Goods and Services Tax

Raj Petro Specialities Pvt. Ltd Versus Principal Commissioner of GST & Central Excise, Chennai North Commissionerate
Central Excise
2018 (9) TMI 1122 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
Appeal No. E/40314 to 40316/2018 – FINAL ORDER No. 42032-42034/2018
Central Excise
Ms. Sulekha Beevi C.S. Member (Judicial)
Shri V. Ravindran, Advocate For the Appellant
Shri R. Subramaniyan, AC (AR) For the Respondent
ORDER
Brief facts are that the appellants are manufacturers of Transformer oil, Petroleum jelly and light liquid paraffin and are availing the facility of Cenvat credit on service tax paid on various input services. During the disputed period, they had availed credit of service tax paid on c

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appellant had sent the products to their foreign buyers as sample and this was done only to obtain purchase orders from the prospective foreign buyers. The free samples sent to the foreign buyers cannot be considered as export of goods or removal of goods from the factory gate to the customer's premises. The courier services availed by the appellant for sending the sample products was in the nature of marketing / promotion of products and therefore would fall within the inclusive part of the definition. He prayed that the credit may be allowed.
4. The Ld.AR, Sh.R.Subramaniyan supported the findings in the impugned order. He submitted that the appellant has sent the finished products to their prospective foreign buyers free of charge. Sinc

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Commissioner of Central Goods And Service Tax, Udaipur Versus Prem Jain Ispat Udyog Private Limited
Central Excise
2018 (9) TMI 1060 – RAJASTHAN HIGH COURT – TMI
RAJASTHAN HIGH COURT – HC
Dated:- 18-7-2018
D.B. Central/excise Appeal No. 10/2018
Central Excise
Mr. Kalpesh Satyendra Jhaveri And Mr. Vijay Kumar Vyas JJ.
For the Appellant(s) : Mr. Sidharth Ranka
For the Respondent(s) : Ms. Archana for Ms. Mahi Yadav
JUDGMENT
1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal filed by the appellant.
2. The counsel for the appellant has framed the following substantial questions of law:
1. Whether the ld. CESTAT has grossly erred in law in ignoring the vital evidences in the form of voluntary statements of the Director and General Manager of the Company and the loose slips recovered by the Department during the search in setting aside the order of the ld. Adjudicating Authorit

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lips, 25 slips of various dates were of different despatches, which correlate and reconcile with the excise invoices issued to the respective parties. They have further claimed that all the clearances were duty paid and there was no clandestine clearance. The adjudicating authority has carefully gone through the said 25 slips alongwith the connected invoices and other documents submitted by the assessee and has given detailed discussions in para 36 of the impugned order. With reference to each kachha parchi and the relevant invoice, he has recorded that the quantity, size, truck No. name of consignee mentioned in the invoice are completely matching with the details so given in the recovered kachha parchi. Further, he has recorded that the subject invoices have been duly entered in RG-1 register as well as the ledger account. In the light of the above, he has concluded that the subject consignee were cleared on payment of Central Excise duty. We have gone through the records of the case

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y 32 slips. These findings of the adjudicating authority have been challenged by the assessee in the present appeals. It is their submission that the goods covered by these seven slips were never despatched from the factory for various reasons. It is their submission that the kachha parchis were initially made for internal use indicating the quantity of material, name of the party, place to which goods to be despatched and other details. Later on, the relevant quantum of goods are identified from the stockyard and loaded into the despatch truck whose number is also included in the kachha parchi. In respect of these seven kachha parchis, the orders placed by the customers have got cancelled and hence no goods were despatched to the parties indicated in the kachha parchi.
8. On going through the impugned order, we note that the adjudicating authority has not given due consideration to the submissions made by the appellant. The allegation of clandestine removal has been upheld in respect

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stained. The assessee has cited a large number of decisions to support the contention that clandestine clearance cannot be upheld without tangible evidence.
4. We are of the opinion that valuation of seven parchis which were found will come to less than 50 lacs and in view of the circular of the Department dated 11.7.2018 which reads as under:
F.No.390/Misc./116/2017-JC
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes & Customs
(Judicial Cell)
********
'B' Wing, 4th Floor, HUDCO-VISHALA Building Bhikaji Cama Place, R.K. Puram, New Delhi-66
Dated 11.7.2018
INSTRUCTION
To
1. All Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/Commissioners of Customs/ Customs (Preventive)/ GST & CX;
2.All Principal Director Generals/ Director Generals of Customs, GST & CX;
3.Chief Commissioner (AR); Commissioner Directorate of Legal Affairs, CBIC;
4.
Subject : Reduction of Government Litigation – Raising of

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eals). All other terms and conditions of concerned earlier instructions will continue to apply
4. It may be noted that issues involving substantial questions of law as described in para 1.3 of the Instruction dt 17.08.2011 from F No 390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits
5. Since withdrawal of Departmental Appeals is a long drawn activity requiring routine and constant monitoring, formats have been introduced in the Monthly Performance Report for all field formations to send monthly reports regarding status of withdrawal of appeals in the MPR (refer table M/ M-1). Details of the said cases should also be available in a separate register for further perusal by the Board as and when required. Tables are in the Annexure – A attached. The description of the Tables in brief is provided below:
(a) Table M: Position of withdrawal with reference to raised monetary limits SC/HC/CESTAT (as per instruction dated 11/07/2018)
b) Table M- 1: Remain

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d monetary limits SC 25Lakhs -1 Crores) / HC 20 -50 Lakhs/ CESTAT 10-20 Lakhs
S No
I. Zones (in alphabetical order)
II.Identified
III. Filed
IV. Withdrawn
 
 
SC
HC
CESTAT
TOTAL
SC
HC
CESTAT
TOTAL
SC
HC
FILED
WITHDRAWN
 
 
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
Table M -1
Cases remaining to be filed / withdrawn
(as per instruction -11/07/2018)
As on(Last working day)//
Remaining to be Filed/Withdrawn
S No
I. Zones (in alphabetical order)
I. Remaining to be filed*
II. Remaining to be withdrawn**
 
 
SC
HC
CESTAT
Total
SC
HC
CESTAT
Total
 
 
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
*identified minus filed in Table M
**filed minus withdrawn in Table M
5. We are not inclined to interfere in the appeal. Moreso, counsel for the respondent has relied on the decision of this Court in D.B. Central/excise Appeal No. 26/2017, Commissioner of Central Excise V/s Mittal Pigment Pvt. Ltd, decided

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er dated 19.5.2009. The department confirmed the duty demand along with interest for the period of five years alleging suppression of clandestine removal of the final product and also imposed penalty mainly based on the production approximation and on the statement of Director of the unit, Shri Agarwal, who is one of the appellants in this case.
6.2 The department has not gone beyond the approximation and the statement of Shri Agarwal. Any prudent person would not so conclude on extra production by approximation and by a mere statement of the Director of the company. Unless there are further corroborations in the form of documentary evidences, which could be like despatch details for the production, receipt details of the said material, transactions of the sale money, transportation details of such goods, details of additional consumption of electricity for such suppressed production a prudent individual would not agree with the present conclusions of the Revenue. There is nothing on

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e High Court in the case of Continental Cement Company (supra) has inter alia observed as under:
13. ……to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department….
14………
15. ……When there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible…….”
7. Considering above discussions and the case laws cited above, we conclude that the Revenue has failed to reasonably prove suppressed production and clandestine clearance on the part of the appellants. Consequently, the impugned order in respect of confirmation of duty for alleged suppressed production, and imposition of fine and penalty on the appellant No. 1 and imposition of personal penalty of Rs. 40 lakhs on Shri Agarwal who is appellant No. 2 are hereby set aside. The appellants will get the relief accordingly.
8. The imp

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at there is no substantial question of law. It is appreciation of fact and in view of decision by this Court reported in 2008 (221) E.L.T. 180 (Raj.), Union of India vs. Jain Plas Pack (P) Ltd., wherein it has been observed as under:-
“2. In appeal is the order passes by the Customs Excise and Service Tax Appellate Tribunal dated 3.8.2005 allowing the appeal of the respondent No. 1 by setting aside the demand of Rs. 72,707/- as the duty adjudicated on alleged removal of the fabric from the factory and like amount of the penalty levied by the Adjudicating Officer.
4. The manufacturer's case from the beginning was that the register found during the visit of Excise Authorities in question was not a register maintained for recording production but was a document maintained for the purpose of keeping supervision over the factory workers and on their daily production was entered on estimate basis only.
Before entries were made in RG-1 the product was actually weighed and actual weight was

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ons of Madras High Court in: 1. D.V.Kishore vs. Commr. Of Cus. (SeaportsImports), Chennai, 2017 (350) E.L.T. 527 (Mad.), wherein it has been observed:-
26. It is also the findings on the part of the Tribunal to state that there was no effective and reliable denial on the part played by the appellant either in the proceedings before the Commissioner or before the Tribunal.
27. In fact, the appellant had started retracting his statement of confession itself from the beginning and when that being so, such a finding as has been given by the Tribunal, would not stand in the legal scrutiny. The further reasons given by the Tribunal is that, even though the only defence apparently was that the statements had been retracted, the seizure of gold and the consensual deposition by other witnesses implicating the appellant and therefore, the same cannot be ignored.
2. S.M.A. Siddique vs. Government of India, 1989 (42) E.L.T. (Mad.), wherein it has been observed:-
2. Mr. K. Ramaswami, learned Co

