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More Judgements

2018-VIL-823-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax - credit on services received by appellant from their authorized service stations with regard to free after sale services and repairs etc. of warranty period – denial of credit of service tax paid on the commission for procuring the advertisement services has been denied - whether the appellant are entitled for Cenvat credit of the service tax paid on common infrastructural facilities – HELD – since the value of free after sale services and the warranty period repairs and maintenance are already included in the assessable value of the two wheelers, the service tax paid on availment of such input services ... [Read more]

Service Tax - credit on services received by appellant from their authorized service stations with regard to free after sale services and repairs etc. of warranty period – denial of credit of service tax paid on the commission for procuring the advertisement services has been denied - whether the appellant are entitled for Cenvat credit of the service tax paid on common infrastructural facilities – HELD – since the value of free after sale services and the warranty period repairs and maintenance are already included in the assessable value of the two wheelers, the service tax paid on availment of such input services by the manufacturer from their authorized service station the appellant is entitled for credit of such input services - appellant are entitled to avail input service credit of the service tax paid on the commission charged by the print media agent for advertising their advertisement material into various newspapers – the common facilities availed by the appellant on rent basis are in ‘relation to the manufacture of goods’ and then on integral part of overall activity of manufacturing. Since the charges of rent/license fee paid by the appellant must have been included in the cost of the finished product manufactured by the appellant as per the provisions of Cenvat Credit Rules they are entitled for credit of service tax paid by them as the facilities were in relation to manufacturing of their finished product – the appeals succeed on all the counts – answered in favour of assessee [Read less]

2018-VIL-822-CESTAT-CHE-ST  | CESTAT SERVICE TAX

Service Tax – Demand in respect of services provided outside the territory of India but sale proceeds collected in India – HELD – there is no dispute that the service is provided outside the territory of India, but the Revenue wants to tax the assessee since it collects sale proceeds in India. But the legislature in its wisdom, has framed Rule 3(ii) to encourage exports and in turn foreign exchange remittances - the activity of the appellant being wholly performed outside India, is excluded from service tax liability as per Rule 3(ii) of the Taxation of Services (provided from outside India and received in India) Rul... [Read more]

Service Tax – Demand in respect of services provided outside the territory of India but sale proceeds collected in India – HELD – there is no dispute that the service is provided outside the territory of India, but the Revenue wants to tax the assessee since it collects sale proceeds in India. But the legislature in its wisdom, has framed Rule 3(ii) to encourage exports and in turn foreign exchange remittances - the activity of the appellant being wholly performed outside India, is excluded from service tax liability as per Rule 3(ii) of the Taxation of Services (provided from outside India and received in India) Rules, 2006 - the impugned order is set aside and the assessee appeal is allowed [Read less]

2018-VIL-819-CESTAT-ALH-CU  | CESTAT Case CUSTOMS

Customs - the appellants imported machine describing them as “Beverage Cooler SC-80” claiming classification under CTH 8418 50 00 - Revenue sought to classify the same under Heading 8418 69 30 and the lower authorities confirmed the same – hence, the present appeals by the appellant – HELD - The term or word ‘vending machines’ cannot be limited to machines having ‘automatic mechanisms’ only in the absence of any such limitation placed in the statute - The fact that the machine has the capacity to dispense with the fixed quantity of the beverage itself shows that the same is a vending machine. The contention... [Read more]

Customs - the appellants imported machine describing them as “Beverage Cooler SC-80” claiming classification under CTH 8418 50 00 - Revenue sought to classify the same under Heading 8418 69 30 and the lower authorities confirmed the same – hence, the present appeals by the appellant – HELD - The term or word ‘vending machines’ cannot be limited to machines having ‘automatic mechanisms’ only in the absence of any such limitation placed in the statute - The fact that the machine has the capacity to dispense with the fixed quantity of the beverage itself shows that the same is a vending machine. The contention of the appellant that heading 8418 69 30 only covers the automatic vending machine, without any human intervention, cannot be accepted inasmuch as the said heading includes vending machines, other than automatic vending machines. This indicates that automatic vending machines are not covered by the said heading which relate to only vending machines – Vending machines stand covered by heading 8418 69 30 specifically includes the vending machines and the goods in question admittedly being vending machines have to be held as covered by the said heading – the impugned order is upheld and the appeals are rejected – answered against assessee [Read less]

2018-VIL-561-MP-CE  | High Court CENTRAL EXCISE

Central Excise - Irregular availment of Cenvat credit of service tax on outward freight – recovery, interest and penalty – assessee in appeal against Tribunal order upholding invocation of extended period – HELD - for the period 2011-12 to 2014-15, the assessee had availed Cenvat credit of service tax on outward freight paid beyond the place of removal, as input service. Though a plea was taken by the assessee that by issue of notification No. 2014-CE(NT) dated 11/07/2014, sub-rule (qa) has been inserted in Rule 2 of CCR 2004 incorporating the definition of place of removal, the Cenvat credit on outward freight was s... [Read more]

Central Excise - Irregular availment of Cenvat credit of service tax on outward freight – recovery, interest and penalty – assessee in appeal against Tribunal order upholding invocation of extended period – HELD - for the period 2011-12 to 2014-15, the assessee had availed Cenvat credit of service tax on outward freight paid beyond the place of removal, as input service. Though a plea was taken by the assessee that by issue of notification No. 2014-CE(NT) dated 11/07/2014, sub-rule (qa) has been inserted in Rule 2 of CCR 2004 incorporating the definition of place of removal, the Cenvat credit on outward freight was stopped w.e.f. 11/07/2014. This defense by the assessee appeared to be deliberate to overcome the show cause because even prior to insertion of definition of “place of removal” under CCR, 2004, the same definition of “place of removal” under Section 4(3)(c) of CEA,1944 was applicable for Rule 2 of Rules 2004 - The appellant have taken credit on GTA services used beyond place of removal which is in blatant violation of the CENVAT Credit Rules. The fact of availment of such irregular credit was also not disclosed to the department, thus, it is a clear case of suppression warranting invocation of extended period and imposition of mandatory penalty - Since the appellant in contravention of the provisions contained in Section 4(3)(c) of 1944 Act r/w Rule 2(t) of the Rules 2004 availed the Cenvat Credit which was not available, the Revenue was within its right in imposing recovery, interest and penalty – assessee appeal is dismissed [Read less]

