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GST HIGH COURT
2018-TIOL-295-AAR-GST
Wonderfrutz Products Llp
GST - The applicant-company is engaged in the production and sale of 'Tutty-fruity' - It is a confectionary item consisting of chopped & candied fruits - It approached the AAR seeking to know whether Tutti-fruity is classifiable under HSN 08111010 or HSN 20060000.
Held - The 'tutti-frutti' is manufactured using raw papaya & so is classifiable under Tariff item 20060000: AAR
- Application disposed of: AAR
2018-TIOL-294-AAR-GST
Bindu Ventures
GST - The Applicant-company engaged in the construction of commercial complexes, which are then sold or rented out - It approached the AAR seeking to know the date which is considered as date of completion of property, between the date on which the necessary approvals are received from the BBMP/Karnataka Pollution Control Board/Karnataka Electricity Board or else the date on which a completion certificate is received from the Chartered Engineer - It also sought to know the GST liability on amount received as consideration for sale of completed offices, after date of completion & where part of the consideration is received before date of completion - It also sought to know if GST is leviable on consideration received from sale of completed offices, where entire consideration is received after date of completion of construction.
Held - The date of occupancy certificate issued by the competent authority, namely the Bruhat Bengaluru Mahanagara Palike, should be treated as date of completion of construction - Also, if any part of the consideratob is received before such date of completion, then the transaction is to be treated as supply of services as per Entry 5 of Schedule II to the GST Act and so will attract levy of GST - Moreover, if the entire consideration is received after the date of completion, in such case, the transaction will not attract levy of GST: AAR
- Application disposed of: AAR
2018-TIOL-293-AAR-GST
Columbia Asia Hpospitals Pvt Ltd
GST - The applicant-company provides health-care services catergorized as 'In-Patient' and 'Out-Patient' - It also supplies medicines to in-patients and out-patients & is also engaged in operating restaurant and canteen services in its premises, from where food and eatable items are supplied to patients & attendants - The applicant sought to know if two or more supplies of goods or services are naturally bundled, whereupon the principal supply is exempt & other supplies are taxable & wherether such supplies can be treated as composite supplies - Also, if in the affirmative and considering that principal supply is exempt supply, then can such composite supply be treated as exempt supply or composite supply - Further, if the supply is not composite supply, then is registered person allowed to claim ITC pair on procurement of capital goods, inputs & input services related to both taxable & exempt supply.
Held - The two or more supplies of goods or services or both which are naturally bundled, wherein the principal supply is exempt & others are taxable, can be treated as a composite supply of the principal supply if such principal supply is not a non-taxable supply u/s 2(78) of the CGST Act 2017 - Such composite supply with the principal supply would be treated as exempt composite supply - Besides, the applicant can claim ITC only on such taxes paid for inputs, input services & capital goods which are attributed to supplies of goods or services taxable under CGST Act 2017 & which are not attributable to exempt supplies of goods & services under CGST Act: AAR
- Application disposed of: AAR
2018-TIOL-178-HC-KERALA-GST
Panel Source Llp Vs Assistant State Tax Officer
CGST - Writ Appeal filed against judgment of single Judge - vehicle along with goods detained for the reason that Part B of e-way bill was not uploaded - petitioner is aggrieved that the collection of security in the form of simple bond for the value of the goods and bank guarantee equivalent to the amount of applicable tax, interest and penalty, for the release of the goods detained under Section 129(3) of the CGST Act, 2017.
