Goods and Services Tax

Clarification regarding procedure for recovery of arrears under the existing law and reversal of inadmissible input tax credit
42/16/2018-GST Dated:- 13-4-2018 CGST – Circulars / Ordes
GST
Circular No. 42/16/2018-GST
CBEC-20/16/03/2017-GST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
GST Policy Wing
****
New Delhi, Dated the 13th April, 2018
To
The Principal Chief Commissioners/Chief Commissioners/ Principal Commissioners/ Commissioner of Central Tax (All) / The Principal Directors General/ Directors General (All)
Sub: Clarification regarding procedure for recovery of arrears under the existing law and reversal of inadmissible input tax credit-reg.
Madam/ Sir,
Kind attention is invited to the provisions of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the CGST Act) relating to the recovery of arrears of central excise duty /service tax and CENVAT credit thereof, CENVAT credit c

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1944 and Chapter V of the Finance Act, 1994)
i) Recovery of arrears of wrongly availed CENVAT Credit:
In case where any proceeding of appeal, review or reference relating to a claim for CENVAT credit had been initiated, whether before, on or after the appointed day, under the existing law, any amount of such credit becomes recoverable, the same shall, unless recovered under the existing law, be recovered as an arrear of tax under the CGST Act [Section 142(6)(b) of the CGST Act refers].
ii) Recovery of CENVAT Credit carried forward wrongly:
CENVAT credit of central excise duty/service tax availed under the existing law may be carried forward in terms of transitional provisions as per section 140 of the CGST Act subject to the conditions prescribed therein. Any credit which is not admissible in terms of section 140 of the CGST Act shall not be allowed to be transitioned or carried forward and the same shall be recovered as an arrear of tax under section 79 of the CGST Act.
iii) Rec

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h revision, any amount is found to be recoverable or any amount of CENVAT credit is found to be inadmissible, the same shall, unless recovered under the existing law, be recovered as an arrear of tax under the CGST Act [Section 142(9)(a)of the CGST Act refers].
4. In view of the above legal provisions, recovery of central excise duty/ service tax and CENVAT credit thereof arising out of the proceedings under the existing law, unless recovered under the existing law, and that of inadmissible transitional credit,is required to be made as an arrear of tax under the CGST Act.The following procedure is hereby prescribed for the recovery of arrears:
4.1 Recovery of central excise duty, service tax or wrongly availed CENVAT credit thereof under the existing law and inadmissible transitional credit:
(a) The CENVAT credit of central excise duty or service tax wrongly carried forward as transitional credit shall be recovered as central tax liability to be paid through the utilization of amoun

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id through the utilization of the amount available in electronic cash ledgerof the registered person and the same shall be recorded in Part II of the Electronic Liability Register (FORM GST PMT-01).
(b) The arrears of interest, penalty and late fee in relation to arrears of central excise duty, service tax or wrongly availed CENVAT credit thereof under the existing law arising out of any of the situations discussed in para 3 above, shall, unless recovered under the existing law, be recovered as interest, penalty and late fee of central tax to be paid through the utilization of the amount available in the electronic cash ledger of the registered person and the same shall be recorded in Part II of the Electronic Liability Register (FORM GST PMT-01).
4.3 Payment of central excise duty & service tax on account of returns filed for the past period:
The registered person may file Central Excise / Service Tax return for the period prior to 1st July, 2017 by logging onto www.aces.gov.in and

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Regarding Input Tax Credit
Query (Issue) Started By: – Prateek Agrawal Dated:- 12-4-2018 Last Reply Date:- 22-4-2018 Goods and Services Tax – GST
Got 6 Replies
GST
As I am registered dealer under GST Act. and having business of motor vehicles . For demo purpose I issued invoice in the name of firm i.e.self . whether the input credit is available or not . The same is showing in books of account under the hade fixed assests .
Reply By KASTURI SETHI:
The Reply:
ITC can be taken .
Reply By Ganeshan Kalyani:
The Reply:
Raising an invoice on demo basis will not make you eligible to take credit. This is my view.
Reply By YAGAY AND SUN:
The Reply:
We endorse the views of the experts.
Please check the point No. 3 of the appended

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ut Section 17 (5) of CGST Act, 2017 imposes some restrictions or conditions which are as under :-
_____________________ no ITC shall be allowed in respect of motor vehicle and other conveyances except when they are used-
(i) for making the following taxable supplies, namely:-
(A) further supply of such vehicles or conveyances; or
(B) transportation of passengers; or
(C) imparting training on driving, flying, navigating such vehicles or conveyances;
(ii) for transportation of goods.
Reply By KASTURI SETHI:
The Reply:
Procedural lapse cannot override your substantive right of ITC. If you fight legally you would get benefit. Your substantive right cannot forfeited just because you have issued invoice instead of delivery challan for dem

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Court Upholds Conditions on CENVAT Credit Transfers u/ss 174(1) and 174(3) of CGST Act, 2007.
Case-Laws
GST
Transitional credit – Transferring CENVAT credit u/s 174(1) & 174(3) of CGST Act, 2

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No GST for Applicant on Direct Shipments from China to USA or Goods Stored in Netherlands Warehouse.
Case-Laws
GST
Levy of GST IGST – high sea sale – supply from one country to another country without bringing the goods into India – The applicant is neither liable to GST on the sale of goods procured from China and directly supplied to USA nor on the sale of goods stored in the warehouse in Netherlands, after being procured from China – AAR
TMI Updates – Highlights, quick notes, mar

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Employee Canteen Charges Classified as 'Outward Supply' u/s 2(83) of GST Act, 2017; Taxable Service.
Case-Laws
GST
Scope of the term supply – The recovery of food expenses from the employees

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Rubber Trees Classified as 'Goods' Under GST; No Distinction Between Softwood and Hardwood.
Case-Laws
GST
Rate of tax – standing rubber trees – rubber trees are agreed to be severed before su

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Clarification regarding GST on supply of food and drinks in educational institutions.
GST
Dated:- 12-4-2018

Ministry of Finance
Posted On: 11 APR 2018 7:42PM by PIB Delhi
With a view to remove any doubt or uncertainty regarding rate of GST applicable on supply of food and drinks in educational institutions, it is clarified that: –
i. GST rate on supply of food and drinks in a mess or canteen in an educational institution attracts GST at 5% without INPUT Tax Credit (ITC).
ii. If