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39;Silva v. Regional Transport Authority 65 LW 73 , a bench of this Court observed as follows : “We have no hesitation in making it clear that a quasi-judicial Tribunal like the Regional Transport Authority or the Appellate Tribunal therefrom cannot ignore the findings and Orders of competent Criminal Courts in respect of an offence, when the Tribunal proceeds to take any action on the basis of the commission of that offence. Let us take the instance before us. The offence consist in smuggling foodgrains. For that same offence, the petitioner was criminal prosecuted. He has also been punished by his permit being suspended for a period of three months. If the criminal case against him ends in discharge of acquittal, it means that the petitioner, is not guilty of the offence and therefore did not merit any punishment. It would indeed be a strange predicament when in respect of the same offence, he should be punished, by one Tribunal on the footing that he was guilty of the offence and th

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ng i.e., bleaching, dyeing, printing, finishing, packed in HDPE bags on comparison with recorded stock, a shortage of 175178 L. mtrs. of processed MMF valued at Rs. 31,53,204/- involving Central excise duty of Rs. 3,15,329/- was detected. Accordingly, a panchnama came to be drawn recording the said facts. Statement of a Director of the Company, Shri Rajnikant Omkarmal Agarwal also came to be recorded, under Section 14 of the Act, wherein apart from several other admissions, he admitted the contents of the panchnama. Statements of other employees of the Respondent were also recorded under Section 14 of the Act. Subsequently, a show cause notice came to be issued to the Respondent calling upon it to show cause as to why Central excise duty amounting to Rs. 4,30,275/- should not be demanded under Section 11A of the Act, as well as, as to why mandatory penalty and penal interest should not be imposed.
5. As can be seen from the order made by the adjudicating authority, before the adjudica

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atement of the Director of the Assessee Company, Shri Rajnikant Agarwal recorded on 10-7-2003, there was no other evidence in support of the charge of clandestine removal of goods. The statement recorded on 10-7-2003 had subsequently been retracted by Shri Rajnikant Agarwal. Thus, it is apparent that the only evidence in respect of clandestine removal against the Assessee was in the nature of the statement recorded under Section 14 of the Act, which had been subsequently retracted. Before the adjudicating authority, the Respondent Assessee had led evidence to establish that the charge of clandestine removal is not made out and that there was no shortage of material as recorded in the panchnama which was accepted by the adjudicating authority. The findings of the adjudicating authority stand confirmed by both the appellate authorities. Learned Counsel for the Appellant is not in a position to point out any evidence to the contrary, in support of the case of the revenue as regards shorta

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d flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects:
(i) To find out the excess production details.
(ii) To find out whether the excess raw materials have been purchased.
(iii) To find out the dispatch particulars from the regular transporters.
(iv) To find out the realization of sale proceeds.
(v) To find out finished product receipt details from regular dealers/buyers.
(vi) To find out the excess power consumptions.
13. Thus, to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department.
14. In the instant case, no investigation was mad

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for the Department to come to a conclusive factual finding that there was shortage of 14,25,900 pieces of particular size and if they were all mixed together.
The onus would lie upon the Department to undertake the said exercise which was not possible in such a short period due to the large number of inventory which was there at the site. Nothing was brought on record, in any manner, to show that to manufacture such a large amount of 14,25,900 pieces, there was material which had been consumed since neither any relevant record had been shown to show that electricity had been consumed or labour had been utilized to manufacture the said quantity. Neither the fact of purchase of raw material from the vendors or the sale to the consumers was brought on record. In the absence of any corroborative evidence, the levy of such a huge demand was, thus, totally arbitrary and has been rightly set aside.
9. It is apparent that the demand was raised and a sum of ` 14 lacs was taken on the same da

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M/s. SAIL Refractory Co. Ltd. Versus Commissioner of GST & Central Excise, Salem
Central Excise
2018 (9) TMI 1059 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
E/394 to 397/2012 – Final Order Nos. 42038-42041/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Ms. S. Gayatri, Advocate for the Appellant
Shri A. Cletus, Addl. Commissioner (AR) for the Respondent
ORDER
Per Bench
Brief facts are that the appellants are engaged in the manufacture of refractory bricks. They raised bonus claim against the buyers to whom the refractory bricks were supplied and which had outperformed the guarantee period as per commercial terms and conditions of t

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llant has to be included in the assessable value. Four show cause notices were issued raising the above allegations for the periods as mentioned below. The original authority confirmed the demand, interest and imposed equal penalty. In appeal, the Commissioner (Appeals) upheld the demand and interest but set aside the penalty imposed under Rule 25 of Central Excise Rules. Hence these appeals.
2. On behalf of the appellant, learned counsel Ms. S.Gayatri explained the details of the adjudication order, period involved and the amount as given in the Table below:-
Order-in-Original
Period
Total
No. 10/2005 dated 26.12.2005
March 2004 to Jan. 2005
42,96,023/-
No. 12/2008 dated 26.12.2008
1/2008 to 3/2008
36,464/-
No. 03/2009 dated 26.

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M/s. Pothys, rep. by its Managing Partner Mr. S. Ramesh, Chennai-17, Tirunelveli Versus The Principal Chief Commissioner, Goods and Services Tax Act (previously Central Excise & Customs), Government of Tamil Nadu, Union of India, The Chairman, GSTIN
GST
2018 (9) TMI 685 – MADRAS HIGH COURT – TMI
MADRAS HIGH COURT – HC
Dated:- 18-7-2018
W. P. Nos. 7218 to 7225 of 2018
GST
Mr. T.S.SIVAGNANAM J.
For the Petitioners : Mr.A.Ravichandran
For the Respondent-1 : Mr.V.Sundareswaran, SPC
For the Respondent-2 : Mrs.G.Dhana Madhri, GA
For the Respondents 3 & 4 : Mr.T.L.Thirumalaaisamy, CGSC
COMMON ORDER
Heard both.
2. The sum and substance of the prayer of the petitioners is that they are unable to upload Form GST TRAN-1 to take credit of the input tax/ service tax/central excise duty availed by them at the time of migration within the time stipulated.
3. The petitioners would state that they were unable to upload Form GST TRAN-1 within the time stipulated on account

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by filing representation along with all necessary documents for redressal of his grievance and in turn, the said authority would consider and dispose of the same following the procedure laid down in para 8 of the circular dated 3.4.2018 and would take decision accordingly keeping in view that this writ petition remained pending since 26.3.2018.
8.With the aforesaid direction, the writ petition stand finally disposed of.”
5. So far as the High Court of Delhi is concerned, the Delhi High Court, in W.P(C) No.1300 of 2018 etc. batch by order dated 09.4.2018, directed the petitioners therein to approach the concerned Nodal Officer with brief representations outlining their grievances and the Nodal Officer or the Redressal Committee was directed to appropriately deal with representations in accordance with the circular dated 03.4.2018.
6. So far as the Kerala High Court is concerned, in W.P.No.17348 of 2018 by order dated 14.6.2018, the following direction has been issued:
“Having reg

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ell.
8. It was brought to the notice of the Central Board of Indirect Taxes (CBIC) and Customs about the difficulties faced by a section of tax payers owing to technical glitches on the GST and representations were given by the petitioners. Therefore, the CBIC is setting up a Grievance Redressal Mechanism vide Circular No.39/13/2018-GST dated 03.4.2018. Paragraph 8 of the said circular would be relevant for the purpose of the cases on hand, which reads as under :
“8. Resolution of stuck TRAN-1s and filing of GSTR-3B
8.1 A large number of taxpayers could not complete the process of TRAN-1 filing either at the stage of original or revised filing as they could not digitally authenticate the TRAN-1s due to IT related glitches. As a result, a large number of such TRAN-1s are stuck in the system. GSTN shall identify such taxpayers who could not file TRAN-1 on the basis of electronic audit trail. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1

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iscussed above, by 30th April 2018 and the process of completing filing of GSTR 3B which could not be filed for such TRAN 1 shall be completed by 31st May 2018.”
9. Further, paragraph 5.1 of the said circular would state that GSTN, Central and State Government would appoint Nodal Officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the common portal. This would be publicized adequately.
10. An argument was advanced by the learned counsel for the assessees that paragraph 5 of the said circular dated 03.4.2018 is confined to non-TRAN-1 issues. However, this Court finds that there is no such specific distinction brought about in paragraph 5 of the said circular.
Therefore, it can be safely held that the procedure of appointment of Nodal Officers and identification of issues are to be done in the manner provided in paragraph 5 of the said circular. Unless the Nodal Officers are appointed, the Jurisdictional officer of the Assessee, namely Asse

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Commissioner of CGST & Central Excise, Varanasi Versus M/s Bahadur & Co. And Commissioner of CGST & Central Excise, Varanasi Versus M/s Aditya Cemech Construction Company
Service Tax
2018 (8) TMI 359 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 18-7-2018
STAY Application Nos. ST/Stay/70148-70149/2018 in APPEAL Nos. ST/70303-70304/2018-CUP[DB] – Final Order Nos. 71570-71571 / 2018
Service Tax
Hon'ble Smt. Archana Wadhwa, Member ( Judicial ) And Hon'ble Mr. Anil G. Shakkarwar, Member ( Technical )
Shri Shri Mohd Altaf ( Asstt. Commr. ) for Appellant
Absent for Respondent
ORDER
Per: Archana Wadhwa
As the impugned orders of Commissioner (Appeals) are non-executable, we reject the Stay Petitions filed by the R

