Goods and Services Tax

Kerala High Court Invalidates Rule 56(20A)(iii)(d), Protecting Lottery Businesses from Unwarranted Police Interference Under GST Act 2017.
Case-Laws
GST
Right to carry lottery business – Use of Kerala GST Act, 2017 and police power to interfere into the lottery business – practical difficulty – The petitioners should not be prevented from the sale of lottery for non compliance of Rules 56(19) and 56(20A) of the Kerala State GST Rules – Rule 56(20A)(iii)(d) of the Kerala State GST Rules

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High Court Rules Seizure of Goods Legal u/s 129(1) of UP GST Act Due to Incomplete E-Way Bill.
Case-Laws
GST
Seizure of goods – incomplete E-Way bill – Section 129(1) of UP GST – Apparently t

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ITC on pre-operative expenditure
Query (Issue) Started By: – LAKSHMINARAYANAN TR Dated:- 20-4-2018 Last Reply Date:- 23-4-2018 Goods and Services Tax – GST
Got 9 Replies
GST
Hi
May I see expert opinion on availing ITC on pre-operative expenses when the outward supply includes both exempt and taxable. If the Input or Input services relate to exempt or taxable supply specifically, its apparent not to avail or avail ITC appropriately. But challenge comes when common input/input services and capital goods consumed well before commencement of commercial activity of the business, how to apply rule 42 or 43?
Request expert opinion please
best regards
Durai
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
Section 16 (1) of CGST

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s not differentiate between pre and post operative supplies.
Regards
CA Susheel Gupta
8510081001, 9811004443
Reply By Ganeshan Kalyani:
The Reply:
The excess credit taken during the year can be paid with interest on or before September month of the subsequent financial year. Hence you may avail the credit now and when the year is over and you have the turover detail you can revise work and take corrective action.
Reply By CS SANJAY MALHOTRA:
The Reply:
Not starting commercial activity sometimes means trial run on product development taken but no supplies made. In such scenarios, ITC on input and input services are not eligible as no supply made.
Reply By KASTURI SETHI:
The Reply:
Sh.CS Sanjay Malhotra Ji,
Sir, Thanks a lot for

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not disposed of by way of gift or free samples and the ITC is not blocked.
CA Susheel Gupta
Reply By CS SANJAY MALHOTRA:
The Reply:
ITC is linked with supply which is main criteria in GST. Units avail ITC during factory set up considering that they shall be making supply of taxable goods. No one avails ITC if they know product is charged to nil GST.
Reply By CASusheel Gupta:
The Reply:
Respected Sanjay ji
Agreed that No one avails ITC if they know product is charged to nil GST.
My reply was restricted to "that since during trial run there is no supply and in the absence of supply during trial run ITC is not allowed."
Regards
Reply By LAKSHMINARAYANAN TR:
The Reply:
Dear All
Many thanks for your valuable suggestions, i

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DEPUTATION OF SALARIES
Query (Issue) Started By: – Kusalava InternationalLimited Dated:- 20-4-2018 Last Reply Date:- 26-5-2018 Goods and Services Tax – GST
Got 5 Replies
GST
Is GST applicable on Deputation of Salaries of Sister Company employees?If applicable what is the Rate?
Reply By KASTURI SETHI:
The Reply:
Salary is not subject to GST whether on deputation or on regular basis. Employer-employee relation does not lose its status during deputation. During deputation an employee

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Canteen services- analysis of Advance Ruling Authority, Kerala
By: – Suriyanarayanan Iyer
Goods and Services Tax – GST
Dated:- 20-4-2018

Canteen services under GST- an analysis of the advance ruling in Caltech Polymers Private Limited [ 2018 (4) TMI 582 – AUTHORITY FOR ADVANCE RULING – KERALA ]
The Authority for Advance Ruling-Kerala has decided on 26/03/2018 that recovery of the expenses from the employees for the canteen services provided by a company would come under the definition of' outward supply' as defined in section 2 (83) of the CGST Act, 2017 and therefore will be taxable as a supply of service under GST.
2) The said decision is based on the interpretation of definition of' business' in section 2 (17) of the CGST Act by the authority and its conclusion that supply of food by the applicant company to its employees would definitely come under the phrase' any activity or transaction in connection with or incidental or ancillary to sub- clause (a) occurring in

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definition of' business' as amended by the Amendment Act of 1966, proof of profit-motive is unnecessary to constitute business and that the transaction of supply of food and drink to the workmen in the canteen maintained by the assessee, in pursuance of the Factories Act and the Rules, were sales and constituted business for the purposes of the Act.
2.3) The apex court decision in Burmah Shell was, though holding the field and not explicitly overruled/reversed, came to be ignored by the apex court itself in respect of cases involving sale of unserviceable spares etcetera by State Transport Corporations. In such cases, the apex court went into the dominant object of service by the State Transport Corporations and held that sale of unserviceable parts etcetera by such transport corporations cannot be subjected to sales tax/VAT. The decision of the Delhi High Court reported as Commissioner of Sales Tax Versus Delhi Transport Corporation- 1996 (7) TMI 576 – DELHI HIGH COURT discusses abo

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ther canteen sales were liable for tax under the MP General Sales Tax Act.
3.1) After noting the Burmah Shell decision of the Supreme Court and the Hyderabad Asbestos Cement Case approved therein, considering the subsequent decision of the Supreme Court in Northern India Caterers India Ltd- 1978 (9) TMI 154 – SUPREME COURT OF INDIA as well as the earlier decision in Raipur Manufacturing Co Ltd- 1966 (9) TMI 82 – SUPREME COURT OF INDIA, the full bench of the Madhya Pradesh High Court held that sale of food articles in the canteen were not exigible to tax. The review petition filed by the revenue against the said decision was dismissed by another three-member bench of the Madhya Pradesh High Court as per reports in 2004 SCC online MP 163.
4) A question can arise that the decisions against the revenue cited above are only in respect of VAT/sales tax on canteen sales whereas the CGST Act, 2017 is a comprehensive legislation for tax on both goods and services.
4.1) But the fact that the