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APPLICABILITY OF GST ON PAYMENT OF ACTUAL WAGES THROUGH LABOUR CONTRACTOR
Query (Issue) Started By: – GEE LIMITED Dated:- 12-4-2018 Last Reply Date:- 27-9-2018 Goods and Services Tax – GST
Got 10 Replies
GST
QUERY REGARDING GST APPLICABILITY ON PAYMENT OF WAGES TO INDIVIDUAL LABOURERS
* LABOUR CONTRACTOR PROVIDES WORKERS TO A FACTORY FOR MANUFACTURING OF GOODS.
* HE IS ISSUING THE FOLLOWING MONTHLY BILLS TO THE FACTORY
BILL NO.1 (APRIL 2018)
Total Mandays
Amount
REIMBURSEMENT OF WAGES (ACTUALS WITH EMPLOYEE WISE DETAILS)
1664
670844
EPF – EMPLOYER CONTRIBUTION (ACTUALS)
39969
ESI – EMPLOYER CONTRIBUTION (ACTUALS)
31866
TOTAL
742679
BILL NO.2 (APRIL 2018)
Total Working Days
Rate
Amount
CHARGES FOR PROVIDING LABOUR
1636
20
32720
(Total Mandays – Paid Holidays = Total Working Days)
* WHETHER THE CONTRACTOR IS LIABLE TO CHARGE GST ON BOTH THE BILLS OR WHETHER BILL NO.1 FOR REIMBURSEMENT OF ACTUAL WAGES, EPF AND ESI PAYMENTS WILL BE EXEMPTED FROM THE

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II.
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
Rule 33 of CGST Rules, 2017 states that-
Notwithstanding anything contained in the provisions of this Chapter, the expenditure or costs incurred by a supplier as a pure agent of the recipient of supply shall be excluded from the value of supply, if all the following conditions are satisfied, namely,-
(i) the supplier acts as a pure agent of the recipient of the supply, when he makes the payment to the third party on authorisation by such recipient;
(ii) the payment made by the pure agent on behalf of the recipient of supply has been separately indicated in the invoice issued by the pure agent to the recipient of service; and
(iii) the supplies procured by the pure agent from the third party as a pure agent of the recipient of supply are in addition to the services he supplies on his own account.
Explanation.- For the purposes of this rule, the expression “pure agent” means a person who-
(a) enters into a contractual agr

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efore, A's recovery of such expenses is a disbursement and not part of the value of supply made by A to B.
In your case the supplier of manpower cannot be treated as 'pure agent' of you as per the definition given in the rule. Therefore the contractor is correct in charging gst on the entire amount charged by him towards supply of manpower.
Reply By Susheel Gupta:
The Reply:
Employer of the contractual labour shall be the contractor not company. Moreover,as per ESI and PF records the employer shall be contractor. Therefor the transaction cannot be covered under Schedule III.
Labour contractor cannot be treated as pure agent since as per rule 33(iii) "the supplies procured by the pure agent from the third party as a pure agent of the recipient of supply are in addition to the services he supplies on his own account". In your case the contractor is not taking any additional services from the labour instead this is the primary services which the contractor is provid

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ITC RECONCILE BETWEEN RETURN 3B AND GSTR 1 FOR 17-18
Query (Issue) Started By: – nandankumar roy Dated:- 12-4-2018 Last Reply Date:- 16-4-2018 Goods and Services Tax – GST
Got 7 Replies
GST
DEAR SIR,
WHILE GONG THROUGH RECONCILE BETWEEN RETURN 3B AND GSTR 1 FOR 17-18 FOLLOWING ITC MISMATCH FOUND IN TOTAL TILL FEBRUARY ARE AS UNDER:
IN GSTR1 LESS COMPARE TO 3 B RETURN IN IGST RS -11930 AND IN CGST AND SGST RS -5459 EACH NOW PL HELP TO HOW TO ADJUST IN MARCH'18 RETURN. IF ANY DISCRIPANCY WILL CREATE PROBLEM AT THE TIME OF AUDIT AND FOR THAT PL PROVIDE WHAT TO DO IN MARCH RETURN AS WELL AS MARCH HSN SUMMARY EFFECT ALSO.
REGARDS,
N K ROY
9427181604
Reply By KASTURI SETHI:
The Reply:
(i) At present problem of audit is not

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ictional GST Range Officer or grievances cell.. There is no other option.
These are my views.
Reply By Ganeshan Kalyani:
The Reply:
GSTR 3B of March 2018 can ve filed on or before 20th Apr 2018. GSTR 1 of March is also yet to filed. Thus you can match rectify the error in March month return. In GSTR1 you have shown less amount of taxes. Means you have missed to include sales invoice of the value mentioned in your query. Include that invoice in March month GSTR1. Before filing return check the impact in excel working and after ensuring that the correction will make figures correct. Thanks
Reply By Alkesh Jani:
The Reply:
Sir, In continuation to the views expressed by our experts, i Just wish to add that "Annual Return" is awai

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protect revenue and also unwarranted litigation.
At present the amendment can be done in subsequent month(s) or quarter(s). However, the amendment is for subsequent month or quarter. As we know that the quarterly filing of return GSTR-1 or GSTR-3B was not the intention of the Govt. Therefore, if any omission or rectification required, which were not done in the subsequent month or quarter, due to any reason, the Annual Return, where such reconciliation can be made and tax if any to be paid is required to be paid along with interest. As you might have noticed that Govt. intention was change the Accounting year from January to December. In this regards, Section 44 may please be referred. When the designed structure of GST has been distorted

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GST on Single residence unit
Query (Issue) Started By: – Thevarkonda Suresh Dated:- 12-4-2018 Last Reply Date:- 12-4-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Respected sir
What will be GST Rate for construction of Single Residence Unit through contract and
whether inputtax can be claimed under contract
regards
T S Suresh
9940040892
Reply By KASTURI SETHI:
The Reply:
Exempted vide Notification No.12/17-Central Tax (Rate) dated 28.6.17 as amended . Serial No.11 refer

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M/s. Indian Maritime University Versus Commissioner of GST & Central Excise Chennai South Commissionerate (Vice-Versa)
Service Tax
2018 (7) TMI 265 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 12-4-2018
ST/647/2011, ST/Misc. /41113/2017 and ST/687/2011 – Final Order Nos. 41126-41127/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical)
Shri M.N. Bharathi, Advocate for the Assessee
Shri r. Subramanian, AC (AR) for Revenue
ORDER
The issue arising for consideration in both these appeals being the same, they were heard together and are disposed by this common order. The parties herein are referred to as assessee and Revenue for the sake of convenience.
2. Bri

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interest and penalties. In appeal, Commissioner (Appeals) upheld the demand but however, set aside the penalties invoking section 80 of the Finance Act, 1994. Aggrieved the assessee has filed Appeal No.ST/647/2011 against confirmation of demand and department has filed Appeal No. ST/687/2011 against setting aside the penalties.
3. On behalf of the assessee, ld. counsel Shri M.N. Bharathi submitted that the marine courses are approved by Government of India authorities and no further statutory approval is required. He submitted the activity would not fall under Commercial Coaching or Training Service. The ld. counsel explained that the National Maritime Academy was set up for the purpose of providing training to the officials / employees o

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nder the definition of Commercial Training or Coaching Services and therefore the assessees are not liable to pay service tax.
4. The ld. AR Shri R. Subramanian appearing for the department reiterated the findings in the impugned order. He also pleaded that the Commissioner (Appeals) has erred in setting aside the penalties.
5. Heard both sides.
6. We have perused the records carefully. The ld. counsel has produced copies of certificates issued by the assessee for various courses. Vide letter dated 21.8.1998, the Ministry of Surface Transport has granted approval for the course of 'Personal Safety and Social Responsibility'. Again by letter dated 8.10.1998, the Ministry of Surface Transport has granted approval to conduct 'Proficiency Me

