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More Judgements

2018-VIL-709-CESTAT-MUM-CE  | CESTAT CENTRAL EXCISE

Central Excise - manufacture of Sugar & Molasses – duty demanded under Rule 6 of the CCR, 2004 on the ground that appellant have not paid duty on sale of “Bagasse” under Rule 6(3)(i) of CCR, 2004 - The adjudicating authority dropped the demand on the waste/byproduct, “Bagasse” for the period prior to 01.03.2015 but confirmed the demand for the period from March, 2015 to June, 2015, in view of the amendment made in Rule 6 of CCR, 2004 w.e.f. 01.03.2015 – HELD - bagasse is agricultural waste of sugarcane and the waste and residue of agricultural products, during the process of manufacture of goods cannot be said ... [Read more]

Central Excise - manufacture of Sugar & Molasses – duty demanded under Rule 6 of the CCR, 2004 on the ground that appellant have not paid duty on sale of “Bagasse” under Rule 6(3)(i) of CCR, 2004 - The adjudicating authority dropped the demand on the waste/byproduct, “Bagasse” for the period prior to 01.03.2015 but confirmed the demand for the period from March, 2015 to June, 2015, in view of the amendment made in Rule 6 of CCR, 2004 w.e.f. 01.03.2015 – HELD - bagasse is agricultural waste of sugarcane and the waste and residue of agricultural products, during the process of manufacture of goods cannot be said to be result of any process. There is no manufacturing process involved in Bagasse’s production. “Bagasse” is not ‘goods’ but merely a waste or by-product, therefore Rule 6 of CCR, 2004 is not applicable - the Board’s Circular dated 25.04.2016 has no application on the facts of the case, firstly no Circular can override the Rules as well as the law laid down by the Hon'ble Supreme Court and the orders of this Tribunal, and secondly the said Circular was issued on 25.04.2016 i.e. on a later date, whereas the period in dispute is March, 2015 to June, 2015 - this Tribunal has taken a consistent view that Rule 6 of CENVAT Credit Rules, 2004 has no application in given facts - the impugned order is set aside and appeals filed by the appellant are allowed [Read less]

2018-VIL-711-CESTAT-CHD-CE  | CESTAT CENTRAL EXCISE

Central Excise - The appellant was affixing MRP on the cartons on the goods sold by them but it paying duty under Section 4 of the CEA Act, 1944 - demand of duty in terms of Section 4(A) of the Act by formula Price List + 35% value addition – HELD - The assessable value has been arrived as per formula i.e. Price List + 35% value addition, whereas, in terms of Section 4(A) of the Act, the assesseable value is to be arrived by adding 35% to the cost of the product. As MRP was not available during the course of investigation, therefore, the matter needs examination at the end of the adjudicating authority to arrive the corr... [Read more]

Central Excise - The appellant was affixing MRP on the cartons on the goods sold by them but it paying duty under Section 4 of the CEA Act, 1944 - demand of duty in terms of Section 4(A) of the Act by formula Price List + 35% value addition – HELD - The assessable value has been arrived as per formula i.e. Price List + 35% value addition, whereas, in terms of Section 4(A) of the Act, the assesseable value is to be arrived by adding 35% to the cost of the product. As MRP was not available during the course of investigation, therefore, the matter needs examination at the end of the adjudicating authority to arrive the correct assessable value of the goods in terms of Section 4(A) of the Act by taking cost of goods +35% and price list cannot be taken cost of goods - the impugned order is set aside and matter remanded to the adjudicating to arrive the assessable value by adding 35% in the cost of the goods – appeal allowed by remand [Read less]

2018-VIL-710-CESTAT-AHM-CU  | CESTAT Case CUSTOMS

Customs - Appellant imported certain machinery and paid amount towards the technical know-how - demand of customs duty by including the value of know-how license and rights in the assessable value of the goods imported under EPCG scheme - grant of license for permission to use the ‘Spool Technology (VFY)’ – assessee claim of revenue neutral situation - HELD - the parties of the agreement have not been described as buyer and seller of goods. The parties have been described as licensor and licensee. Had it been a simple sale of ‘know how’ or document/ goods as argued by the appellant then the two parties of the agr... [Read more]

Customs - Appellant imported certain machinery and paid amount towards the technical know-how - demand of customs duty by including the value of know-how license and rights in the assessable value of the goods imported under EPCG scheme - grant of license for permission to use the ‘Spool Technology (VFY)’ – assessee claim of revenue neutral situation - HELD - the parties of the agreement have not been described as buyer and seller of goods. The parties have been described as licensor and licensee. Had it been a simple sale of ‘know how’ or document/ goods as argued by the appellant then the two parties of the agreement would have been described as buyer and seller. The description licensor and licensee itself means that the agreement is not merely a sale of goods but it is essentially a grant of license - the agreement is essentially a grant of license to use the technical know-how. It is not a sale of know-how, it is not a sale of document but a license to use the technology - know-how consists of not only the manner in which the factory is to be set up but also basic design and process know-how as well as physical chemical and process parameters. Thus, the know-how consists of the entire technology involved in manufacturing. The agreement is not to transfer of sale the entire technology to the appellant but it only permits or licenses the appellant to use the said technology in the said consideration - it is apparent that the technology know-how license agreement is essentially an agreement that permits the appellant to use the Spool Technology (VFY). The machinery imported is essentially a machinery which uses Spool Technology and the said machine cannot be used without a license to use the said ‘Spool Technology’ - credit would not be available immediately but over a period as the goods are not inputs but capital goods. Thus, this does not result in a revenue neutral situation. Moreover, the liability to pay would arise at the time of import but the said credit can be used only after the plant is installed and production starts. Thus, it is not a revenue neutral situation – impugned order is upheld and assessee appeal is dismissed [Read less]

