEL and received back Electricity from them on payment of job charges and cost of other raw materials like coal and air, had the process would have been called as a job work process? We are of the firm opinion that the answer is negative in view of the Apex Court judgment as only minor additions by the job worker on the inputs provided by the principal is envisaged in the law.
54. The various judgments relied upon by the Appellant

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he steel plant and after utilization of the some of it, remaining electricity was transmitted to the grid of Gujarat State Electricity Board. So, there was no regulation or third party on the inputs to reach the Principal after processing of the same.
(ii) Commissioner of C. Ex. Nagpur v/s IndoramaTextiles Ltd. 2010(260)ELT 382(Bom.):
The principal argument here was that furnace oil was never received in the factory of production but sent directly to the job worker and as Indo Rama Textiles did not have a captive power plant, CENVAT credit was not available. The SC referred to the earlier decision In Vikram cement (2006(194 ELT 3) (SC) and held that 'within the factory of production' can be interpreted liberally Therefore, it be noted that the primary issue here was not whether the activity is a job work or not. Also, it was never contended by the revenue that the said activity is not job work so the Court had no occasion to decide the same ( Para 8 of the order). As such t

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ase of Haldia petrochemicals the question was of the eligibility of Cenvat credit on inputs used in the generation of team and electricity. The Naphtha was sent to a power plant (which was a joint venture of Haldia with Larsen and Toubro) .The credit was sought to be denied on the ground that the that duty is only allowed on inputs used in generation of electricity or steam used for manufacture of the final product within the factory of production. This issue is not relevant as in the present case.
The other issue was whether credit is allowed on the basis that the products are supplied to job worker namely the power plant. So as such the issue was of admissibility of credit. Also the definition of 'input' during the relevant time covered goods used in fuel or for generation of electricity, which was the basis on which the judgement was given, as is clearly evident from Paragraph 22 of the order.
Also, as per para 2 of the said judgment “The principal raw material for manuf

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) ELT 213 Tri Mumbai/
c) Jaypee Rewa Cement vs Commissioner Of Central Excise (133 ELT 3 (sc),
d) Collector of Excise vs Solaris Chemtechf 2007 214 ELT 481 (SC)/
e) Gujarat State Fertilizers ( 2008 229 ELT 9 SC)/
f) Grasim Industries 2002 (147 ELT 190)
the Issue whether a particular activity is a job work or not was at all not before the Court. The only issue was of admissibility of credit.
The appellant has also relied on the Advance Ruling issued by Gujarat Authority For Advance ruling on dt. 21.03.2018 vide No. GUJ/GAAR/R/2018/7 In the matter of M/s INOX Air Products Pvt. Ltd. The facts of that case are different from the facts and circumstances of the instant case. M/s Inox Air Products Pvt. Ltd. were providing services of Job work to the principal M/s Essar from the plant located within the premises of the Principal and all the inputs viz. Atmospheric Air, Industrial water and Electricity used for manufacture of Industrial gases belonged to the principal and were suppl

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han steam coal?
(ii) How would the Principal, M/s JSL be able to bring back the inputs (after processing the same by job worker) under Section 143(1)(a) without being regulated by a third party?
(iii) What are the other inputs/materials, their quantity and value, being procured/purchased by the job worker, M/s JEL, which need to be added to the inputs supplied by the Principal for converting the same into electricity, as the Principal is not supplying all the inputs and in terms of the Judgment of Apex Court, as referred above, the job worker can not make substantial addition to the inputs of the Principal to qualify for the process as job work.
In light of above, we have no doubt to conclude that the activity undertaken by M/s JEL to convert Coal, to be supplied by M/s JSL, in electricity is not covered under the definition of Job work in terms of the CGST Act. Since goods supplied by M/s JSL will be utilized by M/s JEL in manufacture of new commodity i.e. electricity (though att

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M/s Wipro Enterprises Ltd. Versus The Commissioner of Customs, Central Excise & Service Tax, Tirupati – GST

