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2020-VIL-112-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax - Supply of ‘canned software’ or ‘customized software’ - sale of software developed for own use and marketed as ‘core banking’ software to customers – whether the appellant is service provider under ‘information technology software service’ – term ‘commercial exploitation’ - HELD – the appellant is in the business of developing software and that such software is used by the banking industry. There is no evidence that such software being designed according to the requirements or standards prescribed by the customers. There is no doubt that the licence, provided along with the media cont... [Read more]

Service Tax - Supply of ‘canned software’ or ‘customized software’ - sale of software developed for own use and marketed as ‘core banking’ software to customers – whether the appellant is service provider under ‘information technology software service’ – term ‘commercial exploitation’ - HELD – the appellant is in the business of developing software and that such software is used by the banking industry. There is no evidence that such software being designed according to the requirements or standards prescribed by the customers. There is no doubt that the licence, provided along with the media containing the software, represents the right to use; however, this is a general industry wide practice that is not alien to ‘canned software’ - The commercial exploitation of the competencies and expertise of the customers which is supplemented by the software provided by the appellant is not the same as ‘commercial exploitation’ of the software - In the absence of facts that establish otherwise or of any evidence that such was the transaction between the appellant and the customers, it was not appropriate for the adjudicating authority to conclude that sale of banking software to a bank is ‘commercial exploitation’ merely because the bank deploys the software in its normal business activities - The specific connotation of ‘right to use’ and the ‘intellectual property rights’ enshrined within it mandates commercial exploitation to be ascertained in an entirely different context of reproduction or distribution - the impugned order is set aside and appeal is allowed [Read less]

2020-VIL-113-CESTAT-MUM-CE  | CESTAT CENTRAL EXCISE

Central Excise - obligation on the part of ‘output service provider’ to keep the capital goods in constant use for avoiding the consequence of recovery under rule 14 of CCR, 2004 - Revenue of the view that ‘consumer premise equipment’ was allowed to remain at customer’s premises even after disconnection of the service, leading to availment of ineligible CENVAT credit – HELD – in terms of CENVAT Credit Rules, 2004 duties paid on ‘capital goods’ procured by a provider of output services is allowed to be taken as credit by the said provider of output services. At no place in the said Rules is there any condi... [Read more]

Central Excise - obligation on the part of ‘output service provider’ to keep the capital goods in constant use for avoiding the consequence of recovery under rule 14 of CCR, 2004 - Revenue of the view that ‘consumer premise equipment’ was allowed to remain at customer’s premises even after disconnection of the service, leading to availment of ineligible CENVAT credit – HELD – in terms of CENVAT Credit Rules, 2004 duties paid on ‘capital goods’ procured by a provider of output services is allowed to be taken as credit by the said provider of output services. At no place in the said Rules is there any condition of deployment in operations for eligibility to CENVAT credit. It would stand to reason that a commercial entity would not be procuring capital goods that it does not intended to utilize. On the other hand, under the generic provisions, credit that has been wrongly utilized is liable to be recovered. It is between these two that Revenue seeks to situate the appellant for enforcing its proposal to recover credit - It is not in challenge that the provider of output service is unable to deploy the capital goods at any other premises for providing output service and, hence, removal to the premises of the customer does not constitute a disqualification for availment of credit - it is only upon the transfer of possession to another manufacturer/provider of output service that credit originally availed can be curtailed - in the absence of any specific statutory provision requiring such reversal along with absence of further availment of credit by any other assessee, the impugned order is erroneous in its presumption and in application of law; the consequential demand of tax, as well as other detriments, is also not in accordance with the law - the impugned order is set aside and appeal is allowed [Read less]

2020-VIL-111-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax - Whether the Appellant i.e. the service recipient could utilize Cenvat credit of Central Excise duty paid on inputs, for payment of service tax on services received by them under reverse charge mechanism – HELD - once the assessee in terms of Rule 2(q) r/w Rule 2(1)(d)(iv), is liable to pay service tax then he also becomes a provider of taxable service under Rule 2(r) and consequently becomes a provider of output service under Rule 2(p) and becomes entitle to utilize the Cenvat credit for payment of service tax on reverse charge basis. Rule 5 of the Taxation of Service (Provided from Outside India and Receiv... [Read more]

Service Tax - Whether the Appellant i.e. the service recipient could utilize Cenvat credit of Central Excise duty paid on inputs, for payment of service tax on services received by them under reverse charge mechanism – HELD - once the assessee in terms of Rule 2(q) r/w Rule 2(1)(d)(iv), is liable to pay service tax then he also becomes a provider of taxable service under Rule 2(r) and consequently becomes a provider of output service under Rule 2(p) and becomes entitle to utilize the Cenvat credit for payment of service tax on reverse charge basis. Rule 5 of the Taxation of Service (Provided from Outside India and Received in India) Rules, 2006 prohibits only for availing of Cenvat credit and not for utilizing the Cenvat credit to discharge its service tax obligation on reverse charge basis - during the period in issue the Appellants i.e. the service recipient were very well within their rights to discharge the service tax liability on reverse charge basis by utilizing the Cenvat Credit - Accordingly, the impugned order is set aside and the Appeal is allowed [Read less]

2020-VIL-96-CHG  | High Court SGST

GST - Section 6(2) - alleged use of fake and fictitious invoices for the purpose of claiming unlawful Input Tax Credit - Petitioner case that once a show cause notice proceeding is pending before the State authorities the Respondent-DGGSTI could not have issued or initiated another proceeding, which otherwise is not permissible under the provisions of Section 6(2)(1)(b) – HELD - the initial issuance of the show cause notice and the proceedings drawn were in respect of the intra-state transactions made by the petitioner, wherein he had used fake and bogus invoices for the purpose of availing ineligible ITC, whereas subseq... [Read more]

GST - Section 6(2) - alleged use of fake and fictitious invoices for the purpose of claiming unlawful Input Tax Credit - Petitioner case that once a show cause notice proceeding is pending before the State authorities the Respondent-DGGSTI could not have issued or initiated another proceeding, which otherwise is not permissible under the provisions of Section 6(2)(1)(b) – HELD - the initial issuance of the show cause notice and the proceedings drawn were in respect of the intra-state transactions made by the petitioner, wherein he had used fake and bogus invoices for the purpose of availing ineligible ITC, whereas subsequent and further investigation, it was revealed that the magnitude of the offence committed by the petitioner was far more grave and serious. It was in the course of raid found that the petitioner had been making false and bogus transactions and has illegally availed ineligible Input Tax Credit – there is no substance in the arguments of the petitioner when they say that the investigation and the proceedings now initiated is one, which hit by Section 6(2)(1)(b) of the CGST Act of 2017. What has also to be appreciated is the fact that there is a clear distinction between a proceeding drawn for the demand of tax evaded by the petitioner and the investigation be conducted by the Department of the DG, GST Intelligence Wings in respect of an offence committed by the petitioner by way of using bogus and fake invoices and illegally availing ITCs, which the petitioner otherwise was ineligible - The writ petition fails and is accordingly rejected [Read less]

2020-VIL-17-NAA  | National Anti-Profiteering Authority SGST

GST - National Anti-Profiteering Authority – Applicant case that the Respondent had resorted to profiteering in respect of the supply of construction services related to the purchase – HELD - The Input Tax Credit as a percentage of the turnover which was available to the Respondent during the pre-GST period was 0.94% and during the post-GST period it was 0.39% - the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it does not qualify to be a case of profiteering - the Respondent in terms of Rule 130 has requested that all the date s... [Read more]