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M/s LIBERTY CHEMTRADE PVT LTD. Versus THE UNION OF INDIA
GST
2018 (6) TMI 109 – GUJARAT HIGH COURT – 2018 (12) G. S. T. L. 353 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 12-4-2018
R/SPECIAL CIVIL APPLICATION No. 5637 of 2018
GST
MR. AKIL KURESHI AND MR. B. N. KARIA, JJ.
For The Petitioner : Mr Anand Nainawati (5970)
ORAL ORDER
(PER : HONOURABLE Mr. JUSTICE AKIL KURESHI)
Petitioners have challenged clarificatory Circular issued by the Central Board of Excise & Customs date

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Kerala Co-Operative Deposit Guarantee Fund Board Versus Commissioner Of Central GST And Central Excise, Thiruvananthapuram And The Superintendent Of Central GST And Central Excise, Thiruvananthapuram
Service Tax
2018 (5) TMI 490 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 12-4-2018
W.P.(C) No.11200 of 2018
Service Tax
MR. P.B. SURESH KUMAR, J.
For The Petitioner : Sri. Ashok M. Cherian, SC
For The Respondent : Sri. Sreelal N. Warrier, SC
JUDGMENT
First petitioner is the Board constituted by the Government of Kerala for administration of the Deposit Guarantee Fund constituted under the Kerala Co-operative Deposit Guarantee Scheme, 2012 and the second petitioner is the Secretary of the first petitioner

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ther hand, the petitioners challenge the impugned summons on the ground that the first petitioner Board has no liability to pay service tax in respect of its transactions under the Finance Act, 1994.
4. It is seen that proceedings have been initiated earlier by the first respondent against the first petitioner for realisation of the service tax payable by them under Finance Act, 1994 and orders have been issued repelling the contention as to their liability to pay service tax. The first petitioner challenged the said orders in appeal before the Customs, Central Excise and Service Tax Appellate Tribunal, Bangalore in Exts.P3 and P4 appeals on the very same ground that they have no liability to pay service tax, and the said appeals are pendi

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M/s Metal Handicrafts Versus State Of U.P. And 5 Others
GST
2018 (4) TMI 1545 – ALLAHABAD HIGH COURT – 2018 (16) G. S. T. L. 557 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 12-4-2018
WRIT TAX No. 631 of 2018
GST
Hon'ble Krishna Murari And Hon'ble Ashok Kumar, JJ.
For the Petitioner : Rahul Agarwal
For the Respondent : C.S.C.,A.S.G.I.
ORDER
Heard Sri Rahul Agarwal, learned counsel for the petitioner, Sri C.B. Tripathi, learned Special Counsel for the State and Sri Vinay Kumar Pandey, learned counsel for the respondent no.2.
Petitioner is unit of a company incorporated under the Companies Act, 1956 and registered under the U.P. VAT Act with effect from 01.04.2011. After the enforcement of the GST with effect fr

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gistration number, user ID and password has been connected to the PAN number of Dheeraj Jain, who is one of the Director of the company. The migration process was completed using registration number and password allotted to the petitioner though it was incorrect.
The grievance of the petitioner is that despite repeated request, reminder and also personal meeting with the officials the error is not being rectified. Vide a letter dated 03.02.2018 sent by Joint Commissioner/Nodal Officer (GST), Moradabad Zone, Moradabad with respect to the grievance of the petitioner regarding incorrect particulars recorded in the registration number during migration but in vain.
Learned counsel for the petitioner also points out that the petitioner was orly

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dia under whose control Goods and Services Tax Network function, has assured the Court that necessary steps should be taken to redress the grievance of the petitioner.
Sri C.B. Tripathi, learned Special Counsel has also no objection to the prayer being granted.
In the interest of justice, we dispose of the writ petition commanding the respondents to carry out necessary correction in the form of the petitioner in respect of legal name, constitution of the business, the registration details, user ID and password to match with the PAN No. AACCL0519Q of the petitioner's company and, if necessary, to open the portal for carrying out the correction. The necessary steps be taken within 10 days from the date of receipt of a certified copy of

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M/s. Meena Advertisers Versus Director General of Goods & Service Tax Intelligence, The Senior Intelligence Office GGST Mumbai, The Commissioner of GST & Central Excise, The Superintendent of GST
Service Tax
2018 (4) TMI 1232 – MADRAS HIGH COURT – 2018 (16) G. S. T. L. 448 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 12-4-2018
W.P.No.3525 of 2018 & W.M.P. No.4305 of 2018
Service Tax
T. S. Sivagnanam, J.
For the Petitioner : Mr. R. Anishkumar
For the Respondents : Mr. V. Sundareswaran Mr.S.R.Sundar
ORDER
Heard Mr.R.Anishkumar, learned counsel for the petitioner, Mr.V.Sundareswara, learned Senior Standing Counsel, for the respondents 1 and 2 and Mr.S.R.Sundar, learned Senior Standing Counsel for the respondents 3 and 4.
2. The petitioner is a proprietor of an Advertising Firm under the name and style of “M/s.Meena Advertisers”. In this writ petition, the petitioner seeks for issuance of Writ of Certiorarified Mandamus to quash the summons dated 02.01.2018 issued by th

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ity. By referring to the said condition in the circular, it is submitted by the learned counsel for the petitioner that the investigation should be shifted to Chennai.
4. The learned Standing Counsel appearing for the respondents 1 and 2 submitted that the petitioner had admitted that he was rending taxable service before 01.07.2012 as well as after 01.07.2012 from places, such as, Chennai, Mumbai, Jaipur and Mangalore and he was remitting the service tax. Further it is submitted that the Centralized Service Tax Registration Certificate dated 12.01.2007 does not mention any place other than Chennai and in terms of Rule 4 (2) and (3) of the Service Tax Rules, 1994, the petitioner was required to register such premises or officers from where centralised billing or centralised accounting systems were located. The learned counsel further submits that since the petitioner were doing business in Mumbai and also issuing invoices from their Mumbai office, which was not mentioned in their Cent

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ners seek for issuance of a Writ of Mandamus to prohibit the second respondent from proceeding with the enquiry pursuant to the summons dated 06.11.2017, it is an indirect challenge to the summons. The petitioner having been unsuccessful in its earlier attempt, cannot now maintain these Writ Petitions and indirectly challenged the summons issued by the second respondent. Therefore, the petitioner is estopped from approaching this Court for an identical relief for the second time. Nevertheless, the petitioner has challenged the jurisdiction of the second respondent and this challenge is based on the decision of the Hon'ble Supreme Court in Ram Narain Bishwanth & Ors.,(supra) and in that of the Karnataka High Court in Devilog Systems India (supra).
10.The contention advanced by the learned Senior counsel appearing for the petitioners is that the goods were imported through Chennai Port cleared by the Customs Authorities at Chennai and the second respondent being an Officer situated