Held: It is noticed that the detention itself was on 09.09.2018 and the subsequent uploading of the Part-B on 10.09.2018 would not efface the defect as pointed out by the Detaining Officer - judgment of the Single Judge, insofar as refusing the release of the vehicle on the basis of the judgment in W.P.(C) No.26986/2018, is perfectly in order - Directed that the vehicle with the goods be released to the appellant on furnishing a bank guarantee for tax and penalty found due and a simple bond without sureties for the value of the goods in the form as prescribed under Rule 140(1) of the CGST Rules - Writ Appeal is disposed of: High Court
- Petition disposed of: KERALA HIGH COURT
2018-TIOL-177-HC-DEL-GST
Anil Goel And Associates Vs UoI
CGST - Petitioner challenges validity of Circular 07/07/2017-GST dated 01.09.2017 as being violative of section 39 of the CGST Act and rule 61(5) of the CGST Rules, 2017 - Petitioner further submits that sub-rule 5 of Rule 61 of the Rules states that the Commissioner, by notification, can specify the manner and condition subject to which return in Form GSTR-3B can be electronically furnished which, the petitioner urges, amounts to excessive delegation, beyond the legislative mandate of Section 39 of the Act - Respondents to file affidavit within four weeks - matter to be re-listed on 12th February, 2019: High Court
- Matter relisted: DELHI HIGH COURT
2018-TIOL-176-HC-MUM-GST
A-1 Cuisines Pvt Ltd Vs UoI
GST - CGST/SGST Act, 2017 - Petitioner seeks issuance of Writ of Mandamus directing the respondent UOI to exempt the petitioner from charging applicable taxes under the GST legislations on sale of cosmetic products, perfumes etc. to the International passengers and claim refund of any input tax paid on input supplies and input services from the retail shop which the petitioner intends to set up at the Domestic Security hold area of the Nagpur Airport - Petitioner submits that a lot of international passengers take their flights from the Nagpur Airport to travel outside India through a transit International Airport - Petitioner submits that sale of similar products to international passengers are permitted without levy of Customs duty and applicable taxes under the CGST/IGST/SGST from the duty free shops located in the arrival and departure halls of International Airports in India and, therefore, they seek similar benefits - reliance is placed on the Apex Court decision in Hotel Ashoka [2012-TIOL-08-SC-VAT] and the Tribunal decision in Flemingo Duty Free Shop Pvt. Ltd. [ 2017-TIOL-3744-CESTAT-MUM ] and the GOI order dated 31.08.2018 passed u/s 129DD of the Customs Act in the case of Aarish Altaf Tinwala .
Held: Judgments cited are clearly applicable only in respect of supplies to or from the duty free shops situated after the passenger crosses the immigration counter beyond the Customs frontiers, at arrival or departure hall of International Airport terminals, where the transaction would be said to have taken place outside India - same would be a "non-taxable" supply u/s 2(78) of the Act and such duty free shops located at the International Airports would be in "non-taxable" territory as defined in s.2(79) of the Act - aforesaid judgments would squarely apply for the sale/purchase/supplies of goods or services to or from duty free shops situated after the passenger crosses the immigration counter at arrival or departure hall of International Airports but would have no application to shops located at a domestic Airport or Domestic Security hold area, which are before even the immigration clearance by a passenger, where the transaction cannot be said to have taken place in any area beyond the customs frontiers of India or outside India - Even otherwise, a passenger travelling on a domestic flight from Nagpur may or may not travel abroad and the Customs Authorities would not be able to have effective check and control to verify whether the goods purchased from Domestic Airport at Nagpur are actually taken abroad by the passenger - No merit in the petition - No case made out even on prima facie basis to issue any directions or any notice in that regard - Petition dismised: High Court [para 12 to 14]
Petition dismissed: BOMBAY HIGH COURT
2018-TIOL-175-HC-KERALA-GST
Daily Express Vs Assistant State Tax Officer
GST - Petitioner, a transporter, when transporting goods for a consignor, the Assistant State Tax Officer detained the goods as well as the conveyance on the ground that Part B of the accompanied e-way bill was not completed, hence the same is not valid for movement of goods as per section 138 of the Act - Petitioner submits that it receives paltry sums never exceeding 2,000/- rupees as transport charges and Section 129 in its entirety does not apply to the transporter; it may affect either the consignor or the consignee, at best; that the transaction is genuine and there is no possibility of, not even a doubt about, any tax evasion; that in view of s.122 if somebody transports any taxable goods without the cover of documents, at best he can be mulcted with Rs.10,000/- as fine, and nothing more.
Held: If the petitioner desires to have the interim release of the goods, there is no escape from Section 129 of the CGST Act, 2017 - Contention of petitioner that they are only a transporter and so the onerous Section 129 should not affect it is unacceptable since the Act does not provide for any such exemption - In fact, Section 129(1)(b) applies to all other persons interested in the goods than the consignor - If the petitioner is interested, then it answers that description - notices of detention do not suffer from any legal infirmity - If the petitioner wants the interim custody of the goods, it may comply with the statutory mandate under Section 129(1)(b) and get them released - Petition dismissed: High Court [para 12 to 14]
- Petition dismissed: KERALA HIGH COURT
2018-TIOL-174-HC-DEL-GST
Pyramid Infratech Pvt Ltd Vs UoI
GST - Section 171 of the CGST Act, 2017 - Anti-Profiteering - application for stay of the impugned order dated 18.09.2018 = 2018-TIOL-06-NAA-GST passed by the second respondent National Anti-Profiteering Authority concluding that the petitioner had profiteered by an amount of Rs.8.23 crores and directing the petitioner to reduce the price to be realized from buyers of flats commensurate with the benefit of ITC received by them.