GST - National Anti-Profiteering Authority – Applicant case that the Respondent had resorted to profiteering in respect of the supply of construction services related to the purchase – HELD - The Input Tax Credit as a percentage of the turnover which was available to the Respondent during the pre-GST period was 0.94% and during the post-GST period it was 0.39% - the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it does not qualify to be a case of profiteering - the Respondent in terms of Rule 130 has requested that all the date submitted by him except allotment letter and Applicant’s ledger, were to be treated as confidential. Therefore, the confidential documents submitted by the Respondent had correctly not been supplied by the DGAP to the Applicant - the instant case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. Therefore, the allegation that the Respondent has not passed on the benefit of ITC in this case is not found sustainable. Accordingly, the application filed by Applicant requesting action against the Respondent for alleged violation of the provisions of Section 171 of the CGST Act, is dismissed as not maintainable [Read less]

2020-VIL-103-CESTAT-DEL-CU  | CESTAT Case CUSTOMS

Customs - whether the consignments imported by the appellant were ‘Segway electrically operated personal balancing vehicle’ in CKD condition classifiable under Chapter Heading 87119091 or whether these were CKD parts and assemblies of parts of electrically operated two wheelers for captive use as declared by the appellant classifiable under Chapter Heading 87149990 – eligibility to benefit of the Notification No. 21/2002-Cus. dated 01/02/2002 and Notification No. 12/2012-Cus. dated 17/03/2012 - whether the appellants have mis-declared the description of the imported goods with an intent to evade customs duty – dema... [Read more]

Customs - whether the consignments imported by the appellant were ‘Segway electrically operated personal balancing vehicle’ in CKD condition classifiable under Chapter Heading 87119091 or whether these were CKD parts and assemblies of parts of electrically operated two wheelers for captive use as declared by the appellant classifiable under Chapter Heading 87149990 – eligibility to benefit of the Notification No. 21/2002-Cus. dated 01/02/2002 and Notification No. 12/2012-Cus. dated 17/03/2012 - whether the appellants have mis-declared the description of the imported goods with an intent to evade customs duty – demand of differential customs duty under Section 28 (4) of the Customs Act, 1962 and levy of penalty under provisions of Section 112, 114A and 114AA of the Customs Act, 1962 – HELD - the Segway product was being imported by the appellant in a CKD condition under various bills of entries and same was got assembled in India for further sale with the simple screw driver technology. It is also matter of fact that the parts such as Power Base, Gear Box were imported in assembled forms and not in CKD condition and thus these crucial parts were assembled/ready to use components for further assembly of ‘Segway’ product - what has been imported by the appellant were various assemblies to make a product called Segway. The correct classification for the product imported in the CKD condition is under Chapter sub-Heading 87119091. Therefore, the appellant have mis-declared their import consignment and what they have imported were Segway product classifiable under Customs Tariff Heading 87119091 in completely knocked down condition - confiscation of the mis-declared goods under Section 111 (m) of the Customs Act, 1962 as well as imposition of the penalties on the appellants are upheld and all the appeals are dismissed [Read less]

2020-VIL-86-ALH  | High Court SGST

GST - petitioner challenging the seizure order and also praying for release of the seized goods - transaction out of account register and stock with intention to evade the tax – proceeding under section 67(2) of the UPGST Act, 2017 – HELD - The enquiry preceding seizure has revealed that the petitioner has one declared godown and three undeclared godowns and stocks were also found at the undeclared godowns during seizure. As such, proceedings have been initiated under section 67(2) of the UPGST Act, 2017, read with Rule 139(1) of the UPGST Rules, 2017 - consequent upon the proceedings, the writ petitioner never deposit... [Read more]

GST - petitioner challenging the seizure order and also praying for release of the seized goods - transaction out of account register and stock with intention to evade the tax – proceeding under section 67(2) of the UPGST Act, 2017 – HELD - The enquiry preceding seizure has revealed that the petitioner has one declared godown and three undeclared godowns and stocks were also found at the undeclared godowns during seizure. As such, proceedings have been initiated under section 67(2) of the UPGST Act, 2017, read with Rule 139(1) of the UPGST Rules, 2017 - consequent upon the proceedings, the writ petitioner never deposited any tax or penalty or bond or security, as required under section 67(6) of the Act. Notices / summonses have been issued but no one appeared on behalf of the writ petitioner on the date fixed - we are unable to afford any relief to the writ petitioner by exercising our discretionary jurisdiction under Article 226 of the Constitution of India - The writ petition is dismissed [Read less]

2020-VIL-104-CESTAT-AHM-CU  | CESTAT Case CUSTOMS

Customs - Whether for the purchase of urea by the Appellant from the Government of India on High Sea Sale, the miscellaneous charges paid by the Government of India to STE is required to be included in the assessable value – Whether for the aforesaid purchase, the notional 2% High Sea Sale Commission is required to be included in the assessable value of goods and consequential duty is payable – invocation of extended period of limitation - confiscation under section 111(m) of the Customs Act - levy of penalty under section 112(a) and section 114 – HELD – Urea is a canalised item under the Foreign Trade Policy and, ... [Read more]

Customs - Whether for the purchase of urea by the Appellant from the Government of India on High Sea Sale, the miscellaneous charges paid by the Government of India to STE is required to be included in the assessable value – Whether for the aforesaid purchase, the notional 2% High Sea Sale Commission is required to be included in the assessable value of goods and consequential duty is payable – invocation of extended period of limitation - confiscation under section 111(m) of the Customs Act - levy of penalty under section 112(a) and section 114 – HELD – Urea is a canalised item under the Foreign Trade Policy and, therefore, import can be done only by the canalising agency called STEs - the import of urea by the canalising agency takes place on behalf of the Government of India and the amount of Rs. 17/- per MT which the Government pays to the STEs is the agency charges which the STEs get for providing the services of identifying and indenting the import of urea from foreign suppliers – it is noticed that TDS has also been deducted by the Government of India while making payment of service charges to the STEs. Under the Income Tax Act, TDS is required to be deducted on payment of commission and not on sale consideration. Thus, the Government of India itself is treating this amount of Rs. 17/- per MT as commission paid to the STEs – further, the amount of Rs. 17/- per MT is paid by the Government of India to the STE and is not paid by the Appellant to the STE when it purchases the urea. It, therefore, clearly transpires that the canalising agencies import urea on behalf of the Government of India for which they are paid commission of Rs.17/- per MT for identifying and indenting the import of urea from foreign suppliers - Since the payment of Rs. 17/- per MT has not been made as a condition of sale of urea by the Government of India to the Appellant to satisfy an obligation of the Government of India, this amount cannot be added to the transaction value under rule 10 (1) (e) of the Valuation Rules, 2007 | Regarding 2% Notional High Sea Sale Commission - while there was scope for addition of notional charges in the assessable value under the un-amended section 14 of the Customs Act, but after the actual sale price concept was introduced in the year 2007 on the basis of GATT guidelines and section 14 of the Customs Act was amended in 2007, any inclusion of notional charges seems to have lost its relevance and only actual cost incurred by the buyer is required to be considered - therefore, the 2% Notional High Sea Sale Commission could not have been added to the assessable value - neither the amount of Rs. 17/- per MT paid by the Government of India to the STE could have been added to the assessable value on which the Appellant was required to pay duty, nor 2% Notional High Seal Sale could have been added in the assessable value – the impugned order is set aside and the appeal is allowed [Read less]