M/s Wipro Enterprises Ltd. Versus The Commissioner of Customs, Central Excise & Service Tax, Tirupati – GST
Service Tax
2018 (7) TMI 435 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 2-7-2018
Appeal Nos. ST/30480-30481/2018 – Final Order No. A/30643-30644/2018
Service Tax
Hon'ble Mr. P. Venkata Subba Rao, Member ( Technical )
Shri R. Rajesh, for the Appellant
Shri Arun Kumar, Deputy Commissioner (AR) for the Respondent
ORDER
[ Order Per : P. Venkata Subba Rao ]
These two appeals are filed by the appellant against Order-in-Appeal No. TTD-EXCUS-000-APP-130-17-18 dated 23.02.2018 & Order-in-Appeal No. TTD-EXCUS-000-APP-131-17-18 dated 27.02.2018.
2. Heard both sides and perused the records.
3. The facts of the case in brief are that the appellants are engaged in the manufacture of Hydraulic Cylinders and are registered with Central Excise. They are also registered with the Department under service tax provisions for payment of service tax under the c

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not reconciled his accounts even after lapse of more than one year from the relevant date. It clearly shows that the assessee has willfully evaded payment of appropriate service tax and taking a chance of non-detection conducted by the Department. Accordingly, it was proposed to demand the service tax invoking the extended period along with interest. It was also proposed to impose a penalty under Section 78. After following the due process of law, the Learned Assistant Commissioner had confirmed the demands along with interest and imposed penalties under Section 75 and 78 of the Finance Act, 1994.
4. Aggrieved, the appellant filed an appeal before the Commissioner (Appeals) who upheld the Order-in-Original and dismissed the appeals. Learned Commissioner (Appeals) rejected the claim of the appellant that there was no suppression of facts and hence the proviso to Section 73(1) cannot be invoked and neither can penalty can be imposed under Section 78. He concluded with the appellant had

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the Order-in-Original and prayed that the penalty under Section 78 may be set aside.
6. The Learned Departmental Representative on the other hand, reiterated the arguments made in the Order-in-Original and Order-in-Appeal and said that the mandatory penalty under Section 78 cannot be set aside because there was a suppression of facts. He relied upon the judgement of Hon'ble High Court of Karnataka in the case of Commissioner of Customs, Mangalore Vs. Jindal Vijayanagar Steel Ltd., [2017 (346) ELT 378 (Kar.)] and relying on the judgment of the Apex Court in the case of Union of India Vs. Rajasthan Spinning & Weaving Mills [2009 (238) ELT 3 (S.C.)] wherein it was held that mandatory penalty does not get altered because of the fact that the assessee had paid the duty prior to issue of show cause notice. This judgment of the Hon'ble High Court of Karnataka was appealed against by the assessee but upheld by the Hon'ble Supreme Court. He further relied on the judgment of the Hon'ble High Co

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on, fraud, misstatement etc., with an intent to evade payment of duty would call for imposition of penalty to the extent of 100% of tax evaded. At this stage, reference can be made to Tribunal's decision in the case of wherein vide Final Order No. 41600/2017, dated 09.08.2017, the Tribunal discussed all the provisions of penalties in terms of the Finance Act, 1994 invoking the provisions of section 80 and has held that the same is not applicable in cases of suppression and fraud etc. In such circumstances, no fault can be found with the findings of the Commissioner (Appeals) order. Accordingly, appeal filed by the assessee is rejected.
In view of the above, the Learned Departmental Representative argued that the fact a lower value was declared in the ST-3 returns is sufficient invoking penalty under Section 78 of the Finance Act, 1994. This mandatory penalty does not get altered by the fact but they have paid service tax as well as interest well before the issue of show cause notice.

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In Re : M/s. Manjira Machine Builders (P) Ltd.

In Re : M/s. Manjira Machine Builders (P) Ltd.
GST
2018 (7) TMI 389 – AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA – 2018 (14) G. S. T. L. 488 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA – AAR
Dated:- 2-7-2018
Advance Ruling No. TSAAR Order No. 7/2018, A. R. Com/14/2018, Dated 2nd July, 2018
GST
Mr. J. Lakshminarayana, ADDL. COMMISSIONER (State Tax) And Mr. V. Srinivas, JOINT COMMISSIONER (Central Tax)
RULING
M/s. Manjira Machine Builders (P) Ltd , Flat No. 307 & 308 , Bhanu Enclave , Sundernagar, Hyderabad-500038 has filed an application in Form GST ARA-01under Section 97(1) of TGST Act,2017 read with Rule 103 of CGST/TGST Rules, 2017and stated that all the DRDO labs and Satish Dhawan Space Centre (SDSC SHAR, ISRO< Sriharikota), Vikram Sarabhai Space Centre (VSSC, ISRO, Thiruvananthapuram), while issuing their enquiries and purchase orders, they are mentioning against the IGST/GST column that "As per Government of India, MoF (Depa