2018-VIL-824-CESTAT-CHE-CE  | CESTAT CENTRAL EXCISE

Central Excise - The appellants were clearing waste materials namely cinders to Dalmia Refractories without payment of duty who in turn sold the same to various buyers on cost - the Department of the view that clearances of cinders is liable to duty – application of Explanation to Section 2 (d) of Central Excise Act, 1944 – HELD – Explanation to Section 2 (d) of CEA, 1944 is only an amplification only for goods which are “excisable goods”. In other words, the said Section 2(d) and its Explanation will obviously not be applicable to goods which are not excisable - the effect of Board’s circular dt. 18.11.2005 is... [Read more]

Central Excise - The appellants were clearing waste materials namely cinders to Dalmia Refractories without payment of duty who in turn sold the same to various buyers on cost - the Department of the view that clearances of cinders is liable to duty – application of Explanation to Section 2 (d) of Central Excise Act, 1944 – HELD – Explanation to Section 2 (d) of CEA, 1944 is only an amplification only for goods which are “excisable goods”. In other words, the said Section 2(d) and its Explanation will obviously not be applicable to goods which are not excisable - the effect of Board’s circular dt. 18.11.2005 is to accept that Supreme Court’s ruling that cinder is non-excisable commodity. That particular circular has not been withdrawn, hence, cinder will continue to be a non-excisable commodity during the period of dispute, notwithstanding subsequent amendment to Section 2(d) w.e.f. 10.05.2008 - the impugned order upholding the view of original authority that cinder is a dutiable product and exigible to Central Excise duty cannot be sustained and set aside - the appeal is allowed – answered in favour of assessee [Read less]

2018-VIL-562-ALH  | High Court SGST

GST - The goods were seized under section 129(1) of the UPGST Act, 2017 for the reason that the E-Way Bill had expired – HELD - The E-Way Bill had expired in the midnight and goods were seized one hour after the expiry of the said time. The goods had reached at the destination in time but on account of no entry, the vehicle could not enter into the city - the seized goods and the vehicles be released forthwith on furnishing security in the form of bank guarantee of the amount equivalent to that as prescribed under section 129(1) of the U.P. GST Act - the writ petition stands disposed off... [Read more]

GST - The goods were seized under section 129(1) of the UPGST Act, 2017 for the reason that the E-Way Bill had expired – HELD - The E-Way Bill had expired in the midnight and goods were seized one hour after the expiry of the said time. The goods had reached at the destination in time but on account of no entry, the vehicle could not enter into the city - the seized goods and the vehicles be released forthwith on furnishing security in the form of bank guarantee of the amount equivalent to that as prescribed under section 129(1) of the U.P. GST Act - the writ petition stands disposed off [Read less]

2018-VIL-320-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - Pure Agent - Whether GST is applicable on Reimbursement of salary on behalf of foreign entity – HELD - The entire amount received by the applicant from RMS towards salary of crews is disbursed as such. Hence with respect to this transaction it is crystal clear that the applicant is acting as a pure agent of RMS - the applicant will be acting as a pure agent of RMS in as much as the entire amount received by them as Crews' Salary will be disbursed to the Crew and no amounts from the said receipt will be used by the applicant for his own interest - the applicant will not be liable to pay GST on Sa... [Read more]

GST – Maharashtra AAR - Pure Agent - Whether GST is applicable on Reimbursement of salary on behalf of foreign entity – HELD - The entire amount received by the applicant from RMS towards salary of crews is disbursed as such. Hence with respect to this transaction it is crystal clear that the applicant is acting as a pure agent of RMS - the applicant will be acting as a pure agent of RMS in as much as the entire amount received by them as Crews' Salary will be disbursed to the Crew and no amounts from the said receipt will be used by the applicant for his own interest - the applicant will not be liable to pay GST on Salary amount received from RMS and disbursed to the Crew [Read less]

2018-VIL-311-AAR  | Advance Ruling Authority SGST

GST - Maharashtra AAR - slump sale on going concern basis - Whether applicant's direction to the seller for direct transfer of BP business to MSPL and PM business to MPMPL, respectively would qualify as a 'supply between the applicant' and MSPL/MPMPL - If the answer to the above question is 'affirmative' then as the parties are related, even in absence of the actual consideration does the applicant have to attribute a notional consideration and charge GST in line with Schedule I of GST Act to be compliant – HELD - the direction given by the applicant as per agreement dated 21.06.2018 for direct transfer of BP business to... [Read more]

GST - Maharashtra AAR - slump sale on going concern basis - Whether applicant's direction to the seller for direct transfer of BP business to MSPL and PM business to MPMPL, respectively would qualify as a 'supply between the applicant' and MSPL/MPMPL - If the answer to the above question is 'affirmative' then as the parties are related, even in absence of the actual consideration does the applicant have to attribute a notional consideration and charge GST in line with Schedule I of GST Act to be compliant – HELD - the direction given by the applicant as per agreement dated 21.06.2018 for direct transfer of BP business to MSPL and PM business to MPMPL would qualify as a supply between the applicant and MSPL/MPMPL - the role of the applicant is very crucial in respect of both the agreements and without the directions of the applicant, the second agreement could not have materialized and in respect of all the terms of the second agreement, the applicant is an active party in the agreement – Thus the role of the applicant is clearly a Service covered in para 5(e) of Schedule-II of Section 7 of the CGST Act, wherein the applicant is doing the act of giving direction to the seller for transfer of BP and PM businesses to MSPL and MPMPL respectively as per his directions and terms and conditions agreeable to him due to special authority in this regard, vested in him through the agreement – the present case involves provision of service as per para 5(e) of Schedule-II to Section 7, between related person where the applicant is stating that there is no consideration. In view of this, the value is to be determined in terms of Rule 28 of the CGST Rules, 2017 [Read less]

