HIGH COURT CASES
2019-TIOL-1588-HC-AHM-GST
Willowood Chemicals Pvt Ltd Vs UoI
GST - Refund - Sections 54, 56 of CGST Act, 2017; rules 91, 94 and 96 of the CGST Rules, 2017 - Delay in granting refund - Writ applicants are entitled to 9% per annum interest from the date of filing of the GSTR-3B - exercise to be undertaken by respondent and completed within a period of two months from the date of receipt of the order - Writ application disposed of: HC [para 4, 5]
- Application disposed of: AAR
2019-TIOL-1587-HC-AHM-GST
Saraf Natural Stone Vs UoI
GST - Section 54, 56 of the CGST Act - Rules 90, 91, 94, 96 of the CGST Rules, 2017 - Writ-applicant is seeking compensation and interest towards the substantial delay in making payment of the refund of the Integrated Tax paid on the export of goods in terms of Section 16 of the Integrated Goods and Services Tax (IGST) Act, 2017 and the Rules made thereunder, mutatis mutandis read with the provisions relating to the refund of the Central Goods and Services Tax (CGST) Act, 2017 and the Rules made thereunder; that the inaction leading to inordinate delay in granting of refund could be termed as arbitrary and violative of Articles 14 and 19 of the Constitution of India; that the inordinate delay in granting of refund severely impacted the working capital of the company and thereby substantially diminished its ability to continue its business - respondents submitted that unless there is a specific provision providing for the entitlement of the interest of refund, no interest would be available since equity has no role to play in the matters of taxation.
Held: The position of law appears to be well settled - The provisions relating to an interest on delayed payment of refund have been consistently held as beneficial and non-discriminatory - It is true that in the taxing statute the principles of equity may have little role to play, but at the same time, any statute in taxation matter should also meet with the test of constitutional provision - Respondents have not explained in any manner the issue of delay as raised by the writ-application by filing any reply - The chart indicating the delay speaks for itself - respondents are liable to pay simple interest on the delayed payment at the rate of 9% per annum from the date of filing of the GSTR-03 - respondents shall undertake this exercise at the earliest and complete it within a period of two months - Writ application disposed of: High Court [para 22 to 25]
- Petition disposed of: GUJARAT HIGH COURT
2019-TIOL-1585-HC-PATNA-GST
Commercial Steel Engineering Corporation Vs State of Bihar
GST - Bihar Goods and Services Tax Act, 2017 - Petitioner seeks for issuance of a writ in the nature of certiorari for quashing of the order passed by respondent as being illegal and without jurisdiction in terms of s.73(1) of the Act and to restrain the respondent from taking any coercive action against petitioner for recovery of said demand contained in the impugned order dated 06.11.2018.
Held: There was an input tax credit to the tune of Rs.18,33,304.76 in favour of the petitioner for the period 2007-08 and to the tune of Rs.20,79,256.00 for the period 2011-12 for the taxes deposited under 'the VAT Act' and 'the Entry Tax Act' - what is to be seen is whether, the credit reflected in the electronic credit ledger of the petitioner amounts to either availment or utilization of the credit - Assistant Commissioner of State Taxes has somewhere got confused to treat the transitional credit claimed by the dealer as an availment of the said credit when in fact an availment of a credit is a positive act and unless carried out for reducing any tax liability by its reflection in the return filed for any financial year, it cannot be a case of either availment or utilization - Had it been a case where the credit shown in electronic ledger, was availed or utilized for meeting any tax liability for any year, there would be no error found in the action complained but it would be stretching the term 'availment' beyond prudence to treat the mere reflection of the transitional credit in the electronic credit ledger as an act of availment, for drawing a proceeding under section 73(1) of 'the BGST Act' - The provisions underlying Section 73 is self eloquent and it is only if such availment is for reducing a tax liability that it vests jurisdiction in the assessing authority to recover such tax together with levy of interest and penalty under section 50 but until such time that the statutory authority is able to demonstrate that any tax was recoverable from the petitioner, a reflection in the electronic credit ledger cannot be treated as an 'availment' - Annexure 2 series confirms that the petitioner has an input tax credit in his favour under the Value Added Tax Act and the Entry Tax Act - Whether he is entitled for refund of this credit or entitled to carry it forward in the transitional credit, may be a subject matter of proceeding pending before the statutory authority but nonetheless, it is definitely a confirmation of the fact that there is no tax outstanding against the petitioner which is recoverable - legislative intent reflected from a purposeful reading of the provisions underlying section 140 alongside the provisions of section 73 and Rules 117 and 121 is that even a wrongly reflected transitional credit in an electronic ledger on its own is not sufficient to draw penal proceedings until the same or any portion thereof, is put to use so as to become recoverable - order dated 6.11.2018 passed by the respondent no.3, the Assistant Commissioner of State Taxes in purported exercise of power vested in him under section 73 of 'the BGST Act' is held per se illegal and an abuse of the statutory jurisdiction and is accordingly quashed and set aside - Petition allowed: HC[para 19, 20, 32, 33, 35, 36, 38, 39]
