GST NEWS
New GSTR - GSTN working on components unlikely to be amended further: MoS
GST HIGH COURT CASES
2018-TIOL-190-HC-ALL-GST
Satyendra Goods Transport Corp Vs State of U P
U.P. Goods and Services Tax Act, 2017 [U.P.G.S.T. Act 2017] - Petitioner seeking quashing of orders of seizure under section 129(1) as well as imposition of tax and penalty under section 129(3) of the U.P.G.S.T. Act 2017:
Held: The fact of the matter is that on the date of incident, i.e. 17.12.2017, neither there was any E-way Bill System nor any notification by the Central Government under rule 138 of the C.G.S.T. Rules 2017 requiring the carrying of a T.D.F. Form or any other such document in the course of inter-State supply/movement of goods, as such, the very basis for passing the impugned orders and taking action against the petitioner as impugned herein is apparently erroneous and illegal - in view of the above it cannot be said that there was any intent to evade tax - cross-empowerment under section 4 of I.G.S.T. Act 2017 and section 6 of C.G.S.T. Act 2017 does not mean that the State Government can issue a notification under rule 138 of U.P.G.S.T . Rules made under U.P.G.S.T. Act 2017 to prescribe documents to be carried in an inter-state supply of goods and services regarding which only the Central Government has the power under section 20(xv) of I.G.S.T. Act 2017 read with section 68 of C.G.S.T. Act 2017 and rule 138 of C.G.S.T. Rules 2017 - the impugned actions/directions are accordingly quashed - the preliminary objection raised by the respondent on the ground of availability of a statutory remedy of appeal before the Addl. Commissioner, Grade II (Appeal) under section 107 of the U.P.G.S.T. Act 2017 is also rejected - consequences shall follow accordingly as per law - the seized goods shall be released forthwith - writ petition stands allowed in the aforesaid terms : HIGH COURT
- Writ Petition allowed: ALLAHABAD HIGH COURT
2018-TIOL-189-HC-ALL-GST
Khandelwal Extractions Ltd Vs State of UP
CGST - Petitioner challenges the order dated 25.05.2018 passed by the Authority for Advance Ruling and the ex-parte order passed by the Appellate Authority for Advance Ruling by which the said authority upheld the order of AAR - Petitioner-Appellant had filed an appeal on 14.07.2018 against the order of the AAR and the AAAR had sent an e-mail on 20.09.2018 fixing the date of hearing on 26.09.2018 - although the receipt of the e-mail has not been denied by the petitioner-appellant, it is informed that due to holidays on 21, 22, and 23 September 2018, they became aware of the hearing date on 24.09.2018 and contending that the said time given to participate in the hearing is short and the counsel had some difficulty, they sought an adjournment by making an application by e-mail on 24/25.09.2018 to the AAAR - however, their request for adjournment was rejected and the appeal was decided ex-parte and, therefore, the present petition has been filed.
Held: Authority for Advance Ruling and the Appellate Authority have been constituted principally, to nip the litigation in its bud - Any assessee who seeks an advance ruling discloses his intent to avoid possible litigation, in future - He only seeks answer on an issue/question that potentially contains the seeds of future litigation - The legislative intent appears to be to provide resolution of such issues in a time bound manner - Looked from that perspective, rejection of the adjournment sought for the first date fixed by the Appellate Authority, that too when the Appellate Authority itself could not convene or could not hear the matter for the first 60 days of the period contemplated under Section 101(2) of the CGST Act, appears wholly harsh and unreasonable on the part of the Appellate Authority to have refused the short adjournment sought, and to have proceeded to decide the appeal itself on merits - To decide the appeal itself on merits, ex-parte, should really be the measure of last resort and should not be undertaken by way of first response to an adjournment application in such cases - Order dated 12.10.2018 passed by the Appellate Authority is set aside - The matter is remitted to the Appellate Authority to decide the petitioner's appeal afresh, as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order: High Court [para 13, 14, 17, 19]
- Matter remanded : ALLAHABAD HIGH COURT
2018-TIOL-187-HC-AHM-GST
Zaveri And Co Pvt Ltd Vs UoI
CGST - Petitioner challenged rule 96(10(b) of CGST Rules, 2017 insofar as the same had been given retrospective effect - Petitioner pointed out that subsequently by notification 53/2018-CT dated 09.10.2018, sub-rule (10) was substituted and retrospective effect given to it has been deleted - thereafter, vide notification 54/2018-CT dated 09.10.2018, sub-rule (10) has been again substituted and given effect to prospectively and, therefore, their grievance no longer survives - Petition, therefore, is disposed of as having become infructuous: High Court [para 1, 2]