2018-VIL-312-AAR  | Advance Ruling Authority SGST

GST - Maharashtra AAR - The Unleavened Flatbreads products such as plain chapatti, Tortilla, Tortilla Wraps, roti, Roti rolls, Wraps, Paratha and Paratha wraps are liable to GST @ 5% - The product Leavened Flatbreads such as Naan, Kulcha and Chalupa are not covered by the expression 'bread' and they would be covered under residual entry and liable for tax @ 18%. However Pita Bread is covered by the expression 'bread' as mentioned under Entry No. 97 of Exemption Notifications - The products like Corn Chips, Corn Taco and Corn, Taco Strips would be treated as ‘wafer’ and taxable @ 18% - the product Pancakes is liable for... [Read more]

GST - Maharashtra AAR - The Unleavened Flatbreads products such as plain chapatti, Tortilla, Tortilla Wraps, roti, Roti rolls, Wraps, Paratha and Paratha wraps are liable to GST @ 5% - The product Leavened Flatbreads such as Naan, Kulcha and Chalupa are not covered by the expression 'bread' and they would be covered under residual entry and liable for tax @ 18%. However Pita Bread is covered by the expression 'bread' as mentioned under Entry No. 97 of Exemption Notifications - The products like Corn Chips, Corn Taco and Corn, Taco Strips would be treated as ‘wafer’ and taxable @ 18% - the product Pancakes is liable for taxes @ 18% - The product, Pizza Base would be treated as 'Pizza Bread' and taxable @ 18% [Read less]

2018-VIL-313-AAR  | Advance Ruling Authority SGST

GST - Maharashtra AAR - equipments without which the ship would not be complete and would not be able to function can be considered to be an essential part of a warship - metals used for constructing a warship/submarine and are consumed in the process of construction and will therefore be considered as consumables and therefore cannot be considered as parts of a warship/submarine – items such as welding electrodes, adhesives, compressed air, industrial cutting gases, etc. cannot be considered as parts of a warship, they are essentially in the form of consumables - The items which are considered as parts of warships are a... [Read more]

GST - Maharashtra AAR - equipments without which the ship would not be complete and would not be able to function can be considered to be an essential part of a warship - metals used for constructing a warship/submarine and are consumed in the process of construction and will therefore be considered as consumables and therefore cannot be considered as parts of a warship/submarine – items such as welding electrodes, adhesives, compressed air, industrial cutting gases, etc. cannot be considered as parts of a warship, they are essentially in the form of consumables - The items which are considered as parts of warships are and liable to GST @ 5% and for the other items, the tax rate will be applicable as per the respective Scheduled Entry in which the goods fall [Read less]

2018-VIL-314-AAR  | Advance Ruling Authority SGST

GST - Maharashtra AAR - Whether the marketing, promotion and distribution services provided by applicant to its parent company, situated in Singapore qualify as export of service - HELD - the applicant is not providing services on their own account but on account of Sabre APAC, and thus it is very apparent that the applicant is providing Intermediary Services in the instant case - Since the place of supply of services in the instant case is in taxable territory, the said intermediary services cannot be treated as export of services under the provisions of the GST laws - in case the intermediary services are provided to the... [Read more]

GST - Maharashtra AAR - Whether the marketing, promotion and distribution services provided by applicant to its parent company, situated in Singapore qualify as export of service - HELD - the applicant is not providing services on their own account but on account of Sabre APAC, and thus it is very apparent that the applicant is providing Intermediary Services in the instant case - Since the place of supply of services in the instant case is in taxable territory, the said intermediary services cannot be treated as export of services under the provisions of the GST laws - in case the intermediary services are provided to the recipient located outside India, the inter-state provisions as contained under section 7(5) (c) shall be applicable and hence IGST is payable under such transaction [Read less]

2018-VIL-315-AAR  | Advance Ruling Authority SGST

GST - Maharashtra AAR - Whether on transfer of machines & moulds, from the premises of the job-worker to another job-worker, which were originally received under the erstwhile CEA, 1944 will constitute as "supply" under GST – HELD - Neither the applicant nor the first principal manufacturer have carried forward the capital goods into the GST regime by following the procedure prescribed by Section 117 of the Act. Hence, the subject transaction of transferring the capital goods from the first job worker to the second job worker would be an independent and fresh transaction for which the same would be treated as supply of g... [Read more]

GST - Maharashtra AAR - Whether on transfer of machines & moulds, from the premises of the job-worker to another job-worker, which were originally received under the erstwhile CEA, 1944 will constitute as "supply" under GST – HELD - Neither the applicant nor the first principal manufacturer have carried forward the capital goods into the GST regime by following the procedure prescribed by Section 117 of the Act. Hence, the subject transaction of transferring the capital goods from the first job worker to the second job worker would be an independent and fresh transaction for which the same would be treated as supply of goods and will be liable to tax under the GST Laws [Read less]

2018-VIL-316-AAR  | Advance Ruling Authority SGST

GST - Maharashtra AAR - From the transaction between the applicant and PIL, it is clear that in respect of the 'costs' paid and received there is no supply of goods/services and therefore there is no requirement to pay GST on such costs paid by the applicant to PIL - However in respect of the 'fixed costs' paid by the applicant to PIL, the said fixed costs are being paid to PIL for providing job work services to the applicant - Supply of beer per se is not taxable under GST. What is taxable in the subject case is the job work which is a service provided by PIL to the applicant, for which they are receiving consideration - ... [Read more]

GST - Maharashtra AAR - From the transaction between the applicant and PIL, it is clear that in respect of the 'costs' paid and received there is no supply of goods/services and therefore there is no requirement to pay GST on such costs paid by the applicant to PIL - However in respect of the 'fixed costs' paid by the applicant to PIL, the said fixed costs are being paid to PIL for providing job work services to the applicant - Supply of beer per se is not taxable under GST. What is taxable in the subject case is the job work which is a service provided by PIL to the applicant, for which they are receiving consideration - the taxes have to be discharged by PIL on the fixed fee received and not on costs received [Read less]

2018-VIL-317-AAR  | Advance Ruling Authority SGST

EIFFEL HILLS AND DALES DEVELOPERS PVT LTD: 25.09.2018 - GST - Maharashtra AAR - In the plumbing contract the activities of the applicant cannot be divided into two parts, namely supply of goods and services which are in fact inseparable - plumbing contract constitute a composite supply and it is indivisible works contract pertaining to immovable property - Electrical contract which involves supply of taxable goods and services is a composite supply as defined u/s 2(30) of the GST Act and the said composite supply is works contract as defined u/s 2(119) of the GST Act

