2018-TIOL-GST-201 Dated: Friday, August 31, 2018

AMENDMENT ACT, 2018

AAAR CASES

2018-TIOL-10-AAAR-GST

National Plastic Industries Ltd

GST - Classification - AAR held that PVC floor mat is correctly classifiable under Customs Tariff Heading 3918; would fall in the Entry no. 104A of Schedule III and attract tax at the rate of 18% (9% each of CGST & SGST) - appeal to Appellate authority.

Held: PVC mats manufactured are specifically covered under HSN 3918 as Floor Coverings of PVC in terms of rule 1 of the Rules of Interpretation of Customs Tariff read with Note 1(h) to Section XI and Note 1 to Chapter 57 - no reason to interfere with the order of the Advance Ruling authority - Appeal dismissed: AAAR

- Appeal dismissed: AAAR

2018-TIOL-09-AAAR-GST

Aditya Birla Retail Ltd

CGST - Advance Ruling authority had held that Package carrying a declaration mentioning the name and registered address of the applicant as the manufacturer and/or Marketed by - Aditya Birla Retail Ltd. cannot be considered as 'not bearing a brand name' - applicant is ineligible for exemption from GST 2/2017-CT(R) and parallel IGST and State/UT notifications - appeal to AAAR.

Held: Merely by removing their registered brand name logos viz. ‘MORE' and ‘Aditya Birla Retail' from the packaging of some of their products and keeping the surrounding environment intact to take advantage of the said brands would not render such goods unbranded and the benefits of exemption notification from GST would not be available to such goods - no infirmity in the ruling given by the AAR - Order upheld: AAAR

CGST - In respect of the ruling sought by the applicant on the subject ‘whether declarations made on the package, by inter alia using common/generic terms viz. ‘Value', ‘Choice' and ‘Superior' for the sole purpose of indicating the quality of the product so as to enable customers to identify and buy products based on their requirement, budget and preferences can be construed to be a ‘brand name' for the purpose of exemption notification, the AAR had not specifically dealt with the same on the premise that ‘the question cannot be raised in isolation' - appeal to AAAR.

Held: Use of words ‘VALUE', ‘CHOICE' or ‘SUPERIOR' on the proposed packing without altering the surrounding environment to take advantage of brand ‘MORE' would be construed as ‘brand name' for the purpose of exemption notification: AAAR

- Appeal dismissed/disposed of: AAAR

2018-TIOL-08-AAAR-GST

CMS Info Systems Ltd

GST - ITC - GST Council in its 28th meeting has felt the need for widening scope of ITC in respect of motor vehicles used for transportation of money for or by a banking company or financial institution and recommended amendments - given the collective mind of the GST Council on the subject, argument stands clinched in favour of Respondent Revenue -as the law now stands, no credit available: AAAR

- Reference answered: AAAR

AAR CASES

2018-TIOL-120-AAR-GST

A W Faber-Castell (India) Pvt Ltd

Facts: Application seeking an advance ruling as to whether their product "Modelling dough" is covered under Chapter 34 or Chapter 95 of the Customs Tariff Act, 1975.

Held: Heading 9503 is for 'toys' - 'Modelling dough', a mixture of maida and other chemicals is used for amusement of children and is correctly classifiable under CTH 3407 of the CTA, 1975: AAR

- Application disposed of: AAR

2018-TIOL-119-AAR-GST

Nutan Warehousing Company Pvt Ltd

Facts: Applicant is engaged in the activity of providing services in the nature of warehousing, wherein they allow clients to store material or goods on specific compensation allowed under Bombay Warehousing Act, for which state license is provided - applicant seeks ruling as to whether exemption provided in Sr.no.54 of Notification 12/2017-CT(R) is applicable to them in respect of supply of warehouse services used for packing & storage of tea.Held: Goods being stored in the applicant's godown are not 'agricultural produce' as defined in Notfn. 12/2017-CT(R) and as reiterated by Board Circular 16/16/2017-GST, therefore, the exemption is not admissible to the applicant: AAR- Application disposed of: AAR

2018-TIOL-118-AAR-GST

Visvesvaraya National Institute of Technology

Facts: Applicant seeking ruling on whether Rate of tax on Pure services (excluding WCS or other composite supplies involving supply of any goods) received by them is Nil as per Entry no. 3 of Notfn. 12/2017-CT(R). Held: Applicant is recipient of service and not service provider and also that the subject services are not under reverse charge mechanism - notification referred is applicable to provider of service and not a recipient of service - applicant is not the proper person to make the application for advance ruling - application rejected in terms of sub-section 2 of section 98 of the CGST Act, 2017: AAR

- Application rejected: AAR

HIGH COURT CASES

018-TIOL-109-HC-MAD-GST

MSR Iron And Steel Industries India Pvt Ltd Vs Joint Commissioner of Sales Taxes

GST - Petitioners seeking mandamus directing the 2nd respondent to take action, including re-opening the common portal and extending the time period for filing the declaration in FORM GST TRAN-1.