- Petition disposed of: GUJARAT HIGH COURT
2018-TIOL-186-HC-MAD-GST
SRTC Tech Solutions Pvt Ltd Vs ACCT
CGST - Petitioner seeks for a Mandamus to direct the respondents to take actions as may be necessary, including re-opening the common portal and extending the time period for filing the declaration in FORM GST TRAN-1 - grievance of the petitioner is that they are not in a position to take the Input Tax Credit as their attempt to submit the declaration electronically in Form GST-TRAN-1 on 26.12.2017 could not succeed due to technical problems on the common portal GSTN - petitioner approached assessing officer and who in turn directed them to approach Nodal officer - Respondent submitted that the first respondent has already forwarded a letter of the petitioner to the Nodal Officer and the same is still pending with the GSTN; that the time granted is up to 31.03.2019 to file Form GST TRAN-1.
Held: Writ Petition is disposed of - Nodal Officer, in consultation with the GSTN shall take note of the grievance expressed by the petitioner/assessee and forward the same to the Grievance Committee, which in turn, shall take appropriate decision in the matter as expeditiously as possible, in any event, within a period of four weeks thereafter: High Court [para 6]
- Petition disposed of: MADRAS HIGH COURT
AAAR CASES
2018-TIOL-30-AAAR-GST
R Vidyasagar Rao Construtions
GST - Applicant had sought a ruling from the Authority of Advance Ruling as to whether the combination of service of excavation of sand including loading with machinery at reach, formation of ramps and maintenance of roads, transportation charges for the tractors/tippers of sand from reach to stockyard and loading cost of sand from stockyard to lorries is Works Contract or Composite supply and what is the rate of tax on the consideration received therefor - Since the AAR had expressed two different views on classification of services and applicable rate of tax, the matter was referred to the Appellate authority.
Held : As per statutory definition, 'principal supply' in a composite supply would be that which constitutes predominant element and to which other supplies forming part of composite supply are ancillary - 'predominant element' is not defined in the Act - common understanding is 'something which is more important or noticeable than others in a set of people or things' - determination of predominant element from among those in a composite supply would have to take into account inter alia the nature of activities, quantum of work/labour etc. involved, values assigned for different elements and more importantly the intention of the parties as per the terms of the contract/agreement, work orders etc. - In the present case, the basic intent and purpose of tender/contract-agreement and the concomitant description of the scope of the work therein is to move/shift the mineral sand from one place to another by means of transport - said activity i.e transport of sand from one place to another, therefore, constitutes the predominant element in the instant case and other activities of excavation, loading, unloading etc. are incidental or ancillary to the main activity - there is also no separate/specific mention of any value/rate for only 'excavation' activity in the said upset price - Principal supply is, therefore, 'Transport of goods by road' and not 'excavation of sand' hence these are classifiable under Service Code 996511- as regards Vehicles used by the applicant for transport of sand i.e. lorries/trucks (or tractors/tippers), word 'vessel' as used in the notification would not cover the trucks or lorries or tractors/tippers used by the applicant for rendering the impugned services - wording used in a 'condition' can by no means be interpreted in a manner negating and distorting the meaning assigned in the Act/notification - opinion of the Central Member that 'vessel' would not cover the trucks/lorries is correct - applicable rate of tax is 9% CGST plus 9% SGST in terms of Sl. No. 9 to notification 11/2017-CTR, clause (v) titled 'Goods transport services other than (i), (ii), (iii) and (iv) above' - Reference disposed of accordingly: AAAR
- Reference disposed of : APPELLATE AUTHORITY FOR ADVANCE RULING
2018-TIOL-29-AAAR-GST
Nagarjuna Agro Chemicals Pvt Ltd
GST- Applicant had sought advance ruling on the rate of tax on 'Agricultural Soil Testing Mini-lab and its Reagent refills' - Authority for Advance ruling had held that since the functions performed by the 'Soil Testing Mini-lab' are similar to that of an Instrument/Apparatus for physical or chemical analysis, the same is correctly classificable under heading 9027 of the Customs Tariff; so also, since 'Refilling reagent' is a part of 'Soil testing mini-lab' and the parts and accessories identifiable as being solely or principally for use with the instruments/apparatus of heading 9027 are also to be classified under the same heading, 'Reagent refills' are correctly classifiable under heading 9027 - Appeal against this order.