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eration was whether the notices issued by the Assistant Collector of Customs, Internal Audit Department were legal and valid. In the said case, the Department conceded that for the purposes of the Section 47 of the Act, the proper Officer would be the Assistant Collector of Customs, Bangalore and for Section 28(1), it can be different. The Court held that in the absence of notification dated 01.02.1963, the Audit wing at Madras was not competent to issue notice under Section 28(1) of the Act, merely because, the Madras Audit office is given the power to audit the accounts of Bangalore office. Thus, notices were held to be not issued by the proper officer attached to the jurisdictional Collectorate at Bangalore, where the goods were imported and therefore, the notices were held to be invalid.
12. As rightly pointed out by the learned Senior Standing counsel for the respondents both the decisions arose out of the proceedings under the Customs Act, where the jurisdiction of the Officer/

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he course of investigation and there is power to investigate into past cases.
13. In Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (Fera) vs. Arun Kumar Bajoria reported in (1988) 1 SCC 52, the Hon'ble Supreme Court considered as to whether the officials of the enforcement Directorate could be injuncted from arresting the respondent therein and it was held as follows:-
7.It seems rather unusual that when the aggrieved party approached the High Court challenging the order passed by a subordinate court the High Court made the position worse for the aggrieved party. The officials of the Directorate are now injuncted by the Division Bench from arresting the respondent and the time and places for carrying out the interrogations were also fixed by the Division Bench, Such kind of supervision on the enquiry or investigation under a statute is uncalled for. We have no doubt that such type of interference would impede the even course of enquiry or investigation into the

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ot tenable for the reason that in terms of Section 108, any Customs Officer is entitled to issue notice, which was considered by the Division Bench in the case of South India Exports, (supra), wherein it was held as follows:-
9. We will not deal with the question as to whether the officer, who sent the notice under Sec.108 of the Customs Act, could not have sent the same owing to his not being a Gazetted officer. A statement is made on behalf of the respondents that the concerned officer is a Gazetted officer under the notification and that statement is not seriously disputed by the other side. Even otherwise, there is no reason for us not to accept the statement made by the learned senior counsel at the Bar that all such officers, holding the post of Senior Intelligent Officer, have been given the status of the Gazetted officer. Hence that question is concluded against the appellants.
10. A glance at Sec.108 of the Customs Act, under which the summons is given, would suggest that

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(o), which reads as under:
“Sec.111. Confiscation of improperly imported goods, etc.- The following goods brought from a place outside India shall be liable to confiscation:- … … …
(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;” It is therefore clear that a Customs Officer would have all the possible power and more particularly described under Sec.108 of the Act to summon any person obviously to enquire as to whether any goods have been smuggled or not. If, therefore, any goods are brought in India, which enjoy the exemption from the payment of customs duty on certain conditions then, the Customs Officer will have all the powers to enquire as to whether the conditions, subject to which the said duty is exempted, have been

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GST Returns for past period
Query (Issue) Started By: – Krishna V Dated:- 11-4-2018 Last Reply Date:- 15-4-2018 Goods and Services Tax – GST
Got 3 Replies
GST
Sir,
A Tax payer is liable to pay duty for last 4 months and did not file returns. Now he is ready to pay with int. and file returns. If he takes registration now,
(1) is it possible to file return for the past periods
(2) if not how to handle the situation.
Request the experts to offer their suggestions to resolve the iss

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IGST on Customer Consgined item for production purpose
Query (Issue) Started By: – MistralSolutionsPrivateLimited Dated:- 11-4-2018 Last Reply Date:- 12-4-2018 Goods and Services Tax – GST
Got 4 Replies
GST
Dear All,
Overseas customer wants to send few specific components (FOC) to our production unit and wants us to integrate the components into the final product. The final product will be exported to him .
In this scenario, we will have to pay IGST at the time of import. This is clear.
The question is whether the importer can avail the ITC.
As per section, serial # 2D of section 16 of GST act, ITC is not eligible if the payment is not made to the supplier. Since we are not going to make the payment to the supplier as the c

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ion, serial # 2D of section 16 of GST act, ITC is not eligible if the payment is not made to the supplier. Since we are not going to make the payment to the supplier as the components are supplied free of cost. Please clarify in this scenario, can we avail the ITC or not.
Reply By KASTURI SETHI:
The Reply:
You will do assembling which is manfacturing process. How will you arrive at correct transactional value for the purpose of payment of GST ? May be for the purpose of export. Full value of goods including IGST to be paid, if you want ITC. This is my view. I would like oher experts to intervene.
Reply By Susheel Gupta:
The Reply:
Dear Sir
IGST on import is paid on reverse charge basis. condition of payment to supplier is not their whe

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Import Export Code (IEC) after GST
Query (Issue) Started By: – lakush jain Dated:- 11-4-2018 Last Reply Date:- 15-4-2018 Goods and Services Tax – GST
Got 5 Replies
GST
Do I need to register for IEC code or can I just use GSTIN number?
Below memo states that I can use GSTIN number but it is confusing that whether I still need to register with DGFT for IEC to consider my PAN number as IEC?
http://dgft.gov.in/Exim/2000/TN/TN17/TN0918.pdf – https://www.taxmanagementindia.com/visitor/detail_circular.asp?ID=55882&kw=Changes-in-IEC-with-the-introduction-of-GST-regd
Reply By Alkesh Jani:
The Reply:
Sir, As GSTIN itself is pan base number, you do not require to register with DGFT. which clear from the para 2 of the said TN. Moreover

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N would be the key identifier. DGFT in its Trade Notice No. 09, dated 12-6-2017 has stated that PAN would be the Import Export Code (IEC). However, while PAN is identifier at the entity level, GSTIN would be used as identifier at the transaction level for every import and export. Further, in scenarios where GSTIN is not applicable, UIN or PAN would be accepted as IEC. It is advised that all importers need to quote GSTIN in their Bills of Entry in addition to IEC. In due course of time IEC would be replaced by PAN/GSTIN.
Reply By YAGAY AND SUN:
The Reply:
Please also check Trade Notice No. 02/2018-19 dtd. 11th April 2018 Launch of facility to check status of Importer Exporter Code (IEC) application made to DGFT.
IEC holders may please not

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GIST OF RECENT PRONOUNCEMENTS ON GST (PART-VII)
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 11-4-2018

Goods and Services Tax (GST), introduced from July 1, 2017 is over nine months old now but has resulted in operational and implementation disruptions affecting all stakeholders. GST law, as drafted and legislated, is not free from the interpretational hassles. GST Council his however, making regular changes to fix the anomalies and hardships faced by taxpayers. There were no legislative changes in the Union Budget -2018.
Taxpayers have already started challenging various provisions of GST laws and rules framed there under with more than 100 writs being filed in different courts. High courts and Supreme court have taken a liberal stand so far in view of the fact that law is new and is yet evolving. However, CBIC may move to Supreme court where the verdict is against the Government. This has been indicated in Circular No. 39 dated 03.04.2018 wherein it