2018-VIL-702-CESTAT-HYD-ST  | CESTAT SERVICE TAX

Service Tax – Levy of interest on short payment of service tax - supply of Ready Mix Cement (RMC) - demand of interest on delayed payment of service tax on advances received by them from their customers – Period of limitation – HELD - the service tax law does not provide any limitation for demand of interest on service tax - the demand of interest is liable to be set aside on the ground of limitation of time because not only is there no evidence of elements required to invoke extended period in the SCN, there is not even any allegation that the interest has not been paid by reasons of fraud, collusion, willful missta... [Read more]

Service Tax – Levy of interest on short payment of service tax - supply of Ready Mix Cement (RMC) - demand of interest on delayed payment of service tax on advances received by them from their customers – Period of limitation – HELD - the service tax law does not provide any limitation for demand of interest on service tax - the demand of interest is liable to be set aside on the ground of limitation of time because not only is there no evidence of elements required to invoke extended period in the SCN, there is not even any allegation that the interest has not been paid by reasons of fraud, collusion, willful misstatements etc. - The impugned order is set aside and appeal is allowed [Read less]

2018-VIL-708-CESTAT-AHM-ST  | CESTAT SERVICE TAX

Service Tax - the Appellants had availed Cenvat Credit in the course of constructing the real estate projects - whether the Appellants are required to reverse any portion of the Cenvat Credit, after receipt of Completion Certificate for the projects as they will not be discharging Service Tax liability on properties sold thereafter, where no advance was received prior to receipt of Completion Certificate - Whether receipt of consideration for residential units sold as immovable property after receipt of completion certificate amounts to providing exempted service and whether the Appellants are liable to pay 8%/10% amount o... [Read more]

Service Tax - the Appellants had availed Cenvat Credit in the course of constructing the real estate projects - whether the Appellants are required to reverse any portion of the Cenvat Credit, after receipt of Completion Certificate for the projects as they will not be discharging Service Tax liability on properties sold thereafter, where no advance was received prior to receipt of Completion Certificate - Whether receipt of consideration for residential units sold as immovable property after receipt of completion certificate amounts to providing exempted service and whether the Appellants are liable to pay 8%/10% amount of exempted value under Rule 6 of the CCR, 04 – HELD - having taken only proportionate Credit on input services after receipt of Completion certificate, duly backed by CA certificate and certified work sheets for the proportionate credits availed after Completion Certificate and also demonstrated on sample basis during the course of hearing, the Appellants have fulfilled its obligation under Rule 3 of the CCR, 04 r/w Rule 6 thereof and as such, they are not liable to pay any amount equal to 8%/10% of the “sale price of immovable property” after receipt of completion certificate under Rule 6 of the CCR, 2004 - entitlement to credit has to be examined only at the time of receipt of input service and once it is found to be availed at a time when output service is wholly taxable, and the said credit is availed legitimately, the same cannot be denied and/or recovered unless specific machinery provisions are made in this regard - even if one assumed sale of immovable property after Completion Certificate to be “exempt service”, even then there is no legal requirement to reverse any credit availed on “input services” in the past (prior to obtaining Completion Certificate) - the availment of cenvat credit by the appellant is absolutely legal and correct in accordance with Rule 4(7) of CCR, 2004. At the time of taking credit, there is no existence of any exempted service, therefore, there is no application of Rule 6 - the appellant have either not availed the cenvat credit in respect of the services received after obtaining the completion certificate in respect of exempted service or availed proportionate credit attributed to the taxable output service. For this reason also Rule 6 has no application for the period after obtaining the completion Certificate - The Appellants can be said to have “maintained proper separate accounts” as required under Rule 6 of the CCR, 2004, having availed credit only to the extent input services in taxable activity, on the scientific basis after obtaining Completion Certificate - the Appellants are eligible to seek refund of the amount paid under protest towards Credit availed from 2010 till receipt of completion certificate, based on CERA audit objection - The assessee appeals are allowed [Read less]

2018-VIL-468-BOM  | High Court SGST

Central Goods and Services Tax Act, 2017 – petitioner distributed Input Credit amongst branches/other locations - though the revised TRANS-1 was accepted, the distribution of the credit available with branches/locations was not reflected on the GST website - Petitioners' grievance that in such cases if the credit is not availed of prior to 20th October 2018, it would get lapsed – petitioner seeking suitable direction – HELD - the undisputed position is that the Petitioners are entitled to distribute the Input Credit available with it as on 1st July 2017 amongst its branches / locations. This distribution has not been... [Read more]

Central Goods and Services Tax Act, 2017 – petitioner distributed Input Credit amongst branches/other locations - though the revised TRANS-1 was accepted, the distribution of the credit available with branches/locations was not reflected on the GST website - Petitioners' grievance that in such cases if the credit is not availed of prior to 20th October 2018, it would get lapsed – petitioner seeking suitable direction – HELD - the undisputed position is that the Petitioners are entitled to distribute the Input Credit available with it as on 1st July 2017 amongst its branches / locations. This distribution has not been possible on account of technical problems of the Respondents. Further the availment of input tax credit available on 1st July 2017 has to be done on or before 20th October 2018 in view of Section 16(4) of the Act. Thus, it is likely that the petitioners may be deprived of the input tax credit available with it on 1st July 2017, if the same is not taken before 20th October 2018 - Thus, pending the final disposal of the Petition, as the system is not accepting it, the Petitioners would manually file with the Respondents a copy of its revised TRANS-1, ITC-01 and also GSTR-3B at Mumbai in physical form - On the basis of the revised TRANS-1, ITC-02 and the GSTR-3B at Mumbai, the Petitioners will be entitled to take the credit reduced at Mumbai (Maharashtra) to its locations in Delhi, Gujarat and Karnataka subject to the satisfaction of the Commissioner having jurisdiction over those locations [Read less]

