HIGH COURT CASES

2019-TIOL-997-HC-AHM-GST

CCGST & CE Vs Palak Designer Diamond Jewllery

GST - The applicant seeks review of judgment in 2019-TIOL-430-HC-AHM-GST on the ground that while the total tax demand was of Rs.13,03,57,862/-, only Rs.46,75,791/- has been secured by Court and no suitable directions have been issued to secure the remaining tax demand - It is the case of applicants that the relief claimed in petition may not be granted as mentioned in judgment - A perusal of judgment reveals that this Court has duly recorded the submission that in terms of SCN, the total tax demand comes to around of Rs.13 crores and hence the relief claimed in petition may not be granted and that, if at all, the Court is inclined to grant any relief as prayed for, the respondent may be directed to furnish the bank guarantee of at least Rs.1 crore - No case is, therefore, made out for review of the aforesaid judgment: HC

- Application rejected: GUJARAT HIGH COURT

2019-TIOL-996-HC-AHM-GST

Vasu Corporation Vs State Of Gujarat

GST - Upon the vehicle in question together with the goods being detained under section 129(1) of Gujarat GST Act, 2017, the petitioner has deposited the tax and penalty as contemplated under section 129 of the Act "under protest" - Despite the aforesaid position, respondents have continued with the detention of goods and thereafter, issued the impugned notice for confiscation - In the light of the fact that the petitioner has already deposited tax and the penalty under section 129(1A) of the GST Act, the respondents are directed to forthwith release the Truck along with the goods contained therein: HC

- Appeal disposed of : GUJARAT HIGH COURT

2019-TIOL-995-HC-AHM-GST

Ganesh Proteins Vs ACST

GST - The respondents have attached the bank accounts of petitioners as according to them, the liability of Rs.3,03,61,800/- is liable to arise by way of penalty under provisions of Gujarat VAT Act, 2003 and around Rs.2.5 crores under GST Act, 2017 - A perusal of provisions of section 45 of Gujarat VAT Act, 2003 reveals that the same empowers the Commissioner to provisionally attach any property belonging to dealer for purpose of protecting the interest of Government revenue - Whether the expression, "Government revenue" would include penalty which the dealer may or may not become liable to pay at a subsequent date - The matter requires consideration - Hence, Issue Rule returnable on 17th July, 2019 - By way of ad-interim relief, the operation of impugned order is hereby stayed - Consequently, the respondents shall forthwith release the bank accounts of the petitioners as well as the stock attached by said order: HC

- Appeal disposed of: GUJARAT HIGH COURT

2019-TIOL-994-HC-AHM-GST

Kush Traders Vs State Of Gujarat

GST - The attention of the court was invited to Notfn 27/2017-Central Tax to point out that the same provides that notwithstanding anything contained in rule 138 of CGST Rules, 2017, no e-way bill is required to be generated where the goods being transported are specified in annexure - The attention of the court was invited to item No.62 of the annexure to point out that fennel and cumin are notified thereunder, and hence, no e-way bill is required to be generated while transporting such goods - It was submitted that despite the aforesaid position, the goods and the conveyance of the petitioner have been detained on the ground that e-way bill has not been tendered and further notice for confiscation under section 130 of CGST Act, 2017 read with other relevant statutory provisions has been issued - Issue Notice returnable on 2nd May, 2019: HC

- Appeal disposed of: GUJARAT HIGH COURT

GST - Petitioner challenging the order of second respondent who held that the time frame for filing of TRAN-1 has expired and that no evidence was produced by petitioner to show that technical difficulties existed - Petitioner also seeking for a direction to respondents to consider and grant the request to re-open the TRAN-1 form to update the opening stock of CENVAT credit.

Held: Petitioner has filed a representation dated 29.03.2019 with enclosures, therefore, they should be granted an opportunity to pursue their case before the Nodal officer - impugned order is set aside and second respondent is directed to pass an order on the representation within four weeks: HC [para 4, 5]

- Petition allowed: MADRAS HIGH COURT

2019-TIOL-977-HC-MAD-GST

Vsg Exports Pvt Ltd Vs CC

GST - Rule 96A of CGST Rules, 2017 – Polished Granites Slabs [Tariff Item No.680203] - Refund of Integrated Tax (IGST) paid on the goods exported out of India - since the respondents have not refunded the IGST amount, they were constrained to file the writ petition - According to the petitioner, they have claimed lower rate drawback as per Notification 131/2016(NT) , dated 31.10.2016, the petitioner having mistakenly declared in the Shipping Bills that they have availed higher drawback by selecting A instead of B; that the same is an inadvertent error; that to overcome such inadvertent errors, CBEC, Ministry of Finance, Government of India, issued a Circular No.8/2018 , dated 23.03.2018 which allows the refund of IGST through an officer interface specially opened by DG(Systems), a one time exception.