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on from old indirect tax regime to GST regime, some arrangements were required to be made and conditions with respect thereto be imposed.
Further, Court referred to SC ruling in Jayam & Co., where it was held that when concession in form of Input Tax Credit is given by a Statute, Legislature has power to make provision stating the form and manner, in which such concession shall be allowed and there was no right, inherent or otherwise, vested with dealers to claim ITC benefit.
* In Age Industries Pvt. Ltd v. Assistant State Tax Officer, SGST Department, Kochi, [ 2018 (1) TMI 1116 – KERALA HIGH COURT ] where the assessee had sent goods to three parties for quality appraisal on job work basis against a series of delivery challans, it was held that detention of goods for reasons that they were not accompanied by document provided under rule 138(2) of Kerala GST Rules (e way bill) and were intended to be supplied to an unregistered firm was not sustainable. Therefore, it was decided that

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mendations made by Goods and Services Tax Council are in violation of Election Code of Conduct.
* In R.R. Agro Industries v. State of U.P. – 2018 (2) TMI 608 – ALLAHABAD HIGH COURT , the assessee was transporting the consignment of goods from one State to another State and the department seized the consignment at Ghaziabad under section 129(1) of the Uttar Pradesh GST Act, 2017 but the assessee contended that the transaction in question was covered under the IGST Act, 2017 and the provisions of the UP GST Act, 2017 would not be applicable. Such consignment was not liable to be seized under the UP GST Act, 2017 and thus the assessee filed the writ petition in the High Court. It was held that in the matter of seizure under the provisions of the IGST Act, 2017, the provisions of Central GST Act, 2017, such as Section 129, would apply mutatis mutandis. The impugned order of seizure could not be held to be bad, in law, only for the reason that the wrong provision of Act had been mentioned

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nline and avail credit.
* In M/s. Arihant Superstructure Limited v. The Union of India through the Commissioner (GST) , The Commissioner, Central Goods and Service Tax, (2018) 3 TMI 1268 (Rajasthan), where the assessee filed GST Tran-1 by electronic mode but returns filed by the electronic mode are not generated on the website of the Department and thus, were not accepted. By placing reliance in the case of Padmavati Enterprise, Abicor and Binzel Technoweld Pvt. Ltd. v The Union of India & Another [(2018) 3 TMI 539 Bombay High Court] it was directed to accept the returns on provisional basis.
* In Special Ashoka Beedi Works v. GST Officer, Madanpalle 2018 (3) TMI 739 – TELANGANA AND ANDHRA PRADESH HIGH COURT, it was held that since the seized vehicle was not liable for confiscation in default of payment of tax that may be determined/already determined, no purpose will be served by keeping the said vehicle under continued detention and was ordered to be released.
* In Shankar Moha

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Export Invoice with IGST
Query (Issue) Started By: – lakush jain Dated:- 11-4-2018 Last Reply Date:- 18-4-2018 Goods and Services Tax – GST
Got 15 Replies
GST
I want to export some items to Nepal. The total amount of export is 1,00,000. I do not have any LUT yet so I will include IGST in the invoice which comes out to be 18,000.
Now my total invoice amount becomes
Net – 1,00,000
IGST – 18,000
Grand Total = 1,18,000 INR
Now the person in NEPAL will not pay this GST to me because he has nothing to do with this 18% tax which I included in the invoice. What should I show in the invoice to credit this 18,000 INR because the person in NEPAL will only pay me 1,00,000 even though the invoice amount is 1,18,000.
Please tell me how to show 18,000 pre-paid in the invoice for export with IGST?
Thanks,
Reply By Ganeshan Kalyani:
The Reply:
In Tax invoice show the breakup of basic + tax. In commercial invoice shown total amount . Tax invoice is for GST compliance purpose and commerci

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ot required physical LUT .System generate
Application Reference number which is sufficient for export of your goods.
Reply By lakush jain:
The Reply:
This ARN number generated by online LUT portal, can I use just this with transport company to send my goods or do I need any other supported documents while sending my goods?
Also do I need any Import Export Code (or IC code) before sending my goods to NEPAL or to generate LUT?
Reply By KASTURI SETHI:
The Reply:
For export also, Import Export Code is must.
Reply By lakush jain:
The Reply:
but according to below MEMO , it says that if you have GSTIN number then IEC code is not necessary ? Going forward only GSTIN number will be used for transaction. I do have GSTIN number then do I still need to register for IEC code?
http://dgft.gov.in/Exim/2000/TN/TN17/TN0918.pdf
Reply By KASTURI SETHI:
The Reply:
PAN is to be treated as IEC if the goods to be exported are fully exempted.
Reply By KASTURI SETHI:
The Reply:
Pl.read PAN based

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Number, is generated online. It further clarified that no documents are required to be physically submitted to the jurisdictional office for acceptance of LUT. The Circular also stated that if an exporter's LUT has been accepted and later if it was discovered that the exporter was ineligible to furnish a LUT in place of a bond, then the LUT will be liable for rejection and such LUT shall be deemed to have been rejected from the very beginning.
The Circular was issued upon receiving various queries from the field formations and exporters regarding a technical glitch that the LUTs submitted via online in FORM GST RFD-11 on the common portal were not visible to the jurisdictional officers of the Central Board of Indirect Taxes and Customs (CBIC) and of a few states.
Reply By Subhash Modi:
The Reply:
You need IEC, PAN, GSTIN whether the export is without payment of IGST under LUT or on payment of IGST under claim of refund, You can prepare 1) commercial invoice (international format bot

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GsT liability
Query (Issue) Started By: – Vandana M Dated:- 11-4-2018 Last Reply Date:- 15-4-2018 Goods and Services Tax – GST
Got 4 Replies
GST
I am registered in Delhi and I get a service contract from outside India.
As per the contract I have to provide services in India (Delhi and outside Delhi as well).
What will be the GST liability in this case ?
Reply By Ganeshan Kalyani:
The Reply:
What is the nature of service?
Reply By KASTURI SETHI:
The Reply:
GST applicable.
Rep

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Setting up of an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal.
Trade Notice No. 01/2018-19 Dated:- 11-4-2018 Madhya Pradesh SGST
GST – States
OFFICE OF THE COMMISSIONER, GOODS & SERVICES TAX HQRS.
GST BHAWAN, NAPIER TOWN, JABALPUR (M.P.) 482001
C.No. IV(16)02/Trade Notice/HQ/JBP/Tech/2018-19/
Trade Notice No. 01/2018-19
Dated 11.04.2018
Sub: Setting up of an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal-reg.
Kind attention of all the members of Trade/Industry/Trade Associations/Chambers of Commerce and Industry/RAC and all others concerned is invited to Circular No. 39/13/2018-GST issued under F. No. 267/7/20180.8 dated 03.04.2018 by the Deputy Commissioner GST, Central Board of Indirect Taxes and Customs, New Delhi, regarding Setting up of an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches

