New Circular Requires GSTIN, IEC, and Email on Bills of Lading for Importers to Streamline Customs Processes.
Circulars
Customs
Sub: Mandatory declaration of GSTIN, IEC and email address of i
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CLARIFICATION REGARDING SALES TO UNREGISTERED PARTY MATTER RELATED TO STATE DIFFERENCE HARYANA EARLIER SHOWN BUT IT SHOUD BE DELHI
Query (Issue) Started By: – nandankumar roy Dated:- 12-3-2018 Last Reply Date:- 14-3-2018 Goods and Services Tax – GST
Got 4 Replies
GST
DEAR SIR,
WE HAVE SUPPLIED MEDICINE RITES(CENTRAL GOVT LIFE SAVING DRUGS PROVIDER ENTITY) WHICH IS UNDER CENTRAL GOVT UNREGISTERED CLIENT IN THE MONTH OF AUG. PLACE OF PARTY ADDRESS BELONGS TO HARYANA .ACCORDINGLY WE HAVE RETURN FILED OF 3B AND GSTR1 IN B2CS SECTION AS STATE HARYANA BUT WHEN WE ARE DEMANDING PAYMENT THEY ASKING FOR ALL BILL TO BE CHANGE IN RITES DELHI ADRRESS ON SAME ALL INVOICES. PL TELL IF WE CHANGE ALL EARLIER HARYANA BILL IN NOW DELHI ADDRESS
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GST ON TRADE DISCOUNT
Query (Issue) Started By: – SAFETAB LIFESCIENCE Dated:- 12-3-2018 Last Reply Date:- 12-3-2018 Goods and Services Tax – GST
Got 3 Replies
GST
Dear Experts,
We are giving post- sales Trade Discount to our customers. The GST rate is for our final products is 12% .
The customer receiving Trade Discount is instructing us to put GST 18% on Discount value and we have given Credit Note with 18% GST several times. We have reduced the Trade Discount Credit Note value in Taxable Sale Value and reduced the 18% GST value from the GST payable in GSTR-3B.
Please confirm the GST rate on Discount 18 % is correct or not. Our GST officials are telling it is wrong and we have to put GST only 12%.
Please clarify with docum
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been reversed by the recipient of the supply.”
Implies –
Discount, even if not mentioned on the face of the invoice can be reduced from the taxable value, if following conditions are satisfied:
i) Discount is established in terms of an agreement before supply. In simple words, both supplier and recipient are aware and have agreed about the discount before the supply.
ii) Discount is linked to a specific supply invoice.
iii) ITC attributable to the discount is required to be reversed by the buyer or recipient of the supply.
* Satisfying the above conditions, if the Post Sales Trade discount can be linked to the specific supply invoice then the GST applicable on the Credit note raised would be @ 12% and not 18%.
* GSTR 1 should menti
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e supply can also be excluded while determining the taxable value provided two conditions are met, namely – (a) discount is established in terms of a pre supply agreement between the supplier & the recipient and such discount is linked to relevant invoices and (b) input tax credit attributable to the discounts is reversed by the recipient.
Further, Section 34 of the CGST Act, 2017 provides for issuance of credit notes for post supply discounts within a stipulated time. When such credit notes are issued, obviously it would call for reduction in output liability of the supplier. Hence, the taxes paid initially on the supply would be higher than what is actually payable. In such a scenario the excess tax paid by the supplier needs to be refun
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CONCEPT OF INPUT SERVICE DISTRIBUTOR IN GST
By: – Anuj Bansal
Goods and Services Tax – GST
Dated:- 12-3-2018
An Input service distributor (ISD) is an office of supplier of goods or services which receives tax invoices for services and distributes the credit in such invoices to its branches having the same PAN in the manner prescribed under the law. However, in order to distribute credit, following conditions are required to be followed:
* The credit can be distributed to the recipients of credit against a document containing the details as may be prescribed.
* The amount of credit distributed shall not exceed the amount of credit available for distribution.
* The input tax credit available for distribution in a month shall be distributed in the same month. E.G. Input Tax Credit for the month of July shall be distributed in the same month i.e. in the month of July only.
Procedure for distribution of credit:
The procedure for distribution of credit is given in Sec
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egistered engaged in the taxable as well as exempted supply, reduced by the amount of any duty or tax levied.
* relevant period – means –
* If the recipients of credit have turnover in their states during the FY preceding to the current FY, the Preceding FY; or
* If some or all recipients do not have any turnover in their States in the FY preceding the year during which the credit is to be distributed, relevant period will be the last quarter for which details of such turnover of all the recipients are available, previous to the month during which credit is to be distributed.
Therefore, if all the recipients have turnover in the previous year, then turnover for the previous year shall be considered for purpose of calculating the ratio.
However, in a situation, if all the recipient were not having turnover in the previous year, then turnover of the last quarter (in which all recipients having turnover) preceding the month of return shall be considered for computing the ratio E.g
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ients to whom the input service is attributable.
Credit shall be distributed in the following manner:
Location of Branch (recipient of ITC)
Manner of Distribution of Credit
Same state as that of ISD
The credit of IGST, CGST, SGST or UTGST shall be distributed as IGST, CGST, SGST or UTGST respectively.
Different state as that of ISD
The credit of IGST, CGST, SGST or UTGST shall be distributed as IGST.
Input Service Distributor Invoice / Credit Note for the distribution of credit:
The document prescribed for distribution of credit is “Input Service Distributor Invoice”. Moreover, the details required in the invoice are also prescribed in the same Rule. An “Input Service Distributor Invoice / Credit Note” shall be issued to the recipient for distributing the credit and same shall be reported in the ISD Return. Following are the details required to be mentioned on the invoice:
* Name, Address and GSTIN of the ISD.
* Consecutive serial number not exceeding sixteen characters,
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contained in the original invoice was distributed. However, in case where due to reduction in credit, credit with the recipient becomes negative, the amount shall be added to the output liability of recipient.
Services taken under RCM
The ISD is not permitted to make payment of tax under RCM. Therefore, in a situation where the ISD is taking services which are taxable under RCM, it is suggested that either take a normal registration and take services in such registration and pass on the credit to ISD by raising an invoice on ISD. The other option is that the company can take such services in other existing normal registration and pass it on to ISD. Thereafter, the ISD can distribute the credits to the concerned units.
GST Retuns:
* An ISD is required to file monthly return in GSTR-6 within 13 days after the end of the month and will have to furnish information of all ISD invoices issued. The monthly return can be prepared after adding, correcting or deleting the details on the bas
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ed only for Delhi Unit: ₹ 5,00,000/-
(ii) IGST, CGST & SGST paid on services used for all units: ₹ 20,00,000/-
Total Turnover of the units for the preceding Financial Year 2016-17 are as follows: –
Unit Turnover (Rs.)
Total Turnover of three units = ₹ 10,00,00,000
Turnover of Delhi unit = ₹ 5,00,00,000 (50%)
Turnover of Gurgaon unit = ₹ 3,00,00,000 (30%)
Turnover of Mumbai unit = ₹ 2,00,00,000 (20%)
Now credit shall be distributed as follows:
(Figures in Rs.)
Particulars
Total
Delhi
Gurgaon
Mumbai
Turnover of units in PY 2016-17
10,00,00,000
5,00,00,000
3,00,00,000
2,00,00,000
GST paid on services used only for Delhi Unit.