2020-VIL-97-MAD-CE  | High Court CENTRAL EXCISE

Central Excise - Whether the limitation prescribed under Section 11B of the Act apply when instead of claiming the refund in cash, the Assessee merely claims for restoration of Cenvat credit – return of goods within the time frame of 180 days under the Rule 4(5)(a)(iii) of the CCR, 2004 - claims for restoration of Cenvat credit was refused because application were filed under prescribed Form R under Rule 127 – HELD - the ld. Tribunal has erred in applying the limitation of the Section 11B of the Act in the present case, where the refund of duty was not claimed in cash as such, but only by the restoration of Cenvat cred... [Read more]

Central Excise - Whether the limitation prescribed under Section 11B of the Act apply when instead of claiming the refund in cash, the Assessee merely claims for restoration of Cenvat credit – return of goods within the time frame of 180 days under the Rule 4(5)(a)(iii) of the CCR, 2004 - claims for restoration of Cenvat credit was refused because application were filed under prescribed Form R under Rule 127 – HELD - the ld. Tribunal has erred in applying the limitation of the Section 11B of the Act in the present case, where the refund of duty was not claimed in cash as such, but only by the restoration of Cenvat credit by the Assessee. When a debit to the Cenvat credit account could be treated as a mode of payment of duty at the time of removal of goods, the limitation under Section 11B of the Act could not be denied when only restoration of such claim is only by way of reversal of that debit entry upon the returning such CENVAT Invoices - The authorities could not deny the adjustment entry of restoration of Cenvat credit in the present case irrespective of limitation. Merely because the Assessee laid its claim of refund in prescribed Form No.R under Rule 127, being a procedural requirement of the law, the substantive right of Assessee cannot be defeated by the Revenue authorities except at the peril of violating Article 265 of the Constitution of India - Rule 4(5)(a)(iii) of the CCR, 2004 permits the Assessee to credit the CENVAT account book, if the goods are received back after 180 days. Therefore, in the face of a clear Rule permitting the said adjustment entry, merely because the Assessee made a claim in prescribed Form R under Rule 127, his claim of adjustment entry could not be denied - the order passed by the learned Tribunal is set aside and the appeal filed by the Assessee is allowed [Read less]

2020-VIL-101-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax - Denial of refund of un-utilized input Cenvat Credit under Rule 5 of the CCR, 2004 on the ground that the amount claimed as refund was not debited from the appellant’s Cenvat Credit Account at the time of filing the claim – HELD - There is no denial by the Revenue as to the claim of the appellant that subsequent to the filing of TRAN-1 Return, the refund amount was debited in its GSTR-3B/Electronic Credit Ledger - with the introduction of GST filing of ST-3 Return was done-away, there was also no provision in the ACES system to debit the refund amount and subsequent reversal by the appellant in its GSTR-3B... [Read more]

Service Tax - Denial of refund of un-utilized input Cenvat Credit under Rule 5 of the CCR, 2004 on the ground that the amount claimed as refund was not debited from the appellant’s Cenvat Credit Account at the time of filing the claim – HELD - There is no denial by the Revenue as to the claim of the appellant that subsequent to the filing of TRAN-1 Return, the refund amount was debited in its GSTR-3B/Electronic Credit Ledger - with the introduction of GST filing of ST-3 Return was done-away, there was also no provision in the ACES system to debit the refund amount and subsequent reversal by the appellant in its GSTR-3B file is a sufficient compliance with condition at paragraph 2(h) of Notification No. 27/2012-CE (NT) dated 18.06.2012 - denial of refund is not in accordance with law and hence the impugned order is set aside - the appeal is allowed [Read less]

2020-VIL-101-GUJ-CU  | High Court CUSTOMS

Customs - The petitioners have essentially challenged the Notification dated 01.06.2016, whereunder the respondent initiated investigation in respect of product called Naphthalene in both its forms namely Crude and Refined Naphthalene - whether the mere initiation of the investigation can be said to be in any manner prejudicial to the petitioner - HELD - the present petition is filed only against the notification of 01.06.2016, whereunder the concerned respondent has initiated the initiation of anti dumping investigation and concerning imports of crude and refine naphthalene and the authority has recorded its prima facie s... [Read more]

Customs - The petitioners have essentially challenged the Notification dated 01.06.2016, whereunder the respondent initiated investigation in respect of product called Naphthalene in both its forms namely Crude and Refined Naphthalene - whether the mere initiation of the investigation can be said to be in any manner prejudicial to the petitioner - HELD - the present petition is filed only against the notification of 01.06.2016, whereunder the concerned respondent has initiated the initiation of anti dumping investigation and concerning imports of crude and refine naphthalene and the authority has recorded its prima facie satisfaction qua requirement of initiation – the contention qua availability of the appeal for ousting the jurisdiction raised on behalf of the respondents may not be available in a given case and especially in this case also as the provision of 9-C of the Act if read closely would indicate that the same is available against the determination only and not against the investigation - the petition is filed when challenging the only initiation and when the authority has not concluded, the Court would be slow in interfering therewith, as it would rather require embarking upon further probing which may not be appropriate at this stage under the provisions of Article 226 of the Constitution of India - the perusal of notification impugned clearly indicate that the authority has considered the facts which were required to be taken into consideration, the sub-abrasion in the form of withdrawal of submission of those supporters in itself would not be an omission warranting interference by the Court under Article 226 of the Constitution of India - the aforesaid reasons especially when the notification impugned is not in any manner causing any prejudice to the petitioners, as the petitioners has not pleaded any special prejudice, the Court need not interfere therewith - the petition fails and is dismissed [Read less]

2020-VIL-108-CESTAT-HYD-CE  | CESTAT CENTRAL EXCISE

Central Excise - Demand of duty under section 4A ibid based on the MRP rates on Butyl rubber inner tubes – Revenue reliance on Notification No. 11/2006-CE(NT), dated 29.05.2006 to contend subject goods are “Parts, components and assemblies of automobiles” – HELD - the Notification No. 2/2006-CE(NT), dated 01.03.2006 was amended by Notification No. 11/2006-CE(NT), dated 29.05.2006, by inserting a new entry, which reads as “parts, components and assemblies of automobiles”. It is an admitted fact that the appellant is engaged in the manufacture of Butyl rubber inner tubes and such product by itself is separately i... [Read more]

Central Excise - Demand of duty under section 4A ibid based on the MRP rates on Butyl rubber inner tubes – Revenue reliance on Notification No. 11/2006-CE(NT), dated 29.05.2006 to contend subject goods are “Parts, components and assemblies of automobiles” – HELD - the Notification No. 2/2006-CE(NT), dated 01.03.2006 was amended by Notification No. 11/2006-CE(NT), dated 29.05.2006, by inserting a new entry, which reads as “parts, components and assemblies of automobiles”. It is an admitted fact that the appellant is engaged in the manufacture of Butyl rubber inner tubes and such product by itself is separately identifiable and is a distinct Marketable product. It cannot be said that the product manufactured by the appellant is exclusively meant for the automobile industries for use as parts and components and are not capable for use in other purposes. Since the goods manufactured by the appellant are meant for use by other manufacturers also, such manufactured goods cannot be subjected to levy of central excise duty under Section 4A of the CEA, 1944 - the duty liability cannot be fastened on the appellant under Section 4A of the Act. The appeal is allowed in favour of the appellant [Read less]

