More Judgements

Advance Ruling Order  | Advance Ruling Authority SGST

Taxability of sale of developed land - 'Supply of service' or ‘Sale of land’: Difference of opinion - Matter referred to the Appellate Authority for Advance Ruling

2020-VIL-508-ALH  | High Court SGST

GST – Sec. 107 - Condonation of delay in filing of appeal, limitation, statutory period - Petitioner contends that the first Appellate Authority should have condoned the delay in filing of appeal as the order for tax and penalty was not available on the website and petitioner was not aware of the filing of appeal offline, hence, delay in filing the appeal within the statutory time limit – delay in filing appeal due to due to non-functioning of online filing facility – HELD – petitioner’s argument that delay in filing the appeal beyond the statutory period, as provided under Section 107 of the CGST Act, was that t... [Read more]

GST – Sec. 107 - Condonation of delay in filing of appeal, limitation, statutory period - Petitioner contends that the first Appellate Authority should have condoned the delay in filing of appeal as the order for tax and penalty was not available on the website and petitioner was not aware of the filing of appeal offline, hence, delay in filing the appeal within the statutory time limit – delay in filing appeal due to due to non-functioning of online filing facility – HELD – petitioner’s argument that delay in filing the appeal beyond the statutory period, as provided under Section 107 of the CGST Act, was that the penalty order was not reflected on the web-portal and the petitioner was not having knowledge of filing the appeal offline, cannot be accepted - Once the communication of the order is accepted to the petitioner, he cannot take the plea that the order was not served upon him and was not uploaded on the web-portal of the department – further, the argument of the petitioner that order served upon the driver of the vehicle will not amount to the service upon the petitioner, cannot be accepted as the date of communication of order has been specifically mentioned - writ petition is dismissed being devoid of merit – however, the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 [Read less]

2020-VIL-466-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax: Disallowance of Cenvat credit by holding that cenvat credit is admissible only when input service/inputs were used in providing any output service - Whether appellant is entitled to input service credit of amount in dispute – HELD - Appellant have been maintaining proper cenvat credit register, books of accounts along with supporting evidences and vouchers – Appellant renders output services being advertising agency services, maintenance and repair services, renting of immovable property services, etc – All services in question were eligible input services for rendering of output services – Appellant i... [Read more]

Service Tax: Disallowance of Cenvat credit by holding that cenvat credit is admissible only when input service/inputs were used in providing any output service - Whether appellant is entitled to input service credit of amount in dispute – HELD - Appellant have been maintaining proper cenvat credit register, books of accounts along with supporting evidences and vouchers – Appellant renders output services being advertising agency services, maintenance and repair services, renting of immovable property services, etc – All services in question were eligible input services for rendering of output services – Appellant is entitled to input service credit in dispute – Demand of service tax is also not tenable, as said demand was prima facie raised under impression that Appellant is not entitled to Cenvat credit – Whatever tax was in arrears as admitted by appellant, the appellant have deposited all taxes – Impugned order set aside and appeal is allowed [Read less]

2020-VIL-505-P&H  | High Court VAT

Punjab VAT Act, 2005 - Sec. 29, 62(5); CST Act - Sec. 3(b); pre-deposit, inter-state sale or intra-state sale, transfer of title of goods: The petitioner entered into a contract with NFL for the supply of material and equipment for modernization and revamping of their chemical fertilizers plant - the Assessing Authority formed an opinion that ownership of goods did not transfer to NFL till completion of the project and petitioner remained owner of goods till their utilisation – additional demand towards tax, levy of interest and penalty by treating the transaction as intra-state sale - Petitioner seeking waiver of pre-de... [Read more]

Punjab VAT Act, 2005 - Sec. 29, 62(5); CST Act - Sec. 3(b); pre-deposit, inter-state sale or intra-state sale, transfer of title of goods: The petitioner entered into a contract with NFL for the supply of material and equipment for modernization and revamping of their chemical fertilizers plant - the Assessing Authority formed an opinion that ownership of goods did not transfer to NFL till completion of the project and petitioner remained owner of goods till their utilisation – additional demand towards tax, levy of interest and penalty by treating the transaction as intra-state sale - Petitioner seeking waiver of pre-deposit for filing appeals before Appellate Authority – HELD - To declare transactions in question as ‘inter-state’, there is no dispute with respect to two out of three conditions. The dispute is confined to transfer of title of goods - As per terms and conditions of the contract, the property in goods was transferred by way of transfer of title of goods. As per respondent though invoices were issued for transfer of title of goods and they issued Form ‘C’ to NFL still petitioner continued to be owner of goods till completion of the Turnkey Project - On perusal of terms and conditions of contract, documents submitted by petitioner including Form ‘C’, the petitioner has prime facie case on merits - Penalty imposed is 200% when the case of interpretation and not fraud - It would be harsh if petitioner is required to deposit 25% of tax, interest and penalty - Keeping in mind that petitioner has prime facie case on merits, the petitioner is directed to make pre-deposit of 25% of tax and further some amount towards interest, which would make a total deposit Rs. 7.5 Crore towards the condition of pre-deposit for hearing the appeals - the petitions are disposed of [Read less]