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e expression' in any other manner whatsoever' occurring in the declaration relating to composite supply has to be construed ejusdem generis only. That is, only if the supply in the canteen is by way of or as part of any intended service activity /business of employer, it can fall under the definition of 'composite supply'. Reliance is placed on the judgement of the Bombay High Court in ANK Seals Versus Employees State Insurance Corporation- 2006 (2) TMI 687 – BOMBAY HIGH COURT wherein the Bombay High Court held that the phrase 'in any other manner whatsoever' has to be construed ejusdem generis and acquisition of the undertaking by the central government will not fall within the sweep of the said phrase occurring after'transfers that factory or establishment in whole or in part, by sale, gift, lease or license'.
4.2.1) Thus, the reasoning of the Advance Ruling Authority that the supply of food and other articles in the canteen run by the employer due to the mandate under the Factorie

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M/s. Responsive Industries Ltd. Versus Commissioner CGST, Palghar
Service Tax
2018 (6) TMI 924 – CESTAT MUMBAI – 2019 (25) G. S. T. L. 119 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 20-4-2018
ST/85417/2018 – A/86382/2018
Service Tax
Shri Ramesh Nair, Member (Judicial)
Shri Vinay Jain C.A., for Appellant
Shri Dilip Shinde, Asstt. Commr. (A.R) for respondent
ORDER
The facts of the case is that appellant is a holder of service tax registration under the category of 'Goods Transport Agency' under Section 69 of Chapter 5 of Finance Act, 1994 read with Rule 3 of Service Tax Rules 1994. The appellant are also engaged in the manufacture of dutiable final product (cotton cut fabric(deluxe) falling under chapter 59 of First s

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-Original appellant filed appeal particularly for waiver of penalty imposed under Section 78 by invoking Section 80. Ld. Commissioner(Appeals) upheld the Order-in-Original and dismissed the appeal of the appellant, therefore appellant is before me for setting aside the penalty under Section 78.
2. Shri. Vinay Jain, Ld. C.A. for the appellant submits that non-payment of service tax is due to bonafide belief that in case of outward transportation, recipient of the goods is required to pay service tax, therefore they have not discharged the service tax. It is admitted fact that appellant have been paying service tax on the inward transportation regularly. The contention of the levy of the service tax on the outward transportation raised in th

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service tax on GTA is under common law. Therefore, contention of the appellant that being outward transportation they were under bonafide belief that the service tax payable by the recipient of the goods has no force. It is also fact that appellant have not declared taxable value of outward transportation in their monthly ST-3 returns. The contention of the Ld. Counsel is also that there is Revenue neutralilty in case if service tax is paid on outward transportation then appellant is entitled for Cenvat credit. In my view this contention is misleading for the reason that after 1-4-2008 when the input service definition amended and term service provided for removal of goods from “place of removal” was amended “up to the place of removal”. Ac

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Holtec Asia P. Ltd. Versus Commissioner of Central Excise, GST Pune
Service Tax
2018 (6) TMI 796 – CESTAT MUMBAI – 2019 (21) G. S. T. L. 561 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 20-4-2018
Appeal No. ST/85367, 85369, 85371, 85372/2018 – Order No. A/ 86466-86469/2018
Service Tax
Hon'ble Shri Ramesh Nair, Member ( Judicial )
Shri Prasad Paranjape, Advocate for appellant
Shri V. R. Reddy, Asstt. Commr. (A.R) Shri Dilip Shinde, Asstt. Commr. ( A. R. ) for respondent
ORDER
All these four appeals have been filed by Appellant M/s Holtech Asia Pvt. Ltd. on common issue against Order-in-Appeal dt. 12.10.2017 and dt. 11.10.17 passed by the Commissioner (Appeals – I), Pune. The facts of the case are that Appellant has rendered 'Consulting Engineer Services' to its parent company M/s Holtec International, USA. They filed refund claims under Rule 5 of CCR, 2004 readwith Rule 6A of the Service Tax rules, 1994 in terms of Notification No. 27/2012 CE (NT) dt. 18.06.2012 t

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tems Ltd. They have not rendered any services directly or indirectly related to M/s NTPC contract. The adjudicating authority rejected the claims on the ground that w.e.f 07.05.2014 M/s Holtech international has opened branch office in India and started fullfledged activity. Therefore as per definition of Service recipient in Rule 2 (i) of PPS Rules, 2012 – the service provider and service recipient is located in the same territory. The location of any service received by M/s Holtech International is required to be treated as the location of premises for which such registration is obtained i.e M/s Holtech Internatiola, Wakad, Pune. Hence the services rendered by the Appellant to M/s Holtech International after 02.07.2015 does not qualify as export as condition (b) & (d) of Rule 6A of the Service Tax Rules, 1994 is not satisfied. The Appellant filed appeals before the Commissioner (Appeals) who rejected the same and upheld the adjudication orders. Hence the present appeals by the Appell

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export of service as claimed by them and they are eligible for the refund. The registration of Holtech International USA project office in India with the service tax department shall not have any bearing on the services provided by Appellant to Holtech International, USA and will continue to qualify as Export of service. As per the RBI Regulations, any project office is opened for the specific purpose only and cannot carry out any other business other than the purpose of which RBI has given permission to open the project office. The project office of M/s Holtech International USA was opened to supply goods and provide services to the customer – BGR Energy Systems Ltd who had placed the purchase order dt. 15.10.2013 on Holtech International USA. The Appellant does not have any role with respect to the said Project office and has neither provided any service in relation to or to be consumed by the said project office. The reliance on Rule 2 (i) (a) of the Place of Provision of Service Ru