2018-VIL-318-AAR  | Advance Ruling Authority SGST

LEAR AUTOMOTIVE INDIA PRIVATE LIMITED: 31.07.2018 - GST - Maharashtra AAR - Amortized value of the tool received on FOC basis from the customer is not required to be included in the value of finished goods manufactured and supplied by the applicant to the customer

2018-VIL-319-AAR  | Advance Ruling Authority SGST

GST - Maharashtra AAR – the applicant is mainly providing the services to the interested persons through hiring of pundits and Brahmans for religious ceremony like puja, abhishek etc. through their own website by charging the money - as per the GST law the applicant is acting as an "Intermediately" person and his services are not exempted - the applicant is covered under electronic commerce operator and shall be required to be registered under GST Act without fulfilling of threshold limit - the applicant is liable to pay GST on the value of commission received from website users/Pundits... [Read more]

GST - Maharashtra AAR – the applicant is mainly providing the services to the interested persons through hiring of pundits and Brahmans for religious ceremony like puja, abhishek etc. through their own website by charging the money - as per the GST law the applicant is acting as an "Intermediately" person and his services are not exempted - the applicant is covered under electronic commerce operator and shall be required to be registered under GST Act without fulfilling of threshold limit - the applicant is liable to pay GST on the value of commission received from website users/Pundits [Read less]

2018-VIL-559-GUJ  | High Court SGST

ORSON HOLDINGS COMPANY LIMITED Vs UNION OF INDIA: 07.12.2018 - GST – constitutional validity of rule 138(10) CGST Rule, 2017 to the extent it restricts validity period of the e-way bill in terms of distance to be travelled in a day - Challenge to various Sections and Rules of CGST Act and Rule, 2017 – HELD - Issue Notice returnable on 10th January, 2019

2018-VIL-557-GUJ  | High Court SGST

GST – Transitional Credit - Special Civil Application challenging impugned Press Release specifying 20th October, 2018 being the last date for availing Input Tax Credit in relation to invoices/ debit notes pertaining to July 2017 to March 2018 issued by corresponding suppliers – petitioner submits that sub-section (4) of section 16 of the CGST Act, 2017 contemplates furnishing of return in FORM GSTR-3 whereas FORM GSTR-3B is to be furnished in the circumstances, as contemplated under sub-rule (5) of rule 61 of the rules, therefore, the impugned press release is contrary to the provisions of the Act and the Rules – pe... [Read more]

GST – Transitional Credit - Special Civil Application challenging impugned Press Release specifying 20th October, 2018 being the last date for availing Input Tax Credit in relation to invoices/ debit notes pertaining to July 2017 to March 2018 issued by corresponding suppliers – petitioner submits that sub-section (4) of section 16 of the CGST Act, 2017 contemplates furnishing of return in FORM GSTR-3 whereas FORM GSTR-3B is to be furnished in the circumstances, as contemplated under sub-rule (5) of rule 61 of the rules, therefore, the impugned press release is contrary to the provisions of the Act and the Rules – petition admitted - Issue Notice returnable on 9th January, 2019 [Read less]

2018-VIL-555-ALH  | High Court VAT

U.P. Trade Tax Act, 1948 – contravention of section 28A - Levy of penalty on account of discrepancy in invoice and the Import Declaration Form – Whether there being no finding as to intention to evade tax recorded against the assessee and in face of duly filled statutory Form no. 31 found accompanying the goods, any penalty could have been imposed – HELD - For a valid levy of penalty, a positive finding as to intention to evade tax was a sine qua non. Penalty could not be imposed on a mere possibility of intention to evade tax - there was no room to assume existence of such intent by presuming a higher evidentiary va... [Read more]

U.P. Trade Tax Act, 1948 – contravention of section 28A - Levy of penalty on account of discrepancy in invoice and the Import Declaration Form – Whether there being no finding as to intention to evade tax recorded against the assessee and in face of duly filled statutory Form no. 31 found accompanying the goods, any penalty could have been imposed – HELD - For a valid levy of penalty, a positive finding as to intention to evade tax was a sine qua non. Penalty could not be imposed on a mere possibility of intention to evade tax - there was no room to assume existence of such intent by presuming a higher evidentiary value in favour of the invoice document and the bill of entry so as to override the entries made in the statutory Import Declaration Form-31 and other prescribed documents found accompanying the goods. Under Section 28-A of the Act, a valid import arises if it is accompanied with the documents prescribed under the Rule 83(4) of the UPVAT Rules – the Tribunal order is set aside and assessee appeal is allowed [Read less]

2018-VIL-821-CESTAT-ALH-CE  | CESTAT CENTRAL EXCISE

Central Excise – SSI exemption - Revenue view that the Micro Cellular Rubber Blocks cleared by appellant under nil tariff rate are actually Micro Cellular Rubber Sheets, attracting 10% advance rate of duty – denial of benefit of Small Scale Exemption Notification - the appellants contend that they are manufacturing Blocks, Revenue’s contention that the same are Sheets – HELD - The invoice issue by manufacturer is the main document showing the description of the goods and in the absence of any other evidence reflecting upon the fact that said description is not correct description, Revenue’s deviance from the same... [Read more]

Central Excise – SSI exemption - Revenue view that the Micro Cellular Rubber Blocks cleared by appellant under nil tariff rate are actually Micro Cellular Rubber Sheets, attracting 10% advance rate of duty – denial of benefit of Small Scale Exemption Notification - the appellants contend that they are manufacturing Blocks, Revenue’s contention that the same are Sheets – HELD - The invoice issue by manufacturer is the main document showing the description of the goods and in the absence of any other evidence reflecting upon the fact that said description is not correct description, Revenue’s deviance from the same is not proper - the description of the goods as sheets in the transport documents cannot be held to be having more evidentiary value than the tax invoices issued by the manufacturer himself - even if the goods are held to be sheets, as contended by the Revenue, the same are exempted in terms of N/No.3/2005-CX dated 24/02/2005 as amended - The appellants goods stand used by the customer in the manufacture of soles or heels or both, thus establishing the use of the goods leading to the consequential relief in terms of the Notification. The Revenue has not produced any contrary evidence to the effect that the goods were not used as soles or heels for footwear. As such, even if the goods are held to be sheets, the same would be exempted - The demand is set aside alongwith setting aside of penalty and confiscation of the goods – assessee appeal is allowed – answered in favour of assessee [Read less]