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olumn (3) of the Table , from the so much of the integrated tax leviable thereon under section 5 of the said Act, as in excess of the amount calculated at the rate of 5 per cent., when supplied to the institutions specified in the corresponding entry in column (2) of the Table, subject to the conditions specified in the corresponding entry in column (4) of the said table given in the notification.
4. In respect of such clearances effected within the State, similar Notification has been given by the Govt. of India vide Notification No. 45/2017-Central Tax (Rate) dated 14.11.2017 which exempts the goods specified in column (3) of the Table, from the so much of the central tax leviable thereon under section 9 of the said Act, as in excess of the amount calculated at the rate of 2.5 per cent., when supplied to the institutions specified in the corresponding entry in column (2) of the Table, subject to the conditions specified in the corresponding entry in column (4) of the said table give

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of goods or services or both-
(i) food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery except where an inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as an element of a taxable composite or mixed supply;
(ii) membership of a club, health and fitness centre;
(iii) rent-a-cab, life insurance and health insurance except where-
(A) the Government notifies the services which are obligatory for an employer to provide to its employees under any law for the time being in force; or
(B) such inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as part of a taxable composite or mixed supply; and
(iv) travel benefits extended to employees on vacation such as leave

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off or disposed of by way of gift or free samples; and
(i) any tax paid in accordance with the provisions of sections 74, 129 and 130.
6. However, goods and services on which concessional rate of tax is applicable are not figured in the list. Hence, the ITC is allowed on the supplies effected by paying duty at concessional rate of tax. Moreover, the supplies effected at concessional rate of duty are not exempt supplies. Hence, Input tax credit is allowable on the raw materials used for these supplies.
7. The clarification sought in the application has been examined with reference to the provisions of the CGST/TGST Act, 2017 and the Rules made there under and the notifications issued till date; and the Advance Ruling is given as under:
(i) The concessional rate of tax @ 5% as given under Notification No. 47/2017- Integrated Tax (Rate) dated 14.11.2017 is applicable only for Interstate sales i.e., on IGST and concessional rate of tax @ 2.5% CGST + 2.5% SGST is applicable for Intras

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In Re : M/s. Lyophilization Systems India Private Limited

In Re : M/s. Lyophilization Systems India Private Limited
GST
2018 (7) TMI 388 – AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA – 2018 (14) G. S. T. L. 493 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA – AAR
Dated:- 2-7-2018
A. R. Com/8/2018 And TSAAR Order No. 5/2018
GST
Mr. J. Lakshminarayana, ADDL. COMMISSIONER (State Tax) And Mr. V. Srinivas, JOINT COMMISSIONER (Central Tax)
RULING
M/s. Lyophilization Systems India Private Limited, Plot No.26/27, Aleap Industrial Estate, Opp. JNTU Road, Near Pragathi nagar, Kukatpally, Hyderabad (GSTIN No.36AAACL8746M1ZY) has filed an application in Form GST ARA-01under Section 97(1) of TGST Act,2017 read with Rule 103 of CGST/TGST Rules, 2017and sought Advance Ruling on the following issues:
(i) The rate of tax applicable as on 15.11.2017 on the Lyophilizers- Machinery for the plant which is being cleared under chapter heading 8419.
2. The applicant submitted the application in Form GST ARA-01

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r transport and also to increase the product efficacy with long life. Lyophilization works by cooling the product below eutectic temperature and then reducing the surrounding pressure to allow the frozen water in the material to sublime directly from the solid phase to the gas phase.
(b) Process description:
The Lyophilizer consists of product chamber with shelves and condenser chamber with cooling coils. The product to be converted is placed on the shelves and cooled below its eutectic temperature. Once the product if below its eutectic temperature, the chambers are evacuated to high vacuum, during this process the water in the product sublimes and condenses on the condenser chamber coils. This process continues for some hours and the product gets dried and all the water removed from the product under heat exchange method. Then the chambers are subjected to steam sterilization by using high pressure steam to sanitize the complete system.
(c ) Use in the Industry and classificati