2020-VIL-506-BOM-CU  | High Court CUSTOMS

Customs - Challenge to DGFT Notification No.31/2015-20 dated 14.09.2020 prohibiting the export of all varieties of onions with immediate effect – Petitioner grievance that, based on internal communication on policy changes regarding export of onions, the customs authorities did not allow entry of consignments of onions inside the gates of the customs area. The allegation is that during the whole day of 14.09.2020, Let Export Orders were not issued despite filing and generation of shipping bills for export of onions – HELD - sections 50 and 51 of the Customs Act would prima facie indicate that a great deal of sanctity i... [Read more]

Customs - Challenge to DGFT Notification No.31/2015-20 dated 14.09.2020 prohibiting the export of all varieties of onions with immediate effect – Petitioner grievance that, based on internal communication on policy changes regarding export of onions, the customs authorities did not allow entry of consignments of onions inside the gates of the customs area. The allegation is that during the whole day of 14.09.2020, Let Export Orders were not issued despite filing and generation of shipping bills for export of onions – HELD - sections 50 and 51 of the Customs Act would prima facie indicate that a great deal of sanctity is attached to a shipping bill and a bill of export - filing and generation of shipping bill is not an empty formality. It has a definite meaning assigned to it under the Shipping Bill (Electronic Integrated Declaration and Paperless Processing) Regulations, 2019. It sets in motion the process of exportation of goods - The 2019 Regulations only reinforces the sanctity attached to a shipping bill under section 50 of the Customs Act - export of onions in respect of the shipping bills which were presented and generated prior to 22:28:11 hours on 14.09.2020 shall be allowed subject to the clarification given by the CBIC - List this matter in the first week of December, 2020 – interim relief ordered [Read less]

2020-VIL-65-AAAR  | AAAR SGST

GST – Tamil Nadu AAAR - Appellant was engaged in supply of tobacco product with brand name 'Kavi cut Tobacco' for purposes of chewing – Whether product of Appellant was to be classified as 'Unmanufactured Tobacco' under CTH 24012090 as claimed by Appellant or as 'Manufactured Tobacco' under CTH 24039910 as hold by lower authority – HELD - Perusal of explanation given by Central Tobacco Research Institute make it clear that only tobacco which was cured at farm level for before supply to market would be classifiable as 'Unmanufactured tobacco' – Explanatory notes to 2403 make it amply clear that chewing tobacco was h... [Read more]

GST – Tamil Nadu AAAR - Appellant was engaged in supply of tobacco product with brand name 'Kavi cut Tobacco' for purposes of chewing – Whether product of Appellant was to be classified as 'Unmanufactured Tobacco' under CTH 24012090 as claimed by Appellant or as 'Manufactured Tobacco' under CTH 24039910 as hold by lower authority – HELD - Perusal of explanation given by Central Tobacco Research Institute make it clear that only tobacco which was cured at farm level for before supply to market would be classifiable as 'Unmanufactured tobacco' – Explanatory notes to 2403 make it amply clear that chewing tobacco was highly fermented and liquored so as to merit its classification under 2403 – Any process on raw material resulting in emergence of a new product with a distinct name, character and use was defined as 'manufacture' under GST – Appellant purchased 'raw dried tobacco leaves' from wholesale dealers and undertook various processes. The raw material undergone a set of processes and the subject goods emerge as a distinct product which make it marketable and consumable – Product supplied by appellant was "Manufactured Tobacco product for Chewing" – Classification of product was under CTH 2403 9910 which specified 'Chewing Tobacco' under head "2403-Other Manufactured tobacco and manufactured tobacco substitutes" as hold by lower authority – the order of the Advance Ruling is affirmed and appeal is dismissed [Read less]

2020-VIL-467-CESTAT-DEL-CE  | CESTAT CENTRAL EXCISE

Central Excise - Department of the view assessee has wrongly availed cenvat credit on strength of improper duty paying documents issued by two dealers – Dy. Commissioner passed order-in-original under Rule 9(2) of CCR and held that assessee is entitled to cenvat credit in respect of invoices issued by dealers – Commissioner (Appeals) allowed appeal of revenue by way of remand – Being aggrieved, both Revenue and assessee are in appeal by way of cross appeal before Tribunal – Whether Dy. Commissioner was erred in allowing cenvat credit to assessee – HELD - Order allowing to take cenvat credit under proviso to Rule ... [Read more]