2018-VIL-820-CESTAT-CHE-CE  | CESTAT CENTRAL EXCISE

Central Excise – clearance of industrial valves without payment of duty against International Competitive Bidding - exemption under Notification No.6/2006-CE dt. 1.3.2006 - whether the conditions of Customs Notification No.21/2002-Cus are required to be fulfilled for claiming benefit of Notification No.6/2006-CE – violation of remand direction to determine eligibility of Essentiality Certificate that has been produced by appellant subsequent to their clearances – HELD - the remand directions of CESTAT in the final order were in a very narrow compass as the matter was remanded only to cause verification whether the ce... [Read more]

Central Excise – clearance of industrial valves without payment of duty against International Competitive Bidding - exemption under Notification No.6/2006-CE dt. 1.3.2006 - whether the conditions of Customs Notification No.21/2002-Cus are required to be fulfilled for claiming benefit of Notification No.6/2006-CE – violation of remand direction to determine eligibility of Essentiality Certificate that has been produced by appellant subsequent to their clearances – HELD - the remand directions of CESTAT in the final order were in a very narrow compass as the matter was remanded only to cause verification whether the certificates produced later meet the requirement of the notification. The said Tribunal’s order also clarified that the exemption is available only in cases where necessary certificates to ensure its proper end-use is produced. Thus, beyond these directions, the adjudicating authority should not have caused further tooth-combing of the matter - the said remand directions of the Tribunal have been given the go-by and instead, the adjudicating authority in the impugned order for reasons best known to him, has chosen to analyze and arrive at conclusions on many other extraneous aspects, such an exploration was nowhere in the scope of the remand directions in the earlier final order – in any case, the dispute is settled in favour of assessee as the conditions of Customs notification are applicable only to the importer order and not to a domestic manufacturer - the impugned order is set aside and appeal is allowed – answered in favour of assessee [Read less]

2018-VIL-558-MAD-CE  | High Court CENTRAL EXCISE

Central Excise – Section 11D - the appellant operating, under warehousing provisions, stock transfers petroleum products to their Depots – demand of duty on sale of Petroleum products from depot - Whether the order of Tribunal is correct in stating that subsequent price revisions in depots affects the duty liability of appellant, when Rule 7 of Valuation Rules 2000 requires payment of duty based on price prevalent at the time of clearance from the warehouse – HELD - the appellant cannot be permitted to pay duty on the rates prevailing on the date of stock transfer, ignoring the upward revision of rates, which is the ... [Read more]

Central Excise – Section 11D - the appellant operating, under warehousing provisions, stock transfers petroleum products to their Depots – demand of duty on sale of Petroleum products from depot - Whether the order of Tribunal is correct in stating that subsequent price revisions in depots affects the duty liability of appellant, when Rule 7 of Valuation Rules 2000 requires payment of duty based on price prevalent at the time of clearance from the warehouse – HELD - the appellant cannot be permitted to pay duty on the rates prevailing on the date of stock transfer, ignoring the upward revision of rates, which is the price at which the products to be sold to the customer - Arguments of the appellant that they have no control over the Depots, is no answer to avoid the demand - it is the duty of the appellant to maintain the records of the amounts received from the Depots, from the sale of HSD and Motor Spirit - Amount that are received from the Depots would include the excise duty collected by the Depots, at the revised rate. The calculations are accounted, against the appellant, therefore, the appellant alone is liable to pay the differential excise duty, recovered in terms of Section 11D of the CEA, 1944 – the Tribunal order is upheld and the appeal is dismissed – answered against the assessee [Read less]

2018-VIL-30-SC-CU  | Supreme Court Case CUSTOMS

Customs – Section 14 - Valuation of imported Aluminum Scrap – rejection of declared transaction value and enhancing the same by taking into consideration the grades of scrap Aluminum contents well as quantum of presence of other metals – revenue in appeal against Tribunal order rejecting the enhancement of assessable value – HELD - As per Sections 14(1) and 14(1-A), the value of any goods chargeable to ad valorem duty is deemed to be the price as referred to in that provision - the Tribunal has categorically remarked that the normal rule is that assessable value has to be arrived at on the basis of the price which ... [Read more]

Customs – Section 14 - Valuation of imported Aluminum Scrap – rejection of declared transaction value and enhancing the same by taking into consideration the grades of scrap Aluminum contents well as quantum of presence of other metals – revenue in appeal against Tribunal order rejecting the enhancement of assessable value – HELD - As per Sections 14(1) and 14(1-A), the value of any goods chargeable to ad valorem duty is deemed to be the price as referred to in that provision - the Tribunal has categorically remarked that the normal rule is that assessable value has to be arrived at on the basis of the price which is actually paid, as provided by Section 14 of the Customs Act - The Tribunal has correctly mentioned that this declared price could be rejected only with cogent reasons by undertaking the exercise as to on what basis the Assessing Authority could hold that the paid price was not the sole consideration of the transaction value. Since there is no such exercise done by the Assessing Authority to reject the price declared in the Bills of Entry, the Order-in-Original was clearly erroneous – the Tribunal order is sustained and Revenue appeal is dismissed [Read less]

2018-VIL-560-BOM-ST  | High Court SERVICE TAX

Service Tax – Whether the Tribunal is justified in confirming the demand of service tax from the appellants on freight charges in terms of Rule 2(1)(d)(v) of Service Tax Rules, 1994 – invocation of extended period – HELD - all the authorities under the Act on facts, have come to the conclusion that the arrangement arrived at between the appellant and its dealers was so as to reduce the payment of service tax obligation of the appellant. This factual finding was based on detailed scrutiny the ledger account maintained by the appellant which shows the amount, which was reduced from the invoice is also accounted as frei... [Read more]