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plementation of the decision,
3. Scope
Problems which are proposed to be addressed through this mechanism would essentially be those which relate to Common Portal (GST Portal) and affect a large section of taxpayers.
Where the problem relates to individual taxpayer, due to localised issues such as non-availability of internet connectivity or failure of power supply, this mechanism shall not be available.
4. IT-Grievance Redressal Committee
Any issue which needs to be addressed through this mechanism Shall be identified by GSTN and the method of resolution approved by the GST Implementation Committee (GIC) which shall act as the IT Grievance Redressal Committee. In GIC meetings convened to address IT issues or IT glitches, the CEO, GSTN and the DG (Systems), CBEC shall participate in these meetings as special invitees.
5. Nodal officers and Identification of issues
5.1 GSTN, Central and State government would appoint nodal officers in requisite number to address the proble

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riat shall obtain inputs of the Law Committee, where necessary, on the proposal of the GSTN and call meeting of GIC to examine the proposal and take decision thereon.
6.2 The committee shall examine and approve the suggested solution with such modifications as may be necessary.
6.3 IT-Grievance Redressal Committee may give directions as necessary to GSTN and field formations of the tax administrations for implementation of the decision.
7. Legal issues
7.1 Where an IT related glitch has been identified as the reason for failure of a taxpayer in filing of a return or form prescribed in the law, the consequential fine and penalty would also be required to be waived. GST Council has delegated the power to the IT Grievance Redressal Committee to recommend waiver of fine or penalty, in case of an emergency, to the Government in terms of section 128 of the CGST Act, 2017 under such mitigating circumstances as are identified by the committee. All such notifications waiving fine or pen

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identified taxpayers shall be allowed to complete the process of filing TRAN-1.
8.2 The taxpayer shall not be allowed to amend the amount of credit in TRAN-1 during this process vis-ä-vis the amount of credit which was recorded by the taxpayer in the TRAN-1, which could not be filed. If needed, GSTN may request field formations of Centre and State to collect additional document/ data etc. or verify the same to identify taxpayers who should be allowed this procedure.
8.3 GSTN shall communicate directly with the taxpayers in this regard and submit a final report to GIC about the number of TRAN-1s filed and submitted through this process.
8.4 The taxpayers shall complete the process of filing of TRAN-1 stuck due to IT glitches, as discussed above, by 30th April 2018 and the process of completing filing of GSTR-3B which could not be filed for such TRAN-1 shall be completed by 31st May 2018.
9. Shri Manish Kumar Jaiswal, Joint Commissioner is designated as Nodal Officer to rece

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In Re : M/s Loyalty Solutions and Research Private Limited
GST
2018 (7) TMI 1421 – AUTHORITY FOR ADVANCE RULING – HARYANA – 2018 (15) G. S. T. L. 123 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING – HARYANA – AAR
Dated:- 11-4-2018
ADVANCE RULING NO. HAR/HAAR/R/2017/18/4
GST
Sangeeta Karmakar (Member CGST) and Vijay Kumar Singh (Member)
Present for the applicant : Sh Sandeep Chilana & Sh Atulya Kishore, Advocate (POA)
Ruling
The applicant namely M/s Loyalty Solutions and Research Pvt. Ltd. (LSRPL). owns and operates a reward point based loyalty programme that is integrated towards it partners and their customers. Under this programme, LSRPL is providing certain services to its clients/partner, such as M/s Nice Chemicals Pvt. Ltd. (NICE). The applicant is managing the customer loyalty programme for its clients/partners such as NICE, which is based on issuance of reward points, also known as payback points by the applicant to end customers. These reward/payment poi

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tomers, while making future purchases of products of ''partners”.
c) in pursuance to these reward points management, “partner” transfers amount equivalent to 0.25 of INR, per reward point, as issuance charges to LSRPL
d) Whenever any purchase is made by end customer, by using/redeeming rewards points, LSRPL transfers amount equivalent to 0.25 INR per reward point used to the concerned store and the concerned store gives discounts the payment to be received from end customer to this extent.
e) The rewards points have a validity period of 36 months, meaning thereby that the customer cannot redeem these reward points, after expiry of 36 months from the date of issuance.
f) It may happen that the customer does not or is not able to redeem the rewards points, within their validity period of 36 months from the date of issue.
g) in such cases, as per the agreement, the rewards points are forfeited by LSRPL and the amount equivalent to 0 25 INR per reward point is being retained b

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of the end customers to redeem the payback points within their validity period can be treated as “supply” of any other goods or services and consequently be chargeable to GST under the CGST, HGST or IGST Act?
Comments of the concerned officer U/S 98(1) OF THE CGST/HGST ACT, 2017
5. The Deputy Excise & Taxation Commissioner (ST), Gurgaon (East), vide letter No.3086 dt.22.03.18, submitted the requisite comments on both the above questions raised by the applicant, as under:
(a) The applicant recovers the underlying value of 0.25 INR per reward point to the Customers of the partners enrolled under the loyalty programme and on issuance of such points the applicant charges issuance fees . However , the applicant nowhere submits that the amount received by the applicant in return of issuing points are returned back to the partners when such points are not used within validity period. Therefore, it is not an actionable claim as the applicant fails to meet all the characteristics as stated

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rs Therefore, the above stated transaction will attract GST.
Record of Personal Hearing
6. Personal hearing in the case was conducted on 11.04.2018 which was attended by Sh. Sandeep Chilana & Sh. Atulya Kishore, Advocates (POA). They had reiterated the submissions made in their application. After detailed discussions the application was admitted being covered by clause (e) & (g) of section 97 (2) of the CGST/HGST Act 2017
On the merit of the case they were heard in detail. Their main contention is that the redemption points issued to their clients for further distribution to the participant/end customers is in the nature of actionable claim and as per exclusion entry 6 of schedule-III of the CGST/HGST Act, these are not leviable to GST. Any amount of forfeited redemption points thus, also does not attract any GST. After hearing them in detail the judgment was reserved which Is being released today
DISCUSSIONS AND FINDINGS OF THE AUTHORITY
7. As per Section 2(i) of the CGST/HGST Ac

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s or transactions which shall be treated neither as supply of goods nor as supply of services. Point 6 in schedule III includes actionable claims other than lottery, betting and gambling. Therefore, such actionable claims which are not lottery, betting, gambling, though are goods under Section 2(52) of the CGST Act, but are excluded from levy of GST in terms of Schedule III to CGST Act.
9. Rewards points earned by the end customers for purchase of products of “partners” to loyalty programme are indeed “actionable claim”. However, the question arises that, when these reward/payback points are not redeemed by the customer for the reasons that their validity period has expired, do such reward points continue to be actionable claim?
10. In this regard, it is observed that after the expiry of validity date, these reward/payback point can no longer be redeemed/encashed by the end customer and the end customer loses any right over them. Also, as per the definition of “actionable claim”, giv