5,00,000
5,00,000
–
–
IGST, CGST & SGST paid on services used in all units: Distribution on pro rata basis to all the units which are operational in the current year
20,00,000
10,00,000
6,00,000
4,00,000
Note: Credit distributed on pro rata basis on the basis of the turnover of all the un
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tributed. So the information of the quarter July 2017 to September 2017 shall be used:
(Figures in Rs.)
Particulars
Total
Delhi
Gurgaon
Mumbai
Turnover of units during quarter July 2017 to September 2017
5,00,00,000
2,00,00,000
1,25,00,000
1,75,00,000
GST paid on services used only for Delhi Unit.
5,00,000
5,00,000
–
–
IGST, CGST & SGST paid on services used in all units: Distribution on pro rata basis to all the units which are operational in the current year
20,00,000
8,00,000
5,00,000
7,00,000
On the basis of above, it would have been observed that compliances under ISD requires great efforts like maintaining credits, mismatching of credits, distributing credit, issuing Input Services Distributor Invoices, etc. Moreover, the determination of ratios for distribution is also a cumbersome process. Though it's a legacy brought forward from erstwhile law but no attempt has been made to simplify the process. Even after going through the provisions, the f
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or determining the ratio for distribution. Now, there was no Quarter in common when all the units were operational, then on what basis the ratio to be determined?
Reply By MAHESH MAIYA as =
Dear Sir,
We are GST registered Pvt Ltd co in Karnataka, have marketing offices in Chennai, Mumbai, Kolkata, Pune & Delhi. The rent is being paid by the company to un-registered landlords. Should we discharge RCM for such rent paid by the company ? if so, whether the GST paid under RCM can be taken credit in Karnataka ?
Mahesh. M
Dated: 13-3-2018
Reply By Ganeshan Kalyani as =
presently there is no tax under reverse charge on inward supply of goods or services from an unregistered dealer. hence you are not liable to pay gst as a recipient accordingly no question of distribution of tax paid.
Dated: 19-3-2018
Reply By RAVINDER GAMBHIR as =
Dear Sir,
Is it mandatory to take ISD registration. To be specific
-a pvt ltd company is having Regd/Head office in Delhi,registered in GST, and having
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M/s. EVM Passenger Cars India Pvt. Ltd. Versus The State Of Kerala, The Assistant State Tax Officer
GST
2018 (4) TMI 579 – KERALA HIGH COURT – [2018] 2 GSTL 117 (Ker)
KERALA HIGH COURT – HC
Dated:- 12-3-2018
WP(C). No. 7877 of 2018
GST
P. B. Suresh Kumar, J.
For the Petitioner : Smt. K. Latha
For the Respondent : Sri.V. K. Shamsudheen
JUDGMENT
Goods of the petitioner have been detained by the second respondent invoking the power under Section 129 of the Central Goods and Services Tax Act as also the Kerala State Goods and Services Tax Act on the ground that the same were being transported without the requisite documents. The petitioner concedes that the goods were not accompanied by the requisite documents. It is s
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Venkateswara Rao Bolla And Another Versus The Senior Intelligence Officer, Directorate General of GST Intelligence Rep. by Spl. Public Prosectuor
Service Tax
2018 (3) TMI 1390 – TELANGANA & ANDHRA PRADESH HIGH COURT – 2020 (38) G. S. T. L. 581 (A. P.)
TELANGANA & ANDHRA PRADESH HIGH COURT – HC
Dated:- 12-3-2018
Criminal Petition Nos. 2283 and 2285 of 2018
Service Tax
T. Rajani, J.
For the Petitioners : Mr. T. Nagarjuna Reddy
For the Respondent : Mr. Anil Prasad Tiwari
ORDER
The condition, that the petitioners shall furnish bank guarantee for the remaining due amount, within ten days from the date of order of the Court below, imposed, while granting bail to the petitioners, is what is brought into question in the present criminal petitions.
2. Heard the counsel for the petitioners and Mr. Anil Prasad Tiwari, Special Public Prosecutor appearing for the respondent.
3. The facts of the case need to be briefly stated, in order to decide, to sustain or not to sust
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service recipients but did not pay the same to the credit of the Central Government. Party verification was also done, which indicated that service consideration was paid by the recipients, inclusive of service tax. Hence, the petitioners were held liable for the offence under Section 89 of the Finance Act, 1994 (for short the Act).
4. Section 89(d) of the Act mandates that any amount collected as service tax should be credited to the Central Government, within a period of six months from the date on which such payment becomes due.
5. The petitioners moved the Court of Special Judge for Economic Offences, Hyderabad by way of CRLMP.Nos.609 and 608 of 2018, respectively, seeking bail. But the Court below, while ordering bail, imposed the impugned condition, of furnishing bank guarantee for the remaining amount, after part payment made by the petitioners.
6. Section 73A(3) of the Act requires the Central Excise Officer, to serve notice, requiring the person liable to pay the amount, t
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ourt and secondly, the petitioners showed the schedule of payment, in the memo dated 14.02.2018, submitted to the Special Court for Trial of Economic Offences. The petitioners were asked to offer their comments and the petitioners appended their signatures on the same along with date, as a token of having seen the memo; the contention of the petitioners that they are not avoiding the payment of service tax is false and misleading; the petitioners, vide statements dated 23.01.2018, recorded under Section 14 of the Central Excise Act, made applicable to service tax under Section 83 of the Act, accepted that service tax amounting to Rs. 4,05,77,984/- and Rs. 2,16,89,832/- respectively was collected by them, but they failed to credit to same to the Central Exchequer; the issue is not just a case of service tax evasion but a serious fraud of collecting service tax and failing to credit the same to the Central Exchequer beyond the period of six months from the date on which the said payment
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Y v. BALWAN SINGH (2015) 7 SCC 373 wherein it was held that, for lawyers are perceived to be agents of their clients, the law of agency does not apply strictly to client-lawyer relationship; since lawyers also stand in a fiduciary relationship to their clients; their duties are more demanding than those imposed on other agents; as part of those duties, lawyers are required to respect the clients autonomy to make decisions in his matter; as a result thereof, though lawyers, without consulting their clients, can decide about tactics/means to be adopted while dealing with cases, they should seek appropriate instructions from client or his authorized agent before making any concession/statement/admission/settlement/compromise before court which may, directly or remotely, affect the rightful legal right of the client; lawyers should follow the clients instructions rather than substitute their judgment for that of the client; as regards settlement/compromise of a claim in court, a lawyer mus
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in Section 73A (3) and (4) of the FA before going ahead with the arrest of a person under Sections 90 and 91 of the FA. The power of arrest is to be used with great circumspection and not casually. It is not to be straightway presumed by the DGCEI, without following the procedure under Section 73A (3) and (4) of the FA, that a person has collected service tax and retained such amount without depositing it to the credit of the Central Government.
(ii) Where an assessee has been regularly filing service tax returns which have been accepted by the ST Department or which in any event have been examined by it, as in the case of the two Petitioners, without commencement of the process of adjudication of penalty under Section 83 A of the FA, another agency like the DGCEI cannot without an SCN or enquiry straightway go ahead to make an arrest merely on the suspicion of evasion of service tax or failure to deposit service tax that has been collected. Section 83 A of the FA which provides for
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that the amount exceeds Rs. 50 lakhs (now enhanced to Rs. 1 crore)
The Court observed that, in the case with which it was dealing, the SCN was not even issued and determination of the service tax arrears was not made and in those circumstances, resorting to extreme coercive measure of arrest followed by detention of the accused therein was impermissible in law.