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(Appeals) order is reproduced below:-
“Thus, I hold that construction of residential flats under Manyawar Shri Kanshi Ramji Shehari Garib Awas Yojna, was not taxable under “Works Contract Service”, during the impugned period and as such, the appellant are not liable to pay Service Tax on such construction service. Same view has also been taken in cases of M/s Sanjeev Saran Srivastava, M/s Manoj Kumar Singh and M/s Ganesh Yadav, involving exactly the same issue, by the then Commissioner (Appeals), Central Excise, Customs and Service Tax, Allahabad, vide Order-in-Appeal No. 170/ST/ALLD/2013 dated 31.12.2013, No. 120/ST/ALD/2015 dated 22.07.2015 and No. 267/ST/ALLD/2015 dated 16.12.2015 respectively, wherein appeals were allowed after obser

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ontending as above, Revenue has not been able to give any details of the appeal filed before the Hon'ble High Court. Even, the fact as to whether the same stands admitted by the High Court or not, has not been placed before us. There is no order of Stay of operation of the Tribunal decision in the case of Ganesh Yadav.
Apart from the above we also note that the issue involved is the taxability of the services and applicability of exemption notification and as such the appeal was, in any case required to be filed before the Hon'ble Supreme Court and not before the Hon'ble High Court.
5. Inasmuch as the Tribunal's decision in the case of Ganesh Yadav holds the field, we find no infirmity in the impugned orders of Commissioner (Appeals). Acc

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CGST, Customs & Central Excise, Bhopal Versus M/s Diligent Power Pvt. Ltd.
Service Tax
2018 (8) TMI 250 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Appeal No. ST/51495/2018-SM – A/52608/2018-SM[BR]
Service Tax
Mr. V. Padmanabhan, Member (Technical)
Shri H.C. Saini, D.R. – for the appellant
Shri Sandeep Mukherjee, CA – for the respondent
ORDER
Per V. Padmanabhan:
The present appeal is filed against the Order-in-Appeal No. 862/2017-18 dated 27.3.2018.
2. The brief facts of the case are that the respondent is engaged in providing taxable services under the category of Consulting Engineers. During the course of audit, it was observed that the respondent has availed and utilised Cenvat credit of service tax paid by them on account of Renting of Immovable Property Services. It was further noticed that such rent was paid for the period prior to obtaining centralised registration including such premises. The application made for centralised re

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the Tribunal in the case of CCE & ST Vs. Samsung India Electronics Pvt. Ltd. – 2017 (52) STR 497 (Tri.-All.). Since Revenue has challenged such decision further, he submitted that the appeal may be allowed.
4. The case of the respondent was argued by Shri Sandeep Mukherjee, ld. CA. It is his submission that the decision of the Tribunal in the case of Samsung India Electronics Pvt. Ltd. was further upheld by the Hon'ble Allahabad High Court reported as 2017 (52) STR J253 (All.). He submitted that even though Revenue has challenged the decision further the benefit is to be granted to the respondent.
5. Heard both sides and perused the record.
6. The main reason why the Cenvat credit has been disputed by Revenue is that the premises for which rent was paid along with service tax was not part of the centralised registration till it was granted to the respondent with effect from 28.1.2015. It is further seen that the application for such centralised registration was submitted as early as

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roved and granted on 19-7-2013. Further it has been certified by the C.A. that invoices for output service rendered from Stellar Park, was raised from the Registered Office at Noida. That as per Rule 3 of CCR, 2004, there was no condition precedent, that input service have to be received at Registered Premises, only of the output service provider. Further reliance is placed on the ruling of Hon'ble Karnataka High Court in mPortal India Wireless Solutions (P) Ltd. v. CST, 2012 (27) S.T.R. 134 (Kar.) and of Hon'ble Bombay High Court in Deepak Fertilizers & Petrochemicals Corporation Limited v. CCE, 2013 (32) S.T.R. 532 (Bom.). Considering the rival contentions, following the rulings of Karnataka High Court and Bombay High Court (supra), this ground is rejected. It is held that a service provider can avail Cenvat credit of Service Tax paid on various input services, as long as the said services are used for providing output-taxable services.”
7. The said decision has further been upheld

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M/s WM Logistics India Pvt. Ltd. Versus CGST & CE, Indore
Service Tax
2018 (8) TMI 172 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Appeal No. ST/51431/2018-SM with ST/Misc. /50641/2018 – Final Order No. 52609/2018
Service Tax
Hon'ble Mr. V. Padmanabhan, Member ( Technical )
Shri S. Thirumalai, Consultant – for the appellant
Shri K. Poddar, D.R. – for the respondent
ORDER
Per V. Padmanabhan
The present appeal challenges the Order-in-Appeal No. 402/2017-18 dated 12.12.2017.
2. The appellant is a 100% subsidiary of WM Logistics LLC, USA. As per the agreement with their parent company, they provided product development support services for collection and disposal activities of WML, USA. The appellant was registered for providing taxable services including 'Information Technology Software Service'. The dispute pertains to the claim for refund filed by the appellant for the period April, 2015 to September 2015, for refund of accumulated Cenvat

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rumalai, ld. Advocate. Revenue was represented by Shri K. Poddar.
4. The arguments advanced on behalf of the appellant is summarised below:
(1) The ld. Advocate submitted that the only reason given by the authorities below for rejection of the refund claim is the appellant's inability to submit the Softex Forms. He emphasized the fact that all other supporting documents in the form of invoices issued to WML, foreign inward remittance certificate issued by the banks as well as the Chartered Accountant's certificate certifying the export turnover have been duly submitted and the authorities below have not recorded anything against these documents.
(2) He submitted that the requirement of submission of Softex Forms is not applicable for the export of software undertaken by the appellant as has been held by the Tribunal in the case of Mobile Iron India Software Pvt. Ltd. Vs. CCE, Hyderabad – 2017 (3) CGST 518 (Tri.-Hyd.).
(3) He submitted that the appellant is satisfying all the con

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Rule 5 of the CCR, 2004 may be granted by the departmental authorities subject to fulfilment of the conditions and safeguards prescribed in the Notification No. 27/2012-CE(NT). The conditions and safeguards have been prescribed to ensure that the services have been duly exported and payment for the same has been received in foreign exchange. Documentary evidences as prescribed under notification are required to be submitted to satisfy the requirements.
8. In respect of the refund claims filed by the appellant for the quarter April 2015 to September 2015, the only objection recorded by the lower authorities is that the documentary evidence for export of services has not been satisfactorily submitted. The STPI authorities have carried vide their letter dated 28.12.2016 that the Softex Form is required to be submitted as per the RBI guidelines to evidence the export of goods/services through data communication links. The appellant is not registered with STPI authorities and hence could n

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The relevant Rule of Foreign Exchange Management (Export of Goods & Services) Regulations, 2015 is reproduced below :
“For the removal of doubt, it is clarified that, in respect of export of services to which none of the forms specified in these Regulations apply, the exporter may export such services without furnishing any declaration, but shall be liable to realise the amount of foreign exchange which becomes due or accrues on account of such export, and to repatriate the same to India in accordance with the provisions of the Act, and these Regulations, as also other rules and regulations made under the Act.”
“Declaration in Form SOFTEX
(i) The declaration in Form SOFTEX in respect of export of computer software and audio/video/television software shall be submitted in triplicate to the designated official of Ministry of Information Technology, Government of India at the Software Technology Parks of India (STPIs) or at the Free Trade Zones (FTZs) or Special Economic Zones (SEZs

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M/s. Amman Match Company Versus The Assistant Commissioner of GST & Central Excise, The Commissioner of GST & Central Excise
Central Excise
2018 (7) TMI 1596 – MADRAS HIGH COURT – 2018 (363) E.L.T. 120 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 18-7-2018
W.P.(MD)No.12060 of 2018
Central Excise
M. Govindaraj, J.
For the Petitioner : Mr.A.P.Ravi
For the Respondents : Mr.R.Nandakumar
ORDER
This Writ Petition is directed against the order of the first respondent passed in the Order in Original No.MAD-CEX-000-ASC-196-16, dated 29.07.2016, for violation of principles of natural justice.
2. The petitioner submitted a rebate application along with the required documents to the first respondent on 02.05.2016. Pursuant to the application, a show cause notice was issued by the first respondent on 24.06.2016 proposing to reject the rebate claim of Rs. 12,40,360/- and it was received by the petitioner on 27.06.2016. Since he has failed to file his objections within 30 days, th

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r personal hearing in the case and request the assessee to appear before him for a personal hearing by himself or through an authorised representative. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communications should be made to the noticee for each opportunity of personal hearing. In fact separate letter for each hearing/extension should be issued at sufficient interval. The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding adjourn the hearing for reasons to be recorded in writing. However, no such adjournment shall be granted more than three times to a noticee.”
5. The learned counsel would also contend that the show cause notice mandated the petitioner to show cause against the notice within 30 days. As per Paragraph No.15 of the show cause notice, if no cause is shown against the action proposed to be taken within 30 days of r