Held: Petitioner has written a letter dated 05.10.2018 wherein it is recorded that they had offered to pay an amount of Rs.5,11,60,450/- to resolve the issue amicably with the customers - As an interim arrangement, petitioner is directed to deposit of Rs.5,11,60,450/- with the respondent authorities within 3 weeks - On the deposit being made, the same would be converted into an interest bearing FDR for a period of nine months and the FDR amount and the interest accrued thereon would abide by further orders of the Court - Reply to the application to be filed by the respondents within four weeks - Court has not expressed any firm and final view - Matter to be listed on 19.02.2019: High Court
- Matter listed: DELHI HIGH COURT
2018-TIOL-173-HC-P&H-GST
Modern Insecticides Ltd Vs State Of Punjab
GST - Issue raised is regarding release of detained goods during transportation after penalty has been levied and appeal against penalty order is pending.
Held: Though relevant provisions have been referred to, it is a sad state of affairs that no senior officers of the department concerned are present to assist the Court though the issue is important - Secretaries of the department concerned and the Excise and Taxation Commissioners of both States of Punjab and Haryana to appear in person in Court on the next date of hearing, 22.10.2018, to assist the court: High Court
- Matter adjourned: PUNJAB AND HARYANA HIGH COURT
GST AAR CASES
2018-TIOL-292-AAR-GST
Sri Patrick Bernardinz D'sa
GST - Applicant, a land owner, entered into an agreement with M/s Nforce Infrastructure India P Ltd. for development and promotion of “N Force - Pauline”, a residential/commercial building at Valencia, Mangalore - builder offered to develop and promote a multi-storied residential apartment cum commercial building - applicant seeks a ruling as to whether the land owner is liable to pay GST on premises alloted to him, which he intends to distribute among his family members.
Held: Notification 4/2018-CTR notifies a person or persons who supply development rights to a developer/builder etc. against a consideration, which may be in the form of a construction service, is liable to be registered under CGST/KGST Act, 2017 - It also provides that the person who supplies the development rights shall pay central tax at the time when the developer/builder transfers possession or right in the building by way of conveyance deed or similar instrument - Therefore, applicant being the person who has supplied the development rights to a developer in respect of his land is liable to registration and payment of tax: AAR
- Application disposed of: AAR
2018-TIOL-291-AAR-GST
Triveni Turbines Ltd
GST - Applicant has sought a ruling as to whether Turbine generator set to be supplied by them to the buyer for use in waste-to-energy project is covered under Sl. No. 234 of Schedule I of Notification 1/2017-ITR as ‘Renewable Energy devices and parts for manufacture of waste to energy plants/devices' attracting 5% levy.
Held: Turbine is not a renewable energy device because the turbine at no stage acquires the nature of a device which converts waste to energy - waste has already been converted into heat energy through the process of burning/combustion which in turn is utilized to convert water into steam and the said steam runs the turbine to generate electric power - Turbine runs on steam irrespective of whether the steam is obtained by combustion of waste or any other means, therefore, the fact that in this particular case the steam was generated out of waste cannot lead to the conclusion that the turbine is a renewable energy device - same turbine can run equally well on steam generated by use of coal etc. - Turbine in question will not qualify to be covered under serial no. 234 of Notification 1/2017-ITR: AAR
- Application disposed of: AAR
2018-TIOL-290-AAR-GST
Nforce Infrastructure India Pvt Ltd
GST - Applicant has entered into an agreement with Patrick B D'sa and five others for construction and to hand over 8828 square feet of residential apartment area, 1630 sq. ft. of commercial area and 8 car parkings on the land belonging to the aforesaid six persons - Project is completed post 01.07.2017 - Applicant seeks an advance ruling on the question as to whether they are liable to pay GST on the value of building constructed and handed over to the land owner in terms of the Joint Development Agreement; the value thereof since there is no monetary consideration involved; whether applicant is liable to pay service tax up to 30.06.2017 and GST thereafter.
Held: Applicant is supplying the construction service of building/civil structure to supplier of development rights (the land owner) against consideration in the form of transfer of development rights - Supplier of construction service to the supplier of development rights is liable to pay GST for the service provided in terms of notification 4/2018-CTR - Value is to be determined in terms of para 2 of notification 11/2017-CTR - Insofar as liability to pay service tax up to 30.06.2017 is concerned, it is clearly evident from section 142(11)(b) that the service tax is liable to be paid, which is liable under the Finance Act, 1994, on the services provided up to 30.06.2017 - on the services provided after 01.07.2017, GST is liable to be paid: AAR
- Application disposed of: AAR
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