- Petition allowed: PATNA HIGH COURT
2019-TIOL-1567-HC-DEL-GST
Reckitt Benckiser India Pvt Ltd Vs UoI
GST - National Anti Profiteering Authority has ordered an inquiry as regards one of the products of the Petitioner i.e. Dettol HW Liquid Original 900 ml ('Complained Product') - grievance of the Petitioner is that the Director General of Anti Profiteering (DGAP) has by the impugned notice dated 8th/9th April, 2019 sought information on all products of the Petitioner - adverting to sub-rule 5(a) which has been inserted in rule 133 by notification 31/2019-CT dated 28.06.2019, it is the case of the Petitioner that without there being a report of the DGAP on the complained product followed by an order of NAPA in terms of Rule 133(5)(a) of the CGST Rules, the DGAP cannot suo motu issue a notice requiring the Petitioner to submit information on all its products which are approximately 3500 in number - Petitioner has also challenged the vires of Section 171 of the CGST Act and various incidental rules including the newly introduced Rule 133(5)(a) of the CGST Rules.
Held: Court is of the view that the Petitioner has made out a prima facie case for grant of limited interim relief - It is directed that, till the next date, it will not be required to furnish information to the DGAP pursuant to the impugned notice other than information pertaining to the Complained Product - clarified, however, that the NAPA's inquiry as far as the Complained Product is concerned will proceed in accordance with law - Matter to be listed on 22 nd August 2019: HC [para 6, 7]
- Interim relief granted: DELHI HIGH COURT
AAR CASES
2019-TIOL-241-AAR-GST
Terna Public Charitable Trust
GST - Supply of medicines, surgical items, implants, consumables and other allied items provided by the hospital through the hospital owned pharmacy as well as food, room on rent to the in-patients is part of composite supply of health care treatment and hence is not taxable under GST, Sr. 74 of 12/2017-CTR refers; however, such supply through hospital owned pharmacy to out-patients is taxable under GST: AAR
- Application disposed of: AAR
2019-TIOL-240-AAR-GST
Security And Intelligence Services India Ltd
GST - Applicant are providers of security services to Visvesvaraya National Institute of Technology, Nagpur (VNIT) and seek a ruling as to whether they qualify for exemption under Sl. 66 of 12/2017-CTR as being services provided to an educational institution or as per sr. no. 3 of 12/2017-CTR
Held: Proviso to sr. no. 66 of 12/2017-CTR clearly states that only services provided to an educational institution which provides services by way of pre-school education and education up to higher secondary or equivalent will be exempt - security services provided by applicant to VNIT is, therefore, not exempt from payment of GST - so also VNIT has neither been set up by an Act of Parliament or a State Legislature not has been established by any Government, with ninety per cent or more participation by way of equity or control to carry out any function entrusted to a municipality under Article 243W of the Constitution or to a Panchayat under Article 243G of the Constitution, hence they cannot be considered as a ‘Government Authority', therefore, sr. no. 3 of 12/2017-CTR also does not apply - exemptions under either of the entries does not apply: AAR
- Application disposed of: AAR
2019-TIOL-239-AAR-GST
Nexture Technologies Pvt Ltd
GST - Door-handle of motor vehicles, fittings made of plastic for motor vehicle's doors such as bracket, housing, stator, gasket and glove box locking are classifiable under Chapter 3926 and will be taxable as per the rates applicable: AAR
- Application disposed of: AAR
2019-TIOL-238-AAR-GST
Cummins Technologies India Pvt Ltd
GST - Applicant seeks to know whether the services provided by them to an overseas group company can be assessed based on taxability as accorded to zero rated supply.
Held: Such query does not fall under any of the clauses mentioned from (a) to (g) of sub-section (2) of section 97 of the CGST Act, 2017, hence AAR refrains from answering the same: AAR
- Application not maintainable: AAR
2019-TIOL-237-AAR-GST
Colo Color
GST - Applicant seeks an advance ruling on the following question viz. whether the activity of merely printing or reproducing the content given by photographers/retail customers on pen drive, CD, memory card or any other storage media will be classifiable under SAC 998912 or 998386.