12. Even if it is assumed that the undertaking is given by the counsel, on clear instruction by the petitioners, the counsel for the petitioners submits that the parties cannot contract out of the benefits that are conferred by the Constitution of India or the Statutes, as the case may be and there can be no estoppel against the Constitution and Statutes. He draws support for the said contention from the decision of the Supreme Court in OLGA TELLIS v. BOMBAY MUNICIPAL CORPORATION (1985) 3 SCC 545. The Supreme Court observed as under:
A concession made by him in a proceeding, whether under a mistake of law or otherwise, tha
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ount law of the land but it is the source and sustenance of all laws; the doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs; if a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. It was held that the said principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he do not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. It was further observed that fundamental rights are undoubtedly conferred by the Co
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rtion had no legal efficacy.
14. In the light of the above legal position, the decision of the High Court of Chhattisgarh in Miscellaneous Criminal Case No.4980 of 2013 dated 22.11.2013, on which the Special Public Prosecutor relies upon, cannot be followed. In the said case, the Court relied on the undertaking given by a party therein and imposed conditions in pursuance of the said undertaking, while granting bail to the petitioner therein.
15. The Court, on the basis of the undertaking given by a party, cannot convert itself into an executing Court to execute the terms agreed by the party, while deciding the bail application. Hence, with the above legal scenario, in the background, the condition imposed by the Court below to the extent of directing the petitioners to furnish bank guarantee for the remaining amount cannot be sustained and is set aside.
Hence, the criminal petitions are allowed. As a sequel, the miscellaneous applications, if any pending, shall stand closed.
Cas
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Sub: IGST Refund not disbursed due to PFMS error – reg.
38/2018 Dated:- 12-3-2018 Trade Notice
Customs
OFFICE OF THE COMMISSIONER OF CUSTOMS (NHAVA SHEVA-I)
JAWAHARLAL NEHRU CUSTOM HOUSE, NHAVA SHEVA,
URAN, RAIGAD, MAHARASHTRA – 400 707
FAX: 022-27243245 e-mail: edi@jawaharcustoms.gov.in
F. No. EDI/ Misc.-82/2015/JNCH
Date: 12.03.2018
PUBLIC NOTICE NO. 38/2018
Sub: IGST Refund not disbursed due to PFMS error – reg.
It has come to notice that after generation of IGST Refund Scroll through ICES, in some cases the IGST Refund could not be disbursed due to IFSC not being accepted by PFMS/not registered at PFMS.
2. The list of such IEC holders whose IGST Refund has not been disbursed due to PFMS error is being uploaded on the JNCH website (www.jawaharcustoms.gov.in) regularly.
3. IEC holders can check the PFMS verification status after registering themselves on ICEGATE (www.icegate.gov.in). Post registration, the PFMS status can be checked in IEC wise PFMS Inval
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ank.
Sd/-
(M.R. MOHANTY)
Commissioner of Customs (NS-I),
J.N. Custom House, Nhava Sheva.
ERRORS IN PFMS VALIDATION AND THEIR RECTIFICATION
S.No.
Error Code
Error Description
Rectification
1
TBE0001
Error in reading file, File is malformed or Failed during scheme validation.
Not Applicable
2
TBE0002
Mandatory Tags values are missing in the Header Part.
Not Applicable
3
TBE0003
Invalid Batch Format.
Not Applicable
4
TBE0004
Duplicate Batch ID/Message ID not allowed.
Not Applicable
5
TBE0005
Invalid Assessee Type.
Not Applicable
6
TBE0006
Same [Assessee Code, Location Code, Assessee Type, Source] already exists in PFMS. This validation will be not be applied for Update and Delete type requests. – Applied for ICEGATE. Can be modified for ACES.
Submit Again
7
TBE0007
[Assessee Code, Location Code, Assessee Type, Source] not exists in PFMS. This validation will be applied for Update and Delete type requests. – Applied for ICEGATE.
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BE0017
Rejected by Bank, Account status is closed.
Check the Account Number for validity – Submit correct details.
18
TBE0018
Duplicate Assessee Details [Assessee Code, Location Code, Assessee Type, Source] Found In The File. – Applied for ICEGATE. Can be modified for ACES
Submit Again
19
TBE0019
Blocked Account
Submit another valid Account details.
20
TBE0020
One or more mandatory tags values are missing in the detail section.
Not Applicable.
21
TBE0021
IFSC Code does not exists in PFMS.
Inform DG System for Rectification.
22
TBE0022
Actual records should be same. count and No. of records in details, it
Not Applicable
23
TBE0023
Assessee already exists.
Submit Again
24
TBE0024
Assessee code does not exist during update.
Submit Again
25
TBE0025
More than one record found during update data.
Submit Again
” Not Applicable” means that these are Structural errors which shall not appear in this report.
Circular, Trade Notic
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GTA services under forward charge mechanism
Query (Issue) Started By: – SUSHIL GOYAL Dated:- 11-3-2018 Last Reply Date:- 22-3-2018 Goods and Services Tax – GST
Got 6 Replies
GST
GST @ 6% on GTA services is allowed to be paid on forward charge basis provided that the goods transport
agency opting to pay central tax @ 6% under this entry shall, thenceforth, be liable to pay central tax @ 6% on all the services of GTA supplied by it.
I have a query – Is a person registered under two States can opt for paying GST on GTA Services on reverse charge basis, if it has opted for payment of tax on forward charge basis in one State?
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
In my opinion if GTA pays 6% gst from one state then
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12%..No other condition is appearing in this notification.
Reply By SUSHIL GOYAL:
The Reply:
But relevant notification refers to Goods Transport Agency, which is defined as a person engaged in such rendering service. A person has been defined in CGST Act, 2017 as a Company, Firm, etc. No is no mention of Registered Person in the said provisions. A registered person is defined in CGST Act, 2017 as a person registered is a State. Therefore, in my view also a person being a Company or a firm can not opt for paying tax on reverse charge basis in a State, if it opts for paying tax on forward charge basis is another state. However, this view is subject to discussion and therefore further views are invited on this issue.
Reply By rajkumar shuk
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GST Council's 26th Meeting: Boosting Tax Compliance with Data Analytics to Enhance Revenue and Transparency.
News
GST
Recommendationsregarding Data Analytics made during the 26th meeting of t
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GST Council Proposes E-way Bill Changes: Shorter Validity, Higher Threshold, Stricter Penalties, FASTag Integration for Better Compliance.
News
GST
Recommendations regarding E-way Bill made d
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GST Council Simplifies Return Filing, Extends Current System, Defers E-Wallet Scheme, and Forms Group to Tackle GST Issues.
News
GST
Recommendations made during the 26th meeting of the GST Co
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GST Council Extends Exporter Tax Exemptions for Six More Months in 26th Meeting Decision.
News
GST
26th Meeting of the GST Council meets & decides Extension of tax exemptions for exporters fo
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Recommendationsregarding Data Analytics made during the 26th meeting of the GST Council
GST
Dated:- 10-3-2018
In the 26th meeting held here today , the GST Council has been apprised of the fact that CBEC and GSTN have started detailed data analytics across a number of data sets available with them. The outcome of preliminary data analysis has revealed interesting insights:
* It has emerged that there is variance between the amount of IGST & Compensation Cess paid by importers at
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Recommendations regarding E-way Bill made during meeting of the GST Council
GST
Dated:- 10-3-2018
E-way Rules
In the 26th meeting held here today , the GST Council has recommended the introduction of e-way bill for inter-State movement of goods across the country from 01st April 2018. For intra-State movement of goods, e-way bill system will be introduced w.e.f. a date to be announced in a phased manner but not later than 01st June, 2018.