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with the provision of service is located, shall be treated as the country from which the service is provided. Thus in present case the establishment located in USA who has contracted for the service and not the project office will be considered as recipient of service. That even as per Rule 2 (i) (b) (i) of the POS Rules, recipient of service shall be determined based on the location of his business establishment which in this case is in the USA and therefore service provided by the Appellant will qualify as export of service. Even if assumed that services was being used in two location, then as per Rule 2 (i) (b) (iii) where service are used at more than one establishment, the establishment most directly concerned with the use of the services will be considered as the recipient of service.
3. Shri V.R. Reddy, A.C. (A.R.) and Shri Dilip Shinde, Asstt. Commr. (A.R.) appearing on behalf of the respondent reiterates the findings of the impugned orders and submits that since M/.s Holtech

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ervice is located in the taxable territory,
(b) the recipient of service is located outside India,
(c) the service is not a service specified in the section 66D of the Act,
(d) the place of provision of the service is outside India,
(e) the payment for such service has been received by the provider of service in convertible foreign exchange, and
(f) the provider of service and recipient of service are not merely establishments of a distinct person in accordance with item
(b) of Explanation 2 of clause (44) of section 65B of the Act.
The adjudicating authority has refused to allow the refund claim on the ground that in terms of provisions of Rule 2 (i) of PPS Rules the location of the service recipient automatically becomes the 'premises for which service tax registration” is obtained and once the recipient is not located outside India, the vital condition of the Rule 6 A (1) of service tax rules is not satisfied. We are not in agreement of such interpretation made by the l

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In Re : M/s National Construction
GST
2018 (6) TMI 762 – AUTHORITY FOR ADVANCE RULING, UTTARAKHAND – 2018 (15) G. S. T. L. 470 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, UTTARAKHAND – AAR
Dated:- 20-4-2018
Ruling No. 1/2018-19
GST
BEFORE THE AUTHORITY FOR ADVANCE RULINGS
FOR THE STATE OF UTTARAKHAND
(Goods and Services Tax)
समक्ष अग्रिम विनिर्णय प्राधिकारी उत्तराखण्ड ( माल और सेवा कर)
Present:
Shri Vipin Chandra (Member)
श्री विपिन चन्द्र (सदस्य)
Shri Amit Gupta (Member)
श्री अमित ग&#236

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337;।
2
Jurisdicational Officer
अधिकारिता अधिकारी
Deputy Commissioner (Assessment)-1, Rudrapur.
उपायुक्त (क०नि० ) -1, रूद्रपुर ।
3
 
Present for the Applicant
आवेदक की ओर से उपस्थित
Shri Abhishek Kumar Maurya, CA
श्री अभिषेक कुमार मौर्या, अधिकृत प्रतिनिधि
4
Present for the Jurisdictional Officer
अधिकारिता अधिकारी क&#236

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period of 30 days from the date of service of this order.
नोट : इस अग्रिम विनिर्णय की प्राप्ति के 30 दिन के अन्दर उत्तराखण्ड माल और सेवा कर अधिनियम 2017 की धारा- 99 के अन्तर्गत गठित अग्रिम विनिर्णय अपील प्राधिकारी के समक्ष धारा – 1

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्स्ट्रक्शन, 16, आवास विकास एन. एच.-87, रूद्रपुर, उधमसिंह नगर, उत्तराखण्ड द्वारा CGST / SGST Act, 2017 की धारा – 97 (1) के अन्तर्गत निम्न बिन्दुओं पर प्रस्तुत किया गया है:-
Whether Credit of Uttarakhand VAT Paid on construction material such as cement, sand, steel etc. held in closing as on 30.06.2017 is allowed to be carried forward as transitional credit as Uttarak

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0;र्ति, जिसे आवेदक द्वारा किया गया है या किए जाने का प्रस्ताव है, पर विनिर्दिष्ट विषयों या प्रश्नों पर दिया गया अग्रिम विनिश्चय अभिप्रेत है:
3. उत्तराखण्ड माल और सेवा कर अधिनि&#

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#2306;धों के अधीन जारी अधिसूचना का लागू होना;
(ग) मालों या सेवाओं या दोनों के समय और मूल्य का अवधारण;
(घ) संदत्त यां समझे गए इनपुट कर प्रत्यय की अनुज्ञेयता;
(ङ)किन्हीं मालों या सेवाओं

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346;रिणाम उस पद के अर्थान्तर्गत मालों या सेवाओं या दोनों की पूर्ति के बराबर या उनकी पूर्ति के रूप में होता है।
4. आवेदक द्वारा औद्योगिक / व्यवसायिक भवनों एवं तत्संबन्धी ढांचों &

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67;त किये जा सकने एवं वैट के अन्तर्गत कम्पोजिशन स्कीम का विकल्प लिये जाने पर भी उक्त स्टॉक पर उत्तराखण्ड माल और सेवा कर अधिनियम 2017 के अन्तर्गत आई०टी०सी० की अनुमन्यता के सम्बन&#

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2381;न के सम्बन्ध में सम्बन्धित अधिकारी श्री निशिकान्त सिंह, डिप्टी कमिश्नर (कर-निर्धारण ) – 1, रूद्रपुर द्वारा आवेदक के वैट अवधि में कम्पोजिशन का विकल्प लिये जाने एवं उठाये गये &#2346

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75; की पुष्टि करते हुए आवेदक को इनपुट टैक्स क्रेडिट अनुमन्य होने के सम्बन्ध में मत व्यक्त किया गया।
6. आवेदक की ओर से श्री अभिषेक कुमार मौर्या, अधिकृत प्रतिनिधि उपस्थित हुए तथ&#

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75;दक द्वारा प्रस्तुत प्रार्थना पत्र का परिशीलन किया गया। इंप्सित पृच्छा निम्न प्रकार दो भागों में है:-
* Whether Credit of Uttarakhand VAT Paid on construction material such as cement, sand, steel etc. held in closing as on 30.06.2017 is allowed to be carried forward as transitional credit as Uttarakhand GST under GST regime?
* If yes, then whether it is allowed when the assessee had opted for composition scheme under Uttarakhand VAT laws.
08. पृच्छा क&#23