Held: Appellant's contention that the impugned goods are classifiable under heading 8201 as 'other tools of a kind used in agriculture' is untenable since the construction of description in heading 8201 is a typical one attracting application of the principle of ejusdem generis for interpretation of the phrase 'other tools of a kind used in agriculture' - contention of the appellant that any item exclusively used for agriculture has to fall under heading 8201 category 'other tools of a kind used in agriculture' would render various other specific categories redundant and, therefore, such an interpretation is impermissible - the impugned goods are designed, intended and used for conducting 'chemical analysis' and hence would rightly fall within the description 'instruments for physical or chemical analysis' and hence rightly classifiable under heading 9207 - mere non-appearance of phrase 'soil testing' in heading 9207 is of no relevance - reagents being solely or principally for use with instruments/apparatus of heading 9027 are also to be classified under heading 9027 in view of note 2(b) of Chapter 90 - exemption under entry sl. No. 137 of the notification 2/2017-CTR is, therefore, not available - order of AAR upheld and appeal dismissed: AAAR
- Appeal dismissed : APPELLATE AUTHORITY FOR ADVANCE RULING
2018-TIOL-28-AAAR-GST
Maheshwari Stone Supplying Company
GST - Authority for Advance Ruling had held that limestone slabs which have undergone the process of cutting and polishing and which have been worked beyond the stage of normal quarry products of Chapter 25 are classifiable under heading 6802 and, therefore, Polished/Processed Limestone slabs are correctly classifiable under heading 6802 of the Customs Tariff - appeal against this order.
Held: Polished/Processed Limestone slabs are correctly classifiable under heading 6802 of the First Schedule to the Customs Tariff Act, 1975 in view of the relevant heading-description read with the Chapter Notes and HSN Explanatory Notes - in terms of the sub-classification under heading 6802, the said goods would fall under Tariff Item no. 6802 92 00 as ‘Other calcareous stone' considering that limestone slabs are ‘calcareous stone' and in view of grouping under heading 6802 read with rule 2 of the Rules for Interpretation - no need for invoking subsequent rules 3 and 4 - impugned goods do not fall under Chapter heading 2530 or for that matter under 2515/2516/2521 of the Schedule - Appeal dismissed: AAAR
- Appeal dismissed : APPELLATE AUTHORITY FOR ADVANCE RULING
AAR CASES
2018-TIOL-322-AAR-GST
Utkal Polyweave Industries Pvt Ltd
GST - Polypropylene Leno Bags (PP Leno Bags) being woven bags of Polypropylene are classifiable under Tariff Heading 3923 2990: AAR
- Application disposed of : AUTHORITY FOR ADVANCE RULING
2018-TIOL-321-AAR-GST
Umax Packaging
GST - Applicant is engaged in manufacture of plastic pouches in Jodhpur and proposes to purchase goods from M/s Uma Polymers Ltd., Guwahati and would further supply the same to M/s Pratap Snacks Ltd., Guwahati - inasmuch as applicant will direct M/s Uma Polymers Ltd. to deliver the goods to M/s Pratap Snacks Ltd., Guwahati - applicant seeks a ruling on the admissibility of Input Tax credit of IGST charged by M/s Uma Polymers Ltd. to the applicant i.e. whether ITC of IGST paid on "bill to ship to" model is admissible to applicant.