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nly but not at the rate of 14%.
3.5 The following is the text of amendment carried over to Entry No.320 in schedule III to the Notification No.1/2017-Central Tax(Rate), dated. 28.06.2017.
(lxxx) in S. No. 320, for the entry in columns (2) and (3), the following entries shall be substituted, namely:-
“8419 Machinery, plant or laboratory equipment, whether or not electrically heated (excluding furnaces, ovens and other equipment of heading 8514), for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing or cooling, other than machinery or plant of a kind used for domestic purposes; instantaneous or storage water heaters, non-electric [other than Solar water heater and system]”;
4. The applicant therefore seeks to have an advance ruling on the rate of tax applicable as on 15.11.2017 on Lyophilizers-machinery for the plant

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re mentioned in the above enumeration. Heating, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing or cooling. The lyophilizers manufactured by the applicant are not at all falling under the list of goods excluded from the purview of the amended version of Entry No.320 in schedule III.
6. Hence, the applicant is in strong belief that Lyophilizers i.e. Machinery for Plant manufactured by the applicant fall under Entry No.320 of schedule III by following the amendment carried over to it by Notification No.41/2017- Central Tax(rate) dated 14.11.2017.
7. The issues raised in the application has been examined, before deciding the rate of tax applicable for the goods ” Lyophilizers”, we would like to examine the correct classification of the product.
8. The process of Lyophilization, is defined as a freeze-drying process that removes water from a product after it is frozen and placed under a vacuum. It is a low temperature dehydration

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n is found not only in pharmaceutical industry, but also in various other industries.
9. The goods such as ” Machinery, plant or laboratory equipment, whether or not electrically heated (excluding furnaces, ovens and other equipment of heading 8514), for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing or cooling, other than machinery or plant of a kind used for domestic purposes” are covered under Tariff heading 8419 of Customs Tariff. On examination of the process of Lyophilization, it is found that the goods ” Lyophilizers” are classifiable under Tariff heading 84198990 as per the Section notes to Section XVI and Chapter notes to Chapter 84 of the Customs tariff. As the rules for interpretation of Customs Tariff Act, 1975 was made applicable to GST Tariff, the goods ” Lyophilizers” are classifiable under heading 8419 o

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g, evaporating, vaporizing, condensing or cooling, other than machinery or plant of a kind used for domestic purposes; instantaneous or storage water heaters, non-electric [other than Solar water heater and system]” falling under heading 8419 of the GST Tariff have been brought under Schedule-III of the Notification, notifying the rate of central tax as 9% as per G.O.Ms No. 250, Revenue (CT-II) Department, Dt. 21-11-2017. As the goods Lyophilizers are classifiable under the heading 8419 of the GST Tariff, the rate of central tax applicable is 9% only.
12. The issue raised in the application has been examined with reference to the provisions of the CGST/TGST Act, 2017 and the Rules made there under and the notifications issued till date; and the Advance Ruling is given as under:
Notification No. 41/2017 – Central Tax (Rate), Date. 14-11-2017
(G.O.Ms No. 250, Revenue (CT-II) Department, Dt. 21-11-2017)
Sl. No.
Chapter / Heading / Sub-heading / Tariff item
Description of Goods
Rate

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In Re : M/s. Madhucon Sugar and Power Industries Ltd.

In Re : M/s. Madhucon Sugar and Power Industries Ltd.
GST
2018 (7) TMI 283 – AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA – 2018 (14) G. S. T. L. 491 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA – AAR
Dated:- 2-7-2018
Advance Ruling No. TSAAR Order No. 6/2018, A. R. Com/11/2018
GST
Sri V. Srinivas, IRS, Joint Commissioner (Central Tax) And Sri J. Laxminarayana, Additional Commissioner (State Tax)
RULING
M/s. Madhucon Sugar and Power Industries Ltd, Ammagudem post, Rajeswarapuram village, Nelakondapally Mandal, Khammam District has filed an application in Form GST ARA-01 under Section 97(1) of TGST Act,2017 read with Rule 103 of CGST/TGST Rules, 2017stating that they are manufacturers of