2018-VIL-469-GUJ  | High Court VAT

Gujarat Entry Tax Act, 2001 - Levy and assessment of Entry tax in respect of import of Hydraulic Excavator – petitioner seeking review of M H KHANUSIYA Case - amount of tax and other amounts that the petitioner must deposit before the petitioner can insist on the assessment - The petitioner’s case that such amount is only the principal tax demand. The Department’s view that such amount would include the penalty as well – HELD – the High Court required the petitioner, at this stage to deposit the principal sum of tax, but not the penalty. Ordinarily even otherwise, there cannot be demand of penalty even before ass... [Read more]

Gujarat Entry Tax Act, 2001 - Levy and assessment of Entry tax in respect of import of Hydraulic Excavator – petitioner seeking review of M H KHANUSIYA Case - amount of tax and other amounts that the petitioner must deposit before the petitioner can insist on the assessment - The petitioner’s case that such amount is only the principal tax demand. The Department’s view that such amount would include the penalty as well – HELD – the High Court required the petitioner, at this stage to deposit the principal sum of tax, but not the penalty. Ordinarily even otherwise, there cannot be demand of penalty even before assessment is made and penalty imposed - Once the petitioner therefore abides by the directions of the Court by filing return-cum-challan and also deposits the principal tax demanded in the demand notices, the mechanism of assessment being completed in accordance with law, would operate. It goes without saying that once assessment is complete, all statutory rights and remedies would be available to the assessee. At that stage, if the penalty is confirmed, the Department could assert its right to recover the same - This clarification would obviate the requirement of review of the judgment [Read less]

2018-VIL-456-ALH  | High Court VAT

U.P. VAT Act, 2008 - Classification of ‘Harpic’ and ‘Lizol’ – whether residuary item or falling under Schedule-II, Part-A - Revenue appeal seeking classification under Residuary entry - Pesticides, Insecticides, fungicides, herbicides, weedicides - HELD - In view of decisions of Apex Court and High Courts on the same issue is decided in favour of the Assessee by all the High Courts and Supreme Court, the revision petition filed by the department is dismissed as no question of law is involved - Harpic and Lizol are covered under Schedule-II, Part A, Entry No.20 of UP VAT Act and as such the same are classified ite... [Read more]

U.P. VAT Act, 2008 - Classification of ‘Harpic’ and ‘Lizol’ – whether residuary item or falling under Schedule-II, Part-A - Revenue appeal seeking classification under Residuary entry - Pesticides, Insecticides, fungicides, herbicides, weedicides - HELD - In view of decisions of Apex Court and High Courts on the same issue is decided in favour of the Assessee by all the High Courts and Supreme Court, the revision petition filed by the department is dismissed as no question of law is involved - Harpic and Lizol are covered under Schedule-II, Part A, Entry No.20 of UP VAT Act and as such the same are classified items – the Tribunal order is upheld and revenue appeal is dismissed [Read less]

2018-VIL-705-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax - The Appellants are providing various services under Business Auxiliary Services to their overseas Parent Company - Appellant remits the net charge to the Parent Company after deducting its service charges/commission – rejection of refund claim under the Export of Service Rules, 2005 for rebate of Service Tax paid on export of services – HELD - even the procedure of retaining the service charge or commission amount and only remitting the remaining portion of the proceeds in foreign exchange will have to be necessarily treated as saving of foreign exchange and by implication is akin to receipt of monies in ... [Read more]

Service Tax - The Appellants are providing various services under Business Auxiliary Services to their overseas Parent Company - Appellant remits the net charge to the Parent Company after deducting its service charges/commission – rejection of refund claim under the Export of Service Rules, 2005 for rebate of Service Tax paid on export of services – HELD - even the procedure of retaining the service charge or commission amount and only remitting the remaining portion of the proceeds in foreign exchange will have to be necessarily treated as saving of foreign exchange and by implication is akin to receipt of monies in convertible foreign exchange. It is nothing but saving of foreign exchange as the Appellant has retained that portion and not sent the same in foreign exchange to the Parent Company along with other said proceeds. Outflow of foreign exchange has been reduced to the extent of commission/service charge retained by the Appellant within India. Such retention has to be necessarily treated as saving of foreign exchange. Therefore the appellant is entitled for refund - the appeal filed by the appellant is allowed [Read less]

2018-VIL-466-GUJ-ST  | High Court SERVICE TAX

Service Tax - petitioner's request is for granting installments for paying the service tax dues while the petitioner's nine bank accounts have been frozen – No show by Government advocates - HELD - For the respondents, this may be a small issue but for the petitioner it is not - The respondents cannot expect multiple notices or reminders from the Court for their appearances. This is not one off incident. Routinely, we find that there is a communication gap between the authorities and the panel advocates or the Government Standing Counsel in Central Excise and Customs department and the Union of India organization. Many t... [Read more]

Service Tax - petitioner's request is for granting installments for paying the service tax dues while the petitioner's nine bank accounts have been frozen – No show by Government advocates - HELD - For the respondents, this may be a small issue but for the petitioner it is not - The respondents cannot expect multiple notices or reminders from the Court for their appearances. This is not one off incident. Routinely, we find that there is a communication gap between the authorities and the panel advocates or the Government Standing Counsel in Central Excise and Customs department and the Union of India organization. Many times on the returnable dates or for few dates thereafter, there is no appearance of the official respondents. Filing of reply thereafter takes long time. Even after filing the reply when the matters are called out, we often do not find the presence of the Government advocates. Even when the matters are taken up for hearing often times, the Government advocates need to revert back to the respondents for further instructions since, the replies filed, sometimes do not cover all issues - The sum-total of the entire exercise is that the Court is left with very poor assistance on behalf of such respondents and this is a routine matter - freezing order of the petitioner's bank accounts is suspended – permission to file reply granted subject to payment of Rupees Ten Thousand with State Legal Services authority. It will be open for the Government to consider whether such cost should be recovered from the erring official if found negligent in any manner [Read less]