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33-A . Adjudication procedure.- (1) The Adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires.
(2) The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during the proceeding.”
7. According to the learned Standing Counsel appearing for the respondents, a show cause notice was issued and the petitioner failed to respond to the show cause notice and has not expressed his wish to be heard in person. In the absence of any request for personal hearing, the statutory provision does not mandate the adjudicating authority to provide personal hearing. In support of his contention,

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(7) Manohar Vs. State of Maharashtra [2013(295) ELT 358 (SC)];
(8) Reema Gases (P) Ltd. vs. Commissioner [2014(309) ELT A50 (Cal)];
(9) Kantilal B.Mohite vs UOI 2014(306) ELT 51 (Bom)];
(10) Baboo Ram Hari Chand vs. UOI [2014(304) ELT 371 (Guj)];
(11) Logic Transware India Pvt Ltd vs. CC. [2014(302) ELT 228(Del)];
(12) Adhunik Power Transmission Ltd. vs. UOI [2015(325) ELT 865 (Jhar)];
(13) CC, Bangalore vs. Fly Jac Logistics Pvt Ltd [2015(323 ELT 730 (Kar)];
(14) Shrushthi Plastics Pvt Ltd vs. CCE, Puducherry [2015(323) ELT 515(Mad)];
(15) Confidence Petroleum India Ltd. vs. ADDL.C.C., C.E. & S.T., Coimbatore [2015(322) ELT 237 (Mad)];
(16) General Mills India Pvt Ltd. vs. UOI [2015(322) ELT 95(Bom)];
(17) Deputy Commissioner of Central Excise, Chennai vs. Dorcas Market Makers Pvt. Ltd., [2015(321) ELT 45(Mad.)];
(18) JSL Lifestyle Ltd. vs. Union of India [2015(326) ELT 265(P&H)];
(19) Panoli Intermediate (India) Pvt. Ltd. vs. Union of India [201

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d Customs, New Delhi, which goes to say that the adjudicating authority had proceeded to fix a date and time for personal hearing in the case and request the assessee to appear before him for a personal hearing by himself or through his authorized representatives. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communication should be made to the noticee for each opportunity of personal hearing. From this, it can be inferred that while adjudicating the issues, it is incumbent on the adjudicating authority to provide opportunity of personal hearing, not one, at least three, with sufficient interval of time, so that,the noticeee may avail the opportunity of being heard. The very object of the Master Circular issued by the Central Board of Excise and Customs mandates that the provision of personal hearing is very essential before deciding any issue by a quasi judicial autho

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ion, where it is silent and the provision shall not be read to give a meaning that it excludes personal hearing to those not asked for it.
13. The very issuance of the show cause notice, as specified at Paragraph No.2.1 of the Master Circular, is that the object of following the principles of natural justice is no one should be condemned unheard. In this context, we see that the Circular issued by the Central Board makes personal hearing mandatory and is binding on all the quasi judicial authorities. They cannot disobey or ignore the circular, as it has the binding force on them.
14. Coming again to the provision under Chapter VI of the Central Excise Act, 1944, with regard to adjudication of confiscation and penalties, Section 33-A reads that the opportunity of being heard to a party in a proceeding, if the party so desires, shall be given. Sub-Section (2) of Section 33-A mandates that if sufficient cause is shown, at any stage of proceeding, that time shall be granted for reasons t

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nt Commission examined the application and other connected records and has taken into consideration the reply filed by the appellant therein and decided the issue. In such an appeal proceeding, it is observed that if personal hearing is not given, it could not be said that there was violation of principles of natural justice. More so, the subject matter of controversies/disputes between the parties only impinge upon the interpretation of various Sections of the Customs Act on legal plane and, therefore, no prejudice was caused to the party in not providing opportunity of hearing to its authorised representative. Whereas, in the instant case, a show cause notice was issued by the adjudicating authority to the petitioner and it requires explanation directly by him and in cases of clarification, requires his presence in person to explain the factual issues. The issue decided by this Court in the above said case is with regard to the appeal proceeding and that cannot be equated with the or

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e petitioner therein.
18. In the instant case, after giving show cause notice granting 30 days time, the authority, without waiting for any reply, on the 32nd day, passed an order. Therefore, the judgment of the Karnataka High Court cannot be applied to the case on hand.
19. Again, the learned Standing Counsel for the respondents relied on the judgment of Calcutta High Court reported in 2005(185) E.L.T. 227 (Cal.) [Nellimarla Jute Mills Co. Ltd. vs. Zonal Dir.Gen. of Foreign Trade], wherein the adjudicating authority, after lapse of time granted to the petitioner therein, has extended further time of seven days and served notice on the petitioner therein and thereafter, proceeded with the adjudication. In such circumstances, it cannot be said that the order was passed hastily. Another opportunity was given in compliance with the principles of natural justice. Therefore also, the said judgment is of no avail in favour of the respondents.
20. The Hon'ble Supreme Court in Swami Dev

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he Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusion. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair

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be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusion, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.”
21. Further, in the judgment reported in General Mills India Pvt Ltd. vs. UOI [2015(322) ELT 95(Bom)]; a Division Bench of Bombay High Court at Paragraph No.4 has held as follows:
“4……………. We do not see how the approach of the officer in this case can be countenanced even in the present matter. When

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e Assistant Commissioner (CT), Avarayampalayam Assessment Circle, Coimbatore] dated 16.03.2018, has held as under:-
“Denial of Personal hearing:
“10.The respondent denied the appellant opportunity of hearing only on the ground that objection was not given to the pre-assessment notices. Even if objection was not given, still the assessing authority was expected to post the matter for hearing by issuing notice to the assessee. In case the assessee fail to appear, it is open to the assessment authority to pass orders on merits. We make the position clear that the failure to submit objection to the pre-assessment notice would not give a right to the Assessment Officer to deny opportunity of personal hearing to the assessee.
23. Insofar as the issue of approaching this Court without exhausting the alternative remedy is concerned, a Full Bench of Hyderabad High Court in Electronics Corporation of India Ltd. vs. UOI [2018-TIOL-484-HC-AP-CX-LB], at Paragraph No.23, has observed as under

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, the Writ Petition is maintainable.
25. Insofar as the impugned order in original passed by the first respondent dated 29.07.2016 is concerned, it is passed without affording any opportunity of personal hearing, in contravention of the statutory provision, circular issued by the department as well as contrary to Paragraph No.15 of the show cause notice. The impugned order passed within two days from the date of lapse of the time granted in the show cause notice is certainly in violation of principles of natural justice and, therefore, it is liable to be set aside.
26. In the result, the Writ Petition is allowed and the impugned order in original dated 29.07.2016 passed by the first respondent is set aside and the matter is remanded back to the first respondent for consideration afresh. The petitioner shall file all his objections, within a period of one month from the date of receipt of a copy of this order. On receipt of objections from the petitioner, the first respondent shall af

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Sh. Rishi Gupta Versus M/s. Flipkart Internet Pvt. Ltd.
GST
2018 (7) TMI 1490 – NATIONAL ANTI-PROFITEERING AUTHORITY – 2018 (17) G. S. T. L. 623 (N. A. P. A.)
NATIONAL ANTI-PROFITEERING AUTHORITY – NAPA
Dated:- 18-7-2018
Case No. 5/2018
GST
MR. B. N. SHARMA, CHAIRMAN, MR. J. C. CHAUHAN, TECHNICAL MEMBER AND MR. R. BHAGYADEVI, TECHNICAL MEMBER
ORDER
1. The brief facts of the case are that an application dated 11.01.2018 was filed by the above Applicant before the Standing Committee, constituted under Rule 123 (1) of the Central Goods & Services Tax (CGST) Rules, 2017 stating that he had ordered a Godrej Interio Slimline Metal Almirah through the Respondent vide his order No. OD 110666745976477000 on 04.11.2017 and a tax invoice dated 07.11.2017 was issued to him for an amount of Rs. 14,852/- by M/s Godrej & Boyce Mfg. Co. Ltd., Mumbai (here-in-after referred to as the Supplier). At the time of delivery, another invoice dated 29.11.2017 was issued by the Supplier

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nd on the gross amount, a discount of Rs. 500/- was given to the applicant by the Supplier. He had also found that the discounted price of Rs. 14,852/- could be further broken into Rs. 11,603.13/- as the base price and Rs. 3248.87/- as the GST@ 28%. Therefore the DGAP had stated that the base price of the supplier was Rs. 11,993.75/- with discount of Rs. 500/-. He had also stated that in the case of the invoice dated 29.11.2017 it was apparent that the Supplier had charged GST at the reduced rate of 18% on the base price of Rs. 11,993.87/- and hence the price charged to the Applicant was Rs. 14,151.87/-. The DGAP had therefore concluded that the Supplier had charged GST at the prescribed rate of 18% on the base price of Rs. 11,993.87/- and thus he had not increased the earlier base price after coming in to force of the GST. He had also concluded that the discount of Rs. 500/- which was offered earlier had been withdrawn by the Supplier vide his invoice dated 29.11.2017 which did not am

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27.4.2018 received from the Respondent the excess amount of Rs. 700/-collected from the Applicant had been refunded to him on 18.01.2018. The Respondent had also stated that he was only offering a market place which enabled the sellers to offer their products for direct sale to the customers for which it was charging commission and the sellers were entirely responsible for the supply of goods and services and for the payment of taxes. The Respondent had also informed that there were 7254 cases in which the rate of GST at the time of booking of the orders on his platform was higher than the rate of GST prevalent at the time of delivery and the Respondent had initiated the process of refund of the differential amount as per the instructions of the sellers.
5. It was decided to hear the Applicant as well as the Respondent on 29.05.2018 during which Sh. Gopi Krishna Obulam, Director, Sh. Prasanth Bhat, authorized representative and Sh. Pankaj Bathla, Sr. Manager appeared for the Responde