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o the activities of their providing services to the said “partners” through the loyalty programmes run by LSRPL
12. Even from the clauses of agreement between LSRPL and the “partners”, it is evident money equivalent of reward points expired/ not redeemed by customers/forfeited after expiry, would be retained by LSRPL. Thus, the agreement itself provides for revenue to LSRPL, in shape of retaining the issuance fee. In the event of the forfeiture, the Issuance fee received by the applicant from the partner in relation to such lapsed payment points, is retained by the LSRPL. Thus, the agreement between LSRPL and the partner specifically provides that it is actually the issuance fee that is being retained by LSRPL in the event of non-redemption of loyalty points by customers
Thus, this amount is liable to be considered as consideration for supply of services by LSRPL to its partners in the normal course of business and becomes part of remuneration for LSRPL for providing services.
13. L

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In Re: M/s. Esprit India Private Limited
GST
2018 (7) TMI 1334 – AUTHORITY FOR ADVANCE RULINGS HARYANA – 2018 (15) G. S. T. L. 132 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS HARYANA – AAR
Dated:- 11-4-2018
AAR No. HAR/HAAR/R/2018-19/6
GST
SANGEETA KARMAKAR AND VIJAY KUMAR SINGH, MEMBER
Present for the Applicant Sh. Nitin Agrawal.
1. The applicant namely M/s. Esprit India is a subsidiary of M/s. Esprit De Corp. (Far East) Limited, Hong Kong (EDCFE) which in turn is a fellow subsidiary of M/s. Esprit Europe Service GmbH, Germany ('Esprit Germany'). EDCFE is a limited company incorporated in Hong Kong, acts as sourcing service provider for Esprit Germany, EDCFE assists Esprit Germany in sourcing (on a worldwide basis)) of goods which includes wearing apparel, shoe & accessories and fabric.
2. EOCFE has engaged Esprit India as a sub-contractor to provide sourcing services for the goods on a non-exclusive basis in India Esprit Germany. Pursuant to the said a

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Esprit India performs its functions as a sub-sourcing contractor of and does not purchase the goods or trade its own name.
It assists in protection of trademark which includes ensuring that suppliers execute all trademark confirmation letters, comply with the trademark protection procedures and comply with the sourcing principles as adopted by Esprit Germany/EDCFE.
3.
Identification of supplier
EDCFE provide guidelines and instructions to Esprit India regarding vendor selection process
Esprit India responsible for collecting data for the purpose of vendor evaluation, Esprit India undertakes vendor evaluation on various parameters including experience, reputation, quality of product, price etc. based on which the vendor is selected. Esprit India is also responsible for maintaining the existing and new supplier base in India.
4.
Negotiation with the suppliers
Esprit Germany directly negotiate and contract with supplier in respect of goods sourced from India.
Esprit India only

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Esprit Germany into binding contract of purchase of goods.
8.
Involving and payment
Suppliers directly invoice to Esprit Macao and it makes payment directly to the suppliers
No role in the invoicing and payment process as all invoices are sent directly by suppliers to Esprit Germany without any involvement of Esprit India
4. Questions on which ruling has been sought by the applicant. are as under:
(i) Taxability of above stated services provided by Esprit India to its associate concern in Hong Kong EDCFE under GST regime.
(ii) Whether the above stated services provided by Esprit are covered under Export of Services having Zero rated taxability,
(iii) Whether Esprit India is eligible for seeking refund of GST for the taxes paid on input services or goods or both.
RECORDS OF PERSONAL HEARING – 2nd PROVISO TO SECTION 98(2) OF CGST/HGST ACT, 2017
5. Personal hearing in the instant case was conducted on 09.04.2018, which was attended by Sh. Nitin Agrawal Power of Attorney Hold

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rs and advice on the best available combination of price, quality and delivery of the goods for Esprit Germnay.
998371 Market research services. This service code includes market analysis, analysis of competition and the behaviour of consumers, use of research monographs, statistics, econometric models surveys, etc.
Taxable under forward charge @ 18% [S.No.21(ii) of Notification No. 11/2017-Cental Tax (Rate) dt. 28.07.2017]
2.
Purchase of goods and trademark protection
Esprit Germany directly purchases goods from Indian suppliers
Esprit India performs its functions as a sub-sourcing contractor of EDCFE and does not purchase the goods or trade in its own name.
It assists in protection of trademark which includes ensuring that all suppliers execute all trademark confirmation letters, comply with the trademark protection procedures and comply with the sourcing principals as adopted by Esprit Germany/EDCFE.
998599 Other support services n.e.c.
Business services of intermediaries a

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te) dt. 28.07.2017]
4.
Negotiation with the suppliers
Esprit Germany directly negotiate and contract with supplier in respect of goods sourced from India.
Esprit India only communicates the terms and conditions to the extent of instructions and requirements received from Esprit Germany {through EDCEF) but is not involved in negotiation.
998599 Other support services n.e.c.
Business service of intermediaries and brokers;
Taxable under forward charge @ 18% [S.No. 23(ii) of Notification No. 11/2017-Central Tax (Rate) dt. 28.07.2017]
5.
Inspection quality control
Esprit Germany and DCFE, frame guidelines for quality control procedure to be adopted during manufacturing, stock keeping in warehouse and transportation
Esprit India based on the guidelines received from EDCFE conducts quality checks at various to stages of production, it also checks whether the goods meet the specification, quality, delivery time, and other requirement of Esprit Germany.
998311 Management consulting

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e) dt. 28.07.2017]
7. As regards the question of above stated services provided by Esprit India, also being covered under export of services having zero rated taxability, it is observed that “zero rated supply” has been defined under Section 16(1) of the integrated Goods and Services Act, 2017, as under:
“zero rated supply” means any of the following supplies of goods or services or both, namely:-
(a) export of goods or services or both; or
(b) supply of goods or services or both to a Special Economic Zone developer
or a Special Economic Zone unit.
(2) Subject to the provisions of sub-section (5), of section 17 of the Central Goods and Services Tax Act, credit of input tax may be availed for making zero-rated supplies, notwithstanding that such supply be exempt supply.
(3) registered person making zero toted supply shaft be eligible to claim refund under either of the following options, namely:-
(a) he may supply goods or services or both under bond or Letter of Undertakin

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nt of service are not merely establishments of a distinct person in accordance with Explanation 1 in section 8;
From the above, it is evident that whether a transaction is “export of services” or not, is dependent upon the tact as to whether the place of supply of service is out of India or not. Consequently, if the advance ruling authority proceeds ahead with examination and consideration of this fact, discussions and findings on the aspect of “place of supply” will be inevitable. Whereas, Section 97(2) of the CGST/HGST Act, 2017 empowers the Advance Riding Authority to decide the issues, which are as follows:-
(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 credit of paid or deemed to have been paid;
(e) determination of the liability to pay tax on any goods or services or both;
(f) whethe

