GST CASE LAWS
HIGH COURT CASES
2019-TIOL-735-H-KAR-GST
Atria Convergence Technologies Ltd Vs UoI
GST - The petitioner company while submitting Form GST TRAN-1 during the relevant period, so as to enable carry forward of unreleased Cenvat credit from the earlier credit - However, the petitioner inadvertently transferred a portion of such credit to its branch in Hyderabad - Hence the petitioner later filed revised Form GST TRAN-1 so as to avail the credit inadvertently distributed to the Hyderabad branch - The petitioner then attempted to revise the form within the stipulated time period - The present writ was filed on grounds that the revise option in the GST portal had been disabled - The petitioner intimated such issue to the GST Help Desk vide email but no response was received - The petitioner once again attempted to file revised returns, but the portal declined to accept the same - Other representations bore no fruit - Hence the present writ petition.
Held - The petitioner is entitled to revise or rectify the errors in the Form GST TRAN-1 as per Rule 120A, wherein the Commissioner is empowered to extend the time period specified in Rule 117 - The petitioner's case is squarely covered under the provisions of Rule 120A - Hence the Revenue ought to have considered the petitioner's request seeking that it be permitted to revise the declaration - It is also the petitioner's grievance that such error could not be rectified due to technical glitches - Besides, Nodal Officers have been appointed to address grievances being caused due to technical glitches - In this case, it is incumbent upon the Nodal Officer concerned to address the petitioner's grievances - Hence the petitioner is directed to approach the Nodal Officer concerned - Directions are issued to the Nodal Officer concerned to resolve the issue in an expeditious manner: HC (Para 1,15,16)
- Writ petition disposed of: KARNATAKA HIGH COURT
2019-TIOL-722-HC-P&H-GST
S S Cemtech Vs UoI
GST - The petitioner is importing different commodities from Pakistan and exported goods to India from a Pakistani trader - The exporter in Pakistan filed cargo manifest and Customs Authorities, Pakistan examined the goods and permitted export thereof - The goods entered in Indian Territory through truck and the material was unloaded in Central Warehouse Corporation - The petitioner through its Customs Broker filed Bill of Entry along with copy of driving license of driver of the truck and import manifest - Since Attari Road is an EDI Port so the Customs Broker filed online checklist which was converted into Bill of Entry - The Customs Authorities in EDI System assessed Customs Duty Liability including Basic Customs Duty, Social Welfare Surcharge and Integrated Goods and Service Tax - At the time of filing of Bill of Entry, the rate of Basic Customs Duty leviable was nil and IGST was leviable @ 28% - On account of Pulwama attack, Central Government decided to increase Basic Customs Duty on all goods originating in or exported from Islamic Republic of Pakistan - The Government did not withdraw notfn dated 30.6.2017 whereby Cement and a number of other articles were exempted from Basic Customs Duty, however, issued notfn dated 16.2.2019 - The respondents revised Bill of Entry charging Basic Customs Duty @ 200%, Social Welfare Surcharge @ 10% and IGST @ 28% amounting to total duty at the rate of more than 270% as is clear from the EDI status report - The originally assessed duty was Rs.73,341/- and the revised duty is assessed at Rs.8,10,952/- - - Petition is disposed of by granting liberty to them to file a detailed and comprehensive representation raising all the pleas as raised in present writ petition before the appropriate authority - It is directed that in the event of a representation being filed by petitioner within a period of 15 days, the same shall be decided in accordance with law: HC
- Writ petition disposed of: PUNJAB AND HARYANA HIGH COURT
2019-TIOL-721-HC-P&H-GST
Lakshay Enterprises Vs UoI
GST - The petitioner is importing different commodities from Pakistan and exported goods to India from a Pakistani trader - The exporter in Pakistan filed cargo manifest and Customs Authorities, Pakistan examined the goods and permitted export thereof - The goods entered in Indian Territory through truck and the material was unloaded in Central Warehouse Corporation - The petitioner through its Customs Broker filed Bill of Entry along with copy of driving license of driver of the truck and import manifest - Since Attari Road is an EDI Port so the Customs Broker filed online checklist which was converted into Bill of Entry - The Customs Authorities in EDI System assessed Customs Duty Liability including Basic Customs Duty, Social Welfare Surcharge and Integrated Goods and Service Tax - At the time of filing of Bill of Entry, the rate of Basic Customs Duty leviable was 8.5% and IGST was leviable @ 5% - On account of Pulwama attack, Central Government decided to increase Basic Customs Duty on all goods originating in or exported from Islamic Republic of Pakistan - The Government did not withdraw notfn dated 31.12.2012 whereby Carom/Ajwan and a number of other articles were subjected to concessional rate of Basic Customs Duty, however, issued notfn dated 16.2.2019 - The respondents revised Bill of Entry charging Basic Customs Duty @ 200%, Social Welfare Surcharge @ 10% and IGST @ 28% amounting to total duty at the rate of more than 270% as is clear from the EDI status report - The originally assessed duty was Rs.2,59,463/- and the revised duty is assessed at Rs.74,12,297/- - Petition is disposed of by granting liberty to them to file a detailed and comprehensive representation raising all the pleas as raised in present writ petition before the appropriate authority - It is directed that in the event of a representation being filed by petitioner within a period of 15 days, the same shall be decided in accordance with law: HC
- Writ petition disposed of: PUNJAB AND HARYANA HIGH COURT
AAR CASES
2019-TIOL-109-AAR-GST
Sameer Mat Industries
GST - The applicant is engaged in manufacture of Polypropylene Mat, commonly known as plastic mat - The applicant approached the AAR seeking to know the classification and tax rate applicable on this product - While the applicant claimed that the commodity is classifiable under HSN Code 4601 01, the Revenue opined that such product was classifiable under HSN Code 3902 10.