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ondent was not a Supplier and hence the refund of excess tax was distinct from profiteering and hence it did not fall under the ambit of Section 171 of the Act.
7. We have carefully heard the Respondent and have also perused the material placed on the record and it is revealed that the Applicant had placed an order for supply of a Godrej Interio Slimline Metal Almirah on the Supplier through the Respondent on 4.11.2017 for which a tax invoice was issued by the Supplier on 7.11.2017. The gross amount of Rs. 15,352/- shown in the invoice could be broken up into Rs. 11,993.75/- as base price and Rs. 3358.25/- as GST @ 28%. It is also revealed that on this gross amount a discount of Rs. 500/- was offered and the discounted price of Rs. 14,852/- was further broken up into Rs. 11,603.13/- as base price and Rs. 3248.87/- as GST @ 28%. Therefore it is apparent that the base price of the Supplier was Rs. 11,993.75/- and on the cum tax price a discount of Rs. 500/- was offered. It is also revea

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the above Act is not established.
8. It is also apparent that the Respondent was not the Supplier/manufacturer of the Almirah and was only an agent who had offered his platform to the Supplier to sell the Almirah by charging commission, and was also not responsible for collection or refund of GST and hence he cannot be held accountable for contravention of Section 171 of the CGST Act, 2017. It has also been found that the Supplier has refunded an amount of Rs. 700/- through the Respondent which was charged as tax in excess from the Applicant at the time of the placing of the order. It has also come to the notice from the perusal of the letter dated 27.4.2018 that the Respondent had charged 28% GST in the case of 7254 orders which were placed on his platform by the various buyers before 15.11.2017 and in which the supply was made after reduction of GST to 18%. The Respondent has claimed that he had already initiated the process of refund of excess tax collected from the recipients. Ke

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M/s Incopac Parts Pvt. Ltd. Versus CCE & CGST, Jaipur
Central Excise
2018 (7) TMI 1366 – CESTAT NEW DELHI – 2018 (362) E.L.T. 904 (Tri. – Del.)
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Excise Appeal Nos. 51200 – 51201 of 2018 – Final Order No. 52538 – 52539/2018
Central Excise
Hon'ble Sh. V. Padmanabhan, Member ( Technical )
Sh. Somesh Arora, Advocate for the appellant
Sh. K. Poddar, AR for the respondent
ORDER
Per : V. Padmanabhan
The present appeals are challenging the Orders-in-Appeal Nos.32-33 (SJ)/CE/JPR/2018 dated 02.02.2018 passed by the Commissioner (Appeals), Central GST and Central Excise, Jaipur. The period of dispute is April to September, 2014.
2. The appellant is a 100% EOU. For manufacture of goods in the EOU, the appellant procured various inputs on payment of duty and availed cenvat credit of duty paid on such goods. The dispute pertains to the refund claims made by the appellant under Rule 5 of the Cenvat Credit Rules, 2004. Part of the ref

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arised below:
(i) Ld. Advocate submitted that the inputs were procured on payment of duty. The department is not justified in denying the cenvat credit of duty paid on such inputs for the reasons that the exemption notification which was available for procurement of such goods i.e. Notification No. 22/2003 dated 31.03.2003 is a conditional notification and the exemption in terms of such notification will be available only subject to fulfilment of such condition. In view of the conditions in the notification, he submitted that the provision of Section 5A(1) cannot be held against the appellant.
(ii) In this connection, he relied on the decision of the Karnataka High Court in the case of CCE, Bangalore-II vs. Federal Mogul TPR India Ltd. -2016 (334) ELT 476 (Kar.). In the above decision, he argued that the Hon'ble High Court has taken the view that Section 5A(1A) cannot be cited in the case of job work exemption under Notification No. 8/2005-ST.
4. Ld. AR appearing for the Revenue j

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iscussed the issue on merit and has rejected the refund claim and hence the appeal filed by the appellant on merits may be considered.
6. After hearing both sides and on perusal of record, I find that the crux of the dispute is whether the appellant is entitled to cenvat credit of duty paid on inputs procured by them for use in the manufacture of final product in the EOU. It is not in dispute that the inputs have been procured on payment of duty, even though the appellant could have procured the same without payment of duty in terms of Notification No. 22/2003 dated 31.03.2003. The concurrent finding of both the authorities below is that the cenvat credits are irregular and hence the refund of such credits under Rule 5 of the Cenvat Credit Rule will not be admissible.
7. The provision of Section 5A (1A) of the Central Excise Act is reproduced below:
“where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has

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on unconditionally. The appellant, being EOU was entitled to procure inputs without payment of duty under Notification No. 22/2003. A reference to this notification indicates that the exemption is granted subject to various conditions including the condition that the procedure contained in Central Excise (Removal of Goods at Concessional Rate of Duty for manufacture of Excisable Goods) Rules, 2001. The above clearly reveals that the exemption is conditional and is not absolute. In view of the above, it is to be concluded that provision of Section 5A(1A) as well as the Circular dated 26.11.2010 are not applicable for procurement of goods under Notification No. 22/2003. Consequently, there is no infirmity in the availment of credit by the appellant on duty paid. Further, the appellant will also be entitled to refund under Rule 5 of the Cenvat Credit Rules subject to satisfaction of conditions for claim of such refund.
10. Ld. AR has raised the ground that the impugned order has been pas

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Jaypee Sidhi Cement Plant Versus CGST C.C & C. E-Jabalpur And Hindustan Zinc Ltd Versus CE & ST-Udaipur
Central Excise
2018 (7) TMI 1279 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Appeal No. E/50633/2018-SMC, Appeal No. E/51064/2018-SMC – Final Order No. 52540-52541/2018
Central Excise
Hon'ble Mr. V. Padmanabhan, Member (Technical)
Sh. Hemant Bajaj, Advocate for the appellant
Sh. P. Juneja, H.C. Saini & K. Poddar, DR for the respondent
ORDER
Per: V. Padmanabhan
1. The present appeals have been filed against the Order-in-Appeal No. 494/2017-18 dated 29/11/2017 (for appeal E/50633/2018) and Order-in-Appeal No. 323/2017 dated 07/02/2018 (Appeal No E/51064/2018). The issue involved in both the cases are identical and hence are being disposed through this common order.
2. The brief facts for purposes of the present appeals are that the appellants purchase coal from various subsidiary companies of M/s Coal India Ltd., like M/s South Eastern Co

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the Cenvat Credit availed on the basis of supplementary invoices issued by Coalfields. Aggrieved by the decisions the present two appeals have been field.
3. In the above background we heard Shri Hemant Bajaj, Ld. Counsel for the Appellants as well as Shri P. Juneja & Shri H.C. Saini, Ld. DRs for the Revenue.
4. The arguments advanced on behalf of the appellants by Ld. Advocate are summarized below:-
i. He contended that the case of the Department is that the differential duty paid by the Coal Companies was on account of fraud, suppression etc alleged against them and hence the prohibition contained in Rule 9(1)(b)) applies to the appellants. In this connection he submitted that proceedings against the coal companies have not attended finality and are subjudice before the Apex Court. The appeals filed by the coal companies before the Tribunal have been disposed off with a direction to approach the Tribunal again after the outcome of the decision of the Hon'ble Supreme Court in the

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turer on account of willful misstatement, suppression of facts etc. Proceedings against the coal companies have been initiated by the Revenue by alleging suppression and hence the supplementary invoices cannot be the basis for availing credit as has been held by the lower authorities. Hence it is prayed that the appeal may be dismissed.
6. Further he submitted that the case law in the case of Birla Corporation may not be applicable to the present case but the fact whether there is suppression on the part of the present appellant is required to be considered by Tribunal.
7. After hearing both sides and perusal of record I note that the issue involved in the present appeals is whether the appellants are entitled to Cenvat Credit on the basis of supplementary invoices issued by the coal companies. Such credit stands denied in terms of Rule 9 (1)(b) of the Cenvat Credit Rules which denies the credit if such supplementary invoices are issued for duties which became payable by the manufact

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Commissioner of Service Tax, Chennai [sought to be changed as CGST & Central Excise, Chennai South Commissionerate Chennai] Versus Vasanth & Co.
Service Tax
2018 (7) TMI 1220 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
Application No. ST/Misc [CT]/41475/2017 & Appeal No. ST/524/2011 – Final Order No. 42030 / 2018
Service Tax
Hon'ble Ms. Sulekha Beevi, C.S., Member ( Judicial ) And Hon'ble Shri Madhu Mohan Damodhar, Member ( Technical )
Shri B. Balamurugan, AC (AR) For the Appellant
Shri K. A. Parthasarathy, Advocate For the Respondent
ORDER
Per Bench
The facts of the case are that M/s.Vasanth & Co., the respondents herein, are engaged in the business of trading in consumer durables like TV, Refrigerators, Washing Machines etc. in the show rooms. Pursuant to investigations carried out by the Directorate General of Central Excise Intelligence (DGCEI), it appeared that respondents had tie up with various financial institutions like GE Countrywide

