2018-TIOL-GST-197 Dated: Friday, August 03, 2018

TOP NEWS

NOTIFICATION

Due date for filing GSTR-6 by ISD extended till 30 September 2018

GST CASES

AAR CASES

2018-TIOL-111-AAR-GST

Garuda Power Pvt Ltd

GST - The Applicant is engaged in trading of diesel engines & its spare parts along with services of diesel engine, either on AMC or need basis - It seeks to know whether or not supply of goods & on-site services to customers in SEZ area to any SEZ unit or SEZ developer would be zero-rated supply u/s 16 of the IGST Act 2017 - Also whether GST is leviable on supply of goods or services to SEZ unit or SEZ developer.

Held - The Applicant shall be liable to pay tax when supplying to Units and Developers of Special Economic Zones subject to the provisions of Section 16 of the IGST Act, 2017: AAR - Application disposed of: AAR

2018-TIOL-110-AAR-GST

Ultratech Cement Ltd

GST - the applicant company manufactured some goods which were then supplied to authorised dealers & stockists both in and outside Maharashtra - Goods received from other states are also supplied - The applicant enters into agreements on principal-to-principal basis with such dealers - The prices are fixed by the applicant - The applicant also provides discounts to the dealers at rates fixed by itself - Thereby, the applicant seeks to know whether amount paid to dealers & stockists as 'rate difference' after supplying goods to them can be considered when arriving at transaction value u/s 15 of CGST Act - Also whether such amount paid would be allowed u/s 15(1) r/w Section 34(1) of the CGST Act or u/s 15(3) r/w Section 34(1). Held - the amount paid to authorised dealers on account of rate difference after supplying goods to authorised dealers & stockists cannot be considered when determining transaction value u/s 15 of CGST Act - Further, such amount cannot be allowed u/s 15(1) r/w Section 34(1) of the CGST Act or u/s 15(3) r/w Section 34(1): AAR - Application Disposed Of: AAR

2018-TIOL-109-AAR-GST

Dinesh Kumar Agrawal

GST - the applicant, an individual, is proposing to undertake certain kinds of project-related service contracts - The contracts involve - i) Standalone contract of transportation; ii) composite supply of transportation & insurance; iii) composite supply of loading goods are supplier's premises, transportation in own & hired trucks to project site, unloading & handling of goods at project site & in-transit insurance; iv) supply of such services under Service contract (under split contract )& v) supply of such services under EPC contracts - Hence the applicant seeks to know whether these are classifiable under Service code 9965 & whether is it exempt under Sr No 18 of Notfn No 12/2017-CT(R).

Held - considering the nature of such services, the transportation charges received by the applicant will attract GST even though the applicant is not a Goods Transport Agency - Such services are taxable as works contract u/s 2(119) of the GST Act: AAR - Application Disposed Of: AAR

HIGH COURT CASES

2018-TIOL-93-HC-CHHATTISGARH-GST

Dhamtari Krishi Kendra Vs UoI

Held - The petitioner is directed to approach the jurisdictional Nodal Officer and make representations - The Nodal Officer would look into the matter and facilitate uploading of Form GST TRAN-1 - Also, if the petitioner is found to be unable to upload Form GST TRAN-1 for no fault of its own, then the Nodal Officer may also enable the petitioner to take credit of input tax available on migration to GST: HC (Para 1,2,3,7) - Writ petition disposed of: CHHATTISGARH HIGH COURT

2018-TIOL-92-HC-MAD-GST

Calibre Industries Vs Pr Commissioner, GST & Central Excise

GST - The petitioner, a dealer, was unable to upload the Form GST TRAN-1 within the stipulated time frame, on account of some system error - Consequently, the petitioner was unable to take credit of input tax available to it upon migration to GST - Hence the present writ seeking appropriate directions. Held - The jurisdictional GST Commissionerate is directed to appoint a Nodal Officer if not appointed already - The petitioner is directed to approach the jurisdictional Nodal Officer and make representations - The Nodal Officer would look into the matter and facilitate uploading of Form GST TRAN-1 - Also, if the petitioner is found to be unable to upload Form GST TRAN-1 for no fault of its own, then the Nodal Officer may also enable the petitioner to take credit of input tax available on migration to GST: HC (Para 2,3,12) - Writ petition disposed of: MADRAS HIGH COURT