Held: As per provisions of sections 10(1)(b), 16 and 17 of the IGST Act, 2017, it is deemed that the applicant has received the goods from M/s Uma Polymers Ltd., Guwahati and thereafter the said goods are despatched to M/s Pratap Snacks Ltd., Guwahati - IGST is applicable on both the transactions i.e. M/s Uma Polymers Ltd., Guwahati to applicant and the applicant to M/s Pratap Snacks Ltd., Guwahati - Thus M/s Uma Polymers Ltd., Guwahati can charge IGST from applicant against which the applicant are eligible to claim full input tax credit of IGST paid on "Bill to Ship to" model: AAR
- Application disposed of : AUTHORITY FOR ADVANCE RULING
2018-TIOL-320-AAR-GST
Super Wealth Financial Enterprises Pvt Ltd
GST - Services provided by applicant by way of providing energy efficient street lighting services including OM of the street lighting infrastructure during the contracted period to Bhubaneshwar Municipal Corporation (BMC) does not constitute supply of "pure services" as it involves significant use of goods/materials with stipulation to transfer the total business assets to BMC at the end of the contract period -exemption notification is to be interpreted strictly and the burden of proving the applicability would be on the applicant as held by the apex court in the case of Dilip Kumar & Co. - 2018-TIOL-302-SC-CUS-CB - benefit of exemption from tax in terms of sl. No. 3 of Notification 12/2017-CTR is not available: AAR
- Application disposed of : AUTHORITY FOR ADVANCE RULING
2018-TIOL-319-AAR-GST
Sanjog Steels Pvt Ltd
GST - Applicant M/s SSPL seeks determination of time and value of supply of goods/services - Applicant would be selling the manufactured goods under brand name Rathi Powertech to M/s RSE/RPG and who in turn would be selling the said goods after adding its margin of about Rs.50 per metric tonne to M/s Goyal who in turn would be selling the same to various customers, say M/s X, as per the market demand - manufactured goods would be directly despatched from the applicant to M/s X and the E-way bill would be prepared on "Bill to Ship to" model as per s.10(1)(b) of the IGST Act, 2017.
Held : Supply from M/s SSPL to M/s X on "Bill to Ship to" mode is permissible - applicant can issue an e-way bill in which the "bill to" would be mentioned in the name of M/s RSE/RPG whereas "ship to" would be in the name of the final customer M/s X - Since TMT Steel bars manufactured by applicant is similar in quality to what is made by M/s RSE/RPG, therefore, value of supply of goods for the transactions between M/s SSPL and M/s RSE can be ascertained in terms of Section 15 of the CGST Act r/w rule 28 of the Rules with availability of full credit - transaction between M/s Goyal and M/s X would be covered by s.15 as both are unrelated persons: AAR
- Application disposed of : AUTHORITY FOR ADVANCE RULING
2018-TIOL-318-AAR-GST
Prism Hospitality Services Pvt Ltd
GST - Activity of supply of food in canteens of office, factory, hospital, college, industrial unit etc. on contractual basis except that supply is not event based or on specific occasions constitutes supply and is taxable @5% (SGST + CGST) and the supplier is not eligible for input tax credit as per the condition specified by the amended notification 13/2018-CTR - where the applicant provides transport charges to a training institute for carting food from one building to another for service/sale and the applicant charges separate transport charges, the applicant needs to discharge GST on gross amount i.e. cost of food plus cost of transportation at @18%: AAR
- Application disposed of : AUTHORITY FOR ADVANCE RULING
2018-TIOL-317-AAR-GST
Pawanputra Travels
GST - Applicant has been awarded contract for providing both air conditioned and non-airconditioned vehicles on hire to the Indian Army - applicant has raised invoices by charging GST but the Army has not reimbursed them the element of GST insofar as the non-airconditioned vehicles provided by them on the ground that no GST is payable in terms of sr. no. 15 of Notification 12/2017-CTR - applicant seeks a ruling on the applicable GST rate.