Central Excise - Department of the view assessee has wrongly availed cenvat credit on strength of improper duty paying documents issued by two dealers – Dy. Commissioner passed order-in-original under Rule 9(2) of CCR and held that assessee is entitled to cenvat credit in respect of invoices issued by dealers – Commissioner (Appeals) allowed appeal of revenue by way of remand – Being aggrieved, both Revenue and assessee are in appeal by way of cross appeal before Tribunal – Whether Dy. Commissioner was erred in allowing cenvat credit to assessee – HELD - Order allowing to take cenvat credit under proviso to Rule 9(2) of CCR is not an adjudication order – There is no scope for reading any restriction on Asstt./Dy. Commissioner with regard to monetary limit for regularising/allowing cenvat credit under Rule 9(2) of CCR – Power has been conferred on jurisdictional Deputy/Asstt. Commissioner that he may enquire into documents, etc. and on being satisfied that goods or services covered by said documents have been received and accounted for in books of account of receiver, he may allow cenvat credit – Rule 16(1) of CER provides that where any goods on which duty has been paid at time of removal thereof, assessee shall be entitled to take cenvat credit of duty paid, as such goods are received as inputs under CCR – Central excise duty has been paid by assessee as manufacturer and same goods have been received back as inputs under invoices of dealers – Dy. Commissioner has made proper inquiries both oral and documentary and on being satisfied, has allowed cenvat credit in dispute – There was no error in order-in-original passed by Dy. Commissioner allowing cenvat credit to assessee – There was no suppression of facts and adequate disclosure had been made by assessee – Under Notification No.71/71-CE, assessee is entitled to set off of duty paid on intermediate products from final products – Benefit of notification cannot be denied on technical ground of non-compliance with Rule 56A procedure – Commissioner (Appeals) has got no powers to remand in facts and circumstances – Order-in-appeal set aside – Order-in-original restored - Appeal by Revenue dismissed and Appeal by assessee allowed [Read less]

2020-VIL-468-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax: Show cause notice proposing to recover service tax on value of diesel, explosives etc, received by Appellant free of cost, under Section 68 of the Act – Credit of was proposed to be disallowed by alleging excess availment of Cenvat credit – SCN also proposed to demand Cenvat credit on ground that since credit on tippers was made admissible w.e.f. 22-6-2010, credit availed by Appellant on tippers received prior to such date was inadmissible – Commissioner of confirmed demands proposed in SCN – Hence, instant appeal – Whether demands confirmed by Commissioner in impugned order were sustainable – HELD... [Read more]

Service Tax: Show cause notice proposing to recover service tax on value of diesel, explosives etc, received by Appellant free of cost, under Section 68 of the Act – Credit of was proposed to be disallowed by alleging excess availment of Cenvat credit – SCN also proposed to demand Cenvat credit on ground that since credit on tippers was made admissible w.e.f. 22-6-2010, credit availed by Appellant on tippers received prior to such date was inadmissible – Commissioner of confirmed demands proposed in SCN – Hence, instant appeal – Whether demands confirmed by Commissioner in impugned order were sustainable – HELD - Explosives and diesel were received by Appellant free of cost – In a case where service provider receives goods from service recipient free of cost, no amount is charged towards such goods and value of such goods cannot be included in gross amount charged by service provider for such service provided by him under Section 67 of the Act – Value of free cost of supply by service recipient shall not be included in taxable value of services – SCN proposed to disallow credit for reason that credit could be availed on tippers only after 22-6-2010, when an amendment was made – Even for period prior to June, 2010 credit was admissible on tippers as inputs used by service provider in providing output services – Credit had been correctly availed by appellant as ‘tippers’ qualify as ‘input’ under Rule 2(k) of the Rules – When credit was reversed by Appellant without utilization, no interest could be recovered from Appellant – Commissioner disallowed Cenvat credit for reason that there was a difference between closing balance of Cenvat credit in return filed by Appellant in September, 2009 and opening balance in October 2009 – matter remitted to Commissioner to determine this particular issue afresh in light of charge leveled in SCN and explanation offered by Appellant – Demand confirmed by Commissioner in impugned order, except demand relating to disallowance of Cenvat credit is set aside - Appeal partly allowed [Read less]