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66;-6 (8) (k) में निहित उपरोक्त विधिक प्रावधान से स्पष्ट है कि वर्क्स कॉन्ट्रेक्ट के निष्पादन में अन्तर्ग्रस्त माल पर इनपुट टैक्स क्रेडिट का लाभ अनुमन्य नहीं होगा । अतः ऐसी स्थित&#2367

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344;े वाली अवधि से सम्बन्धित विवरणी में इनपुट टैक्स क्रेडिट अग्रनीत किये जाने सम्बन्धी स्थिति उत्पन्न नहीं होती है।
9. प्रस्तर संख्या 7 में उल्लिखित पृच्छा के द्वितीय भाग If yes, then wheth

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t to the following conditions, namely;
(i) such inputs or goods are used or intended to be used for making taxable supplies under this Act;
(ii) the said registered person is not paying tax under section 10;
(iii) the said registered person is eligible for input 'tax credit on such inputs under this Act;
(iv) the said registered person is in possession of invoice or other prescribed documents evidencing payment of tax under the existing law in respect of inputs; and
(v) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day.
धारा – 140 ( 6 ) के प्रावधान ऐसे रजिस्ट्रीकृत व्यक्ति के सम्बन्ध में है ज&#2

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मूल्य वर्धित कर प्रणाली के अन्तर्गत नियत दर पर अथवा संदाय योग्य कर के एवज में नियत रकम का संदाय कर रहे थे तो वह उपरोक्त 5 शर्तों के अधीन रहते हुए नियत दिन को उनके पास स्टॉक में

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1;ै जो विद्यमानं विधि में इनपुट टैक्स क्रेडिट से वंचित रजिस्ट्रीकृत व्यक्ति को माल और सेवा कर के अधीन भी इनपुट टैक्स क्रेडिट अनुमन्य न करता हो ।
10. प्रश्नगत प्रार्थना पत्र क&#2

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ी गयी है, अतः सन्दर्भित धारा के प्रावधान आवेदक के सम्बन्ध में लागू होते हैं। इस प्रकार आवेदक द्वारा धारा-140 (6) में निहित उपरोक्त पाँचों शर्तों का अनुपालन किये जाने की दशा में उ

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;ेडिट अनुमन्य होने के सम्बन्ध में अग्रिम विनिर्णय हेतु दिये गये प्रार्थना पत्र का निस्तारण किया जाता है।
अमित गुप्ता (सदस्य)                                            &nbsp

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2360;, एन0ए0-87
16, Awas Vikas, NH-87
रूद्रपुर, उधमसिंह नगर, उत्तराखण्ड |
Rudrapur, U.S. Nagar, Uttarakhand.
 
अग्रिम विनिर्णय प्राधिकारी उत्तराखण्ड ( माल और सेवा कर)
कार्यालय आयुक्त राज्य कर, उत्तराखण्ड
रिंग रोड़, अपर नत्थनवाल&#236

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;न, मेरठ ।
* आयुक्त, सी.जी. एस. टी., देहरादून ।
* आयुक्त कर, देहरादून
* ज्वाइन्ट कमिश्नर (कार्यपालक), रूद्रपुर सम्भाग, रूद्रपुर ।
* डिप्टी कमिश्नर, (कर – निर्धारण) – 1, रूद्रपुर ।
* गार्ड फाईल

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M/s. New Sun International Travel Agency Versus CST, Chennai (Presently known as The Commissioner of GST & Central Excise, Chennai South Commissionerate)
Service Tax
2018 (6) TMI 478 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 20-4-2018
ST/MISC/CT/41672 & ST/631/2010 – FINAL ORDER No. 41206/2018
Service Tax
Hon'ble Smt. Archana Wadhwa, Member (Judicial) And Hon'ble Shri . Madhu Mohan Damodhar, Menber (Technical)
Shri G. Natarajan, Advocate For the Appellant
Shri K.P. Muralidharan, AC (AR) For the Respondent
ORDER
Per: Archana Wadhwa
The miscellaneous application for change of cause title has been filed by the Revenue due to change in the jurisdiction of the appellant and change in address of the respondent. The present jurisdiction and address of the respondent is as follows:-
The Commissioner of GST & Central Excise,
Chennai South Commissionerate,
MHU Complex, 692, Anna Salai, Nandanam, Chennai – 600 035.
Accordingly, both the miscellaneous a

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incentive received, they were issued with the SCN demanding service tax liability of Rs. 4,54,459/- along with interest on the above said income, for the period July 2003 to January 2008 in terms of proviso to Section 73 (1) and Section 75 of the Finance Act, 1994. The notice also proposed to impose penalties under Sections 76 & 78 of the said Act. After due process of law the lower appellate authority confirmed the proposals initiated in the SCN vide the Order-in-Original dated31.12.2008 but dropped the proposal of penalty under Section 76 of the Act. Aggrieved with the said order of the original adjudicating authority, the appellant filed an appeal before the Commissioner (Appeals), which stands rejected by him vide the present impugned order.
3. The Ld. Advocate appearing for the appellant fairly concedes that the issue now stands decided against the assessee by the Tribunal decision in the case of D. Pauls Consumer Benefit Ltd. Vs. CCE, New Delhi – 2017 (52) STR 429 (Tri.-Del.). H

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venue and as such the extended period was available and has been rightly invoked.
5.1 On going through the impugned order, we note that the lower authorities have observed that as the assessees have not paid the tax amount as demanded by the Revenue, the same would amount to suppression. However, we are not in agreement with the above observation of the lower authorities. A mere non-disclosure of the fact cannot make a guilty mind of the assessees so as to justifiably invoking the longer period. The Hon'ble SC in the case of Collector of Central Excise Vs. Chemphar Drugs & Liniments reported as 1989 (40) ELT 276 (SC) has observed that a mere inaction or failure on the part a manufacturer is not sufficient to invoke the larger limitation of five years and the same would be applicable only when something positive indicating that the manufacturer had the reasonable belief that he has to give the particular information.
5.2 In the present case, we note that there is no evidence of any ma