2020-VIL-102-CESTAT-HYD-CE  | CESTAT CENTRAL EXCISE

Central Excise - SCN on the ground that appellant did not pay the amount equal to 10% of the sale price of exempted goods viz. ‘Iopamidol’ – HELD - the appellant’s contention regarding reversal of proportionate CENVAT Credit on inputs used for manufacture of exempted final products was not specifically addressed by the department in the impugned order. On a query regarding maintenance of records for the purpose of requirement of CENVAT statute, appellant submits that the records maintained are the statutory records required for maintenance under the Drugs & Cosmetics Act, 1940. On the contrary, the department has i... [Read more]

Central Excise - SCN on the ground that appellant did not pay the amount equal to 10% of the sale price of exempted goods viz. ‘Iopamidol’ – HELD - the appellant’s contention regarding reversal of proportionate CENVAT Credit on inputs used for manufacture of exempted final products was not specifically addressed by the department in the impugned order. On a query regarding maintenance of records for the purpose of requirement of CENVAT statute, appellant submits that the records maintained are the statutory records required for maintenance under the Drugs & Cosmetics Act, 1940. On the contrary, the department has invoked the provisions of Rule 6(3) of CCR, 2004 to hold that the appellant has not maintained the prescribed records and thus, is liable to pay 10% levy. Since there are contradictions in the stand of the Revenue as well as the appellant regarding maintenance of adequate records, this particular aspect has to be re-examined for proper appreciation - the impugned order is set aside and the appeal is allowed by way of remand [Read less]

2020-VIL-09-SC  | Supreme Court SGST

GST – Anti-profiteering provisions - constitutional validity of Section 171 of the Central Goods and Services Tax Act 2017 r/w Rule 126 of the Central Goods and Services Tax Rules 2017 – HELD – there are twenty writ petitions are pending before the High Court of Delhi. Two writ petitions, which are the subject matter of the present Transfer Petitions, are pending before the High Court of Judicature at Bombay - it is appropriate and proper that, in the interests of a uniform and consistent view on the law, all the writ petitions should be transferred to the High Court of Delhi, where earlier writ petitions are already... [Read more]

GST – Anti-profiteering provisions - constitutional validity of Section 171 of the Central Goods and Services Tax Act 2017 r/w Rule 126 of the Central Goods and Services Tax Rules 2017 – HELD – there are twenty writ petitions are pending before the High Court of Delhi. Two writ petitions, which are the subject matter of the present Transfer Petitions, are pending before the High Court of Judicature at Bombay - it is appropriate and proper that, in the interests of a uniform and consistent view on the law, all the writ petitions should be transferred to the High Court of Delhi, where earlier writ petitions are already pending - the Transfer Petitions are allowed and the subject writ petitions shall stand transferred to the High Court of Delhi [Read less]

2020-VIL-90-GUJ-CE  | High Court CENTRAL EXCISE

Central Excise - Classification of “Siapton 10L” – whether Fertilizer under Chapter sub heading No.31010099 of CETA, 1985 or plant growth regulator falling within sub-heading No.3808 93 90 attracting appropriate rate of Excise Duty – petitioner aggrieved with interim order of the CESTAT, referring the question on the issue of classification of the subject product to Larger Bench for answer – HELD - the Delhi Bench of Tribunal in case of Northern Minerals Ltd did refer to the dictionary meaning and various discussion on “plant, growth, regulator and plant, growth promoter” to cull-out fine distinction between ... [Read more]

Central Excise - Classification of “Siapton 10L” – whether Fertilizer under Chapter sub heading No.31010099 of CETA, 1985 or plant growth regulator falling within sub-heading No.3808 93 90 attracting appropriate rate of Excise Duty – petitioner aggrieved with interim order of the CESTAT, referring the question on the issue of classification of the subject product to Larger Bench for answer – HELD - the Delhi Bench of Tribunal in case of Northern Minerals Ltd did refer to the dictionary meaning and various discussion on “plant, growth, regulator and plant, growth promoter” to cull-out fine distinction between the two. But the research on this aspect was bearing in mind the product “Dhanzyme” and its ingredients, applicability, methodology of its application and usage. Thus, the discussion and research was producentic viz. “Dhanzyme” - the Supreme Court's cryptic approval is also and always binding upon all the Courts and adjudicating forums in the country and no forum can deviate therefrom - This proposition of law needs no further elaboration and therefore precedent, if any, needs to be followed. However, this proposition of law cannot be stretched so as to compel the adjudicatory for a to overlook the distinguishing facts which may wholly take-out the case from the purview and covering by the view of the Court, whose judgment is cited as precedent. Therefore, it is always said that the precedents are to be read in its totality when they are laying down the proposition of law - the judgment of the Delhi Bench of CESTAT in Northern Minerals can be said to be a product specific or producentic viz. “Dhanzyme” - The discussion in respect of the product in question based upon the prima facie opinion of the tribunal requiring the tribunal to refer the matter to Larger Bench cannot be said to be so prejudicial to the petitioner to call for any interference - the petition is disposed of [Read less]

2020-VIL-107-CESTAT-DEL-CU  | CESTAT Case CUSTOMS

Customs - The appellant is in appeal against the impugned order wherein refund of SAD was rejected on the ground that the duty has been paid by the appellant by utilising duty paid script – HELD - appellant paid VAT/CST while selling the imported goods and filed claim of refund for SAD in terms of Notification No. 102/2007. The said refund claim was rejected on the basis of Public Notice No. 06/2014 dated 18.04.2013 which provide that duty payment through script on refund claim is not admissible - in Notification No. 102/2007-Cus. there is no restriction to pay duty by utilisation of duty paid script. Therefore, the Publ... [Read more]

Customs - The appellant is in appeal against the impugned order wherein refund of SAD was rejected on the ground that the duty has been paid by the appellant by utilising duty paid script – HELD - appellant paid VAT/CST while selling the imported goods and filed claim of refund for SAD in terms of Notification No. 102/2007. The said refund claim was rejected on the basis of Public Notice No. 06/2014 dated 18.04.2013 which provide that duty payment through script on refund claim is not admissible - in Notification No. 102/2007-Cus. there is no restriction to pay duty by utilisation of duty paid script. Therefore, the Public Notice dated 18.04.2013 is no application for rejection of refund claim of SAD paid by utilisation of duty paid script – the appellant is entitled for refund of the SAD paid by utilisation of duty paid script - the impugned order is set aside and the appeal is allowed [Read less]

2020-VIL-93-MAD  | High Court VAT

Tamil Nadu VAT Act, 2006 – Section 19 – Input Tax Credit - Inter-State sale of goods to SEZs located outside the State of Tamil Nadu - Revenue seeking reversal of Input Tax Credit availed on supply made to SEZ located outside the State of Tamil Nadu on the ground that such clearances are exempted within the meaning of Section 15 of TNVAT Act, 2006 – HELD – The sale made by the petitioner to units located in SEZ, outside the State of Tamil Nadu was not an exempted sale within the meaning of Section 15 of the TNVAT Act, 2006 - Such sale is neither exempted under 4th Schedule of the TNVAT Act, 2006 nor exempted under ... [Read more]