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ority by an order dt. 08.09.2010 confirmed the proposals regarding tax demand in the SCN with interest, and also imposed penalties of Rs. 2000/- under Section 77 and equal penalty of Rs. 35,23,936/- under section 78 ibid. In appeal, the Commissioner (Appeals) vide impugned order dt. 17.06.2011, the Commissioner (Appeals) set aside the order of original authority and allowed the appeal. Aggrieved, Revenue is before this forum.
2. Today when the matter came up for hearing, on behalf of the Revenue Ld. A.R Shri B. Balamurugan reiterates the grounds of appeal and also made the following submissions :
i) The issue in question has been decided against the respondents in the Larger Bench of the Tribunal decision in Pagariya Auto Center Vs CCE Aurangabad – 2014 (33) STR 506 (Tri.-LB).
ii) The customers of respondents were directed to approach only such banks / financial institutions who have tie up with them and not to others.
iii) The representative of income by financial institutions

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siness Auxiliary Service'. Being an restricted activity, the Tribunal also held that for concluding that BAS has been provided, the transactional documents and other evidence on record should indicate the substantial activities falling within the contours of any of the integers of the definition of “Business Auxiliary Service'.
ii) However, in the instant case, no transactional documents have been relied upon by the original authority as well as by Commissioner (Appeals) and only statement of Shri S. Jeyaraj, Accounts Manager has been relied upon.
iii) All that the respondents did was to direct prospective customers to representatives of banks / financial institutions operated from the place of business of the respondents.
iv) The Department has sought various particulars on 1.10.2007 to which they had given reply on 10.10.2007 along with copies of General Ledger for the years 2003-04, 2004-05 and 2005-06. Further in response to summons dt. 15.11.2007 they had submitted a letter dt.

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nal authority was passed on 08.10.2010 and the impugned order of lower appellate authority was passed on 17.6.2011. Discernably, the lower authorities would obviously not have had the benefit of Larger Bench decision of the Tribunal Pagariya Auto Center Vs CCE Aurangabad – 2014 (33) STR 506 (Tri.-LB) which was passed only on 12.09.2013. In fact, the SCN has largely relied upon the single statement of Shri S. Jeyaraj, Accounts Manager of respondent to support the allegations made therein. There is no reference to any agreements or communications between the respondents and the financial institutions made in the body of the SCN. However, in the list of relied upon documents supplied along with SCN a reference has been made to sample copies of communications with ICICI Bank and GE Countrywide (Annexure-II) and also to worksheets containing details of payments received towards commission by respondents (Annexure-III). All the same, both the lower authorities have not done any analysis of t

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or financial institution would per se amount to BAS. The identification of the transaction and its appropriate classification as the taxable BAS or otherwise must clearly depend upon a careful analysis of the relevant transactional documents. Only such scrutiny and analysis would ensure rational classification of the transaction.
21. Where mere space is provided along with furniture for facilitating accommodation of representatives of financial institutions in the premises of an automobile dealer and consideration is received for that singular activity, such consideration may perhaps constitute a rent for the provision of space and associated amenities. Such restricted relationship/transaction may not amount to BAS. If on the other hand, the transactional documents and other evidence on record indicates a substantial activity falling within the contours of any of the integers of the definition of BAS, spelt out in Section 65(19), then it would be legitimate to conclude that BAS is

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ustice require that the matter should be remanded for de novo consideration by the original authority to apply the tests laid down by the Larger Bench of the Tribunal in Pagariya Auto Center Vs CCE Aurangabad (supra) as discussed above. So ordered.
8. At the same time, we find merit in the alternative contention of the Ld. Advocate that in a number of Tribunal decisions, which have applied the ratio laid down by Larger Bench in Pagariya Auto Center (supra), have consistently set aside penalties even while upholding the tax liability with interest. We find that this is the ratio adopted by the Tribunal in Sharya Motors Vs CST Mumbai – 2016 (43) STR 158 (Tri.-Mumbai) where it has been held as follows :
“6. In short, the appeal is disposed of by upholding the tax liability with interest, under the Business Auxiliary Services for commission received from the financial institution, while the tax demand on amount received as target incentive is set aside. Interest liability on the tax con

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es imposed under Sections 76, 77 and 78, we find that as per our above discussion on limitation, there is bona fide belief of the appellant for non payment of service tax, the appellant has been able to reasonable cause for invocation of Section 80. We are therefore of the view that considering the facts and circumstances as well as discussion made herein above with regard to the demand being time bar penalties under Sections 76, 77 and 78 require to be set aside invoking Section 80. As result we pass following order :
(a) Demand from July, 2003 to March, 2005 in respect of Business Auxiliary Services (service relate to HDFC bank) is set aside being time bar.
(b) Service tax demand for April and May-2005 require to be re-quantified as per our above discussion by the Adjudicating Authority.
(c) As regard the demand of Rs. 1,42,114/- relates to Business Auxiliary Service (Commission on sale of car) require to be re-considered applying the Notification No. 14/2004-S.T. by the Adj

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Southern Erectors (P) Ltd. Versus Commissioner of Service Tax [sought to be changed as CGST & Central Excise, Chennai South Commissionerate Chennai]
Service Tax
2018 (7) TMI 1219 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 18-7-2018
Application No. ST/Misc[CT]/41703/2017 & Appeal No. ST/515/2011 – FINAL ORDER No. 42029 / 2018
Service Tax
Hon'ble Ms. Sulekha Beevi, C.S., Member (Judicial) And Hon'ble Shri Madhu Mohan Damodhar, Member (Technical)
Shri M. Karthikeyan, Advocate For the Appellant
Shri A. Cletus, ADC (AR) For the Respondent
ORDER
Per Bench
The appellants are engaged in providing service under “Erection, Commissioning or Installation Services”. During the course of audit, it was found that during the period 2007-08, the appellants had realized labour charges covering the period from 12/06 to 5/07 during 4/07 July/2007 towards erection, commissioning or installation services rendered to their clients, but had not discharged service tax on such

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eceived by them were barely enough to pay staff / workers and their salaries. Despite this financial crunch, appellant had taken all efforts to realize the payments but could not succeed. When the payments were received, the appellants remitted the same along with interest. The delay in making the payment of service tax was only due to the delay in receiving payments. He points out that the amount of service tax along with interest was paid much before issuance of show cause notice. Only the differential amount as calculated by the department due to change in the rate of service tax from 12.24 % to 12.36% was to be paid. The same was paid within one month after issuance of SCN i.e. 15.11.2008. Thus, appellant had paid the entire service tax liability along with interest before passing of the OIO dt. 13.3.2009. Apart from the allegation that appellant has suppressed facts, there is no evidence to establish that appellant suppressed facts with intention to evade payment of tax. There was

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7) STR 343 (Tri.-Bang.) and argued that penalty is unwarranted when there is mere delay in payment of service tax. The facts put forward before us as well as the records would show that other than delay in payment of service tax, there is no evidence to show that appellant has suppressed facts with intention to evade payment of tax. The figures required for quantification of the demand of service tax has been taken from the accounts maintained by the appellant and there is nothing unearthed by the department to show that there was any positive act of suppression on the part of the assessee. We therefore find this is a fit case for invoking Section 80 of the Finance Act, 1994 as the appellant has put forward reasonable cause for non-payment of service tax during the disputed period. We therefore hold that the penalty imposed under Section 78 is unwarranted and requires to be set aside. The impugned order is modified to the extent of setting aside penalty imposed under Section 78 of the

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Refund of IGST on export of goods on payment of duty-Clarification in case of SB003 errors and extension of date in SB005 & other cases using officer Interface for rectification of errors-reg.
22/2018 Dated:- 18-7-2018 Circular
Customs
Circular No. 22/2018-Customs
F. No: 450/119/2017-CusIV
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Indirect Taxes and Customs)
*****
Room No.227-B, North Block,
New Delhi dated 18th July, 2018
To,
All Principal Chief Commissioner/Chief Commissioner of Customs/ Customs& Central Tax / Customs (Preventive)
All Principal Commissioner/Commissioner of Customs/ Customs & Central Tax / Customs (Preventive)
All Director Generals under CBIC.
Subject: Refund of I

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xamined. As PAN is embedded in the GSTIN, CBIC has decided to accord similar treatment to such cases also as are already covered under Para 2 of Circular 15/2018-Customs. The conditions prescribed in para 2 of the said circular shall apply mutatis mutandis.
3. CBIC has issued circulars 05/2018-Customs dated 23.02.2018, 08/2018-Customs dated 23.03.2018 and 15/2018-Customs dated 06.06.2018 wherein an alternative mechanism with an officer interface to resolve invoice mismatches (SB005 error) was provided for the shipping bills filed till 30.04.2018. Despite wide publicity and outreach programmes to make exporters aware about the need to have identical details in invoices given in shipping Bills and GST returns, it has been observed that a few

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Refund of IGST on export of Goods on payment of duty-Setting up of Help Desks -reg.
21/2018 Dated:- 18-7-2018 Circular
Customs
Circular 21/2018-Customs
F. No: 450/119/2017-CusIV
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Indirect Taxes and Customs)
*****
Room No. 227B, North Block,
New Delhi dated 18th July, 2018
To,
All Principal Chief Commissioner/Chief Commissioner of Customs/ Customs & Central Tax / Customs (Preventive)
All Principal Commissioner/Commissioner of Customs/ Customs& Central Tax / Customs (Preventive)
All Director Generals under CBIC.
Subject: Refund of IGST on export of Goods on payment of duty-Setting up of Help Desks -reg.
Sir/ Madam,
Various representations ha