Held: Petitions disposed of with the directions that they submit their application in accordance with the Circular dated 03.04.2018 within a period of two weeks to the respective Assessing Officer/Jurisdictional Officer/GST Officer and the Officer is directed to forward the application to the respective Nodal Officer within a period of one week who in consultation with the GSTN shall take note of the grievances expressed by the petitioners/Assessees and forward the same to the Grievance Committee, which in turn would take an appropriate decision in the matter as expeditiously as possible, in any event, within a period of six weeks thereafter: High Court [para 5]

- Petition disposed of: MADRAS HIGH COURT

2018-TIOL-108-HC-MP-GST

JK Tyre And Industries Ltd Vs GST Council

GST - The assessee company approached the writ court seeking its intervention to secure re-opening of the GST portal, so as to enable the assessee to revise the Form TRAN-1 filled by it - The assessee seeks to update the Electronic Credit Ledger according to revised input credit - The assessee claimed to also be comfortable with manual submission of Form TRAN-1 - Once this is done, the assessee would be able to pay taxes on the regular electronic system maintained for use of credit. Held - The counsel for the GST Council drew attention towards a CBIC Circular No.39/13/2018-GST dated 03.04.2018, under which a special cell had been created to resolve such grievances - Hence the assessee is free to seek remedy as mandated in the Circular: HC

Writ petition disposed of: MADHYA PRADESH HIGH COURT

2018-TIOL-107-HC-MAD-GST

KK Ramesh Vs UoI

GST - the petitioner was aggrieved by what he perceived to be the improper implementation of GST - He claimed that his prayer seeking to increase flying squads at State, District & Zonal level to monitor the movement of goods & tracking of e-way bills, had not been answered properly. Held - Considering the decision of this court in W.P(MD) No.16112 of 2017 dated 12.12.2017, wherein the Court had directed the petitioner to submit his response to the Notification dated 30.08.2006 - Such findings take care of the Revenue's interests and do not warrant any further directions: HC (Para 4, 11)

- Writ petition disposed of: MADRAS HIGH COURT

2018-TIOL-106-HC-ALL-GST

SBGC Logistics Vs State Of UP

GST - the assessee, engaged in transport of goods, was transporting a particular consignment - The consignors prepared invoices, charged applicable IGST & downloaded the e-way bill - While in transit, the goods were detained on grounds that Part B of the e-way bill had not been filled up - In defence the assessee claimed that the consignors were unaware of the vehicle details and so were unable to furnish the same in Part B of the e-way bill - Duty demand was raised with equivalent amount of penalty.

Held - the counsel for the assessee drew attention to the Government's decisions to the effect that if goods are transported within a distance of 50 Km in case of intra-state transit, then there is no need to fill up Part B of the e-way bill - Besides, Notification no.12 of 2018 dated 07.03.2018 makes another exemption by providing that registered person of transporter need not furnish conveyance details in Part-B - In the decision of this court in Rivigo Services Pvt. Ltd. vs. State of U.P. and others, the Court had set aside the seizure & consequent proceedings u/s 129(3) of CGST Act - Considering such precedent as well as the Notfn, the goods are directed to be released along with the vehicle - Both the seizure & penalty proceedings are illegal as they run contrary to the Notification no.12 and so are set aside: HC

- Writ petition allowed: ALLAHABAD HIGH COURT

2018-TIOL-105-HC-DEL-GST

Mountain Valley Springs India Pvt Ltd Vs Asst / Deputy Commissioner Of Goods & Services Tax

GST - the present writ petition was filed to challenge the validity of Section 140(3) of the CGST Act and Rule 117 of the CGST Rules.