Tamil Nadu VAT Act, 2006 – Section 19 – Input Tax Credit - Inter-State sale of goods to SEZs located outside the State of Tamil Nadu - Revenue seeking reversal of Input Tax Credit availed on supply made to SEZ located outside the State of Tamil Nadu on the ground that such clearances are exempted within the meaning of Section 15 of TNVAT Act, 2006 – HELD – The sale made by the petitioner to units located in SEZ, outside the State of Tamil Nadu was not an exempted sale within the meaning of Section 15 of the TNVAT Act, 2006 - Such sale is neither exempted under 4th Schedule of the TNVAT Act, 2006 nor exempted under a Notification of the State Government - If the intention of the legislature was to restrict the credit on the inputs used in the manufacture and sale of such manufactured goods under all circumstances, the restriction would have been expressly incorporated in Section 19(5)(c) of the Act – in terms of Section 19(5) of the Act, it is evident that credit cannot be denied on inputs merely because inputs were used in the manufacture of goods and such manufactured goods were sold to a buyer without payment of tax under Section 8(6) of the CST Act, 1956 - As there is no provision for denying credit, the demand proposed in the impugned notices are not correct - the writ petitions are allowed by remand [Read less]

2020-VIL-88-DEL-ST  | High Court SERVICE TAX

Service Tax - the agreement between the respondent and Sahara required the respondent to procure land from the land owners and transfer a part thereof to Sahara, after verifying the title of the land owners – whether the arrangement rendered the respondent liable to pay service tax under the head “Real Estate Agent” service – maintainability of Revenue appeal – HELD – clearly, the issue in controversy relates to chargeability of service tax - where the lis pertains to chargeability of the activity, conducted by the assessee, to service tax, no appeal would be maintainable before this Court, and that the appeal ... [Read more]

Service Tax - the agreement between the respondent and Sahara required the respondent to procure land from the land owners and transfer a part thereof to Sahara, after verifying the title of the land owners – whether the arrangement rendered the respondent liable to pay service tax under the head “Real Estate Agent” service – maintainability of Revenue appeal – HELD – clearly, the issue in controversy relates to chargeability of service tax - where the lis pertains to chargeability of the activity, conducted by the assessee, to service tax, no appeal would be maintainable before this Court, and that the appeal would lie, instead, to the Supreme Court. This position also stands clarified by Circular No. 334/15/2014-TRU, dated 10-07-2014 of the CBEC - the present appeal is not maintainable before this Court, the appeal is dismissed as not maintainable [Read less]

2020-VIL-46-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR – Applicable rate of GST on sub-contract work of imparting training of soft skill development to Engineers, ITI students, Building and other construction workers – HELD - Though the services to be provided by the applicant would be under training programme for Recognition of Prior Learning (RPL) to construction workers, the services would be provided to the Main Contractor i.e. the recipient of the services would be the Main contractor, but not the State Government. Therefore, the required conditions are not fulfilled and hence the applicant is not entitled for exemption under entry No.72 of Notif... [Read more]

GST – Karnataka AAR – Applicable rate of GST on sub-contract work of imparting training of soft skill development to Engineers, ITI students, Building and other construction workers – HELD - Though the services to be provided by the applicant would be under training programme for Recognition of Prior Learning (RPL) to construction workers, the services would be provided to the Main Contractor i.e. the recipient of the services would be the Main contractor, but not the State Government. Therefore, the required conditions are not fulfilled and hence the applicant is not entitled for exemption under entry No.72 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 - The rate of 18% GST is applicable on services to be provided under sub-contract to main contractor, who in turn provides to M/s Maharashtra State Skill Development Society (MSSDS), in respect of training of Building and other construction workers [Read less]

2020-VIL-47-AAR  | Advance Ruling Authority SGST

GST – Karnataka AAR - transaction of printing of content provided by the customer, on Poly Vinyl Chloride (PVC) banners and supply of such printed trade advertisement material - whether the activity of the applicant amounts to supply of goods or services and the classification & applicable rate of GST thereon on the said supply – HELD - The transaction of printing of content provided by the customer, on Poly Vinyl Chloride (PVC) banners and supply of such printed trade advertisement material is supply of service - The classification of aforesaid supply of service is 9989 of the scheme of classification of services - Th... [Read more]

GST – Karnataka AAR - transaction of printing of content provided by the customer, on Poly Vinyl Chloride (PVC) banners and supply of such printed trade advertisement material - whether the activity of the applicant amounts to supply of goods or services and the classification & applicable rate of GST thereon on the said supply – HELD - The transaction of printing of content provided by the customer, on Poly Vinyl Chloride (PVC) banners and supply of such printed trade advertisement material is supply of service - The classification of aforesaid supply of service is 9989 of the scheme of classification of services - The applicable rate of GST on the supply of aforesaid service is 18% up to 30.10.2017 & 12% effective from 31.10.2017, as per Entry No.27 of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, as amended [Read less]

2020-VIL-95-GUJ  | High Court SGST

GST – Section 140, 164 & Rule 117 - Review petition by the Department against the High Court Judgement allowing Transitional Credit – Revenue case that time limit contained in provisions of Rule 117 of the CSGT Rules cannot be seen as merely technical in nature – binding precedent and per incuriam – HELD - this Court has followed the judgement in the case of Filco Trade Centre Pvt. Ltd., wherein, after relying on number of judgements of the Apex Court, the coordinate Bench of this Court had followed the consistent findings of the Apex Court and held that the right accrued to the assessee on the date when the paid t... [Read more]

GST – Section 140, 164 & Rule 117 - Review petition by the Department against the High Court Judgement allowing Transitional Credit – Revenue case that time limit contained in provisions of Rule 117 of the CSGT Rules cannot be seen as merely technical in nature – binding precedent and per incuriam – HELD - this Court has followed the judgement in the case of Filco Trade Centre Pvt. Ltd., wherein, after relying on number of judgements of the Apex Court, the coordinate Bench of this Court had followed the consistent findings of the Apex Court and held that the right accrued to the assessee on the date when the paid tax on the raw materials or the inputs and that right would continue by way of CENVAT credit. The CENVAT credit is therefore indefeasible. Following the said principle, this Court had directed the Department to permit the respondents to allow filing declaration form in GST TRAN-1 and GST TRAN-2, so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the GST Act - Thus, when the co-ordinate Bench had already declared clause (iv) of sub-section (3) of Section 140 as unconstitutional, we do not have any hesitation to declare Rule 117 of the CGST Rules, 2017 for the purpose of claiming transitional credit as procedural in nature and should not be construed as mandatory provision – the applicants have not taken care to look into the previous judgement of the co-ordinate Bench of this Court in the case of Filco Trade Centre Pvt. Ltd. and have hurriedly filed these Misc. Civil Applications alleging the order of this Court per incuriam is required to be deprecated – the review applications is dismissed [Read less]

2020-VIL-106-CESTAT-MUM-CE  | CESTAT CENTRAL EXCISE

Central Excise - Refund claim on account of inverted duty - appellant is a manufacturer of medicaments which are exported under bond/LUT without payment of duty as well as with payment of duty under rebate claim - Denial of refund of Cenvat Credit to the appellant on the ground that the same could have been adjusted against output tax liability – HELD – the goods were cleared for export under LUT as well as on payment of duty - Appellant had not denied that there was opportunity on its part to utilise accumulated credit for export of goods on payment of duty but its only contention was that even after payment of all du... [Read more]