2018-VIL-465-GAU-ST  | High Court SERVICE TAX

Service Tax/GST – validity of proceeding initiated under Section 73(i) of the Finance Act of 1994 for failure on the part of the petitioners from paying the service tax – challenge to demand-cum-show cause notices on the ground that in view of the provisions of Section 173 of the CGST Act, 2017 proceedings initiated under Section 73(i) of the Finance Act of 1994 are no longer sustainable – Repeal and Saving of Finance Act, 1994 – HELD - Once the statute stood omitted with a savings clause, the savings clause would not render it impermissible for the proceedings initiated/to be initiated under Chapter V of the Finan... [Read more]

Service Tax/GST – validity of proceeding initiated under Section 73(i) of the Finance Act of 1994 for failure on the part of the petitioners from paying the service tax – challenge to demand-cum-show cause notices on the ground that in view of the provisions of Section 173 of the CGST Act, 2017 proceedings initiated under Section 73(i) of the Finance Act of 1994 are no longer sustainable – Repeal and Saving of Finance Act, 1994 – HELD - Once the statute stood omitted with a savings clause, the savings clause would not render it impermissible for the proceedings initiated/to be initiated under Chapter V of the Finance Act of 1994 - Section 174(2)(e) of CGST Act, 2017 is a savings clause in respect of any investigation, enquiry etc., that was/to be instituted under Chapter V of the Finance Act of 1994. A conjoint reading of Section 173 and 174(2)(e) would show that while bringing an omission to the provision of Chapter V of the Finance Act of 1994, a savings clause for continuing with the proceedings initiated/to be initiated was also duly provided - although Chapter V of the Finance Act of 1994 stood omitted under Section 173, but the savings clause provided under Section 174(2)(e) will enable the continuation of the investigation, enquiry, verification etc., that were made/to be made under Chapter V of the Act of 1994 - the writ petition is devoid of any merit and the relief sought for interfering with the demand-cum-show cause notices stands rejected - the writ petitions is dismissed [Read less]

2018-VIL-467-AP  | High Court VAT

Central Sales Tax Act, 1956 - Petitioner aggrieved by withdrawal of the concessional rate of tax on the turnovers covered by Form-C and withdrawal of the exemptions covered by the H-Forms –exercise of suo moto revisionary power - HELD - the Certificates of Export in Form ‘H’ were generated online from the website of the Maharashtra Government and petitioner requested the respondent to cross verify the information with the concerned authorities in Maharashtra. The respondent however baldly rejected this plea by saying that merely because the declarations were generated online, it could not be said that they were witho... [Read more]

Central Sales Tax Act, 1956 - Petitioner aggrieved by withdrawal of the concessional rate of tax on the turnovers covered by Form-C and withdrawal of the exemptions covered by the H-Forms –exercise of suo moto revisionary power - HELD - the Certificates of Export in Form ‘H’ were generated online from the website of the Maharashtra Government and petitioner requested the respondent to cross verify the information with the concerned authorities in Maharashtra. The respondent however baldly rejected this plea by saying that merely because the declarations were generated online, it could not be said that they were without defects. This reasoning is unsustainable. Lack of details in the online forms generated by the Maharashtra Government could not be laid at the door of the petitioner firm. Further, that would not be sufficient in itself to doubt the veracity of such ‘H’ forms - The reasons cited by the first respondent to reject the ‘H’ forms in question are not substantial enough to override acceptance of the same by the Assessing Authority, the second respondent - the first respondent seems to have gone witch-hunting with the decided purpose of rejecting the declarations in Form ‘C’. This is clear from the fact that he was disinclined to believe one document only on the ground that the date of a telephonic call was not mentioned in the declaration - The first respondent necessarily had to give a fresh opportunity to the petitioner firm to rectify the new defects found by him. Without doing so, he could not have proceeded to hold against the petitioner firm in exercise of revisionary jurisdiction - The writ petition is allowed by setting aside the revisionary order and remanding the matter for fresh consideration [Read less]

2018-VIL-706-CESTAT-KOL-CE  | CESTAT CENTRAL EXCISE

Central Excise - the appellant diverted imported Manganese Ore to their factory by preparing Transfer Memo - On the basis of the BoE and transfer memos, the respective factory avails Cenvat Credit in respect of Manganese Ore received by them – denial of Cenvat Credit claimed on the basis of the Transfer Memos with a view that in terms of Rule 9 of the CCR, 2004 Transfer Memo is not one of the documents specified wherein for availing Cenvat Credit – HELD – the imported ore has been transferred directly to the two manufacturing units of the appellant. The relevant document indicating payment of duty was the bill of ent... [Read more]

Central Excise - the appellant diverted imported Manganese Ore to their factory by preparing Transfer Memo - On the basis of the BoE and transfer memos, the respective factory avails Cenvat Credit in respect of Manganese Ore received by them – denial of Cenvat Credit claimed on the basis of the Transfer Memos with a view that in terms of Rule 9 of the CCR, 2004 Transfer Memo is not one of the documents specified wherein for availing Cenvat Credit – HELD – the imported ore has been transferred directly to the two manufacturing units of the appellant. The relevant document indicating payment of duty was the bill of entry. Since the entire quantity covered by the bill of entry, has not been moved to one unit, the appellant has issued an internal document termed as ‘transfer memo’ in which the quantities transferred to Durgapur unit has been indicated. There is no dispute regarding the receipt of such goods in the Durgapur unit or the use of such raw material in manufacture of the final product - the Cenvat Credit availed by the appellant on the basis of the Bills of Entry and transfer memo is proper – assessee appeal is allowed [Read less]

2018-VIL-464-BOM-CE  | High Court CENTRAL EXCISE

Central Excise & Customs - Whether the appeals arising under Section 130 of the Customs Act and Section 35G of the Central Excise Act from the orders of the Tribunal at Mumbai, can be presented and heard before the principal seat of the High Court, even when the impugned order of the Tribunal arises out of places which are allotted to the Benches at Nagpur and Goa - HELD - in terms of the Appellate Side Rules, the appeals have to be presented at that bench (including the principal seat) which has been allocated the place where the dispute has arisen and not the place where the appellate authority is situated - the tax appe... [Read more]