Major improvements over the last set of rules, as approved by the Council now, are as follows:
* E-way bill is required to be generated only where the value of the consignment exceeds ₹ 50000/-. For smaller value consignments, no e-way bill is required.
* The provisions of sub-ru
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ill, railways will not deliver the goods to the recipient. But railways are required to carry invoice or delivery challan etc.
* Time period for the recipient to communicate his acceptance or rejection of the consignment would be the validity period of the concerned e-way bill or 72 hours,whichever is earlier.
* In case of movement of goods on account of job-work, the registered job worker can also generate e-way bill.
* Consignor can authorize the transporter, courier agency and e-commerce operator to fill PART-A of e-way bill on his behalf.
* Movement of goods from the place of consignor to the place of transporter up to a distance of 50 Km [increased from 10 km] does not require filling of PART-B of e-way bill.They have to gener
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Recommendations made during the 26th meeting of the GST Council held in New Delhi Today
GST
Dated:- 10-3-2018
I. Return filing System
The present system of filing of GSTR 3B and GSTR 1 is extended for another three months i.e., April to June, 2018 till the new return system is finalized. A new model was discussed extensively and Group of Ministers on IT has been tasked to finalize the same.
II. Reverse charge mechanism
The liability to pay tax on reverse charge basishas been de
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26th Meeting of the GST Council meets & decides Extension of tax exemptions for exporters for six months
GST
Dated:- 10-3-2018
Sending a strong positive signal to the exporting community, the GST Council in its 26thmeeting held here today decided to extend the available tax exemptions on imported goods for a further 6 months beyond 31.03.2018. Thus, exporters presently availing various export promotion schemes can now continue to avail such exemptions on their imports upto 01.10.2018, by which time an e-Wallet scheme is expected to be in place to continue the benefits in future.
In a related development which would benefit the exporters, the Council reviewed the progress in grant of refunds to exports of both IGST and Input
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on their procured goods was introduced. Also, domestic procurement made under Advance Authorization, EPCG and EOU schemes were recognized as 'deemed exports' with flexibility foreither the suppliers or the exporters being able to claim a refund of GST / IGST paid thereon. All these avenues were made available upto 31.03.2018.
The permanent solution agreed to by the Council was to introduce an e-Wallet scheme w.e.f. 01.04.2018. The e-Wallet scheme is basically the creation of electronic e-Wallets, which would be credited with notional or virtual currency by the DGFT. This notional / virtual currency would be used by the exporters to make the payment of GST / IGST on the goods imported / procured by them so their funds are not block
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PRESUMPTION AS TO DOCUMENTS IN GST LAW
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 10-3-2018
Meaning of Document
The term 'document' has been defined in section 2(41) of the CGST Act, 2017 to include:
* Written or printed
* Record of any sort and
* Electronic record as defined in the Information Technology Act, 2000
Meaning of Presumption
The term 'presumption' has not been defined under the GST Act. The dictionary meaning of this term is
* A conclusion made as to the existence or non existence of a fact
* That must be drawn from other evidence
* That is admitted and proven to be true.
Thus, presumption can be understood as an inference of a fact drawn from another known fact.
In certain c
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natures and attestation on such documents made by such person.
(b) Admit the documents as evidence whether it is duly stamped or not, if such document is otherwise admissible
It may be noted that this provision is rule of evidence and rebuttable presumption which can be proved by the accused that it is not genuine and should not be accepted as evidence.
Admissibility of Micro Films, Facsimile Copies of Documents and Computer Printouts as Documents and as Evidence
The term micro films has not been defined under the CGST Act. As per the free dictionary, it means a film on which printed materials are photographed at greatly reduced size for ease of storage.
The phrase 'Facsimile Copies of Documents' has not been defined under the
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document and included in a printed material produced by a computer produced by a computer subject to prescribed conditions or
(d) Any information stored electronically on a device or a media, including any hard copies made of such information
Certificate to be considered as evidence for proceedings under GST
In any proceeding where it is desired to give a statement in evidence as provided in section 145(2) of the CGST Act, a certificate doing any of the following things shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(a) Identifying the document containing the statement and describing the manner in which it was produced
(b) Giving particulars of any device involved in prod
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Carry forward of KKC, EC etc., into GST – implications of recent Delhi High court decision
By: – Venkataprasad Pasupuleti
Goods and Services Tax – GST
Dated:- 10-3-2018
Education Cess was being levied on Central Excise and Service Tax from 10.09.2014. Education Cess paid on the purchase was available as a credit against payment of education cess on payment on the output removal. The credit of cess was not able to use for the payment of duty. Later when the rate of excise duty was increased from 12% to 12.5%, cess was rescinded. Thereby the accumulated credit was not able to be used. Similar was in case of Krishi Kalyan Cess credit in case of service tax. Now whether this accumulated credit of cess can be carried forward into the GST under the transition provision is the issue, there were contradicting views on this some in favor and some against. Few of them have carried forward the credit, however recently, there were news articles published in the newspapers that co
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ly for the input services received after 01.06.2015). However, the unanswered question remains what to do with the unutilized credit of EC/SHEC lying as on 01.03.2015/01.06.2015 whether it lapses or can be sought as a refund or used for the payment of tax/duty?
A writ petition has been filed inter alia seeking direction that the credit accumulated as on 01st June 2015 on account of EC and SHEC should be allowed to be utilised for payment of service tax.
Contentions:
The petitioners claim a vested right to avail benefit of the unutilized amount of EC or SHE credit, which was available and had not been set off as on 1st March 2015 and 1st June 2015 for payment of tax on excisable goods and taxable services respectively. The contention was that EC and SHE were subsumed in the Central Excise Duty, the general rate of which was increased from 12% to 12.5%, and service tax, which was increased from 12.36% to 14%. Reliance is placed upon the Budget Speech of the Finance Minister and the me
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arlier and this amounts to seeking the additional benefit and concession beyond those granted. Hence, Article 14 was not offended. Further, the Hon'ble High Court held that there is no provision in the law which states that EC and SHEC are subsumed into Service Tax and Excise Duty to allow the cross-utilisation of credit. Thereby decision concluded that the credit of EC and SHEC cannot be used for the payment of excise duty.
Implications on the Credit carried forwarded into GST:
The decision of the Hon'ble High court restricted to the subject of cross-utilisation of EC and SHEC against the payment of Central Excise or Service Tax. This judgment nowhere discusses the eligibility of CENVAT Credit of EC and SHEC and the same lapsing. Therefore it is of no dispute that the credit was eligible and did not lapse.
Section 140 of CGST Act, 2017 entitles a registered person to carry forward the closing balance of CENVAT Credit in the last return filed under the existing law. 'CENVAT Credit
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credit Rules, 2004.
The Hon'ble Delhi High Court has only discussed the second part i.e, cross-utilisation of EC and SHEC but has not discussed the first part i.e, CENVATABILITY of 'Cess' which is essential to determine whether such credits can be carried forward to GST or not. As 'Cess' passed the first criteria, the credit of the same can be carried forward to GST.
As the issue decided by the Delhi High Court is related to cross-utilization of EC, SHEC which does not have any impact on CENVATABILITY of the cesses, the said decision does not have any impact on the credit carried forwarded into GST.