Central Excise - Refund claim on account of inverted duty - appellant is a manufacturer of medicaments which are exported under bond/LUT without payment of duty as well as with payment of duty under rebate claim - Denial of refund of Cenvat Credit to the appellant on the ground that the same could have been adjusted against output tax liability – HELD – the goods were cleared for export under LUT as well as on payment of duty - Appellant had not denied that there was opportunity on its part to utilise accumulated credit for export of goods on payment of duty but its only contention was that even after payment of all duties, it had accumulated Cenvat credit because of high rate of duty in the input and low rate duty in the output, which is required to be refunded. Going by Rule 5 of Cenvat Credit Rule, it is manifestly clear that refund is admissible where for any reason such adjustment is not possible. In the instance case, adjustment of 12% duty on inputs can never be made possible against 6% on output to bring the difference to ‘zero’ level. Therefore the Ld. Commissioner (Appeals) should have refunded the balance amount which was available to the claimant as further adjustment was not possible - The appellant is entitled to get refund under Rule 5 of CCR, 2004 along with applicable interest as per Section 11BB of the Central Excise Act, 1944 – the appeal is allowed [Read less]

2020-VIL-92-MAD-CE  | High Court CENTRAL EXCISE

Central Excise – Supply of Stainless Steel Coin Blanks to Department of Economic Affairs, Government of India – Refund claim of duty paid during the interim period before grant of ad-hoc exemption from levy of Excise duty - Rejection of refund of Excise duty on the ground of limitation under Section 11B of the CEA, 1944 – Revenue contention that duty was not paid 'under protest' - pro-revenue approach of the Revenue Authorities – HELD - The exemption in the present case was granted to the specific Assessee, in the specific facts and for specific quantity of the Coin Blanks manufactured and supplied by the Assessee.... [Read more]

Central Excise – Supply of Stainless Steel Coin Blanks to Department of Economic Affairs, Government of India – Refund claim of duty paid during the interim period before grant of ad-hoc exemption from levy of Excise duty - Rejection of refund of Excise duty on the ground of limitation under Section 11B of the CEA, 1944 – Revenue contention that duty was not paid 'under protest' - pro-revenue approach of the Revenue Authorities – HELD - The exemption in the present case was granted to the specific Assessee, in the specific facts and for specific quantity of the Coin Blanks manufactured and supplied by the Assessee. This was done for the purpose of maintaining the value of Coin Blanks itself. The payment of excise duty at the time of clearance of goods in anticipation of exemption right from the day one was therefore with the ardent hope of real and effective exemption and the refund of duty paid by the Assessee under compulsion for clearance of the goods. Such a payment even though not labelled by the Assessee to have been paid 'under protest', could very well be treated as payment made by the Assessee 'under protest' only as per the provisions of Section 11B of the Act paving the way for the rightful refund of excise duty in consonance with Article 265 of Constitution of India which does not permit the State to collect the tax or duty without authority of law - the payment of duty could have been treated as payment 'under protest' as the assessee itself is a Government of India Undertaking, instead, taking a shortcut pro-revenue approach, the Adjudicating Authority thought it better to adopt a negative approach of denying the refund on that ground, pushing the Government of India Undertaking into the whirlpool of litigation, which resulted in severe loss of public time and money and time of the valuable time of the Courts - The intention of Ad-hoc exemption itself was a glaring fact available before the Assessing Authority but ignoring this fact, the Assessing Authority passed an order denying the refund partially, invoking the technical plea of limitation ignoring the exemption under the Second Proviso of Section 11B of the Act, whereby no limitation would apply when payment of Duty is treated as payment made 'under protest' – It is this kind of negative attitude of the Revenue Authorities which results in the legal battle between the Government of India Public Sector Undertakings and the Revenue Departments. On the other hand, it causes anguish to this Court and is depreciable, to say the least - The learned Tribunal, the highest Appellate forum under the Act chose to lean in favour of the Revenue just for the sake of it - The approach taken by the learned Tribunal was least expected - the present Writ Petition deserves to be allowed by setting aside the order passed by the learned Tribunal, as well as that of the authorities below Tribunal denying the refund to the Assessee - Writ Petition is allowed [Read less]

2020-VIL-91-JHR  | High Court VAT

Jharkhand Industrial Policy, 2001 - Petitioner seeking grant of interest subsidy under the provisions of the Jharkhand Industrial Policy, 2001 – HELD - Once the capital subsidy has already been granted on the basis of commercial production commencement by the respondents on 15.02.2011, there is no reason not to grant interest subsidy by the respondents under Clause 29.5 of the Jharkhand Industrial Policy, 2001 as per the interest subsidy the date of commercial production will be the same i.e. 15.02.2011. It was required to be kept in mind by the respondent-State the floating Jharkhand Industrial Policy, 2001 that it need... [Read more]

Jharkhand Industrial Policy, 2001 - Petitioner seeking grant of interest subsidy under the provisions of the Jharkhand Industrial Policy, 2001 – HELD - Once the capital subsidy has already been granted on the basis of commercial production commencement by the respondents on 15.02.2011, there is no reason not to grant interest subsidy by the respondents under Clause 29.5 of the Jharkhand Industrial Policy, 2001 as per the interest subsidy the date of commercial production will be the same i.e. 15.02.2011. It was required to be kept in mind by the respondent-State the floating Jharkhand Industrial Policy, 2001 that it needs to be carried out in strict terms of the Policy. It is only due to that Policy, the petitioner started its unit in the State of Jharkhand and that is in the benefit of the State - The respondent-State is directed to process interest subsidy for the financial year 2012-13 and 2013-14 - the writ petition stands allowed [Read less]

2020-VIL-87-KAR  | High Court VAT

Karnataka VAT Act, 2003 – Section 38(6) and Rule 47 - challenge to the Assessment/Re-assessment Orders made under the provisions of Section 39 of the KVAT Act on the ground that branches or units cannot be treated as separate “legal persons” and therefore supply of goods from one branch to another in the State does not amount to “sale” so as to attract the statutory levy - HELD - Rule 47 of Karnataka VAT Rules, 2005 which is promulgated to give effect to sub-section (6) of Section 38 of the Act enables the officer authorised by the Commissioner to permit each of the business branches of a corporate dealer to file... [Read more]

Karnataka VAT Act, 2003 – Section 38(6) and Rule 47 - challenge to the Assessment/Re-assessment Orders made under the provisions of Section 39 of the KVAT Act on the ground that branches or units cannot be treated as separate “legal persons” and therefore supply of goods from one branch to another in the State does not amount to “sale” so as to attract the statutory levy - HELD - Rule 47 of Karnataka VAT Rules, 2005 which is promulgated to give effect to sub-section (6) of Section 38 of the Act enables the officer authorised by the Commissioner to permit each of the business branches of a corporate dealer to file a separate return, per se does not make such branches separate juristic persons – Section 38 (6) of the Act and Rule 47 are only intended to facilitate ease of business of the branches which the corporate dealer has in the same State; their text and context do not support the contention that they are intended to confer legal personality on such branches on their registration - sale of goods being an accomplished contract necessarily involves minimum two persons inasmuch as one cannot contract with oneself; even the deeming provision in sub-section (3) of section 2(29) does not militate against this view; similarly, the inclusive definition of ‘person’ given in the dictionary clause of the Karnataka General Clauses Act, 1899 does not support the contention of the Revenue - the impugned orders are quashed and writ petitions succeed and allowed [Read less]