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IN RE: M/s CRUX BIO TECH INDIA PRIVATE LIMITED
GST
2018 (6) TMI 462 – AUTHORITY FOR ADVANCE RULING-ANDHRA PRADESH – TMI
AUTHORITY FOR ADVANCE RULING-ANDHRA PRADESH – AAR
Dated:- 20-4-2018
AAR/03(GST)/2018 – AAR/AP/02(GST)/2018
GST
Sri. J.V.M Sarma (Member) And Sri. Amaresh Kumar (Member)
Order
1. M/s CRUX BIO TECH INDIA PRIVATE LIMITED, (hereinafter also referred as an applicant), having GSTIN: 37AAECC1707B1Z9 are engaged in manufacturing of grain based extra neutral alcohol.
2. The applicant had filed an application in Form GST ARA-01, dated 26.01.2018, for seeking advance ruling on 'Clarification of rate of tax', for grain based extra neutral alcohol. The question on which the advance ruling is sought by th

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CGST Act'2017 for Section 98(2) which reads as follows…
[Sec 98(2): The Authority may, after examining the application and the records called for and after hearing the applicant or his authorized representative and the concerned officer or his authorized representative, by order, either admit or reject the application….
Provided that the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act
5. A personal hearing notice was served on the dealer to attend on 19.02.2018, as the dealer himself requested for postponement of date of personal hearing on personal grounds, after considering

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In Re : Divisional Forest Officer, Dehradun
GST
2018 (6) TMI 430 – AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – 2018 (14) G. S. T. L. 159 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND – AAR
Dated:- 20-4-2018
Ruling No 01/2018-19 In Application No. 05/20. 02. 2018
GST
MR VIPIN CHANDRA (MEMBER) AND MR AMIT GUPTA (MEMBER)
For The present Applicant : Shri Bharat Bhushan Martoliya, Sub-divisional forest officer, Dehradun
RULING
1. This is an application under Sub-Section (1) of Section 97 of the CGST Act and the rules made thereunder filed by Regional Forest Officer (Forest Division Dehradun) seeking an advance ruling on the question whether GST is leviable on the “Marg Sudharan Shulk” and “Abhivahan Shulk” charged by Forest Division Dehradun from the non government, private and commercial vehicles engaged in mining work in lieu of use of forest road. The said mining is being undertaken at “Saung” and “Jakhan Rivers” falling under the jurisdiction of F

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plicant on 02.04.2018. Shri B.B. Martoliya, Sub-divisional forest officer, Dehradun appeared for personal hearing on 02-04-2018 and submitted documents describing therein exact nature of work being undertaken. No body appeared from the side of Revenue for the hearing.
5. In the present application, applicant has requested for advance ruling on leviability of GST on (i) “Marg Sudharan Shulk” and (ii) “Abhivahan Shulk” which are discussed as under :
6.1 GST on “Marg Sudharan Shulk” : From the documents submitted by the applicant we find that the said “marg sudharan shulk” is charged and collected by applicant from non government, private and commercial vehicles engaged in mining work in lieu of use of forest road. Stated purpose of said “marg sudharan shulk” is for maintenance of forest road. Under GST, “the services by way of assess to a road or a bridge on payment of toll charges” are included in the list of exempted services. Further, A toll road, also known as a turnpike or tollway

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plicable fee and the said “”Abhivahan Shulk”” is charged on the basis of quantum and quality of forest produce and the said forest produce must be accompanied with a transit pass issued by forest authorities in this regard. Authority further observe that charges for carrying forest produce through road or water are different and determined according to quality and quantity. Therefore said “”Abhivahan Shulk”” can not be termed as toll tax and rather is a form of consideration received by the applicant in lieu of services provided to the person for carrying forest produce. Under GST regime under Section 2(102) services means anything other than goods ………….and all services but for list of exempted services as provided under Chapter 99 of GST Tariff, 2017 are liable for GST. Since the services provided by the applicant do not find mention in the list of exempted services, therefore the applicant is liable to pay GST @ 18% on the said “Abhivahan Shulk” under Service Code 9997 and to

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Db Malls Pvt Ltd Versus CGST C.E & C. C-Bhopal
Service Tax
2018 (5) TMI 1302 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 20-4-2018
Appeal No. ST/57043/2013-DB – ST/A/51699/2018-CU[DB]
Service Tax
Justice Dr. Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical)
Present Shri Narender Singhavi, Advocate for the appellant
Present Shri R.K. Majhi, DR for the respondent
Per: Justice Dr. Satish Chandra
1. The present appeal is filed against the Order-in-Original No. 3-7/2013 dated 21/01/2013. The period of dispute is April, 2007 to March, 2012.
2. Brief facts of the case are that the appellants were engaged in providing the services under the category of “Renting of Immovable Property” in mall. They have availed and utilized the Cenvat Credit of Central Excise duty paid on cement, glass and steels and Cenvat Credit of Service Tax paid on architect service and Works Contract Services toward discharge of Service Tax on renting of immovable

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, Visakhapatnam-II vs. Sai Sahmita Storages (P) Ltd. wherein in Para 7 the Hon'ble High Court has ruled as follows:-
“In a pliant reading of both the above definitions would show that, unless excluded, all goods used in relation to manufacture of final product and for any other purpose used by a provider of taxable service for providing an output service are eligible for Cenvat Credit.”
Relying on the said ruling, in Para 17 Single Member Bench of this Tribunal in the above stated case of DLF Cyber City Developer Ltd. has held as follows:-
“In view of the above analysis, I hold that as all the inputs/input service has been used by the appellant for construction of a building which has been let out by the appellant and paying service tax thereon under the category of Renting of Immovable Service therefore, the appellant is entitled to avail cenvat credit. Accordingly, I do not find any merit in the impugned order, the same is set aside. The appeal is allowed with consequential r