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pose to State distilleries and beverages used for human consumption, what is their obligation and eligibility of Input credit taken on materials/ consumables ?
2. The applicant submitted the application in Form GST ARA-01 and have submitted a copy of Challan evidencing payment of application fee of Rs. 5,000/-.
3. Statement of relevant facts submitted by the applicant:
(i) All spirits (other than denatured ethyl alcohol of any strength) for example ENA for potable application is and has been out of the ambit of the Central Excise duty as can be seen from S.No.40 of the Notification No.12/2012 dated 17.03.2012 which exempts Central Excise duty.
(ii) Prior to introduction of GST all ENA/RS (un-denatured) is exempted under Central Excise

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ought in the application has been examined in detail and found that the issue of “Taxation of Rectified Spirit/ Extra Neutral Alcohol (ENA) under GST” is one of the agenda points placed before GST council for deliberation in the 20th meeting of the GST council held on 05.08.2017. The decision on the “applicability of GST on ENA” is pending before GST council and even in the 27th GST council meeting held on 04.05.2018 it was decided to defer the agenda point on the “applicability of GST on ENA” to the next meeting.
6. Since the issue raised by the applicant is pending before GST Council for a decision, Advance Ruling on the issues raised in the application cannot be given at this juncture.
7. Hence, the application filed by M/s Madhucon Su

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CGST, C&CE, Jaipur Versus M/s National Engineering Industries Ltd.

CGST, C&CE, Jaipur Versus M/s National Engineering Industries Ltd.
Central Excise
2018 (7) TMI 168 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 2-7-2018
Excise Appeal No. 51217 of 2018 (SM) – Final Order No. 52381/2018
Central Excise
Hon'ble Shri Ajay Sharma, Member (Judicial)
Shri K. Poddar, Authorized Representative (DR) – for the appellant
Ms. Sukriti Das, Advocate – for the respondent
ORDER
Per. Ajay Sharma
The instant appeal has been filed from the order-in-appeal No. 70 (SM) CE/JPR/2018 dated 21/02/2018.
2. The respondent/assessee are engaged in the manufacture of Ball Bearing falling under Chapter 84 of the Schedule to the Central Excise Tariff Act, 1985. A show cause notice dated 17/12/2005 was issued to the respondent alleging thereunder that they have wrongly availed Cenvat credit amounting to Rs. 15,74,528/- on the ineligible input service rendered by the sales agents/commission agents during the period December 2014 to October 2015. They

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nurture market for the respondent/assessee. Further, once the order is placed, to ensure that the same is taken to its logical course these activities are nothing but are sale promotion activities and, therefore, the element of sales promotion was very much involved in the services provided by these representatives. She further recorded that the insertion of the explanation vide Notification No. 02/2016 – CE (NT) dated 03/02/2016 in the definition of “input services” clarifying that “sales promotion” include services by way of sale of dutiable goods on commission basis and, therefore, the respondent/assessee is eligible to avail Cenvat credit of service tax paid on commission to sales agents/commission agents. Aggrieved the Revenue filed appeal before the Commissioner (Appeals) and the learned Commissioner (Appeals) vide impugned order dated 21/02/2018 rejected the appeal filed by the Revenue and held that in the light of clarification dated 29/04/2011 in Notification dated 03/02/2016

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e instant appeal are extracted as under :-
“Rule 2 (l) “input service” means any service, –
(i) used by a provider of [output service] for providing an output service; or
(ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal,
and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal”;
XXX XXX XXX
“Cenvat Credit Rules, 2004 – Second Amendment

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sed for payment of the Swachh Bharat Cess leviable under sub-section (2) of section 119 of the Finance Act, 2015 (20 of 2015):”.
[Notification No. 2/2016-C.E. (N.T.), dated 3-2-2016]”
6. According to learned DR, the explanation inserted in the Rule 2 (i) vide notification dated 03/02/2016 shall be effective only from the date of publication in the official gazette i.e. shall have only prospective application and that the learned Commissioner (Appeals) has erred in applying the said explanation retrospectively. He further submitted that there is no nexus between the sales/commission agent activities and the manufacturing activities and that manufacturing can be undertaking without availing the services of sales/commission agent.
7. The learned Advocate appearing for the respondent/ assessee on the other hand supported the impugned order passed by the learned Commissioner (Appeals).
8. Whether the explanation added in Rule 2 (l) of Cenvat Credit Rules, 2004 vide notification dated 03