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nder is the competent authority for the same.
However, with regard to giving Advance Ruling on this question, it is observed that as the earlier question relating to export of services is dependent upon the definition of “place of supply”, which is out of jurisdiction of the authority, this instant question too, being corollary to earlier question, cannot be taken up for pronouncing any ruling due to lack of jurisdiction.
ADVANCE RULING UNDER SECTION 98 OF THE CGST/HGST ACT, 2017
9.1. The services provided by Esprit India to its associate concern in Hong Kong EDCFE are taxable supplies, as discussed in para 6 above.
9.2. The above stated services being taxable supplies, the question as to whether they qualify as “export of services” and accordingly “zero rated supply”, is out of jurisdiction or this authority, in view above discussions in para 7.
9.3. The same proposition, as discussed in para 9.2 above, applies to the question as to whether Esprit India is eligible for seeking re

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In Re: M/s. AOV Agro Food Pvt. Ltd.
GST
2018 (7) TMI 1333 – AUTHORITY FOR ADVANCE RULINGS HARYANA – 2018 (15) G. S. T. L. 112 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS HARYANA – AAR
Dated:- 11-4-2018
AAR No. HAR/HAAR/R/2017-18/7
GST
SANGEETA KARMAKAR AND VIJAY KUMAR SINGH, MEMBER
Present for the Applicant: Sh. Ashok Misra, C.A. Sh. Aman Sharma, Manager
Present for the department: Sh. Rakesh Dhaiya, ETO, Mewat.
Factual Background
M/s. AOV Agro Food Pvt. Ltd. ('AOV') is engaged in slaughtering and processing of poultry/sheep/goat meat and supplies products export and domestic market and Army against tender.
M/s. AOV supplies to Army Sheep/goat meat in carcasses of different weight and size in frozen Slate and similarly whole chicken of different weight and size is also supplied in frozen State. The packing and dispatch pattern for both mutton and chicken is claimed to be as under:-
(i) Mutton
Each frozen carcass is put in LDPE bag (primary packing) w

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f chapter heading 0204 and 0207, frozen and put in unit containers were taxable @ 12%.
Vide schedule-I of notification no. 43/2017 Integrated Tax (rate) dated 14.11.2017 the product of chapter heading 0204 and 0207, other than fresh or chilled and in unit container and bearing a registered brand name or bearing a brand name on which actionable claim is available, were made taxable @ 5%.
In view of the above, it is the applicant's case that the dispatches made by them in LDPF/HDPE bags, both primary well as secondary packing do not qualify as unit container and therefore their product is not leviable to tax under GST.
Comment of the Officer under section 98 (1) of the CGST, HGST Act 2017
The Deputy Excise & Taxation Commissioner (ST), Nuh (Mewat) vide his letter no. 577, dated 8.03.2018 as slated that the applicant dealer supplies frozen meat backed in PDPE bags in the shape of unit container. Since the applicant is supplying his goods packed in bags hence it qualifies as supply

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n to mean a package designed to hold a pre-determined quantity or number which is indicated on such package. The applicant had cited several case laws where the definition of unit container had been discussed and adjudicated.
After hearing and discussion in detail. the decision was reserved which is being released today.
Discussion and finding of the authority
GST is chargeable as reference to value and at applicable rates. For the purpose of building a point of view reference is made to the IGST rate schedule.
W.e.f. from 1st July, 2017 till 14th November, 2017
Schedule II of the Notification no. 1/2017-Integrated Tax (rate) dated 28th June, 2017 deals with the products which are subject to 12% GST and entry No. 4 and 7 which pertain to sheep meat and poultry meat respectively are provided below:-
Schedule-II
Sr. No.
Chapter/Heading/Sub-heading/Tariff item
Description of Goods
4.
0204
Meat of sheep or goats, frozen and put up in unit containers
7.
0207
Meat and edible o

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onwards.
Schedule I of the Notification no. 43/2017-Integrated Tax (rate) dated 14th November, 2017 deals with the products which are subject to 5% GST and entry No. 1 which pertain to sheep meat and poultry meat are provided below:-
Schedule-I         
Sr. No.
Chapter/Heading/Sub-heading/Tariff item
Description of Goods
1.
0204
0207
All goods (other than fresh or chilled) and put up in unit container and-
(a) bearing a registered brand name;
(b) bearing a brand name on which actionable claim or enforceable right in court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been voluntarily], subject to conditions as in the annexure I]”;
A reading of the above mentioned entries would reveal that the items mentioned in tariff heading 0204 or 0207 [other than fresh or chilled] would be exigible to tax @ 5% if these are put up in a 'unit container' and bears a b

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forceable right in court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been voluntarily], subject to conditions as in the annexure I]”;
A conjoint reading of the extracts of the above mentioned notifications reveal that on products of Chapter/Heading/Sub-heading/TarifT item 0204 and 0207 GST is chargeable subject to fulfilment of conditions as tabulated below:
W.e.f. 1st July. 2017 to 14th November, 2017
* Must be frozen
* Must be packed in unit container
W.e.f. 15th November, 2017
* Must be frozen
* Must he packed in unit container
* Must bear a brand.
Since the applicant has sought advance ruling only on the question of taxability of the product viz a viz the packing being considered as unit container or not, it is worth understanding the meaning of the word unit container. As per the explanation appended with the above stated notification:-
'the phrase' 'unit container' means a package, whet

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ity is mentioned. Thus, the packing of the frozen carcasses and chicken done by them is only a medium of delivery and since these are not in pre-determined units, these packing cannot be termed as 'Unit Containers'
To substantiate their view regarding unit container the applicant had cited several case laws. Reliance is placed on the case of CCE. Vs Shalimar Super Foods [2007 (210) ELT 695 (Tri-Mumbai) and Surya Agro Oils Ltd. vs CCE, Indore, 2000 (116) E.L.T. 514.
In CCE. Vs Shalimar Super Foods [2007 (210) ELT 695 (Tri-Mumbai) the Hon'ble bench had considered the question of 'Unit Container' and observed in para 3:
 “3….However, unit container, as per the definitions contained in several dictionaries, is a container containing pre-determined uniform quantities of contents whereas the items cleared by the respondents were not of uniform quantities. For this reason the goods in question which were cleared in plastic bags not sealed and not containing pre-print

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ax (Rate) dated 28th June 2017 a unit container means a package, whether or small (for example tin, can, jar, box, bottle, bag, carton, drum. barrel or canister) designed to hold a pre-determined quantity or number, which is indicated on such package. The explanation itself suggests that the make of the container should be such which can hold a predetermined quantity or number. It should he such that when packed it holds the predetermined quantity or the number for which it is designed. As shown to us the packaging by the applicant can weigh 10 Kgs or 11 Kgs or for that matter 10.5 or 10.25 kgs. depending upon the weight of two frozen carcasses or weight or 20-25 frozen chickens, as the case may be, packed in secondary packaging. Neither the packaging is uniform or standardised nor the packages are designed to hold a predetermined quantity.
Advance ruling under section 98 or the CGST/HGST Act 2017
In the backdrop of above discussion and findings it is ruled that
(a) The whole (sheep

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