2020-VIL-100-P&H  | High Court VAT

Haryana Value Added Tax Act, 2003 - Whether the ‘hot mix material’ transferred in a Works Contract is liable to be taxed at the prescribed rates of its constituents or at general rate under the residuary clause – Deemed sale - Entry 54 of List II of Seventh Schedule and Article 286 of the Constitution of India – assessee challenge to assessment of ‘hot mix material’ at general rate – HELD - The restrictions under Article 286 of the Constitution of India would apply on the State Legislature while taxing the works contract. The State Legislature has power to prescribe uniform rate of tax on the goods involved i... [Read more]

Haryana Value Added Tax Act, 2003 - Whether the ‘hot mix material’ transferred in a Works Contract is liable to be taxed at the prescribed rates of its constituents or at general rate under the residuary clause – Deemed sale - Entry 54 of List II of Seventh Schedule and Article 286 of the Constitution of India – assessee challenge to assessment of ‘hot mix material’ at general rate – HELD - The restrictions under Article 286 of the Constitution of India would apply on the State Legislature while taxing the works contract. The State Legislature has power to prescribe uniform rate of tax on the goods involved in the works contract inspite of the fact that different rates are prescribed under the Act for the constituents involved therein. Further that identity of the goods transferred is lost in the process does not prevent them from being goods - The contention of the State that the goods when being incorporated were transferred in some other form and hence ingredients lose their identity, cannot be accepted, as there is a deemed sale of the ingredients of ‘hot mix material’ and the loss of identity of goods does not prevent them from being goods for the purpose of deemed sale - the goods transferred in execution of works contract will not be taxed at general rate but as per the rates prescribed of constituents of the ‘hot mix material’ - The appeals are allowed [Read less]

2020-VIL-89-KER  | High Court SGST

GST – Detention of goods under Section 129 of the CGST Act as part B of the e-way bill was not filled - Petitioner-assessee aggrieved by refusal of respondent to credit tax and penalty collected under section 129 of the CGST Act towards the its IGST liability against the GST No. held by it – Respondent’s reliance on Section 17(5)(i) of the CGST Act, 2017 to reject the prayer of the petitioner – HELD - the credit covered by Section 17 is “input tax credit” under Section 16 of the Act - it is only a purchaser of goods who is prohibited from claiming input credit of the tax paid under Section 129 of the Act. Petit... [Read more]

GST – Detention of goods under Section 129 of the CGST Act as part B of the e-way bill was not filled - Petitioner-assessee aggrieved by refusal of respondent to credit tax and penalty collected under section 129 of the CGST Act towards the its IGST liability against the GST No. held by it – Respondent’s reliance on Section 17(5)(i) of the CGST Act, 2017 to reject the prayer of the petitioner – HELD - the credit covered by Section 17 is “input tax credit” under Section 16 of the Act - it is only a purchaser of goods who is prohibited from claiming input credit of the tax paid under Section 129 of the Act. Petitioner is not claiming the benefit of input tax credit, instead it is only requesting for a credit towards the output tax liability - the matter requires serious reconsideration at the hands of the respondent as vital aspects enumerated in the writ petition have not been duly considered and adverted to - the impugned order refusing to credit the said amount towards the GST registration number of the petitioner stand quashed and the matter in relation thereto is remitted to the respondent for reconsideration - the Writ Petition is disposed of [Read less]

2020-VIL-10-GSTAA  | Appellate Authority SGST

GST - Refund claim of Cess paid on sale old and used car to own employee - rejection of refund claim of cess on the ground that no evidence has been furnished by the assessee that the car was old and used – appellant reliance on Notification No. 1/2018-Compensation Cess - HELD – The nil rate of Cess came into force vide Notification No. 01/2018-Compensation Cess dated 25.01.2018 whereas the invoice had already been raised by the appellant on 21.11.2017 with description therein ‘Advance towards sale of car’ – further, the appellant has not furnished any substantial evidence which prove that the car mentioned in th... [Read more]

GST - Refund claim of Cess paid on sale old and used car to own employee - rejection of refund claim of cess on the ground that no evidence has been furnished by the assessee that the car was old and used – appellant reliance on Notification No. 1/2018-Compensation Cess - HELD – The nil rate of Cess came into force vide Notification No. 01/2018-Compensation Cess dated 25.01.2018 whereas the invoice had already been raised by the appellant on 21.11.2017 with description therein ‘Advance towards sale of car’ – further, the appellant has not furnished any substantial evidence which prove that the car mentioned in the invoice is old and used in their grounds of appeal - The appellant also contends that the CESS is not applicable on advance towards sale of the car in the light of the Notification No. 66/2017 - Central Tax dated 15.11.2017. On plain reading of the Notification it is ample clear that the taxes are payable on the outward supply of goods at the time of supply. But in the instant case on perusal of documents submitted by the appellant it is not evident as on which date the supply of car has been affected to the employee. In the absence of the date of supply of car, the benefit of notification cannot be extended to the appellant - the appeal filled by the appellant is rejected [Read less]

2020-VIL-99-P&H  | High Court VAT

Haryana Value Added Tax Act, 2003 - whether the penalty for suppression of turnover can be sustained when the turnover was reflected in the books of account – HELD - Section 38 of the Act envisages imposition of penalty where a return furnished is false or incorrect in any material particular. In the case in hand, the appellant had successfully suppressed the turnover not only in the returns but also in proceedings under Section 15(3) of the Act and the tax charged was illegally retained by the appellant. In such event, even if the transaction was disclosed in the books of account it will be of no benefit. Moreover, Sect... [Read more]

Haryana Value Added Tax Act, 2003 - whether the penalty for suppression of turnover can be sustained when the turnover was reflected in the books of account – HELD - Section 38 of the Act envisages imposition of penalty where a return furnished is false or incorrect in any material particular. In the case in hand, the appellant had successfully suppressed the turnover not only in the returns but also in proceedings under Section 15(3) of the Act and the tax charged was illegally retained by the appellant. In such event, even if the transaction was disclosed in the books of account it will be of no benefit. Moreover, Section 38 of the Act is worded in a manner that it applies not only to maintaining false or incorrect account but also to filing incorrect or false returns, which the appellant did in the present case - The contention of the appellant that mischief was committed by the employee has rightly been rejected by the Tribunal – assessee appeal is dismissed [Read less]

2020-VIL-98-P&H  | High Court VAT

Haryana Value Added Tax Act, 2003 – assessee aggrieved by dismissal of review application as time-barred – Condonation of delay of 505 days - HELD - The explanation put forth is not sufficient for condoning the delay, rather it establishes negligence on the part of the appellant - There is limitation prescribed for six months for filing the review application. Even thereafter, for more than 500 days, the review application was not filed. The issuance of notice in the remand proceedings by the Assessing Authority itself cannot be a ground for condoning the delay - In the present case, apart from six months prescribed li... [Read more]

Haryana Value Added Tax Act, 2003 – assessee aggrieved by dismissal of review application as time-barred – Condonation of delay of 505 days - HELD - The explanation put forth is not sufficient for condoning the delay, rather it establishes negligence on the part of the appellant - There is limitation prescribed for six months for filing the review application. Even thereafter, for more than 500 days, the review application was not filed. The issuance of notice in the remand proceedings by the Assessing Authority itself cannot be a ground for condoning the delay - In the present case, apart from six months prescribed limitation, there is delay of 505 days, the explanation put forth is not worth acceptance - The appeal is dismissed [Read less]