Further, while giving the above judgment High Court has observed that there is no specific provision in existing laws stating that EC and SHEC are subsumed in Service Tax and Excise Duty. While introducing GST, Central Government has amended the Constitution of India by subsuming the Service tax and Excise Duty into GST and an article has been included requiring the GST Council to su
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GST ON GOLD LOAN INTEREST
Query (Issue) Started By: – raja raja Dated:- 9-3-2018 Last Reply Date:- 13-3-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Dear Experts ,
Pl clarify GST applicability on gold loan interest
Thanks in advance
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
Vide Sl. No.27 of Notification No. 12/2017-Central Tax (Rate) dated 28.6.2017 as amended rate of gst on "Services by way of extending deposits, loans or advances in so far as the consider
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Refund of IGST paid on export of goods.
Query (Issue) Started By: – Narendra Soni Dated:- 9-3-2018 Last Reply Date:- 10-3-2018 Goods and Services Tax – GST
Got 6 Replies
GST
Dear Expert, kindly suggest the meaning of below para of Rule 96, what is restriction for availing IGST paid refund from Customs ???
""The persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies on which the supplier has availed the benefit of the Government of India, Ministry of Finance, notification No. 48/2017-Central Tax dated the 18th October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1305 (E) dated the 18th October, 2
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aordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E) dated the 13th October, 2017.]
Reply By Alkesh Jani:
The Reply:
Sir, In simple words it can be said that the exporter shall not avail the benefits as per the Notifications cited by you otherwise the refund of IGST shall not be granted. The double benefit cannot be availed.
At this juncture, I request the experts, that there is marginal benefits against, IGST. So my point of view is that refund should be granted after deducting the benefits availed, or else the taxes have been deemed to be exported out of India and is violation of International treaty. Please correct me if mistaken.
Reply By CS SANJAY MALHOTRA:
The Reply:
Refund of IGST paid on export of goods is
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of that only one refund claim can be seeked which can be either under Rule 96 or Rule 89 subject to the availment / non availment of benefit by supplier of goods against supplies to Exporter of goods.
Reply By Alkesh Jani:
The Reply:
Dear Sanjay Sir,
Please comment on the second para of my first reply. I am very keen to know your views.
Reply By CS SANJAY MALHOTRA:
The Reply:
Dear Alkesh,
First of all, the concept of refund claim is different alongwith the tax administration for processing of same, hence your view not acceptable from legal and administration perspective. Furthermore, no treaty is violated as no tax incidence is recovered from customers.
Act allows Exporter to claim back tax suffered on Exports either by way of input
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Refund of IGST on Export – Invoice mis-match Cases -Alternative Mechanism with Officer Interface
PUBLIC NOTICE NO. 01/2018 Dated:- 9-3-2018 Trade Notice
Customs
GOVERNMENT OF INDIA
OFFICE OF THE COMMISSIONER OF CUSTOMS, PATNA
CR Building, 5th Floor, Birchand Patel Path, Patna – 800001
C. No. VIII (48)05-13/575/CUS/TECH/Public Notice/17/1763-81
Date:09.03.2018
PUBLIC NOTICE NO. 01/2018
Subject: reg.
Attention of all Exporters, Importers, Customs Brokers, Trade and all concerned is invited to CBEC Circular No. 05/2018 -Customs dated 23.02.2018 vedi which alternative mechanism of refund of IGST on export- invoice mis-match cases has been prescribed by the board.
2.0. Numerous representations have been received from exporters / trade associations seeking resolution of various problems which have hindered the sanction of refund of IGST paid on exports. CBEC has issued Circular No 42/2017 dated 07-11-2017 which highlighted the common errors that hindered the sanction and di
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exporters asking them to correct their records through amendment process of GSTR 1 i.e through Table 9 of GSTR 1 of the following month.
(iii) The aggregate IGST paid amount claimed in GSTR 1 or Table 6A should not be greater than the IGST paid amount indicated in Table 3.1(b) of GSTR 3B of the corresponding month. This check is put in the GSTN system to ensure that the refund claimed is not more than the IGST paid by the exporter. Analysis of GSTN return data indicates that this condition has failed in a large number of cases, consequently, the information filed by exporters is not forwarded to Customs by GSTN. In these cases also, e-mails have been sent to exporters asking them to correct their records through amendment process of GSTR 1 i.e. through Table 9 of GSTR 1 of the following month.
(iv) The analysis of data further indicates that only about 32% records of GSTR 1 / Table 6A have been transmitted from GSTN to Customs. In other words, a majority of refund claims are held u
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vii) However, there are many instances where refunds are held up on Customs EDI system due to certain errors which have been clearly brought out in the Circular No 42/2017-Customs. The major errors that are committed by the exporters are (a) incorrect Shipping bill numbers in GSTR 1 (b) GSTIN declared in the shipping bill does not match with the GSTIN used to file the corresponding GST Returns (c) the most common error hampering refund is due to mismatch of invoice number, taxable value and IGST paid in the Shipping Bill vis-a-vis the same details mentioned in GSTR 1 / Table 6A which is the most common error hampering refund. Another reason attributable to carriers is the non-filing or incorrect filing of electronic Export General Manifest (EGM).
(viii) Exporters are advised to track the refund status and errors pertaining to their shipping bills on the ICEGATE website. The registration process demo, advisory and the needed IT configurations are hosted on the ICEGATE website under th
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oned at (c) in para (vii) is most prevalent. The error mentioned at (c) in para (vii) is about invoice mis-match. This error is because of the fact that exporters are using two sets of invoices, one invoice for GST and another invoice for Customs which is resulting in mismatch of invoice numbers, including mis-match in taxable value and IGST paid in those invoices. It is once again reiterated that exporters may be advised take due care to ensure that the details of invoice such as invoice number, taxable value and IGST paid mentioned in GSTR 1 and shipping bill match with each other and the invoice issued is compliant with the GST Invoice Rules, 2017.
4.0. Recognizing that invoice mis-match has been the major reason why the refunds have been held, it has been decided to provide an alternative mechanism to give exporters an opportunity to rectify such errors committed in the initial stages. This envisages an officer interface on the Customs EDI System through which a Customs officer ca
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stoms(P) Division, Forbesgani (for exports made through LCS Bhimnagar & LCS Galgalia) and Asstt. Commissioner of customs, customs(P) Division, Muzaffarpur (for exports made through LCS Forbesgani, LCS Sonbarsa, Bhithamore, LCS Pipraun, LCS Jainagar, LCS Haukaha & Kunauli). A scanned copy of concordance table may also be sent to dedicated email address (mentioned below) of concerned Deputy/ Assistant. Commissioner of customs under whose jurisdiction export took place.
Name of LCS
E-mail address
LCS Raxaul
Lcs.raxaul-rev@nic.in
LCS Jogbani
Lcs-cusjbn@gov.in
LCS Bhimnagar & LCS Galgalia
Lcs-cusfbg@gov.in
LCS Bairgania, LCS Sonbarsa, Bhithamore, LCS Pipraun
LCS Jainagar, LCS Haukaha & Kunauli
Lcs-cusmzp@gov.in
b. Customs EDI system shall display list of all the invoices pertaining to such SBs vis-a-vis the invoice data received from GSTN.