Held - The Plastic Mat manufactured using mono-filament strips and the like of plastics some under the scope of Chapter 46 of the Customs Tariff Act 1975 - Further, the polypropylene mats manufactured by plaiting together the polypropylene mono-filament or tube or straw comes under Chapter 46 of the Customs Tariff Act 1975 - Besides, as per Entry 103 of Schedule II of Notfn No -01/2017-CT(R) dated 28.06.2017 and SRO NO 360/2017 dated 30.06.2017, polypropylene mats are taxable @ 12% up to 25.01.2018 - Thereafter, the rate of 5% is applicable, as per Entry 198A of the same schedule to the same Notfn: AAR
- Application disposed of: AAR
2019-TIOL-108-AAR-GST
Orlx Auto Infrastructure Services Ltd
GST - The applicant is supplying service of transportation of passengers or renting of motor vehicles with or without chauffeurs and also engaged in leasing of vehicles - The applicant also operates the renting and leasing business and separate divisions - The motor vehicles procured for renting business are used exclusively in such business & are not interchanged with those used in the leasing business - The motor vehicles have also been capitalized in the books of accounts - The applicant approached the AAR, seeking to know if it could claim ITC on the Compensation Cess paid on the purchase of such motor vehicles which were used to provide service of transportation of passengers or in the rental business & then disposed off after about 3-4 years of use.
Held - Considering the provisions of Rule 43 of the GST Rules, the applicant is eligible to avail ITC of the entire amount of Compensation Cess paid on the purchase of vehicles used in the rental business. Such ITC claimed is to be reversed every month equally apportioned over the prescribed period of 60 months to the extent of usage of exempted supply of services - Also, as per Rule 43(c) of the GST Rules applicant is eligible to claim ITC of Compensation Cess paid at the time of purchase of Motor vehicles and need to reverse a proportionate amount of ITC every month based on the turnover of rental service business and utilize the balance ITC for discharging liability for compensation cess arising at the time of sale of such vehicles: AAR
Application disposed of: AAR
2019-TIOL-107-AAR-GST
Polycab Wires Pvt Ltd
GST - The applicant is a dealer of electrical goods, cables, winding wires & pipes - Such items were supplied to the Kerala State Electricity Board, through distributors spread across the State, in connection with the aim of re-instating power connectivity in the flood-hit state - Hence the applicant approached the AAR seeking to know the GST liability on the goods provided free of cost by the applicant's distributors to the State Board - The applicant also sought to know whether distributor was eligible to avail ITC on the product - It also sought to determine whether or not the provisions of Section 17(5) of the CGST Act applied on CSR expenses.
Held - The distributors would bill the goods to the Board and pay GST to the Government - In the invoice issued, the distributor valued the goods for levying tax and the value was shown as discount - In this supply, as the consideration is not wholly in money, the provisions of Rule 27 of the CGST Rules/KSGST Rules would be applicable for valuation purposes - After supplying the goods to the Board, the distributor would raise claim to the applicant, who would reimburse the value to the distributor - In such case, the distributor is eligible to avail ITC on the goods supplied to the Board - Moreover, the applicant distributed electrical items to flood-striken people under CSR basis and without charging any money - In this case, ITC will not be available u/s 17(5)(h) of the KSGST & CGST Acts: AAR
- Application disposed of: AAR
2019-TIOL-106-AAR-GST
Uralungal Labour Contract Cooperative Society Ltd
GST - The applicant is a labour contract cooperative society, primarily engaged in constructing roads, bridges and other public infrastructure for the Government and other institutions - It is also an accredited agency for the State Govt of Kerala - The State Govt initiated a programme Livelihood for Artists and Local Art Hubs to empower the skills of rural artists and artisans - The applicant was appointed as an administrative agency for such project - Thus the applicant approached the AAR, seeking to know whether such role played by it classifies as taxable service.