2018-TIOL-91-HC-KERALA-GST

Smartuff Glass Ltd Vs UoI

GST - The petitioner, a dealer, was unable to upload the Form GST TRAN-1 within the stipulated time frame, on account of some system error - Consequently, the petitioner was unable to take credit of input tax available to it upon migration to GST - Hence the present writ seeking appropriate directions. Held - The petitioner is directed to approach the jurisdictional Nodal Officer and make representations - The Nodal Officer would look into the matter and facilitate uploading of Form GST TRAN-1 - Also, if the petitioner is found to be unable to upload Form GST TRAN-1 for no fault of its own, then the Nodal Officer may also enable the petitioner to take credit of input tax available on migration to GST: HC (Para 1,5,6) - Writ petition disposed of: KERALA HIGH COURT

2018-TIOL-90-HC-KERALA-GST

CEE PEE Marble and Granite Vadad Vs GST Council

GST - the peitioer, a dealer was unable to file Form GST TRAN-1 within the stipulated time frame on account of a system error - Consequently, it was unable to take credit of input tax available to it upon migration to GST - Hence the present writ seeking appropriate directions. Held - the petitioner is directed to approach the jurisdictional Nodal Officer and make representation therein - The Nodal Officer would facilitate the uploading of Form GST TRAN-1 - Also if the petitioner is found to have been unable to upload the Form GST TRAN-1 due to no fault of its own, then the Nodal Officer would also facilitate taking credit of input tax available to the petitioner on migration to GST: HC (Para 1,7,8) - Writ petition disposed off: KARALA HIGH COURT

2018-TIOL-89-HC-KERALA-GST

Super Plast Poly Products India Pvt Ltd Vs State of Kerala

GST - the petitioner company purchased a diesel generator for its business - However, it failed to reflect such item in its returns for the relevant period - The petitioner claimed to have attempted to revise the returns, but received no response from the Department - Hence it was compelled to file Form GST TRAN-1 without incorporating details of the generator and consequently was unable to avail input tax credit on the generator. Held - this court in The Commercial Tax Officer v. C. R. Varghese had held that the Department must accept a revised return when a dealer wants to file one - Also there is no prohibition against a dealer seeking to revise a return after the time specified as long as no penal proceedings are pending - It was also held that the AO has the authority to examine the dealer's claims beyond the period & decide the question in accordance with well-established principles of law & ensure that the revision of returns is not done to cover up or get over a penal provision or avoid the penal consequences of detection - Following such findings, the Department is directed to permit the petitioner to revise the returns - The petitioner may include purchase of generator in the returns: HC (Para 1,2,7,9) - Writ petition allowed: KERALA HIGH COURT

2018-TIOL-88-HC-KERALA-GST

Diamond Food Products Vs Assistant State Tax Officer

GST - the petitioner firm purchased some machinery at Chennai - The vehicle transporting the machines was intercepted en route - Though the vehicle driver produced copy of e-way bill, he did not have original or duplicate invoice - The Department ordered inspection of the goods & the documents and later detained the goods - Hence the present writ. Held - while the petitioner had the equally efficacious remedy of appeal u/s 107 of the CGST Act, it nevertheless agreed to furnish bank guarantee as mandated under Rule 140 of the CGST Rules to seek release of the goods - The Department too is open to releasing the goods upon furnishing of bank guarantee - Hence the petitioner's goods be released upon providing bank guarantee: HC (Para 1,3,4,5) - Writ petition disposed off: KERALA HIGH COURT

2018-TIOL-87-HC-MUM-GST

Cubex Tubings Ltd Vs ACST

GST - the assessee company is engaged in manufacturing Copper & Copper alloy products - A consignment of such products loaded on a vehicle was seized by the Department on course from the assessee's office to its factory - The assessee claimed that the goods were duty paid and that while the necessary bills & documents had been generated, the transporter chose to ignore them and cleared the goods for delivery - The assessee seeks release of the goods on grounds that non-delivery of the same would hamper the exports to be made by the consignee and result in huge losses for it - Hence the assessee seeks release of the goods at least, if not of the vehicle. Held - the assessee has not challenged the seizure of the goods or the detention of the vehicle - Besides, an SCN has been served to the assessee & there is proper procedure u/s 129(3) & (4) to obtain release of the goods - Hence there is no need for interference by the writ court in such circumstances as the assessee is not left high & dry without any remedy - Moreover, the conduct of the assessee shows it to be unwilling to comply with conditions imposed for release of the goods - It cannot expect the writ court to interfere & direct unconditional release of goods - Thus in light of an equally efficacious remedy being available to the assessee, no interference is warranted - No short-cuts can be resorted to: HC (Para 1,2,3,5) - Writ petition dismissed: BOMBAY HIGH COURT