Held - In a similar issue arising in the case of Sare Realty Projects Private Limited v. Union of India and Ors. and connected matters the court granted relief to the petitioners therein - Considering relevant findings of the case, a similar approach needs to be adopted in the present case - Hence the petitioner is directed to approach the Nodal Officer concerned in terms of the Grievance Redressal Mechanism - Such officer would pass a speaking order: HC

- Writ petition disposed of : DELHI HIGH COURT

2018-TIOL-104-HC-KERALA-GST

Renji Lal Damodaran Vs State Tax Officer

GST - The assessee purchased some tiles in Gujarat & was transporting them to its home state - In transit, the vehicle was intercepted and the goods were detained - Duty demand was raised upon the assessee & penalty was imposed - Hence the present writ.

Held - The assessee had an efficacious alternate remedy of appeal u/s 107 of the CGST Act - Nonetheless, it is willing to provide bank guarantee for the value of the goods - Hence the Department is directed to release the detained goods upon furnishment of such bank guarantee: HC (Para 1,3,5)

- Writ petition disposed of: KERALA HIGH COURT

2018-TIOL-103-HC-KERALA-GST

Renji Lal Damodaran Vs State Tax Officer

GST - Certain goods belonging to the assessee were detained, pursuant to inspection - Notice was issued u/s 129 of the Kerala GST Act & Rule 140 of the CGST Rules - When the assessee first approached the High Court, the Single Judge passed an order, against which the assessee filed the present writ appeal.

Held - The assessee agreed to furnish a bank guarantee as directed by the Single Judge - Hence no interference is needed in this regard - Further, considering the mandate of Rule 140(1) of the CGST Rules, the detained goods be released upon furnishing of bank guarantee for the tax and penalty which is payable - Further, the a bond be furnished for the value of the goods, as per provisions of Rule 140(1): HC (Para 1,2,4)

- Writ appeal partly allowed: KERALA HIGH COURT

2018-TIOL-102-HC-KERALA-GST

Garuda Timber Traders Vs Assistant State Tax Officer

GST - the assessee, a dealer, sent a consignment of Timber to a customer in Karnataka - It prepared an invoice with forest pass & also uploaded the e-way bill onto the official portal - Owing to some technical glitches, it was unable to upload Part B of the e-way bill - Nonetheless, the assessee went ahead with the transportation - The vehicle was intercepted en route and the goods were detained on grounds that the accompanying e-way bill was incomplete - Despite multiple attempts, the assessee repeatedly failed to upload Part B of the e-way bill - When it finally succeeded in doing so, it sent a copy of the e-way bill and also filed reply to notice u/s 129(3) - Nonetheless, duty demand was raised with interest & imposition of equivalent penalty - Hence the present writ contesting such duty demand & also seeking release of the goods - The assessee also challenged the power to levy duty demands and penalty in light of the glitches faced in the GSTN portal.

Held - considering the decision of a division bench of this court in Renji Lal Damodaran v. State Tax Officer which involves identical facts, the goods in question are directed to be released provisionally & pending further adjudication u/s 129(1) - Such release is however subject to the assessee furnishing bank guarantee for the tax amount with penalty as well as a bond u/r 140(1) of the CGST Rules, equivalent to the value of the goods - Issue relating to legality of powers of detention and adjudication vesting in the same authority, is left untouched: HC (Para 3-6, 51, 52, 57, 58)

- Writ petition disposed of: KERALA HIGH COURT

2018-TIOL-101-HC-KERALA-GST

Earthline Services Pvt Ltd Vs State of Kerala

GST - Petitioner is a dealer under Kerala Value Added Tax Act, 2003 and has been issued with a notice dated 02.06.2014 u/s 25(1) of KVAT Act – Petitioner seeking a writ of mandamus or any other appropriate writ, order or direction declaring section 174(1)(i)/174(2) of the Kerala State Goods and Services Tax Act, 2017 as being unconstitutional and for striking down the same.

Held: Once a lis can be disposed of, and a grievance can be redressed, on the statutory adjudication, the other issues, especially involving constitutional validity, need not be addressed - canon of constitutional avoidance is well established - Writ petition allowed on the issue of limitation in view of this High Court decision in Court in M/s. Cholayil Pvt. Ltd v. The Assistant Commissioner (Assessment) Judgment dated 5th July 2018 = 2018-TIOL-1624-HC-KERALA-VAT – Petition allowed: High Court [para 3]