5.0 This procedure is available only for Shipping Bills filed till 31st December 2017. It is the responsibility of the exporter
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Refund of IGST on Export – processing of refund claims with error code SB005 – facility to trade on all Saturdays
PUBLIC NOTICE NO. 12/ 2018 Dated:- 9-3-2018 Trade Notice
Customs
OFFICE OF THE PRINCIPAL COMMISSIONER OF CUSTOMS
CUSTOM HOUSE: PORT AREA: VISAKHAPATNAM – 530 035
F. No. P3/06/2017 – A.M.
Date: 09.03.2018
PUBLIC NOTICE NO. 12/ 2018
Sub:- Refund of IGST on Export – processing of refund claims with error code SB005 – facility to trade on all Saturdays – reg.
*****
Atte
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In Re : Ceat Limited
GST
2018 (5) TMI 699 – AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – 2018 (12) G. S. T. L. 467 (A. A. R. – GST), [2018] 2 GSTL (AAR) 72 (AAR)
AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – AAR
Dated:- 9-3-2018
GST-ARA-07/2017/B-10
GST
Shri. B. V. Borhade, Joint Commissioner of state tax and Shri. Pankaj Kumar, Joint Commissioner of Central tax
PROCEEDINGS
(Under section 98 of the Maharashtra Goods and Services Tax Act, 2017)
NO.GST-ARA-07/2017/B- 06 Mumbai, dt. 09/03/18
The applicant, M/S Ceat Ltd. has filed the application under section 97 of the Maharashtra Goods and Services Tax Act, 2017 and requested to decide the question What is the classification and rate of Central Goods and Service Tax leviable on the product “E-rickshaw tyres.
02. Fact of the case:-
1. M/s Ceat Ltd. (hereinafter referred to as 'Applicant') having its corporate head office at, Ceat Limited, RPG House, 463, Dr. Annie Besant Road, Wo
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by the applicant that there is an anomaly in the Customs Tariff as well as in the GST Tariff Schedules in so far as 'e-rickshaw tyres' are concerned. The term 'e-rickshaw tyres' fails to find a mention in both, the Customs Tariff and the GST Rate Schedules. Furthermore, it is observed that Chapter Heading No. 4011 of the Customs Tariff is covered by two separate entries in two distinct Schedules i.e. SI. No. 190 of Schedule-I attracting CGST and Sl. No. 46 of Schedule-IV attracting CGST@14% as per Notification No. 1/2017- Central Tax (Rate) dated 30.06.2017.
5. Sl. No. 190 of Schedule-I and Sl. No. 46 of Schedule-IV of the Notification No. 1/2017Central Tax (Rate) dated 30.06.2017 reads as under:
Sch.
SI. NO.
Chapter Heading/ Sub-Heading
Description of goods
Rate of Tax (CGST)
I.
19
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n 'New pneumatic tyres, of rubber [other than of a kind used on/in bicycles, cycle-rickshaws and three wheeled powered cycle rickshaws; and Rear Tractor tyres; and of a kind used on aircraft]' attracting CGST @ 14%. Chapter Heading No. 4011 covers 'New pneumatic tyres, of rubber' and the term 'e-rickshaw tyre' is not specifically covered in the entire Tariff. Furthermore, even HSN Explanatory Notes to Chapter Heading No. 4011 are silent in so far as 'e-rickshaw tyres' are covered.
7. The prevailing ambiguity is caused by the omission of the term 'e-rickshaw' and further, by specific mention of the term 'three-wheeled powered cycle rickshaws ' in Sl. No. 190 of Schedule-I of Notification No. 1/201 7-CentraI Tax (Rate). It shall be noted that 'Three-wheeled powered cycle rickshaw' was a vehicle that comprised of three wheels and was used to carry passengers or light goods over a short distance. It was a modification of the three wheele
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fforts put in by the driver.
9. The principle of ejusdem generis specifies that like items should be treated likely i.e. goods of the same kind should be clubbed and treated similarly. Extending the same principle to e-rickshaws, it is submitted, that e-rickshaws should be treated as similar to three-wheeled powered cycle rickshaws in law and clubbed with the same for the purpose of taxation under GST.
10. The lack of mention of 'tyres used in e-rickshaws' along with three-wheeled powered cycle rickshaws in Sl. No. 190 of Schedule-I to Notification No. 1-Central Tax (Rate) gives rise to the ambiguity that whether the product in question shall be perceived to be covered under Schedule I or Schedule IV of Notification No. 1-Central Tax (Rate). This further gives rise to the ambiguity regarding applicability of GST @ 5% or 28% on the product in question which is an effective tax differential of 23%.
03. The legal submission of applicant:-
A.1 That the sub-section (c) of
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tes, from where he makes a taxable supply of Goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees:”
…(Emphasis Supplied)
A.4 The above referred section can be vivisected into following essentials: –
a. A supplier shall be liable to be registered under CGST Act in the State or Union Territory, from where he makes taxable supply of goods or services or both;
b. If the aggregate turnover in the financial year exceeds rupees twenty lakh.
A.5 The Applicant submits that as on date, it is registered in Maharashtra and also making taxable supplies of goods from the same to its customers located in State of Maharashtra. Further, the turnover of the Applicant exceeds rupees twenty lakhs in the financial year. Given this, it is submitted that Applicant clearly satisfies to be 'applicant' in terms of sub
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this Act, shall be in respect of,-
(a) classification of any goods or services or both;
(b) applicability of a notification issued under the provisions of this Act;
(c) determination of time and value of supply of goods or services or both;
(d) admissibility of input tax credit of tax paid or deemed to have been paid;
(e) determination of the liability to pay tax on any goods or services or both;
(f) whether applicant is required to be registered;
(g) whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both, within the meaning of that term.”
…Emphasis Supplied
A.8 In view of the above, it is submitted that advance ruling may be sought by the Applicant on the questions concerning classification of goods or services or both, on the question involving determination if any thing done by the applicant with respect to a goods or services or both amounts to or res
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e Ruling Authority for the purpose of CGST Act. The Section 96 of the Maharashtra Goods and Service Tax Act, 2017, reads as under:-
“SECTION 96
(1) The Government shall, by notification, constitute an Authority to be known as the Maharashtra Authority for Advance Ruling:
Provided that the Government may, on the recommendation of the Council, notify any Authority located in another State to act as the Authority for the State.
(2) The Authority shall consist of-
(i) one member from amongst the officers of central tax; and
(ii) one member from amongst the officers of State tax, to be appointed by the Central Government and the State Government respectively.
(3) The qualifications, the method of appointment of the members and the terms and conditions of their services shall be such as may be prescribed.
…Emphasis Supplied
A.11 The Applicant submits that in terms of the above referred section 96 of the Maharashtra Goods and Service Tax Act, 2017, the Government of Mahara
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anufactured to be used in modern day electric rickshaws. The dealer has been clearing goods under chapter heading-4011. While going through chapter heading 4011 in the customs act (which is quoted above) it mentions new pneumatic tyres of rubber.