Central Excise & Customs - Whether the appeals arising under Section 130 of the Customs Act and Section 35G of the Central Excise Act from the orders of the Tribunal at Mumbai, can be presented and heard before the principal seat of the High Court, even when the impugned order of the Tribunal arises out of places which are allotted to the Benches at Nagpur and Goa - HELD - in terms of the Appellate Side Rules, the appeals have to be presented at that bench (including the principal seat) which has been allocated the place where the dispute has arisen and not the place where the appellate authority is situated - the tax appeals are to be filed before the bench allotted to the district where the dispute arose - the preliminary question is answered in favour of the respondent-Revenue and against the appellants [Read less]

2018-VIL-232-AAR  | Advance Ruling Authority SGST

A S MOLOOBHOY PRIVATE LIMITED: 18.07.2018 - GST – Maharashtra AAR - Classification - whether each of the subject goods/spares can be considered as parts of ship - Headings 8901, 8902, 8904, 8905, 8906, 897 – HELD - only those goods that are used in equipments mentioned in the table will liable to GST @ 5% - remaining parts will not be eligible for concessional rate of duty since the said equipments cannot be considered as essential parts of a ship

2018-VIL-233-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - whether movement of tyre mounted cranes or crawler cranes from one GST registered office of applicant to another registered office of applicant for further supply on hire charges to customers would be treated as "taxable supply" under GST law or whether GST would not be leviable on the said movement – Valuation of such taxable supply - HELD - IGST is leviable on the interstate movement of both type of cranes from applicant’s HO to branch offices registered in another state for further supply on hire charges to customer and the circular 21/21/2017-IGST is not applicable to the facts of the pres... [Read more]

GST – Maharashtra AAR - whether movement of tyre mounted cranes or crawler cranes from one GST registered office of applicant to another registered office of applicant for further supply on hire charges to customers would be treated as "taxable supply" under GST law or whether GST would not be leviable on the said movement – Valuation of such taxable supply - HELD - IGST is leviable on the interstate movement of both type of cranes from applicant’s HO to branch offices registered in another state for further supply on hire charges to customer and the circular 21/21/2017-IGST is not applicable to the facts of the present transaction. Further, GST would be payable on the movement of both type of cranes i.e. tyre mounted cranes and crawler cranes - The value for the purpose of section 15 where the recipient branch office in other state is eligible for full input tax credit would be the value declared in the invoice as open market value of the services for the purpose of levy of tax and alternatively and amount equivalent to 90% of the price charged for the supply of goods of like, kind and quality by the recipient to his customer. In short there is no impropriety in the appellant considering 95% of the value charged by branches to the customer of the branches as value of supply for discharging GST liability [Read less]

2018-VIL-234-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - Whether the whole (Sheep/Goat) animal carcass in its natural shape in frozen state in different weight and size packed in LDPE bags without mentioning the weight and one or two such LDPE bags further packed in HDPE bags being supplied to Army by applicant against tender shall qualify as product put up in "unit container" – HELD - Answered in the negative - The impugned product would be covered by notification 2/2017 - Integrated Tax (Rate) dated 28th June 2017 as amended by serial no.9 of the Notification no.44/2017-Integrated Tax (Rate) dated 14th November 2017 and would be exempt from whole of... [Read more]

GST – Maharashtra AAR - Whether the whole (Sheep/Goat) animal carcass in its natural shape in frozen state in different weight and size packed in LDPE bags without mentioning the weight and one or two such LDPE bags further packed in HDPE bags being supplied to Army by applicant against tender shall qualify as product put up in "unit container" – HELD - Answered in the negative - The impugned product would be covered by notification 2/2017 - Integrated Tax (Rate) dated 28th June 2017 as amended by serial no.9 of the Notification no.44/2017-Integrated Tax (Rate) dated 14th November 2017 and would be exempt from whole of GST [Read less]

2018-VIL-235-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - Whether the "Electric Overhead Traveling Grab Crane (EOT Grab Crane)" for use in the waste-to-energy project is covered as 'Renewable energy devices and parts for the manufacture of waste to energy plants/devices', attracting 5% levy – HELD - Answered in the affirmative - EOT Grab Cranes are integral part of the Waste to Energy Plants project for manufacturing and generation of end product of electricity and therefore the EOT Grab Cranes being used in waste to energy plant fall under serial no. 234 of schedule of notification 1/2017 - Integrated Tax (Rate) and liable to IGST @5%... [Read more]

GST – Maharashtra AAR - Whether the "Electric Overhead Traveling Grab Crane (EOT Grab Crane)" for use in the waste-to-energy project is covered as 'Renewable energy devices and parts for the manufacture of waste to energy plants/devices', attracting 5% levy – HELD - Answered in the affirmative - EOT Grab Cranes are integral part of the Waste to Energy Plants project for manufacturing and generation of end product of electricity and therefore the EOT Grab Cranes being used in waste to energy plant fall under serial no. 234 of schedule of notification 1/2017 - Integrated Tax (Rate) and liable to IGST @5% [Read less]

2018-VIL-236-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - Whether liquidated damages that may be awarded to the Applicant by the International Chamber of Commerce qualifies as a 'supply' under the GST law, attracting the levy of GST – if yes, what should be the time of supply and whether the Applicant is liable to pay GST on amount of liquidated damages claimed and awarded to the Applicant under the arbitral award or the amount which is actually received by the Applicant after conclusion of the matter before the final Appellate authority – HELD - the consideration if any as received by the applicant after arbitration by the ICC would clearly qualify ... [Read more]