Held: Subject transaction is very clearly covered by CBIC Circular 84/03/2019-GST dated 01.01.2019 and accordingly, it is held that the applicant is supplying services falling under SAC 998386 and the same is covered under Entry 21 of 11/2017-CTR and attracts GST @18%: AAR
- Application disposed of: AAR
2019-TIOL-236-AAR-GST
Vidarbha Infotech Pvt Ltd
GST - Applicant, a contractor, had applied and was awarded a contract from Nagpur Environmental Services Ltd. (NESL), Nagpur (a 100% subsidiary of the Nagpur Municipal Corporation, Nagpur) for providing services for the management of non-network tanker with the help of GPRS system at Nagpur - the service is basically to provide water supply for domestic, industrial and commercial purposes at various locations in and around Nagpur city - applicant seeks to know as to whether the said services are exempt from GST since it falls under various exempt services in the Article 243W of the Constitution of India.
Held: GPRS system is installed for tracking water carrying tanker and to see that the said tracker reaches at the designated location and thus, water is supplied to the identified customers - from the work order issued to the applicant by NESL it is clear that the impugned services qualify as 'pure services' within the description of services at Entry no. 3 of 12/2017-CTR - Nagpur City Municipal Corporation Act, 1948 has established the company in the name of NESL - NMC, Nagpur has entered into a MOU with NESL and allotted the responsibilities for the said works - Thus, NESL is established as per Nagpur Municipal Corporation Act, section 58(B) and thereby permitting corporation to implement their duty allowed by the Government through this body i.e. NESL - Thus NESL is an authority with the control or management with Municipal fund - as such NESL is a local authority as defined under s.2(69) of the CGST Act - applicant is, therefore, providing pure services to local authority and is squarely covered by entry no. 3 of 12/2017-CTR - services are exempted: AAR
- Application disposed of: AAR
2019-TIOL-235-AAR-GST
Wilhelmsen Maritime Services Pvt Ltd
GST - Supply from bonded warehouse will fall under Schedule III of the CGST Act and is exempted - however, supply from non-bonded warehouse will not fall under Schedule III and, therefore, not exempted - ruling sought as to whether the transaction effected by applicant can be considered as ‘exports' is not covered under the purview of s.97 of the Act, hence application is not maintainable to the said extent and cannot be entertained: AAR
- Application disposed of :AAR
2019-TIOL-234-AAR-GST
National Institute Of Bank Management
GST - Applicant is a registered society and is an academic cum training institute established by the Reserve Bank of India in consultation with the Government of India as an autonomous apex Institute with the mandate of playing a pro-active role of ‘think-tank' of the banking system - Authority does not agree with the contention of the applicant that their activity would be covered under the Principle of Mutuality - Any contributions collected/received by the applicant will definitely be understood as ‘consideration' as the same has been paid for supply of services - Consideration paid as subscription or contribution towards recurring or capital expenses or reimbursement or by whatever name called, to applicant NIBM, a society registered under the Societies Registration Act, 1860 by its members (being Banks) for its recurring and non-recurring expenses is leviable to GST: AAR
- Application disposed of :AAR
2019-TIOL-233-AAR-GST
Daewoo-TPL JV
GST - s.54(3) of the CGST Act, 2017 - Inverted duty structure - Seeking an understanding of the formulae for calculation of refund does not fall within the purview of s.97 of the CGST Act - There is nothing in the rule 89 of the Rules as amended by notifications 21/2018-CTR and 26/2018-CTR that overrides the section 54 of the Act and have to be read harmoniously while granting refunds: AAR
- Application disposed of: AAR
2019-TIOL-232-AAR-GST
Kasturba Health Society
GST - Applicant has entered into a joint project with the State and Central Governments to form a Medical college named Mahatma Gandhi Institute of Medical Sciences (MGIMS) which is an entity different from that of the applicant, hence applicant cannot be said to be satisfying all the criteria of an "Educational Institution" - It is MGIMS which appears to be engaged in imparting medical education and not the applicant, therefore, the applicant falls within the scope of sections 22 or 24 of the CGST Act and they are liable to obtain registration if they provide taxable services and their turnover exceeds the threshold limit prescribed for registration: AAR
- Application disposed of: AAR
2019-TIOL-231-AAR-GST
RK Industries
GST - Steel mugs with a plastic outer body supplied by the applicant is classifiable under heading 7323 (and not under heading 3924) since the material which is giving the essential character is the presence of steel which is 75% of the total value and composition of the goods - product is covered under Sl. no. 184 of Schedule II of 1/2017-CTR, attracting CGST @6%: AAR
- Application disposed of: AAR
JEST GST by Vijay Kumar
Misadventure of a Clandestinely Amended Circular
ARTICLES
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Bar on refund of ITC for the goods 'subjected to' export duty
Taxability of transfer of development rights - the conundrum continues
Poor GST Collections - Bleeding Centre; Time to renegotiate 14% growth with States!