2018-TIOL-86-HC-MAD-GST

Evershine Wood Packaging Pvt Ltd Vs GST Council

GST - the petitioner company was unable to upload Form GST TRAN - 1 within the stipulated time frame owing to technical glitches - Consequently, the petitioner was unable to take credit of input tax available to it upon migration to GST - Hence the present writ, seeking appropriate directions in this regard. Held - The CBIC directed appointment of Nodal Officers to address such grievances faced on account of technical glitches - Hence the commissionerate concerned is directed to appoint Nodal Officers in the State of Tamil Nadu, if not appointed already - Thereafter, the petitioner may approach the jurisdictional Nodal Officer & make representation - The Nodal Officer will take an appropriate decision in this regard within three weeks from making application: HC (Para 2,3,12) - Writ Petition Disposed Of: MADRAS HIGH COURT

2018-TIOL-85-HC-MAD-GST

Pothys Vs Principal Chief Commissioner Goods And Services Tax Act

GST - the petitoner company was unable to upload Form GST TRAN-1 within the stipulated time frame, on account of some technical error - Consequently, the petitioner was unable to take credit of input tax available to it upon migration to GST - Hence the present writ seeking appropriate directions.

Held - The CBIC directed appointment of Nodal Officers to address such grievances faced on account of technical glitches - Hence the commissionerate concerned is directed to appoint Nodal Officers in the State of Tamil Nadu, if not appointed already - Thereafter, the petitioner may approach the jurisdictional Nodal Officer & make representation - The Nodal Officer will take an appropriate decision in this regard within three weeks from making application: HC (Para 2,3,12) - Writ Petition Disposed Of: MADRAS HIGH COURT

2018-TIOL-84-HC-KERALA-GST

Berger Paints India Ltd Vs State Tax Officer

GST - the petitioner company is engaged in manufacturing & dealing in paints - The petitioner owned some paint mixing machinery which was seized by the Department - The petitioner provided bank guarantee & security bond to secure release of the machinery as well as the vehicle transporting it - While the petitioner was contemplating to avail appellate remedy, the Department threatened to invoke bank guarantee - Hence the present writ was filed to challenge invoking of bank guarantee.

Held - Section 107 of the CGST Act r/w Section 108 of the GST Rules allows three months' time to avail appellate remedy - Hence it would be inequitable if the Department invokes the bank guarantees before the petitioner exhausts appellate remedy & such remedy would become illusory - Hence the Department is restrained from invoking bank guarantee within such three month period: HC (Para 1,2,5,6) - Writ Petition Allowed: KERALA HIGH COURT

2018-TIOL-83-HC-KERALA-GST

C B Furniture and Interious Vs GST Council

GST - the petitioner is a dealer who was unable to upload Form GST TRAN-1 within the stipulated time frame on account of some technical error - Consequently the petitioner was unable to take credit of input tax available to it upon migration to GST - Hence the present writ is filed seeking appropriate directions.

Held - The petitioner is directed to approach and make representation before the jurisdictional Nodal Officer, who would look into the matter and enable the uploading of Form GST TRAN-1 - Where it is found that the petitioner was unable to upload Form GST TRAN-1 for no fault of its own, then the Nodal Officer will also enable the petitioner to take credit on input tax available on migration to GST: HC (Para 1,5,6) - Writ Petition Disposed Of : KERALA HIGH COURT

2018-TIOL-82-HC-KERALA-GST

Selfshine Polymers India Pvt Ltd Vs State of Kerala

2018-TIOL-81-HC-DEL-GST

Jindal Dyechem Industries (P) Ltd Vs UoI

GST - the petitioner was aggrieved by the denial of exemption from payment of Customs duty for goods imported for fulfiling export obligations - The petitioner had been issued advance authorisations under the extant FTP 2015-20 - In this regard, it claimed that existing exemption under Customs notifications could not be denied merely due to introduction of GST - The petitioner claimed that levy of IGST was not subject of the amended provisions of the Customs Act.