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abin Space etc. would be made available to the officers by FIEO/AEPC.
3. The Directorate of Systems shall provide the status of each pending IGST refund claim with specific error due to which it is being held up, on Antarang. The icegate email ID of the officer(s) deputed at the Help Desk may immediately be informed to Team.ICES@icegate.gov.in to enable access to the data. The officers deputed at Help Desks would use this data to inform the exporters about the documents required, if any, and guide them to resolve the errors. The exporters can provide details related to any port of export at the Help Desk near their location. The Help Desk shall act as an extended office of the Port of export and collect documents/ information on behalf of

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Gst on exempted service tax works contract
Query (Issue) Started By: – Bijay Bharat Dated:- 17-7-2018 Last Reply Date:- 24-7-2018 Goods and Services Tax – GST
Got 5 Replies
GST
Dear Sir/Madam,
Our company has went into a works contract agreement with state govt which mentions specifically that all taxes are included except service tax which will be reimbursed as per actual but now after GST coming into force when we had claimed the Cgst part as exemption or to be borne by client I.e state govt their is ambiguity and confusion kindly help out in this regard is their any law or way to claim the part to service tax which was rembursable .
Thank you
Reply By Alkesh Jani:
The Reply:
Sir,
In this regards, my point of view is th

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notified. This does not stipulates, from registration, But….
In view of above, it can be said that Government is liable to GST and should pay GST. Alternately, you can raise the Invoice including GST , supply to un-registered person and pay tax. Any other view is appreciated.
Thanks
Reply By YAGAY and SUN:
The Reply:
In our view Government cannot deny to pay you the statutory dues/levies.
Reply By ANITA BHADRA:
The Reply:
Sir
There are two important points in your query :-
Time of Supply and GST payable by State Government .
What is time of supply ?
GST will not applied, in case invoice raised or supply made ( whichever is earlier ) pre GST period . In that condition , service tax is reimbursable by State Government as pe

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Interest rates under CGST Act.
Query (Issue) Started By: – Alkesh Jani Dated:- 17-7-2018 Last Reply Date:- 21-7-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Sir,
In terms of Section 50 (3) of CGST Act, If ITC is wrongly taken or utilized, on reversal interest @ 24% is to be paid. However, if refund is delayed for more than 60 days, interest rate @6% will be paid in terms of Section 54(12) of CGST Act, 2017.
Moreover, in terms of Section 2(84) of CGST Act, 2017, person includes Central Government or State Government.
The query is :- Section 54(12) of the Act, can be held to be ultra vires to Article 14 of Constitution of India.
Thanks
Reply By YAGAY and SUN:
The Reply:
In our view it is not ultra vires to Article 14

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of interest. Govt. pays @ 6% but recovers @ 24 % or 18% depending upon the nature of contravention. Govt. is a 'Ruler' and an assessee is a 'Ruled' as per Constitution of India. Nicely explained/ replied by both experts. I agree with the views of both experts.
If Central Govt. or State Govt. is a taxable person, that Govt. will also get interest @ 6% on the delayed refund. If we peruse decisions of various Courts, penal interest is also imposed on Central Govt. and State Govt., if contravened any provision of Act.Hence question of 'ultra vires' of Article 14 of the Constitution does not arise. All persons are equal in the eyes of law.
Reply By Alkesh Jani:
The Reply:
Sir,
I appreciate the views expressed by our e

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ding rate of interest say 6% which is less than the Bank Interest while 24% or 18% is like imposing penalty. Even money lenders are abid by the rate of 18%, then why 24% for taxpayers.
We are in Independent India, these kind of rate of interest and taxes were levied during British Rule. If Govt. is for the people, why not to keep 24 % instead of 6% for delayed refund.
I also acknowledge the views expressed by Sh. Rajagopalan Ranganathan Sir, with request that 24% is 4 times higher than delayed refund rate of 6%, without any doubt, it is undue hardship to any taxpayers or any citizen. Here, we are to keep in our mind the business man having turnover of just more than 20 or 10 lakhs, as the case may be. Please re-offer your comments.
Thank

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CBIC to observe Third Refund Fortnight to clear pending refunds
GST
Dated:- 17-7-2018

Refunds of GST have been a concern for the Government and Trade for the past several months. In this regard, the CBIC has observed two special drives cum refund fortnights in the Month of March, 2018 (15th to 31st March, 2018) and June, 2018 (31st May to 16th June, 2018) respectively. These refund fortnights have provided a lot of relief to the trade. In the 1st refund fortnight, ₹ 4265 Crore IGST refunds and ₹ 1136 Crore ITC refunds were sanctioned by field formations of CBIC. Similarly, during the 2nd refund fortnight, ₹ 6087 Crore IGST refunds and ₹ 1548 Crore ITC refunds were sanctioned by CBIC. In case of IGST ref

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FIRST APPELLATE ORDER IN ADVANCE RULING
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 17-7-2018

In March, 2018, Authority for Advance Ruling (AAR), Maharashtra had pronounced a ruling on job work vis-à-vis manufacture in relation to supply of goods (electricity). The advance ruling under reference is in the matter of In Re JSW Energy Ltd. [(2018) 13 GSTL 92; (2018) 5 TMI 763; ] with reference to scope of 'supply' under section 7 of the GST law.
Advance Ruling
Accordingly, it was ruled that where applicant-power company i.e. JSW Energy Ltd. (JEL) generates power from coal supplied by JSL, a steel company, and JEL supplies power to Jindal Steel Ltd. (JSL), activity under taken by JEL amounts to manuf

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ase, the end product i.e., 'electricity' had a distinct name, character and use than the inputs i.e., “coal”. Thus, when the Legislature had 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', 'Process' and 'Manufacture' are three different activities recognized by the Legislature. The intent of the Legislature was to restrict the scope of 'job work' to 'treatment' or 'process' and not to extend the same to 'manufacture'.
It was therefore, held that the activity under

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cant i.e. JEL regarding conversion of coal (to be levied by 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 JEL are beyond the process and treatment, and thus not covered under the definition of job work.
The Appellate Authority discussed in detail the interpretation on meaning of job work and manufacture and whether activity involved was supply of goods and/or job work or not. The Appellate Authority concluded that the activity undertaken by JEL to convert coal, to be supplied by JSL, in electricity is not co

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M/s. Hyundai Steel Pipe India Pvt. Ltd. Previously known as (M/s. Automated Steel Pipe India Pvt. Ltd.) Versus Commissioner of GST & Central Excise Chennai Outer Commissionerate
Central Excise
2018 (9) TMI 1121 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 17-7-2018
E/EH/40400/2018 and E/41201/2018 – Final Order No. 42027/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri K. Raju, Authorized Representative for the Appellant
Shri B. Balamurugan, AC (AR) for the Respondent
ORDER
Per Bench
The above application for early hearing is filed by the appellant seeking to hear the appeal out-of-turn.
2. On behalf of the appellant, Shri K. Raju, who is

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ndoned the delay and accepted the appeal. The appellant therefore seeks out of turn hearing of the appeal.
3. The ld. AR Shri B. Balamurugan supported the findings in the impugned order and also concurred to the early disposal of the appeal. He submitted that the Commissioner (Appeals) has rightly dismissed the appeal which is beyond the condonable period of the Commissioner (Appeals). As per the statute, the Commissioner (Appeals) can condone the delay only upto 30 days and the present appeal having been filed with a delay of 208 days, the Commissioner (Appeals) has rightly dismissed on the ground of limitation. He relied upon the judgment of the Hon'ble Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Ja

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Refund Disposal Fortnight to handhold trade & Industry in clearing pending GST refund claims from 16th July 2018 to 31st July 2018
Trade Notice No. 10/2018-19 Dated:- 17-7-2018 Madhya Pradesh SGST
GST – States
OFFICE OF THE COMMISSIONER, GOODS & SERVICES TAX HQRS.
GST BHAWAN, NAPIER TOWN, JABALPUR (M.P.) 482001
C.No. IV(16)02/Trade Notice/HQ/MP/Tech/2018-19/
Trade Notice No. 10/2018-19
Dated 17.07.2018
Sub: Refund Disposal Fortnight to handhold trade & Industry in clearing pending GST refund claims from 16th July 2018 to 31st July 2018-reg.
After the successful completion of ITC/ IGST Refund fortnights in the month of March 2018 (15th to 31st March 2018) & June 2018 (31st May to 16th June 2018) & Special ITC/IGST refund week

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ll 15th June 2018.
3. The Trade is requested to avail the golden opportunity and approach the jurisdictional Divisional office (Refund Cell) for processing of the pending ITC/IGST refund claims. The asseessees are encouraged to report any difficulties and obstacles in processing of their refund claims, The Department is committed to resolve all the issues at the earliest.
4. The exclusive camps/refund cell has been set up at all divisions of this Commissionerate to deal with the cases of pending ITC related refunds claims from 16th July 2018 to 31st July 2018. All the Taxpayers are advised to contact the following Nodal Officers of the concerned divisions of their jurisdiction to resolve their issues related to refund claims:
S.No.
Divi