2020-VIL-469-CESTAT-DEL-ST  | CESTAT SERVICE TAX

Service Tax: Jurisdiction of Commissioner (Appeal) to deny of refund claim of unutilized Cenvat Credit in respect of Club or Association membership service, Design Service and Sponsorship Service in the absence of any challenge either by the appellant or by the Revenue – HELD - Adjudicating Authority granted relief to appellants qua sponsorship service proportionately and same was neither challenged by Appellant nor by Revenue before Commissioner, but Commissioner still chooses to give findings on said service also that too in appeal filed by Appellant – Commissioner could not have passed any further order beyond scope... [Read more]

Service Tax: Jurisdiction of Commissioner (Appeal) to deny of refund claim of unutilized Cenvat Credit in respect of Club or Association membership service, Design Service and Sponsorship Service in the absence of any challenge either by the appellant or by the Revenue – HELD - Adjudicating Authority granted relief to appellants qua sponsorship service proportionately and same was neither challenged by Appellant nor by Revenue before Commissioner, but Commissioner still chooses to give findings on said service also that too in appeal filed by Appellant – Commissioner could not have passed any further order beyond scope and ambit of appeal before it and by doing so in this case, he has exceeded its jurisdiction and exercised the power which is not vested in him – Findings recorded by Commissioner on sponsorship service was beyond his jurisdiction and hence liable to be ignored - Nothing has been produced by department to establish that club or association membership has been used or consumed by any employee personally – Club or Association Membership Service would be eligible as input service – Diaries/calendars etc. are essential part of business promotion, therefore designing them can very well be said to have nexus with output service – Cenvat Credit on Club or Association Membership Service and Design Service were wrongly rejected by both authorities – assessee appeal is allowed [Read less]

2020-VIL-302-AAR  | Advance Ruling Authority SGST

Uttarakhand AAR - Sec. 2(119) – Works Contract, construction or widening of road, sub-contractor - Applicant is engaged in providing work contract service as sub-contractor to main contractor for original contract work in respect of construction and widening of road - applicable rate of GST to be charged by the sub-contractor to main contractor for original works contract pertaining to construction or widening of road – HELD – the work contract services in respect of construction/widening of road provided by the applicant to his main contractor is covered under entry at Serial No. 3(iv) of the Notification No. 11/201... [Read more]

Uttarakhand AAR - Sec. 2(119) – Works Contract, construction or widening of road, sub-contractor - Applicant is engaged in providing work contract service as sub-contractor to main contractor for original contract work in respect of construction and widening of road - applicable rate of GST to be charged by the sub-contractor to main contractor for original works contract pertaining to construction or widening of road – HELD – the work contract services in respect of construction/widening of road provided by the applicant to his main contractor is covered under entry at Serial No. 3(iv) of the Notification No. 11/2017-Central Tax (Rate) and attracts 12% [Read less]

2020-VIL-301-AAR  | Advance Ruling Authority SGST

GST - Tamil Nadu AAR - Taxability of supply of educational aids such as school bags, footwear, geometry box, wooden colour pencils, crayons, woollen sweater to government and government aided schools for which the consideration is paid by the State Government by means of a budgetary allocation – HELD - the supply of educational aids by the applicant to the State government for a consideration is a ‘supply of goods’ in the course of its business as per Section 7 of the CGST Act - the applicant was formed as a society by the State government for procuring and supplying textbooks and other items. Therefore, the applican... [Read more]

GST - Tamil Nadu AAR - Taxability of supply of educational aids such as school bags, footwear, geometry box, wooden colour pencils, crayons, woollen sweater to government and government aided schools for which the consideration is paid by the State Government by means of a budgetary allocation – HELD - the supply of educational aids by the applicant to the State government for a consideration is a ‘supply of goods’ in the course of its business as per Section 7 of the CGST Act - the applicant was formed as a society by the State government for procuring and supplying textbooks and other items. Therefore, the applicant is a ‘Government entity’ as defined under Notification No. 2/2017-C.T. (Rate) dated 28.06.2017 as amended – the supply of goods undertaken by the applicant is an exempted supply | Eligibility to Input Tax Credit on the procurement of Educational Kits supplied to the Government - HELD – Since the supply of ‘Educational Kit’ is fully exempted, the applicant is not eligible to the credit of Input Tax paid on the procurement of such goods| Taxability of supply of Rain Coats, Ankle Boots and Socks to students without consideration to Government/Government Aided schools located in Hilly areas is a supply – eligibility to claim ITC thereon – HELD - entry at Sl. No. 150 of the Notification no. 2/2017-C.T.(Rate) dated 28.06.2017 exempts supply of goods to Government by a Government entity, the consideration of which is in the form of grant – the supply of subject goods have been made from funds already granted and lying unspent with the applicant. Therefore, these supplies also are exempt vide the said entry - applicant will not be eligible to avail input tax credit on these procurement as they are exclusively towards the exempt supply [Read less]

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