Held: Service provided is "Rent-a-cab" service which attracts IGST @5% provided that credit of input tax has not been taken and if taken, the tax would be @12% - exemption under notification 12/2017-CTR is not available as the service does not fall under "non-airconditioned contract carriage category" : AAR
- Application disposed of : AUTHORITY FOR ADVANCE RULING
2018-TIOL-316-AAR-GST
Chinta Polu Philip
GST - Applicant has not deposited the full fee of Rs.10,000/- for advance ruling i.e Rs.5000/- each for SGST and CGST as specified in Circular 25/25/2017-GST dated 21.12.2017 issued by CBIC - applicant was also reminded twice on 20.09.2018 and 16.10.2018 - since the application has not been filed as per the Act/Rules, same is rejected: AAR
- Application rejected : AUTHORITY FOR ADVANCE RULING
2018-TIOL-315-AAR-GST
G N Chemicals
GST - Applicant seeks a ruling as regards levy of GST rate applicable on "Neem seed" .
Held: Supply of "Neem seeds" in frozen or dried form for the purpose as specified by the applicant and the said seeds being not of seed quality, supplied by the agro-division business would merit being taxable @2.5% SGST and 2.5% CGST - supply of "neem seed powder" would also be taxable at the same rates of GST: AAR
- Application disposed of: AAR
2018-TIOL-314-AAR-GST
Banking Codes And Standards Board Of India
GST - Applicant seeks a ruling as to whether GST is liable to be paid on the contribution made by members (member banks) towards "Annual Membership Fees and Registration Fees" to the Corpus fund of BCSBI and recurring expenditure being incurred. Held: Activity of Banking Codes and Standards Board of India is falling under the definition of "supply" as per s.7 of the CGST Act, 2017 and, therefore, the contribution made by members towards the Corpus fund can be considered as consideration as per s.2(31) of the Act - principle of mutuality is non-existent in the present case - Activity is to be treated as ‘business' as provided u/s 2(17)(e) of the Act - GST is payable: AAR
- Application disposed of: AAR
NAA CASES
2018-TIOL-18-NAA-GST
State Level Screening Committee on Anti-Profiteering Kerala Vs Zeba Distributors
GST - Anti-Profiteering - Kerala State Screening Committee had vide minutes of its meeting referred the present case to the Standing Committee alleging profiteering by the respondent on the supply of "Eastern Meat Masala" by not passing the benefit of reduction in the rate of tax at the time of implementation of GST w.e.f 01.07.2017 - DGAP in its report stated that in the pre-GST era, the applicable VAT was @5% and there was no CEX duty; that in the post GST era, the rate of tax was also @5% - DGAP intimated that there was no reduction in the rate of tax as under both the regimes, the rate was 5%; that the respondent did not increase the per unit base price (excluding tax) which was retained at Rs.238/-; that the respondent had not increased the per unit price and no allegation of profiteering is established.
Held: It is apparent that there was no reduction in the rate of tax on the above product w.e.f 01.07.2017, hence the anti-profiteering provisions contained in section 171 are not attracted - as there is no increase in per unit base price (excluding tax) of the product "Eastern Meat Masala”, the allegation of profiteering is not sustainable - application is dismissed: NAA
- Application dismissed: NAA
2018-TIOL-17-NAA-GST
Shylesh Damodaran Vs Landmark Automobiles Pvt Ltd
GST - Anti-Profiteering - Applicant alleges that he had purchased one Honda City car from respondent by paying an amount of Rs.9,54,234/- on which GST @28% and Cess @17% was charged, however, benefit of ITC was not passed on to him and, therefore, action should be taken against respondent.
Held: DGAP investigation report indicates that there was no reduction in the tax rate, hence allegation of profiteering is not sustainable - moreover, perusal of the record indicates that the profit margin of the respondent got reduced from Rs.25,589/- which he was receiving in the pre-GST period to Rs.16,621/- post GST -Records reveal that the base price charged by the respondent in the post GST sale invoice dated 14.10.2017 was Rs.1,73,346/- less than the base price in the pre-GST sale invoice dated 28.04.2017 due to the reason that in the pre-GST period, the credit of Excise duty, NCCD and Cesses etc. was not available to the respondent as only credit of VAT was admissible while in post GST period, the respondent was entitled to claim the ITC of the entire GST paid @45% - it is, therefore, clear that the base price charged from the applicant had been reduced as the benefit of ITC was passed on by the respondent to the applicant - allegation that the benefit of ITC has not been given is, therefore, not proved - provisions of s.171 of the CGST Act, 2017 have not been contravened - application dismissed: NAA
- Application dismissed: NAA
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