GST – Maharashtra AAR - Whether liquidated damages that may be awarded to the Applicant by the International Chamber of Commerce qualifies as a 'supply' under the GST law, attracting the levy of GST – if yes, what should be the time of supply and whether the Applicant is liable to pay GST on amount of liquidated damages claimed and awarded to the Applicant under the arbitral award or the amount which is actually received by the Applicant after conclusion of the matter before the final Appellate authority – HELD - the consideration if any as received by the applicant after arbitration by the ICC would clearly qualify as 'supply' as per Sr. No. 5(e) of Schedule II of the CGST Act - though in the agreement they may be giving this consideration, other names such as 'damages' or 'compensation' as thought proper by them, but these different nomenclatures in their Agreement would in no way change the actual nature of monetary "consideration" which would clearly be taxable for the supply of services as per Sr. No. 5(e) of Schedule II of the CGST Act, 2018 - The provisions of Section 13 of the CGST ACT will determine the time of supply in cases of supply of services. In the subject case the liability of tax would arise on the applicant as per Sr. No. 5(e) of Schedule II of Section 7(1) of the CGST Act and the time of supply would be determined as per the provisions of Section 13 of the CGST Act after the award of arbitration proceedings is given by the Arbitration Tribunal - the value of supply of services will be actual liquidated damages cum consideration as decided and pronounced in the award administered by ICC [Read less]

2018-VIL-221-AAR  | Advance Ruling Authority SGST

M/s ADWITYA SPACES PRIVATE LIMITED: 27.09.2018 - GST – Tamil Nadu AAR - engaged in the business of letting out property and is in receipt of rental income - Whether the applicants are eligible to avail Input Tax Credit of GST charged by property consultant in respect of brokerage services and adjust the same against output tax payable against Renting of immovable property – HELD - The applicant is eligible to take credit of the CGST & SGST charged by property consultant for real estate brokerage services for renting of property, subject to the conditions as per Section 16, 17 and 18 of CGST & SGST Act

2018-VIL-230-AAR  | Advance Ruling Authority SGST

GST – Rajasthan AAR - Applicant is providing the services of construction of roads and bridges on design, build, operate and transfer basis - Admissibility of full Input Tax Credit pertaining to procurement of goods and services for construction of the project during the Construction Period – admissibility of Input Tax Credit pertaining to procurement of goods and services during the O&M period – HELD - The applicant is rendering taxable services during the construction of roads which is liable to tax; hence they are entitled to claim full Input Tax Credit under the provisions of section 16(1) of the CGST Act, 2017 -... [Read more]

GST – Rajasthan AAR - Applicant is providing the services of construction of roads and bridges on design, build, operate and transfer basis - Admissibility of full Input Tax Credit pertaining to procurement of goods and services for construction of the project during the Construction Period – admissibility of Input Tax Credit pertaining to procurement of goods and services during the O&M period – HELD - The applicant is rendering taxable services during the construction of roads which is liable to tax; hence they are entitled to claim full Input Tax Credit under the provisions of section 16(1) of the CGST Act, 2017 - The Applicant is entitled to claim Input Tax Credit on supplies of goods and services or both procured for use in outward supply of O&M service purpose, as they are paying GST on 100 percent of the amount received on account of O & M of the Project [Read less]

2018-VIL-19-AAAR  | Advance Ruling Authority SGST

GST – Kerala AAAR - Recovery of food expenses from employees for the canteen provided by company comes under the definition of outward supplies and is taxable under GST Act – The appellant’s are serving food to the employees for cash, though there is no profit involved in the transaction. In spite of the absence of any profit, the activity of supplying food and charging price for the same from the employees would come within the definition of "supply". Consequently, the appellant would come under the definition of ‘supplier’ as provided in Section 2(105) of the CGST Act, 2017. Moreover, since the appellant recove... [Read more]

GST – Kerala AAAR - Recovery of food expenses from employees for the canteen provided by company comes under the definition of outward supplies and is taxable under GST Act – The appellant’s are serving food to the employees for cash, though there is no profit involved in the transaction. In spite of the absence of any profit, the activity of supplying food and charging price for the same from the employees would come within the definition of "supply". Consequently, the appellant would come under the definition of ‘supplier’ as provided in Section 2(105) of the CGST Act, 2017. Moreover, since the appellant recovers the cost of food items from their employees, there is ‘consideration’ as defined in Section 2(31) of the CGST Act, 2017 - the appeal fails and stands dismissed [Read less]

2018-VIL-20-AAAR  | Advance Ruling Authority SGST

GST - Kerala AAAR - whether the commodity "Ada" is classifiable under the HSN Code 1902 along with "Seviyan (Vermicelli)" attracting GST at the rate of 5% or classifiable under residual entry attracting 18% GST – HELD - There is indeed nothing to differentiate "ada" from "vermicelli" except for the dies that are used in the manufacturing process which gives it a different shape - Therefore, applying Rule 4 of the General Rules of Interpretation of the First Schedule to the Customs Tariff Act, 1975 and the principles of classification of goods, "Ada" merits classification under HSN 1902 of the 1st Schedule of Notification... [Read more]

GST - Kerala AAAR - whether the commodity "Ada" is classifiable under the HSN Code 1902 along with "Seviyan (Vermicelli)" attracting GST at the rate of 5% or classifiable under residual entry attracting 18% GST – HELD - There is indeed nothing to differentiate "ada" from "vermicelli" except for the dies that are used in the manufacturing process which gives it a different shape - Therefore, applying Rule 4 of the General Rules of Interpretation of the First Schedule to the Customs Tariff Act, 1975 and the principles of classification of goods, "Ada" merits classification under HSN 1902 of the 1st Schedule of Notification No. 01/2017 - Central Tax (Rate) dated 28.06.2017 and State Government Notification No. 360/2017 attracting 5% GST [Read less]

2018-VIL-219-AAR  | Advance Ruling Authority SGST

SARO ENTERPRISES: 27.09.2018 - GST – Tamil Nadu AAR - Classification of Agricultural Seedling Trays – HELD - Agricultural Seedling Trays made of Plastic are classifiable under CTH 39269099 as articles of plastics not elsewhere specified and the applicable GST rate is 18%