Service Tax – Whether the Tribunal is justified in confirming the demand of service tax from the appellants on freight charges in terms of Rule 2(1)(d)(v) of Service Tax Rules, 1994 – invocation of extended period – HELD - all the authorities under the Act on facts, have come to the conclusion that the arrangement arrived at between the appellant and its dealers was so as to reduce the payment of service tax obligation of the appellant. This factual finding was based on detailed scrutiny the ledger account maintained by the appellant which shows the amount, which was reduced from the invoice is also accounted as freight reimbursement. It was in these facts that the authorities have held that the freight paid by the dealers was for and on behalf of the appellant. Thus, the appellant would be liable for payment of service tax - on the basis of the definition as provided in Rule 2(1) (d)(v), the payment made by the agent would be a liability of the principal for the purposes of service tax. In so far as extended period of limitation is concerned, once the authorities have found on facts that there was an arrangement arrived at between the parties so as to reduce the payment of service tax, invocation of extended period of limitation cannot be faulted with – the assessee appeal is dismissed [Read less]

2018-VIL-818-CESTAT-MUM-ST  | CESTAT SERVICE TAX

Service Tax – licensing of media rights for telecast of IPL matches – demand under Franchisee Services - Whether the services as provided by the appellants to M/s MSM Singapore & M/s WSG qualify to be Franchisee Services as defined by the Section 65 (47) read with Section 65(48) and Section 65 (105) (zze) of the Finance Act, 1994 - Whether the services as provided by the Appellant qualify to be Export of Service as defined in terms of Export of Services Rules, 2005 – invocation of extended period of limitation – imposition of penalties under Section 76, 77 & 78 of Finance Act, 1994 justified in the facts and circum... [Read more]

Service Tax – licensing of media rights for telecast of IPL matches – demand under Franchisee Services - Whether the services as provided by the appellants to M/s MSM Singapore & M/s WSG qualify to be Franchisee Services as defined by the Section 65 (47) read with Section 65(48) and Section 65 (105) (zze) of the Finance Act, 1994 - Whether the services as provided by the Appellant qualify to be Export of Service as defined in terms of Export of Services Rules, 2005 – invocation of extended period of limitation – imposition of penalties under Section 76, 77 & 78 of Finance Act, 1994 justified in the facts and circumstances of this case – HELD - the phrase ‘representational right’ would not mean, extinguishing the identity of the franchisee, but is only to grant representational right in respect of the transaction in relation to the services that is being provided by the franchisor. In terms of the agreement, appellant have authorized the licensee to refer themselves as “Official Broadcasters of the IPL”. Thus the activity of the telecast or broadcast of the IPL matches assigned for a consideration to the licensee, and they have been permitted in terms of the agreement as “official broadcasters of the IPL”. Thus it is quite evident that the appellants have granted representational rights to the licensee, in relation to the telecast/ broadcast of the IPL matches - the services provided by the appellant in terms of media rights agreement to the licensee to fall within the category of Franchise Services - the service provided by the appellants are provided in India and used in India. Since prior to amendments made in Rule 3, with effect from 27.02.2010, the requirement of “providing the services from India for use outside India” was mandatory and is not satisfied in the present case, the benefit of Export of Services Rules, 2005 will not be available to the appellants - for the period prior to 27.02.2010, the benefit under Export of Service Rules, 2005 could not have been extended to the appellant. For the period after 27.02.2010, the said benefit can be extended to the appellant, to the extent they have shown that the payment against the said services was received in convertible foreign exchange - the extended period of limitation has been rightly invoked for demanding Service Tax - the provisions of section 78 will get attracted automatically and hence the penalty as imposed in respect of the SCN dated 14.10.2009 has to follow - penalties imposed under the provisions of Section 76 and 77 of the Finance Act, 1994 is upheld – the assessee appeal is dismissed - answered against the assessee [Read less]

2018-VIL-556-ALH  | High Court VAT

U.P. VAT Act, 2008 - Failure to deposit TDS within prescribed time limit - Whether penalty under Section 34(8) of the Act is mandatory or discretionary – Whether justification to impose penalty survived when the assessee had, of its own and prior to issuance of any notice, cleared the default in payment of TDS amount together with interest – HELD - though it is true 'concealment' is not an ingredient of penalty under section 34(8) of the Act, however, therefore, imposition of penalty is not automatic or mandatory merely upon the occurrence of a default. The true nature of penalty - whether mandatory or discretionary ma... [Read more]

U.P. VAT Act, 2008 - Failure to deposit TDS within prescribed time limit - Whether penalty under Section 34(8) of the Act is mandatory or discretionary – Whether justification to impose penalty survived when the assessee had, of its own and prior to issuance of any notice, cleared the default in payment of TDS amount together with interest – HELD - though it is true 'concealment' is not an ingredient of penalty under section 34(8) of the Act, however, therefore, imposition of penalty is not automatic or mandatory merely upon the occurrence of a default. The true nature of penalty - whether mandatory or discretionary may be determined on an interpretation of the statutory provision providing for penalty and not on a general principle of law or administrative convenience or even the facts of each case - though the language of section 34(8) of the Act does not admit any element of concealment as an ingredient for the penalty imposable under that provision of law, at the same time it clearly does not appear to suggest that in every case of default, in either making a deduction or in timely depositing the TDS amount, the defaulting assessee must, as a matter of principle, be penalised - on the question of interpretation, the imposition of penalty under section 34(8) of the Act as also quantification of the penalty amount is found to be directory and not mandatory - as the assessee was not caught having committed the default and it had made good the loss to the revenue before issuance of any notice of demand with respect to the defaulted amount etc., there survive no further legal justification to penalize such an assessee - answered in favour of the assessee and against the revenue - The assessee revision is allowed [Read less]

2018-VIL-27-AAAR  | Advance Ruling Authority SGST

GST - West Bengal AAAR - HDPE Woven Tarpaulin is not classifiable under HSN 6306 of GST tariff - Appellant's contention that the issue was related to Tarpaulin, simpliciter, and not of laminated HDPE fabrics, is not the correct representation of facts. The process of lamination can neither be ignored nor treated in seclusion, as it is an integral and vital process for HDPE fabrics being put to use as tarpaulin - Therefore, in view of the Note 1(h) to Section XI of the GST Tariff, the tarpaulins of HDPE woven fabrics, laminated as per specification of IS 7903:2017, being expressly excluded, do not merit classification under... [Read more]