2020-VIL-110-CESTAT-KOL-ST  | CESTAT SERVICE TAX

Service Tax – demand under the category of “Commercial Training or Coaching Services” and under the category of “Management Consultancy Services” on value of reimbursable expenses – HELD - the demand of Service Tax on reimbursable expenses is not sustainable - the training provided by the Appellant is relating to enhancement of ability, skill development and productivity are vocational training which are not general academic courses and the Appellant is entitled to exemption under Notification No.9/2003-ST Dated 20-06-2003 as amended and Notification No.24/2004-ST Dated 10-04-2004 which exempts vocational train... [Read more]

Service Tax – demand under the category of “Commercial Training or Coaching Services” and under the category of “Management Consultancy Services” on value of reimbursable expenses – HELD - the demand of Service Tax on reimbursable expenses is not sustainable - the training provided by the Appellant is relating to enhancement of ability, skill development and productivity are vocational training which are not general academic courses and the Appellant is entitled to exemption under Notification No.9/2003-ST Dated 20-06-2003 as amended and Notification No.24/2004-ST Dated 10-04-2004 which exempts vocational training by Commercial Training or Coaching Centre from levy of service tax - Notification No.24/2004-ST Dated 10-09-2004 is amended by Notification No.3/2010-ST dated 27-02-2010 by which the Explanation is substituted w.e.f. 27-02-2010 which defines vocational training institute to means an Industrial Training Institute or Industrial Training Centre affiliated to the National Council for vocational training offering courses in designated trades as notified under the Apprentice Act. The said amendment is applicable from 27-02-2010. The period under dispute in the instant case is prior to 27-02-2010 - the impugned Order is modified to the extent of demand prior to March, 2006 and the period beyond the normal demand in Section 73 of the Finance Act, 1994 - no offense and penalties can be created with retrospective effect nor in the facts and circumstances of the case extended period of limitation can be invoked - Appeals are disposed off [Read less]

2020-VIL-94-GUJ  | High Court SGST

GST – Levy of GST on milk chilling and packing services in relation to raw and unprocessed milk - petitioners case that though exemption is granted to milk chilling, storage and packing service by virtue of Notification No.11/2017 dated 28.6.2017, but the same exemption is denied by virtue of the letter/circular F. No.354/292/2018-TRU dated 9.8.2018 – Respondent contends chilled milk is not an agricultural produce therefore, packing of chilled milk cannot be called as packing of agricultural produce – HELD - The present case relates to raw and unprocessed milk. What is brought to the centres is raw milk in which no f... [Read more]

GST – Levy of GST on milk chilling and packing services in relation to raw and unprocessed milk - petitioners case that though exemption is granted to milk chilling, storage and packing service by virtue of Notification No.11/2017 dated 28.6.2017, but the same exemption is denied by virtue of the letter/circular F. No.354/292/2018-TRU dated 9.8.2018 – Respondent contends chilled milk is not an agricultural produce therefore, packing of chilled milk cannot be called as packing of agricultural produce – HELD - The present case relates to raw and unprocessed milk. What is brought to the centres is raw milk in which no further processing has been done and therefore, such milk is an agricultural produce - The chilling and packing services provided by the contractors to the petitioners are in respect of raw milk - Chilling of milk does not alter any of its essential characteristics and it still remains raw milk, and it is this raw milk which is thereafter packed. Therefore, chilling and storage of raw milk and packing it would clearly fall under sub-clause (e) of clause (i) of the Explanation of Heading 9986. Consequently, if the raw milk is only stored and packed, the support services would fall under Heading 9986 of the Table to Notification No.11/2017 - Central Tax (Rate) - the interpretation given by the respondents to the activities of chilling and packing of milk as contained in the impugned circular dated 9.8.2018 is not in consonance with the provisions contained in Serial No.24 of the Table to Notification No.11/2017-CT (Rate) dated 28.6.2017, therefore, the impugned circular cannot sustained and quashed and set aside. It is hereby held that milk chilling and packing service provided by the contractors to the petitioners are exempted by virtue of Serial No.24 of the table to Notification No.11/2017 - Central Tax (Rate) dated 28.6.2017 – the petition succeeds and is accordingly allowed [Read less]

2020-VIL-48-AAR  | Advance Ruling Authority SGST

GST - Uttarakhand AAR - Section 54 – accumulation of input tax credit on account of inverted duty structure lying in balance - Whether the meaning of word ‘lapse’ in Notification No. 20/2018-Central Tax (Rate) would mean lapse for refund or lapse for utilization of input tax credit for payment of output tax liability – HELD - Notification No. 5/2017-Central Tax (Rate), dated 28-6-2017 was further amended vide Notification No. 20/2018-Central Tax (Rate), dated 26-7-2018 - Notification No. 5/2017-Central Tax (Rate), dated 28-6-2017 has been issued in terms of Section 54(3) which prescribes that refund of accumulated ... [Read more]

GST - Uttarakhand AAR - Section 54 – accumulation of input tax credit on account of inverted duty structure lying in balance - Whether the meaning of word ‘lapse’ in Notification No. 20/2018-Central Tax (Rate) would mean lapse for refund or lapse for utilization of input tax credit for payment of output tax liability – HELD - Notification No. 5/2017-Central Tax (Rate), dated 28-6-2017 was further amended vide Notification No. 20/2018-Central Tax (Rate), dated 26-7-2018 - Notification No. 5/2017-Central Tax (Rate), dated 28-6-2017 has been issued in terms of Section 54(3) which prescribes that refund of accumulated ITC on account of inverted duty structure shall not be allowed in respect of goods mentioned therein - A comprehensive reading of amended notification makes it clear that the proviso seeks to lapse only such input tax credit which is the subject matter of principal notification, i.e. accumulated credit on account of inverted duty structure in respect of notified goods. Thus in terms of amended notification, the input tax credit on account of inverted duty structure lying in balance after payment of GST for the month of July (on purchases made on or before the 31st July, 2018) shall lapse – the Notification No. 5/2017-Central Tax (Rate) and Notification No. 20/2018-Central Tax (Rate) exclusively deal with refund of accumulated input tax credit on account of inverted duty structure only - when a requisite notification has been issued under a particular section, the provisions of said section spring into operation and an assessee, who is covered by the provisions of that section, is entitled to seek benefits thereunder [Read less]

2020-VIL-45-AAR  | Advance Ruling Authority SGST

GST – Works Contract - Whether the EPC contract for complete design, engineering, manufacture, procurement, testing, inspection and complete erection and commissioning of solar power generating system is ‘Composite Supply’ under Section 2(30) of the CGST Act, 2017 – HELD – Applicants are engaged in the business of setting up of SPGS on a turnkey basis, i.e., contracts for designing, erection, construction, installation, testing and commissioning of SPGS for the customers. Such types of contracts are commonly understood to be works contracts involving supplies of goods as well as services - the impugned transactio... [Read more]

GST – Works Contract - Whether the EPC contract for complete design, engineering, manufacture, procurement, testing, inspection and complete erection and commissioning of solar power generating system is ‘Composite Supply’ under Section 2(30) of the CGST Act, 2017 – HELD – Applicants are engaged in the business of setting up of SPGS on a turnkey basis, i.e., contracts for designing, erection, construction, installation, testing and commissioning of SPGS for the customers. Such types of contracts are commonly understood to be works contracts involving supplies of goods as well as services - the impugned transaction for supply of the Solar Power Plant is a “works contract” in terms of clause (119) of section 2 of the GST Act as the activities are in relation to immovable property - In view of “works contracts” u/s 2(119) being deemed to be a supply of services, the impugned transaction would be a supply of “services” and it would fall under Heading 9954 (Construction services) for “composite supply of works contract” [Read less]

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