- Petition allowed: KERALA HIGH COURT

2018-TIOL-100-HC-KERALA-GST

Lamit Tubes & Mouldings LLP Vs UoI

GST - Petitioner attempted to upload the Form GST TRAN-1 within the stipulated time but it failed because of some system error - petitioner, therefore, seeks direction for taking credit of the available Input Tax. Held : Not only the petitioner but also many other people faced this technical glitch and approached this Court - on earlier occasions, the Court had permitted the petitioner to apply to the Nodal Officer concerned to have the issue resolved - petitioner, too, may apply to the Nodal Officer who will look into the issue and facilitate the petitioner's uploading FORM GST TRAN-1, without reference to the time-frame - petitioner to apply within two weeks and Nodal Officer to take steps within a week thereafter - If the uploading of FORM GST TRAN-1 is not possible for reasons not attributable to the petitioner, the authority will also enable it to take credit of the input tax available at the time of its migration - Petition disposed of: High Court [para 4 to 6]

- Petition disposed of: KERALA HIGH COURT

2018-TIOL-99-HC-MAD-GST

Erbis Engineering Company Ltd Vs CC

IGST - the petitioner imported some goods and filed bills of entry for them - It was aggrieved by the assessment wherein the Department classified the goods under a heading different from the one under which the goods had been classified by the petitioner - The Department also claimed that while the bills of entry were assessed under the same heading favored by the petitioner, a demand for IGST had been raised under Sl No 453 of Schedule III to Notfn No 01/2017.

Held - the classification dispute cannot be adjudicated in a writ petition & so the petitioner must seek appropriate remedy under the Customs Act - Nonetheless, considering the Department's instruction that while the classification favored by the petitioner had been adopted, the demand raised for IGST is untenable as the petitioner merits a chance to contest such decision - Hence the Department must issue an SCN to the petitioner & follow it up with grant of personal hearing - Considering the high-value nature of the imported goods, the entire process be expedited: HC (Para 2,3,4,5)

- Writ petition disposed of: MADRAS HIGH COURT

2018-TIOL-98-HC-MAD-GST

Jai Laxmi Venkatesh Granites Pvt Ltd Vs Assistant Commissioner of Commercial Taxes (SGST)

GST - the petitioner company is engaged in the manufacture & resale of Granite - It is registered under VAT and Central Sales Tax - When the petitioner attempted to migrate to GST, it received a communication to the effect that the functionality enabling migration through Form GST REG-26 had been closed - Resultantly, it would have to obtain fresh registration under GST - The petitioner invoked the writ jurisdiction of the High Court, which directed that the petitioner be treated as an unregistered dealer & granted interim relief from any action - The matter was then adjourned. Held - After introduction of GST & during the process of migration into CGST, it appeared that some mistake or short fall of information had crept in - Also the petitioner made no efforts to rectify the same during on-line migration - Nonetheless, the petitioner is directed to approach the Nodal Officer concerned - Such lapse on the petitioner's part be considered by the Nodal officer - Interim protection granted by High Court to be in effect till Nodal Officer passes an order: HC (Para 2,6)

- Writ petition disposed of: MADRAS HIGH COURT

2018-TIOL-97-HC-MAD-GST

LRN Auto Agencies Pvt Ltd Vs Assistant Commissioner

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

Held - the GST commissionerate concerned directed to appoint the Nodal Officer for the State of Tamil Nadu, if not already appointed - The petitioner directed to approach the Nodal Officer & make representations - The Nodal Officer would in consultation with the GSTN, take appropriate measures to redress such grievances: HC (Para 2,4)

- Writ petition disposed of: MADRAS HIGH COURT

CGST CIRCULAR

56/2018

Clarification regarding removal of restriction of refund of accumulated ITC on fabrics - reg

ORDER

Order 03/ 2018

Constitution of Standing Committee under sub-rule (4) of rule 97 of Central Goods and Services Tax Rules, 2017

CGST RULES NOTIFICATIONS

38/2018

Seeks to prescribe the due dates for quarterly furnishing of FORM GSTR-1 for those taxpayers with aggregate turnover of upto Rs.1.5 crores for the quarter July, 2018 to September, 2018

37/2018

Seeks to prescribe the due dates for furnishing of FORM GSTR-1 for those taxpayers with aggregate turnover of more than Rs. 1.5 crores for the months of July, 2018 and August, 2018

36/2018

Seeks to extend the due dates for filing FORM GSTR-3B for the months of July, 2018 and August, 2018

35/2018

Seeks to extend the due date for filing of FORM GSTR-3B for the month of July, 2018

JEST GST (By Vijay Kumar)

If you (Government) poke industries like this, they will run away

Refund Fund and Fun

Where angels fear to tread

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