The word rickshaw's origins lie in the Japanese language, and it literally translates to “a human powered vehicle”. The rickshaw is one of the oldest modes of transport, and was first introduced in the late 19th century. It is used all across the world, but more common in the Asian countries, especially in India and Bangladesh. The various types of rickshaws have also evolved over time with the earliest ones being the pulled-rickshaws. Other variations of the mode of transport include the powered cycle-rickshaw, the auto-rickshaw and the relatively newer iteration of the e-rickshaws. Historically, India's urban as well as rural areas have depended on the various rickshaw types for their travel requirements. The most recent modificatio
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4011, 4013
Pneumatic tyres or inner tubes, of rubber, of a kind used on/
in bicycles, cycle-rickshaws and three wheeled powered
cycle rickshaws
2.5
2.5
5
4011
Rear Tractor tyres and rear tractor tyre tubes
9
9
18
4011 70 00
Tyre for tractors
9
9
18
4011
New pneumatic tyres, rubber {other than of a kind used on/in bicycles, cycle-rickshaws and three wheeled powered cycle rickshaws: rear tractors tyres: and of a kind used on aircraft}
14
14
28
The dealer's contention to consider three wheeled powered cycle rickshaws as three wheeled electric rickshaws based on the principle of Ejusdem generis cannot be accepted because three wheeled powered cycle rickshaws are different than electric rickshaws. Cycled rickshaws were first driven manually. To carry more loads and reduce burden on the person who rides it manually power was added to it. This means three wheeled power cycled rickshaws is up gradation of cycled rickshaws.
Th
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ic Motor Vehicles (E-Rickshaw) were not even conceptualized. This exemption has been taken verbatim in GST in 2.5% percent slab.
Three Wheeled Electric Motor Vehicle (known as E-Rickshaw in market) is a Motor Vehicle in Motor Vehicle Act also. It has to be registered with State Transport Authorities as a Motor Vehicle. Tyres and Tubes used in these Vehicles are Automobile Tyres and Tubes of size 300-12, 300-14, 90-90/12 and 3.75-12, which are duly prescribed as Automobile Tyres in Bureau of Indian Standards for Two and Three Wheeled Motor Vehicles IS 15627:2005. By no means the Tyres and Tubes cleared by them are Tyres and Tubes of Three Wheeled Powered Cycle Rickshaw. The SSI exemption notification no. 8/2003-Central Excise dated 1st March. 2003deiines the powered cycle rickshaw is defined as under:
“Powered cycle or powered cycle rickshaw means a mechanically propelled cycle or as the case may be mechanically propelled cycle rickshaw. Which may also be pedalled if any necessi
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e history findings of term 'powered cycle rickshaw'.
The term 'powered cycle rickshaw' in the explanation to the notification number 102/76 dated 16-3-1976 as follows:
“Explanation.- The expression term 'powered Cycle' or 'Powered Cycle Rickshaw' means a mechanically propelled cycle or as the case may be mechanically propelled cycle rickshaw, which may also be paddled, if any necessity arises for so doing”.
Further, the meaning of Powered Cycle Rickshaw was clearly explained in the case of Delhi Kinetic Engineering Ltd. vs Collector of Central Excise and upheld by Supreme Court bench on 21.03.1996 and reported in 1997 (94) ELT A157(SC) = 1996 (3) TMI 555 – SUPREME COURT . Therefore, It is settled that Powered Cycle Rickshaw referred to in the Explanation would not cover an Auto Rickshaw and would only cover an ordinary Cycle Rickshaw to which a motor or petrol engine has been fitted.
The next question is, why Three Wheeled Electric Vehicle (E-Ricksha
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ind that the charging section 9(1) of MGST and CGST ACT, 2017 provides for levy and collection of state tax and central tax on goods and services on all intra-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 and at such rates, not exceeding twenty per cent., as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person. Accordingly the State and central government have issued the notification for levy of tax. The provisions for implementing the CGST ACT and MGST ACT, 2017 are similar.
5.1 The relevant entries in the respective Schedules of Notification No. 1/2017-Central Tax (Rate) dated 28.6.2017, for the purpose of the impugned product in question, read as under:
SI. No.
Chapter Heading/ Sub-Heading
Description of Goods
Rate of Tax (GST)
Prescribed Sch. for rate of tax
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b) The SSI exemption notification no. 8/2003-Central Excise dated 1st March, 2003 defines the powered cycle rickshaw as under:
“Powered cycle or powered cycle rickshaw means a mechanically propelled cycle or as the case may be mechanically propelled cycle rickshaw, which may also be pedalled if any necessity arises for so doing”
c) It clearly shows that the Tyres cleared by these manufacturers attract a peak rate of 14% percent instead of 2.5% percent, as these Tyres and Tubes are meant for Electric Motor Vehicles (known as E-Rickshaw).The sizes of these tyres and tubes mentioned are also used widely in scooters and motorcycles. It is necessary to verify what duty these companies were paying in pre-GST.
d) In Chapter head 4011 and 4013, Pneumatic Tyres or Inner Tubes, of Rubber, of a kind used on/in Bicycles, Cycle Rickshaws and Three Wheeled Powered Cycle Rickshaws attract a GST Rate of 2.5%, In Chapter head 4011, New Pneumatic Tyres of Rubber {Other than of a kind used on/in Bic
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) = 1996 (3) TMI 555 – SUPREME COURT. Therefore, It is settled that Powered Cycle Rickshaw referred to in the Explanation would not cover an Auto Rickshaw and would only cover an ordinary Cycle Rickshaw to which a motor or petrol engine has been fitted.
5.3 We have carefully considered the notification issued for rate of tax, in order to determine the rate of MGST/CGST. The scheme of tax revealed that the GST is levied on supplies of goods, the description of which is specified in the corresponding entry in column (3) of the said Schedules.
The description is provided as 'Pneumatic tyres or inner tubes, of rubber, of a kind used on / in bicycles, cycle -rickshaws and three wheeled powered cycle rickshaws.”
* On analysis of the schedule entry- 190, it is seen that the tyres of cycle or cycle rickshaw whether powered or not are covered only. It is clear that the rickshaw must be pedal driven. The term “Cycle rickshaw” connotes a pedal driven, human powered, single track vehicle, havi
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od in their commercial sense and not as per the scientific or technical meaning. How the product is identified by the class or section of people dealing with or using the product is also a test when the statute itself does not contain any definition and commercial parlance would assume importance when the goods are marketable.
* In the present case, the product introduced by the appellant is with electric battery whereas the simple meaning of “cycle” is a pedal driven, human powered, single track vehicle, having two wheels attached to a frame, one behind the other. He also urged that the word “cycle” has to be understood in the light of the word “cycle rickshaw”, The word “bicycle and cycle rickshaw, provided in entry-190 of schedule-I takes the colour from each other. For the purpose of charging sales tax we have to consider the plain meaning of “cycle” in common parlance.
* With this understanding, let us turn to the maxim “noscitur a sociis”, which means the meaning of a doubtfu
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word is to be found in the company of the words “cycle rickshaws”, “bicycle”. The cycle rickshaws are commonly understood as rickshaws propelled by cycling. The cycle rickshaw cannot be termed as auto-rickshaw or e-rickshaw.
* The Cycle rickshaw is cycle rickshaw as understood in common parlance. The word cycle-rickshaw will take colour from the word bicycle and the things are belonging to same genus. Considered from this angle, one has to reach to the conclusion that the e-rickshaw is not within the sweep of the word “bicycles” or “cycle Rickshaw” and also does not appear to be in consonance with the legislative intent.