GST - West Bengal AAAR - HDPE Woven Tarpaulin is not classifiable under HSN 6306 of GST tariff - Appellant's contention that the issue was related to Tarpaulin, simpliciter, and not of laminated HDPE fabrics, is not the correct representation of facts. The process of lamination can neither be ignored nor treated in seclusion, as it is an integral and vital process for HDPE fabrics being put to use as tarpaulin - Therefore, in view of the Note 1(h) to Section XI of the GST Tariff, the tarpaulins of HDPE woven fabrics, laminated as per specification of IS 7903:2017, being expressly excluded, do not merit classification under Chapter 63 – the appeal is dismissed [Read less]

2018-VIL-304-AAR  | Advance Ruling Authority SGST

SEGOMA IMAGING TECHNOLOGIES INDIA PRIVATE LIMITED: 20.08.2018 - GST - Maharashtra AAR - Whether the supply of photography service is liable to SGST under the Maharashtra Goods and Service Tax Act, 2017 and CGST under Central Goods and Service Tax Act, 2017 or IGST under Integrated Goods and Service Tax Act, 2017 - HELD - Answered in the affirmative - Or is it a zero rated "export" supply within the meaning of Section 2(23) r/w Section 2(6) of the IGST Act, 2017 - HELD - Answered in the Negative

2018-VIL-305-AAR  | Advance Ruling Authority SGST

GST - Maharashtra AAR -Whether CIDCO is covered under the definition of the term 'Government Entity' as per Notification No. 31/2017 - Central Tax (Rate) dated 13 October 2017 - HELD - Answered in the affirmative - Whether the tax rate of 12% (CGST 6% + SGST 6%) is applicable to the contract entered into by the Applicant with CIDCO, in pursuance of Notification No. 24/2017 - Central Tax (Rate) dated 21 September 2017 read with Notification No. 31/2017 - Central Tax (Rate) dated 13 October 2017 - HELD - Concessional rate of tax @ 12% would be applicable in respect of supply of goods/services, after coming into effect of not... [Read more]

GST - Maharashtra AAR -Whether CIDCO is covered under the definition of the term 'Government Entity' as per Notification No. 31/2017 - Central Tax (Rate) dated 13 October 2017 - HELD - Answered in the affirmative - Whether the tax rate of 12% (CGST 6% + SGST 6%) is applicable to the contract entered into by the Applicant with CIDCO, in pursuance of Notification No. 24/2017 - Central Tax (Rate) dated 21 September 2017 read with Notification No. 31/2017 - Central Tax (Rate) dated 13 October 2017 - HELD - Concessional rate of tax @ 12% would be applicable in respect of supply of goods/services, after coming into effect of notification No. 31/2017 CT (Rate) dated 13.10.2017 [Read less]

2018-VIL-306-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - supply of transportation of goods services by a supplier other than GTA or courier agency - In terms of the contract the Applicant is required to provide is that of transportation services with a distinct consideration attributed to the same - Whether the supply of transportation services, being rendered by the Applicant under the contract for services, will be exempt from the levy of GST in terms of Sl. no. 18 of the Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017 – HELD – the applicant is not transporting the goods but is hiring the services of a GTA to undertake the transp... [Read more]

GST – Maharashtra AAR - supply of transportation of goods services by a supplier other than GTA or courier agency - In terms of the contract the Applicant is required to provide is that of transportation services with a distinct consideration attributed to the same - Whether the supply of transportation services, being rendered by the Applicant under the contract for services, will be exempt from the levy of GST in terms of Sl. no. 18 of the Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017 – HELD – the applicant is not transporting the goods but is hiring the services of a GTA to undertake the transportation of goods by road & is claiming to be discharging GST liability under Reverse Charge Mechanism and in such a situation he is a recipient of such service and is not a supplier thereof – further, the first contract includes ex-works supply of all equipments and materials which includes testing and supply of cable package required for successful commissioning and the second contract consists of all other activities required to be performed for commissioning of the project which also includes transportation, insurance, etc. - both the contracts consisting of cross fall breach provisions are in the nature of 'Composite supply of Works Contract' which is a service & would be taxable @ 18% in terms of Sr. No. 3(11) of Notification No. 11/2017 - CT(Rate) dated 28.06.2017 & artificial bifurcation of contracts & scope of work as claimed by the applicant to go out of the scope of correct tax liability is not justified – the question is answered in the negative [Read less]

2018-VIL-307-AAR  | Advance Ruling Authority SGST

COMPO ADVICE INDIA PRIVATE LIMITED: 11.07.2018 - GST – Maharashtra AAR - Classification of Disc Brake Pads - Whether classifiable under 6813 or under 8708 – HELD - The Product i.e. Disc Brake Pads falls under chapter heading 8708 and liable to GST @ 28%

2018-VIL-308-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR – Taxability of the services provided by Lions Club – HELD - the club is not formed to provide any facilities or benefits to its members. The fees collected are used for social causes and to meet the expenses incurred in furtherance of the objectives of the Club. The Club is not formed to provide services to members but people gather under the umbrella of the Club to perform socially relevant activities - The applicant club does not render any 'Supply' for the purposes of the GST Act - As there is no furtherance of business in this activity and neither any services are rendered nor are any goods... [Read more]

GST – Maharashtra AAR – Taxability of the services provided by Lions Club – HELD - the club is not formed to provide any facilities or benefits to its members. The fees collected are used for social causes and to meet the expenses incurred in furtherance of the objectives of the Club. The Club is not formed to provide services to members but people gather under the umbrella of the Club to perform socially relevant activities - The applicant club does not render any 'Supply' for the purposes of the GST Act - As there is no furtherance of business in this activity and neither any services are rendered nor are any goods being traded, no registration is required by the applicant [Read less]

2018-VIL-309-AAR  | Advance Ruling Authority SGST

GST – Maharashtra AAR - whether the procedure to raise the invoice from Mumbai Head Office for imports received at Haldia Port, Kolkata, where applicant do not have separate GST Registration, and charging IGST from Mumbai to customers is correct or the applicants have to take separate Registration in the State of West Bengal for the said transactions - If applicant do not need separate registration in West Bengal, can they do the transaction on Mumbai Head Office GSTIN, then in case of issuance of e-way bill is it correct to mention the GSTIN of Mumbai and place of dispatch as Haldia Port – HELD - the place from where ... [Read more]