Held - the imports which are the subject matter in the present writ had been made after introduction of GST - The petitioner was beneficiary of an advance license issued on July 17, 2017 & at that point of time the exemption notifications were not in existence - The exemption from IGST was not in force at that point of time & the Customs notifications were amended on October 13, 2017 - In such circumstances, as the exemption in fact existed during the period of dispute, the Department must verify whether the petitioner fulfilled the export obligations pursuant to advance license - If in the affirmative, no further action is warranted - If in the negative, then necessary assessment be made - The proceedings be completed within four months: HC - Writ Petition Disposed Of: DELHI HIGH COURT

2018-TIOL-80-HC-DEL-GST

Narendra Plastic Pvt Ltd Vs UoI

GST - the petitioners herein were unable to clear certain goods without payment of IGST, inspite of relief measures announced by the Government for exporters - The relief sought by the claimants is identical to the relief claimed in the case of Jindal Dyechem Industries (P) Ltd. vs. Union of India & Ors.

Held - considering relevant findings of this court in Jindal Dyechem Industries (P) Ltd. , the petitioners herein are to be entitled to similar relief - Hence the present petitions are disposed of to provide similar relief as provided by the Court in Jindal Dyechem Industries (P) Ltd. vs. Union of India & Ors. : HC - Writ Petition Disposed Of: DELHI HIGH COURT

2018-TIOL-79-HC-MAD-GST

Consolidated Premium Retailers Vs Principal Commissioner, GST

GST - the petitioner is a dealer who was unable to uplod Form GST TRAN-1 within the stipulated time frame, on account of some system error - Consequently, the petitioer was unable to take credit of input tax available to it upon migration to GST - Hence the present writ seeking appropriate directions in this regard.

Held - to alleviate difficulties faced by assessees on account of technical glitches, the CBIC had set up a Grievance Redressal Mechanism vide Circular No. 39/13/2018-GST dated 03.4.2018 - As per such mechanism, Nodal Officers have been appointed to redress such grievances - The repsective commissionerates are directed to set up Nodal Officers in the State of Tamil Nadu if not appointed already - Hence the petitioner is directed to approach & make representations before the jurisdictional Nodal Officer who would take appropriate decisions within three weeks of date of application: HC (Para 2,11,12) - Writ Petition Disposed Of: MADRAS HIGH COURT

2018-TIOL-78-HC-MAD-GST

Schwing Stetter India Pvt Ltd Vs CGST & CE

GST - Inability to upload GST TRAN-1 - Paragraph 5 of the Circular No.39/13/2018-GST dated 03.04.2018 is not confined to non-TRAN-1 issues as there is no such specific distinction brought about in paragraph 5 of the circular - petitioners directed to submit their applications to their respective Assessing Officers who in turn are directed to forward the application to the Nodal Officers within a period of one week - Nodal Officer, in consultation with the GSTN to take note of the grievances expressed by the petitioners/assessees and forward the same to the grievance committee, who in turn would take an appropriate decision in the matter within a period of three weeks from the date on which the applications are received - Petitions disposed of: High Court [para 9, 11] - Petitions disposed of: MADRAS HIGH COURT

2018-TIOL-77-HC-KERALA-GST

Sevenseas Exporters Vs UoI

GST - the petitioner is a dealer, who was unable to upload the Form GST TRAN-1 within the stipulated time frame on account of some technical error - Consequently, the petitioner was unable to take credit of input tax available at the time of migration to GST - Hence the present writ was filed seeking directions.

Held - the petitioner may approach the Nodal Officer concerned & file representations therein - The Nodal Officer would look into the issue & facilitate filing of GST TRAN - 1 - Where it is found that such form was unable to be uploaded due to reasons not attributable to the petitioner, the Nodal Officer would facilitate taking credit of input tax available to petitioner upon migration to GST: HC (Para 1,5,6) - Writ Petition Disposed Of: KERALA HIGH COURT

2018-TIOL-76-HC-KERALA-GST

Seyadu Beedi Company Vs Assistant Tax Officer (Intelligence)

GST - the petitioner is a dealer - Certain goods belonging to the petitioner were seized - Hence the present writ was filed, as the petitioner claimed to have no alternative remedy as the appellate authority took no decisions under the Act.