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My Car Pvt. Ltd. Versus CGST CE & CC, Bhopal
Service Tax
2018 (8) TMI 691 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 17-7-2018
Appeal No. ST/50756/2015-CU[DB] – ST/A/52711/2018-CU[DB]
Service Tax
Shri C.L. Mahar, Member (Technical) And Ms Rachna Gupta, Member (Judicial)
Shri Milind Sharma, Advocate for the Appellant
Shri G.R. Singh, AR for the Respondent
ORDER
Per C.L. Mahar:
1. The brief facts of the matter are that the appellant is engaged in the business of trading and servicing of four wheeler motorcars as an authorised dealer of Maruti Udyog Ltd. and they are also doing the servicing of the automobile cars. It has been the allegation of the Department that the appellant is availing Cenvat Credit on the Service Tax paid on various input services such as telephone, advertising, renting, insurance, banking, maintenance and repairs, security services, and other financial services etc under the provisions of Cenvat Credit Rules, 2004 on the trad

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trading has come to be included as an exempted category service only w.e.f. 01/04/2011 by way of amendment carried out in the Cenvat Credit Rules, 2004 vide Notification No. 13/2011-CE (NT) dated 31st March, 2011 and therefore the activity of trading has to be considered as an exempted service only after 1st April, 2011 and Cenvat Credit of input services cannot be demanded prior to 01.04.2011.
3. We have heard both sides. It is a matter of record that the appellant has been engaged in trading of automobile cars along with servicing of the cars and other automobile from the same premises and they have availed Cenvat Credit of various common input services which has been utilised towards both taxable services as well as for trading activity.
4. We are of the opinion that trading activity abinitio cannot be considered as a “service” because the trading in the cars only involves transfer of property on financial consideration from the appellant dealer to various buyers of automobile car

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the relevant period.”
We have also relied upon the order of this Tribunal in case of Lally Automobiles Pvt. Ltd. V/s Commissioner of Service Tax, Delhi 2018 (10) GSTL 310 (Tri.-Del). The relevant extract of the judgment are reproduced herein below:-
“6. We have heard both the sides and perused appeal records. The admitted facts are that the appellants availed Cenvat credit on input services and they had considerable turnover and income in trading activities. It is also admitted that the services on which credit have been availed are partly relatable to trading activities also. We note that the appellants contested the reversal of credit, to a proportionate extent, on the ground that trading is not an exempted service prior to the insertion of explanation and as such the provisions of Rule 6(3) will not apply. One main aspect is missed by the appellant in such argument. The case of the appellant is that trading cannot be considered as exempted service. It is clear that trading is not

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Third IGST Refund Fortnight to clear pending refunds-reg.
109 /2018 Dated:- 17-7-2018 Trade Notice
Customs
OFFICE OF THE COMMISSIONER OF CUSTOMS (NS-II)
JAWAHARLAL NEHRU CUSTOM HOUSE, NHAVA SHEVA,
TAL. URAN, DIST-RAIGAD, MAHARASHTRA – 400 707
F. No. S/12-Misc-Gen/790/017-18 DBK JNCH
Date: 17.07.2018
PUBLIC NOTICE NO. 109 /2018
Subject: Third IGST Refund Fortnight to clear pending refunds-reg.
Attention of all the exporters, their authorized representatives and all export promoti

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M/s. Evershine Wood Packaging Pvt. Ltd., M/s. Greenwood Trading Company, and M/s. VKR Impex Versus The GST Council, The State Tax Officer, Tambaram
GST
2018 (8) TMI 65 – MADRAS HIGH COURT – 2018 (18) G. S. T. L. 577 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 17-7-2018
WP. Nos. 17836 to 17838 of 2018
GST
MR. T.S. SIVAGNANAM J.
For Petitioners: Mr. S. Sathiyanarayanan
For Respondent-1: Mr. V. Sundareswaran, SPC
For Respondent-2: Mr. M. Hariharan, AGP
COMMON ORDER
Heard both.
2. The sum and substance of the prayer of the petitioners is that they are unable to upload Form GST TRAN-1 to take credit of the input tax/ service tax/central excise duty availed by them at the time of migration within the time stipulated.
3. The petitioners would state that they were unable to upload Form GST TRAN-1 within the time stipulated on account of some error. Therefore, the petitioners seek for appropriate direction in this regard.
4. Similar prayers were made before the High Cour

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ispose of the same following the procedure laid down in para 8 of the circular dated 3.4.2018 and would take decision accordingly keeping in view that this writ petition remained pending since 26.3.2018.
8.With the aforesaid direction, the writ petition stand finally disposed of.”
5. So far as the High Court of Delhi is concerned, the Delhi High Court, in W.P(C) No.1300 of 2018 etc. batch by order dated 09.4.2018, directed the petitioners therein to approach the concerned Nodal Officer with brief representations outlining their grievances and the Nodal Officer or the Redressal Committee was directed to appropriately deal with representations in accordance with the circular dated 03.4.2018.
6. So far as the Kerala High Court is concerned, in W.P.No.17348 of 2018 by order dated 14.6.2018, the following direction has been issued:
“Having regard to the facts and circumstances of this case as also the orders passed in similar matters, I deem it appropriate to dispose of the writ petitio

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f tax payers owing to technical glitches on the GST and representations were given by the petitioners. Therefore, the CBIC is setting up a Grievance Redressal Mechanism vide Circular No.39/13/2018-GST dated 03.4.2018. Paragraph 8 of the said circular would be relevant for the purpose of the cases on hand, which reads as under :
“8. Resolution of stuck TRAN-1s and filing of GSTR-3B
8.1 A large number of taxpayers could not complete the process of TRAN-1 filing either at the stage of original or revised filing as they could not digitally authenticate the TRAN-1s due to IT related glitches. As a result, a large number of such TRAN- 1s are stuck in the system. GSTN shall identify such taxpayers who could not file TRAN-1 on the basis of electronic audit trail. It has been decided that all such taxpayers, who tried but were not able to complete TRAN-1 procedure (original or revised of filing them on or before 27.12.2017 due to IT glitch, shall be provided the facility to complete TRAN-1 fi

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by 31st May 2018.”
9. Further, paragraph 5.1 of the said circular would state that GSTN, Central and State Government would appoint Nodal Officers in requisite number to address the problem a taxpayer faces due to glitches, if any, in the common portal. This would be publicized adequately.
10. An argument was advanced by the learned counsel for the assessees that paragraph 5 of the said circular dated 03.4.2018 is confined to non-TRAN-1 issues. However, this Court finds that there is no such specific distinction brought about in paragraph 5 of the said circular. Therefore, it can be safely held that the procedure of appointment of Nodal Officers and identification of issues are to be done in the manner provided in paragraph 5 of the said circular. Unless the Nodal Officers are appointed, the Jurisdictional officer of the Assessee, namely Assessing Officer would not be in a position to forward the representations/applications filed by the assessees pointing out the glitches they are f

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Cubex Tubings Limited Versus The Assistant Commissioner of State Tax INV) D-002) & Ors.
GST
2018 (8) TMI 64 – BOMBAY HIGH COURT – 2018 (15) G. S. T. L. 643 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 17-7-2018
Writ Petition No. 7390 of 2018
GST
S.C. DHARMADHIKARI & SMT. BHARATI H. DANGRE, JJ.
Mr. Dhopatkar i/b Santosh Vhatkar & Associates for the Petitioner.
P.C. :
1. The petitioner has approached this Court complaining that the consignment, which was loaded on a vehicle, was intercepted during the course of its transport from the petitioner's office and factory to the State of Gujarat. The petitioner claims that they are manufacturers of copper and copper alloy products. They are holding the necessary Central Excise registration till migration to Goods and Services Tax (GST). They are also admitting that the product is covered by Chapter Heading 74 and the petitioners are holding a GST identification, details of which are set out in their letter Exhibit-F page 3

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r assurances to the ultimate user. The material be, therefore, released, otherwise the consignees export will be hampered and they will suffer huge losses. An alternate request is made that the vehicle can be detained, but at least the goods be released.
2. Mr. Dhopatkar appearing for the petitioners does not dispute that the power to detain and seize and release goods and conveyances in transit is conferred by section 129 of the Goods & Service Tax Act, 2017. That sub-section (1) of section 129 confers an overriding power and the authorities can proceed to detain or seize and equally after detention or seizure, release the goods.
However, there is a complete procedure, in the sense, the release can be directed provided the concerned person complies with clauses (a), (b) and (c) of sub-section (1) of section 129. Thus, to the satisfaction of the officer detaining the seizing the goods, the goods can be released. It is common ground before us that the seizure has not been challenged.

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the release of the goods. The conduct of the petitioner shows that it is not ready and willing to comply with these conditions, but desires that this Court should interfere and direct unconditional release of goods.
We are not inclined to agree with Mr. Dhopatkar given that there are disputed about questions of fact.
4 In the circumstances, the petitioner is aware of the consequences which would follow post such detention and seizure and if it still desires to approach the concerned official with a proper request and express its readiness and willingness to comply with all the conditions permissible in law, we have no doubt in our mind that the release would be granted.
5 In the teeth of an alternate, equally efficacious remedy, we do not think that we should interfere in this writ petition.
6 We do not wish to start a trend which was prevalent during the earlier regime. On most occasions, people would rush to this Court and invoke its extra ordinary, discretionary and equitable j

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