2018-VIL-220-AAR  | Advance Ruling Authority SGST

KANNIWADI NAGARAJAN SHARMILA: 27.09.2018 - GST – Tamil Nadu AAR - Clarification on Rate of tax and HSN code for Nonwoven Rice Bags – HELD - The Non-woven fabric bags called as Rice Bags manufactured by the applicant falls under HSN 63053300 and the applicable GST rate for the bags of value not exceeding Rs. 1000 per piece is 5%

2018-VIL-222-AAR  | Advance Ruling Authority SGST

GST – Tamil Nadu AAR - Classification and applicable GST rate for Coir Pith – HELD - Coir pith in raw or natural form is appropriately covered under the Heading 53050040 - The products in question are coir pith in raw form which is either sold as loose form or supplied by the applicant in Blocks, Briquettes form without any addition of chemicals. It is different from coir fibre. Further, the coir pith supplied by the Applicant does not undergo composting process, which would alter its composition and cannot be called as coir pith compost - Coir pith in its raw form whether in loose powder or compressed into blocks form... [Read more]

GST – Tamil Nadu AAR - Classification and applicable GST rate for Coir Pith – HELD - Coir pith in raw or natural form is appropriately covered under the Heading 53050040 - The products in question are coir pith in raw form which is either sold as loose form or supplied by the applicant in Blocks, Briquettes form without any addition of chemicals. It is different from coir fibre. Further, the coir pith supplied by the Applicant does not undergo composting process, which would alter its composition and cannot be called as coir pith compost - Coir pith in its raw form whether in loose powder or compressed into blocks form without any addition of chemicals supplied by the applicant are taxable at 5% GST [Read less]

2018-VIL-223-AAR  | Advance Ruling Authority SGST

M/s SODEXO FOOD SOLUTIONS INDIA PRIVATE LIMITED: 27.09.2018 - GST – Tamil Nadu AAR - As per the Notification 13/2018-CT (Rate) supply of food and beverages in canteens, mess, cafeteria or dining spaces of an institution such as a school, college, hospital, industrial unit, office would be liable to 5% GST - In the light of amendments in the GST rate for Supply of canteen food services, the applicant requested to withdraw the Advance Ruling Application - The application filed by the Applicant for advance ruling is dismissed as withdrawn

2018-VIL-224-AAR  | Advance Ruling Authority SGST

M/s WABCO INDIA LIMITED: 27.09.2018 - GST – Tamil Nadu AAR - Classification and applicable GST rate on Electrical Wiring Harness – HELD - the Electrical Wiring Harness manufactured by the applicant falls under the HSN tariff item 85443000. Further, Circular 25/88-Cx dated 17.11.1988 issued by CBEC has held that wiring harness are classifiable under 8544 - The rate of CGST and SGST at 9% each is applicable to the above product only with effect from 15.11.2017

2018-VIL-225-AAR  | Advance Ruling Authority SGST

GST – Delhi AAR - Whether the applicant is liable to pay GST on sale of commercial super built up area on behalf of Ministry of Housing and Urban Affairs, Government of India, by considering the applicant also as the supplier of service while selling such commercial built-up space as an agent on behalf of the Government of India in the colonies under redevelopment - Whether the MoHUA, Government of India, is liable to pay GST on sale of commercial built-up space, and whether it relates to any function entrusted to a municipality under Article 243W of the Constitution - Whether the applicant is liable to pay GST on sale o... [Read more]

GST – Delhi AAR - Whether the applicant is liable to pay GST on sale of commercial super built up area on behalf of Ministry of Housing and Urban Affairs, Government of India, by considering the applicant also as the supplier of service while selling such commercial built-up space as an agent on behalf of the Government of India in the colonies under redevelopment - Whether the MoHUA, Government of India, is liable to pay GST on sale of commercial built-up space, and whether it relates to any function entrusted to a municipality under Article 243W of the Constitution - Whether the applicant is liable to pay GST on sale of built-up space for which part of the consideration was received prior to 01.07.2017, and partly on or after 01.07.2017 - Whether the applicant is liable to pay GST on consideration received under an agreement to sale of constructed units in a building which is under construction – HELD - From the combined reading of Sections 2(5), 2(105), 2(107), 22 and 24 of the CGST Act, 2017, it is clear that the applicant is covered in the definitions of "Agent", "Supplier" and "Taxable Person" in respect of the said project while providing services on behalf of the MoHUA - the contention of the applicant that they cannot be construed as "supplier" of service as they are selling the commercial built up space on behalf of MoHUA is not acceptable - services for commercial built-up space by the Ministry of Housing & Urban Affairs (MoHUA) are not covered in Twelfth Schedule r/w Article 243W of the 'Constitution of India and hence not exempted from payment of GST - commercial built up space on which some amount of Service Tax had been paid or was payable shall be covered under GST w.e.f. 01.07.2017 subject to the provisions of Section 142(11) (b) of the CGST Act, 2017 - The applicant is liable to pay GST on the sale of commercial built-up area which is under construction, as the same is a 'supply of service' under clause 5(b) of Schedule II of the CGST Act, 2017 [Read less]

2018-VIL-226-AAR  | Advance Ruling Authority SGST

GST – Punjab AAR - For trading of commodities the applicant enters into customized Contracts which are an ensemble of "Supply" cum "Settlement" Contracts - applicability of GST on the differential payment received by a Party to the aforesaid Contract from the other Party to the Contract is event of "Settlement", "Washout" or "Closure" of Contract by it – HELD - In forward contracts in cotton sales, being settled by Applicant with the other party to the contract by way of payment of the differential of forward rate and prevailing market rate on the settlement date, the same would be falling within the purview of 'securi... [Read more]