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clared that sales promotion includes services by way of sale of dutiable goods on commission basis. In other way, Explanation to Rule 2(l) of Rules says in clear terms that there is no bar on availment of the Cenvat credit on sales promotion service by way of sale of dutiable goods on commission basis. Further, by inserting the Explanation in the Rule 2(l), it has confirmed the Board Circular and resolved the different views of the High Courts. Taking into circumstances under which the Explanation was inserted in Rule 2(l) of Rules, 2004 and consequence of the Explanation to extend the benefit to the assessee as per Board Circular, we hold that the Explanation inserted in Rule 2(l) of Rules, 2004 by Notification No. 2/2016-CX (N.T.) (supra) should be declaratory in nature and effective retrospectively”.
9. The said decision of Essar Steel India Ltd. (supra) has been further followed by this Tribunal in a batch of matter titled as M/s Mangalam Cement Ltd. vs. CCE, Udaipur vide final or

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at credit is admissible on the services of the sale of the dutiable goods on commission basis. The said circular was endorsed by the Central Government vide Notification No. 2/2016-CE (NT) dated 03/02/2016. In the case of Cadila Healthcare Ltd. (supra), the Hon'ble Gujarat High Court had not referred to the Circular dated 29/04/2011 and also there were divergent views by the Hon'ble Punjab & Haryana High Court in the case of CCE, Ludhiana vs. Ambika Overseas – 2012 (25) S.T.R. 348 (P&H). Considering the conflict in judgments of different High Courts and also the notification dated 03/02/2016, this Tribunal in the case of Essar Steel India Ltd. (supra) has held that the said notification should be considered as declaratory in nature and effective retrospectively. The relevant paragraph in the said decision is extracted herein below :-
“20. But, the Hon'ble Gujarat High Court in the case of Cadila Healthcare Ltd. (supra) was unable to concur with the contrary view taken by the Hon'ble

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sessee as per Board Circular, we hold that the Explanation inserted in Rule 2(l) of Rules, 2004 by Notification No. 2/2016-CX (N.T.) (supra) should be declaratory in nature and effective retrospectively”.
5. In view of the above settled position and law, we do not find any merits in the impugned orders. Accordingly, after setting aside the same, we allow the appeals in favour of the appellants”.
10. Thereafter again this issue came up before this Tribunal in a batch of matters in which this Tribunal vide final order Nos. 51412-51426 of 2018 dated 16/04/2018 while following its decision in the matter of National Engineering Industries Ltd. (supra) dismissed the appeal filed by the Revenue.
11. Explanation to Rule 2 (l) of Rules 2004 says it in clear terms that there is no bar on availment of Cenvat credit on sales promotion service by way of sale of dutiable goods on commission basis. During the period from 2008 onwards this issue has been considered by various appellate authorities

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M/s Pee Cee Cosma Sope Ltd. Versus CE, C & CGST – CCE & ST, Jodhpur

M/s Pee Cee Cosma Sope Ltd. Versus CE, C & CGST – CCE & ST, Jodhpur
Service Tax
2018 (7) TMI 99 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 2-7-2018
Appeal No. ST/51046/2018 – EX(SM) – Final Order No. 52367/2018
Service Tax
Hon'ble Ms. Rachna Gupta, Member ( Judicial )
Shri Ravikant Mishra, Advocate for the appellant
Shri H.C. Saini, D. R. for the respondent
ORDER
Per Rachna Gupta
Present is an appeal filed being aggrieved of Order of Commissioner (Appeals) dated 26.02.2018 whereby the Cenvat Credit of Rs. 70,714/- has been held to be irregularly availed by the Appellant and has accordingly been disallowed with the order of recovery thereof along with the interest. In addition, a penalty has been imposed in view of Section 78 of the Central Excise Act, 1944. The factual matrix relevant for the purpose is as follows:
1. The Appellant is engaged in the manufacture of excisable goods falling under Chapter 34 of Central Excise Tariff Act, 1985. It

