CASE LAWS
2018-TIOL-02-NAPA-GST
Kumar Gandharv Vs KRBL Ltd
CGST Act, 2017 – Section 171 - Anti-profiteering - ITC available to the respondent as a percentage of the total value of taxable supplies was between 2.69% to 3% whereas GST on the outward supply of Basmati Rice was 5% which was not sufficient to discharge the tax liability – moreover, there was an increase in the cost of purchase price of paddy - there has been no net benefit of ITC available to the respondent which could be passed on to the consumers – no case of profiteering made out - application dismissed: National Anti-Profiteering Authority [para 6, 7]
Application dismissed
Facts:
Applicant vide application dated 27.11.2017 sent through email had intimated that the benefit of reduction in rate of tax on ‘India Gate Basmati Rice' had not been passed on to the consumers as its maximum retail price had been increased and hence margin of profit had also been increased by respondent.
Section 171(1) of the CGST Act, 2017 material to the case reads - (1) Any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall be passed on to the recipient by way of commensurate reduction in prices.
Held:
+ India Gate Basmati Rice sold by respondent was not liable for tax before implementation of GST and after coming into force of CGST Act, 2017, it was levied @5% w.e.f 22.09.2017 with eligibility to avail ITC.
+ It is apparent from the returns filed for the months of September to November 2017 that the ITC available to the respondent as a percentage of the total value of taxable supplies was between 2.69% to 3% whereas GST on the outward supply of Basmati Rice was 5% which was not sufficient to discharge the tax liability. Moreover, in this case rate of tax has been increased from 0% to 5%. Therefore, there appears to be no reason for treating the price fixed by respondent as violation of the provisions of the anti-profiteering clause.
+ Furthermore, there was an increase in the purchase price of paddy in the year 2017 as compared to its price during year 2016 which constitutes the major part of the cost of the product. Inasmuch as the respondent had increased the MRP of his product from Rs.540/- to Rs.585/- which constitutes an increase of 8.33%.
+ Therefore, due the imposition of GST as well as increase in the purchase price of paddy there does not appear to be denial of benefit of ITC as alleged by applicant as there has been no net benefit of ITC available to the respondent which could be passed on to the consumers.
+ There is no substance in the application filed as there is no violation of the provisions of section 171 of the CGST Act, 2017.
The application is dismissed.
2018-TIOL-29-AAR-GST
Gogte Infrastructure Development Corporation Ltd
GST - Hotel Accommodation & Restaurant services provided by the Applicant, within the premises of the Hotel, to the employees & guests of SEZ units - rendition of such services cannot be said to have been 'imported or procured' into SEZ Unit/Developer by any stretch of imagination - supply is, therefore, intra state supply and is taxable accordingly: AAR
2018-TIOL-34-HC-ALL-GST
Om Disposals Vs State Of UP
GST - the assessee company, engaged in manufacturing disposable paper cups & plates, is registered under GST - It order machine for making paper cups from vendor based in Delhi The vendor issued advance receipt of about Rs 7 lakhs - After a delay, the vendor dispatched the machine without informing the assessee & issued invoice - The vehicle ferrying the machine was intercepted on grounds that grounds were being ferried without e-Way bill - When the assessee came to know of the interception, it immediately generated e-Way bill & submitted supporting documents - However, the machine was confiscated and duty demand was raised, with penalty equivalent to the sale amount being imposed - The assessee's appeals before the appellate authority & Tribunal were dismissed - Hence the assessee filed the present petition challenging the Notfn. issued by the Govt of UP which brings into force the E-way Bill 01 - Such bill was prescribed for importing goods over Rs 50000 from outside UP - The assessee seeks the quashing of such enabling notfn as well as the release of the machine & scrapping of the penalty.
Held - considering the submissions of both sides as well as the precedents relied upon by them, this court is faced with two judgments given by the Coordinate Benches of this Court with diametrically opposite conclusions - Besides, while the first judgment apparently omitted to consider relevant provisions of law, the second judgement overlooked the earlier judgment which could have constituted binding precedent - In such circumstances, the doctrine of per incuriam applies to both decisions - Thereby, it would not be correct to adjudicate such issue - The question as to whether the State Government is empowered under Rule 138 of U.P. GST Rules to issue a notification prescribing carrying of any forms or documents along with a consignment during inter-State movement is referred to the Larger Bench headed by the Chief Justice - Nonetheless, the machine & the vehicle be released on furnishing of bond: High Court (Para 1-10,28-34) - Case Deferred: ALLAHABAD HIGH COURT
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