Held - The activity performed by the applicant is pure service - Hence it is covered under Sr No 3 of Notfn No 12/2017-CT(R) dated 28.06.2017 & is exempted from GST: AAR
- Application disposed of: AAR
2019-TIOL-105-AAR-GST
Kondody Autocraft India Pvt Ltd
GST - The applicant is engaged in the building of bus body on job work basis - The customers purchase the chassis and hand over the same to the applicant for fabrication of the bus body - The applicant approached the AAR seeking to know whether the activity of bus body building on job work basis on the chassis supplied by the customer would be supply of goods or supply of service - It also sought to know the applicable rate of GST if such activity is found to be a supply and the applicable rate of GST if found to be goods.
Held - The activity of bus body building on job work basis on the chassis supplied by the customer, constitutes supply of service - Therefore, it is a service covered under SAC Code 9988 attracting 18% GST: AAR
- Application disposed of: AAR
2019-TIOL-104-AAR-GST
Techno Tradings And Services Pvt Ltd
GST - The applicant is the authorized dealer of marine engines and marine gear box used by fishing boats - It approached the AAR seeking to know whether as per Notfn No 1/2017, Marine Diesel Engine falling under Heading 8408 of Custom Tariff Act 1975 as adopted to GST, attracts 28% IGST (14% CGST + 14% SGST) as per Sr No 115 of Schedule IV - It also sought to know whether as per the same Notfn, Gear Box falling under Heading 8483 of Customs Tariff Act, as adopted to GST, attracts 28% IGST as per Sr No 135 of Schedule IV - The applicant alos sought to know whether both items can be treated as parts of heading 8902, 8904, 8905 & 8907 attracting 5% IGST as per Sr No 252 of Schedule I to Notfn No 1/2017-CT(R).
Held - The Diesel engines supplied for use in goods falling under 8901, 8902, 8904, 8905, 8906 & 8907 will be deemed to be parts of vessels/goods falling under these headings and hence taxable @ 5% as per Sr No 252 of Schedule I of Notfn No 01/2017-CT(R) - If used for some other purpose, the applicable tax rate would be 28% as per Sr No 115 of Schedule IV of the same - Moreover, the Gear Boxes falling under Heading 8483 when supplied for use in vessels/goods falling under heading 8901, 8902, 8904, 8905, 8906 & 8907 will be deemed to be parts thereof and hence taxable @ 5% as per Sr No 252 of Schedule I of the same Notfn - If used for some other purpose, then applicable tax rate will be 28% - Further, both items will be deemed to be parts of such goods and so taxable @ 5% as per Sr No 252 of Schedule I of Notfn No 1/2017-CT(R) - If used for some other purpose, the tax rate applicable would be as per their respective headings @ 28%: AAR
- Application disposed of: AAR
2019-TIOL-103-AAR-GST
Sri Thomas Joseph Nellissery
GST - The applicant supplies Management Consultancy services to clients abroad - He approached the AAR seeking to know whether he would fall within the definition of 'intermediary' as per Section 2(13) of the IGST Act - The applicant also sought to know whether the management consultancy service provided by him fell within the meaning of Intermediary Services as per Section 13(8)(b) of the IGST Act 2017.
Held - The services provided by the applicant fall under SAC code 998311 as Management Consultancy Services - The service provided by the applicant to the clients does not in any manner facilitate or arrange the supply of goods or services or both between two or more persons - Hence it will not fall within the definition of intermediary u/s 2(13) of the IGST Act, 2017 - Regarding whether such services fall within scope of intermediary services u/s 13(8)(b) of the IGST Act, it is seen that Section 13 lays down the principles for determining the place of supply of services, where the location of supplier or location of recipient is outside India - Such question involves determination of place of supply of the services provided by the applicant - This is beyond the jurisdiction of the AAR - Hence this issue cannot be answered: AAR
- Application disposed of: AAR
ARTICLES
Recovery proceedings pending appeal in mandatory pre-deposit era
Central Product Classification Code - Relevance to Service Exports from India Scheme
GST levy on Realty Sector w.e.f 1st April - some major ramifications
GST - Agenda for the second year - Part XXXI - Loyalty schemes - Actionable claim under GST?