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definition of place of removal as given in the Act and since the place where excisable goods sold can be the place where the property or goods can process from buyer to seller and the sale culminates only after the goods reached the destination then it will be deemed to be place of removal. Accordingly, the freight rate for transporting the goods from the Appellant's premises to the customer's premises for sale, have had rightly been considered as input services by the Appellant and a right credit thereof has been availed. The findings of the order under challenge are therefore liable to be set aside.
3. It is further submitted that even if the Tribunal is convinced with the findings of the impugned order, still the order under challenge deserves to be set aside for the basic reason that the Show Cause Notice based upon which the order has been announced is hopelessly barred by time. The refund for the period with effect from 2011 to 2015 has been challenged and the Show Cause Notice

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he part of the Appellant. Hence, the Department has rightly invoked Section 78 of the Act. The order under challenged has rightly been announced. The appeal is, accordingly, prayed to be rejected. After hearing both the parties and perusing the entire record of this appeal, we are of the considered opinion as follows:
(i) The core issue involved in the present case is with regard to the admissibility, or otherwise, of Cenvat Credit on goods transport agency service availed for transport of goods from the place of removal to the buyer's premises, treating the said service as the input service. For this purpose, the definition of input service as defined in Rule 2(l) of Cenvat Credit Rules, 2004 (CCR) is important to be looked into. It reads as follows:
“5. 'Input service' is defined in Rule 2(l) of the Rules, 2004 which reads as under:
“2(l) “input service” means any service:-
(i) Used by a provider of taxable service for providing an output services; or
(ii) Used by the manufa

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f clearance of final products 'from the place of removal' to the warehouse of customer's place etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s Vasavadatta Cements Ltd.) vide judgment dated January 17, 2018. However, vide amendment carried out in the aforesaid Rules in the year 2008, which became effective from March 1, 2008, the word 'from' is replaced by the word 'upto'. Thus, it is only 'upto the place of removal' that service is treated as input service. This amendment has changed the entire scenario. The benefit which was admissible even beyond the place of removal now gets terminated at the place of removal and doors to the Cenvat credit of input tax paid gets closed at that place. This credit cannot travel therefrom. It becomes clear from the bare reading of this amendment Rule, which applies to the period in question that the Goods Transport Agency service used for the purpose of o

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ayment of duty would be contrary to the scheme of Cenvat Credit Rules. The main clause in the definition states that the service in regard to which credit of tax is sought, should be used in or in relation to clearance of the final products from the place of removal. The definition of input services should be read as a whole and should not be fragmented in order to avail ineligible credit. Once the clearances have taken place, the question of granting input services stage credit does not arise. Transportation is an entirely different activity from manufacture and this position remains settled by the judgment of Honourable Supreme Court in the cases of Bombay Tyre International – 1983 (14) E.L.T. 1896 (S.C.), Indian Oxygen Ltd. – 1988 (36) E.L.T. 723 (S.C.) and Baroda Electric Meters – 1997 (94) E.L.T. 13 (S.C.). The post removal transport of manufactured goods is not an input for the manufacturer. Similarly, in the case of M/s Ultratech Cements Ltd. v. CCE, Bhatnagar – 2007 (6) S.T.R.

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CGST, C & CE, Alwar Versus M/s Krishi Icon

CGST, C & CE, Alwar Versus M/s Krishi Icon
Service Tax
2018 (7) TMI 97 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 2-7-2018
Service Tax Appeal No. 51179 of 2018 (SM) – Final Order No. 52380/2018
Service Tax
Hon'ble Shri Ajay Sharma, Member ( Judicial )
Shri K. Poddar, Authorized Representative ( DR ) – for the appellant
Shri Mohit Gohlyan, C.A. – for the respondent
ORDER
Per. Ajay Sharma
The instant appeal has been filed from the order-in-appeal dated 16/01/2018.
2. The respondent/assessee is engaged in providing the “construction of residential complex services, real estate agent services and business support services”. During the course of audit of records of the respondent/assessee it was observed that the assessee had availed Cenvat credit of service tax paid on “commission/brokerage on sale of flats” amounting to Rs. 40,56,453/- during the period from July 2013 to September 2015. Accordingly, a show cause notice was issued to the respondent/as

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l) of Cenvat Credit Rules, 2004.
4. The amount of recovery of Rs. 40,56,453/- alongwith interest and penalty was confirmed by the Adjudicating Authority vide order-in-original dated 29/06/2016. Aggrieved the respondent/assessee filed appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide impugned order dated 16/01/2018 allowed the appeal filed by the respondent/ assessee and held as under :-
“10. In view of above discussion and in the light of the clarification dated 24/09/2011 and notification dated 03/02/2016, I can safely conclude that the activity of commission agent for selling the products of the appellants is squarely covered under the scope of definition of input service provided under Rule 2 (l) of the Cenvat Credit Rules, 2004, as such the appellants were entitled to avail the subject credit and the same has been correctly availed. I therefore, find it proper to set aside the impugned orders disallowing the credit and ordering for recovery of the same al