Held: Case on hand will clearly indicate that only due to inadvertence, the drawback code in the shipping bill was wrongly mentioned as 680203A instead of 680203B – respondents do not dispute that IGST refund is payable to the petitioner but only due to the fact that Export General Manifest for the shipping bills have been closed by the computer system, it is not possible to refund the IGST amount to the petitioner - Petitioner cannot be made helpless just because the computer system does not enable them to refund the IGST amount - Being an undisputed fact that IGST refund is payable to the petitioner, the petitioner is absolutely entitled to the IGST refund from the respondents - petitioner had never availed the option to take drawback at higher rate in place of IGST refund and, therefore, the Circular No.37/2018 , dated 09.10.2018 is not applicable to the facts of the instant case - Further, the Circular No. 37/2018 , dated 09.10.2018 issued by CBEC has also not rescinded the earlier Circular No.08/2018 , dated 23.03.2018 – settled law is that although the circular is not binding on the Court or an assessee, revenue cannot raise contention contrary to binding circular; that when a circular remains in operation, revenue is bound by it and cannot be allowed to plead that it is not valid or it is contrary to the terms of statute - Court is of the considered view that the respondents ought to have refunded the IGST amount for the aforementioned shipping bills to the petitioner within a period of eight weeks – Petition allowed: High Court [para 25, 27, 29, 31]

- Petition allowed : MADRAS HIGH COURT

 

 

 

VAT CASES

2019-TIOL-02-AAR-VAT

Shokeen Pan Shop

MVAT - Paan which is sold by the applicant after putting together of various ingredients on the betel leaf/leaves cannot be called resale as the same isn't sold as it is and, therefore, there is manufacture involved in the process carried out within the meaning of section 2(15) of the MVAT Act: ARA

- Application disposed of: ARA

2019-TIOL-01-AAR-VAT

Omega Meyer Ltd

MVAT - Technical knowhow has been incorporated by the Entry no. 7 of Notification issued for Entry 39 of Schedule C of MVAT Act, 2002, treating it as goods of incorporeal or intangible character - therefore, receipts under the impugned agreements are subject to levy of tax under Entry C-39: ARA

MVAT - As the situs of sale of technical knowhow is within the State of Maharashtra, it is not a sale in the course of export: ARA

- Application disposed of: ARA

 

AAR CASES

2019-TIOL-139-AAR-GST

Tata Motors Ltd

GST - Tata Harrier vehicle is classifiable under TI 8703 3291 of the First Schedule to the CTA, 1975: AAR

GST - To be covered under sr. no. 52B of Notification 1/2017-Compensation Cess(R), vehicle must satisfy the conditions mentioned in main clause as well as those mentioned in the Explanation: AAR

GST - Ground clearance mentioned in the notification 1/2017-Compensation Cess(R) must be arrived at in un-laden condition: AAR

GST - Tata Harrier whose ground clearance in un-laden condition is 205mm would fall under sr. no. 52B of Notification 1/2017-Compensation Cess(R): AAR

GST - GST Compensation Cess @22% under sr. no. 52B of Notfn. 1/2017-Compensation Cess (R) is applicable to Tata Harrier: AAR

GST - To get covered under sr. no. 52B of Notfn. 1/2017-Compensation Cess (R), the ground clearance should be 170mm or above in un-laden condition: AAR

- Application disposed of: AAR

2019-TIOL-138-AAR-GST

Puranik Construction Pvt Ltd

GST - Entry Clause (da) of Item (v) of notification 01/2018-CTR nowhere restricts the benefit to a ‘Developer' only - Notification entry is qua the supply of service and not qua the person and, therefore, once the project qualifies as Affordable Housing Project (AHP), the benefit of concessional rate of tax would be available in respect of Works Contract Services pertaining to Low Cost Houses, irrespective of it being supplied by the Developer or Contractor - since, in the present case, the project qualifies as AHP, the benefit of concessional rate of tax of 12% would be available to the applicant: AAR