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ellant is entitled for availing Cenvat Credit. The said order is reproduced below:-
3. Considering the fact that the said issue has already been examined by this Tribunal in the case of DLF Cyber City Developers Ltd., vide Final Order No.60018/2018 dated 03/01/2018, this Tribunal has observed that the inputs, capital goods and input services used by the appellants for providing output services, in terms of Rule 2 (a) (ii) of the Cenvat Credit Rules, 2004, the appellant is entitled to avail Cenvat Credit. Further, this Tribunal observed as under:
“It is undisputed that the services are utilized for bringing to existence building which is used by the appellants for hospitability business and is used for rendering output services like mandap keeper and health club and fitness centre and dry cleaning service and internet café services. It is an unimaginable that a hotel can render these services without a building in its place. In our considered view, the input services are avai

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ices used in relation to setting up, modernization, renovation or repairs of a factory premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage up to the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and 3 Appeal No.ST/3089/2012 quality control, coaching and training, computer networking, credit rating, share registry and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal.
It can be seen from the above reproduced sub-rule, that input services includes the services used in relation to setting up, modernization, renovation of premises of provider of output services. In the case in hand, the definition is reproduced as above categorically will apply and the clarification given by the Board in CBEC Circular dated 04/01/2008 is going beyond the definition as

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Nimbeshwar Mahadeo Built Homes, Nimbeshwar Mahadeo Construction, Nimbeshwar Mahadeo Builder, Nimbeshwar Mahadeo Home Makers Versus Commissioner of CGST, Navi Mumbai
Service Tax
2018 (5) TMI 981 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 20-4-2018
APPEAL Nos. ST/85456, 85458-85460/2018 – A/86105-86108/2018
Service Tax
Mr. Ramesh Nair, Member (Judicial)
Shri D.R. Jakotia, Chartered Accountant, for appellant
Shri Atul Sharma, Assistant Commissioner (AR), for respondent
In all the four appeals, the appellants have challenged imposition of penalty under Section 78 of the Finance Act, 1994. The appellants are not disputing the levy of service tax and interest which were paid in case of Nimbeshwar Mahadeo Built Home

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given the judgment in 2012. Subsequently, the matter was challenged before the Hon'ble Supreme Court, which is pending. In these facts, the intention to evade the service tax does not establish. Hence the penalty under Section 78 was not imposable.
3. Shri Atul Sharma, learned Assistant Commissioner (AR) appearing on behalf of the Revenue, reiterates the finding of the impugned order. He submits that the appellants knowingly neither paid the service tax in time nor declared the value to the department. Therefore, they had clear intention to evade the payment of service tax. The Commissioner (Appeals) has already given the relief of 50% of the penalty. Therefore, no further leniency can be shown to the appellants.
4. I have carefully cons

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Kansai Nerolac Paints Ltd. Versus Commissioner of GST, Mumbai
Service Tax
2018 (5) TMI 673 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 20-4-2018
APPEAL Nos. ST/87792, 87798/2017 – ORDER No. A/86095-86096/2018
Service Tax
Hon'ble Mr. Ramesh Nair, Member (Judicial)
Shri Mehul Jivani, Chartered Accountant, for appellant
Shri Vivek Dwivedi, Assistant Commissioner (AR), for respondent
ORDER
A show cause notice was issued for denying and recovery of cenvat credit under Rule 14 of Cenvat Credit Rules, 2004 on the input service distributed. The demand was confirmed and upheld by the Commissioner (Appeals). Therefore, the appellant is before me.
2. Shri Mehul Jivani, learned Chartered Accountant appearing on behalf of

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d from the input service distributor who has distributed the service credit to their respective factory on the ground that the input service viz. air travel agent service, is not admissible as the service related to business activity shall exclude on the definition of input service with effect from 1.4.2011. I find that Rule 14 applies to the person who avails credit wrongly which is recoverable. In the present case, the appellant has not availed the credit whereas they have distributed the input service credit to their respective manufacturing unit who, in turn, availed the credit. If at all credit has to be denied, it can be denied at the end of such manufacturing unit which has availed the cenvat credit. Input service distributor does no

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Accenture Solutions Pvt. Ltd. Versus Commissioner of CGST, Navi Mumbai
Service Tax
2018 (5) TMI 672 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 20-4-2018
Appeal No. ST/85388/2018 – Order No. A/86111/2018
Service Tax
Hon'ble Mr. Ramesh Nair, Member (Judicial)
Shri Prasad Paranjape, Advocate, for appellant
Shri M.P. Damle, Assistant Commissioner (AR), for respondent
ORDER
The appellants is engaged in the business of providing information technology enabled business process and outsourcing services. Show cause notice was issued alleging the appellant's receipt of hosting and networking services falling under the category of management, maintenance or repair service, management hosting network services from a company, Sunguard Availability Services LP, located outside India and made payment to them in foreign currency i.e. in US Dollar, but the appellant has not discharged the service tax on reverse charge mechanism on such payments in contravention of Section

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the service tax for the reason that the appellant had a bona fide belief that the service being provided outside India is not liable to service tax in terms of Rule 3(ii) of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. Therefore, under that impression, the appellant did not discharge the service tax in time. He submits that the appellant is a 100% export oriented service provider and their 100% service is exported. Therefore, whatever service tax is paid on the input services, the same is cenvatable and refundable under Rule 5 of the Cenvat Credit Rules, 2004. Therefore, the case is clearly of revenue neutrality. Therefore, the intention to evade payment of service tax does not exist. He placed reliance on the following judgments:-
(i) JPB Mills Pvt. Ltd. – 2016 (46) STR (Tri.-Chennai);
(ii) Punjab Chemicals & Crop Protection Ltd. – 2017 (47) STR (Tri.-Chand.);
(iii) Dinesh M. Kotian – 2016 (42) STR 772 (Tri.- Mumbai);
(iv) Gujar