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nal products and clearance of final products upto the place of removal,
and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal”;
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             “Cenvat Credit Rules, 2004 – Second Amendment of 2016
In exercise of the powers conferred by section 37 of the Central Excise Act, 1944 (1 of 1944) and section 94 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following rules further to amend th

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serted in the Rule 2 (i) vide notification dated 03/02/2016 shall be effective only from the date of publication in the official gazette i.e. shall have only prospective application and that the learned Commissioner (Appeals) has erred in applying the said explanation retrospectively. He further submitted that there is no nexus between the sales/commission agent activities and the manufacturing activities and that manufacturing can be undertaking without availing the services of sales/commission agent.
8. The learned Consultant appearing for the respondent/ assessee on the other hand supported the impugned order passed by the learned Commissioner (Appeals).
9. Whether the explanation added in Rule 2 (l) of Cenvat Credit Rules, 2004 vide notification dated 03/02/2016 has retrospective effect or not, has come before this Tribunal in the matter of Essar Steel India Ltd. vs. CCE & ST, Surat – I reported in 2016 (335) E.L.T. 660 (Tri. – Ahmd.) in which this Tribunal has held that the expl

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s promotion service by way of sale of dutiable goods on commission basis. Further, by inserting the Explanation in the Rule 2(l), it has confirmed the Board Circular and resolved the different views of the High Courts. Taking into circumstances under which the Explanation was inserted in Rule 2(l) of Rules, 2004 and consequence of the Explanation to extend the benefit to the assessee as per Board Circular, we hold that the Explanation inserted in Rule 2(l) of Rules, 2004 by Notification No. 2/2016-CX (N.T.) (supra) should be declaratory in nature and effective retrospectively”.
10. The said decision of Essar Steel India Ltd. (supra) has been further followed by this Tribunal in a batch of matter titled as M/s Mangalam Cement Ltd. vs. CCE, Udaipur vide final order No. 56683-56685/2017 dated 28/08/2017, in which this Tribunal following its decision in Essar Steel Ltd. (supra) allowed the appeals filed by the appellants and the said decision in M/s Mangalam Cement Ltd. (supra) has been f

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Healthcare Ltd. (supra), the Hon'ble Gujarat High Court had not referred to the Circular dated 29/04/2011 and also there were divergent views by the Hon'ble Punjab & Haryana High Court in the case of CCE, Ludhiana vs. Ambika Overseas – 2012 (25) S.T.R. 348 (P&H). Considering the conflict in judgments of different High Courts and also the notification dated 03/02/2016, this Tribunal in the case of Essar Steel India Ltd. (supra) has held that the said notification should be considered as declaratory in nature and effective retrospectively. The relevant paragraph in the said decision is extracted herein below :-
“20. But, the Hon'ble Gujarat High Court in the case of Cadila Healthcare Ltd. (supra) was unable to concur with the contrary view taken by the Hon'ble Punjab & Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. Ambika Overseas (supra). The Hon'ble Gujarat High Court held that this issue is concerned, the question is answered in favour of the Revenue a

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e settled position and law, we do not find any merits in the impugned orders. Accordingly, after setting aside the same, we allow the appeals in favour of the appellants”.
11. Thereafter again this issue came up before this Tribunal in a batch of matters in which this Tribunal vide final order Nos. 51412-51426 of 2018 dated 16/04/2018 while following its decision in the matter of National Engineering Industries Ltd. (supra) dismissed the appeal filed by the Revenue.
12. Explanation to Rule 2 (l) of Rules 2004 says it in clear terms that there is no bar on availment of Cenvat credit on sales promotion service by way of sale of dutiable goods on commission basis. During the period from 2008 onwards this issue has been considered by various appellate authorities and the Board has also issued clarification vide Circular dated 29/04/2011 specifically under point No. 5 which contains the wording that “… Moreover activity of sales promotion is specifically allowed and on many occasion the

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