GST – Maharashtra AAR - whether the procedure to raise the invoice from Mumbai Head Office for imports received at Haldia Port, Kolkata, where applicant do not have separate GST Registration, and charging IGST from Mumbai to customers is correct or the applicants have to take separate Registration in the State of West Bengal for the said transactions - If applicant do not need separate registration in West Bengal, can they do the transaction on Mumbai Head Office GSTIN, then in case of issuance of e-way bill is it correct to mention the GSTIN of Mumbai and place of dispatch as Haldia Port – HELD - the place from where the applicant makes a taxable Supply of Goods shall be his location, in this case, the Mumbai Head Office and since the applicant does not have any godown in the state of West Bengal, the applicant can clear the goods on the basis of invoices issued by the Mumbai Head Office and therefore they need not take separate registration in the State of West Bengal - since as an importer the place of supply for the applicant in this case will be Mumbai, and the goods also will be cleared on the name of the Mumbai registered address while paying IGST at the time of Customs Clearance, it would follow that applicant can do the further transaction mentioning the GSTIN of their Mumbai office. Hence, applicant can transact on Mumbai GSTIN and can mention the GSTIN of Mumbai Head Office in the E-way Bill and dispatch place as Customs Warehouse, Kolkata [Read less]

2018-VIL-310-AAR  | Advance Ruling Authority SGST

GST – Madhya Pradesh AAR - the Applicant is required to mention the question(s) on which Advance Ruling is sought - merely mentioning of ‘Applicability of provisions of S.No.3 & 3A of Table of Notification no. 12/2017 dtd.28.06.2017 and corresponding notification issued under MPGST Act, 2017 as amended from time to time on services supplied to the company’ there is no specific question posed, and if at all it is a question the same is very generic and no Ruling is practically possible - In view of insufficient information provided in the Application, and the nature of query being broadly generic, no ruling can be giv... [Read more]

GST – Madhya Pradesh AAR - the Applicant is required to mention the question(s) on which Advance Ruling is sought - merely mentioning of ‘Applicability of provisions of S.No.3 & 3A of Table of Notification no. 12/2017 dtd.28.06.2017 and corresponding notification issued under MPGST Act, 2017 as amended from time to time on services supplied to the company’ there is no specific question posed, and if at all it is a question the same is very generic and no Ruling is practically possible - In view of insufficient information provided in the Application, and the nature of query being broadly generic, no ruling can be given on the Application [Read less]

2018-VIL-25-AAAR  | Advance Ruling Authority SGST

GST – Maharashtra AAAR - Whether the supply of warehouse services used for packing & storage of tea, which has undergone various stages of the processing, is exempted vide Serial No 54(e) of Notification No. 12/2017-Central tax (rate) – term ‘agricultural produce’ - HELD – the processes carried out by the client of the appellant (and not the cultivator or producer) leaves no doubt that they have lost the nature and characteristics of an agricultural produce in terms of the definition of 'agricultural produce' and are ready for secondary or tertiary market - it has never been the intention of the legislature to ta... [Read more]

GST – Maharashtra AAAR - Whether the supply of warehouse services used for packing & storage of tea, which has undergone various stages of the processing, is exempted vide Serial No 54(e) of Notification No. 12/2017-Central tax (rate) – term ‘agricultural produce’ - HELD – the processes carried out by the client of the appellant (and not the cultivator or producer) leaves no doubt that they have lost the nature and characteristics of an agricultural produce in terms of the definition of 'agricultural produce' and are ready for secondary or tertiary market - it has never been the intention of the legislature to tax the primary agricultural produce on which no processing is done or such processing is done either by the cultivator or the producers which does not alter the essential characteristics but makes it marketable for primary market. Thus, the notification levying GST on the processed tea product including black tea is clearly indicate that the disputed product is not an agricultural produce, rather the same is a manufactured produce - the products stored in the warehouse of the appellant are not the agricultural produce and is not exempted vide Notification No. 12/2017- Central tax (rate) – the appeal is rejected [Read less]

2018-VIL-26-AAAR  | Advance Ruling Authority SGST

GST – Karnataka AAAR - Taxi aggregation service – whether the Advance Ruling Authority has erred in holding that GST is leviable on the amounts billed by the appellant on behalf of the taxi operators for the services provided in the nature of transportation of passengers through it - whether the Appellant is an e-commerce operator and if so whether he is liable to pay tax on the service supplied through it in terms of Section 9(5) of the CGST Act – HELD – the booking for a taxi ride on the digital application is a part of the activity of the supply of the service of transportation of passengers. Without the booking... [Read more]

GST – Karnataka AAAR - Taxi aggregation service – whether the Advance Ruling Authority has erred in holding that GST is leviable on the amounts billed by the appellant on behalf of the taxi operators for the services provided in the nature of transportation of passengers through it - whether the Appellant is an e-commerce operator and if so whether he is liable to pay tax on the service supplied through it in terms of Section 9(5) of the CGST Act – HELD – the booking for a taxi ride on the digital application is a part of the activity of the supply of the service of transportation of passengers. Without the booking no service can be supplied. Every supply begins with a request for the supply. The request can be in the form of a written request like a purchase order, a verbal request or a request made on the digital application which is in the nature of 'booking'. Honouring such requests by the supplier of the goods or services, in return for a consideration, is the taxable event of 'supply'. Therefore, booking for a service is also an integral part of the supply chain and hence there is no merit in the argument of the Appellant that the service has merely been 'booked ' on their platform and not 'supplied through it' - The argument of the Appellant that the taxi services are merely booked through it and not supplied through it is not a tenable argument. Further, the fact that the e-commerce operator is not receiving the amount from the customer is also not a valid consideration since the e-commerce operator is deemed to have supplied the service in terms of Section 9 (5) - It is not relevant whether the consideration is paid to the e-commerce operator or to the service provider as far as the liability under section 9(5) of the CGST Act, 2017 is concerned - the services of transportation of passengers supplied through the Appellant's electronic platform and digital network would be liable to tax at the hands of the Appellant – the appeal is dismissed [Read less]

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