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only for waiver of penalty imposed under Section 76 and 78. It is a fact that the appellant is 100% export oriented service provider. In such case, whatever the input service suffered the service tax, the said service tax is refundable under Rule 5 of the Cenvat Credit Rules, 2004. Therefore, even though, had the appellant paid the service tax in time, they would have got the refund of the same from the department. Therefore, neither any gain or loss either to the department or to the assessee. In these circumstances, the allegation of intention to evade payment of service tax cannot be made against the appellant, which is the essential ingredient for imposing penalty. In the given facts, the entire case is of revenue neutrality. The judgments relied upon by the learned counsel directly deal with the issue. In the case of JPP Mills Pvt. Ltd. (supra), the Division Bench of this Tribunal has observed as under:-
“12. However, we are also of the view that this service is an “input servi

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om 1-4-2008, the Government exempted such taxes subject to certain conditions by issuing Notification 17/2008-S.T. Part of the demand is after 1- 4-2008. Thus this is not just a case of revenue neutrality; but a special case of revenue-neutrality involving the same person taking credit of tax paid and also being eligible for relief from such tax incidence on account of the fact that services are used for export of goods. In such circumstances, there is no justification to slap a tax liability on an exporter of goods invoking extended period of time. Therefore, the allegation of suppression is not sustainable.”
In the case of Gujarat Borosil Ltd. (supra), this Tribunal passed the following order:-
“7. On the issue of applicability of the provisions of Section 73(3) of the Finance Act, 1994 to the appellant's case, I find that in this case the appellant, on being pointed out by the DGCEI, deposited the entire amount of service tax liability along with interest on 18-9-2010 much befor

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the Government. This view was upheld by the Hon'ble High Court of Karnataka in the case of C. Ahead Info Technologies India P. Ltd. In that case, the Revenue was challenging the order passed by the Tribunal which has set aside the penalty under Section 78 of the Finance Act, 1994, observing that the records indicate the absence of intent to evade duty.
6. In the case of Essar Steel Ltd. – 2009 (13) S.T.R. 579 (Tri.- Ahmd.) also, in the case of ECB Facility, this Tribunal took a view that when the situation is revenue neutral and the appellant manufacturer is entitled to Cenvat credit, it cannot be said that there was an intent to evade duty and extended period can be invoked.
7. In view of the precedent decisions discussed above which are applicable to the facts of this case, we find that penalty imposed on the appellant cannot be sustained. Therefore, the penalty imposed upon the appellant is set aside and Stay Petition as well as the appeal are disposed off in above terms.”

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RCM ON FREIGHT
Query (Issue) Started By: – PAWANKUMAR GARG Dated:- 19-4-2018 Last Reply Date:- 8-5-2018 Goods and Services Tax – GST
Got 7 Replies
GST
SIR,
I AM PURCHASING POULTRY FEED AND PAID FREIGHT. WHEATHER I AM LIABLE TO PAY GST UNDER RCM @ 5% ON PAYMENT OF FREIGHT. THE COMMODITY IS TAX FREE.
Reply By Ganeshan Kalyani:
The Reply:
GST is payable on the freight amount paid by you.
Reply By PAWANKUMAR GARG:
The Reply:
SIR, CAN WE CLAIM TAX PAID ON FREIGHT AS ITC
Reply By S

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Service by outside canteen operators-Outdoor catering or Supply of Food
Query (Issue) Started By: – ROHIT GOEL Dated:- 19-4-2018 Last Reply Date:- 22-4-2018 Goods and Services Tax – GST
Got 3 Replies
GST
Hi Sir,
One of our client is a trust institution operating colleges. The institution has contracted with outside vendors for operating a canteen at its hostel premises wherein the vendors operate the kitchen, obtain all vegetables and thereafter also operate the hostel mess. The charges for such services are payable to the vendors on the basis of a fixed per meal charges. Charges for such hostel mess are collected from students upfront on lump sum basis.
My query is whether this would constitute service of outdoor catering by

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alled vendor is actually contractor-cum-outdoor caterer. His main activity is outdoor catering and conforms to the definition of 'supply' in GST.
Reply By CASusheel Gupta:
The Reply:
Dear Rohit
In your case, the institution is collecting the charges from students and paying to the contractor on meal basis and the contractor is not collecting any amount from the students. As such the contractor is supplying to the institution and institution is supplying the the students (thought delivery to the students may be being done by the contractor) .
You need to refer to the corrigendum to the circular no. 28/02/2018-GST which clearly states that
(1) "If the catering services is one of the services provided by an educational instit

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RCM ON TRANSPORT
Query (Issue) Started By: – SURYAKANT MITHBAVKAR Dated:- 19-4-2018 Last Reply Date:- 22-4-2018 Goods and Services Tax – GST
Got 2 Replies
GST
While making RCM under transportation charges which document to be prepared for the same.
Reply By Ganeshan Kalyani:
The Reply:
In my view , self invoicing is required to be generated.
Reply By CS SANJAY MALHOTRA:
The Reply:
Payment voucher also wherever Advance payment is made to transporter and liability is under RCM

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e way bill
Query (Issue) Started By: – Arun Aggarwal Dated:- 19-4-2018 Last Reply Date:- 20-4-2018 Goods and Services Tax – GST
Got 5 Replies
GST
sir
I would like to know if an e way bill is to be generated for bullion/gold , jewellery and articles of gold.
Notification if any in this regard would be welcomed
Arun
Reply By Ganeshan Kalyani:
The Reply:
In my view yes e way bill is required to be generated.
Reply By KASTURI SETHI:
The Reply:
Goods covered under Annexure to Rul