GST – Punjab AAR - For trading of commodities the applicant enters into customized Contracts which are an ensemble of "Supply" cum "Settlement" Contracts - applicability of GST on the differential payment received by a Party to the aforesaid Contract from the other Party to the Contract is event of "Settlement", "Washout" or "Closure" of Contract by it – HELD - In forward contracts in cotton sales, being settled by Applicant with the other party to the contract by way of payment of the differential of forward rate and prevailing market rate on the settlement date, the same would be falling within the purview of 'securities' as defined in Section 2(101) of the CGST Act, 2017 and would therefore not be chargeable to GST - In forward contracts in cotton sales, being settled by the applicant with the other party to the contract by way of payment of the differential of forward rate and rate fixed by the applicant using his discretion, such rate being different than the market price of cotton on the date of settlement, the same would not be falling within the purview of 'securities' as defined in Section 2(101) of the CGST Act, 2017 and would therefore be chargeable to GST - In the forward contracts in cotton purchase being settled by the applicant with the other party to the contract by way of payment of the differential of forward rate and prevailing market rate on the settlement date, the same would be falling within the purview of 'securities' as defined in Section 2(101) of the CGST Act, 2017 and would therefore not be chargeable to GST [Read less]

2018-VIL-227-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - Classification of Electro Ink supplied along with consumables under GST - Determination of time and value of supply of Electro Ink with consumables under the indigo press contract – HELD - The supply of Electro Ink supplied along with consumable is a mixed supply as defined u/s section 2(74) of the CGST Act and is also a continuous supply of goods as defined u/s 2 (32) of the CGST Act - The time of supply of ElectroInk supplied along with consumables under the indigo press contract would be the earliest date between the date of invoice or the date of receipt of payment - the value of supply of E... [Read more]

GST – Maharashtra AAR - Classification of Electro Ink supplied along with consumables under GST - Determination of time and value of supply of Electro Ink with consumables under the indigo press contract – HELD - The supply of Electro Ink supplied along with consumable is a mixed supply as defined u/s section 2(74) of the CGST Act and is also a continuous supply of goods as defined u/s 2 (32) of the CGST Act - The time of supply of ElectroInk supplied along with consumables under the indigo press contract would be the earliest date between the date of invoice or the date of receipt of payment - the value of supply of ElectroInk supplied with consumables under the Indigo Press Contract would be the transactions value as reflected in the invoice issued u/s 31(4) of the CGST Act [Read less]

2018-VIL-231-AAR  | Advance Ruling Authority SGST

M/s SHUBHLAXMI COLD STORAGE AND ICE FACTORY PRIVATE LIMITED: 15.09.2018 - GST – Rajasthan AAR - The charges received by the applicant for providing service of storing of "fresh eggs" in shell on which no further processing is done, which are produce of rearing of animals/poultry farming, are exempted from payment of GST

2018-VIL-229-AAR  | Advance Ruling Authority SGST

M/s FRIZO INDIA PRIVATE LIMITED: 24.09.2018 - GST - Rajasthan AAR – Applicable rate of GST on supply of Solar Power Generating System – HELD – the nature of work is of Erection, Procurement and Commissioning of Solar Generating System which falls under the ambit of Works Contract in terms of section 2(119) of the CGST Act and attracts 18% GST

2018-VIL-228-AAR  | Advance Ruling Authority SGST

GST - Rajasthan AAR - Whether EPC contract for set up of solar power generating system be considered as a composite supply with PV modules being the principal supply and be taxed at a rate of 5% (i.e. tax rate applicable on the P.V. modules) – HELD – the scope of work in respect of "Turnkey Composite EPC Contract" includes designing, planning civil works, procurement of good, erection, testing and commissioning. Accordingly, the transaction for EPC Contract for the Solar Power Plant which includes engineering, design, procurement, supply, development, testing and commissioning is a Works Contract in terms of section 2(... [Read more]

GST - Rajasthan AAR - Whether EPC contract for set up of solar power generating system be considered as a composite supply with PV modules being the principal supply and be taxed at a rate of 5% (i.e. tax rate applicable on the P.V. modules) – HELD – the scope of work in respect of "Turnkey Composite EPC Contract" includes designing, planning civil works, procurement of good, erection, testing and commissioning. Accordingly, the transaction for EPC Contract for the Solar Power Plant which includes engineering, design, procurement, supply, development, testing and commissioning is a Works Contract in terms of section 2(119) of the CGST Act - The contract for EPC of Solar Power Plant falls under the ambit Works Contract Services (SAC 9954) and attracts 18% GST [Read less]

2018-VIL-704-CESTAT-MUM-CU  | CESTAT Case CUSTOMS

Customs - the appellants imported the consignment of goods declared as plant extracts (bio fertilizer) and classified the same under CTH 3101 0099 - Whether the impugned goods are ‘plant extract’ classifiable Under CTH 13021990 or as ‘bio fertilizer’ under CTH31010099 - Whether the Ld. Commissioner erred in not imposing fine in lieu of confiscation and penalty – HELD - the impugned product cannot be grouped under Chapter 31 due to the genesis of the product and characteristics. Moreover, the National and Regional Centre for Organic Farming have given a categorical report that the subject goods do not conform to a... [Read more]

Customs - the appellants imported the consignment of goods declared as plant extracts (bio fertilizer) and classified the same under CTH 3101 0099 - Whether the impugned goods are ‘plant extract’ classifiable Under CTH 13021990 or as ‘bio fertilizer’ under CTH31010099 - Whether the Ld. Commissioner erred in not imposing fine in lieu of confiscation and penalty – HELD - the impugned product cannot be grouped under Chapter 31 due to the genesis of the product and characteristics. Moreover, the National and Regional Centre for Organic Farming have given a categorical report that the subject goods do not conform to any of the requirements of any biofertilizers listed under FCO. Therefore, the impugned products are not biofertilizers - the Commissioner has correctly held that when there is a legal definition available on the subject defining an item, no other definition can be adopted in this regard to the same - the impugned product is classifiable under CTH 13021990 - there is no estoppel in taxation matters and Revenue was well within its rights to revise the classification - The impugned order is upheld so far as classifying the product under CTH 13021990 as ‘Plant Extract’ is concerned – the demand needs to be restricted to the normal period - imposition of redemption fine is restored – appeals are partially allowed [Read less]

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