* The applicant has relied upon the various case laws. We have carefully gone through the case laws. The case laws cited by applicant are more or less related to advancement of technology. The courts have observed that there is no change in the class of goods. The textile remains as textile. The change in method of manufacturing does not change the product. In pre
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015] 80 VST 502(Karn) = 2015 (3) TMI 1048 – KARNATAKA HIGH COURT , more particularly the observations made at para 37 of the said decision, which reads as under (pages 526 & 527 in 80 VST) :
“37. The 'entry' to be interpreted here is in a taxing statute ; full effect should be given to all the words used therein, If a particular article would fall within a description, by the force of words used, it is impermissible to ignore that description and denote the article under another entry, by a process of reasoning. The meanings given to articles in a fiscal statute must be as people in trade and commerce, con-versant with the subject, generally treat and is understand by them in the usual course. If an expression is capable of a wider meaning as well as narrower meaning, the question whether the wider or the narrower meaning should be given depends on the context and the background of the case. But once an article is classified and put under a distinct entry, the basis of the cla
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three wheeled powered cycle rickshaws; and Rear Tractor tyres; and of a kind used on aircraft] of particular entry. Once the articles are in circulation and come to be described, then, there is no difficulty for statutory classification under a particular entry. Hence we are of opinion that there is no force in contention of applicant.
In view of the extensive deliberations as held hereinabove, we pass an order as under:-
&n
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nbsp;
Q.1 What is the classification and rate of Central Goods and Service Tax leviable on product “E-rickshaw tyres”?
A.l The product is classified and covered by Tariff Heading 4011 and the rate of tax shall be at the rate of 14 percent under MGST ACT, 2017
and 14 percent under CGST ACT, 2017.
Case laws, Decisi
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In Re : Simple Rajendra Shukla
GST
2018 (5) TMI 648 – AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – 2018 (12) G. S. T. L. 463 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING – MAHARASHTRA – AAR
Dated:- 9-3-2018
GST-ARA-06/2017/B-05
GST
Shri B.V. Borhade, Joint Commissioner of State Tax and Shri Pankaj Kumar, Joint Commissioner of Central Tax
PROCEEDINGS
(Under section 98 of the Maharashtra Goods and Services Tax Act, 2017 )
NO.GST-ARA-06/2017/B-05 Mumbai, dt. 09 /03/2018
The applicant Simmple Rajendra Shukla has filed the application under section 97 of the Maharashtra Goods and Services Tax Act, 2017 and requested to decide the question “whether the services related to providing the coaching for entrance examination will come in the ambit of Goods and Service Tax.
02. Fact of the case:-
The applicant runs Simmple Shukla Tutorials and is thus engaged in provid
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ices. The rendering of educational services falls under the chapter heading of 9992.
04. The legal position, Analysis and Discussion
The charging section 9(1) of MGST and CGST ACT, 2017 provides for levy and collection of state tax and central tax on goods and services on all intra-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 and at such rates, not exceeding twenty per cent. , as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person. Accordingly the State and central government have issued the notification for levy of tax. The provisions for implementing the CGST ACT and MGST ACT, 2017 are similar.
Now we sequentially discuss the provisions that are applicable in the present case-.-
The taxability of education services is as per notification no. 11/2017 C
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t.)
Condition
(1)
(2)
(3)
(4)
(5)
30
Heading 9992
Education services.
9
–
On perusal of scheme of taxation related to supply of services, we find that the education service is taxable at the rate of 9 percent under CGST ACT and SGST at 9 percent as provided.
However, we also find that Government has issued another notification No. 12/2017 – Central Tax (Rate) by virtue of which Government has granted exemption in respect of education services when rendered by or in relation to certain institutions which is as under
4.2 The Notification No. 12/2017- Central Tax (Rate).
G.S.R. 691(E) .- In exercise of the powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts the intra-State supply of services of description as specified in column (3) of
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t or Union territory;
(iii) security or cleaning or house-keeping services performed in such educational institution;
(iv) services relating to admission to, or conduct of examination by, such institution;
(v) supply of online educational journals or periodicals:
Provided that nothing contained in sub-items (i), (ii) and (iii) of item (b) shall apply to an educational institution other than an institution providing services (by way of pre-school education and education up to higher secondary school or equivalent.)
Provided further that nothing contained in sub-item (v) of item (b) shall apply to an institution providing services by way of,-
(i) pre-school education and education up to higher secondary school or equivalent; or
(ii) education as a part of an approved vocational education course.
Nil
Nil
From the above notification it can be seen that the exemption is granted in respect of services provided to and by an educational institution.
4.3 Further we
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r her claimed institution “Simmple Shukla's Tutorials” is in no way covered in the definition of Educational institution as given in the above notification.
The private institute does not have any specific curriculum and does not conduct any examination or award any qualification recognized by any law which would be covered in the above notification, The activity of applicant is not covered by the specific definition provided for interpretation of exemption notification. We find that the education service provided in the case is taxable at the rate of 9 percent under CGST ACT and 9 percent SGST Act
In view of the deliberations as above, we pass an order as follows.
ORDER
(Under section 98 of the Maharashtra Goods and Services Tax Act, 2017)
NO.GST-ARA-06/2017/B-09 Mumbai, dt. 09/03/2018
As per discussions held above, the question is answered as below.
Q.1 “Whether the
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Commissioner of CGST And Central Excise Versus M/s Rama Sales And Services
Service Tax
2018 (3) TMI 556 – ALLAHABAD HIGH COURT – 2018 (12) G. S. T. L. 286 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 9-3-2018
Central Excise Appeal No. 28 of 2018
Service Tax
Hon'ble Bharati Sapru And Hon'ble Harsh Kumar, JJ.
For the Appellant : Piyush Agrawal
ORDER
Heard Sri Piyush Agrawal learned counsel for the appellant and Sri Subham Agrawal assisted by Ms.Sanyukta Singh learned counsel for the respondent assessee.
This is department's appeal under section 35-G of the Central Excise Act,1944 against the judgment and order dated 3.7.2017 passed by the Custom, Excise and Service Tax Appellate Tribunal, Allahabad Bench, Allahabad. The questions of law sought to be answered are as under:
“(a) Whether the Hon'ble CESTAT has erred in not confirming the demand of service tax along with interest and imposition of penalties for the period in question when the “Bus
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;ble CESTAT erred in treating it as double taxation when services are distinct? Service tax is paid on full value of SIM card by BSNL under the “Telecommunication Service” and not under “Business Auxiliary Service”. In the instant case, service tax has been demanded from the respondent under the category of “Business Auxiliary Service” on the communication received from BSNL, which is entirely different from “Telecommunication Service”?
(e) Whether the Hon'ble CESTAT has erred in not taking into account of its own case passed vide final order no.ST/A/684-687/2012CU(DB) dated 6.11.2012 in respect of M/s. Martand Food & Dehydrates Pvt. Ltd. Unnao, wherein at para 18 it was observed that “BSNL is paying service tax for value of telecommunication service being provided by them to the customer. Revenue is demanding tax on the service provided by distributor to BSNL which is in the nature of marketing of the services of BSNL to its customers and tax is demanded under the head of “Busin
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ready discharged the burden of Service Tax on the gross amount of SIM cards and demand of service tax on the same amount from the appellants will only lead to double taxation which is not permissible under the law. Hence the demand of service tax as ordered vide impugned order in original is not sustainable. Further when the demand is not sustainable, penalties imposed are also not maintainable.
Having heard learned counsel for the parties and having perused the material on record, we are of the view that in view of the law settled by the Hon'ble Apex Court in the case of Martend Food & Dehydrates Pvt. Ltd. decided on 6.11.2012, it has been held that the activities of purchase and sale of SIM cards belonging to BSNL where BSNL has discharged the service tax on the full value of the SIM cards does not amount to providing business auxiliary service. Therefore the questions are answered against the department and in favour of the assessee.
This appeal is dismissed at the stage of ad
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