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Does GST Zero-Rating Apply to Duty-Free Sales at IGI Airport? AAR Clarifies Export Completion Timing.
Case-Laws
GST
Zero rated supply or not – supply from the shop located in the Security Hold Area of the IGI International Airport – supply to an International outbound passengers holding international boarding pass – when goods are exported by Air, the export will be completed only when goods crosses airspace limits of its territory or territorial waters of India – AAR
TMI Updates

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RCM ON FREIGHT (Tranpostation charges)
Query (Issue) Started By: – SURYAKANT MITHBAVKAR Dated:- 19-4-2018 Last Reply Date:- 20-4-2018 Goods and Services Tax – GST
Got 5 Replies
GST
Local transporter who is registered and unregistered under GST not charging any GST in their bill.
Is there any liability to us to pay GST under RCM. But RCM is exempted till June-18.
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
Under Section 9 (3) of CGST Act, 2017 " the Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this A

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n charges. etc.
Section 9(4) – which requires payment on RCM on purchases from unregistered suppliers
Section 9(4) has been deferred till 30.06.2018. But u need to pay GST on transportation charges under section 9(3).
Regards
CA Susheel Gupta
9811004443, 8510081001
Reply By KASTURI SETHI:
The Reply:
I support the views of both experts.
Reply By Ganeshan Kalyani:
The Reply:
Yes reverse charge on GTA, legal service is still there. But reverse payable under reverse on account of purchase from an unregistered dealer is exempted till 30.06.2018.
Reply By Ganeshan Kalyani:
The Reply:
As per latest update, reverse charge in case of purchase from an unregistered dealer is discussed to bring in to force is month of may 2018.
Discussio

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FREIGHT ON EXPORT
Query (Issue) Started By: – SURYAKANT MITHBAVKAR Dated:- 19-4-2018 Last Reply Date:- 19-4-2018 Goods and Services Tax – GST
Got 1 Reply
GST
Our clearing agent charging their charges including freight to us. On freight amount they will not charge GST.
Is it any exemption for freight paid on Export Consignment?
Reply By Susheel Gupta:
The Reply:
Vide notification no. . 2/2018- Central Tax (Rate) , freight on export of goods has been exempted up to 30.09.2018
Rega

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Legal Fees under Reverse Charge
Query (Issue) Started By: – Basha AbdulRazack Dated:- 19-4-2018 Last Reply Date:- 20-4-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Sir,
We are paying monthly Retainer Fees to Advocate but they are not charging GST, so Reverse Charge mechanism is applicable or not, please clarify.
Thanks & Regards
Razack.
Reply By KASTURI SETHI:
The Reply:
Legal services are under RCM. Recently Board has clarified.
Reply By Basha AbdulRazack:
The Reply:
Sir,
Thank you for your clarification but Reverse Chage mechanisim rule for Epxenses cancelled till 30.06.2018, so advocate fees come under this category or not? please confirm once again to proceed further.
Thanks & Regards
Razack
Reply By Rajag

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9 (4) of CGST Act, 2017 is exempted up to 30.6.2018 vide Notification No.8/2017-Central Tax (Rate) dated 28.6.2017 as amended.
Reply By Susheel Gupta:
The Reply:
There are two sections of RCM
Section 9(3) – which requires payment on RCM on advocate fees, transportation charges. etc.
Section 9(4) – which requires payment on RCM on purchases from unregistered suppliers
Section 9(4) has been deferred till 30.06.2018. But u need to pay GST on advocate fees under section 9(3) which has not been deferred and still applicable.
Regards
CA Susheel Gupta
9811004443, 8510081001
Reply By Basha AbdulRazack:
The Reply:
Dear Sirs,
Thank you very much for giving detailed explanations to Mr. Rajagopalan Ranganathan Sir & Mr. Susheel Gupta Sir.

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E way bill for intra state Jobwork
Query (Issue) Started By: – Ravikumar Doddi Dated:- 19-4-2018 Last Reply Date:- 9-6-2018 Goods and Services Tax – GST
Got 12 Replies
GST
Dear sir,
Material sending for jobwork in Delivery challan for Intra state movement of goods way bills is required or not for the value below ₹ 50,000/- Please clarify
Reply By KASTURI SETHI:
The Reply:
Not required.
Reply By subramanian vijayakumar:
The Reply:
No e_eay bill is required
Delivery challan is enough
Reply By Ganeshan Kalyani:
The Reply:
Not required, but you can generate .
Reply By Ravikumar muthusamy:
The Reply:
irrespective of purpose of supply .i.e for job work or sale or otherwise if value of taxable goods is less than 50k e

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em barring the value of goods. If respective state has made eway bill mandatory for job work in their eway bill Notification, the same has to be generated irrespective of value, as people normally manipulate the value of job work.
querist has to go through his state eway bill Notification.
Reply By Praveen Nair:
The Reply:
I agree with Sanjay. Gujarat State has this provision of making E-Way for Jobworker's irrespective of the amount.
Reply By Himan Sharma:
The Reply:
Hello sir as intra state way bill has been mandatory, can u share any document regarding job work scenario.
I m from haryana n looking the answer for intra state way bill rules for our state.
Reply By Himan Sharma:
The Reply:
Mr Praveen as you mentioned the gujrat

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E-Way bill
Query (Issue) Started By: – SURYAKANT MITHBAVKAR Dated:- 19-4-2018 Last Reply Date:- 5-5-2018 Goods and Services Tax – GST
Got 6 Replies
GST
E-way bill operations are compulsory for inter-state movement of goods with effect from 01.04.18.
In case of Trading Export, we are given instruction to our supplier to deliver goods directly to port for further process of export.
We are sending our document like tax invoice , Packing List to clearing agent.
In above case generation of Eway bill is compulsary. If yes who is liable to generate Eway bill.
Reply By KASTURI SETHI:
The Reply:
Yes. It is compulsory. Any registered person who causes the movement of goods. is required to generate E-way bill. However, first respon

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