Held - the government very recently appointed an appellate authority - Due to the recent nature of the decision, the petitioner was apparently unaware of such development - Hence, with the appellate authority having been appointed, the petitioner now has an efficacious alternate remedy - Nonetheless, no coercive steps be taken against the petitioner during the pendency of proceedings before the appellate authority: HC (Para 1,2,4,5) - Writ Petition Disposed Of: KERALA HIGH COURT

JEST GST (By Vijay Kumar)

Tribunalisation of GSTICE?

Sanitary Napkins Exempted - Who benefits?

ARTICLES

GST Council - Poll-driven mood - Let's expect more sops at next meeting!

GST - Hurried Amendments & Unexpected rate-cut - Does it mean Early Polls?

Tribunalisation of GSTICE?

Treading GST Path XLVI - FAQ on Employee Canteens

GST Notification 13/2018-CTR - confusions galore

Services by Indian establishment to foreign establishment - No complete relief yet

Key concerns of MSME sector needs immediate attention

All things that GST Authorities want you to do - new 'simplified' GST returns

Tax the Chattel rather than Labor - Taken in time can lead GST to fortune

GST concessions - Anti-profiteering & 'commensurate' price reductions

SGST NOTIFICATION

MAHARASTRA

RATES NOTIFICATION

21/2018

To prescribe concessional MGST rate on specified handicraft items, to give effect to the recommendations of the GST Council in it's 28th meeting held on 21.07.2018.

20/2018

Amendment to Notification No. 05/2017-State Tax (Rate), dt. 28-06-2017 to give effect to the recommendations of the GST Council in it's 28th meeting held on 21.07.2018.

19/2018

Amendment to Notification No. 02/2017-State Tax (Rate), dt. 28-06-2017 to give effect to the recommendations of the GST Council in it's 28th meeting held on 21.07.2018

18/2018

Amendment to Notification No. 01/2017-State Tax (Rate), dt. 28-06-2017 to give effect to the recommendations of the GST Council in it's 28th meeting held on 21.07.2018.

17/2018

Amendment to Notification No. 11/2017– State Tax (Rate)-insert explanation in an item in by exercising powers conferred under section 11(3) of MGST Act, 2017.

16/2018

Amendment to Notification No. 14/2017- State Tax (Rate) to notify that services by way of any activity in relation to a function entrusted to a municipality under Article 243W shall be treated neither as a supply of good nor a service.

15/2018

Amendment to Notification No. 13/2017- State Tax (Rate) so as to specify services supplied by individual Direct Selling Agents (DSAs) to banks/ non-banking financial company (NBFCs) to be taxed under Reverse Charge Mechanism (RCM).

14/2018

Amendment to Notification No. 12/2017- State Tax (Rate) so as to exempt certain services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018.

13/2018

Amendment to Notification No. 11/2017- State Tax (Rate) so as to notify MGST rates of various services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018.

WEST BENGAL

(RULES NOTIFICATION)

30/2018

Seeks to extend the due date for filing of FORM GSTR-6 for the periods of July, 2017 to August, 2018 till 30.09.2018.

RATES NOTIFICATION

21/2018

Seeks to amend Notification dated 28-06-2017 to give effect to the recommendations of the GST Council in it's 28th meeting held on 21.07.2018.

20/2018

Seeks to prescribe concessional WBGST rate on specified handicraft items, to give effect to the recommendations of the GST Council in it's 28th meeting held on 21.07.2018.

19/2018

Seeks to amend Notification dated 28-06-2017 to give effect to the recommendations of the GST Council in it's 28th meeting held on 21.07.2018.

18/2018

Seeks to amend Notification dated 28-06-2017 to give effect to the recommendations of the GST Council in it's 28th meeting held on 21.07.2018.

17/2018

Seeks to insert explanation in an item in notification dated 28.06.2017 by exercising powers conferred under section 11(3) of CGST Act, 2017.

16/2018

Seeks to amend notification dated 28.06.2017 to notify that services by way of any activity in relation to a function entrusted to a municipality under Article 243W shall be treated neither as a supply of good nor a service.

15/2018

Seeks to amend notification dated 28.06.2017 so as to specify services supplied by individual Direct Selling Agents (DSAs) to banks/ non-banking financial company (NBFCs) to be taxed under Reverse Charge Mechanism (RCM).

14/2018

Seeks to amend notification dated 28.06.2017 so as to notify exempt some services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018.

13/2018

Seeks to amend notification dated 28.06.2017 so as to notify CGST rates of various services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018.