- Application disposed of: AAR

2019-TIOL-137-AAR-GST

Bengal Peerless Housing Development Company Ltd

GST - Applicant is a JV of West Bengal Housing Board and The Peerless General Finance and Investment Company Limited for developing real estate projects - applicant is developing a residential housing project and supplying construction service to recipients for possession of dwelling units in the year 2023 - applicant also provides services like preferential location service, which includes services of floor rise and directional advantage - they seek a ruling as to whether such supply constitutes a composite supply with construction service as the principal supply and if so, whether abatement is applicable under sl. No. 3(i) r/w paragraph 2 of notification 11/2017-CTR on the entire value of the composite supply.

Held: Construction service is the dominant element in the bundle of services provided - buyers of the service of constructing dwelling units in such upscale residential complexes expect, apart from the preferential location of the dwelling unit, the right to use car parking space and enjoyment of common areas and facilities like landscaped gardens, gym, conference hall, club with swimming pool etc. and which are usually bought as a bundle while booking the flat - it is, therefore, reasonable to conclude that such services are naturally bundled and offered in conjunction with one another in the ordinary course of business and the other services are ancillary to the supply of construction service, which is the essential supply - applicant is, therefore, providing a composite supply, construction being the principal supply - entire value of composite service is to be treated, for the purpose of taxation, as supply of construction service, taxable under sl. No. 3(i) r/w paragraph 2 of notification 11/2017-CTR: AAR

- Application disposed of: AAR

 

AAAR CASES

2019-TIOL-41-AAAR-GST

Super Wealth Financial Enterprises Pvt Ltd

GST - AAR had held that s ervices 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 - appeal to AAAR.

Held: In the contract, it is clearly specified that all installed equipments constructed or system installed are transferred to BMC in good condition, therefore, activities carried out by the appellant is to be considered as supply of goods in terms of provisions of Schedule II, Para 4(a) of CGST Act - appeal is rejected by upholding the ruling of AAR: AAAR

- Appeal rejected : AAAR

 

 

NAA CASES

2019-TIOL-28-NAA-GST

Director General Of Anti-Profiteering Indirect Taxes And Customs Vs TTK Prestige Ltd

GST - Applicant alleges that the respondent did not pass on the benefit of reduction in GST from 28% to 18% - inasmuch as the respondent increased the base price to maintain the same cum-tax selling price which was prevalent before the rate reduction.

Held: From the invoices available, it is revealed that the respondent had increased the base price of the product ‘Gas Stove' from Rs.1640.62 to Rs.1779.66 when the rate of tax was reduced from 28% to 18% w.e.f 15.11.2017 - by increasing the base price of the product, post-GST, the benefit of reduction in tax rate was not passed on to the recipients - For the period 15.11.2017 to 31.10.2018, the total amount of profiteering made is Rs.13,973/- inclusive of the amount of Rs.535/- in respect of the impugned invoice cited by the applicant - respondent has agreed to deposit the profiteered amount along with interest - applicant directed to deposit the amount of Rs.535/- to the applicant along with interest @18% and the remaining amount along with interest to be credited to the Consumer Welfare Fund of the Central & State governments of twelve states in equal ratio within three months - respective Commissioners of CGST/SGST directed to monitor the implementation of this order - as the respondent had issued incorrect invoices and had compelled the customers to pay additional GST without passing on the benefit of rate reduction, they are liable for imposition of penalty u/s 122 r/w rule 133 of the CGST Rules, 2017 - notice to be issued accordingly - Application allowed: NAA

- Application allowed: NAA

2019-TIOL-27-NAA-GST

ABV And Company Vs Professional Couriers

GST - Anti-Profiteering - There was no reduction in the rate of tax on supply of ‘Courier Service' after implementation of GST - Instead, there was an increase in the rate of tax from 15% pre-GST regime to 18% in the post-GST regime - Fact that respondent has increased his base price for providing courier service from Rs.69.50 to Rs.80/- has no relevance in view of the fact that there has neither been a reduction in the rate of tax nor increased benefit on account of Input Tax Credit (ITC) - Provisions of s.171 of the CGST Act, 2017 cannot be invoked - Application dismissed: NAA

- Application dismissed: NAA

 

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